This appeal is directed, against the judgment, dated 2-12-1992 passed by the learned Additional Sessions Judge, Toba Tek Singh, whereby appellant Mst. Zubaida d/o Muhammad Ashraf was convicted for offence under section 10(2) of, the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Ordinance) and section 317, P.P.C. For various terms.
2. It is case of the prosecution that on 14-7-1990 a new born baby was found in cluster of trees by witnesses Muhammad Iqbal and others. The matter was reported to polio: and F.I.R was registered accordingly at Police Station. Pir Mahal. The appellant was suspected for having given illicit birth to the child. Hence she was sent for medical examination to the Medical Officer Dr. Robina Kausar. Her evidence is as under:--- "On 15-7-1990 on police application Exh.P.A. 1 conducted medical examination of Mst. Zubaida accused present in Court brought by police as W.M.O. Was not present at R.H.C. Pir Mahal. The medical examination was conducted at p.m. During examination I noted as under:--- Examination for delivery case.
Local Examination. P/S + P/V examination.
Hymen torn completely. There was, fresh laceration of vagina. Bleeding positive. Cervic soft and lacerated. Uterous size 20 weeks. P/A = FH = 20 weeks.
However, after usual investigation the appellant was challaned to face trial before the Court.
3. The case came up for trial before the Court of learned Additional Sessions Judge, Toba Tek Singh, where the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined seven witnesses in support of the case. In her statement recorded under section 342, Cr.P.C. The appellant denied the allegation and canvassed innocence. However, the learned Additional Sessions Judge found her guilty for offence under section 317, P.P.C. And section 10(2) of the Ordinance and sentenced her for the same. Hence this appeal.
4. None of the witnesses examined by the prosecution had witnessed sexual intercourse being committed by the appellant. There is also no direct evidence showing that the child belonged, to her and she had thrown in the bushes. There is also no evidence 'to connect her directly with the offence under section 10(2) or under section 317, P.P.C. On mere evidence of Dr. Robina Kausar, the appellant has been convicted. To me the evidence seems to be insufficient to connect her with the offence. The learned counsel for the State has frankly conceded to such position. In such view of the fact, the appeal is accepted, the conviction and sentences of the appellant recorded by the learned Additional Sessions Judge, Toba Tek Singh on 2-12-1992 are set aside. She stands acquitted of the charge. She' was allowed bail by this Court. She is discharged from the obligation of bail bonds.