TANZIL-UR-RAHMAN, CJ.--- By this common judgment we intend to dispose of Jail Criminal Appeal No. 147/1, of 1991(Mst.Amna v. State) and Criminal Appeal No. 160/L of 1991 (Mazhar Ali v.
State) and a Death Reference No.5/L of 1991 for stoning to death ( ) to both the appellants, sent by the learned Additional Sessions Judge, Toba Tek Singh (Camp at Gojra), convicting both the appellants under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), on the charge of Zina-bil---Raza alleged to have been committed on 14-3-1989 at about 3-30 p.m.
In a wheat crop near Police Station Nia Lahore. The appellants were caught red-handed while engaged in the commission of offence, by a police party led by Muhammad Ashiq, S.H.O. Police Station Nia Lahore, on the basis of complaint lodged by Muhammad Akram (P.W.1), a detective constable.
2. The prosecution in all examined nine witnesses out of whom P.W.1 Muhammad Akram, a detective constable, P.W.2 Naveed Ahmad, Constable, P.W.5 Muhammad Ashiq S.I./S.H.O., P.W.6 Taj Muhammad Sial A.S.I., P.W.7 Abdul Ghani, P.W.8 Muhammad Khan Constable, P.W.9 Ashiq Hussain A.S.I. And P.W. Muhammad Nawaz were shown as eye-witnesses accompanying Muhammad Ashiq SI/S.H.O. (P.W.5) who allegedly seen the occurrence and were all present at the time when the appellants were committing Zina. P.W.1 Muhammad Akram, Constable, deposed that on 14-3-1989 while he was posted at Police Station Nia Lahore, at about 3-30 p.m. He was coming from Adda Nia Lahore towards the Police Station Nia Lahore, he saw the accused committing Zina in wheat crops and saw that the male accused had penetrated his penis into the vagina of Mst. Amna and was moving for ejaculation. On seeing them he came back and passed on the information to Muhammad Ashiq SI/S.H.O. (P.W.5), Taj Muhammad Sial, A.S.I. (P.W.6), Ashiq Hussain, A.S.I. (P.W.9).
Abdul Ghani and Muhammad Nawaz P.Ws. Who were standing near the Police Station Nia Lahore.
He, then accompanied them and all of them on receiving the information encircled the appellants, who were committing Zina-bil-Raza. Both of them had also put off their Shalwar and both were naked. After the arrest, they were asked to put on their Shalwar and were brought to the Police Station. P.W.2 Naveed Ahmad Constable, though alleged to be an eye-witness, as stated by Muhammad Akram Constable (P.W.1) and also contained in his complaint (Exh.P.D.), was not examined on the point of the occurrence at all. He deposed only about the receiving of two sealed parcels on 14-3-1989 from Moharrir Muhammad Aftab of Police Station Nia Lahore for their onward transmission to the Office of the Chemical Examiner Lahore which he delivered intact on the same day in the Office of Chemical Examiner. Lahore. P.W.5 Muhammad Ashiq SI/S.H.O. Of Police Station corroborated the evidence Akram, Constable (P.W.1) and stated that the appellants Zina at which he alongwith Muhammad Nawaz and Abdul Ghani P.Ws. And police officials reached the spot and saw with his owr eyes that the appellants were naked and Mazhar, appellant had penetrated his penis into the vagina of Mst. Amna and was moving for ejaculation. P.W.6 Taj Muhammad Sial, A.S.I., also stated the same thing that he was present alongwith Muhammad Ashiq, S.I./S.H.O., Nawaz son of Machhia and Abdul Ghani when Akram D.F.C. Gave an information that in front of the police station in the graveyard in the wheat crops the appellants were committing Zina. P.W.7 Abdul Ghani son of Ghllan at the very start deposed on oath that he had not seen the occurrence with his own eyes. He was declared hostile and was allowed to be cross-examined, but he denied the suggestion that he alongwith Taj Muhammad A.S.I., Ashiq Hussain, A.S.I., Naveed Ahmad and Muhammad Khan Constable alongwith Muhammad Nawaz P.Ws. Saw the appellants while having sexual intercourse at the place of occurrence. P.W.8 Muhammad Khan, Constable, in his examination-in-chief corroborated the evidence which was stated by Muhammad Akram, Constable (P.W.1) and Muhammad Ashiq, SI/S.H.O. But in cross-examination to him he stated that - --Amna Bibi accused was washing her hands at a Khal while she was naked. Mazhar accused was sitting naked at a distance of about 4 Karams---. This version implies that the witness did not see the actual commission of the offence. P.W.9 Ashiq Hussain, A.S.I., also corroborated the statements of Muhammad Ashiq SI/S.H.O. And others. The prosecution gave up Muhammad Nawaz though mentioned in the calendar of witnesses as No.2.
