' Criminal Appeal No,12/P of 2001 by Kamran Khan, Criminal Appeal No,16/P of 2001 by Sanaullah and Criminal Appeal No,17/P by Mst. Razia and Mst. Shazia are directed against the common -judgment and order, dated 24-4-2001 passed by the learned Additional Sessions Judge, Bannu, whereby the appellants were convicted under section 10(2), Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, (hereinafter referred to as above the said Ordinance) and sentenced each one to eight years' rigorous imprisonment with 20 stripes and to pay a tine of Rs,20,000 or in default of payment of fine to undergo two years' rigorous imprisonment, each Mst. Razia and Mst. Shazia were further convicted under section 13 of the said Ordinance and, sentenced each one to undergo 10 years' rigorous imprisonment with 20 stripes and to pay a fine of Rs,20,000 or in default of payment of fine to further undergo two years' rigorous imprisonment, each. The sentences were ordered to run concurrently and they were extended the benefit of section 382-B, Criminal Procedure Code.
2. It may be briefly stated that Nazir Shah, S.H.O. Police Station City Bannu, sent a Murasila ,Exh;P.A./1 to the police station for registration of the case which was incorporated in to F.I.R. 1156, dated 7-9- 1992 by Bashir Khan, A.S.-I'. It was reported by Nazif Shah, S.H.O., that on the day and time of occurrence he accompanied by Mir Qabaz No,588, Gulo Khan, H.C. No,77 of Mahboob; D.F.C. No,1043 were on Gusht duty near Qasaban Gate when an informer told him that one Mustafa, running a shop on Zanana Hospital Road, supplied two Burqa Clade ladies to Sanaullah and Kamran for Zina purpose and they took those ladies to a house situated in Jadid Abadi and that they are busy in committing Zina. In the meantime Muhammad Iqbal S.-I./A.G.O. Arrived, he took him alongwith him obtained a search warrant and raided the house. In a room inside the house he saw Mst. Razia wife of Gul Bahadar and- Mst. Shazia daughter of Gul Bahadar busy in committing Zina with Sanaullah and Kamran respectively on mattress (Tolai). They had untied their Shalwars. He saw the actual penetration by both the accused at that time. On seeing the police party the accused got up and were apprehended/arrested. He took into possession the mattress P.1 having suspected stains and seat used as pillow vide memo. Exh.P.C. And also took into possession a Shalwar P.1 of Kamran, vide memo. Exh.P.C./1. He also took into possession three phials P.3. Containing cut pieces of Shalwars and swa bs through. Cotton, of Kamran and that of Sanaullah accused, duly sealed by the doctor vide memo. Exh.P.C./2; one Shalwar belonging to Mst. Razia P.4 stained with semen vide memo.
Exh.P.C./3; a Shalwar of Mst. Shazia P.5. Stained with semen, vide recovery memo.Exh.P.C./4. Similarly he took into possession one Banyan of white colour P.6, of Sanaullah having semen stains, vide recovery memo. Exh.P.C./5. He took into possession cut pieces cotton and cloth of mattress (Tolai)
P.8, stained with semen, vide recovery memo. Exh.P.C./6. He sealed the abovementioned articles into parcels in the presence of marginal witnesses. He prepared the site plan Exh.P.B. With its footnotes, recorded the statements of the .P.Ws. And sent the accused to the hospital for their medical examination. He also sent the above incriminating articles through an application to Chemical Examiner for analysis. The case was then transferred to S.H.O. Police Station Cantt. Bannu as the place of occurrence was situated within the jurisdiction of Police Station Cantt. Bannu..
Muhammad Younas. Then S.H.O. Police Station Cantt. (P.W.1), on receipt of the case file registered the case, vide F.I.R. No,46, dated 27-10-1992, at Police Station Cantt. Bannu and submitted complete challan against the accused.
