Appellant Muhammad Arif was charged of having committed Zina with Mst. Farida and had thereby committed the offence punishable under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). Muhammad Arif denied the charge. He was put to trial and, the learned Sessions Judge, Kalat Division at Mastung vide his judgment, dated 27-'7-1998 had found him guilty of the offence of commission of Zina under section 10 of the Ordinance and sentenced him to undergo R.I. For five years, in addition to 10 stripes and fine of Rs.10,000. The appellant through his counsel has tiled the present appeal challenging the said judgment.
2. In short the facts of the case are that a lady by name Mst. Farida who was were of Sanaulalh and daugher of Muhammad Hayat was killed. A case in that respect was lodged against Muhammad Hayat, Muhammad Ishaque and Muhammad Sana (Sanaulah as stated by some witnesses) that she was killed on account of Siahkari at a place known as Chappar. On the information of such incident P.W. Muhammad Yaqoob, Naib-Tehsildar, Kalat, accompanied with the personnel of Levies reached there and recorded the statement of Muhammad Hayat. Case under section 302, P.P.C.
Against Muhammad Hayat and Muhammad Ishaque was being investigated when P. W.
Muhammad Yaqoob, Naib-Tehsildar prepared an order wherein it was disclosed that at place Chappar, Muhammad Hayat, Muhammad Ishaque, Muhammad Sana and other accused had declared Mst. Farida "Siahkar" with M'Muhammad Arif and had, therefore, killed her and buried her dead body. They were in pursuit of Muhammad Arif, so that they may kill him too. Muhammad Arif was, therefore, taken into protective custody by the Naib--Tehsildar P.W. Muhammad Yaqoob, and he ordered that a case be registered under section 10 of the Ordinance against Muhammad Arif.
Subsequently, after the investigation of Naib Tehsildar, Kalat, appellant Muhammad Arif was challaned to stand the trial for the offence of Zina in the Court of Sessions Judge, Kalat Division at Mastung.
3. At the trial, the prosecution produced Muhammad Yaqoob, Naib Tehsildar as P.W.1. He disclosed the above facts. In cross-examination he had admitted that no F.I.R. In respect of commission of Zina was registered by any person.. In addition, he admitted that no case of Zina was made out against appellant/accused Muhammad Arif. After such view of the Investigating Officer. I am surprised why did he produce challan against Muhammad Arif.
4. P.W.2 was Muhammad Rafiq, a brother of Muhammad Sana, the husband of Mst. Farida, who stated that 8/9 months prior to his deposition in Court, at about 1-00 a.m. When he was sleeping in his house, Mst. Farida went out of the house. After waiting for a period of ten minutes when she did not return, suspecting her evil intention Muhammad Rafiq went after her. He found at a little distance Muhammad Arif and Mst. Farida indulging in Zina. Muhammad Arif ran away. P.W.
Muhammad Rafiq informed Muhammad Hayat, the father of Mst. Farida in the morning about the incident. Muhammad Hayat brought Mst. Farida to his house from the house of Muhammad Sana and Muhammad Rafiq. P.W. Muhammad Rafiq had asked Muhammad Hayat to wait for the arrival of Sana, the husband of Mst. Farida who was at Sandak, at that time. However, Muhammad Hayat killed his daughter Mst. Farida.
5. The other witness produced by the prosecution was Muhammad Hayat who stated that P. W.
Muhammad Rafiq had related the story of Zina between Muhammad Arif and Mst. Farida to one Muhammad Alain and Muhammad Alam in turn had come to P. W . Muhammad Hayat and related - the story and Muhammad Alam had asked Muhammad Hayat to come and take away his daughter. Thereafter, Muhammad Hayat had brought his daughter to his home and was searching of the appellant Muhammad Arif but Muhamrnad Arif appeared at the police station voluntarily.
Further he had stated that his son (Muhammad Hayat's son) had killed Mst. Farida on account of Siahkari. He stated that Mst. Farida was in his house for a period of three days after he had brought her there on hearing the story of the incident, and that for these three days Muhammad Hayat did nothing to report the matter of Zina nor did he produce Mst. Farida for medical examination. He admitted that he was not himself the eye-witness of the incident of Zina and he denied the allegation that he and his son had killed Mst. Farida in haste.
