MUHAMMAD SALEEM Versus THE STATE

FAKHRUDDIN H. SHAIKH, J. -- The appellants have been convicted for offence under section 10 read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) by the IIIrd Additional Sessions Judge, Karachi, South, vide his judgment, dated 15-1-1987, and sentenced to suffer R.I. for five years and ten stripes each. They have filed this appeal from the above judgment.

2. The allegation against them was that on the night between 2nd and 3rd May, 1980, Niazul Hassan, ASI, Police Station Nappier, raided the house of appellant Mst. Abida and found both the appellants in compromising position. He arrested both of them, recorded FIR and sent up the two appellants for trial. It is alleged that at the time of raid one Khalid Mashir was also associated.

3. The appellants have denied the allegation.

4. In support of the prosecution case the only relevant evidence is of complainant Niazul Hassan (PW.2) and Mashir Khalid Mahmood (PW. 3). PW. 1 Muhammad Suleman Mirza is formal witness as he had only recorded the FIR.

5. So far as PW.3 Khalid Mahmood is concerned he has not supported the prosecution. He has deposed that he had found Niazul Hassan taking away the appellants towards the police station and he was asked to accompany the police as personal search of two appellants was to be taken. This witness was declared hostile by the A.P.P.

6. We are thus left with the only evidence of P.W.2 Niazul Hassan, who has deposed that he raided the house of Mst. Abida on spy information and found Muhammad Saleem and Mst. Abida, appellants, kissing and embracing each other. The charge against the appellants was of attempt to commit zina. By no stretch of imagination it can be stated that the two appellants by kissing and embracing each other had attempted to commit zina with each other. If they had been embracing or kissing each other, it can be said that at the most they had an intention to commit Zina, but no one can be punished for mere intention to commit a crime.

7. Moreover, the alleged act of the two appellants in kissing and embracing inside a house is not covered by any of the laws relating to Hudood. This action is not punishable even under any section of Penal Code or any other penal law.

8. Another irregularity committed by Niazul Hassan, ASI, in this case was that he raided the house of the appellant without any search-warrant. Even if it was a prostitution den, the ASI could not have entered the house without proper search-warrant. As no charge is proved against the appellants even on merits, hence we allow this; appeal, set aside conviction and sentences and direct that the appellants shah be released forthwith if not required in any other case.

M.Y.H./429/FSC Appeal allowed.