This appeal, filed by Mumtaz Hussain challenges his conviction and sentence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 recorded by learned Addidional Sessions Judge, Abbottabad on 24-9-1991.
2. Muhammad Sabir complainant had submitted an application to S.S.P., Abbottabad on 22-7-1990 wherein he had disclosed that Mst. Tashwin Bibi wife of his son Muhammad Sabir had left the house of her husband on 18-5-1990 without the consent of her husband or informing any other person of the household of her husband and after search of many days he had come to know that she was admitted to Darul Aman on 23-5-1990 whereupon she was contacted but she refused to return to the house of her husband. It is also mentioned in application that she had left the house of her husband with the connivance of Mumtaz Hussain and Muhammad Aslam her co-accused.
This application was marked to S.H.O. Police Station Havelian who after investigation recorded F.I.R.
No.343 on 13-8-1990. All the aforesaid three accused, after investigation, were sent up for trial before the learned Additional Sessions Judge, Abbottabad under sections 11/16 of the aforesaid Hudood Ordinance. The trial Judge charged all the three accused for offences under sections 11 and 16 of the aforesaid Hudood Ordinance on 20-5-1991 to which they pleaded not guilty and claimed trial. The State produced seven witnesses in support of the prosecution case. All the three accused made statements under section 342, Cr.P.C. Accused Mumtaz Hussain and accused Mst.
Tashwin Bibi also made statements on oath under subsection (2) of section 340, Cr.P.C. However, all the three accused did not produce any defence. The trial Judge also recorded statement of one Court-witness. By the impugned judgment the trial Judge convicted accused Mumtaz Hussain under section 16 of the aforesaid Hudood Ordinance and sentenced him to undergo rigorous imprisonment to two years. He also convicted Mst. Tashwin Bibi under section 18 of the aforesaid Hudood Ordinance and sentenced her to undergo rigorous imprisonment for two years. He acquitted accused Muhammad Aslam.
3. Only convict Mumtaz Hussain has filed the appeal in hand whereas no appeal has been filed by convict Mst. Tashwin Bibi. A suo motu notice of enhancement of the sentence was issued by this Court on 10-10-1991 when the appeal was admitted for hearing.
4. The facts which came to light and were proved at the conclusion of the trial are that Mst.
Tashwin Bibi was legally-wedded wife of complainant Muhammad Sabir, that she had left the house of her husband and was admitted in Darul Aman, Abbottabad on 21-5-1990, that appellant Mumtaz Hussain is a Buldozer driver and had remained on duty in the village of the appellant for about six months during the days of occurrence. However, there is no evidence on record that any body had seen convict Mst. Tashwin Bibi eloping with appellant Mumtaz Hussain. P.W.4 Jehanzeb has stated that he had seen, Mst. Tashwin Bibi in a Suzuki at Haripur on 22-5-1990. P.W.6 Muhammad Aslam son of Hussain Khan has stated that he had gone to the Courts in Abbottabad where he had seen convict Mst. Tashwin Bibi sitting outside the Court of Assistant Commissioner, Abbottabad. The testimony of P.W.4 Jehanzeb is belied by the fact that convict Mst. Tashwin Bibi was admitted to Darul Aman on 21-5-1990, one day before this witness had allegedly had seen her sitting in Suzuki van alongwith appellant Mumtaz Hussain. However, the testimony of P.W.6 is believable because convict Mst. Tashwin Bibi was admitted to Darul Aman and he may have seen her sitting outside the Court of Assistant Commissioner, Abbotabad in this connection. However, he has not stated that he had also seen the appellant Mumtaz Hussain present in the premises of the Court of Assistant Commissioner on that day.
5. Appellant Mumtaz Hussain has denied the commission of any offence in his statement recorded under section 342, Cr.P.C. As also in his evidence recorded on oath denied existence of any illicit relationship with convict. Mst. Tashwin Bibi. The latter also denied the aforesaid allegations but to a question put to her in cross-examination of her statement recorded on oath she admitted that relations between both the spouses were strained and she had left the house of the complainant 2/3 times earlier as well. There are grounds to believe that she had voluntarily and without the connivance of any other accused left the house of her husband and sought refuge in the Darul Aman. There is, however, no evidence on the record to show that she had eloped with or was enticed away by the appellant or any other person.
