Mst. SHAMIM AKHTAR vs THE STATE

' HAZIQUL KHAIRI, C.J.--- Appellant Mst. Shamim Akhtar has filed this appeal against the judgment, dated 31-8-2006, passed by the learned Additional Sessions Judge-H, Mansehra whereby she was convicted under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the said Ordinance") and sentenced her to five years' R.I. And fine of Rs,5,000 or in default of payment thereof to further suffer S.I. For six months. She was further convicted under section 328, P.P.C. And sentenced to undergo three years' R.I. And fine of Rs,2,000 or in default thereof to further suffer S.I. For two months allowing her benefit under section 382-B, Cr.P.C. Both the sentences of imprisonment were to run concurrently.

2. Brief facts of the case according to prosecution are that the appellant who was initially cited as a complainant in the case lodged a report with the Police Station on 7-8-2002 mentioning therein that she was married to one Muhammad Haroon son of Ayyub, resident of Timber, 7 years ago, however, Rukhsati did not take place. About 10/11 months back while the complainant was alone in her house, her neighbourer Khawaj alias Kala son of Muhammad Ayub, came to the house of the complainant armed with "Chhuri" and under threat to her forcibly committed Zina with her threatening her of dire consequences if she revealed it to anyone. For fear of death she did not narrate this incident to anyone. However, she became pregnant. One Anwar son of Ayyub, resident of the village came to know about her pregnancy two months back, he secretly took the complainant somewhere and resorted to an abortion upon the complainant against her consent.

3. During the course of investigation the appellant was also challaned as an accused in this case and after submission of challan, she was charged under section 5/10 of "the said Ordinance" and under sections 201 and 328, P.P.C. Along with other co-accused namely Khawaj Muhammad alias Kala, Shah Rehman and Mst. Khatoon Bibi under the aforementioned section of law all of whom were acquitted by the learned trial Judge.

4. The prosecution initially cited as many as 15 witnesses but nine witnesses were produced in the Court while the rest of P. Ws. Were given up without assigning cogent reason. P.W.6 Aurangzeb, S.-I.

Deposed that the investigation of this case was conducted by A.S-I. Muhammad Iqbal and arrested the accused Khawaj Muhammad. He submitted supplementary challan against accused Kala.

5. P.W.7 Muhammad Fareed deposed that he got information of the abduction of his sister Mst.

Shamim in Karachi. He reached home and she narrated the story to him that 10/11 months before accused Kala came to their house, armed with "Chhuri," and threatened' her and thereafter he forcibly committed Zina-bil-Jabr with her, resultantly she became pregnant.

6. P.W.8 Muhammad Gulzar, I.H.C. Deposed that during the investigation, Investigating Officer took into possession one bottle containing the swabs from female accused (in sealed condition) handed over by lady doctor.

7. P.W.9 Shoaib Khan stated that during the days of occurrence he was posted as Civil Judge- IV/Judicial Magistrate, Mansehra. On 10-9-2002 at 12-40 p.m. Appellant Mst. Shamim daughter at Qalander was produced before him in the Court by the Investigation Officer for recording her confessional statement,. After observing all the legal formalities, he recorded the confessional statement of the appellant. He produced the confessional statement of the appellant.

8. Appellant Mst. Shamim Akhtar in her statement under section 342, Cr.P.C. Repeated the allegation of commission of Zina-bilJabr with her by co-accused Khawaj Muhammad some 10/11 months prior to the registration of the present case followed by her pregnancy. She further admitted the abortion of a child a few days prior to the registration of the case and leaving him in an abandoned and deserted place. She further confirmed her confession recorded by the Judicial Magistrate. She also conceded concealment of illegitimate pregnancy on the pretext of fear and involvement of honour of the family.

9. I have gone through the confession of the appellant which is exculpatory in nature. She has not implicated her in the commission of the crime. There is nothing in the evidence adduced by the prosecution A that she was a consenting party to Zina. It is pertinent to mention here the reasoning given by the trial Court for convicting the appellant as under : - "But who has committed Zina with her either with bil-Jabr or with consent is a mystery which could not be clarified at trial. But this discussion is not sufficient to exonerate the accused ' Mst. Shamim Akhtar her of liability keeping in view her admission of conceiving illegitimate pregnancy and factum of abortion and its concealment for about 10/11 months."

10. It is quite apparent on reading of the foregoing that the reasoning given and conclusions drawn by the learned trial Court are perverse and whimsical. There is not an iota of evidence on record that the appellant was a consenting party to any Zina. The mere fact that the B prosecution has failed to establish the case of Zina-bil-Jabr against accused Khawaj alias Kala and that the appellant was pregnant would not lead to inference that the appellant had committed Zina-bil- Raza elsewhere. Cases are not wanting where a murderer would lodge F.I.R. To save his neck but during investigation is found to be involved in the crime and ultimately convicted by a Court of Law.

But in such cases there has to be credible evidence to convict him. In the present case there is no evidence that the appellant had committed Zina-bil-Jabr, therefore, her conviction is whimsical and not tenable in law.

11. As regards conviction under section 328, P.P.C. The charge against the appellant was that she left newly born child in a deserted place with the intention of wholly abandoning him. No conviction and sentence under section 328, P.P.C. Could be awarded unless it was first established that poison or any stupefying intoxicating or wholesome drug was administered by an accused person. No such allegation is found either in the charge nor in the deposition of any of the prosecution witnesses or in the impugned judgment. Hence the conviction and sentence of the appellant under section 328, P.P.C. Are liable to be set aside.

12. Resultantly the appeal is accepted and the impugned judgment, dated 31-8-2006, passed by the learned Additional Sessions Judge-II, Mansehra is set aside and she is acquitted of both the charges. She is on bail. Her bail bond stands discharged.