ABDUL WAHEED SIDDIQUI, J.---This Criminal Acquittal Appeal was originally filed as Criminal Revision No,10/I of 1995: but in view of amendment in subsection (2-A) of section 417, Cr.P.C., it was converted to an appeal vide orders of this Court dated 23-4-1995. On 18-3-1996 the learned counsel for the parties stated that civil suits for jactitation of marriage filed by Respondent No,2 (Mst. Mukhtar Begum) and suit for restitution of conjugal rights filed by appellant (Muhammad Safdar) were pending decision in the Court of Civil Judge, Chakwal. It was found that the decision of these suits had some bearing on the present criminal appeal before this Court, it was appropriate to await the decision of the suits. The said Civil Judge was directed to finalise the proceedings in the suits expeditiously vide orders of the Court dated 18-3-1996.
In the appeal before us, the judgment which has been impugned was delivered by the court of Sessions Judge, Chakwal on 13-2-1995 whereby the said Court acquitted both the respondent Nos.1 and 2 from the charges under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance 1979, hereinafter referred to as the said Ordinance.
2. Succinctly, the story of prosecution is that appellant Muhammad Safdar (P.W.1) lodged a complaint (Exh.PA) on 17-5-1993 at 5-35 p.m. at Police Station Saddar, Chakwal, complaining therein that he was married with Respondent No,2 (Mst. Mukhtar Begum) about 13 or 14 years back.
Out of wedlock 5 children had taken birth, out of whom one son and two daughters were living.
Since he was ailing from gout, his wife took undue advantage out of this circumstance and developed illicit relationship with the respondent No,1 (Sajawal Khan), since about one year before the complaint. She was being prohibited from this dirty affair, but she did not listen. On 16-5-1993 the complainant went to sleep after dinner, but at about 1100 hours in the night Allah Dad (P.W.2) the father of the complainant, Ghulam Hussain (P.W.3), a neighbour of the complainant, and Muhammad Yasin came to the complainant/appellant and informed him that his wife (Respondent No,2) has been abducted by Sajawal (Respondent No,1). The complainant tried to rescue his wife, but could not succeed.
3. Both the respondents Nos.1 & 2 were arrested and charged under Article 10(2) and respondent No,1 was additionally charged under Article 16 of the said Ordinance to which they did not plead guilty. Prosecution examined 10 witnesses and both the respondents/accused gave their statements under section 342, Cr.P.C. and declined to be examined on oath. They did not produce any witness in defence. However, Respondent No,2 Sajawal produced in his defence certified true copy of a judgment dated 18-3-1993 delivered by Civil Judge Class III, Pind Dadan Khan in Civil Suit No,57 of 1993 (Re: Mst. Mukhtar Begum v. Muhammad Safdar) as Exh. DB.
4. We have heard the learned counsel for appellant, respondents and State. The learned counsel for appellant has contended that it is established from the evidence on record that on the day of occurrence respondent No,2 was a legally wedded wife of the appellant and left her home to live a sinful life with her paramour, the respondent No,1; that respondent No,1 appears to be active every where and an ex parte judgment and decree in a suit for jactitation of marriage was arranged by him through tricks and misrepresentation; that the report of chemical analyzer corroborates the prosecution; that if respondent No,2 was admitted in Darul Aman after the date of occurrence a circumstance is created which holds both the paramours guilty of Offence under Article 10(2) of the said Ordinance; that the deposition of Secretary Union Council inspires confidence; that medical report corroborates the prosecution; that the evidence on record proves that swabs are from different origin and that the same seem to have been procured; that there is no report of serologist; that reliance has been placed on inter alia, 1993 PCr.LJ 234, 1993 PCr.LJ 119; 1993 PCr.LJ 2153. The learned counsel for respondents have contended that in cases of criminal acquittal appeals/revision the rule is that of double presumption of the innocence of acquitted accused; that the evidence proves that on the alleged day of occurrence and many months prior to that respondent No,2 was not residing with her husband, the appellant, as he had divorced her; that at any rate other versions of the story are not ruled out and that the impugned judgment is neither shocking nor ridiculous nor artificial nor perverse.
5. At the outset, the first question which needs attention is the resolution of the presence of respondent No,2 (Mst. Mukhtar Begum) in the house of appellant on the day of incident i,e, on 16-5- 1997 upto the time the appellant took his dinner and went to sleep. This is clearly indicative from the complaint (Exh.PA) and F.I.R. in which no complaint is made of the disappearance of respondent No,2 before the dinner and sleeping time. The only complaint is made of that of development of her illicit relationship with respondent No,1 since about one year and prohibitions from the complainant's side. The complaint and F.I.R. also indicates that the appellant came to know about the elopement of his wife, respondent No,2 at 1100 hours in the night when his father Allah Dad (P.W.2), Ghulam Hussain (P.W.3) and Muhammad Yasin informed him about the offence.
