MUHAMMAD ALI Versus THE STATE Tariq Azam Chaudhry , Khan Mushtaq Ahmad Khan for the State.,S.M. Ghazi
FAKHRE ALAM, J .--Muhammad Ali and his mother-in-law Mst. Altaf Begum both stand convicted under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and each sentenced to 10 years' R.I., whipping numbering 30 stripes, and a fine of Rs.5,000 or in default to further undergo 2 years' R.I. by judgment dated 24-2-1985 of Additional Sessions Judge, Rawalpindi. By filing joint appeal both the convicts have assailed their conviction and sentence.
2. Briefly stated the facts that can be gathered from the record are that Qazi Sher Afzal complainant husband of Mst. Altaf Begum and father-in-law of Muhammad Ali the accused, was for the last five years employed in Saudi Arabia. In the month of July 1983 he came to Pakistan and went to his native village Losar Sharfoo within the limits of Police Station Wah Cantt, Tehsil and District Rawalpindi to join his family. On 2-8-1983 after saying 'Zohar' prayers the complainant found his wife Mst. Altaf Begum accused absent from the house. During her search when he reached an unoccupied room near the house he heard the running of a ceiling fan from the room which was bolted from inside. He peeped through the crevices of the door and saw his wife Mst. Altaf Begum and his son-in-law Muhammad Ali cohabiting. The complainant called his other relatives from amongst them Ghulam Khan, Mst. Hussain Jan, Fazal Khan and Mst. Aasia Khatoon by peeping through the door also saw the two accused in compromising position. The relatives of both the accused also arrived and they brought out the accused from the room and took them away. They also threatened the complainant with his life in case the matter was reported. Instead of reporting the matter to the police the complainant on the next day i.e. 3-8-1983 filed an application in the Office of Chief Martial Law Administrator which was sent to Deputy Superintendent of Police Wah Cantt. on whose directions a case was registered in Police Station Wah Cantt. on 10-8-1983.
3. At the trial besides Qazi Sher Afzal complainant his brother Fazal Khan (P.W.3), his mother Hussain Jan (P.W.5) and Khalid Mahmood (P.W.4) furnished direct account of the delict. All the four stated that they saw through the chinks of the door the two accused in compromising position. The trial Judge disbelieved Khalid Mehmood P.W. for that "in the application addressed to the Chief Martial Law Administrator which was incorporated in the F.I.R. he was not named therein to be one of the persons who had witnessed the occurrence and that his statement was recorded by the police after a lapse of two and a half months.
4. Lady Doctor Musleha Majid (P.W.1) on 11-8-1983 at 11 a.m. examined Altaf Begum accused who took her two vaginal swabs and sent these to the Chemical Examiner for detection of semen. Some injuries by blunt weapon were found on the person of Mst. Altaf Begum but these are not material for the purpose of the case as these were of twenty four hours duration whereas the alleged occurrence took place nine days prior to the medical examination. The Chemical Examiner found the swabs to be stained with semen.
5. The accused when examined pleaded innocence and involvement due to ill-will with Fazal Khan the elder brother of the complainant who master-minded the whole drama. It was stated by both the accused that Fazal Khan as well as Muhammad Ali accused also went to Saudi Arabia to earn their livelihood. The earnings of Muhammad Ali were deposited with Fazal Khan who promised to give his daughter to Muhammad Ali in marriage but later refused. The money earned and given by Muhammad Ali was also not returned. Against the wishes of Fazal Khan and Qazi Sher Afzal complainant Muhammad Ali married Mst. Farida Yasmin the daughter of Qazi Sher Afzal complainant.
Fazal Khan, Qazi Sher Afzal and their mother Mst. Hussain Jan the three star witnesses of the prosecution were annoyed over the marriage in which they did not participate.
6. On 8-5-1985 in the presence of the counsel for the appellants and that for the State a Division Bench of this Court passed the following order;
"It is contended by Mr. Tariq Azam Chaudhry the learned counsel for the defence that he had submitted an application before the Court for spot inspection but that application was erroneously rejected. According to him it was physically impossible to see anything inside through the door in question when it is closed. Even now he asserts that if this fact is found incorrect then he would not press this appeal.
