Law:

Section:

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--   ---S.10(2)--Criminal Procedure Code (V of 1898), S.,164(1-A)--Zina, offence of--Manner in which statement of prosecutrix recorded under S: 164, Cr.P.C., raising serious doubts regarding; bona fides of prosecution--Possibility that prosecutrix gave her statement under pressure of police not ruled out--Statement in question not recorded by Magistrate in presence of accused to afford him an opportunity to cross-examine and see whether witness was making statement voluntarily or not--Provisions of S.164(1-A), Cr.P.C. not complied with--Accused, held, materially prejudiced and statement of prosecut:rix could not be made basis for conviction of accused in circumstances--Conviction and sentence of accused set aside.   (b) Criminal Procedure Code (V of 1898)--   ---S.164(1-A)--Word "presence" used in S.164(1-A), Cr.P.C., held, implied actual physical presence and not constructive -presence.--[Words and pharses].   (c) Words and Phrases--   ---Word "presence", meaning--"Physical presence" means existence of a person in a particular place at a given time with reference to a particular act or happening--"Presence" is opposite of "absence" which connotes non-existence.   Sh. Zamir Hussain for Appellant.   Muhammad Aslam Uns for the State.   Date of hearing: 14th May, 1984.         JUDGMENT   The Additional Sessions Judge, Attock vide impugned judgment dated 4-2-1984 found the appellant guilty under section 10(2) of the offence of Zina (Enforcement of Hadood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced him to undergo R-I. for 10 years plus whipping numbering 30 stripes and a fine of Rs.2,000 or in default of payment of fine further R.I. for 6 months. The appellant has challenged his conviction and sentences through the present appeal.   2. In support of its case the prosecution produced 10 witnesses. Lady Dr. Syeda Qamrun Nisa (P.W.1) on 15-3-1983 at 2.00 p.m. medically examined Mst. Gul Bibi prosecutrix and found the following observations:-  …