3. The accused were formally charged for the offence on 8-12-1993 by the learned trial Court. The accused denied the charge and wanted to face trial. The prosecution in support of its case examined Muhammad Younas, S.-I. F.I.A. (P.W.1), who had submitted complete challan against the accused. Bashir Khan, A.S.-I. (P.W.2) on receipt of the Murasila Exh.P.A./1, incorporated the same into F.I.R. Exh.P.A. Doctor Abdul Wadood. Medical Officer D.H.Q. Hospital. Bannu (P.W.3) medically examined Kamran Khan and Sanaullah Khan, accused/ appellants. Muhammad Iqbal, A.G.O., Special Branch, Bannu (P.W.4) stated to have accompanied the S.H.O. In conducting the raid and is a marginal witness to the recovery memos. Exh.P.C./1 to Exh.P.C./5. Gulo Khan, I.H.C. (P.W.5) is also a marginal witness to the recovery memos. Exh.P.C./1 to Exh.P.C./5. Kalabat Khan, L.H.C. (P.W.6) stated to have accompanied the S.H.O. At the time of raid and further stated that when they reached the house in question its main outer door was closed, therefore, as ordered by the S.H.O. He scaled over the wall, opened the smaller door of the main gate through which the S.H.O. Entered the house. He further stated that the door of one of the rooms inside the house was opened and as that the room was connected through a smaller door with the room in which the offence was being committed, therefore, they entered the room and saw the accused busy in committing Zina. Nazif Shah, S.H.O.
(P.W.7) reiterated the contents of the Murasila incorporated in the F.I.R. Exh.P.A., and stated that he had personally seen the accused committing the offence and even the actual penetration. He took into possession the articles mentioned in the recovery memos. Exh.PC./1 to Exh.P.C./5, stated above.
Mir Qabaz, L.H.C. (P.W.8) also stated having accompanied the S.H.O. While conducting the raid. Dost Muhammad. Khan, S.-I. (P.W.9) deposed that he took Mst. Shazia and Mst. Razia to female hospital for their medical examination. After their medical examination he handed over the- medical reports to the Investigating Officer. Zubaida Khanum, W.M.O. (P.W.10) examined the female accused on 7-9-1992.
4. After close of the prosecution evidence the accused were examined under section 342, Cr.P.C.
Code. Sanaullah, accused/appellant when questioned that he and his co-accused Kamran and the lady co-accused were arrested while committing Zina, he denied the same. He also denied the incriminating evidence put to him and stated that the report of the Chemical Examiner and medical reports did not support the prosecution case; that the witnesses are police personnel under the influence of the S.H.O.; that neither the occurrence has taken place nor the P.Ws. Have witnessed the same. He further stated that Kamran Khan is his friend who used to come to his house. That on the day of the alleged occurrence, the police entered his house when Kamran, the co-accused, was present with him. The two female accused were with the police sitting in the jeep parked outside the house. They were brought by the Investigating Officer. He and his friend were arrested and taken to the police station. The S.H.O. After consultation registered the present case against them. He further stated that his house falls within the jurisdiction of Police Station Cantt. But the S.H.O. Police Station City illegally arranged a raid arrested and registered the case against them. They objected that the house falls within territorial jurisdiction of Police Station Cantt. But in spite of that the S.H.O. Of Police Station City proceeded with the case against the accused. It was at a very late stage that action was taken on their application submitted to the I.-G.P. And D.I.-G and the case was transferred to Police Station Cantt. For investigation. Although the case was transferred to Police Station Cantt. For investigation. However, the S.H.O. Police Station Cantt. Made no fresh investigation but he simply submitted complete challan in Court against them. He further stated that all the P.Ws. Are police officials under the influence of the S.H.O. And they were compelled to follow the dictates of Nazif Shah, Investigating Officer. He further stated that the entire story is false. The Investigation Officer did not associate Mustafa, who had allegedly supplied the two lady to the accused and who had been specifically named in the F.I.R. Is a imaginary person
5. Kamran Khan accused also denied the incriminating evidence put to him and stated that Nazif Shah Khan, S.H.O. Has falsely involved him in the present case in order to disgrace him and his family because his father is a Senior Advocate, representing the plaintiff in a Civil Suit for recovery of rupees three lacs as damages against Nazif Shah Khan, S.H.O. And other police officials in the Court of Senior Civil Judge, Bannu, the file of that suit, had been requisitioned by the trial Court at his request. He further stated that he is innocent and has been falsely implicated in the present case for the reason mentioned above.
6. The learned trial Judge relying on the prosecution evidence, found the accused guilty, convicted and sentenced the accused/appellants to the term of imprisonment and fine stated above.
7. I have heard the learned counsel for the appellants and the learned counsel appearing for the State and have gone through the record with their assistance.
