Mst. Razia Sultana wife of complainant Abdul Ghaffar, resident of Mohallah Tariqabad, Sargodha was washing clothes in their cattle house opposite to their residential house on 8-7-1992 at 1330 hours. After washing the clothes she undressed herself to take bath but in the meantime appellant Zulqarnain, who lived in the house opposite to the residential house of the compliant, entered the cattle house of the complainant through the roof and forcibly took Ms Razia Sultana in his embrace and attempted to commit Zina-bil-Jabr with her. The alleged victim la. Razia Sultana raised noise whereupon Muhammad Sharif and Pervez Iqbal father and brother-in-law of the victim reached the spot and on seeing them the appellant escaped. The compliant went to Police Station Cantt.
Sargodha on the same day at 1900 hours and recorded F.I.R. No- 133.
2 .After investigation the appellant was found innocent and he was discharged by the Illaqa Magistrate on 24-1-1993 whereupon the complainant filed a private complaint on 31-1-1993. The appellant was charged by Additional Sessions Judge, Sargodha under section 452, P.P.C. And section 10(3) read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but the appellant pleaded not guilty to both the charges and claimed trial. The complainant produced 5 prosecution witnesses in all, however, he was not an eye-witness of the occurrence.
Out of the prosecution witnesses there were two eye-witnesses of the occurrence; P.W. 2 Mst. Razia Sultana the alleged victim herself and P.W. 3 Muhammad Sharif father of the complainant and father-in-law of the alleged victim. The appellant made a statement under section 342, Cr.P.C. And produced 4 defence witnesses but he himself did not make any deposition on oath.
3. After the conclusion of the trial the learned Additional Sessions Judge held the appellant guilty of both the charges in his judgment dated 8-2-1994 and sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.2,000 or in default to further undergo simple imprisonment for 3 months for the offence under section 10(3) read with section 18 of the Hudood Ordinance and also sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500 or in default to further undergo simple imprisonment for one month for the offence under section 452, P.P.C. The appellant has challenged his conviction and sentence by the appeal in hand.
4. I have gone through the entire record of the case with the assistance of learned counsel for the parties who also addressed arguments at length.
5. The case of the complainant was that appellant Zulqarnain entered their cattle house which is opposite to their residential house through the roof and attempted to commit Zina-bil-Jabr with his wife but the alarm raised by her attracted her father-in-law and brother-in-law who reached the spot immediately but on seeing them the appellant escaped from the door opening on the street. In this connection my attention was drawn to the site plan, Ex.DA, which shows the residential house of the complainant party on the east contiguous to the house of the appellant whereas the cattle house of the complainant party is across the street opposite their own house. There is a house of another person on the north of the house of the appellant and the cattle house of the complainant party and it is a blind street. The contention of the complainant party was that the appellant had entered their cattle house through the roof but this was not possible because the cattle house was across the street and the house which could be considered as adjacent to the cattle house belonged to another person and the appellant could not have gone in the cattle house from the roof of that house. This was a great lacuna in the prosecution story. The contention of the complainant party as originally disclosed in the F.I.R. Was that complainant Abdul Ghaffar husband of the alleged victim Mst. Razia Sultana had gone to his duty in the Telephone Department at the time of alleged occurrence and he came back in the evening when he was informed of the occurrence and then he went to police station and recorded the F.I.R. However, during evidence it was stated by the alleged victim Mst. Razia Sultana that on that day her husband had gone to his office at 1430 hours, one hour after the occurrence. This was not only a material improvement in the prosecution case but it also showed that the report of the occurrence could have been made immediately after the alleged occurrence and the recording of the F.I.R.
After more than 5 hours is not understandable. Obviously this period was utilised to fabricate a false story. The appellant was a young boy about 16 years of age at the time of alleged occurrence and he was confronted by two men, the father-in-law and brother-in-law of the alleged victim, but it is very strange that he could not be apprehended by them when there was only one door for exit and the appellant must have passed by both of them when trying to escape. This circumstance would also suggest the non---presence of any person at the spot at the time of alleged occurrence. This circumstance had further weakened the case of the complainant party. It is also to be noted that during investigation the appellant was found innocent and he was discharged.
Although it is the function of the court to find out whether any accused is innocent or guilty but the opinion of the Investigating Officer about the innocence of any accused cannot simply be brushed aside and some weight has to be given to that opinion. In this case more than two Investigating Officers had found the appellant innocent after making investigation from various persons of the locality who had neither any animosity against the complainant party nor any interest with the appellant.
6. The aforesaid circumstances would also throw a great shadow of doubt on the testimony of the alleged victim which not only appeared doubtful but was also not proved by any independent, cogent and convincing evidence.
7. For the aforesaid reasons the appeal of Zulqarnain son of Ghulam Nabi is accepted. He is acquitted of the charges for which he was convicted and sentenced by the learned Additional