Muhammad Rafique appellant and Mst. Manzooran were of Sultan were tried by the learned Sessions Judge of Sargodha for having committed Zina with each other. Rafique appellant was additionally charged also for the commission of an offence punishable under section 307, P.P.C. For having mounted a murderous assault on Umar Hayat (P.W.2).
2. Through his impugned judgment dated 27-5-1989, the learned trial Court found that the prosecution had been unable to prove the charge of Zina and accordingly acquitted both the accused persons of the said charge.
3. The learned Sessions Judge however, found Rafique appellant guilty of the charge under section 307, P.P.C. And after convicting him accordingly sentenced him to suffer two years' R.I. And to pay a fine of Rs.5,000 or to undergo six months' R.I. In default of payment of fine. The said amount of fine, if recovered, was directed to be paid to the injured Umar Hayat P.W., as compensation. The learned Court declined to allow the benefit of the provisions of section 382-B, Cr.P.C. To Rafique convict.
4. This appeal impugns the conviction and the sentences above-noticed, recorded against Muhammad Rafique convict.
5. Khizar Hayat complainant (P.W.1) who is a brother of Umar Hayat injured (P.W.2) had initiated the criminal proceedings, through an F.I.R. Bearing No.74 dated 8-3-1988 which was recorded at Police Station Sillanwali at 8-15 a.m., by claiming that on the preceding evening, he, his brother Umar Hayat P.W., Zulfiqar and Ahmad were going to the Dera of Umar Hayat P.W. And just as they passed along the room of Sultan who was a tenant of Umar Hayat P.W. And was residing at his Dera, they heard some sounds coming from the room of the said Sultan but found the door of the same locked from inside. There was a lantern lying lit in the said room and on peeping into the same through the cracks of the door, the P.Ws. Saw that Mst. Manzooran, the were of Sultan abovementioned was committing Zina with Rafique appellant.
6. The P.Ws. Allegedly pushed the door open whereupon the accused persons attempted to escape and in the process, Rafique appellant inflicted knife blows on the person of Umar Hayat P.W. Mst.
Manzooran accused tried to run out of the room but was apprehended by Ahmad P.W. While Khizar Hayat and Zulfiqar P.Ws. Allegedly apprehended Rafique appellant alongwith the knife and in the struggle for the purpose, Rafique appellant had also allegedly received injuries on his person.
7. Khizar Hayat complainant further claimed that after the said occurrence, they immediately took Umar Hayat P.W. To the Civil Hospital at Sillanwali and thus could not report the matter to the police and having kept Mst. Manzooran, Rafique appellant and the blood-stained knife abovementioned in their custody for the night, he was taking the two accused persons and the knife to the police station when he came across Allah Yar S.I. On the way and after producing the two accused persons and the knife before him, the complainant narrated the entire occurrence to the said Allah Yar S.I.
8. Khizar Hayat complainant and Umar Hayat appeared at the trial as P.W.1 and P.W.2, in support of the prosecution case. The remaining alleged eye--witnesses were given up as won over and as unnecessary.
9. After examining Lady Doctor (P.W.3), Dr. Zafar Chaudhry (P.W.6), Inamullah Constable as P.W.4, Shaukat Hayat A.S.I. (P.W.5) and Allah Yar S.I./I.O. (P.W.7), the prosecution closed its case.
10. When questioned under section 342, Cr.P.C. Rafique appellant pleaded that he was a resident of village Sargodha which was at a distance of about 50 miles from the place of occurrence and had some business dealings with Sultan, the husband of Mst. Manzooran; that on the day of occurrence he had come to the house of Sultan to settle some accounts; that Umar Hayat P:W. Had owed some money to the said Sultan who demanded it from Umar Hayat P.W. As a result of which, an altercation took place between them; that it was during the course of this altercation that he received injuries and that Mst. Manzooran had seven children and was like his mother.
11. Sultan abovementioned who is the husband of Mst. Manzooran accused and in whose house, the occurrence in question was alleged to have taken place, did not support the prosecution and appeared in defence of the two accused persons.
12. He endorsed the stance taken by Rafique appellant and vehemently contradicted the allegations regarding the commission of Zina by his were Mst. Manzooran and Rafique appellant, with each other. He claimed that an altercation had taken place between him and Umar Hayat P.W.
On account of non-payment of some money which Umar Hayat had to pay to him and in the process, Rafique appellant intervened who was injured and who in. Retaliation in his defence inflicted injuries on the person of Umar Hayat P.W. With a knife.
13. Having analysed the entire evidence available on record, the learned trial Court found that the prosecution had failed to prove the allegations regarding the commission of alleged Zina above- noticed but accepted the latter part of the prosecution case and consequently convicted Rafique appellant under section 307, P.P.C.
14. The mainstay of the prosecution case was the occurrence regarding the commission of Zina because according to the prosecution, it was after detection of this offence, that Rafique appellant had inflicted injuries on the person of Umar Hayat P.W.
15. The failure on the part of the prosecution to prove the earlier part of the occurrence which was the direct cause of the later part of the same incident, casts serious doubts about the prosecution case with respect to the murderous assault allegedly committed by Rafique appellant on Umar Hayat P.W.
16. Once it has been found that Zina, as alleged, had not been committed then there was no occasion for Rafique appellant to launch a murderous assault on Umar Hayat P.W. In this view of the state of affairs, the defence explanation of the occurrence in question has become reasonably plausible.
17. The claim of the defence was that Rafique appellant had inflicted injuries on the person of Umar Hayat P.W. After having been assaulted by Umar Hayat. The appellant suffered seven injuries on his person, most of which were in and around his neck. It thus appears that an attempt was made to strangulate him and he was thus justified in inflicting injuries that he did in the exercise of his right of private defence.
18. Consequently, I find that Rafique appellant had committed no offence in the eyes of law.
19. Resultantly, the impugned conviction and the sentences recorded against him are set aside. He is acquitted of the charge under section 307, P.P.C. He is on bail and is set at liberty after being discharged from his bail/surety bonds.