' MUFTAKHIRUDDIN, J.-- This is an appeal against the judgment dated 6-6-1988 passed by Mr. Subah Sadiq, Additional Sessions Judge-V, Rahimyar Khan whereby the appellant Abdul Rehman son of Haji Essa resident of Mauza Malikpur, Tehsil Khanpur, District Rahimyar Khan now confined in New Central Jail, Bahawalpur has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to undergo R.I. For 15 years with ten stripes. The allegations against the appellant are very ugly and nasty. It is said that he used to commit Zina with his own daughter. When the appeal came up before us, we found that the sentence of whipping is not in accordance with the requirements of law if the offence is found established. Accordingly we decided to issue a notice to show-cause why the sentence of whipping be not enhanced. The notice was accepted by Mr. Aslam Shahid, Advocate appearing for the appellant.
2. The facts which put the police in motion are contained in a statement made by one Mst. Hajira daughter of Abdul Rehman to Muhammad Ayub, S.I. Of Police Station, Zahirpur when the latter on 14-4-1985 visited the Ilaqa in connection with the verification of the contents of the application dated 24-8-1984 addressed by Mst. Gul Khatoon wife of Abdul Rehman of Basti Malikpur of District Rahimyar Khan to the S.S.P. Rahimyar Khan. It was alleged that Mst. Gul Khatoon is the wife and Mst.
Hajira a virgin daughter of the accused who has been committing Zina with Mst. Hajira and in spite of the warnings and requests has not mended himself. The father-in-law of the applicant and the near relations have witnessed the commission of offence of Zina. Having verified the contents of the application and the allegations made against the accused the statement recorded by the Sub-Inspector on 14-6-1985 was forwarded to the Police Station Zahirpur where from F.I.R. Was registered by Noor Muhammad (P.W.6). Mst. Hajira was got medically examined by Lady Doctor Muneera Rauf who found her hymen torn completely. Tags old had healed. Vagina admitted the passage of two fingers quite easily. No sign of violence seen on any part of the body including private parts. Since the examinee was found menstruating the vaginal swabs were not taken. The accused was arrested on 16-6-1985 and was found potent on examination by Dr. Shamas-uz- Zaman (P.W.7). The investigation was partly conducted by Muhammad Ayub (P.W.8) but later the same was completed by Muhammad Siddique, S.H.O. And the challan was submitted by him in Court.
3. On the denial of the charge framed under section 10(3) of the said Ordinance the prosecution produced eight witnesses. Dr. Muneera Rauf could not be examined as she had died during the trial and her report was proved by Dr. Shamas-uz-Zaman being familiar with her writing. The witnesses examined on behalf of the prosecution are P.W.1 (Mst. Hajira the prosecutrix) P.W.2 (Muhammad Essa the grandfather of the prosecutrix) P.W.3 (Mst. Gul Khatoon the mother of the prosecutrix), P.W.4 (Shafiur Rehman - the brother of the prosecutrix and the son of the accused), P.W.5 (Abdul Karim the uncle of the prosecutrix and the brother of the accused), P.W.6 (Noor Ahmad who recorded the formal F.I.R.), P.W.7 (Dr. Shamas-uz-Zaman), P.W.8 (Muhammad Ayub, S.I.
Who had partly investigated the case). Muhammad Siddique, S.H.O. Who had completed the investigation and had submitted challan did not appear. The accused in his statement recorded under section 342, Cr.P.C. Refuted the allegations and in answer to Q.No, 5 put his case/defence in these words:- "I have been falsely involved in this case. Prior to the alleged occurrence, I found Mst. Hajira, P.W. In compromising position with one Ubaidur Rehman, who is son of her maternal-uncle and took him to my father Jam Muhammad Essa. Mst. Hajran was having illicit relations with said Ubaid-ur- Rehman. The P.Ws. Are inimical towards me. I have got married my other daughter of my own choice out of my brotherhood. On account of that my wife, my father and my other relatives are inimical to me."
' The accused made statement on oath in disproof of the allegation as D.W.5 and produced four other witnesses. They are D.W.1 (Obaidullah son of Muhammad Moosa, a cousin of the accused), D.W.2 (Ghulam Farid, a Mohallandar), D.W.3 (Allah Bakhsh son of Sumara neighbour) and D.W.4 (Abdul Qadir the real son of P.W.2 Muhammad Essa). The trial Court believed the prosecution version and did not like to offer any comment on the veracity or otherwise of the defence witnesses and contended by observing that 'the witnesses produced by the prosecution are closely related to the accused' and all these witnesses have strongly given evidence against the accused which a man of ordinary prudence will definitely believe the evidence because nobody will give evidence of such a heinous nature against his close relative'. The accused was accordingly convicted and sentenced as narrated above.
4. Mr. Aslam Shahid, Advocate appeared for the appellant and Mr. Aziz Ahmad Chughtai represented the State. The learned counsel for the appellant has taken great pains to demonstrate the doubtful nature of the prosecution case and has submitted that the accused has also been successful in substantiating his plea. The witnesses produced in defence are also relations of the prosecutrix and Haji Essa (P.W.2). We have dispassionately gone through the evidence and found that during the two years the offence was being repeated Mst. Gul Khatoon and Shafiur Rehman had seen the occurrence yet no report was lodged and they waited till the same was witnessed by Muhammad Essa who also witnessed the occurrence and rebuked the accused but did not like to report the matter'. The accused was allowed to stay in the house, even when almost everyone had seen the occurrence, does not stand to reason. The prosecution story appears doubtful. The long delay (two years) in taking steps against the accused is another aspect of the case which speaks against the prosecution. The prosecutrix has flatly denied that Ubaidur Rehman, who is involved by the accused, had been visiting the house. On the other hand Muhammad Essa admits that Ubaidur Rehman has been on visiting terms with the family. The defence plea that Muhammad Essa has deprived the accused of his share in the property is supported by the real son of this witness namely Abdul Ghaffar (D.W.4) Obaidullah son of Moosa, an old man of Mauza has deposed that Abdul Rehman wanted to get land from his father Essa but he was not willing to give the land which caused a rift between the heirs. The witness further stated that Essa used to misappropriate the other person's money and was not honest in his dealings with other people. D.W.2 (Ghulam Farid, a Mohallahwala) has deposed that the accused has been falsely implicated. No enmity is alleged by the prosecution with the defence witnesses. So is the case with Allah Bakhsh, D.W., who has supported the defence version. Abdul Qadir, the son of Essa (P.W.) has expressed that Mst. Hajira is of bad character. She has got illicit relations with Obaidur Rehman, the son of her maternal-uncle and three months prior to this occurrence, the accused caught Mst. Hajira in an objectionable condition with Obaidur Rehman. The Shalwars of both were not on their bodies. The witnesses his father, mother and wife of accused were attracted to the spot. Mst. Hajiran and Obaidur Rehman were entreated and let off. 'As my parents and wife of the accused put the turban and headgear on the feet of the accused . It is also stated by this witness that 'my father had deprived the accused of the share of land', though he had given land to me'. The wife of the accused is not obedient to him. The accused also objected that the hand of Hajiran be not given to the sons of his wife's brother. Whatever be the explanation of the father of the accused (P.W.2) the fact remains that the accused has not received equal treatment from his father. Thus, there are two versions and each is being supported by the near relations of the family. The rift in the family is established.
5. Keeping in view the principle of safe dispensation of justice, the view in favour of the accused was to be preferred and the accused is entitled to the benefit of doubt. It would, therefore, be not safe to uphold the conviction of the accused. The appeal is accordingly allowed. The conviction and sentences passed against Abdul Rehman son of Essa Khan are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.