IBADAT YAR KHAN, J: --,Appellant Abdul Qayyum son of Alif Din, aged 19 years, is a cobbler by profession and runs a shop at Madni Chowk, Talavang. Co-accused Muhammad Ejaz son of Rab Nawaz, aged 17 years, is his employee and works as a cobbler in the shop of Abdul Qayyum.
Appellant Mst. Sakina were of Muhammad Khan aged 45 years is a woman having six children some of them marriageable, including a daughter, also of marriageable age. According to the prosecution Abdul Qayyum and Mst. Sakina committed Zana with each other in an abandoned house in Talagang on 18-6-1989 at 8-30 a.m. From the facts gathered from the record, it is clear that the place is situated in a fairly populated area. There are shops aroundpublic road is also running, in front of the house at a distance of about 15 Karams and there is fair visibility of the house, from the road as well as from a place used as a saw mill.
2 The miseries of the two appellants namely Abdul Qayyum and Mst. Ghulam Sakina started on 18- 6-1989 at about 9-40 a.m. When a person named Sher Zaman (P.W.5) lodged a report with P.W.7 Manzoor Hussain that the two were caught red-handed by him from an abandoned house when they were committing Zina and the third person namely Muhammad Ejaz was sitting outside at the door of this dilapidated house. This complaint was formally converted into F.I.R. And registered in Police Station, Talagang as Ex.P.D./1. In this F.I.R. Sher Zaman stated that while he was ploughing his field nearby he noticed appellant Abdul Qayyum and Mst. Sakina entering in this dilapidated house. Out of the curiosity, he reached the place of occurrence and found as under:
3. At the trial only two witnesses of the occurrence have been examined. Sher Zaman is the main witness, who has been examined as P.W.5. He has substantially made the same statement as he made in his complaint (Exh. P.D.). It would be profitable to quote him at the cost of repetition. This is what he says: "I was cultivating my land situated near Cinema in Talagang. At that time all the three accused present in Court came there and Abdul Qayyum and Ghulam Sakina entered a house near my field. That house was uninhabited and its roof had fallen and the wall were standing. I became suspicious. Ejaz accused remained sitting outside while both standing and Abdul Qayyum had entered the house. Because of suspicion, I stopped ploughing land. And I went inside in that house and found that Abdul Qayyum and Mst. Sakina had removed their Shalwars and both of them were committing Zina with each other. On my alarm Ghulam Hussain, P.W. Also arrived there. He also saw the accused committing Zina. We were taking the accused to the police station but the police people met us at Mundial Chowk, There my statement Exh. P.D. Was recorded."
4. The only other witness whom he named having seen the incident is Ghulam Hussain, who has been examined as P.W.6. It is important to note that this witness goes only half way to support the statement of Sher Zaman. He merely says that `I heard an alarm from the house where the Occurrence had taken place. I rushed to the place of occurrence. When I am reached my brother had already apprehended all the three accused present in Court. At that time Abdul Qayyum and Sakina were without Shalwars'. The allegation that he had also scull the two committing Zina is conspicuously absent in the statement of Ghulam Hussain. He merley says that after hearing alarm from the house when he reached there he merely saw the two appellants in a naked position. He does not go to corroborate the statement of Sher Zaman that he had actually seen the two in a compromising position. More important to note is that Ghulam Hussain is real brother of Sher Zaman, a fact which was deliberately concealed or suppressed by Sher Zaman while making a statement in Court or even in the F.I.R. Thus, analysed the story of Zina narrated by Sher Zaman remains uncorroborated and even the position of the accused in a naked condition is narrated only by the two real brothers.
5. With this background let us examine the defence plea put up by the appellants. Mst. Gulam Sakina in her statement under section 342, Cr. P.C. In answer to question No.6 has stated as follows: "Ghulam Hussain P.W. Used to tease me and on the day of occurrence when I was going towards Bazar he passed jokes on me and I abused him and then I reached the shop of Abdul Qayyum in Madni Chowk to purchase footwear and Ghulam Hussain followed me there and claimed that I was carrying on immoral relations with Abdul Qayyum and there was a dispute. In the meantime police arrived there and arrested me and my co-accused from there. P.W s. Are inimical towards me."
6. The two male accused have supported her version. Appellant Abdul Qayyum in answer to question No.6 has made the following statement: "I have a shop at Madni Chowk, Talagang for manufacturing of foot--wear, Ejaz my co-accused works at my shop and on 18-6-1989 at morning time Mst. Ghulam Sakina came to the shop to purchase foot-wear and there Ghulam Hussain P.W. Arrived who was already inimical towards Ghulam Sakina and he had a dispute with her and they were still quarrelling when police arrived there and arrested me and my co---accused. P.W s. Appeared against me because they were inimical towards Ghulam Sakina."
7. The acquitted co-accused namely Muhammad Ejaz, aged 17 years, has made the following statement: "Abdul Qayyum runs a cobbler shop at Madni Chowk, Talagang. I work with him as cobbler. On 18- 6-1989 I and Abdul,, Qayyum were present at the shop. Mst. Ghulam Sakina arrived at the shop to purchase foot-wear. There Ghulam Hussain son of Amir Khan P.W. Arrived. He was already 'inimical towards Mst. Ghulam Sakina and they were quarrelling when police arrived there and the police arrested Ghulam Sakina and also arrested me and Abdul 0ayyum from the shop. P.W s. Have appeared against me because of their enmity towards Ghulam Sakina."
