' MUFTAKHIRUDDIN, J.--- Mumtaz son of Abdul Aziz caste Khattar resident of Thatti Gujran, Tehsil Fatehjang District Attock was found guilty of an offence punishable under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer life imprisonment and pay a fine of Rs,10,000 or in default to further undergo R.I. For four years. He has been awarded thirty stripes also. This conviction and sentence has been passed by Rao Hamid Mukhtar Khan, the learned Additional Sessions Judge, Attock vide his orders, dated 19-4-1989. This order has been challenged in this appeal.
2. The appellant alongwith his mother, Mst. Khair Khanam was tried in the Court of the learned Additional Sessions Judge, Attock for offence under section 11 of the said Ordinance and also under section 302, P.P.C. A report in that behalf was lodged at Police Station Fatehjang by one Mst. Sofia Sultan wife of Sultan Muhammad, caste Maliar resident of Thatti Gujran and it was alleged that on 11-1-1987 at Quftanwela Mst. Khair Khanum came to her house and told Mst. Samina (her daughter) that she should come to her house to collect the divorce paper on the next morning. Accordingly on 12-1-1987 Mst. Samina along with her elder sister Arif Sultana went to the house of the accused Mumtaz situated in the same village.
Mumtaz held Samina from her arms and took her in the room. Mst. Khair Khanum put Arif Sultan out of her house with a threat that if she did not go away she would be confined. Mst. Arif Sultan thus returned to her house and narrated the tale to her mother, Mst. Sufia Sultan the complainant who in term went to the house of the accused accompanied by Mst. Arif Sultan but the house was found locked and the accused had left for unknown place. It was apprehended that the accused had abducted her daughter for illicit purpose or marriage with Mumtaz forcibly. The husband of the complainant was away to Rawalpindi, being employed as a labourer there and on his arrival Mst.
Sufia Sultan went and lodged the report at Police Station Fatehjang on 14-1-1987 at 8-00 a.m. The report was formally registered by Muhammad Munir S.1. (P.W.5), the investigation was started but the accused could not be traced out. On 1-6-1987 Ijazat Hussain A.S.I. (P.W.10) to whom the investigation was entrusted got an information that a dead body was lying in a Dam situated within the limits of Thatti Gujran. The said A.S.I. Went there and the dead body was brought out of the Dam. It is said that the dead body was identified to be that of Mst. Samina by Munir Ahmad (P.W.8) a maternal-uncle of the deceased victim. Though almost all the organs were found in advanced stage of decomposition. The vaginal swabs were taken and sent for the chemical analysis. The post-mortem examination was conducted by Dr. Baber Ali (P.W.3) on 2-6-1987, the investigation was completed by Iftikhar Hussain Mirza (P.W.12). The accused was arrested on 29-6- 1987 by Pervez Iqbal H.C. (P.W.13) and the appellant alongwith his mother Mst. Khair Khanum were sent up to face the trial. Mumtaz appellant was charged with offence under section 11 of the said Ordinance and Mumtaz and his mother Mst. Khair Khanum were charged under section 302/34, P.P.C. To which both of them pleaded not guilty. The prosecution, therefore, produced as many as thirteen witnesses. The trial Court disbelieved Mst. Sofia Sultan (P.W.6) and Mst. Arif Sultan (P.W.7) with respect to Khair Khanum and held that 'no direct evidence about the commission of murder of Mst. Samina has been led on the part of the prosecution, it was further pointed out that nothing could be brought on record indicating the fact that the dead body was either thrown or discovered at the instance of Mumtaz accused and nothing incriminating him was also recovered at the instance of Mumtaz throwing some light, as regards the commission of murder by Mumtaz accused and the investigating agency failed to collect the evidence leading to the conclusion that Mst. Samina was either done to death or her dead body was thrown in the Dam by Mumtaz. The accused person were, therefore, acquitted of the charges under section 302/34, P.P.C. But appellant Mumtaz was convicted under section 11 of the said Ordinance and sentenced as mentioned above.
