' DEEDAR HUSSAIN SHAH, J.---Criminal Petition No,17-K of 2000 and Jail Petition No,45 of 2000 are being disposed of by this common order as both are outcome of the same F.I.R. And same impugned judgment.
2. Brief facts of the case are that on 18-10-1997 Mst. Khursheed Bibi lodged a report at Police Station Korangi stating that on the night between 18th and 19th September, 1997, she along with her family was sleeping in her house and the door was kept open due to hot weather. At about 2-30 a.m. Four persons entered their house. Out of them two were armed with pistols whereas one had a mauser in his hand and the fourth one was empty-handed. All of them threatened the complainant and her family members and gave fists and kicks blows. It is further alleged that the accused tied their hands, searched the house and took away Rupees ten/twelve thousand. They also tied the hands and feet of her daughter Miss Shazia and all of them one after the other forcibly committed rape upon her in a room. Thereafter they went away issuing threats of grave consequences.
Complainant thereafter untying her hands went out to raise an alarm but found that the outlaws were standing with one Sabir Ali, who was working in the Ice Factory situated in front of their house.
Complainant due to fear and humiliation did not raise hue and cry. She, however, kept a track of the culprits and when she came to know that the culprits namely, (1) Rana Shahbaz, (2) Mohsin Abbas alias Jani, (3) Umer Daraz and (4) Irfan Ahmed (a neighbourer) had committed the offence at the instance of co-accused Sabir Ali, she lodged the report on 18-10-1997. The police started investigation and submitted charge-sheet before the trial Court.
3. After conclusion of the trial, Special Judge Anti-Terrorism Court, Karachi Division, convicted the petitioners and absconding co-accused Umer Daraz under section 395, P.P.C. And sentenced them to imprisonment for life and fine of Rs,10,000 each or in default to suffer R.I. For six months each. The petitioners were also convicted under section 10(4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and were sentenced to death. The trial Court also submitted reference for confirmation of death sentence before the High Court.
4. A learned Division Bench of the Sindh High Court while deciding the Appeal as well as Murder Reference upheld the conviction of the petitioners, namely, Rana Shahbaz, Mohsin Abbas and Irfan Ahmed, under section 395, P.P.C., modified the sentence to section 392, P.P.C. And reduced the sentence from life imprisonment to five years' R.I. Whereas, sentence of death against petitioners Rana Shahbaz, Mohsin Abbas and Irfan Ahmed was maintained. Sabir Ali accused was given benefit of doubt and while allowing his appeal sentence awarded to him was set aside.
5. We have heard Mr. M.A. Kazi and Khawaja Naveed Ahmed, Advocates Supreme Court for the appellants as well as Mr. Raja Qureshi, learned Advocate-General. Inter alia, it is contended by the learned counsel for the petitioners that according to section 8 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, evidence for proof of 'Zina-bilJabr' liable to Hadd shall be in one of the following forms, namely:-- "(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or
(b) at least four Muslim adult male witnesses, about whom the Court is satisfied having regard to the requirements of Tazkiyah-al-Shuhood that they are truthful persons and abstain from major sins (Kabir) give evidence as eye-witnesses of the act of penetration necessary to the offence." ' which is not forthcoming in this case. It was urged that accused Sabir Ali though implicated by the complainant as 'well as victim Mst. Shazia before the trial Court, he was acquitted by the High Court giving him benefit of doubt, whereas petitioners were wrongly convicted on same set of evidence. Learned counsel further submitted that the re-appraisal of the evidence is necessary for safe administration of criminal justice.
6. Mr. Raja Qureshi, learned Advocate-General, opposed the grant of the petitions and supported the judgment of the High Court of Sindh.
7. We have gone through the material placed on record and considered the arguments of the learned counsel for the parties. No doubt, the conviction is based on the evidence of the complainant as well as victim supported by medical evidence, ex facie requirement of at least four Muslim adult male witnesses is lacking in this case. It is also noteworthy that the High Court allowed appeal of Sabir Ali co-accused and exonerated him of the charge of "Zina-bil-Jabr". We are, therefore, inclined to allow these petitions for leave to appeal to consider the contentions of the learned counsel for the petitioners and also to re-appraise the entire evidence for the safe administration of criminal justice.
8. Petitions are allowed. Leave is granted to consider the above contentions.