(2) A perusal of the original file shows that on 22-1-1985 an application under Section 539(B) Cr.P.C. was submitted before the trial Court for spot inspection. The trial Court on the same day after hearing the counsel for the parties passed the following orders:-
24-1-1985
The case was adjourned to 24-1-1985 on which date this application was disposed of with the following observations:-
24-1-1985.
According to the learned defence counsel after the final argument of the case the learned trial Judge did not inspect the spot.
(3) We feel that in the larger interest of justice we should at this stage verify the claim of the accused party regarding the possibility of seeing anybody inside the room through the said door when it is closed either through any hole or crevice. Accordingly we depute the Registrar of this Court to inspect immediately the spot and report. The counsel for the parties are directed to accompany the Registrar. To await the report of the Registrar the case is adjourned to a date in Office".
In compliance with order of the Court the Registrar submitted his report Ex-FSC/1. The gist of the report covering one and a half page is that by peeping through the crevices of the door nothing could be seen inside the room. The report of the Registrar was not objected to by the counsel for the appellants or that for the State. Anyhow he was examined in Court as C.W.1 who in his deposition affirmed the fact that the crevices were so close that through these one could not see anything in the room.
7. We pointed out to the learned counsel for the appellants that how under section 539-B the Court could have delegated its powers for local inspection to the Registrar to which he was unable to give a plausible reply, but the matter does not rest here. The investigation of this case has chequered history. It was initially investigated by Muhammad Zaman S.I (P.W.9). Later on the orders of Deputy Inspector General of Police the case was entrusted to Khawaja Mazhar Inayat A.S.P. Murree for reinvestigation who after thorough inquiry reported that it was a concocted case which be cancelled and departmental action be taken against Muhammad Zaman, S.I. and S.H.O. Police Station Wah Cantt. Subsequently the case was again investigated by Agha Bashir Ahmad Deputy Superintendent of Police but he was not examined at the trial. Khawaja Mazhar Inayat A.S.P. (D.Wl) and Rana Muhammad Nawaz D . S . P . (D . W . 2) besides two other DWs were examined in defence. The file of the inquiry conducted by Khawaja Mazhar Inayat A.S.P. was retained by the trial Court and it was ordered that the same shall form part of the record. It was also recommended by the A.S.P. that Qazi Sher Afzal complainant be proceeded against for Qazf. During spot inspection DW-1 the A.S.P. observed:---
"One could not peep through the door of the room as there was no hole on the door."
It has been alleged by the complainant that due to the threat by Muhammad Ali and his relatives he did not go to the police station to lodge the report. Strangely enough on the next day he went to Rawalpindi and filed an application in the Office of Chief Martial Law Administrator. It has come in evidence of the complainant that one Col. Abdul Quddus is related to him so he found it safe to move the C.M.L.A. Secretariat in the matter and got the case registered against the accused.
8. Mst. Altaf Begum accused is mother of six children. Her daughter is married to Muhammad Ali accused. Apart from this relationship Mst. Altaf Begum is his aunt being the wife of Qazi Sher Afzal a brother of his father. For the sake of argument if it be accepted that the two accused were present in the room but this would not establish that they were there to commit incest more so when there is explicit evidence that even by peeping one could not observe anything inside the room. The proximity in relationship between the two accused would not rule out the possibility that. they were inside the room for some innocent purpose.
10. The report of the Chemical Examiner that he had detected semen in the swabs would also not help the prosecution as the swabs were taken on the nineth day by the Lady Doctor, and according to Modi semen can remain in vagina as long as 17 days. The plea of Mst. Altaf Begum was that the complainant had sexual intercourse with her. The semen found in vagina could have been the result of sexual act by the complainant.
11. All the facts and circumstances of the case lead us to the view that the prosecution has not been able to establish the guilt of the appellants beyond reasonable doubt. As a result we accept the appeal, set aside the conviction and sentence of the appellants who shall be released forthwith if not required in any other matter.
M.Y.H./382/F.Sh. Appeal allowed.