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Petitioner: IJAZ AHMAD VS Respondent: STATE
1994 P Cr
1994 P Cr. L J 1609
[Federal Shariat Court]
Before Nazir Ahmad Bhatti, J
IJAZ AHMAD---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.15/L of 1994, decided on 13thFebruary, 1994.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----S. 18/10(2)---Appreciation of evidence---Accused at the time of raid by police party was not found actually committing Zina with the female accused, but both were found only in naked condition---Accused was given benefit of doubt and acquitted in circumstances.
Malik Nazir Fareed Khokhar for Appellant.
Khalid Mahmood Farooqui for the State.
Date of hearing: 13th February, 1994.
JUDGMENT
Ijaz Ahmad appellant herein, was convicted by Additional Sessions Judge; Okara under section 18 read with section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by judgment, dated 19-12-1993 and sentenced to undergone rigorous imprisonment for 3 years. He has challenged his conviction and sentence by the appeal in hand. His co-accused Mst. Guddo was also convicted for the said offence and sentenced to imprisonment already undergone as under-trial prisoner. The latter has not filed any appeal.
2. The facts relevant for the purpose of this appeal are that upon information received by A.S.I. Ghulam Dastgir of Police Station "B" Division, Okara that one Mst. Hamidan resident of Nai Abadi Chakla, Okara was running a prostitution den in her house, the said A.S.I. alongwith a police party raided the house of the said woman at about 5-00 p.m. on 17-1-1992 and found appellant Ijaz Ahmad and his co-accused Mst. Guddo committing Zina with each other. The said A.S.I. arrested both the accused and after investigation sent them for trial before the Additional Sessions Judge, Okara who charged them under section 10(2) of the Hudood Ordinance to which they pleaded not guilty and claimed trial;
3. During the trial 5 witnesses were produced on behalf of the prosecution who were all police officials. Both the accused made statement under section 342, Cr.P.C. but none of them made any deposition on oath. The appellant produced one defence witness who was his father.
4. Although the F.I.R. disclosed that the appellant and his female co- accused were caught by the police party when they were actually committing Zina with each other but during the trial P.W. Ghulam Sarwar H.C. who was member of the raiding party, stated that both the accused were found in naked condition and the investigation officer apprehended both of them. This would t show that both the accused were not found actually committing Zina with each other and on the contrary they were found only in naked condition from which it could not ascertained whether they had been apprehended while committing Zina with each other.
5. Reasonable doubt had been created in the prosecution case the benefit of which must go to the appellant. The appeal is accepted. The conviction and sentence of the appellant recorded on 19-12-1993 by the learned Additional Sessions Judge, Okara are set aside and he is acquitted of the offence for which he was convicted and sentenced. He is on bail. His bail bonds, stand discharged.
N.H.Q/884/FSC Appeal accepted.