Mst. SAJIDA alias SHAZIA and another Versus THE STATE

Mst. Sajida alias Shazia and Mst. Sarwar alias Sarwari have filed this joint Criminal Appeal No.39/I of 2004 against the judgment, dated 24‑1‑2004 of the Additional Sessions Judge, Layyah.

2. Mst. Sajida has been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance to two years' R.I. with a fine of Rs.1,000 and in default to further suffer imprisonment for one week. Mst. Sarwari has been convicted under section 10(2) of the said Ordinance to three years' R.I. with a fine of Rs.2,000 and in defaul to further suffer imprisonment for fifteen days. Benefit of section 382‑B, Cr.P.C. was given to both the appellants.

3. The case of the prosecution is that Mst. Sarwar alias Sarwari was running a brother house and hires women for illicit intercourse.

4. F.I.R. No.94, dated 1‑4‑2003 at about 12‑55 p.m. Police Station Chowk Azam, District Layyah was registered at the instance of one Najaf Hussain, S.‑I. under sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance,.

5. Both the appellants were granted bail by the Honourable Chief Justice by order, dated 27‑2‑2004 on the ground that the sentence was short medical evidence was negative.

6. "The information regarding brothel house was furnished by P.W.4 Munawar Hussain who deposed that on 1‑4‑2003 he and Ashraf, P.W. were told by some persons of locality that Zina was being committed in the house of Mst. Sarwari accused. Then they went to the house of Jumma Gut who joined them. All the persons reached the house of Mst. Sarwari and knocked the door and entered her house and they saw that Zina was being committed in the house.

7. Jumma Gul, P. W .3 corroborated the statement of P. W .4 Munawar Hussain.

8. The most important statement is that of P.W.1, Rizwana Rafique, W.M.O. who medically examined both the appellants and she sent three vaginal swabs to the Chemical Examiner through the police.

According to her statement the report of the Chemical Examiner was negative to the effect that the swabs were found not stained with semen. The reports of the Chemical Examiner are Exh.P.B. and Exh.P.D. of 15‑4‑2003.

9. After prosecution evidence Mst. Sarwari appellant was examine under section 342, Cr.P.C. on 15‑1‑2004 and she pleaded innocence on the basis of report of the Chemical Examiner. She deposed about herself as a pious house‑hold lady, denied the running of the brothel house or hiring of any woman for the purpose stating that all the P.Ws. are a an At Chowk Azam and‑stock‑witnesses of the police and Najaf Hussain, S.‑I. is member of them and they involve innocent people in the false cases and extort money and fulfil their immoral demand, Jumma Gut does not reside in Ward No.4 and himself had bad eye on Mst. Sajida (one of the appellants) and tried to develop illicit relations with her and for this she and Sajida have insulted Jumma Gut time and again, P.Ws. and the I.O. in utter disregard of Injunctions of Qur'an and Sunnah falsely deposed, against me in totally false case, none of the accused has DRAW committed the sin of Zina and none of the P.Ws. saw my co‑accused committing Zina with Mst. Sajida, due to innocence none df the residents of my Mohallah and contiguous house has supported the prosecution version, no case stands registered against her earlier, TV, VCP and Cassettes belonging to her were illegally planted and these are not the case property and were brought to the police station without any case, whole of the prosecution story is false, Mst. Sajida, had also insulted Munawar Hussain, P. W . and had abused him as he had a bad eye on her. She finally deposed that the prosecution witnesses are inimical to her and deposed falsely and none of the co‑accused paid any money to her nor any amount was produced before the I.O.

10. Same is the reply of Mst. Sajida under section 342, Cr.P.C. on, 15‑1‑2004.

11. It is clearly stated in the F.I.R. that Munawar Hussain and Jumma Gut entered into the house of Mst. Sarwari an aged lady without any authority and the entire case has been made at the instance of Jumma Gut with the aid of Munawar Hussain.

12. At the time of arguments it was felt necessary that both Jumma Gul and Munawar Hussain should be summoned in the Court to explain under what law they have trespassed into the house of Mst. Sarwari and why they have violated the home privacy of, this old lady.

13. In response to the notice they entered appearance and could not offer sufficient explanation. On the contrary the learned counsel for the appellants pointed out certain copies of the F.I.Rs. on the record showing that Jumma Gut was complainant in all these cases and they relate to Hudood offences. According to the learned counsel Jumma Gul would implicate innocent persons and then would disappear, resulting in the dismissal of the cases, this, action of Jumma Gul was to extort money from the innocent people. These cases were confronted and Jumma Gul admitted that he was complainant in the criminal cases.

14. Munawar Hussain when confronted as to under what authority he and others had trespassed into the house and violated the home privacy, he kept mum with observation that he acted in response to the call of some Mohallahdars. At this stage it is absolutely essential to state that no inhabitants of the locality came forward as P.W. to support the prosecution story and the entire evidence of the case mostly consists of Munawar Hussain P.W.4 and Jumma Gul P.W.3 with Najaf Abbas, S.‑I. as P.W.9 who was the complainant in this case.

15. On the question of home privacy it has been held in Abdul Qayyum v. The State 1991 PCr.LJ 568 that, "house of a person under Islamic Law is a fortress. Sanctity of privacy of its inmates must be ensured at all costs". The basic law is ensured in Article 14 of the Constitution of Islamic Republic of Pakistan to the following" effect:‑

"The dignity of man and, subject to law, the privacy of home, shall be inviolable."