3. Malik Rat) Nawaz Noon, Advocate has contended that the record does not justify the finding of guilt against the appellant and has urged that the FIR. Was lodged after the delay of two days and the explanation offered in that behalf is not convincing. The prosecution story is not believable. In that connection it has been submitted that as per evidence on record the deceased was divorced by her husband during the Court proceedings the accused Mumtaz had no privy with her former husband. The foundation of the prosecution story, therefore, is not believable. The trial Court has unduly emphasized the abscondence of the accused. In fact there is nothing on record on the basis of which it could be reasonably said that accused had absconded. No proceedings were initiated in that behalf and the person who had produced the accused i,e, Muhammad Ayoob (as per statement of P.W.13 Pervez Iqbal) has not been associated with the investigation.
4. We have perused the record carefully and are inclined to the view that there is no material on record to justify the conviction. The person who was alleged to have asked the deceased (Mst.
Samina) to go to the accused stands acquitted and the prosecution has quoted the findings of the trial Court in that behalf as no appeal or revision has been filed either by the state or any body on behalf of the complainant. The mother and sister of the deceased (P.W.6 and P.W.7) have been disbelieved by the trial Court with respect to Mst. Khair Khanum who according to the prosecution version had asked the deceased to come to her house. It can, therefore, be safely said that Mst.
Samina if at all, had gone it was of her own accord, from her own house as such no ingredient of the offence under section 11 of the said Ordinance is found.
5. We hesitate to believe that the entire family of the accused consisting of 7/8 brothers who were residing with the accused Mumtaz in the house could manage to leave the house with no trace in no time. It is said by Mst. Safia Sultan that she had raised hue and cry there and lot of people had assembled there yet Mst. Samina could not be taken out by the villagers. Nobody has been produced who could corroborate this part of her statement. The accused on the other hand has examined/produced D.W.1 (Zaheer Ahmad Khan) and D.W.2 (Saleem Khan) these neighbour's houses are situated at the distance of few paces. Both have deposed that no such occurrence took place and they never heard any commotion in that behalf from the street.
' P.W.7 (Mst. Safia Sultan) has said.
"It is correct that Muhammad Munir and Ghulam Muhammad P.W. Wanted to get the hand of Mst.
Samina to Muslim son of Hayat Muhammad. It is correct that Samina was not agreed to get herself married with abovesaid Muslim. It is correct that on her refusal she was beaten and later on she ran away."
' The witness denied the suggestion that 'it is not in my knowledge that Mst. Samina alongwith Rehana used to bring heroin from Peshawar through Pathan Ghulam Rasool and used to sell in Quaid-e-Azam University. It was also denied if her daughter Mst. Samina had got her hair cut according to new fashion. The learned counsel for the appellant has submitted that though the suggestions are denied but it is possible that the deceased girl had left the house on her refusal to marry Muslim, so she was not in the house. The trial Court has unnecessarily laid emphasis on the ascendance of the accused and has taken it as a circumstance against The learned appellant has drawn our attention to the fact that no proceedings under sections 87 and 88, Cr.P.C. Were taken against the accused. It is now well-settled that if no such proceedings are taken, the abscondcnce is not of much consequence. Ascendance is always a weak form of corroboratory evidence. The accused/appellant has not been declared proclaimed offender. It cannot, therefore, be said that he has absconded merely because he was not readily available to the police.
The appellant has explained in his answer to question No,7 in these words:-- "I was never an absconder in this case. I was away from the village. I did not know about the registration of the case as soon as I came to know about this I myself appeared before the police."
6. Mst. Safia Sultan (P.W.6) and Mst. Arif Sultan (P.W.7) the mother and sister respectively of the deceased Samina have made statements implicating Mst. Khair Khanum (mother of the appellant) and their testimony has been doubted by the trial Court and Mst. Khair Khanum has been acquitted. Ordinarily these two above-mentioned witnesses cannot be relied unless independent and reliable evidence regarding the involvement of the appellant is forthcoming which is not found in the instant case.
' It is an elementary principle of criminal law that in all cases the burden of proof lies upon the prosecution to bring the guilt home to the accused. The general principle does not admit of any exception even though the accused fails to prove his defence plea. All that the accused has to show is that there is a reasonable possibility and the question before the Court is not whether the accused has proved his plea but only whether he has succeeded in showing that his plea is a reasonable possibility. We do not concur with the findings of the trial Court. Giving the benefit of doubt to the appellant the appeal is allowed, the conviction and sentences passed against the appellant Mumtaz son Abdul Aziz are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.