MUHAMMAD ARSHAD Versus THE STATE
This criminal appeal challenges the conviction and death sentence awarded to the appellants under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the Anti-Terrorism Court. The core legal question was whether the prosecution successfully established the charge of Zina beyond a reasonable doubt through unimpeachable evidence. The Lahore High Court held that the prosecution failed to prove its case due to an unexplained delay in lodging the First Information Report, the complete absence of any allegation of Zina in the initial report, material contradictions in the statements of prosecution witnesses, and the introduction of Zina allegations belatedly through a section 164 statement where the recording Magistrate was not produced at trial. The Court laid down the principle that in cases involving capital punishment, the prosecution evidence must emanate from an unimpeachable source, and any material doubts must be resolved in favor of the accused, resulting in the setting aside of the convictions and sentences, and the acquittal of the appellants.
- Whether an unexplained delay in lodging the First Information Report and the absence of initial allegations of Zina vitiate a conviction for capital offences?
- Can a statement recorded under section 164 of the Code of Criminal Procedure 1898 be treated as a substantive piece of evidence when the recording Magistrate is not produced as a witness at trial?
- Does the failure of the prosecution to present unimpeachable evidence in a capital case entitle the accused to the benefit of the doubt and subsequent acquittal?
- Section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 342, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
KHAWAJA MUHAMMAD SHARIF, J ‑‑‑This judgment will dispose of Criminal Appeal No.1026 of 1998 filed by Muhammad Arshad, Liaqat Ali and Riasat Ali, appellants who were convicted and sentenced vide judgment, dated 29‑9‑1998 by Judge, Anti‑Terrorism, Court No.II, Lahore as under:‑‑
Death under section 10(4) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Murder Reference No.488/T of 1998 for confirmation of the death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 1 mid‑night, on 15‑10‑1998 with the Revenue Estate of Pind Muridkey at a distance of 3 kilometres from Police Station City Muridkey while the matter was reported by Mst. Rashida Bibi at 8‑25 p.m. on 15‑10‑1997 through complaint Exh.P.A. and the formal F.I.R. Exh.P.A./1 was recorded by Amanat Ali.
3. Briefly stated the facts of the case are that on 15‑10‑1997 Mst. Rasheeda Bibi, complainant got registered a case alleging that on the night, she was sleeping with her husband and other family members in a room of their house. At about 1 mid‑night, Mst. Nasreen daughter of the complainant raised a cry on which the complainant and her husband woke up. They saw Muhammad Arshad, Liaqat Ali and Riasat Ali standing near the cot of daughter of the complainant and were doing obscene acts by holding Mst. Nasreen from her arms. Light was on in the room. On seeing the complainant and her husband, the accused ran away. It was also stated by the complainant that two ladies suit and Rs.5,000 which were kept in the trunk were missing. According to the complainant, the accused have outraged the modesty of her daughter.
4. After registration of the formal F.I.R, investigation of the case was taken over by Mushtaq Ahmad, A.S.‑I. (P.W.5). He went to the spot, prepared rough site plan Exh.P.D., recorded the statements of Mst. Nasreen and her father, on 16‑10‑1997, he arrested Liaqat Ali and Riasat Ali, accused, got them medically examined from the doctor and also got Mst. Nasreen medically examined from a lady doctor. After completion of the remaining formal investigation, all the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced five witnesses in all, Moazzam Ali, S.‑I. was examined as C.W.1, thereafter statements of accused were recorded under section 342, Cr.P.C., then statements of 2 D.Ws. were also recorded, however, after conclusion of the trial, the accused were convicted and sentenced as noted above
6. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that there is no mention of Zina having been committed by the appellants with the victim lady in the F.I.R. the victim made different statements before the police which are mark "A" and "DA" on the file of this paper book, it was only in her statement under section 164, Cr.P.C. made before the Magistrate which was recorded on 12‑11‑1997 that she levelled allegation of Zina against the appellants, Sadiq, father of the victim also did not level allegation of Zina against the appellants in his statement before the police which is marked as Exh.D.B., there is also no mention of Arshad accused having been arrested at the spot in the F.I.R., which was recorded after due deliberation and consultation, the matter was reported to the police at police post but the complainant submitted that her son informed the police and brought the police at the spot where the F.I.R. was recorded, in fact one Advocate by the name of Muhammad Riaz Noul was pursuing this case against the appellants due to enmity, there are material contradictions in the statements of the P.Ws., the complainant party does not enjoy good reputation and has referred to Exh.D.E. which is a copy of the F.I.R. registered with Police Station Lower Mall, Lahore under sections 10/11/13 and 14 of Ordinance VII of 1979 and that the prosecution has not been able to prove its case against the appellants, hence the appellants are entitled to acquittal.
7. Learned counsel for the State was unable to rebut the submissions made by learned counsel for the appellants.
8. We have heard learned counsel for the appellants and have gone through the record with their able assistance. In the instant case, F.I.R. was lodged by Mst. Rashida Bibi, father of victim Mst. Nasreen Bibi with a delay of 18 hours though the distance between the place of occurrence and the police station was 3 kilometres. In whole of the F.I.R., Exh.P.A., there is no allegation of Zina against any of the appellant. The only allegations levelled in the F.I.R. are that all the three accused were seen standing nearby the cot of Mst. Nasreen holding her from arms and doing obscene acts. There is also no mention of Arshad, I accused having been arrested. at the spot and handed over to police. In the statements of Mst. Rashida Ribi, mother of victim (P.W.2), Muhammad Sadiq (P.W.4) father of victim and Mst. Nasreen the victim herself who was examined as P.W.3, there are material contradictions.
They were duly, confronted with their statements made before the police. Mst. Nasreen is the star‑witness of the prosecution. She did not level any allegation of Zina against the appellants in her statements made before the police and it was only on 12‑11‑1997 when her statement was recorded under section 164, Cr.P.C. by the learned Magistrate who was never produced by the prosecution and after a delay of 27 days she levelled the allegation of Zina against the appellants. The Magistrate having not been produced by the prosecution, statement of Mst. Nasreen, Akhtar cannot be treated to bed substantive piece of evidence.
9. During the course of investigation, no clothes of the victim lady stained with semen or blood were taken into possession by the police during the course of investigation. According to medico‑legal report submitted by Dr. Ishra Fayyaz (P.W.7) there was no mark of violence on any part of body of the victim. The period when the sexual intercourse, was committed with the victim has not, been determined by the examining lady doctor nor the prosecution put any question on the said P.W.
10. After having viewed the facts of the case and the evidence brought on record from both the sides, we are of the considered opinion that it is a case in which the prosecution has badly failed to bring home the guilt against the accused. In a case of capital punishment, the evidence must have come from an unimpeachable source which factor is missing in the instant case. To our mind, the case is pregnant with doubts and doubts. So while extending the benefit of doubt, we accept this appeal. set aside the conviction and sentence recorded by the learned trial Court and acquit the appellants from the charge. The death sentence of all the three convicts is not confirmed. Murder Reference is replied in the negative. All the three appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
N.H.Q/M‑1067/L
Appeal accepted.