This judgment will govern Criminal Appeal Np.262-L of 1994 filed by Nabeel Tahir alias Shahid Rafiq son of Muhammad Rafiq Ratta and Criminal Appeal No.267-L of 1994 filed by Mst.Sajida Akhtar wife of Muhammad Arshad Mochi. The to appellants, being co-accused, have been convicted by the learned Additional Sessions Judge Daska, District Sialkot, in Hudood Case No. 12 of 1993, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to R.I.
For 4 years each, 15 stripes and fined Rs.2,000 each and in default to undergo further R.I. For 6 months. Being aggrieved, the convicts filed the abovementioned appeals. I have heard Mr. M.
Naeem Ullah Khan Sherwani, learned counsel for appellant Nabeel Tahir, Ch. Nazir Muhammad, learned counsel for appellant Sajida Akhtar and Mr. Rao Khalil Ahmad Khan, learned counsel, who appeared on behalf of the State in both the appeals. With the assistance of the learned counsel, I have gone through the record which includes the evidence of the 6 prosecution witnesses, statement of the to accused and the exhibits.
2. According to the prosecution case, at about mid-night between 14th and 15th of July 1993, ASI Muhammad Iqbal, who was present at Chowk Mundeke at Naqabandi alongwith Constables Rafaqat Ali and Muhammad Riaz, the SHO Police Station, Daska came there on patrol duty alongwith Muhammad Shawaal Altd Muhammad Saleem Constables on receipt of secret information that one Toyota Hiace Van was parked in suspicious circumstances on mettled road within the area of Jandoke Goraya. The police party went there and they found the van bearing No.IHO-2079 parked on the western side of the Pacca road with its inner light on. Then police party, according to the prosecution, saw that a couple lying naked in the said vehicle were committing zina. The couple turned out to be the to appellants; they were apprehended and brought to trial.
During the trial, 6 prosecution witnesses were examined. There are three eye-witnesses on whose evidence the entire prosecution case rests, namely, Constables Muhammad Riaz, Rafaqat Ali (P.W.3 and P.W.4) and ASI Muhammad Iqbal (P.W.6). The to accused denied the allegation in their statements under section 342 Cr.P.C. As observed, the trial Court convicted them under section 10(2) of the said Ordinance.
3. After going through the entire evidence in detail with the assistance of the learned counsel, have reached the conclusion that the prosecution had not established their case against the appellants beyond reasonable doubt. If the case of the prosecution is to be believed, it would have to be admitted that the informer saw the couple in the van in an objectionable position, walked about to kilometres to the place where the police party was stationed and then the police went to the site and saw that on the road side pf a mettled busy road with light on inside the van a couple were committing Zina being naked. If the light was on at the the the informer saw the van, he would have seen what was going on and reported the same to the police but, according to the police witnesses, the informer had only mentioned that a van was standing at the road side in suspicious circumstance. If this is so, apparently the light in the van would not be on from which it would follow that when the informer first saw the van, the couple had not put on the light but after half an hour when the police party reached, the couple had put on the light and were in the process of committing Zina. The police witnesses have given such specific details of the couple committing Zina that an inference can be drawn that for several minutes they watched that process and the couple were not aware that they were being watched. The entire version as given by the police witnesses appears to be improbable.
4. Then several links are missing in the prosecution case. This could be the result of insufficient investigation. Firstly, no recoveries were made. According to the police witnesses, the to accused were without their Shalwars when they were seen. The Shalwars were not taken into possession.
Then no evidence was led about the van i.e., to whom it belonged; how it came to be standing at that particular spot at mid-night; whether it was regularly plying in the area; whether there were other people in the van as one of the prosecution witnesses had talked about the driver; if Nabeel Tahir had brought the van to the place of incident, from where did he get the van; did he hire the van and if so the person who had given the van on hire to Nabeel Tahir was not examined. In fact no evidence at all was led about the van except that it was standing there by the road side with the inner light on.
5. Then certain contradictions have been pointed out by the learned counsel and as observed, prosecution had not established its case beyond reasonable doubt and there are several missing links in the prosecution story which have not been explained.
6.Giving the benefit of doubt to the appellants, the to appeals i.e. Criminal Appeal No.262-L of 1994 and Criminal Appeal No.267-L of 1994 are allowed, the impugned judgment dated 17-8-1994 of the learned Additional Sessions Judge, Daska, passed in Hudood Case No. 12 of 1993, is set aside and it is directed that both the appellants, namely, Nabeel Tahir son of Muhammad Rafiq Ratta and Mst.
Sajida Akhtar wife of Muhammad Arshad Mochi, be released forthwith if not required in any other case. Mst. Sajida Akhtar had been granted bail by this Court. The bail bonds are discharged.