' Complainant Abdul Rashid fruit merchant of China Chowk, Wazirabad Road, Sialkot but resident of Village Toranwal was sitting at the dead of night on 15-6-1993 on the shop of Haji Khadim Hussain alongwith Muhammad Yaqub and Shams Din. They saw appellant Salim Akhtar going towards the house of Bashir Ahmad father of appellant Mst. Shama Parveen. The complainant party had heard rumours that both the appellants were having illicit relationship so they followed appellant Salim Akhtar. The latter entered the house of Bashir Ahmad. Sometime thereafter the complainant party reached the said house and found the outer door bolted from inside. The complainant party peeped through the door and found both the appellants committing Zina with each other in a room of the house. The complainant party knocked at the door which was opened after much delay. The complainant party apprehended both the appellants and took them to Police Station, Head Marala where complainant Abdul Rashid submitted a written complaint at 5-40 hours whereupon F.I.R. No,39/93 was recorded.
2. Appellant Mst. Shama Perveen was examined by P.W.1 Lady Dr. Ruqyia Anjum on the same day at 19-20 hours. According to that examination her vagina admitted two fingers easily. The lady doctor took vaginal swa bs which were found stained with semen.
3. After investigation both the appellants were sent up for trial before the Additional Sessions Judge, Sialkot, who charged both of them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which both of them pleaded not guilty and claimed trial.
4. During the trial 6 witnesses were produced by the State in proof of the prosecution case. Both the appellants made depositions under section 342, Cr.P.C. Wherein they both denied the commission of the offence and both stated that they had been falsely involved on account of party faction in the village. However, they neither made any statement on oath nor produced any defence.
5. After the conclusion of the trial the learned Additional Sessions Judge convicted both the appellants under section 10(2) of the Hudood Ordinance and sentenced each of them to undergo rigorous imprisonment for 4 years, to suffer 30 stripes and to pay a fine of Rs,5,000 each or in default to further undergo imprisonment for 6 months. Convict Salim Akhtar challenged his conviction and sentence by Criminal Appeal No,149/L of 1994 in hand whereas convict Mst. Shama Perveen challenged her conviction and sentence by Criminal Appeal No,198/1, of 1994. Since both the appeals have arisen from the same judgment, the same are being disposed of by a single judgment written" in Criminal Appeal No,149/L of 1994 in hand.
6. I have heard learned counsel for the parties at length and have also very carefully gone through the record of the case.
7 The occurrence allegedly took place at the dead of night in a room which did not have any light (as this fact was not disclosed in the F.I.R.) and the two eye-witnesses P.W.3 Abdul Rashid and P.W.4 Shams Din had allegedly seen the occurrence from small holes in the outer door of the house by peeping through them. It is also a fact that the father of the girl neither appeared before the Investigating Officer nor came forward during the trial.
8. I have carefully perused the evidence of both the eye witnesses and I have come to the conclusion that they are false witnesses. It was impossible to see any occurrence taking place inside a dark room at the dead of night from some distance and also from the other side of the outer door of the house which was bolted. Both the witnesses are liars out and out and there is not a grain of truth in their testimony. The mere fact that semen detected on the A vaginal swabs would not prove that both the appellants had committed sexual intercourse with each other because they were dressed in full clothes when they were apprehended by the complainant party.
The testimony of the lady doctor shows that appellant Mst. Shama Perveen was used to sexual intercourse but it could not be presumed that both of them had committed Zina within the view of the eye-witnesses.
9. The charge against both the appellants could not be proved by any cogent and convincing evidence. Consequently both the appeals are accepted. Both appellants Salim Akhtar son of Bashir Ahmad and Mst. Shama Perveen wife of Muhammad Iqbal are acquitted of the offence for which they were convicted and sentenced by the learned Additional Sessions Judge on 11-5-1994. The conviction and sentence of both the appellants are set aside. They shall be set at liberty forthwith if not wanted in any other case.
10. I have found that P.W.3 Abdul Rashid and P.W.4 Shams Din are guilty of the offence of giving false evidence on oath in a Court of Law. The Senior Superintendent Police, Sialkot is directed to record F.I.R. Of giving false evidence on oath in a Court of Law in the light of provisions contained in section 191 read with section 195, P.P.C. Against both these witnesses and send them up for trial before a Court of competent jurisdiction for trial in the aforesaid charge.