' A.S.I. Muhammad Anar Khan of Police Station City Jalal Pur Jattan had laid a picket near Octroi Post No,1 of the Jalal Pur Jattan City along with other police officials at 12-00 in the 'night on 11-4- 1994. He received spy information that one Maqsood Shah and Suleman had engaged a woman of Gujrat for Rs,2,000 for the purpose of having sexual intercourse with her and had brought her to a house in the Abadi of City of Jalal Put Jattan. He also received information that accused Shahid alias Gagou and Ijaz Ahmad were already present in the said house for the purpose of committing sexual intercourse with the said woman. The complainant A.S.I. Accompanied by the police party and one Dilawar Ahmad son of Fazal Ahmad reached the place of occurrence. The complainant along with the aforesaid Dilawar Ahmad scaled over the outer wall of the said Haveli and entered inside and opened the door. He saw in a room in the light of a bulb that accused Maqsood Shah had put off his clothes and accused Mst. Kaniz Fatima had put off her shalwar and that Maqsood Shah was busy committing sexual intercourse with the female accused on a cot in the room. On the nearby cot accused Shahid Ijaz and Suleman were lying, they also having put off their shalwars.
The police party overpowered accused Mst. Kaniz and Maqsood Shah at the spot whereas the other three accused, who had already committed sexual intercourse with the female accused picked up their Shalwars and succeeded in escaping from the other door. The complainant arrested accused Mst. Kaniz Fatima and accused Maqsood Shah and sent written complaint to Police Station City Jalal Pur Jattan where F.I.R. No,52 was recorded on the same date.
2. Complainant A.S.I. Muhammad Anar Khan arrested accused Shahid and Suleman on the next day, whereas the pre-arrest bail of accused Ijaz was confirmed on 5-5-1994 and he was formally arrested on the said date. Accused Mst. Kaniz Fatima was medically examined by P.W. 3 Lady Dr. Shagufta Naseem at 5-30 p.m.- on 11-4-1994 but as she was a married woman, . No evidence of sexual intercourse could be found. However, the vaginal swabs taken by the lady doctor were also found not stained with semen by the Chemical Examiner.
3. After investigation all the 5 accused were sent up for trial before Additional Sessions Judge, Gujrat who charged all of them under section 19(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 to which all of them pleaded not guilty and claimed trial.
4. The State produced 6 witnesses in proof of the prosecution case, whereas all the accused made depositions under section 342, Cr.P.C. But none of them either made any deposition on oath or produced defence witness.
5. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Shahid, Suleman and Ijaz and convicted accused Maqsood Shah and Mst. Kaniz Fatima under section 10(2) of the Hudood Ordinance and sentenced each of them to undergo rigorous imprisonment for 7 years, to suffer 30 stripes and to pay a fine of Rs,2,000 or in default to undergo simple imprisonment for 6 months by judgment dated 4-1-1995. Convict Maqsood Shah has challenged his conviction and sentence by Cr. A. No, 12/L of 1995 whereas Mst. Kaniz Fatima has challenged her conviction and sentence by Cr. A. No, 30/L of 1995. Since both the appeals have arisen from the same judgment they are being disposed of by the single judgment written in Cr. A. No,12/L of 1995.
6. 1 have heard learned counsel for the parties at length and have also very carefully gone through the entire record of the case.
7. The case of the prosecution was that P.W.6 complainant Muhammad Anar A.S.I. Had received spy information whereupon he led a police party to the place of occurrence, that he also took alongwith him private person P.W.1 Dilawar Ahmad, that the complainant and the said Dilawar Ahmad jumped over the wall of the house where they saw a room with an open door and having an electric light wherein they also saw both the appellants herein, committing sexual intercourse with each other, whereas the other three acquitted accused were lying on a nearby cot without their trousers. The complainant also found appellant Maqsood Shah naked while Mst. Kaniz Fatima had put off her shalwar. This was the story told by P.W.6 complainant Muhammad Anar Khan A.S.I.
On the contrary P.W.1 Dilawar Ahmad completely denied having any knowledge of the occurrence.
He, however, stated that he knew nothing about the occurrence and that Muhammad Anar A.S.I.
Had come to his shop and. Told him that he had cited him as a witness in the present case. He was declared a hostile witness and was cross-examined by the D.D.A. But he denied that he had accompanied the police party on the night of 11-4-1994 for raiding the house of Ghulam Haider.