8. It was contended by the learned counsel for the appellants that the conviction of the appellants on the face of the record is illegal and is based on surmises and conjectures; that the prosecution totally failed to prove its case against the accused beyond reasonable doubt; that the , evidence has not been properly appreciated and that the judgment suffers from misreading and non- reading of the material prosecution evidence. That the material contradictions in the statements of the prosecution witnesses have not been taken into consideration in appraising the evidence; that the plea of the accused/appellants which is supported by the medical evidence and the report of the Chemical Examiner has been totally ignored; that the Investigating Officer has made material improvement in the prosecution case set up in F.L R. That the witnesses who are subordinate to the Investigating Officer, were tutored to depose falsely in order 'to justify the material improvements made by the Investigating Officer in his statement.
9. The prosecution case on facts and circumstances entirely rests on the ocular evidence furnished by the Investigating Officer and other police employees. No person from the locality has appeared to support the prosecution case though the alleged occurrence took place on a broad daylight in a highly busy area in the Cantonment. As far as the ocular. A evidence in the case is concerned, the most important of it is the statement of Nazif Shah, S.H.O. And also the Investigating Officer (P.W.7) and Muhammad Iqbal, A.G.O. (P.W.4). The statements of both these witnesses are contradictory in material particulars. In the Murasila sent by P.W.7 just after the occurrence he has stated that on the receipt of information that one Mustafa shopkeeper supplied the two female accused to the male accused and soon thereafter Muhammad lqbal P.W. Also arrived and met him and thereafter both of them left for obtaining a search warrant of the house. After getting the search warrant they went inside the house and saw the accused busy in committing Zina. The Investigating Officer later on considering that how could it be possible to believe that they enter the house unnoticed as the accused might have taken up precaution as is natural in such cases, that somebody may not enter the premises and see them indulging in the offence and closed the doors, a material improvement was made by introducing a cooked up story that Kalabat Khan, (P.W.6) was deputed to scale over the wall who did so and opened the door from inside making their entry possible unnoticed by the accused. Muhammad Iqbal (P.W.4) in his statement, however, did not support the complainant that he had accompanied the Investigating Officer to Katchery for obtaining a search warrant. Challenging the association of Muhammad Iqbal, (P.W,4), later on brought into picture, in the raid he was thoroughly cross-examined, who not only denied the fact of search warrant having been obtained in his presence gave evasive answers to all the questions put to him with reference to the location of the raided house, which makes his association in the raid highly doubtful. The fact that the Investigating Officer had directed Kalabat Khan to scale over the wall, does not find place in the F.I.R. Similarly Kalabat Khan (P.W.6) when confronted with his statement recorded under section 161, Criminal Procedure Code, has not stated that he had scaled over the wall and opened the door from inside making the entry possible. Similarly the other P. Ws. Who accompanied the Investigating Officer, did not state that Kalabat Khan scaled over the wall and opened the door from inside the house. Gulo Khan, I.H.C. (P.W.5) as already pointed out, has stated that he was on Gusht with the Investigating Officer alongwith Muhammad lqbal, P.W. And other police employees outside Qasaban Gate, when the S.H.O. Was informed of the offence being committed hence they proceeded to the spot but in the cross-examination the witness deposed that on receipt of the information the S.H.O. Applied to Magistrate for a search warrant and after obtaining the search warrant they proceeded to the spot. He further stated that the place where the information was conveyed to the S.H.O. Was about three thousands paces away from the place of occurrence. The witness has also stated that when they reached the premises the main gate of the house was closed from inside, the S.H.O. Directed Kalabat Khan, F.C. (P.W.6) to scale over the wall. He too was confronted with his statement recorded under section 161, Criminal Procedure Code,, the sealing of wall was omitted. The witness further stated that the female accused are mother and daughter inter se. He further stated that he saw female accused lying on a single mattress with a single pillow and the accused busy in intercourse. Muhammad Iqbal, (P.W.4) on the other hand stated that in his presence an informer came and informed the S.H.O. Of the offence, wherefrom he accompanied the S.H.O. Straight to the house in question. He did not state that he proceeded with the S.H.O. To the Court of the Magistrate for obtaining the search warrant, rather it was stated that the S.H.O. Had already obtained the search warrant, meaning thereby that it was before the informer informed the Investigating Officer of the commission of the offence. Mir Kabaz, L.H.C.