8. The above three statements give a plausible and natural picture of the incident that might have occurred on that morning. The venue of occurrence, according to the statements, is not the abandoned house but the shop of Abdul Qayyum, Cobbler. The defence plea,, is supported by Muhammad Salim (D.W.1), who is a neighbour resident of Talagang. According to him he happened to be in his house at about 8 or 9 a.m. When he heard the alarm. When he came out he found that quite a number of people had collected there already. An A.S.I. And two constables were also in the crowd. He then proceeds on to say that they arrested all the three accused from there. He further stated in cross-examination that `it is incorrect to suggest that the accused were not arrested from any shop and were in fact arrested from a deserted house situated in the field near Taj Cinema'.
9. The learned Judge framed a charge under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1.979 against Abdul Qayyum and Mst. Ghulam Sakina and under section 10(2) read with 109, P.P.C. Against Muhammad Ejaz. The approach of the learned Judge in evaluating the evidence and in analysing the legal aspect of the matter in para.6 of the judgment seems to be superficial, to say the least.
10. We have ourselves perused the statements of the witnesses and heard the arguments of the learned counsel for the parties and find that not only the story is totally false and concocted but is bristling with malice. It f is beyond comprehension that at 8-00 or 9-00 a.m. In the summer month of June when the people are out to finish work before the hot wind start, blowing, any sensible pair of human beings carrying a sane head on their shoulders would venture to indulge in such an adventure at a place which is fairly visible from the areas around it. That a young man within his teens would feel attracted towards a woman of his mother's age having given birth to six children, who are fully grown-up. While P.W.6 Ghulam Hussain,, has seen the two in the naked condition. His overzealous brother Sher Zaman insists that not only he but Ghulam Hussain also saw both the accused/appellants committing Zina. The story of Sher Zaman overpowering the two young energetic boys and a fairly healthy woman and then herding them towards the police station is unbelievable. After carefully examining the statements of the two P.W s. We have no hesitation to say that this is a cooked up case having no substance.
11. Before parting with this case we are constrained to make observation that such reckless allegations are being brought so frequently that something should be done to stop this unhealthy practice. The prosecution agencies before putting people on trial for offences of Zina on flimsy allegations should he mindful of injunctions of the Holy Qura'n and the; message conveyed through the decisions from the early period of Pious Caliphs. The charge of Zina carrying a rigorous penalty of Rajam or stripes should not be casually brought to Court nor publicised. It shatters the foundation of a family whose female is accused of such a crime. Human weaknesses should rather be overlooked and ignored unless committed at public places and become a matter of concern from the society's point of view. It is most unbecoming of a stranger to peep into the house of others and show inquisitiveness for detecting the sins of others, who are neither related to him nor he has a public duty to publish and propagate the evils of sinners.
12. In this connection it would be profitable to refer to some of Ayaats of the Holy Qura'n and some incidents of earlier days.
13. Islamic Sharjah condemned and disapproved spying and searching for sins of others.. The Holy Qura'n says: "And spy not, neither back bite one another:" (49 : 12)
The Holy Qura'n further says: "Lo! Those who love that slander should be spread among believers, for them is a painful punishment in this world and the hereafter:" (24 : 19)
This verse also denotes that giving currency to the slander in the society is itself treated as a grievous offence.
14. Moreover, the house of a person is a fortress and the sanctity of privacy of its inmates must be ensured at all costs. An incident of the period of second Caliph may be narrated. Hazrat Umar once found a group of men drinking were. He entered the shack and said `I have prohibited you from drinking and burning fire in huts and you are drinking and have lit fire in the, hut'. They turned round and said `Allah has ordered you not to spy, but you have spied. He has ordered you not to enter without permission but you have done'. Hazrat Umar left the place without questioning them any further (Al-Ahkam-ul-Sultaniyyah, Al--Mawardi, page 198)
15. In order to save the society from lewdness the Holy Qura'n says:
(i) "Those who accuse chaste women but bring not four witnesses, surge them with eighty stripes:"
(24 : 4)
(ii) "Why did they not produce four witnesses, they verily are liars in the sight of Allah." (24 : 13)
16. From the contents of these verses it is clear that unless there are four eye-witnesses on the commission of the offence of Zina, no one should accuse any person of that and no publicity should be given to any act of obscenity even if a God-fearing man hits at any such ugly scene. This is such a serious matter in Shariah that as mentioned in the above quoted verses the Holy Qura'n has laid down that if anyone accuses another person without producing four eye--witnesses, he will be punished with eighty stripes and his evidence will not be accepted in future.
17. In this connection the famous judgment of Hazrat Umar about Mughirah Ibn Shu'abah, the Governor of Egypt may be quoted: "Three persons namely Abu Bakrah, Na6'a and Shibl testified that Mughirah had committed adultery with a woman named Umm-e-Jamil. The fourth person named Zaid testified that the woman was not clearly visible and that he could not say definitely whether she was Umm-e--- Jamil or not, and that he had only seen that the legs of a woman were lying on his shoulders and he has not seen more than that. On this Hazrat Umar released Mughirah and punished Abu Bakrah, Nafi'a and Sibl with eighty stripes." (Al-Mughni, Ibn Oudamah, Vol. X, pages 178 and 179, printed Cairo, Egypt):
18. In the light of the above discussion both the appeals of appellants Abdul Qayyum and Mst.
Ghulam Sakina are allowed, their conviction and sentences are set aside and they are acquitted of the charge. Both the appellants are on bail. Their bail bonds are cancelled and the sureties are discharged.