' These three appeals i.e, Criminal Appeal No,6/I of 2000 by Muhammad Javaid and 3 others, Criminal Appeal No,7/I of 2000 by Mst. Rehana alias Rubi and Criminal Appeal No,8/I of 2000 by Mst.
Naila and another are directed against the judgment and order of the learned Additional Sessions Judge, Rawalpindi, dated 14th January, 2000, in case F.I.R. No,271, dated 21st July, 1994 of Police Station Pirwadhai, Rawalpindi whereby they were convicted under section 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced each of them to 10 years' R.I. And a fine of Rs,10,000 and in default of payment of fine to suffer one year's R.I. Each. I propose to dispose of these 3 appeals by this single judgment in Criminal Appeal No,6/I of 2000.
2. Facts relevant to these appeals, briefly stated, are that Mujahid Hussain, S.H.O., Police Station Pirwadhai, Rawalpindi (P.W.1), on 21-7-1994 accompanied by Mulazim Hussain, A.S.-I. And other police officials was on patrol duty near WAPDA Chowk, Khayaban-e-Sir Syed when he received information that one Mst. Rehana alias Rubi rented a house for running a prostitution den and that men and women could be found present there at the relevant time for commission of the offence of Zina. Accordingly they rushed to the house and raided it. In the meantime he noticed Javaid and 3 others accused/appellants (Criminal Appeal No,6/I of 2000) who boarded Suzuki No,LOD/1415 and fled away. Tahir Sikandar, S.-I. (P.W.3) chased the Suzuki car in a police vehicle and apprehended all the 4 of them and brought them to the place of occurrence. In the meantime he conducted search of the house and arrested Mst. Rehana alias Rubi alongwith Mst. Naila daughter of Saeed Khan and Mst. Fauzia daughter of Ashiq Hussain present in the room in which there was lying two beds and a telephone set. The accused could not justify their presence. He drafted the complaint, Exh.P.A., and sent it to the police station for registration of the case. He also prepared the site plan, Exh.P.B., with all its notes. He also took into possession the car vide memo., Exh.P.C. All the 7 accused were arrested and charged for the offence. The female accused were got medically examined through Lady Dr. Tallat Mahmood (P.W.2). He took into possession a sealed parcel sent by the Medical Officer and sent the same to the Chemical Examiner for his opinion. The statements of the P.Ws. Were recorded under section 161, Criminal Procedure Code and on completion of investigation submitted the challan in Court for trial of the accused.
3. The accused denied the charge framed against them under sections 14, 10 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and wanted to face trial.
4. The prosecution in support of its case examined Mujahid Hussain, S.H.O. (P.W.1) who reiterated the contents of his complaint, Exh.P.A. Lady Dr. Tallat Mahmooda (P.W.2), W.O.M., Hospital Rawalpindi on 22-7-1994 medically examined Mst. Rehana alias Rubi, Mst. Naila and Mst. Fauzia. All the 3 ladies were found habitual in sexual intercourse. She took vaginal swabs and sent to the police station for onward transmission for chemical examination. Tahir Sikandar, S.-I. (P.W.3) Security Branch, Rawalpindi deposed that during the days of occurrence he was posted as S.-I. Police Station Pirwadhai and that he alongwith Mujahid Hussain, S.H.O. And other police officials on receipt of secret information raided the house of Mst. Rehana alias Rubi. He noticed the male accused 4 in number decamping from the spot in a Suzuki car. He followed and succeeded in arresting them and bringing them to the place of occurrence. During this period the S.H.O. Had arrested the three ladies accused. The Investigating Officer took into possession the Suzuki car vide recovery memo., Exh.P.C., to which he is signatory alongwith Mulazim Hussain, S.-I. Taj Muhammad, S.-I. (P.W.4) while posted at Police Station Pirwadhai on receipt of the complaint from the S.H.O. Registered the case vide F.I.R. Exh.P.G. Mulazim Hussain was, however, given up as unnecessary.
