MUHAMMAD SHARIF Versus THE STATE

NAZIR AHMAD BHATTI, J.--- Appellant Muhammad Sharif had been convicted by the learned Additional Sessions Judge, Faisalabad Camp at Samundari under .section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to undergo rigorous imprisonment for 15 years and to suffer 30 stripes. He has challenged his conviction and sentence by the appeal in hand.

2. Complainant Mst. Wallan Bibi had recorded F.I.R. on 25-5-1989 at 6-45 p.m. in Police Station Tandlianwala, District Faisalabad wherein she charged the appellant for subjecting her to Zina-bil-Jabr on 23-5-1989 at 7-00 p.m. within the limits of Chak No.424/G.B. However, the F.I.R. was cancelled whereafter a complaint was submitted in the Court of the Illaqa Magistrate on 25-6-1989 which was sent up for trial before the Additional Sessions Judge, who charged the appellant under section 10(3) of the Hudood Ordinance to which he pleaded not guilty and claimed trial.

3. Although the complainant Mst. Wallan Bibi claimed to be a virgin girl but her medical examination made by P.W.4 Lady Dr. Khalida Nazir Chatha on 26-5-1989 revealed that she was used to sexual intercourse. The tears of her hymen were old and vagina admitted two fingers easily. The vaginal swabs taken by the lady doctor were also not produced in evidence. All this would show that except her solitary statement there was no other evidence on the record to show that the complainant was subjected to Zina-bil-Jabr by the appellant as alleged by the complainant.

4. Not only that, evidence had also been brought on the record to prove that there was old enmity between the parties inasmuch as the father of the appellant had filed a complainant against the sister of the complainant and there was also a blood feud enmity with the appellant. Cancellation of the F.I.R. would also show that the allegation made by the complainant against the appellant was not based on truth.

5. From the evidence produced during the trial the offence as alleged against the appellant was not proved beyond any doubt. Consequently the appeal is accepted, the conviction and sentence passed against the appellant by the learned Additional Sessions Judge, Faisalabad on 16th of January; 1992 are set aside. He is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case.

N.H.Q./780/FSC Appeal accepted.