' MUHAMMAD SIDDIQ, J.-- The Additional Sessions Judge, Faisalabad vide impugned judgment, dated 20-12-1984, convicted Muhammad Yasin and Mst. Safia accused under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each of them to undergo R.I. For a period of 10 years and whipping numbering 20 stripes and a fine of Rs,5,000 or in default of payment of fine further R.I. For 2 years.
Muhammad Yasin convict has challenged his conviction and sentences through Criminal Appeal No,7/L of 1985 while Mst. Safia accused filed a separate Appeal No,12/L of 1985. Since both these appeals arise out of the same impugned judgment, they shall be disposed of together by this judgment.
2. In support of its case the prosecution produced 9 witnesses. H.C. Rasheed Ahmad (P.W.1) on receipt of complaint Exh.P.A. /1 prepared formal F.I.R. Exh.P.A. He has further deposed that S.I.
Ghulam Rasool (since dead) took into possession Tape-Recorder P.1, one suit (shirt, Dopatta and Shalwar) P.2/1-3 pink colour, one suit (Shalwar and shirt cream colour) P.3/1-2, one suit (Phooldar) pink colour (shirt and Shalwar) P.1/1-2, one suit (shirt P.G. Dirty-green in colour, one handkerchief in pink colour P.7., one jacket P.8, a suit (Shalwar and shirt) P.9/1-2 dark brown in colour, one suit (shirt and Shalwar) P.10/1-2, one lady shirt P.11, one hand bag P.12, one Shalwar P.13, yellow-pink in colour, vide recovery memo. Exh.P.A. /2 and the same was prepared by S.I. Ghulam Rasool the said S.I.
Submitted an application Exh.P.B. To the effect that Muhammad Yasin and Mst. Safia Bibi both accused be examined by the doctors. The abovesaid documents were in the hands of the said Ghulam Rasool S.I. And the witness was fully conversant with his handwriting and signature. The said S.I. Also submitted an application Exh.P. C. For the examination of Mst. Safia Bibi accused. This application too, was also in the hand of said S.I. And signed by him.
3. Lady Doctor Munira Begum (P.W.2) on 6-7-1982 at 9-15 a.m. Medically examined Mst. Safia accused and made the following observations: - "Examination for Rape.
' No marks of struggle, on her body. There was no stain on her clothes. Hymen not in tact having old healed tears. Vagina orifice admits two fingers easily. I took two vaginal swabs of the examinee for semen analysis and sent the same to the office of Chemical Examiner, Lahore. She was menstruating at the time of her examination. According to my examination the examinee was subjected to sexual intercourse."
' In cross-examination she has stated that according to her examination the examinee was habitual to sexual intercourse and she could not say if she was raped or cohabited with her husband. It is further admitted by her that according to the characteristic mentioned by her could be found in a married woman.
4. Ehsan-ul-Haq (P.W.3) has deposed that on 5-7-1982 he joined the investigation of this case. Mst.
Safia Bibi came to the Police Post D-Type Colony and she was having a hand-bag in her hand. She produced the hand-bag containing seven suits, one Romal, one tape-recorder before the Investigating Officer who took into possession vide recovery memo. Exh.P.A./2. In cross-examination he has denied the suggestion that he usually used to visit the police post. According to him he never appeared in any case prior to the present one. He denied the. Suggestion that he was stock witness of police and had appeared in many cases at the instance of the police. He denied the defence suggestion that the recovery of articles, mentioned in Exh.P.A. Did not take place in his presence and that the complainant of the case had produced the said articles.
5. Mst. Zareena Bibi (P.W.1) identified the clothes as well as tape-recorder mentioned in memo.
Exh.P.A./2. She is the first wife of Nusrat Ali complainant. According to her she was married to Nusrat complainant about 20 years back. She was issueless. Nusrat complainant contracted his second marriage with Mst. Safia accused after obtaining her .Permission but Mst. Safia was also issueless.
She denied the suggestion that she produced her clothes before the police officer and the police took into possession her clothes as well as clothes of Mst. Safia accused.
