' This appeal is directed against the judgment dated 30-5-1991 passed by the learned Additional Sessions Judge, Layyah, whereby the appellant was convicted for offence under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer R.I. For four years and to pay fine of Rs,2,000 in default whereof to suffer S.I. For three months more. His co-accused Muhammad Hassan was acquitted of the charge.
2. The facts giving rise to this case are based on the complaint filed by Manzoor Hussain with S.I.
Police Station Fatehpur on 9-3-1987 with the words as under:-- {{URDU TEXT}}
3. On the strength of this complaint F.I.R. No,46 was registered at the police station. Appellant Muhammad Akram and his companion Muhammad Hassan were arrested. Victim Mst. Ramzan Bibi and the two culprits Muhammad Akram and Muhammad Hassan were sent for examination to hospital. Dr. Faizanur Rehman examined the appellant as well as his companion Muhammad Hassan, whereas Dr. Farzana Bukhari examined the victim. After usual investigation the appellant and his acquitted co-accused were sent for trial before the Court. The case came for trial before the learned Additional Session Judge, Layyah, where charge under section 10(3) of the Ordinance was levelled against the appellant and his companion Muhammad Hassan. Both of them did not plead guilty to the charge. The prosecution, therefore, examined P.W.1 Manzoor Hussain, complainant, P.W.2 Mst. Ramzan Bibi, the victim, P.W.3 Dr. Faizanur Rchman, P.W.4 All Muhammad, Head Constable, P.W.5 Ghulam Akbar, Constable, P.W.6 Ghulam Murtaza, P.W.7 Muhammad Hussain and P.W.8 Dr. Farzana Bukhari. Manzoor Ahmad, retired D.S.P./Investigating Officer, has been examined as C.W.1.
4. In their statements recorded under section 342, Cr.P.C. The appellant and his associate have denied the allegation. Acquitted co-accused Muhammad Hassan took following stand in his 342, Cr.P.C. Statement:-- "There is property dispute between the father of the accused and father of alleged victim. Relations between the two families arc very much strained. False case has been planted upon us in order to pressurise us to settle that property dispute. I am innocent. On the day of occurrence I was not present in the Chak and I was away to Fatehpur."
D.W.1 Muhammad Sadiq and D.W.2 Ghulam Farid were examined in defence. However, the learned trial Judge while extending benefit of doubt acquitted Muhammad Hassan and convicted the appellant for the offence as mentioned herein above. This appeal has been filed by the appellant against his aforesaid conviction and sentence before this Court.
5. Malik Rab Nawaz Noon, Advocate, appeared for the appellant and Mr. Muhammad Aslam Uns, Advocate, appeared for the State.
6. With the assistance of the learned counsel for the appellant I have gone through the F.I.R., statements of P.W.1 Manzoor Hussain, P.W.2 Mst. Ramzan Bibi and the judgment passed by the learned trial Judge. It may be observed that in F.I.R. P.W.1 Manzoor Hussain has not alleged that appellant Muhammad Akram had committed rape upon victim Mst. Ramzan Bibi. In clear words he has stated that Muhammad Hassan had committed rape upon her. Besides, in the latter part of the F.I.R. Manzoor Hussain has stated that Mst. Ramzan Bibi had also narrated the facts regarding the incident to him. However, in his statement recorded before the Court complainant Manzoor Hussain has stated that appellant Muhammad Akram had also committed rape upon Mst. Ramzan Bibi. In cross-examination the contradiction in the F.I.R. And the statement of the witness has been brought on the record. Mst. Ramzan Bibi in her statement has clearly stated that at the asking of Hassan, Akram had committed Zina with her. First chance was given to Muhammad Akram as he was quite young and it was easy for him to do the job. She has not said that on committing of Zina with her by Muhammad Akram she had raised cries, but in unequivocal terms she has stated that on commission of Zina by force by accused Hassan she started crying and weeping due to pain.
Thus the injuries caused to her vagina could be only caused by rape of Muhammad Hassan but not by Muhammad Akram. However, during the trial Muhammad Hassan had taken the plea of alibi. His statement gets support from evidence of C.W.1 Manzoor Ahmad, retired D.S.P./Investigating Officer, who had declared him innocent. The opinion of Investigating Officer though is neither relevant nor admissible while deciding criminal case, but yet his opinion was given weight by the learned trial Judge and it was taken as a ground for acquittal of Muhammad Hassan. Besides, the alibi of the acquitted accused Muhammad Hassan was also based on the partly admission of complainant Manzoor Hussain saying that in earlier part of the day of the occurrence Hassan might he at Fateh pur. It would be beneficial to reproduce the findings given by the learned trial Judge in respect of the same, which reads as under:-- "According to the defence counsel accused have been roped in without any just cause and the lady fell prey at the hands of some other offender and due to previous grudge a case was brought against the present accused. Complainant admitted during cross-examination that in earlier part of the day of occurrence accused Hassan might be at Fatehpur. This was view of police officer that Muhammad Hassan accused was away to Fatehpur at the time of occurrence and he was wrongly named as an accused person. After attending to entire evidence available on the file' I am persuaded to grant benefit of doubt to Muhammad Hassan accused and acquit him of the charge."
Indeed, in his further cross-examination witness Manzoor Hussain has clearly stated that at the time of occurrence Muhammad Hassan was present at the spot. As opinion of police officer is neither relevant nor admissible regarding guilt or innocence of an accused person, the Court had to decide the case on the material produced before it. It is unfortunate that the State has not filed appeal before this Court. Hence no action can be taken agsainst acquitted accused Muhammad Hassan at this stage by this Court. Obviously, in the circumstances when on the same evidence of Mst. Ramzan Bibi, Muhammad Hassan has earned acquittal her evidence against appellant Muhammad Akram also becomes very weak and requires strong corroboration which lacks. The F.I.R. Which had been recorded by the police at the instance of complainant Manzoor Hussain shows that the complainant had consulted victim Mst. Ramzan Bibi before registering the case. As F.I.R. Does not implicate appellant Muhammad Akram for having committed rape upon Mst.
Ramzan Bibi, his evidence appears to be subsequent improvement. In such view of the fact I am inclined to extend benefit of doubt in favour of appellant Muhammad Akram also. Consequently the appeal is accepted, the conviction and sentences awarded to the appellant by the learned trial Court on 30-5-1992 are set aside and he is acquitted of the charge. He is present on bail. He is discharged from its obligation.