5. The accused were examined under section 342, Criminal Procedure Code. All the accused denied the allegation made against them in the complaint as well as in the evidence led by the prosecution. All the 4 accused, namely, Muhammad Javaid, Muhammad Ejaz, Shahid Ali and Sheikh Waqas denied their presence in the house for the purpose of prostitution. In reply to a question why P.Ws. Deposed against them it was stated that all the P.Ws. Are police officials and have concocted the story to show their "Karkardgi" {{URDU TEXT}} Mst. Rehana alias Rubi, accused/appellant also denied the allegation made against her that she was running a prostitution den. In her statement in reply to the question have you anything else to say she stated as under:-- ' "I am absolutely innocent and the story of the prosecution is based upon falsehood. The local police has implicated me falsely and unlawfully and also my co-accused who are all innocent. I had seen all other co-accused for the first time in police station. The prosecution could not produce an iota of evidence against me and my co-accused. The S.H.O. Mujahid Hussain has also confirmed this fact that none of the vicinity has confirmed for witnessed the whole episode of the prosecution. The Investigating Officer has also confirmed the fact that when he visited the spot he found nothing which has no value in the eye of law. I am innocent and facing the trial for about four years only on the basis of suspicion. We have been falsely implicated in the present case and all of us are innocent, the so-called venue stated by the prosecution is a thickly-populated area but none has been associated as a public witness. I am innocent and I may kindly be acquitted."
' However, no evidence was produced in defence.
6. The learned trial Judge relying on the allegation made by the S.H.O. The factum of arrest of Muhammad Javaid, Muhammad Ejaz, :Shahid Ali and Sheikh Waqas from the Suzuki car and the presence and arrest of Mst. Naila and Mst. Fauzia alongwith Mst. Rehana alias Rubi from the house in question further found that the statements of the accused were evasive and that acquittal prayed for by the defence counsel for non-observation of the mandatory provision of obtaining search warrant and association of person from the public of the locality also referred to the weakness and the trend of the cross-examination of the prosecution witnesses on material points and further relying on the statements of the accused under section 342, Criminal Procedure Code presumed that the accused were present there for no other purposes but for the commission of Offence of Zina. It was held that the prosecution was successful in proving as such that the place of occurrence is a prostitution den. Such being the case, according to the learned trial Judge, the right of privacy of Chaddar and Chardewari was not attracted to the present case and no search warrant was required. It was further observed that the ingress of S.H.O./Police Officer into such a place without search warrant is not unwarranted under the law. Similarly it was further held that association of public witnesses of the locality of the place of occurrence is unsignificant as witnesses from the public are scarred of joining police investigation. It was observed that mere possession and presence of the persons (2 ladies accused) to be used for prostitution or illicit intercourse is sufficient even in absence of any sole consideration and absence of blood stains or semen on their persons. That the presence of the accused in the circumstances at the prostitution den was sufficient to justify the conviction. Accordingly it was held that the charge under section 14 of the said Ordinance was established against all the seven accused through confidence inspiring and consistent evidence led by the prosecution. The medical reports available on file were to be exercised in futility and of no effect in the light of the ocular evidence. The charge under section 10 or 18 of the said Ordinance was, however, held to have been proved. Beside on such finding the learned trial Judge convicted and sentenced the accused/appellants.
7. It was contended by the learned counsel for the accused/appellants that the judgment and order of the learned trial Judge is based on surmises and conjectures; that this is a typical case of no evidence and that finding is based on assumption for which there had been led no foundation in the prosecution evidence. The learned trial Judge has based his finding on the assumption that the place of occurrence is a prostitution den and two ladies accused/appellants found in the house were hired for the purpose of prostitution though there is no iota of evidence in support thereof. It was contended that in spite of having prior information the S.H.O. (Investigating Officer) who conducted the raid did not obtain any search warrant and did not associate any one from the public which is violative of the mandatory provision of law. It was further contended that no one from the neighbourhood was examined in support of hearsay evidence, furnished to the S.H.O. By a "Mukhbir", excepting the police personnel, that the place raided was a prostitution den and use for immoral activities. It was further contended that circumstantial evidence also belies the prosecution case as no incriminating evidence was found inside the house. No sign of semen or blood was found either on the bedding inside the house nor on the clothes of the lady accused. No money was recovered from the person of the accused inside the house to advance the prosecution case of prostitution and letting out the ladies for money.
' It was contended by the learned counsel regarding the male accused/appellants that they were allegedly arrested from a motor car while they were driving away after having heard of the police raid and that they were arrested after the chase by Tahir Sikandar, S.-I. (P.W.3). Such allegation has not been supported by any evidence. No sign of any semen or blood was deducted on the Clothes which they were wearing and no money was recovered from their personal search.
8. After hearing both the learned counsel for both sides it would be appropriate to reproduce section 14 of the said Ordinance for proper appraisal of the evidence in the case. Section 14 reads as under:-- "Buying person for purposes of prostitution, etc.--- Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes and shall also be liable to fine.
Explanation.--- Any prostitution or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession such female with the intent that she shall be used for the purpose of prostitution."