6. Mst. Aisha Bibi (P.W.5) has stated that Mst. Safia accused was known to her and she was the wife of the brother of her husband. According to her about 21 years back at about 9/10 a.m. She was present in her house alongwith her husband. Mst. Safia accused came to her house. The daughter of the witness was sick and Mst. Safia accused offered to take her daughter to the doctor for her medicine. Mst. Safia at that time was having a bag in her hand and on her inquiry, she deposed that she was going to deliver for sewing the bag. Mst. Kausar, her servant also accompanied Mst.
Safia accused. Mst. Kausar returned to the house after 1 hour and informed her that Mst. Safia went alongwith another person in a rickshaw. Muhammad Anwar P.W. In the meantime, reached there and he informed her that he had seen Mst. Safia Bibi in the company of another person while boarding a rickshaw. Her daughter was also with Mst. Safia at that time. On the following day Nusrat P.W. Came to the house and she narrated the whole occurrence to him. Nusrat P.W. And his wife were also issueless and she had given her daughter to them and they had adopted her daughter. In cross-examination she was duly confronted with her police statement Exh.D.B. Where she had not mentioned certain things which she had deposed before the trial Court.
7. Muhammad Anwar (P.W.6) is a Wajtakkar witness in this case. He has stated that he joined the investigation of this case. He alongwith Bashir P.W. Was present at Chowk Tankiwala. On the day of occurrence at about 9/10 a.m. Muhammad Yasin accused hired a rickshaw and at that time Mst.
Safia accused was having a Gathari alongwith a child in her lap. Muhammad Yasin, Mst. Safia, female child and Gathari alighted the rickshaw and they all went away towards Bus-stand side.
The witness went to his house on the same day where he met Hasrat Ali, the brother of Nusrat Ali P.W. At 10-00 a.m. To whom he narrated the whole incident. In cross-examination this witness was confronted with his police statement Exh. D.D. Where certain things were not mentioned which he had deposed before the trial Court.
8. Nusrat All (P.W.7) is the husband of Mst. Safia Bibi. On 12-5-1982 he was away from his house in connection with selling his school bags at Jhelum and Deena. On the following day he came back to his house at about 2-00/3-00 in the night. When he came back to the house and doors were opened and on his inquiry from his mother she narrated that Mst. Safia accused went away one day earlier in the morning and had not come back. The witness then contacted Mst. Aisha P.W. Who informed that Mst. Kausar disclosed to her that Mst. Safia boarded a rickshaw alongwith another person who was having beard. This fact was also brought to his knowledge that Mst. Safia accused also took away the baby and a Gathari. On the following day Anwar and Bashir P.Ws. Informed him that they had seen his wife Mst. Safia while boarding a rickshaw alongwith another person having beard with a baby and a Gathari. This witness then started search of his wife. On 16-5-1982 he reported the matter to the police after failing to search his wife. He has further deposed that he identified her clothes Exh.P.1 to P.13. He was married to Mst. Safia about 5 years back. In cross- examination he has stated that firstly, she was married at Jaranwala. Volunteered that she married with four/five different persons prior to his marriage. Mst. Safia was married to one Bashir prior to his marriage but he could not give the name of her husband from whom, she got divorce. He denied that his wife Mst. Safia was also earlier abducted and he got registered a case against Baby alias Dhachi but he did not pursue the case. He filed the said suit for restitution of conjugal rights against Mst. Safia Bibi and the same was decreed. According to him he filed two different suits against Mst. Safia. The first suit was filed before the registration of this case and then she came back to his house and he withdrew the said suit. He again filed another suit for the restitution of conjugal rights after the registration of the present case. He admitted that he was issueless and he married Mst. Safia accused only for the children but she did not give birth to any child. He did not blame Mst. Safia Bibi accused for not giving birth to any child. He denied the defence suggestion that due to this reason their relations were strained and that he registered many false cases against Mst. Safia Bibi so that she may be forced to run away from his house. He denied the suggestion that he used to turn out Mst. Safia from his house after giving her beating prior to this occurrence. It is further denied by him that there was civil litigation between himself and Mst. Safia Bibi due to his strained relations. It is denied by him that Yasin accused entice away Mst. Safia adcused.
