MUFTAKHIRUDDIN, J.--These proceedings have been initiated in pursuance of the judgment of this Court passed in Criminal Appeal No. 2/1 of 1983 and respondents herein have filed replies to the show---cause notice issued by the Deputy Registrar of this Court. The material facts leading to these proceedings are that on the statement of one Mst. Asho, the prosecutrix, a trial under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) read with section 109, P.P.C. Was held against four persons namely Khadim Hussain son of Sojhal, Kala son of Wahid Bukhsh and Mst. Hussaina and Mst. Sohagan and the allegations were that Mst. Asho daughter of Allah Ditta was forcibly lifted and taken into a nearby garden where Khadim Hussain and Kala accused forcibly committed sexual intercourse. Mst. Hussaina, Mst.
Sohagan were involved in the case as they had taken Mst. Asho to the fields for easing there wherefrom she was lifted by Khadim Hussain and Kala. The learned Sessions Judge, Rahim Yar Khan, vide his judgment, dated 7-2-1981 believed the statement of the prosecutrix and convicted Khadim Hussain and Kala under section 10(3) of the Ordinance and sentenced each of them to three years' R.I. And 30 stripes. The other accused namely Mst. Hussaina, the sister of Khadim Hussain and Mst. Sohagan, the sister of Kala were, however, acquitted. The convicted persons sent in an appeal from Jail and the same was registered as Jail Criminal Appeal No. 2/I of 1983 and was heard by Mr. Justice Aftab Hussain, then Chief Justice of the Federal Shariat Court. The appeal was allowed and the appellants acquitted. It was observed by Hon'ble Chief Justice that Mst. Asho was contradicted by her father-in-law Allah Diwaya (P.W. 2). The evidence on some material particulars was found contradictory. Since the statement of Mst. Asho was the only statement found on record and no corroboration of her statement was found, the appellants were given the benefit of doubt.
The consideration which prevailed with the learned Chief Justice for the findings arrived at by him are reproduced in the words used by him as under:--- "The statement of Mst. Asho is thus the only statement on record which as stated above is unbelievable on many a particulars. She obviously made a false statement to rope in two innocent girls. There is no corroboration of this statement. May be that Mst. Asho might have been seen in some compromising position by others and then the case was framed up against the two appellants. It is also possible that the appellants might be those persons with whom she was seen but in the circumstances of the case they are entitled to the benefit of doubt I am convinced that Allah Diwaya and Mst. Asho concealed the real facts and framed a false case of rape against the appellants."
While acquitting the appellants the Chief Justice was pleased to order that "Notice to Mst. Asho P.W.
1 and Allah Diwaya P.W. 2 to show cause under section 476, Cr.P.C. Why they may not be convicted under section 193, P.P.C.
2. We have heard Malik Rab Nawaz Noon, the learned counsel for the respondents (Mst. Asho and Allah Diwaya) and have scrutinized the entire record. The trial Court had believed Mst. Asho and recorded the order of conviction. It may be that the conviction was wrong and the Federal Shariat Court was quite right in setting aside the conviction. But the fact remains that on facts trial Courts have taken different view. It was held in Hiralal Mahtan v. Lila Mahtan and another AIR 1923 Patna 102 (2) on almost identical facts that when two Courts take different views of facts, sanction for prosecution should not be granted. We are also inclined to the same view and are of the opinion that it is not expedient in the interest of justice that the respondents be proceeded with for the offence of perjury. We are fortified in our view by the latest pronouncement of the Supreme Court in Muhammad Ramzan and others v. The State PLD 1984 SC 184 Mr. Muhammad Afzal Zullah, J. Who rendered the judgment on behalf of five learned Judges of the Bench expressed the opinion in these words "but impressions could not be avoided that acquittal of accused was only on extension of benefit of doubt and that being so the jurisprudential consequence of such an acquittal, on extension of benefit of doubt would be that there being equal possibility of the accused being guilty or not guilty on the evidence led against him, in law and justice, they would have earned the right to be acquitted not because of any final conclusion that the accusation was false but on account of the reason that the prosecution failed to establish the case beyond doubt.
The benefit of doubt which was extended to the accused in the main case could as well be extended on the said principle in favour of the accused in the case under section 193, P.R.C.
3. We may add that it is always useful to keep in view the following maxim propounded by our Holy Prophet (p.b.u.h.) in respect of saving the Muslims from punishment:- "The mistake of a Qazi in releasing an accused is better than his mistake in. Punishing him" (Trimzi, Kitabul Hudood, Vol. 1, page 535).
4. There is yet another reason which persuades us to say that the proceedings would not be expedient in the interest of justice and it is that these proceedings have been initiated since 1983 and for this long period the respondents have endured mental harassment and uncertainty since then and have been sufficiently punished by the suspense in which they had been all that time. The learned State counsel, Mr. Muhammad Aslam Uns, Advocate also subscribes to the view, we have taken of the matter and we record our appreciation for his candidness. In view of what has been stated above we discharge the notice, dated 9-7-1983 issued by the Deputy Registrar of this Court issued in pursuance to the direction given by the Federal Shariat Court in Criminal Appeal No. 2/I of 1983 and recall the direction.
M.B.A. Notice discharged.