KHALID MAHMOOD Versus THE STATE
This judgment will dispose of the instant appeal (Criminal Appeal No:445/L of 1990) by Khalid Mahmood (31 years), son of Taj Din, caste Jat, Auto Electrician, resident of House No.22/3, Mohallah Islam Khan, inside Bhatti Gate, Lahore and the connected Appeal No.446/L of 1990, by Mst. Shahnaz (38 years), wife of Aslam, caste Mughal, resident of House No.68, Gali Kakezaian, Shahdara Town, Lahore, which are directed against the judgment of the learned Additional Sessions Judge, Lahore, dated the 6th December, 1990, whereby the appellants, Khalid Mahmood and Mst. Shahnaz, were convicted of the commission of offence of Zina and were sentenced under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), to five years' rigorous imprisonment, 30 stripes of whipping, fine of Rs.1,000, in default of payment thereof to further 6 months' rigorous imprisonment and to four years' rigorous imprisonment, 30 stripes of whipping, fine of Rs.500 and in default of payment thereof to further rigorous imprisonment for three months respectively. Shortly stated the facts of the prosecution version of the case laid against the appellant are that on the 28th August, 1986, at about 2-45 p.m. on receipt of secret information, Ghulam Hussain, Sub-Inspector of Police, Police Station Gowalmandi, Lahore, P.W.8, in the company of, among others, Irshad Ahmad, Assistant Sub-Inspector of Police, P.W.4 and Ishfaque Hussain, Head Constable, P.W.5, conducted raid at Room No.10 of Khadim Hotel, situate on Circular Road near Shah Alam Market, Lahore, and found the appellants committing Zina therein. The appellants were taken into custody and subsequently got medically examined. Dr. Qamar-ud-Din Qadir, P.W.7, opined that there was no hindrance in the way of Khalid Mahmood in performing sexual act. Lady Doctor Kokab Akbar, who conducted medico-legal examination of Mst. Shahnaz, could not be produced by the prosecution as she had gone abroad. The prosecution did not take any step to prove her medico-legal examination report.
2. As alleged by the prosecution the proprietor of the hotel, Javed Butt, was found present in front of Room No.10 as he was keeping watch. He was booked by the police for alleged commission of offence punishable under section 13 of the Ordinance. However, he was acquitted by the learned trial Court of the charge levelled against him.
3. The personal search of Mst. Shahnaz yielded a Rs.100 currency note. Apart from commission of Zina, Khalid Mahmood was charged with hiring Mst. Shahnaz for purpose of prostitution and illicit intercourse, an offence punishable under section 14 of the Ordinance. Nevertheless, this charge was considered by the trial Court not to have been proved and he was acquitted of the same.
4. The prosecution evidence against the appellants consisted of depositions of Ghulam Hussain, P.W.8, Irshad Ahmad, P.W.4, and Ishfaque
Hussain, P.W.5, all the three police officials. They testified that they had gone to Room No.10 of Khadim Hotel and had seen through the ventilator above the door of the room that the appellants had been committing Zina.
5. Javed Butt, the acquitted co-accused of the appellants, described the case to be false one and to have been cooked up by the police at the instance of Billa Pehalwan due to his enmity with him. His version of how the case had been cooked up is reflected in the following answer that he gave to the question asking him as to why the case had been set up and why the P.Ws. deposed against him,---
"I have been falsely involved in the instant case which has been cooked up by the police against me at the instance of Billa Pehalwan due to enmity with him and it is also stated that Billa Pehalwan was having relations with police and in order to avenge his enmity he got this false raid conducted on my hotel and the police officials fabricated this false story in order to save their skin for conducting this illegal raid on my hotel and to save themselves from the highhandedness which they had shown by conducting this illegal raid on my hotel in my absence when I had gone to my house. It is further stated that as a matter of fact I had gone to police station to inquire that why the raid was conducted at my hotel the police arrested me in the police station.
The P.Ws. are the police officials and they have deposed against me being interested in my prosecution and to secure the success of the false case against me. It is also admitted that the police officials had joined hands with Billa Pehalwan and due to that reason they have deposed falsely in order to prove their false case against me:.?
It may be noticed in passing that Ghulam Hussain, P.W.8, admitted that Billa Pehalwan, who was owner of truck stand which was situated close to Khadim Hotel, had good relations with police officials and he often visited the police station and further that he had got a case under section 307 of the Pakistan Penal Code registered against Javed Butt who had ultimately been acquitted.
