' This criminal appeal preferred by Jafar Ali Khan son of Fateh Ali Khan Durrani is directed against the judgment, dated 31-7-2002 passed by learned Additional Sessions Judge, Karachi Central whereby he has convicted him under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, hereinafter referred to as the Ordinance, and sentenced him to four years' R.I. He has granted him the benefit of section 382-B, CrP.C.
2. Briefly stated the case of prosecution as disclosed by Mst. Khalida Parveen in F.I.R., lodged on her statement on 30-4-1996 at Police Station New Karachi is to the effect that she was a widow and was living in a rented house. On 29-4-1996 at about 3-00/3-30 a.m. Her neighbourer entered her house and on pistol point, shutting her mouth, forcibly committed Zina with her. At that time the light of her room was on. While trying to release herself from his clutches, she raised hue and cry which attracted Aslam alias Judgi who scaled over the wall and entered her house and saw Babu committing Zina with her. On this he released her and kicked him from the house. She disclosed that incident to his parents and Muhallah people and they advised her to report the matter to police. On 29-4-1996 she was not feeling well, therefore, she reported the matter on the next day.
Thereafter, the appellant/accused was apprehended and after completion of necessary investigation challaned to face the trial.
3. At the trial prosecution examined six witnesses in all. P. W.1 Khalida Parveen is the complainant who with some elaboration and addition reiterated her statement as mentioned hereinabove.
P.W.2 is Muhammad Aslam alias Judgi. He is the person who on hearing noise from the house of complainant, entered her house and saw the occurrence. P.W.3 is Mushtaq Ahmad. He is brother- in-law of the complainant who was informed by her of the incident on the next day. He accompanied the complainant to police station for lodging of the F.I.R. He is witness to the recovery memo. Exh.10 whereby revolver and clothes of the appellant/accused were taken into possession.
P.W.4 is Muhammad Aslam Lodhi, S.-L He registered F.I.R. On the statement made by the complainant. On 1-5-1996 he arrested the accused. He referred the complainant and the appellant/accused to Civil Hospital for their medical examination and report. He submitted challan.
P.W.5 is Dr. Akhtar Hussain. On 2-5-1996 he medically examined the appellant/ accused and found him capable to perform sexual intercourse P.W.6 is Dr. Nayyar Haq who on 2-5-1996 medically examined Khalida Parveen and made the following observations:-- "On examination her secondary sex character were well-developed. 12345000 : 1234560 12345000 : 12345010 the state of teeth ' On examination of external body I found:
(1) Rounded abrasion with raddish brown scab 1/2 c.m. x 1/2 c.m. Oblateral border of left knee. On vaginal examination external geneteria normal. Hymen absent. Vigina mildly congest admitting two fingers easily. Mild tenderness of P.V. Examination. Viginal slides taken and sent for Chemical Analysis. Her urine for pregnancy test was negative. Opinion: (1) Vhair Daifafa Daniyah.
(2) Days on clinical findings not virgo testa, she is habitual of sexual intercourse. However, opinion is kept reserved till receipt of chemical examination report."
' Report of Chemical Examiner in respect of Shalwar of the appellant/accused as well as that of Mst.
Khalida Parveen is positive. However, report in respect of vaginal swabs revealed that semen was not detected therein.
4. The appellant/accused made statement under section 342, Cr.P.C. Wherein he denied the allegation and pleaded innocence. He stated that the P.Ws. Have deposed against him due to enmity. He also made statement on oath in the following words:-- "I am residing in the above house since 35, 36 years. On the day of incident I was available in my house alongwith my father, mother, sisters, brother and Bhabi. I am known in Mohallah in the name of Jaffar and so also in my house. I have no any alias name. Nobody knows me in the name of Baboo. I know complainant Khalida Parveen since 28 or 29 years. She is living just in front of my house alongwith her children. Her eldest daughters' name is Shahida Parveen. At the time of incident the age of Shahida Parveen would be about 9/10 years. Complainant had given her half portion of house to tenant Arshad who was living alongwith his family at that time, while half portion was under her possession. In the adjacent house of complainant's house one Riaz was living with his family. On the day of incident it was 9th of Zil Haj and therefore, on that date there was rush in the street as people were having their cattles in the street for entire night. On 28-4-1996 I after returning from my duty reached in my house at 10-00 p.m. Alongwith household articles for Eid and after taking meals I went for sleep at 11-00 p.m. And other inmates were busy in preparation of Eid. I, however, woke up at 6-00 a.m. On 29-4-1996, I have never gone in the house of complainant Khalida at any time The allegation of Zina with complainant took loan of Rs,3,000 from my father through me in the month of Ramzan for Eid with promise to return the same after Eid but she did not return according to her promise on which my father used hot words against her. My father has expired about two years back. My name is Jaffer only. Against such proof I produce my copy of N.I.C. And Identity card as Exhs.20 and 21. I was arrested by police from my house. Police did not secure any clothes from me at the time of arrest or after my arrest. I am totally innocent and present case is false against me."