6. Muhammad Sana, the husband of Mst. Farida was riot examined as a witness in the case and on the basis of the above said evidence, the learned Sessions Judge, Kalat, convicted and sentenced the appellant as mentioned above:
7. The learned counsel for the appellant contended that the impugned judgment is not a proper and legal judgment inasmuch as provisions of section 367, Cr.P.C. Have not been adhered to strictly and lawfully. His contention was that section 10 of the Ordinance consisted of subsections (1), (2), (3) and (4). These subsections denoted Zina-bil-Jabr, Zina-bil-Raza, etc. The learned Sessions Judge had not mentioned specifically as to under which subsection of section 10 of the Ordinance, the appellant was convicted. He, therefore, contended that the judgment could not be sustained in view of this legal flaw, in addition to other reasons. He has cited the following cases: --
(1) Mudassar alias Jimmi v. The State 1996 SCM R 3, (2) Ali Nawaz and another v. The State 1998 PCr.LJ 1202, (3) Hameedullah v. -The State 2000 PCr.LJ 472.
8. The circumstances and the facts of the case also leave much to guess, whether the offence if believed to have taken place could have been one of Zhna-bil-Jabr or one of Zina-bil-Raza. The learned trial Judge did not venture to discuss the evidence from this point of view and come to the conclusion as to which of the subsections of section 10 was applicable, for which the appellant was convicted. He simply wrote section 10 in the charge, as well as in the judgment. The superior Courts have not approved such conduct on part of trial Courts, and in some' cases, the judgments not in accordance with requirements of section 367, Cr.P.C., were even set aside.
9. Coming to the evidence of the actual commission of Zina, I find that there is only one witness P.
W. Muhammad Rafiq who claims to have seen the commission of Zina and he informed of it. To P.W. Muhammad Hayat, the father .Of Mst. Farida. It is admitted position that the alleged occurrence took place at 1-00 a.m. (mid-night) when P. W . Muhammad Rafiq had gone after departure of Mst. Farida from the house, when it must be dark and it has not been alleged as to what was the source of light on which Muhammad Rafiq had identified the present appellant. It is also in the evidence that Muhammad Rafiq had said that he had seen the two persons in the position of one upon the other. It is not stated as to what was over and who was under the other.
Possibly because of darkness, Muhammad Rafiq could not exactly make out. For the same reasons it could not be said that evidence of Muhammad Ratiq identifying Muhammad Arif was exact, and was. Not based on suspicion. P.W. Muhammad Rafq is brother of Muhammad Sana, the husband of Mst. Farida, but Muhammad Sana was not present in the house, and had not been examined during the trial. P.W. Muhammad Rafiq was examined after 5/6 days of the alleged occurrence, by police for the first time, while no F.I.R. In respect of commission of Zina by Muhammad Arif with Mst.
Farida was ever registered. Thus apart from lack of source of light, the incident being of mid-night, the circumstances and evidence do not make out a case of clear identification of accused Arif by P. W,. Muhammad Rafiq. It was also pointed out that P. W . Muhammad Rafq had given the name of accused Arif to P.W. Hayat on the basis of which Hayat had informed P.W. Yaqoob. P.W. Yaqoob had, therefore, taken accused Arif in protective custody, after Arif had surrendered to police. But Muhammad Hayat did not corroborate this portion of the story as he stated that one Alam had informed him about the name of culprit to be Arif, and not P.W. Rafq,. However, Alam was not examined as a witness in this case. Thus we are left with uncorroborated - statement of P.W.
Muhammad Rafiq, who could have mistaken himself in identifying the appellant Arif, due to various circumstances, stated in foregoing paragraphs.
10. In the case of Salim Akhtar and another v. The State reported in 1995 PCr.LJ 233, possibility .Of identification of the accused in the dark was held to be suspicious and in the case of Syed Saeed Muhammad Shah and another v. State, reported in 1993 SCM R 550, delay in recording of the statements of the eye-witnesses was held to be prejudicialto the prosecution and therefore unreliable.
11. The learned counsel for the state although supported the impugned judgment but could not substantiate with the reasons to how the defects in the judgment particularly one under section 367, Cr.P.C and non-examination of Alain, who had given name of Arif to P.W. Hayat could overcome.
12. As a result, I find that principles governing the safe dispensation of criminal justice, require me to hold that the case against appellant Muhammad Arif of having committed Zina with Mst. Farida could not be said to be free of doubt. It may not be out of place to mention here that Mst. Farida's own version in the case is also lacking as she was admittedly killed within three days. This incident appears to be one of the improper traditions being followed in this part of the country of killing women on suspicion of Siahkari and also implicating the males without actual proof. That is why the practice of killings under the tradition of Siahkari are being deprecated by the literate society of now-a-days. It was informed that all the accused in the case of murder of Mst. Farida had already been acquitted for want of evidence.
13. For all the above reasons, the impugned judgment cannot be sustained and the same is, therefore, set aside. The appellant is acquitted of the charge. He is on bail. His bail bonds stand discharged.