' The appellants in these two appeals have challenged their conviction and sentences awarded to them by the Sessions Judge, Karak vide judgment, dated 1-12-1996.
2. The appellants were tried for the offences under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). The case was initiated on the report of Mst. Zama Jana made to Muhammad Ali Khan, S.H.O. Police Station Teri on 18-12-1994 at 12-15 hours. She charged Juma Gul, convict-appellant committing Zina-bilJabr resulting in pregnancy. After registering the case the S.H.O. Got her medically examined by Lady Doctor Sumera Khattak who vide M.L.R. Exh.P.W.3/1 confirmed that Mst. Zama Jana was pregnant.
The S.H.O. Then arrayed Mst. Zama Jana as an accused in the case and arrested her on 18-2-1994.
Juma Gul was also arrested on the same day. Dr. Muhammad Ayaz examined Juma Gul and found no clue of his impotency, and gave his report Exh.P.W.4/1-A. Photograph of both the accused was taken into possession by the Investigating Officer vide memo. Exh.P.C. Produced by Maizullah Shah.
After completion of investigation accused were challenged to Court.
3. At the trial the accused denied the charge of committing offence punishable under section 10(2) of the Ordinance. To prove the charge against them prosecution produced five P.Ws.
' Muhammad Kamal (P.W.1) H.C. Police Lines Karak is the marginal witness to the recovery memo.
Exh.P.C. Vide which the Investigating Officer took into possession one colour photograph of the two accused produced by Maizullah (P.W.2). Maizullah P.W.2 is the son-in-law of Mst. Zama Jana appellant who deposed about the production of photograph to the Investigating Officer when cross-examined he stated that photo was delivered to him by Mst. Zama Jana and While delivering the photo she told him that she had married Juma Gul. Samera Khattak, Lady Doctor (P.W.3) had examined Mst. Zama Jana. According to the report Exh.P.W.3/1 Mst. Zama Jana was pregnant.
Muhammad Ayaz (P.W.4) examined Juma Gul and found him potent. He deposed that Juma Gul was more than 55 years old and potency beyond 55 years decreases. He proved his report Exh.P.W.4/1. Muhammad Ali Khan (P.W.5) conducted the investigation in the case. After the close of prosecution evidence the accused were examined under section 342, Cr.P.C. Mst. Zama Jana denied having committed Zina and stated that she was subjected to Zina-bil-Jabr by Juma Gul.
She admitted her pregnancy as a result of Zina-bil-Jabr by Juma Gul. About the photograph with Juma Gul she stated that after the death of her first husband, she developed some land dispute with her son-in-law Maizullah Shah who produced the photographs to the S.H.O. Juma Gul in his statement deposed that he is married person of 60 years of age having four sons and two daughters have no urge for sex. The case against him is false. Photograph produced was forged by his enemies to defame him in collusion with Maizullah Shah the son-in-law of Mst. Zama Jana to save the skins of her mother-in-law. The appellants produced no evidence in defence.
4. The trial Court believed the prosecution evidence as far as the commission of Zina by Mst. Zama Jana with Juma Gul is concerned because of her pregnancy observing that in such like situation the burden was on her to prove that she was subjected to Zina-bil-Jabr. The Court was of the view that in the presence of many children of Mst. Zama Jana from her previous husband, she could not be subjected to Zina-bil-Jabr and that she was a consenting party. Her statement as co-accused was corroborated by the photograph depicting the two in a very happy position. The photo produced by Maizullah Khan was not forged. The Court, therefore, concluded that prosecution had proved the charge of Zina with consent. Accordingly the two appellants were convicted under section 10(2) of the Ordinance and sentenced to seven years' R.I. And twenty stripes each. Mst.
Zama Jana was given benefit of section 382-B, Cr.P.C.
5. The convict-appellants have now challenged their conviction and sentences in these two appeals.
6. Asadullah Khan, Advocate for Juma Gul appellant contended that except the statement of co- accused Mit. Zama Jana that she was subjected to Zina-bil-Jabr there is no other evidence against him and that statement of co-accused has no evidentiary value unless corroborated by convincing evidence. It is contended that photograph furnishes no corroboration, nor it is exhibited and produced in evidence. If it was produced the Court should not have returned it. In support of his contention reliance was placed on the following reported cases.