6. The learned Trial Judge somehow came to know that the appellant had submitted an application before Assistant Commissioner, Abbottabad for seeking an interview with convict Mst.
Tashwin. He recorded statement of Muhammad Ilyas as Court-witness who produced original application of appellant Mumtaz Hussain to seek an interview with the female convict on 6-6-1990.
The photostat copy of the application is exhibited as C.W.1/1. Although prima facie this application shows that the appellant had some connection with the female convict, but it does not in any way prove that he was guilty of her enticement for any illicit purpose. In this connection the only testimony of P.W.4 Jehanzeb is not believable as already held and has also not been believed by the learned trial Judge.
7. It is also a fact that the female convict had filed a suit in the Court of Family Judge, Abbottabad on 18-6-1990 against her husband complainant Muhammad Sabir for dissolution of marriage and for recovery of dower and maintenance. It transpires that the complainant had submitted the application to S.S.P. As mentioned above after he had received summons in the said suit.
Subsequently he also filed a suit in the Family Court on 6-11-1990 for restitution of conjugal rights against his wife. There are strong reasons to believe that he had submitted the application to S.S.P.
Only to offset the effect of the suit for dissolution of marriage. Although complainant has stated that he had made an oral report to S.H.O. Police Station, Havelian regarding the missing of his wife but he has not produced any positive evidence regarding this allegation. The female convict was examined by the lady doctor on 16-8-1990 after she was arrested in the case. This medical examination appears to be doubtful and purposeless. She is a married woman and her husband must be having sexual intercourse with her and before her arrest she was living in the Darul Aman.
There was, therefore, no evidence at all to show that she was subjected to any illict intercourse with any person besides her husband. There is also no evidence on record to show that she was enticed away by any person for any illegal purpose. Neither this offence nor its attempt were proved either against the appellant or against the female convict.
8. The learned trial Judge had recorded the testimony of one Court witness on the day when he had to announce judgment but this statement was never put to cross-examination by any party.
The appellant was not given any opportunity to question the veracity of that testimony in cross- examination. It is a basic principle of evidence that it becomes trustworthy evidence only when it is put to the test of cross-examination. The learned trial Judge committed that illegality that he did not allow the accused to cross-examine the court-witness.
9. It shall thus be seen that there was no evidence worth the name to prove the charge against the appellant under section 16 of the aforesaid Hudood Ordinance. The appeal is, therefore, accepted.
The impugned judgment is set aside and appellant is acquitted of the charge under which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.
10. Convict Mst. Tashwin Bibi has not filed any appeal against her conviction but a request was made by the learned counsel for the appellant that this Court may exercise its revisional jurisdiction under Article 203-DD of the Constitution of Islamic Republic of Pakistan and finding that since there was no evidence to sustain the conviction, the sentence of the trial Court passed against her being improper and incorrect be set aside and the female convict be acquitted and set free. The aforesaid Article of the Constitution authorises this Court to call for and examine the record of any case decided by any Criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court and may make such order as it may deem fit. It shall be seen from the discussion in the foregoing paragraphs that not only that there was no evidence to sustain the conviction of the offence for which both the appellant and the female convict were charged but also the learned trial Judge committed an illegality is not allowing the parties to cross-examine the Court-witness. It was an illegality of a grave nature as the veracity of testimony of witness can be established only through cross-examination. Although no appeal or any revision was filed by the female convict herself but this Court has been empowered under Article 203-DD of the Constitution of Islamic Republic of Pakistan to suo motu call for and examine the record to find out if sentence or order was made in accordance with law or not. Obviously the judgment was incorrect and improper. I, therefore, in exercise of the power conferred by Article 203-DD of the Constitution of Islamic Republic of Pakistan, set aside the conviction and sentence of Mst. Tashwin Bibi and acquit her of the charge under which she was convicted and sentenced. She shall also be set at liberty forthwith if not wanted in any other case.
In so far as the suo motu notice for enhancement of sentence is concerned, since I have accepted the appeal and have also exercised my revisional jurisdiction in respect of the female convict, the question of enhancement of sentence does not arise. The notice is discharged.