(P.W.8) also did not state that the S.H.O. Had directed Kalabat Khan F.C., to scale over the wall. The introduction of the facts of Kalabat Khan, P.W., having scaled over the wall for opening the main gate which was closed and of obtaining search warrant from the Magistrate, are material improvements in the prosecution evidence which reflect adversely on the investigation being honest. Such improvement was made after deliberation and consultation to show that they had seen the accused committing the offence. The statements of the prosecution witnesses that they had seen the actual penetration while the accused were busy in committing Zina, on the fact of the record appears highly improbable. The time consumed in approaching the Magistrate for obtaining the search warrant and the time consumed, in covering the distance between the place of occurrence an the place where the information was given to the Investigating Officer has also not been explained. In these circumstances how can it be believed by a man of ordinary prudence during all this exercise when the outer gate of the house was found closed, even then he was able to witness the commission of Zina. His statement that after the main door was opened he entered the room and found the accused busy and that too On one mattress.
10. As far as the medical evidence and the Report of the Chemical Examiner, neither the medical evidence nor the report of the Chemical Examiner supports the prosecution case Lady Doctor Zubaida Khanum (P.W.3) who examined Mst. Razia accused/appellant on 7-9-1972, opined as under:-- ' No sign of violence at the body and perineal area. Hymen absent.
' On P/V examination OS petulous, Ut; Multiparious Antiverted.
' Vaginal swa bs were taken and sent to the Chemical Examiner, to conform fresh intercourse and the report whereof is Exh.P.W.10/2. The medico-legal report is Exh.P.L.1. Similarly she examined Mst.
Shazia and found as under:-- ' Hymen absent. No fresh hymenal tears.
' No sign of violence on the body and perineal area.
' Vaginal swa bs were taken in order to confirm fresh intercourse. The swabs taken were sent to the Chemical Examiner. The report of the Chemical Examiner is Exh.P.W.10/1, Medico-legal report is Exh.P.L./2. The lady doctor affirmed that semen could remain in the vagina for about fifteen days after sexual intercourse.
11. Doctor Abdul Wadood, M.O. (P.W.3) examined Kamran Khan on 7-9-1992 at 1-15 p.m. And found no mark of violence on the skin of penis. No semen stains were there. Three urethral swabs and piece of cloth suspected having semen stains were taken and handed over to the police for test in the laboratory. The report is Exh.P.M. He also medically examined Sanaulalh on 7-9-1992 .At 8-15 p.m. The report in his case is Exh.P.N.
12. The Chemical Examiner has received the following parcels; P.No,l. Suspected seminal stained piece of cloth and cotton. P.No,2. One suspected seminal stained white Banyan. One suspected seminal stained white Shalwar.
P.No,3. One suspected seminal stained white Shalwar.
P.No,4. One suspected seminal stained green coloured Shalwar.
P.No,5. One suspected seminal stained printed Shalwar. P.No,6. Suspected seminal stained pieces of cloth.
P.No,7. Suspected seminal stained swa b. P No,8. Suspected seminal stained swabs.
' According to the Chemical Examiner Report no semen was detected on the articles in Parcels Nos.l, 6, 7 and 8. The parcels, which contained swabs is in the case of Mst. Shazia and Mst. Razia accused, having been received in unsealed condition, and in absence of evidence that the alleged swa bs were kept in safe custody and delivered as such losses its evidentiary value as circumstantial evidence. Moreso, the report of the Chemical Examiner regarding the suspected stains of semen allegedly found on the Shalwar worn by the accused is in the negative, it, therefore, belies the statement of the Investigating Officer that when he entered the room the accused were busy in committing Zina and that on seeing him the accused got up and wore their Shalwars and that the Shalwars were stained with semen. Such being the case, the medical report as well as the report of the Chemical Examiner negate the prosecution case in toto.
13. As far as the defence plea that the S.H.O. Was inimical towards the accused, is concerned, reference can be made to the statement of the complainant/Investigating Officer in his cross- examination which is as under:-- "It is correct that I had searched the house of Wali Ayaz, Advocate and a damages suit against me alongwith other Higher Police Authorities. It is correct that in the damages suit different Advocates including Attaullah Khan, Advocate, father of Kamran accused and other Advocates namely Liaq Khan, Anwar Ali Shah and Shah Naraz etc. Were conducting the case on behalf of Wali Ayaz Khan. It is wrong that I was annoyed against all mentioned above Advocates as they conducted the case against me. It is also correct that after this occurrence a raid was also made on the office of Liaq Khan, Advocate situated in Paradi Gate Bannu City."
