2006 P Cr (PLP)

SAEED-UR-REHMAN FARRUKH, J.

By this judgment I propose to dispose of the following two connected appeals as these arise out of the common judgment, dated 14-9-2005 passed by learned Sessions Judge, Tank:

(1) Criminal Appeal No.259/I of 2005 (Muhammad Shafique v. The State). (2) Jail Criminal Appeal No.281/I of 2005 (Mst. Hassan Bano v. The State).

2. Through the impugned judgment, the learned trial Court convicted the appellant Muhammad Shafique under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter call "the Ordinance") and sentenced to seven years' R.I. with a fine of Rs.10,000 or in default to further undergo four months' S.I. Mst. Hassan Bano appellant was convicted under section 10(2) of "the Ordinance" and sentenced to five years' R.I. plus fine of Rs.10,000 and in default to suffer further four months S.I. She was further convicted under section 328, Pakistan Penal Code and sentenced to two years' R.I. along with fine of Rs.5,000 or in default thereof to undergo two months' S.I. Both the sentences were directed to run concurrently. Benefit of section 382-B, Criminal Procedure Code was extended to both the appellants. Factual background of the case leading to the above appeals may be stated. On 5-9-2004 a case was registered under section 328, Pakistan Penal Code read with section 10(2) of-the Ordinance" at Police Station Tank vide F.I.R. (Exh.P.A.) on the basis of Murasila sent by Muhammad Yousaf Khan A.S.-I. (P.W.2) Exh.P.A./1. According to the complainant he was on routine Gasht along with the police Nafri. When they reached near Durand Gate, information was received about the presence of a newly-born baby girl lying in a basket in the street of Mohallah Mehsoodan, City Tank. They rushed to the spot and found a newly-born baby girl lying in a basket. The Why was sent to lady doctor through lady constable Kalsoom Bibi and the basket was taken into possession Exit. P.C.

4. Investigation was initiated by the police and the appellants in the above appeals were challaned to Court. They having denied the allegations levelled against them in the charge-sheets, the prosecution led its evidence.

5. Mohibullah P.W. deposed about recovery of the baby girl lying abandoned in a street. 6, Muhammad Yousaf A.S.-I. appeared P.W.2 and deposed about the occurrence, as detailed in his Murasila (Exh.P.A./1). During cross-examination, he deposed that he learnt about the baby through an informer who did not disclose his name.

7. Lady Doctor Rabia Waheed, W.M.O. C.H. Tank (P.W.3) deposed that on 7-9-2004 she examined Mst. Hassan Bano (appellant in Jail ' Criminal Appeal No.281/I of 2005) and made the following observations: "On P.V. examination, .Uterus was found to be bulky and it was postnatal for 2 to 3 days. Delivery 2/3 days back." She handed over the medico-legal certificate to lady constable Mst. Kalsoom Bibi Exh.P.W.3/1. She went on to depose that the police, before examination of the female accused, brought the baby before her who was of the age of 3 to 4 hours.

8. The statement of (sic) and Adam Khan, L.H.C. Traffic Police is of formal nature and need not be dilated upon.

9. Asal Khan S.H.O. Police Station Mallazai P.W.5 submitted the challan in Court about the occurrence. Supplementary challan against Muhammad Shafique appellant was submitted under section 512, Criminal Procedure Code on 4-10-2004.

10. Mst. Mehnaz Kanwal, wife of Zafar Khan, L.H.V. P.W.6 deposed that during the days of occurrence she was posted in Tal District Hangu. She came to Tank on leave where Mst. Hassan Bano appellant met her along with her sister and sister-in-law. She was pregnant of about 3/4 months and asked her for abortion of pregnancy but she refused. Again, on 4-9-2004 Mst. Hassan Bano appellant met her along with her relations in Tank. As the case was mature for delivery, therefore, she agreed to deliver the baby. A female child was born to Mst. Hassan Bano appellant in her presence. During cross-examination, she stated that on the first occasion she asked Mst. Hassan Bano the reason for proposed abortion and all that she. stated was that she did not want a child at that stage. She conceded that the female accused did not tell her that the pregnancy was the result of act of Zina.

