S B L R 2006 FSC

[Federal Shariat Court]

Present: Mr. Justice S. A. Rabbani, J.

Babar & others---Appellants.

Versus

The State---Respondent

Criminal Appeal No.221-I-2005, decided on 2nd November 2005,

A) Officer of zina (enforcement of Hudood) Ordinance, 1979, Section 10(2)---Appeal against connection, allowed---only police personnel were examined---no recorvery was made from the room of hoted---no person from the administration of holed that police witness are good witnesses but trial Court is under duty to examine the evidence of police Officials carefully and skeptically when their evidence is not corroborated by independent evidence.

B) Criminal Procedure Code,1898 Section 367---Requirement of---points for determination of Judgment were not mentioned as requirement by this section---lengthy judgment without points of establishing evidence indicates incompetence or dishonesty of trial Judge which is not sustainable in law---appeal allowed conviction set aside.

JUDGMENT

S. A. RABBANI,J. The two men and two woman filed this appeal, were jointly tried before the Additional Sessions Judge Jhang on the Charge under section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Mr. Akmal Khan Additional Sessions Judge, Convicted all of them on the said charge and sentenced each of them to five years rigorous imprisonment, with a fina of Rs. 10,000/-.

2. The prosecution story was that S.I Muhammad Akmal, Incharge Police Post, Ali Abad Police Station Katwali, district, Jhang, conducted a raid at Al-Noor Hotal, on 28.10.2004 at about 2.30 a.m (night), where he found that these four appellants were engaged in commission os Zina in one room of the hotal, door of which was not locked and was a bit open. He arrested the accused/appellant and, after investigation, sent them up for trial.

3. The F.I.R was also lodeged by this investigation subordinate to him and one Dr.Kausar Parveen. The appellant accuased, in their statements recorded under section 324 Cr.P.C, before the trial court, denied the charge against them they said that they were coming back after attending a ceremony and when they reached Jhang at the time of ‘sehri’ during Ramzan, they went to Al-noor hotel and while they were taking meals, the police came and started questioning them and demanded illegal gratification and on refusal to pay the illegal gratification, they were involved in this false case.

4. Malik Rab Nawaz Noon. Learned counsel for the appellant, pointed out that though the appellant were arrested in a hotel no person from the hotel administration was joined in the investigation nor and thing was secured from the room where the alleged offence was being committed. He further pointed out that the swabs taken during the medical examination were sent to Chemical examiner after days. The learned counsel contended that althought the witnesses are sudordinate to the investigation officer, eben then there are material contradictions in their evidence, such as one witness says that the door of the room had one plank and the other says that it hd two planks. He submitted that the investigation officer admitted that he did not join in investigation any body from the hotel staff or other persons, although a witness says that some persons were present there.

5. Mr. Muhammad Sharif Janjua, learned State counsel, supported the conviction and sentences and submitted that despite the fact that no record of the hotel was secured and produced in evidence, the fact is that the appellant were arrested from the hotel.

6. The prosecution story, made by the investigation officer, S.I Muhammad Akram that the two couples were engaged in commission of zina on one bed, in the same room, with an open door in a hotel, looks odd and the fact that record of the hotel about stay of the appellant there was secured and produced nor any body from the staff of the hotel or any persons staying there was joined in investigation and much a witness, makes it absurd.

7. The word of the investigation officer, corroborated by the version of six police constable subordinate to him, could not be deemed adequate for proof of the charge in the circumstances. The evidence of the medical officer would also add veracity to the evidence of these witnesses.

8. The learned judge of the trial court observed that, according to law, police officials are as good witnesses as any other witness when there is no animosity alleged against them. Despite this, law there remains a duty on a trial court examine the evidence of police officials carefully and skeptically when their evidence is not corroborated by independent evidence. Man cannot be made through law. About the motive, the appellant have alleged that the investigation officer demanded illegal gratification and involved them in this false case on their refusal. It is not necessary that should be a previous animosity with the police witnesses to discared their evidence.

9. The learned judge of the trial court did not mention points for determination in his judgment, as is required by section 367 Criminal Procedure Code, and after narrating and disusing the evidence, he observed that in view of that disussion the prosecution case was proved beyond a shadow of doubt. It was not clearly mentioned as to which pints were established by the evidence to constitute the charge against the accused persons.

10. An unnecessary lengthy judgment indicates that the author of the judgment is either incompetent of dishonest. He is incompetent because he is unable to decide as to what material is necessary ti insert in the judgment and what is not required for the reason that it would add noting meaningful to it. The author of a lengthy judgment would be dishonest when he gives a verdict that is not the logical outcome of the evidence and material on record and, to justify the verdict he adds more material. As far one travels from the truth, as much material he needs to justify it.

11. The evidence of the medical officer was inconsequential as there was no credible direct evidence to which of would corroborate. The evidence of other witnesses lacked veracity for proof of the incredible prosecution story. No record of the hotel was produced to established that the appellant/accused were staying in that hotel. The evidence placed on record could not be deemd sufficient by a man of ordinary prudence for proof of the charge. The impugned judgment and the consequent and sentences awarded to the appellant are not sustainable and, accordingly, the appeal is allowed and conviction and sentences awarded to the appellants are set saide. The appellant shall be released forthwith in this case.