FIDA HUSSAIN Versus THE STATE

MUHAMMAD MUNIR KHAN, J.---This appeal (Criminal Appeal No,7-S of 1993) arises from the facts that Fida Hussain appellant was tried by the Additional Sessions Judge-II, Muzaffargarh Camp at Alipur, on the charge of committing Zina-bil-Jabr with Mst. Shamim (P.W. 4) on 25-8-1987 at Peshiwela time, in her house situate at Mauza Jhuggiwala, who, on 19-3-1991, convicted him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced him to ten years' R.I. And thirty stripes. On appeal filed by him against his conviction and sentence, the Federal Shariat Court vide judgment dated 30-3-1992 set aside his conviction under section 10(3) of the Ordinance and sentenced him to five years' R.I. And thirty stripes. Feeling aggrieved thereby, he filed petition for leave to appeal in this Court which was granted in January, 1993 to consider as to whether the conviction recorded under section 10(2) of the Ordinance, without strong corroboration, was possible and if so, whether there was any corroboration of the statement of Mst. Shamim.

2.Appearing as P.W.4, Mst. Shamim stated that at the eventful time she was sitting in her house when Fida Hussain came there, caught hold of her, took her inside the room of the house, took out a Chhurra and threatening her with dire consequences committed Zina-bil-Jabr with her. The alarm raised by her attracted Mehmood Hussain P.W. 5 and Murid Hussain to the spot and on seeing them Fida Hussain ran away from the place of occurrence. Murid Hussain was not produced by the prosecution. Mehmood Hussain appeared as P.W.S. He stated that when he alongwith Murid Hussain reached near the house of Mst. Shamim, they saw Fida Hussain running out of the house having Chaddar in his hand. Mst. Shamim was raising alarm shouting that Fida Hussain had committed Zina-bil-Jabr with her. When they followed the accused, he threatened them showing Chhurra and ran away. He further stated that Mst. Shamim had narrated to them that Fida Hussain had committed Zina-bil-Jabr with her.

3.Lady Doctor Razia Mahboob P.W.1 had examined Mst. Shamim. There was no mark of violence on any part of her body. She took viginal swabs and sent the same to the Chemical Examiner. The report of the Chemical Examiner Exh.PB revealed that the swabs were stained with semen. In view of the report of the Chemical Examiner the Lady Doctor was of the opinion that the sexual act had been committed with Mst. Shamim. When examined under section 342. Cr.P.C., the accused denied all the incriminating circumstances.

4.After hearing the learned counsel for the parties the Federal Shariat Court came to the conclusion that Mst. Shamim was a consenting party. Consequently, the conviction under section 10(3) of the Ordinance was altered to one under section 10(2) of the Ordinance.

5.We find that since Mst. Shamim was found to be a consenting party and her statement that she was subjected to Zina-bil-Jabr was not believed by the Federal Shariat Court, her evidence cannot and should not be believed, more particularly, in Hudood cases. The statement made by Mehmood Hussain (P.W.5) does not take the prosecution case any further because he had not seen the appellant committing Zina-bil-Jabr with Mst. Shamim. His statement that he had seen the appellant running out of the house of Mst. Shamim with a Chhurra in his hands may create suspicions against the appellant but suspicions after all are suspicions and do not furnish safe foundation for conviction. For all these reasons, we are of the view that prosecution has not been able to prove its case against the appellant beyond reasonable doubt.

6.The upshot of the above discussion is that while giving the benefit of doubt, the appeal is accepted. The impugned judgment is set aside and the appellant is acquitted of the charge. He is already on bail. He stands discharged of the bail bonds.