6. Khalid Mahmood stated that he had been taking meal in Khadim Hotel when a raid had been conducted by the police at the instance of Billa Pehalwan and a false case had been set up against him as well as against Javed Butt in order to take revenge against him. He denied his acquaintance with Mst. Shahnaz or that he had committed Zina with her. His examination is reproduced below:--
"I was taking meal in the hotel which belongs to co-accused Javed Butt who is having enmity with Billa Pehalwan and raid was conducted at the instance of Billa Pehalwan and I was arrested in order to register a false case against Javed Butt and to secure his involvement in order to take revenge from Javed Butt. It is also stated that the entire story is fabricated and is cooked up by the police to support the false case as contained in F.I.R.
The P.Ws. are the only police officials who were the members of the raiding party and who were interested to secure my conviction and to seek the success of the false prosecution and to save their skin for registering this false case. I was taken by the police to the police station from the restaurant while I was taking my meal and it is also stated that Y have been falsely involved in this case due to my friendship with Javed co-accused and it is also stated that I had never indulged in Zina nor I know Mst. Shahnaz co-accused."
7. Mst. Shahnaz gave her own narration of the incident relating to her involvement in the case. She said that she alongwith her son, Umar Farooq, D.W.1, had been coming back from Shah Alam Market after making purchases when her son insisted upon taking meal and on seeing the hotel (Khadim Hotel) she and her son had gone inside the restaurant to take meal. She added that she and her son had been taking meal and 4/5 other persons had also been taking meal when the police came over there and took them to the police station where she was arrested in a false case though her son was released. She further stated that police had also released 4/5 other persons whom they had taken to the police station for consideration best known to them. She expressed her ignorance about Khalid Mahmood and Javed Butt and asserted that she had never been arrested from any room of the hotel nor she had indulged in Zina with any person. She also stated that police had fabricated false story for their own ulterior motives and to save their skin from the criminal liability. She emphasised that she was a married woman having 5 grown up children with pious life to her credit with no previous criminal history.
8. Mst. Shahnaz produced her son, Umar Farooq, aged 19 years, D.W.1, in support of her version of the case. Umar Farooq testified that on the 28th August, 1986, at about 2 or 2-30 p.m, he and his mother, Mst. Shahnaz Begum, had been coming back after purchasing goods and had been on their way to McLeod Road for further purchases when nearing Khadim Hotel he had expressed his feeling of hunger to her mother and he and her mother had gone to the restaurant of Khadim Hotel for taking meal. He further stated that after about 5 or 10 minutes police party had raided the restaurant and he and his mother, while taking meal, had been apprehended alongwith 5 or 6 other persons who had been sitting on different tables. Continuing his statement he said that the police party had taken them to police station Gowalmandi, that the police had, taken into possession Rs.1,000 and his identity card from him and allowed him to go home with the goods which had been purchased by them and that they had arrested his mother in a false case.
9. The learned counsel for the appellants contended ,that the police wanted to involve the proprietor of Khadim Hotel, Javed Butt, at the instigation of Billa Pehalwan who was at daggers drawn with Javed Butt but had amicable relations with the police and in order to make out a case against Javed Butt had falsely enroped the appellants. The learned counsel submitted that the testimony of Umar Farooq, grown up son of Mst. Shahnaz, rang truth because had Mst. Shahnaz been involved in the ugly affair, as alleged by the prosecution witnesses, her son, who was a youngman of 19 years, would not have come forward to say a word in her favour.
10. The learned counsel contended, and this was the admitted position, that the place of occurrence was inhabited all around and frequented by many people but the police did not associate any public man with the proceedings touching the occurrence. The prosecution did not give any explanation for not joining any public man to witness the occurrence. There was no question of non-availability of witnesses from the public. In the absence of any explanation coming forth from the prosecution it would be rather unsafe to bank upon the depositions of policemen to hold the appellants guilty of the commission of Zina. There is complete lack of independent evidence in support to the prosecution evidence given by policemen. Even the learned counsel for the State was of the view that it was not desirable and safe to make the evidence of police officials, without any corroboration from independent source, especially when the proprietor of the hotel had enmity with a person who had good relations with the police and who was harking that the case had been set up simply to harm him, as basis of conviction of the appellants for the commission of such a heinous crime as of Zina.
11. In the circumstances of the case the charge of commission of Zina cannot be said to have been brought, home to the appellants beyond a reasonable manner of doubt. Consequently the appeals are accepted, conviction of the appellants and sentence awarded to them are set aside and they are acquitted. They shall be set at liberty forthwith if their detention is not required in connection with in any other case.
N.H.Q./897/FSC ???????????????????????????????????????????????????????????????????????????????? Appeals accepted.