' In order to prove the offence under section 14 of the said Ordinance reproduced it is to be established that the person found in the house i.e, Mst. Rehana, accused/appellant got possession of the two ladies namely Mst. Naila and Mst. Fauzia with the intention that they shall be employed for prostitution/illicit intercourse with persons for money or that they shall be used for any unlawful and immoral purpose.
9. The contention of the learned counsel for the appellants that the judgment and order of the learned trial Judge is based on surmises and conjectures; that this is a typical case of no evidence and that the finding of the learned trial Judge is based on the assumption that the place of occurrence is a prostitution den; that the two ladies found in the house were hired for the purposes of prostitution although there is not iota of evidence for drawing such an assumption; that in spite of prior information received by the S.H.O. He failed to obtain the search warrant and to associate person from the public and of the locality for conducting the raid is violative of the mandatory provision of law; that no one from the neighbourhood was examined in support of the allegation made against Mst. Rehana; circumstantial evidence totally belied the prosecution case as nothing incriminating was found either inside the house or on the person of the accused; that no money was recovered from the personal search of the inmates of the house and those allegedly arrested from the motor car, all have great force when looked into after going through the record.
10. In order to prove the offence under section 14 reproduced above it was the duty of the prosecution to have established that Mst. Rehana, accused/appellant was running a prostitution den and that she got possession of the two ladies namely Mst. Naila and Mst. Fauzia with the intention to employ them for prostitution/illicit intercourse with persons for money or to use them for any unlawful and immoral purpose. It was to be further proved that Mst. Rehana was keeping or managing the brothel house for such purposes. After satisfactionally proving these facts through legal evidence whereafter the explanation to the section relied upon by the learned trial Judge was to come into play. However, in the instant case no evidence was led that Mst. Rehana is a prostitute or that she was keeping or managing a brothel, therefore, the learned trial Judge's reliance on the explanation section 14 referred to above in proof of the prosecution case was uncalled for. The only evidence in the case, if any, is the spy information which has not been substantiated at trial.
Suspicion entertained by the S.H.O. Mujahid Hussain in his mind on spy information could not have been made basis for conviction. Not a single witness from the Mohallah/locality, who could be the best person to know, has come forward to depose that the house in question was used as brothel house and it was managed and run by Mst. Rehana.
11. As far as the case against Muhammad Javaid and three other appellants in Criminal Appeal No,6/I of 2000 is concerned there is no evidence whatsoever to connect them with the offence.
There is no evidence to prove that they were either seen entering the house in question and that too for illicit intercourse with the female accused/appellants on payment or that they were seen coming out of the house before they boarded the car. The circumstantial evidence is also fatal to the prosecution case as no money was recovered, either from the female accused/appellants or from the male appellants from their personal search, when they were apprehended/arrested. The Investigating Officer has categorically stated that when he entered the house he checked the bed- sheets lying on the cot but did not see any sign of suspected semen or staining of blood etc. Mujahid Hussain, who arranged the raid and investigated the case has further stated that no one from the vicinity appeared before him to testify that he had been the male accused/appellants entering the house of Mst. Rehana or leaving the house. He has further stated that he had meticulously checked clothes of the accused persons but did not find any suspicious stains of semen even on their clothes. The grievance of the learned counsel for the appellants that the dignity of man and privacy of home guaranteed by Article 14 of the Constitution of Pakistan has been flagrantly violated by the Investigating Officer is well-founded and the action taken in the manner is condemnable. The irresponsibility shown by the S.H.O. Is apparent from his statement in Court wherein he has admitted that WAPDA Chowk where he got the spy information is thickly- populated area but in spite of that he did not care to take any person to be associated with the raid as according to him, his sole purpose was to carry out the search of the residential house of Mst. Rehana, accused/appellant. He further stated that he did not carry any search warrant and he did not make any efforts to get a search warrant from the Illaqa Magistrate for the raid. The factual aspect of the case that no money was recovered from the personal search of all the six accused/appellants after their arrest presents a grave picture is considered in the light of suggestion put to the Investigating Officer that the belongings of the accused were usurped.
12. From all what has been stated above the irresistible conclusion which can be drawn from going through the evidence on record and going through the judgment of the learned trial Judge is that the conviction of the accused/appellants is based on surmises and conjectures. Accordingly all the three Appeals Nos.6/I, 7/I and 8/I of 2000 are accepted. The judgment and order of the learned trial Judge is set aside and the accused/appellants are acquitted of the charge. The appellants are present on bail. Their bail bonds stand discharged.