' ABDUL KARIM KHAN KUNDI, J.--- By his judgment and order, dated 5-4-1989, the learned Additional Sessions Judge, Bhalwal, found the appellants guilty on the charge of Zina liable to Tazir and accordingly convicted and sentenced them to ten years' R.I. And whipping numbering thirty stripes each under section 10(2) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as Ordinance. Nazir appellant was also fined Rupees ten thousand or in default to undergo one year's R.I. Further.
2. After going through the evidence on the record and hearing the learned counsel for the parties we have found it a case of inadequate evidence from the prosecution side while from the side of the convicts/appellants the case was also not properly conducted for one reason or the other and last the trial Court has also failed to call for proper evidence by the parties or itself in order to arrive at a just decision in the case. In the first instance complainant registered a case per F.I.R. No,53, Police Station Midranjaha, dated 11-3-1985, charging the appellants for Zina which was, however, cancelled as found false and frivolous during investigation. He filed a private complaint on 19-4- 1987 and in its support he examined Rehmat Ali (P.W.1), his brother Maula Bakhsh (P.W.2) and himself as P.W.3. P.W.1 was found ignorant of the alleged divorce given by the complainant to Mst.
Bukki the appellant. He did not know whether she had contracted a second marriage with Nazira her co-accused/co-appellant after a year of the Talaq. He also did not know if earlier F.I.R. Case had been cancelled. He had not seen the appellants committing Zina with each other. P.W.2 the real brother of the complainant stated that the appellants were living as husband and wife with the impression in the village that they were committing Zina with each other. In cross-examination he claimed to have seen the appellants committing Zina with each other in Nazira's own house in his presence. Again said that about 3/4 years back he had seen the appellants committing Zina and that he never heard about their Nikah. He stated that in the summer season at about 12 noon the appellants had entered into a room of the house to commit Zina which was also reported closed.
His evidence was not been found above-board and confidence inspiring. P.W.3, the complainant, claimed that he had seen the appellants committing Zina 3/4 times about 3/4 years back in winter season in his own house in his absence that he had caught them red-handed. He stated that it was the month of Eiduzzah which shall fall in August and would not make a winter season. He admitted that he had not seen the appellants committing Zina in the appellants' house. His statement is self-contradictory. On the other hand the appellants claimed that the complainant had divorced his wife where after she contracted a second marriage with Nazira, her co-accused.
They had obtained three Sharaee verdicts which were placed on file but were not formally proved and exhibited. There has also not been led any evidence about their valid Nikah as claimed. They had not given evidence on oath, in disproof of the charges and allegations made against them at the trial. In short, it is a case of no legal evidence from either side. For a just decision of the case, the Court was placed under obligation to call for proper evidence from both sides and also to call for necessary evidence on its own, if need be, as envisaged by section 540, Cr.P.C.
3. We would consequently accept the appeal, set aside the conviction and sentences and remand the case for retrial by the Sessions Judge, Sargodha with direction to call for evidence from the parties and also call for necessary evidence on his own accord if need be in order to arrive at a just decision in the case. May it be stated that it shall need determination if there has effected a cessation of marriage between the complainant and Mst. Bakhi by a valid divorce and that the appellants had inter se contracted a valid marriage afterwards. It is also directed that the appellants shall remain on bail during their retrial.