In his deposition as P. W.1, the appellant is developing a different version. During cross he has replied to certain suggestions:-- "My father was sleeping in the court-yard of the house on the fateful night. I was sleeping in my room. My father woke me up. After passing the news about the disappearance of Mst. Mukhtar Begum accused to me, my father and the other witnesses set-out in her search and returned unsuccessful at about morning prayer time. They tried to search her in the morning as well but to no avail. I approached the police with my application at 9/10 a.m. on 17-5-1993. My father had application Exh. PA scribed at my instance but I cannot tell the name of the scribe. It was written in my absence. I had instructed my father to get it recorded in the application that I did not cohabit with my wife Mst. Mukhtar Begum accused for the last one year because of ailment. (Confronted with Exh.PA wherein this fact is not recorded)."
During examination-in-chief, this very appellant has given a different story about the complaint (Exh.PA) and other particulars. He is deposing.
"On 16-5-1993, when I was sleeping in the house during night, my father woke me up at about 11 p.m. and inquired about my wife, Mst. Mukhtar Begum accused. Ghulam Hussain and Muhammad Yasin, P.Ws., were with my father, Allah Dad P.W., at that time. I looked for Mst. Mukhtar Begum accused but she was not in the house. The witnesses then told me that she had eloped with Sajawal Khan accused and they had seen them going together on the same night. On this, I moved application Exh.PA which was written on my instance and signed by me at Police Station Saddar, Chakwal on 17-5-1993 and had the case registered."
Allah Dad (P.W.2), father of the appellant, is yet giving another twist to the story of prosecution in the following words: "On 16-5-1993, while sleeping in the court-yard of the house during night, I heard noise at about 11 p.m and got-up to see Mst. Mukhtar Begum accused going out of the house. Sajawal Khan accused was standing outside with a motor-cycle. He made Mst. Mukhtar Begum accused board the motor-cycle and sped away towards North. An electrict bulb fixed at the house was on at that time and I saw the occurrence in its light."
During cross, he has replied to certain suggestions which replies appear to be unnatural and tutored one. About complaint (Exh.PA) he has given a statement in total conflict with the deposition of appellant (P.W.1), his son. He is stating: "Ghulam Hussain P.W. is my first cousin... I got-up on hearing the crinking gate. I saw Mst. Mukhtar Begum accused leaving the house for the first time when she was unlatehing the door. I neither called her nor tried to apprehend her. I did not follow her either but simply stood in the gate of the house. I was in the gate for a minute or two when Ghulam Hussain and Muhammad Yasin P.Ws., came. By that time, the accused had gone out of sight. The house of Ghulam Abbas above is about 150 yards from my house. I do not know when application Exh.PA was written or who was its scribe as I remained in the house when Muhammad Safdar went to report the matter."
Ghulam Hussain (P.W.3), another alleged ocular witness and as admitted by Allah Dad (P.W.2) his first cousin has indulged into misstatement under oath before the trial Court in the following words:-- "I mentioned in my statement before the police that a bulb was on at the house of Ghulam Abbas and we saw the accused in its light. (Confronted, not so recorded in Exh.DA, the statement dated 17-5-1993 under section 161, Cr.P.C.). I did not see the accused cohabiting with each other."
As is clear from the abovementioned piece of evidence, he is not an ocular witness of zina admittedly.
In view of these different and partly conflicting versions of the story of prosecution as deposed by the star witnesses, coupled with the following circumstances do bring us to the conclusion that Respondent ' No,2 was not living with the appellant on the day of incident and, therefore, no question of elopement with the appellant on the fateful day arises.
(a) Appellant has admitted the existence of a suit for jactitation of marriage instituted by respondent No,2 at Pind Dadan Khan earlier to the institution of his suit for restitution of conjugal rights against respondent No,2. Record indicates that this suit for jactitation of marriage was instituted on 7-2-1993 i,e, more than three months prior to the date of incident declared in the present case i,e, 16-5-1993. Even otherwise, the title of the suit exhibited as a part of Exh.D.B in itself indicates that the suit was instituted in the Court of Civil Judge, Pind Dadan Khan on 7-2-1993, registered as Suit No, 57, and was decreed on 18-3-1993 and at that time the respondent No,2 (Plaintiff in the said suit) was residing at village Gujar Tehsil Pind Dadan Khan. To question No,7 in - statement under section 342, Cr.P.C. respondent No,2 has made a reference to this suit. She is replying: "I have fallen prey to my vindictive ex-husband, Muhammad Safdar P.W. who has master-minded this false case against me. In fact, he divorced me in 1992 and then started claiming me as his wife again. I filed a suit for jactitation of marriage against him at Pind Dadan Khan. Sajawal Khan accused and his son-in-law appeared as my witnesses in the suit which was decreed ex parte. The ex parte decree was later set aside and the case is now pending adjudication at Chakwal."
Appellant himself has not come forward with any explanation regarding the existence and even decree of this suit for jactitation of marriage on the date Hof occurrence except that the respondent No,1 and his son-in-law Muhammad Sabir appeared as the witnesses for her in the said suit. But this appearance of respondent No,1 and his son-in-law as witness in the suit for jactitation of marriage has no nexus with the story of the prosecution. On the contrary, it indicates that at least three months prior to the alleged date of incident, she had instituted a suit for jactitation of marriage claiming therein that she was divorced at least one year prior to the alleged occurrence in 1992 and the suit was already decreed two months before the institution of the present criminal case. How can it be believed then that under these circumstances, respondent No,2 was living with the appellant as a wife on the date of incident.