9. Ghulam Muhammad (P.W.8) has stated that he was present in Chowk Tankiwala at the relevant time. When Mst. Safia accused who was wearing Burge came there alongwith a minor child carrying a Gathari on the head. She was also having a tape-recorder. Muhammad Yasin accused was standing near the wall of Tanki. He took the said Gathari in his possession after reaching the said Tanki. Yasin accused hired a rickshaw and they all went together towards city side. This witness claims to have identified Mst. Safia when she unveiled herself at the time of alighting the rickshaw. She was having a baby aged about 5/6 months in her lap and she also took away the said baby with her. About 14/2 months after this incident this witness was present at the police station where Mst. Safia accused produced clothes P.1 to P.13 which were taken into possession vide recovery memo. Exh.P.A./2 attested by him.
10. S.I. Ghulam Hussain (P.W.9) is the Investigating Officer in this case. `He recorded the statement Exh.P.A./1 on the dictation of Nusrat P.W. And sent the same to the police station for registering formal F.I.R. He visited the spot, prepared site plan Exh.P.E. Of house where Mst. Safia used to reside with the complainant. He correctly recorded the satatement of P.Ws. Under section 161, Cr.P.C. He got custody of Mst. Safia accused from Darul Aman. Thereafter, this police officer sent her to judicial lock-up alongwith the baby. After the completion of the investigation he challaned the accused persons.
11. Muhammad Yasin accused in his statement recorded under section 342, Cr.P. C. Denied the prosecution allegations. He admitted that Mst. Safia accused was legally-wedded wife of complainant Nusrat Ali but the said marriage was without the consent of her father with Nusrat Ali P.W. He stated that he did not know about 'the occurrence neither he was present there. He denied the suggestion that he committed sexual intercourse with Mst. Safia Bibi accused knowing it to be the legal wife of Nusrat Ali P.W. When asked why this case was made against him and why the P.
Ws. Had deposed against him, the accused stated as under:- "Mst. Safia, my co-accused came to Faisalabad with Nusrat Ali P.W. And she wanted to marry Nusrat P.W. Which was objected by her father. The father of Mst. Safia Bibi accused brought me to Faisalabad to restrain them for the marriage. A dispute had arisen between myself and Nusrat Ali P.W. And due to the said strained relation, the present case has been planted against me."
' Mst. Safia accused in her statement recorded under section 342, Cr.P.C. Also denied the prosecution allegations. She, however, admitted that she was legally-wedded wife of Nusrat Ali P.W.
She denied the allegation that she committed sexual intercourse with her co-accused knowing herself to be the legally-wedded wife of Nusrat Ali P.W. When asked why this case was made against her and why the P.Ws., had deposed against her, she stated as under: - "I was issueless and due to this reason my relations with my husband were strained. I filed a suit for dissolution of marriage against my husband. Nusrat P.W. Had registered a case under Zina Ordinance prior to this case against me and others which was ended due to compromise. I then came to the house of my husband and was residing with him. I left the house of my husband due to the strained relation, as my husband used to blame me for not giving birth to any child. My husband gave me threatening that he would plant a false case against me, if I do not leave his house. I all alone went to the house of my parents. My parents did not agree to keep me in their house and on the following day I then voluntarily went to Darul Aman, Lahore. "
12. The accused persons produced Muhammad Hussain in their defence as D.W.1. This witness has stated that he is the father of Mst. Safia. Firstly she was married at Jaranwala with one Bashir. Then Mst. Safia accused married Nusrat Ali P.W. According to her ow ti wishes after getting divorce from Bashir. On 12-5-1982 his daughter Mst. Safia accused came to his house. The witness then turned her out from his house. She stayed for one night in his house and on the following day she left his house. Only a child was in her custody and nothing else. After about two days, this witness learnt that his daughter Mst. Safia accused was in Darul Aman, Lahore. In cross-examination it is admitted by this witness that the civil Court passed a decree against him and his wife as also his son, which was filed by the complainant of the case for an amount of Rs, 7,000. He denied the suggestion that the said decree related for the recovery of Rs, 7,000 from the complainant of the case at the time of giving the hand of his daughter Mst. Safia accused to the complainant. It is further admitted by this witness that his daughter Mst. Safia accused was not previously married at Sheikhupura and that he married his daughter Mst. Safia to Bashir accused after getting divorce from the person with whom she was married at Sheikhupura. He denied the suggestion that he had deposed falsely due to his litigation with the complainant of the case.