8. The complainant had deposed that the outer door of the house was bolted from inside and he had opened it after scaling Over the outer wall of the house, whereas P.W.4 Amjad Javid F.C. Who was also present in the police party, did not state that the complainant had scaled over the outer wall of the house and had opened the main gate. But on the contrary he had stated that they had entered the house through the gate which was opened. The complainant had stated that the door of the room, where the alleged offence was being committed, was opened and an electric light was on whereas P.W.4 Amjad Javid F.C. Stated that the door was closed and it was opened either by female accused or by the other accused when the police party knocked at the door. The complainant had stated that the room was lit by electric light whereas P.W.2 Sarfraz Ahmad F.C.
Had stated that there was a lantern on in the room.
9. In her statement under section 342, Cr. P.C. Mst. Kaniz Fatima denied the commission of any offence and stated as follows:--- "I am married to Muhammad Ashraf since last about 14 years and am having four children but am leading deserted life since last six years. This case was concocted by my in laws in order to pressurise me to come back to the house of my husband. On the fateful night, at about 9 p.m. I was returning to Gujrat from the house of my cousin Mst. Zeenat Bibi when the police arrested me at the instance of my husband who was accompanying the police at that time. I am innocent."
' Similarly appellant Maqsood Shah also denied the commission of the offence and further stated that P.Ws. Were public servants and he was innocent and falsely involved due to party faction.
10. The complainant committed many serious irregularities in this whole affair. He was going to carry out the search of premises but he did not obtain any search warrant from any Magistrate in order to have authority to enter the premises. He had to carry out the search of the premises but he did not associate any person of the locality and the person whose name is mentioned in the F.I.R.
As having accompanied the police party to the place of occurrence entirely denied the prosecution story. He categorically stated that he knew nothing about the occurrence and that he had not accompanied the police party on that night to the place of occurrence. This would show that there was an element of falsehood in the F.I.R. Also.
11. Even otherwise the circumstances as narrated in the prosecution story do not appeal to reason besides some of them being suffering from contradictory versions. From the prosecution story it cannot be gathered with certainty whether the outer door of the house was locked or open because one witness stated that it was locked while the other stated that it was open. It is also not clear whether the complainant scaled over the wall and jumped in to the house or they entered the house through the main gate. It is also not known with certainty that the door of the room where the offence was being allegedly committed was open or closed. Then it is also not known whether there was electric light on or lantern on in the room which was the site of the alleged occurrence. It is utterly unthinkable that a man and a woman would continue committing sexual intercourse with each other even when a raid had been conducted and the closed door of the room was being knocked at to open it. On top of all there is the report of the Chemical Examiner which shows that semen stains were not found on the vaginal swabs of the appellant Mst. Kaniz Fatima taken by the lady C doctor on the same day and she could not have any opportunity to otherwise destroy the presence of semen in her vagina because she was in police custody during all the time. It has also to be kept in mind that appellant Mst. Kaniz Fatima had strained relations with her husband and she leveled charge against the complainant that he had falsely implicated her in the case on account of friendship with her husband.
12. With all the glaring infirmities in the prosecution case only one conclusion can be drawn and that is that complainant Muhammad Anar A.S.I. Had done all that illegal and inhuman drama either to oblige a friend or for some ulterior motive. He not only committed very serious illegalities in the whole affair and proved that he had no respect for the law but also failed to produce cogent and convincing evidence to prove the charge for which he had apprehended the appellants. It is very shameful that complainant Muhammad Anar A.S.I. Had no respect for 'Chaddar and Chardewari' and behaved as if he was living in a jungle where he was master of all. It is a pity that there are such black sheep in the Police Department who do not observe legal formalities in their professional duties and have scant regard for moral values and decency. Such police officials are a source of shame for the Police Department. I wonder how he agreed to act so shamelessly and without thinking that he could also have family in his house and if such course of action was initiated against his family what would be his reaction. His conduct was most ignoble as a human being and utterly shameful as a police official.
13. Muhammad Anar A.S.I. Is guilty of levelling a false charge of Zina against both the accused but it is a pity that the Court cannot initiate any suo motu action against him under the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, which can only be initiated by the person against whom Qazf has been committed.
14. The prosecution miserably failed to prove the charge for which both the appellants were convicted and sentenced. Consequently both the appeals are accepted. The conviction and sentences of both the appellants recorded on 4-1-1995 by the learned Additional Sessions Judge, Gujrat are set aside and they are acquitted of the offence for which they were convicted and sentenced. Both the appellants are on bail. Their bail bonds stand discharged.
' A copy of this judgment be sent to the Inspector-General Police, Punjab for initiating criminal as well as departmental action against Muhammad Anar, A.S.I. As he has committed the offence of giving false evidence on oath in a Court of law in a judicial proceedings and he has also violated the Police Rules.