KHAWAJA MUHAMMAD SHARIF, J.--- This, judgment will dispose of Criminal Appeal No,954 of 1999 filed by Fakhar Abbass, Qaiser Abbass, Sadiq Hussain, Mazhar Abbass and Muhammad Shahbaz, appellants who were convicted and sentenced to death under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by learned Judge, Special Court, Faisalabad Division, Faisalabad constituted under Anti-Terrorism Act, 1997 vide his judgment, dated 13-9-1999.
Reference No,361/T of 1999 for confirmation of death sentence of appellants shall also be disposed of through this judgment.
2. Occurrence in this case had taken place in the revenue estate of Chah Beliwala, Mauza Hasnana, 7 kilometers away from Police Station Kotwali, District Jhang at 11/12 noon on 29-3-1999 while the matter was reported to police by Shamas-ul-Haq (P.W.9) at 4-00 p.m. Vide Exh.P.L. On 30-3-1999 and the formal F.I.R. Exh.P.L./1 was recorded by Qadeer Ahmad, Muharrir (P.W.7) on the same day.
3. Brief facts of the case were that Shamas-ul-Haq, complainant is real uncle of Mst. Kausar Perveen. She at 11/12 noon of 29-3-1999 was going towards Basti Beeliwala. When she reached near the tree of Fida Hussain, Fakhar Shah said to her that she was being called by a woman who was present in the room. Upon this, Kausar Perveen went into the room and thereafter, Fakhar Shah, Shahbaz, Sadiq, Qaiser and Mazhar who were already sitting under the tree, went into the room.
Shalwar of Kausar Perveen was removed and all the five accused committed Zina-bil-Jabr with her. Upon hue and cry, Muhammad Sharif and Moamar Sajjad attracted to the place of occurrence and witnessed the occurrence.
4. After registration of the F.I.R., Aman Ullah, S.-I. (P.W.10) proceeded to the place of occurrence, took into possession 13 pieces of bangles P.1/1-13 vide memo. Exh.P.A. And arrested Fakhar Abbass, Sadiq Hussain Shah, Shahbaz and Mazhar on 6-4-1999. After completion of the investigation, all the five accused were challaned to face the trial.
5. Prosecution in order to prove its case produced 10 witnesses in all out of whom Shamas-ul-Haq (P.W.9), Muhammad Sajid (P.W.2) and Muhammad Sharif (P.W.3) were eye-witnesses while the lady doctor who conducted medical examination of Kausar Perveen was examined as P.W.4.
Report of the Chemical Examiner is Exh.P.D. Thereafter, statements of the appellants were recorded under section 342, Cr.P.C. After the conclusion of trial, all the five, appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants has read before us the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And submits that all the three eye-witnesses, namely, Shamas-ul-Haq, real uncle of the victim (P.W.9), Muhammad Sajid (P.W.2) and Muhammad Sharif (P.W.3) had not supported the prosecution case before the trial Court; Kausar Perveen while being examined as P.W.1 had admitted in cross-examination that she did not know the names of the accused and could not identify them at the time of occurrence as the accused had muffled their faces and that no identification parade was held in this case. Further, submits that Fakhar Abbass and Qaiser Abbass are real brothers and it does not appeal to sense that two real brothers alongwith others would commit Zina-bil-Jabr with one woman and that the prosecution has miserably failed to prove its case against the appellants.
7. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and supports the judgment of the trial Court.
8. We have heard learned counsel for parties and have gone through the prosecution evidence.
Under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 only death sentence is provided. Court has to be very careful while convicting a person on such a charge and has to satisfy that the evidence produced by the prosecution is sufficient to connect the accused with the commission of such a heinous offence. In the instant case, Shamas-ul-Haq (P.W.9) is real uncle of Kausar Perveen, victim. He has categorically exonerated the appellants and did not support the prosecution case, that is why, he was declared hostile. The other two eyewitnesses, namely, Muhammad Sajid (P.W.2) and Muhammad Sharif (P.W.3) have also not supported the prosecution case. After this, we are now left only with the statement of Mst. Kausar Perveen (P.W.1).
Although, she had stated in her examination-in-chief that the accused present in Court had committed Zina with her, on her hue and cry, Shamas-ul-Haq, Shajoo and some other persons came there and rescued her from the accused but in cross-examination admitted that she did not know the names of the accused present in Court and that at the time of occurrence she could not identify them as the accused had muffled their faces. How the victim recognized the accused and as to how she came to know their names when no identification parade was held. It also does not appeal to a man of ordinary prudence that two real brothers alongwith others would commit Zina together. How on the basis of such evidence we can hang five persons. In our opinion statement of Kauser Perveen (P. W.1) is not corroborated by any other eye-witness including her real uncle Shamas-ul-Haq, complainant of the case. Prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and appellants have been able to create dents in prosecution case, the benefit of which must, as a matter of right and not a grace, should go to the appellants. Resultantly, all the five appellants are acquitted of the charge, conviction and sentence awarded to them by the trial Court is set aside by accepting their appeal, they are behind the bar and shall be released forthwith, if not required to be detained in any other case.
Reference is answered in the negative.
Death sentences are not confirmed.