' Through this Single judgment, Criminal Appeal No,1162 of 2000 and Criminal Appeal No,1164 of 2000 are disposed of as both of them have been directed against judgment, dated 29-7-2000 passed by learned Judge Special Judge, Anti-Terrorism, Lahore-II, Lahore Division, Lahore. Through the above judgment Abdul Hafeez and Mst. Hafeezan Bibi appellants Criminal Appeal No,1164 of 2000 and Mukhtar alias Mukhi, appellant in Criminal Appeal No,1162 of 2000 had been found guilty under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and were sentenced to life imprisonment each and with whipping of 20 stripes each and fine to the tune of Rs,20,000 each and in case of non-payment of fine to further undergo six months' R.I. The benefit of section 382-B, Cr.P.C. Was also granted to the said appellants. This judgment has been passed in case F.I.R. No,807 of 1998 for the. Offence under sections 11 and 10(4) of the above said Ordinance and section 7(ii) of the Anti-Terrorism Act, 1997 registered at Polite Station Phool Nager District Kasur.
2. Brief facts as narrated in the F.I.R. Exh.P.B., got recorded by the complainant (P.W.6) are that her daughter Mst. Rani aged 11/12 years went to the fields on 15-12-1998 but did not come back to the house causing anxiety to the complainant. The complainant got suspicion on his neighbourer Mst.
Azizan Bibi, accused, and inquired the whereabouts of Mst. Rani in the presence of Muhammad Ashraf and Shakil who told that Hafeez, Nukhar and Mustafa (proclaimed offender) had abducted Mst. Rani. The complainant made suspicion that the above named accused may have murdered Mst. Rani after committing Zina. Muhammad Ishfaq, A.S.-I. (P.W.9) after making necessary endorsement sent the complaint through Talib Hussain constable for registration of case on the strength of which formal F.I.R. Was registered by Muhammad Hussain, H.C. (P.W.2) Muhammad Ishfaq A.S.-I., inspected the spot and prepared rough site plan of place of occurrence. On 24-12- 1998 victim Mst. Rani Bibi was produced before the Investigating Officer, who recorded her statement. The victim was produced before Lady Doctor for medical examination on the same day vide application (Exh.P.J.) and she was medically examined. The Investigating Officer arrested Mst.
Azizan Bibi, Mukhtar and Hafeez accused on 4-1-1999, and produced Abdul Hafeez and Mukhtar accused for medical examination vide application Exh.P.D./1 and Exh.P.E./1. Mustafa accused was untraceable and as such was declared proclaimed offender.
3. After submission of challan under section 173, Cr.P.C. The proceedings against Mustafa were separated under section 512, Cr.P.C. After supply of copies under section 265-C, Cr.P.C. The charge was framed under sections 11 and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 7(ii) of the Anti-Terrorism Act, 1997. It was denied by the appellants and the prosecution was directed to produce evidence. The prosecution produced total ten witnesses.
4. Medical evidence has been produced by Dr. Rukhshinda, P.W.1 and P.W.4 Dr. Muhammad Jahangir, who appeared in the witness-box P.W.4 medically examined the appellants and found them competent to perform sexual intercourse. While, Dr. Rukhshinda, P.W.1 had medically examined Mst. Rani victim. The case had been investigated by Muhammad lshfaq, P.W.9. And Faqir Hussain S.-I./ P.W.10. The victim appeared as P.W.8 and in support of her statement Muhammad Anwar complainant and Muhammad Shakeel appeared as P.W.6 and P.W.7 respectively. In his 'statement under section 342, Cr.PC. The accused denied the allegations and pleaded their innocence. They also produced District Attorney, Kasur as D.W.2, Qari Gulzar Ahmad D.W.2, Muhammad Sharif, D.W.3 and Faiz D.W.4 in their defence.
5. After conclusion of the trial, the learned Special Judge passed the impugned judgment which is being assailed through these appeals.