' It is worth-mentioning that the S.H.O. Has confirmed that the lady accused were previously charged by him in some other case. It was in this context that the female accused have stated that on the day of occurrence the S.H.O. Had summoned them to the police station and made them to sit, and later forced them to get into the jeep. From the police station they were taken to the house of the accused. The S.H.O. Persuaded them to charge the accused for the offence, which they denied, therefore, they were also arrested and a concocted false case was registered against them.
14. The learned trial Court has accepted the version of the prosecution witnesses on its face value and has failed to appraise the same alongwith the defence version and the statements of the P.
Ws. Given in their cross-examinations. The material contradictions in the statements of the prosecution witnesses brought out in their cross-examination at the trial and in their statements under section 161, Criminal Procedure Code, with which the witnesses were confronted, has not been taken into account. The learned trial Court has also ignored the medical report and the result of the Chemical Examiner with regard to the alleged suspected semen stained articles taken into possession by the Investigating Officer at the time of the arrest of the accused. No notice was taken of the material improvement made by the prosecution witnesses, which reflected adversely on their credibility.
15. It is most astonishing that the main culprit of the entire episode named Mustafa shopkeeper, who allegedly supplied the female accused to the accused, who is specifically mentioned in the F.I.R., has neither been arrested nor associated in the investigation for reason not known. Moreso, not a single person from the locality appeared to depose against the accused and no one from the public was associated with the raid or with the recoveries, though the Investigating Officer had prior information of the offence being committed for which the alleged warrant had been obtained and raid arranged. Non-observing of these legal formalities on the facts of the case vitiate the entire proceedings.
16. As far as the conduct of Nazif Shah, S.H.O./Investigating Officer, is concerned, firstly he had no jurisdiction to raid the house, which did not fall within the jurisdiction of Police Station City and that too on the information of a person who had no interest and concerned whatsoever. The S.H.O. Was not required to have violated the privacy of home, which is a fundamental right of a citizen enshrined in the Constitution of Islamic Republic of Pakistan. In Abdul Qayum v. The State 1991 PCr.LJ 568 in somewhat similar case it was observed as under:-- "The charge of Zina carrying a rigorous penalty of Rajam or stripes should not be casually brought to Court nor published. It shatters the foundation of a family whose female is accused of such a crime. Human weaknesses should rather be overlooked and ignored unless committed at public places and become a matter of concern from the society's point of view. It is most unbecoming of a stranger to peep into the house of others and show inquisitiveness for detecting the sins of others, who are neither related to him nor he has a public duty to publish and propogate the evils of sinners."
' Referring to the above observations, the learned Judge of the Lahore High Court in Mst. Akhtar Parveen v. The State has held as under:-- "This is the foremost duty of the police to ensure that provision of the Constitution, especially the fundamental rights are not violated and transgressed in pursuance of irresponsible complaints made to the police. Particular care must be taken in complaints, which are made pro bono publico with regard to the commission of Zina. Privacy of home is sacred not only by virtue of the Constitutional command but under Islam also great importance has been attached to the concept of Hurmat of Chaddar and Char Diwari. It is supreme in Islam and, same is the position with regard to the right of good reputation. It must also be noted that mere presence of a lady in the house in the company of a man with whom she is not related is no offence. Such a presence of the male and female persons cannot even be taken as attempt to commit Zina."
' It is further observed that- "In the instant case the complainant was not related to the girl or the male accused person. The chastity and good reputation of a woman are so precious that the same should not be allowed to be brought under cloud on the complaint of unconcerned persons. It cannot be ruled out that the allegations by an unconcerned person may be motivated by personal malice or personal whims of the complainant. Close relatives of the woman are the proper persons, on whose report a criminal case may be registered, where the allegation is that she has been involved in the commission of adultery. The police in a case where allegations touching the character of woman are levelled by unconnected person should not register the case in routine, and in any case not without prior permission of responsible Senior Officers. In cases where there is no allegation that any person has seen the actual commission of the offence of Zina or attempt thereof, police ought not register criminal cases. This will avoid unnecessary humiliation and embarrassment to the innocent accused persons and their families."
17. For all what has been stated above, it can safely held that the prosecution utterly failed to prove its case against the accused. Accordingly all the three appeals are accepted, the judgment and order of the learned trial Judge is set aside and the accused namely Kamran Khan son of Atta Ullah Khan, Sana Ullah Khan son of Sardar Ali Khan, Mst. Shazia, daughter of Gul Bahadur and Mst.
Razia, wife of Gul Bahadur are acquitted of the charge. They are on bail and their bail bonds stand discharged and sureties absolved from their liabilities.