5. I have heard learned counsel for the appellant as well as Assistant Advocate-General and have perused the record with their assistance:Learned counsel for the appellant submitted that there is delay in lodging of F.I.R. Which has not been plausibly explained, that no marks of violence present on her body, that the statements of P.Ws. Are at variance and, that the case of prosecution is not established beyond reasonable doubt Learned Assistant Advocate-General supported the impugned judgment.
6. I hive thoroughly perused the evidence brought on record in the light of submissions made by learned i:ounsel for the appellant as well as Assistant Advocate-General. It transpires that the case of prosecution mainly rests on the statement of P.W.1 Khalida Parveen and P. W.2 Muhammad Aslam alias. Judgi as well as the MLR submitted by P.W.6 Dr. Nayyar Haq and the Chemical Examiner's report. P.W.1 Khalida Parveen is the victim who reported the matter to police on the next day of occurrence, On thorough appraisal, however, her deposition does not provide sufficient nexus of the appellant/accused with the commission of offence. Her statement before the trial Court is at variance with her statement, which made basis of the F.I.R. In her, statement she has stated that her hue and cry attracted. Aslam who after jumping over the wall entered her house and saw Babu committing Zina-bil-Jabr, with her but in spite of threat extended by the appellant/accused caught hold of him and gave him two/three slaps and kicked him from her house. In cross-examination she stated that Aslam alias Judgi turned out the accused Babu from his home after opening the main gate in the street. However, P.W.2 Muhammad Aslam alias Judgi stated that taking benefit of darkness of the night the accused fled away from the scene of offence through roof of the house of the complainant. In his examination-in-chief he deposed that after hearing noise from the house of complainant he immediately climbed on the roof of the house and went down from the stairs of the house and kicked the door of the room and put on the light wherein he saw the complainant in a condition that her Shalwar was put off and in the meanwhile a man was seen by him running out of the room, having something in his hand. He added further that he was Babu. Although in her statement which was incorporated into F.I.R. She alleged that when the accused entered her house the light of her room was on. But in her statement before the Court she has mentioned nothing about the light. Admittedly the complainant had not mentioned about the description Or address of accused Babu. Strangely she has admitted that at the time of incident due to fear she could not see the face of accused Babu properly. P.W. 2, the alleged eye- witness of the occurrence, also stated that he could not say if the accused person in the Court was the same as due to darkness on the night of incident he could not see him properly. He also denied the suggestion that the accused present in the Court was the same Jafar alias Babu who had committed the alleged occurrence. He has further admitted that the complainant had not disclosed him the features of the accused as well as "Hulya" to him. Instead of supporting the statement of complainant, that the accused was kicked off by him through the gate, he has clearly stated that taking the benefit of darkness of night the accused fled away from the scene of offence through the roof of the house of complainant. He has candidly conceded that he could not identify the accused at the place of Wardat as he was facing his back when he was running from the scene of offence. Moreover, it is to be appreciated that according to both the P.Ws. Children of the complainant were present at the time of occurrence but none of them has been produced to support the version made by the complainant. In circumstances the case of prosecution is not free from doubt and the appellant/accused is entitled to get the benefit of doubt thereof.
1. Consequently for the reasons stated above, this appeal is allowed. Conviction and sentence of appellant Jaffar Ali Khan Durrani son of Fateh Ali Khan Durrani are set aside and he is acquitted of the charge. He is in jail and he shall be released forthwith if not wanted in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.