(b) it appears from an application filed in the Court of llaqa Magistrate Chakwal on 22-5-1993 by the Respondent No,2 that after divorce from appellant, she was residing with her parents, but since her parents were greedy persons, and earlier she was betrothed with the appellant by her parents after having received money, and now that her parents intended to get her married with someone else after taking money, she has left the house of her parents on 16-5-1993 and is residing with her friend Kulsoom. But even there she is apprehending murder, so she prayed to be sent to Darul Aman. She was asked certain necessary questions by the learned Court and after having judiciously satisfied itself, ordered on 22-1-1993 for her lodgment into the Darul Aman and it was also directed in the said order that none should be permitted to meet her in the Darul-Aman without permission from the Court. With this document none from amongst the respondents was confronted. Hence it goes unchallenged specially when it is corroborated by the record of Darul Aman, Rawalpindi which was called and checked by us and the photocopies of the relevant pages have been kept on the record. According to the said register, at entry No,3307 Mukhtar Begum D/o Allah Ditta, aged 30, was lodged in the said Darul Aman w,e,f, 22-5-1993 at 6-30 hours and remained there upto 23-6-1993 and was brought by Haroon Ahmed, A.S.I. Chakwal. We have not found any interpolation in this record to the extent of pages we have checked. In view of this situation the only conclusion which can safely be drawn is that respondent No,2 had not eloped from the house of appellant on 16-5-1993 after the dinner time, but rather she had left the house of parents on the said date and then apprehending attack on her life got herself lodged into the Darul-Aman on 22-5-1993 for her own security.
(C) In his suit for restitution of conjugal rights instituted by the appellant, the plaintiff husband has alleged that respondent No,2 left his house of her own without any justification. Although this suit was instituted much later than the present criminal case, no allegation of elopement or enticement has been brought on the record. Even this suit was dismissed on 23-4-1996 by the Judge, Family Court Chakwal.
6. After having found that there are other Versions of the story of prosecution possible, the only point which remains for resolution is that which has been argued vehemently by the learned counsel for appellant while relying heavily on the medical and chemical evidence. Babar Hussain (P.W.10), Investigating Officer of the case, has deposed that he secured the custody of respondent No,2 from Darul Aman, Rawalpindi on 24-5-1993, and got her medically examined on the same day.
The doctor gave him a sealed envelope and a sealed phial containing vaginal swabs of the examinee which were deposited with moharrir Malkhana for safe custody and the examinee was returned to Darul Aman on the same day. Atta Muhammad constable No,248 (P.W.7) is deposing that he received a sealed envelope and a sealed phial pertaining to this case on 25-5-1993 from Shafqat Mahmood, Moharrir/H.C. and then delivered them intact to the Chemical Examiner, Rawalpindi on the next day i,e, on 26-5-1993. In conflict to this position, the Report of the Chemical Examiner, Rawalpindi dated 29-5-1993 (Exh.PD) is indicative that a packet consisting of one sealed bottle was received by the laboratory on 25-5-1993 which contained 3 vaginal swabs and were found to be stained with swa bs. In view of this position, it is clear that the swabs about which Report of Chemical Examiner (Exh.PD) is positive do not pertain to Mst. Mukhtar Begum, Respondent No,2. These appear to be procured ones. Hence, then a reply to a question No,6 asked from this respondent in her statement under section 342, Cr.P.C. inspires confidence. Both the question and reply are reproduced:-- "Q. It is in evidence that after your arrest, you were medically examined by Dr. Abida Yasmin P.W. at the D.H.Q Hospital, Chakwal on 24-5-1993 and your vaginal swabs taken at that time were declared stained with semen by the Chemical Examiner through his report Exh.PD. How would you account for the same particularly when you claimed to have been divorced by Muhammad Safdar P.W. way-back in 1992?
Ans. I was no doubt medically examined but dispute the findings of the Chemical Examiner about the presence of semen on my vaginal swabs. The report has been manoeuvred by the police in order to create evidence against me."
7. In the circumstances as discussed above and keeping in view the following principle enunciated at placentium A of 1994 SCM R 1928 by the C Supreme Court of Pakistan, we had dismissed this appeal by a short order dated 9-4-1997.
"This is a petition for leave to appeal against acquittal. Considerations for interference in an appeal/petition against acquittal and in an appeal/petition from conviction are altogether different. The well-settled principles for the appreciation of appeals against acquittal are---
(i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;
(ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a . different conclusion; (iii)that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;
(iv) that unless the judgment of acquittal is perverse and the reasons, therefore, are artificial and ridiculous, the Supreme Court would not interfere; and
(v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose."
Apart from these principles, we are bound by the principles inter alia, enunciated by Superior Courts and cited as 1996 SCM R 188, PLD 1983 SC 73, PLD 1993 SC 23 and feel also pursuaded by PLD 1992 SC (AJ&K)
13. These are the reasons for our short order mentioned above. Appeal is dismissed.