(1) PLD 1983 FSC 183; (2) 1983 PCr.LJ 496; (3) 1983 PCr.LJ 550.
7. Muhammad Nasir Khan, Advocate for Mst. Zama Jana appellant argued that transposition of Zama Jana as an accused by the Investigating Officer is illegal and in any case her consent to commit Zina is not established as the photograph made basis to prove consent is not placed on record. The evidence of pregnancy alone is not sufficient to convict a woman for Zina especially when she claims the pregnancy to have been caused by Zina-bil-Jabr. Reliance was placed on the case of Mst. Rani and others v. The State PLD 1996 Kar.
316.
8. Mr. Navid Akhtar, Advocate for the State in reply argued that Mst. Zama Jana's consent is proved as she did not complain of Zina-bil-Jabr to anybody, though she became pregnant. The learned counsel conceded the legal position that statement of co-accused has no evidentiary value without corroboration.
9. I have heard the learned counsel for the parties and have also perused the evidence on record.
The point is whether appellants have committed Zina with consent or Mst. Zama Jana was subjected to Zina-bil-Jabr. For consent the trial Court has taken into consideration the photograph in which the two appellants were found in happy position, and pregnancy providing evidence of Zina. The photo was produced to the Investigation Officer by Maizullah (P.W.2) son-in-law of Mst.
Zama Jana. This photograph was not placed on record and was returned by the Court. It is, therefore, not possible for this Court to comment on the posture of the two appellants in the photograph. The pregnancy alone is not sufficient evidence for proof of Zina-bil-Jabr. The Division Bench of Karachi High Court in Mst. Rani's case PLD 1996 p.316 held:-- "Prosecution in order to get a woman convicted for Zina has to prove on record by positive and independent evidence that she had, actually and in fact, committed Zina with her own free will and consent with another man to whom she was not lawfully married---proof of pregnancy or some form of medical testimony/report by itself would be of no consequence as the same would at best only serve to be corroborative in nature."
10. The High Court dissented from Mst. Mina v. The State PLD 1983 FSC 183 in which pregnancy alone was accepted as an evidence to punish the girl under section 10 of the Ordinance. Reference in the case is also made to Mst. Safia Bibi v. The State PLD 1985 FSC 120 wherein dealing with the position of a female accused, the Court came to the conclusion that she could not be convicted for Zina on the plea of pregnancy as a result of commission of offence of rape on her. Still another case cited is Mst. Siami v. The State PLD 1984 FSC 121 wherein it is held that mere pregnancy/abortion or birth of an illegitimate child by an unmarried girl/widow or married woman whose husband had no access to her during the relevant period was not sufficient for awarding punishment under section 10 of the Zina Ordinance. Respectfully following the ruling of Division Bench of Karachi High Court that pregnancy by itself is not sufficient evidence to prove Zina-bil-Jabr, am of the view that Mst.
Zama Jana on the basis of evidence of pregnancy alone cannot be held guilty under e section 10 of the Ordinance. The statement of Mst. Zama Jana recorded under section 342, Cr.P.C. Can be used as admission against its maker but it has no evidentiary value against a co-accused. The cases reported in 1983 PCr.LJ 496, 1983 PCr.LJ 550 have rightly been cited by the learned counsel for Juma Gul appellant. May also refer to a case Muhammad Sadiq v. The State 1995 SCM R 1403 wherein it is held that no implicit reliance can be placed on the statement of a woman of easy virtue unless some other independent evidence of commission of Zina by the accused with her is available on record. No such evidence is produced in this case. Mst. Zama Jana is a widow having children from her previous husband. Photograph with Juma Gul though not available on I E record can be taken as a proof of her loose character. The photo was produced by Maizullah Shah (P.W.2) who is the son-in-law of Mst. Zama Jana. He admitted in the cross-examination that it was delivered to him by Zama Jana disclosing that she performed Nikah with Juma Gul. In the presence of this type of evidence on record it cannot be said that prosecution has proved the charge under section 10(2) of the Ordinance against the convict appellants beyond reasonable doubt. I would, therefore, accept the two appeals, set aside the judgment, dated 1-12-1996 of the learned Sessions Judge, Karak and acquit the appellants. They shall be released forthwith if not required in any other case.