1995 P Cr (PLP)

Ss. 8 & 20

Court of competent jurisdiction

Confession to be effective must be recorded not by any Magistrate or a Court but by a Court of competent jurisdiction which is the Court competent to try the case

Trial of offence of Zina has to be undertaken by a Sessions Court, jurisdiction of Magistrate has been expressly excluded

Any statement before a Magistrate, therefore, is not a confession under S.8 (a) and has no legal effect:"

3. The learned counsel for the petitioner further relied on case Mumtaz Khan v. The State reported in 1992 P Cr. L J page 412 (Peshawar) wherein His Lordship, Mr. Justice Muhammad Bashir Khan Jehangiri, has held: "(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

Ss. 5, 8(a), 10 & 20

Confession

Confession to be effective in a case under the Ordinance 1979, must be recorded by Trial Court and a Magistrate would not be competent to undertake that exercise

Any confessional statement recorded by a Magistrate, would not be a confession and would have no legal effect. (b) Confession

Confession in cases under Hudood Laws must be recorded by Trial Court

Magistrate would not be competent to take that exercise." The learned counsel contended that the petitioner in the circumstances be released on bail.

4. On the other hand, Oazi Abdul Jalil, Advocate learned counsel for the State, assisted by Mr. Tahir Faraz Abbasi, Advocate counsel for the complainant, submitted that there were enough reasons for the victim (Mst. Farzana) who was of tender age (13/14 years) and unmarried, to have kept quiet under the. threats/.directions of the accused for a long time that it was only after a few months that the symptoms of pregnancy started appearing and thus she was forced to narrate the whole episode to her father who then lodged the F.I.R. They further stated that there was nothing on record to show if there was any ill-will or enmity between the victim her father and the petitioner which could instigate or motivate them to charge the petitioner for such a heinous crime falsely and that no father would lodge such a report where the very honour of his own unmarried daughter and that of the entire family was involved.

5. The reasons for lodging the report/F.I.R. after a period of about 4/5 months, in my opinion, have been reasonably explained in the circumstances I mentioned above.

6. The learned counsel for the respondents next contended that even if the confessional statement of the victim (who is an unmarried girl of tender age of about 13/14 years) is not taken into account, as it was recorded Magistrate and not by a Court of competent jurisdiction to try the case, even then her statement which has also been recorded under section 161, Cr. P.C. by the Investigating Officer on 11-8-1994 remains in the field. They contended that conviction in cases registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance could also be based on the sole testimony of the victim if it inspires confidence. In support of their contention the learned counsel for the respondents placed reliance on case Mst. Nasreen v. PE Paz Khau arid another reported in P L D 1991 SC 412 wherein it was observed by their Lordships of the Supreme Court as under: "There are two elements in the case which have pronouncedly been taken note of by the High Court one, that the complainant/prosecutrix's testimony alone against the accused in a case of Zina would not be enough to deny the concession of bail a:: it would not be enough for conviction. And secondly, that there was unexplained delay of about 2/3 months in the lodging of the F.I.R. Accordingly, it was treated as a case of `further enquiry' and the respondent was allowed bail. Prima facie none of the two main grounds already noticed were available to the accused at the bail stage. This Court has in a large number of cases arising out of convictions under section 10 of the Offence of Zing (Enforcement of Hudood) Ordinance, 1979 considered the sole testimony or vim as enough for conviction in case it inspires confidence. The second ground regarding delay is also, prima facie, not tenable because it was not explained delay. The victim's husband being insane was in a jail. He was not available to impregnate here. Obviously the pregnancy mentioned in the F.I.R. had resulted out of third party copulation. There was enough reason for the prosecutrix to keep quiet on the direction and threats of the accused but when after few months the circumstantial evidence of Zina started showing, itself, she divulged the secret to her mother. There is no need to probe this question any further at this stage. The prima facie, explanation for delay being on record, the learned Judge in the High Court seems to have ignored or misread it. Lastly, the question of prima facie, opinion about the guilt of the accused under subsection (1) of section 497, Cr .KC. or subsection (2) thereof has not been properly examined in the impugned order. The easy contrivance of `the further inquiry' against positive rulings of the Court explaining the provisions of section 497(2), Cr. P.C. was pressed into service. It has been observed time and agian that there would hardly be a case which would not require 'further inquiry therefore this element by itself is no ground and for granting bail under subsection (2) of section 497, Cr .P.C. such order are on the very face illegal which do not fulfil the second condition regarding tentative opinion about the prima facie, guilt or otherwise of the accused. The learned Judge while exercising discretion, it is to be further remarked, did not apply mind; whether, it was a fit case for exercise of discretion in favour, alleged of a person who ruined the life of a young girl, impregnated her with an illegitimate child, and we have been told by the grandfather of the victim that she died, according to his accusation, on account of this case."

7. Beside this reliance was also placed on case Shahid Maqbool v. The State reported in 1994 S C M R 1674 wherein it was held by their Lordships as under:

S. 497

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11

Constitution of Pakistan (1973) Art.185 (3)-- Bail

High Court had refused bail to the accused observing that the abductee who seemed to be of tender age had levelled allegation of Zina-bil-Jabr against him in her statement under 5.164, Cr. P.C. and nothing showing her having entered into Nikah with the accused had been brought on the record

No ground for interfering with the said discretionary order had been made out

Leave to appeal was refused accordingly "

8. After going through the record of the case, the contentions raised by the learned counsel for the parties and he case-law cited at the bar and without dilating upon the merits of the case, at this stage, I am of the considered view that reasonable grounds do exist for believing that the petitioner is connected with the commission of the offence with which he has been charged and accordingly he is not entitled to the concession of bail at the moment. This bail petition does not merit consideration and is accordingly rejected. N.H.Q./1664/P Bail refused.