16. There is' a host of law that the home privacy Reliance is placed on Riaz v. S.H.O. Police Station Jhang City and 2' others PLD 1988 Lah. Page 35, Khawaja Ahmad Tariq Rahim , v.' Federation of Pakistan and another PLD 1991 Lah. Page, 78 regarding taping of telephones and it is held that Article 14 guarantees that the dignity of a man and subject to law the privacy of home shall be inviolable.

17. It is absolutely unnecessary to refer to other P.Ws.

18. Both Jumma Gul and Munawar Hussain were asked to produce,'' their identity cards as well as intimate the number of the respective house where they were living in Wards No.4 Chowk Azam. They failed to do so stating that identity cards have not been issued to them nor they were able to give their respective residence house, No. which is ,a clearly presumption that they were not living in Ward No. 4 Chowk Azam where the occurrence had taken place. This proves that they were outsiders.

19. Both the aforementioned persons were arrested on 29‑4‑2004 to ensure their presence the case was adjourned to 19‑5‑2004 for further proceeding. Brig. (Retd.) Ali Ahmad a registered Advocate with this Court was asked to assist in this case.

20. Najaf Hussain, S.‑I. P.W.9 frankly conceded in the cross-examination denying any permission to Jumma Gul .and Munawar Hussain to trespass into the house of Mst. Sarwari. He deposed that, "It is correct that to enter in the house of a person is an offence. It is correct that where accused were produced before me, there are houses and shops. I have not cited any witness in challan from the place where the accused were produced before me".

21. When the case came up for final hearing on 19‑5‑2004, Mr. Saeed Yousaf Khan, Advocate appeared on behalf of Jumma Gul and Munawar Hussain, Mr. Shafqat Munir, Assistant Advocate‑General with Mr. Rafaqat Ali, Advocate for State and Brig. (Recd.) Ali Ahmad, Advocate was asked to assist in this case.

22. A short order was passed on 29‑4‑2004 where the learned Assistant Advocate‑General did not support the conviction order, dated 24‑1‑2004 of the learned Additional Sessions Judge, Layyah and the same was set aside and the appellants in this case‑ were acquitted, even otherwise the impugned order was ' bad in law. It is for this reason that the appellants and their counsel are not present on the final hearing.

23. Brig. (Retd.) Ali Ahmed, learned Advocate took lot of pain and argued that the two informer, namely Jumma Gul and Munawar Hussain may be convicted as they are guilty violated the home privacy which cannot be allowed at any cost under Injunctions of Qur'an and Sunnah. In this view, he has also recited certain Verses of Holy Qur'an. He was further of the view that the conduct of the foregoing two persons is such that they are perpetrators to cause harassment to innocent people fraudulently. He stated that the present case is one where the old lady has been subject to considerable mental agony and torture. According to him "imagine the situation where a house lady is in her house and all of a sudden the intruders namely Jumma Gul and Munawar Hussain trespassed into her house for inventing a false case".

24. Mst. Sarwari aged 50/60 was also present in the Court with a great mental tension and tears in her eyes.

25. Coming to the merits of the appeal it is not necessary to go deeper except to read the statement of the Lady Dr. and also the negative reports of the Chemical Examiner, dated 15‑4‑2003 proving unmistakably that offence of Zina has not been committed and the appellants have falsely implicated. It is for this reason that the Assistant Advocate‑General did not support the impugned order and finally the same was the view of Brig. (Retd.) Ali Ahmad, Advocate.

26. After going through the evidence and the record, I am of the view that the two innocent ladies' alongwith others have been falsely roped in and the trial Court shut his eyes to the most vital issues otherwise the impugned order could not have been passed.

27. Considering all the circumstances of the case, I have no discretion but to accept the joint appeal. The impugned judgment dated 24‑1‑2004 is set aside. Both the appellants are on bail and their surety bonds are discharged.

28. These are my reasoning in support of short order, dated 29‑4‑2004.

29. As far as Suo Motu Revision No.6/I of 2004 against the two persons namely Jumma Gul and Munawar Hussain is concerned, their counsel did not appear in the morning but after some time he submitted two applications once behalf of Jumma Gul and the other on behalf of Munawar Hussain admitting their guilt and at the same time tendered unqualified apology that in future they will not repeat such‑like offence as has happened in the present case. These applications are on record marked as "A" and "B" and also signed by the learned counsel Mr. M. Saeed Yousaf Khan, Advocate who orally undertook to prevail upon his clients not to enter into such‑like illegality as has committed by them. The applicants have further undertaken to furnish sureties in this regard.

30. I have considered the matter and am of the opinion that Jummal Gul and Munawar. Hussain should furnish surety bonds for good behaviour in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. They shall also file surety bonds before the Illaqa Magistrate as well as before the S.H.O Police Station Chowk Azam.

31. Jumma Gul states that he has 9 children and if convicted, his whole family will be subjected to starvation. Similar plea is advanced by Munawar Hussain.

32. In view of the above undertaking I am inclined to discharge suo motu notice against Jumma Gul and Munawar Hussain.

33. The. S.H.O. Police Station Chowk Azam will approach the aforementioned two ladies to console them with an assurance that they will not be subjected to any harassment in future and intimation to this effect shall be filed in writing in this learned Court.

N.H.Q./47/FSC Appeal accepted.