3. The defence examined Muhammad Nawaz (given up by the prosecution) as D.W.1 and Ghulam Dastgir (D.W.2) who resided in the neighbourhood of the alleged place of occurrence. These two defence witnesses belied the story of the prosecution in toto.
4. Both the appellants were examined under section 342, Cr.P.C. And in reply to question as to why the case was registered against them and why the P.Ws. Have deposed against them, Mazhar Ali, the appellant stated as under:-- "I had come to Nia Lahore to see my maternal-grandmother as she was seriously ill. My mother had also come to R.H.C. Nia Lahore near the police station. Mst. Amna Bibi accused is my neighbourer. As Mst. Amna Bibi and my mother were having relations like sisters, I was asked by Mst. Amna Bibi to take her with me. We together boarded a bus from Faisalabad and alighted at Nia Lahore, where there was rush of people near the Police Station Nia Lahore due to the arrival of Commissioner, Faisalabad Division. We had to go to the R.H.C. Police Party was standing outside the gate of Police Station Nia Lahore. We were walking together towards the R.H.C. When we were asked by the policemen to keep aside. One policeman slapped me and then we were taken to the police station, where they demanded illegal gratification. On our refusal, I alongwith myco- accused Mst. Amna Bibi was maliciously and falsely implicated in this case."
5. Mst. Amna, the other appellant, also stated the same thing in reply to the said question. The appellant Mazhar Ali has also made a statement on oath under section 340(2), Cr.P.C. In which he, more or less, stated the same thing, with some detail, as made under section 342, Cr.P.C. In fact, he appeared as his own witness as D.W.3.
6. We have heard the learned counsel for the appellants and the learned counsel for the State. It has come in the evidence that in the afternoon of that day, the Commissioner of Faisalabad Division had to reach there in order to inaugurate the opening ceremony of school at Nia Lahore and the police was making arrangements therefor, clearing up the road and trying to keep the people orderly who had assembled there including respectable of the area.
7. Both the appellants have pleaded that they alighted from bus coming from Faisalabad at Adda Nia Lahore. There was some altercation between the appellant, Mazhar Ali, and the police who alongwith Mst. Amna, appellant, wanted to go to Rural Health Centre, near the police station where the mother of the appellant, Mazhar Ali, had come to see his ailing grandmother. The police wanted to stop them and asked them to keep themselves aside the road. In fact, the appellant, Mazhar Ali, as stated by him on oath was slapped by a policeman and both of them were taken to the police station and a false case was registered against them. They were demanded illegal gratification, and on their refusal, they were falsely implicated in the case.
8. The defence plea, to our mind, seems to be believable, for a number of reasons, that there is no eye-witness except the policemen and that Muhammad Nawaz, a public man, who was shown as the prosecution witness was given up, appeared in defence and denied the incident in toto. He is a joint Khatedar in respect of some land at Jhang with P.W.5 Muhammad Ashiq S.I./S.H.O. The other witness Abdul Ghani (P.W.7) another public man, turned hostile and showed his complete ignorance of the occurrence.
9. The other defence witness Ghulam Dastgir (D.W.2) who resided in front of the police station Nia Lahore in the vicinity of the place of occurrence came forward as defence witness and deposed that he was present at the time of the alleged occurrence as Commissioner, Faisalabad Division was coming and no such occurrence took place.
10. It is noticeable that no respectable person of the locality was cited as witness by the prosecution although their presence is admitted by the prosecution itself.
11. Even the policemen who examined themselves as witnesses are not consistent in several material respects. For example, about the distance between the place of occurrence and police station where they were standing at the time they received information, there are four different versions. According to P.W.1, the distance is about two square i.e. Ten Killas, whereas according to P.W.5 the distance between the police station and place of occurrence is only two Kanals which is about 1/4 of a Killa. P.W.6 stated the distance of about three Killas, whereas P.W.8 stated two Killas and P.W.5 as less than four Killas. It implies that the witnesses are not telling the truth and have not witnessed the occurrence and they all seem to be set up witnesses. There is another thing to be noticed, and that is the non-mentioning in the calendar of witnesses and non-examination of Aftab Ahmad, Moharrir Head Constable, who has allegedly recorded the F.I.R. (not exhibited) and who is further alleged to have kept two parcels in his custody and handed over the same to P.W.2 Naveed Ahmad to be delivered to Chemical Examiner. It cannot, therefore, be said, of certain, that the swa bs which were handed over by P.W.2 Naveed Ahmad to the Chemical Examiner, Lahore, were the same which were taken by Lady Dr. Zubaida Akhtar, P.W.4, because these swabs are reported by the Chemical Examiner to be stained with semen whereas according to the statement of P.W.4, Lady Dr. Zubaida Akhtar, Mst. Amna was menstruating at that time and slight menstrual blood was found present. In the circumstance, the swabs must have been found to be stained with semen and blood.
