JAHANGIR Versus THE STATE Syed Shabbar Raza Rizvi , Pervaiz Alamgir

KAMAL MUSTAFA BOKHARY, J.-- Jahangir son of Lai and Mst. Zubaida Bibi daughter of Ahmad Ali, both residents of district Okara, were convicted by the Sessions Judge, Okara, on 12-7-1987, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and were sentenced to undergo rigorous imprisonment for ten years each and to whipping numbering thirty stripes each. Jahangir appellant was also convicted under section 16 of the said Ordinance and was sentenced to suffer seven years' R.I. and to whipping numbering thirty stripes. They filed separate appeals against it bearing Criminal Appeal No. 201/L of 1987 and Criminal Appeal No. 197/L of 1987. This judgment will dispose of both the appeals.

2. Ahmad Ail was a labourer, residing in Chak No. 40/D, district Okara and his daughter Mst. Zubaida appellant from his former wife also resided with him alongwith her son. Three months earlier at about evening time when he and his wife was not in the house and Mst. Zubaida Bibi appellant with her son was present in the house, Jahangir appellant alongwith six others enticed her away. On return home, Ahmad Ali was told by Sher Muhammad and Azam that Jahangir appellant and others had taken away his daughter, Mst. Zubaida, in a car and the appellant told the witnesses that they were taking Mst. Bashiran wife of Ahmad Ali to the hospital and Mst. Zubaida will stay with her in the hospital. On an application, dated 21-10-1985, addressed to the Additional Superintendent of Police, Depalpur, formal first information report was registered at Police Station, Depalpur on 27-10-1985 at 3-15 p.m., about three months after the occurrence. After completion of investigation Muhammad Sharif, P.W., challaned the appellants in Court.

3. At the trial, prosecution examined four witnesses in all. Muhammad Sharif Police Sub-Inspector proved investigation conducted by him. Sher Muhammad and Azam who saw the appellants together in the car and told the first informant about it did not support the prosecution, both were declared hostile and were cross-examined by the prosecution. Ahmad Ali (P.W.1), first informant, father of Mst. Zubaida appellant, narrated the facts stated by him in the first information report.

4. The appellants pleaded not 'guilty to the charges. Jahangir appellant denied that Mst. Zubaida appellant was his wife and was living with him and stated that he had been falsely involved in the case. Mst. Zubaida appellant stated that she was married to Allah Ditta who had not divorced her so far but due to domestic dispute with him she left her house and was living with his relative in Tehsil Pakpattan due to which her father lodged the present cage although she was innocent. Exh. D.A. to Exh. D.E. were placed on record showing her marriage with Allah Ditta and litigation with him for dissolution of marriage.

5. The trial Court convicted the appellants on the testimony of Ahmed Ali, father of Mst. Zubaida appellant and of Azam, P.W. From the perusal of record we find that Mst. Zubaida appellant is alleged to have left the house when her father Ahmad Ali was not present! There is no other evidence on record that she was enticed away by Jahangir, appellant. She was a married woman, aged about 23 years and had the rights to live away from her husband. There is no evidence except the bare statement of Ahmad Ali to prove that she lived with Jahangir appellant as his wife. Azam and Sher Muhammad, A P.Ws. did not support the prosecution, they were declared hostile and were cross-examined by the prosecution. Their testimony is ruled out of consideration. We find that prosecution failed to establish its case and appellants are entitled to benefit of doubt.

6. For the above reasons, the appeals are allowed, conviction and sentences of the appellants are set aside.

S.A./379/F.Sh. ???????????????????????????????????????????????????????????????????????????????????? Appeals accepted.