6. The learned counsel for appellants contends that P.W.1, father of the victim and Shakeel, P.W.7, who is brother-in-law of the complainant are in contradiction with each other on material points that Hafizan Bibi had told them about the abduction of the victim. Both the witnesses have not been relied upon by the learned Trial Court and the conviction is merely based on solitary statement of P.W.8, which is not sufficient for conviction under section 11 as the material witnesses who had allegedly produced the said victim before the police at the time of her recovery had not been cited as witnesses and have not been produced during the trial. It is further contended that the victim. Has been shown married with Zafar, relative of the complainant on 22-12-1990 at Township Lahore and she remained with him till 24th December, 1998 and she was produced before the Medical Officer on 24-12-2000 and the medical evidence is not corroborative piece of evidence of statement of victim as she was a married woman. It is further contended that the victim had admitted before District Attorney who was member of Monitoring Cell that she remained with her husband before her production for medical examination. The learned counsel for appellants further contended that the solitary statement of the victim can only be made basis for conviction of the appellants in case her character is unimpeachable and she is a truthful witness, who has not been believed regarding commission of Zina by the male appellants and on the other hand she has been believed on the question of abduction, thus in this way one part of her statement has been relied and the second part was not relied upon. The learned counsel further contended that the medical evidence is in contradiction to the ocular account. According to the Medical Report no mark of violence had been found on the private parts of the body of victim and she was found habitual to sexual intercourse and as being married woman the medical report fully proved the case of defence. It is further contended that according to the medical report of the victim she was consenting party to the sexual intercourse if committed with her and the victim herself admitted before the Monitoring Cell that she remained with her husband from the day of her recovery to the date when her statement was recorded by the Police, aft6. Recovery. According to the learned counsel for appellants the defence has produced truthful and responsible petions in proof of the innocence of the appellants, therefore, the conviction is not based on the evidence on record and the learned Special Judge Anti-Terrorist Court has based the finding of conviction on conjecture and surmises. It is further contended by the learned counsel for appellants that under Article 129 of the Qanun-e-Shahadat if material witnesses are not produced to corroborate the prosecution story, the whole case would become doubtful, and alleged witnesses of the recovery of victim have not been produced. It is lastly contended that the appellants are liable to be acquitted.
7. On the other hand, the learned counsel for the State has opposed these appeals on the ground the conviction in Hudood cases can be based on solitary statement as the victim in such-like cases is material witness and her solitary statement is sufficient to convict the appellants for the offence which is proved on record, that she is truthful witness and being a young lady of tender age her statement cannot be said to have tainted with malice and enmity. It is further contended that the defence has failed to prove any enmity or grudge which may be made the basis for false registration of the case. It is further contended that the statements before Monitoring Cell has no evidentiary value. The learned counsel for the State has also argued that the statements of witnesses are supported by the medical evidence and there is no contradiction in their statement.
It is further argued that the conviction based on evidence of the prosecution is legal and the defence has not proved any case for false involvement of the appellants in this case. The victim was abducted and was taken to different places where she was subjected to Zina-bil-Jabr and her medical examination was conducted after 2/3 days of Zina with her.
8. I have heard the arguments of the learned counsel for the parties and also perused the record carefully. The learned trial Court has not relied upon the statements of Anwar P.W.6 and M. Shakeel P.W.7 as also the statement of Mst. Rani P.W.8 the victim to the extent of commission of Zina with her. However, the appellants have been convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 on the solitary statement of Mst. Rani the victim. As Mst. Rani has been disbelieved regarding the allegation levelled by her for the commission of the Zina and is the only witness, her statement has to be perused with due care and caution whether it is reliable for conviction of the appellant under section 11 of the Ordinance as well or not. The statement of Mst. Rani regarding her abduction cannot be relied upon because according to the allegation levelled in the F.I.R. She was abducted on 18-12-1998 and her statement before the police under section 161, Cr.P.C. Was recorded on 24-12-1998 and the medical examination of said Mst.
Rani was also conducted on the said date. In such circumstances the victim remained with her family, complainant and other witnesses for about three days before the recording of her statement by the police. The complainant has been disbelieved in this case. The said victim remained with him for three days. The statement has been recorded by the police after three days of her recovery. No explanation has been given for the delayed recording of her statement by the police. The chances of concocted story in connivance with the complainant party cannot be ruled out. Even otherwise this P.W.8 has been disbelieved by the learned trial Court on the point of commission of Zina with her. P.W.8 is also not a truthful witness as when appeared before the Monitoring Cell at Kasur had stated that she was married on 22-12-1998 and she and her husband had committed intercourse before the medical examination but while appearing at the trial she denied this during the cross-examination. Muhammad Mahmood Qureshi D.W.1 District Attorney, Kasur who was the member of the Monitoring Team has stated that in the presence of the members of Monitoring Team P.W.8 had stated so. The solitary statement of P.W.8 is not sufficient to maintain the conviction even on the charge under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. Her statement required independent corroboration which though was available with the prosecution in the shape of three witnesses namely Babu Rafique, Rashid Ahmad and Muhammad Sharif who produced the victim before the complainant yet these witnesses who could be the best witnesses to prove about the alleged recovery of the victim from the accused, if any, were neither produced for recording of their statement by the Police during investigation nor were they produced by the prosecution at the trial, hence the best piece of evidence to prove the charge under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 has been withheld by the prosecution. The solitary statement of P.W.8 in these circumstances is not sufficient to connect the appellants 'with the commission of the crime.
9. For the foregoing reasons, the prosecution has failed to prove the case beyond any shadow of , doubt. Hence this appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellants are acquitted of the charge against them. They are in custody and shall be released forthwith, if not required in any other case.