13. Mst. Safia accused on 12-12-1984 tendered in evidence certified copy of order on the bail application, dated 16-6-1982 as Exh. D.F., application submitted for sending her to Darul Aman and order, dated 13-5-1982 as Exh. D.Q. And order thereon, dated 13-5-1982 as Exh. D.H., birth certificate of Ishrat Bibi, daughter of Nusrat Ali as Exh. D.J. And a copy of newspapers, dated 15-5-1982 as Exh.
D.L. And closed her defence evidence.
14. The trial Court vide impugned judgment convicted and sentenced both the accused as mentioned above.
15. We have heard at length the counsel for the parties who have also taken us through the entire material available on the record.
16. Both the accused have been convicted and sentenced under section 10(2) of the Ordinance for committing Zina with each other without being legally wedded. According to the defence counsel the prosecution has miserably failed to produce any direct or positive evidence to establish the charge of Zina. The term 'zinc' has been defined under section 4 of the Ordinance in the following words:- "Section 4.-- A man and a woman are said to commit Zina if they wilfully have sexual intercourse without being validly married to each other."
' Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina."
A perusal of the above section shows that to constitute the offence of Zina penetration is necessary. It is an admitted fact that in the instant case the prosecution has produced no direct and positive evidence to prove the penetration against the accused persons. The learned State counsel, however, relies upon certain circumstantial pieces of evidence. According to him Mst.
Safia accused was seen leaving with Muhammad Yasin accused in a rickshaw. Another circumstance relied upon by the prosecution is that both the accused persons were released on bail when Mst. Safia accused was medically examined and her vaginal swabs were found stained with semen and at that time her husband had no access to her. In other words the prosecution is relying upon her medical examination and the report of the Chemical Examiner and her staying with Muhammad Yasin accused after she was released on bail. It is an admitted fact that the prosecution has produced no positive evidence to establish the charge of Zina. The prosecution is relying only upon circumstantial pieces of evidence. It is not denied even by the learned State counsel that such pieces of evidence may be used as corroboration but they themselves cannot be made the basis of B conviction for Zina. The main ingredient of Zina is penetration. There is not a word on the record to establish the penetration. The circumstantial pieces of evidence are not sufficient to prove the allegation of Zina. Moreover, we find that the fact of release of Mst. Safia on bail by co-accused Muhammad Yasin and her living with him before her medical examination by the Lady Doctor, was not put to her under section 342, Cr.P.C., and therefore, that circumstance cannot be used against the accused. Her going together with Muhammad Yasin in a rickshaw would not prove that they also committed Zina with each other. In their statements under section 342, Cr.P.C. Both the accused categorically denied the allegation of Zina. It is not denied that the onus was upon the prosecution to establish the charge of Zina against the accused. The circumstantial pieces of evidence relied upon by the prosecution are not sufficient to establish the allegation of Zina against them. We repeatedly asked the learned State counsel to point out the evidence from the record to justify the conviction of the appellants under section 10(2) of the Ordinance but he failed to do so. He tried to rely upon the same circumstantial evidence which has been relied upon by the trial Court but ultimately failed to satisfy us that it was sufficient to maintain the conviction of the appellants. The result is that there is no direct or positive evidence produced by the prosecution and the circumstantial evidence relied upon by the trial Court is insufficient to establish serious charge of Zina against the accused persons. Even some of the pieces of circumstantial evidence relied upon by the trial Court have to be kept out of consideration as they were not put to the accused under section 342, Cr.P.C. The result is that the case of the prosecution is highly doubtful and the accused persons can legitimately claim the benefit of such doubt. Accordingly while giving the benefit of doubt to Muhammad Yasin and Mst.
Safia accused,we accept these appeals, set aside their conviction and sentences and acquit them of the charges. They shall be released forthwith if not required in any other case.