12. It is also to be noticed that both the appellants are neighbours, living in their respective houses, adjacent to each other. House number of Mst. Amna is 1062, Street No.6, Shadab Colony, Faisalabad, whereas the house number of the appellant, Mazhar Ali, is 1063, Street No.6, Shadab Colony, Faisalabad,
13. It seems improbable that the appellants were committing the offence at a far-off place from their place of residence in broad daylight at about 3-30 p.m. When there is a mob on the road side at a distance of about one furlong in the wheat crops which in the month of March are only one and a half feet above the ground.
14. It is also noticeable that P.W.9 Ashiq Hussain A.S.I., has not been cited as a witness in the calendar of witnesses. His statement was not even recorded under section 161, Cr.P.C., as there is none in the Zimini. Nowhere his name is mentioned in the Zimini but he has been produced as a last witness with a view to complete the Nisab of four Muslim adult witnesses. The police seems to be anxious to get the conviction recorded against the appellant under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and the learned trial Judge very conveniently passed a sentence of stoning to death without making Tazkiyahtul Shuhood of any of the witnesses as provided under section 7 of the Hudood Ordinance as also laid down by the Honourable Supreme Court in Ghulam Ali's case PLD 1986 SC 741. The age of the boy (Mazhar Ali) is stated to be 19/20 years, who is a student and without any evidence on the record that he is married, the learned trial Judge has resorted to award the severest punishment provided in the Holy Qur'an, which is wholly untenable in law.
15. There is also a discrepancy in the statement of the doctor (P.W.3) who examined the appellant Mazhar Ali, for potency. He did not mention the number of the police docket received by him, nor stated any time of its receipt. However, in his deposition he stated that he has examined the appellant at noon time on 14-3-1989. If so, the entire prosecution story falls flat because according to the prosecution, the occurrence took place on 14-3-1989 at 3-30 p.m.
16. P.W.1, a detective constable has stated that the male accused had penetrated his penis into the vagina of Mst. Amna and moving for ejaculation. The same position has also been stated by the other witnesses. It seems unusual that the time taken by P.W.1 for going to police station, communicating the same and the police party coming to the scene of occurrence accompanied by him found the appellants in the same position including that of the male appellant that he was moving for ejaculation, although some time must have passed during all this exercise by the police.
17. Learned counsel for the appellant, Mazhar Ali, referred to us paragraphs Nos.18 to 20 of the impugned judgment and submitted that the statements made therein by the learned trial Judge are factually incorrect inasmuch as that address of Mst. Amna is stated in the charge framed by the learned Judge himself, and so far as the challenging the veracity of the statements of the P.Ws.
Referred by the learned Judge is concerned, they stand disputed inasmuch as every witness has been given the suggestion that the appellants have been implicated in the case falsely and maliciously.
18. It is true, as submitted by the learned counsel for the State that the Superior Courts have held that police officials are as good witnesses as private persons, unless enmity or some illwill between the officials and the accused is established. But every case is to be decided on its own facts. The above dictum laid down by Superior Courts including this Court is relatable to most of the cases which arose out of Prohibition (Enforcement of Hadd) Order, 1979, in which public men, generally speaking, do not dare to stand as witnesses for fear of life, honour and property. The drug- trafficking is going on in the country as an organized trade by highly influential persons with a backing of Mafia, the world over, to whom man's life means nothing. In the instant case, the appellants are poor; one is a widow and the other is a village boy. They do not seem to be in a position to over-awe private witnesses. Moreover, respectable persons have been shown to be present on the date, time and place who gathered to receive the Commissioner of Faisalabad who was to arrive there for inaugural ceremony of the opening of the school. Therefore, there seems to be no reason to depart from the accepted norm of the administration of criminal justice, that the prosecution case should be supported by independent public witnesses. In this particular case, there are two independent public witnesses cited by the prosecution but both of them are poles apart in their evidence from the police witnesses.
19. For the above-stated reasons, we feel that the prosecution case has not been established without any reasonable doubt. In result, both the appeals are accepted, the convictions and sentences are set aside and the appellants are acquitted. Death reference thus stands rejected.
The appellants be released forthwith if not required in any other case.