11. Last witness produced by the prosecution was Ghulam Khan A.S.-I., (P.W.7) Police Station Tank who conducted necessary investigation in the case. According to him, Mst. Hassan Bano confessed her guilt in her statement under section 161, Criminal Procedure Code, therefore, she was arrayed as accused in the case and was arrested on 7-9-2004. On the following day she was produced before Judicial Magistrate for recording her judicial confession. On the receipt of medical report he added section 10(2) of "the Ordinance" and handed over the file to S.H.O. for submission of complete challan in Court. It was after submission of the challan that Muhammad Shafique appellant was arrested on 3-10-2004. During cross-examination, he conceded that Mst. Hassan Bano in her statement under section, 161, Criminal Procedure Code did not level allegation of Zina-bil-Jabr against her co-accused Muhammad Shafique. He also conceded that she did not make any judicial confession before the learned Magistrate. He further admitted that appellant Muhammad Shafique voluntarily surrendered before the police.

12. After closure of prosecution evidence the statements of the appellants were recorded under section 342, Criminal Procedure Code. Mst. Hassan Bano appellant took up the plea that she was subjected to Zina-bil-Jabr by Muhammad Shafique co-accused and she became pregnant. She stated that she was innocent and was falsely charged in the case. On the contrary, Muhammad Shafique appellant, in his statement under section 342, Criminal Procedure Code, stated that Mst. Hassan Bann was a lady of easy virtue and she might have become pregnant as a result of act of Zina with someone else. He denied having committed Zina with her. Both the appellants did not lead any defence evidence. They also did not appear in the witness-box under section 340(2), Criminal Procedure Code in disproof of prosecution allegations.

13. I have heard the learned counsel for the appellant as well as the learned counsel appearing for State and perused the record with their assistance.

14. I find merit in these appeals as the prosecution totally failed to bring any incriminating evidence qua the appellants. There is nothing on record to prove that the abandoned baby was the daughter of Mst. Hassan Bano or that she was born out of the sexual relationship between the two appellants inter se. Since it could not be proved that the two appellants were the parents of the baby, therefore, the question of their prosecution under section 328, Pakistan Penal Code hardly arose as the pre-condition for invocation thereof' was that the child A was to be exposed or abandoned by the father or the mother. The prosecution case itself was that Mst. Hassan Bano stated before Ghulam Khan A.S.-I. (P.W.7) that she was to subjected to Zina by Muhammad Shafique. She did not make any confession about her guilt before the Judicial Magistrate. Nobody saw the appellants committing Zina with each other. Thus, the allegation of Zina-bil-Raza against the appellants remained unproved.

15. When confronted with the above situation, the learned counsel appearing for State tried to argue that Mst. Hassan Bano in her statement under section 342, Criminal Procedure Code levelled allegation of Zina?bil-Jabr against her co-accused Muhammad Shafique. On the contrary, Muhammad Shafique contended in his statement that Mst. Hassan Bano was a woman of easy virtue and might have conceived due to Zina with someone else. According to the learned counsel these statements, per se, constituted admission of guilt of Zina by the (two appellants). I am afraid there is no force in this contention. It is to be noted that Muhammad Shafique was not charged with offence under section 10(3) of "the Ordinance". The exculpatory statement of Mst. Hassan Bano could not B be treated to be piece of evidence of incriminating nature Muhammad Shafique. Same is the position with regard to the allegation of Muhammad Shafique against Mst. Hassan Bano who while disowning any criminal liability regarding Zina qua Mst. Hassan Bano alleged that Mst. Hassan Bano might have been guilty of adultery with someone else. This statement was also self-exculpatory in nature. Nothing, therefore, would turn on the statements of the two appellants under section 342, Criminal Procedure Code.

16. The learned trial Judge held, without there being any evidence on the record, that Mst. Hassan Bano was not in the Nikah of anybody and therefore, inference was to be drawn that the child was the result of her act of Zina. The observation regarding Mst. Hassan Bano being unmarried lady was based on conjecture/surmise and therefore, the consequential finding based thereupon that she was guilty of Zina was not sustainable in law. It is elementary that in case an accused exculpates himself/herself in the crime then his/her statement of incriminating nature against the co-accused carried no evidentiary value. The mutually self-exculpatory statements of both the appellants were thus, liable to be ignored.

17. For what has been stated above, the impugned judgment being based on erroneous presumptions/conjectures on the factual aspects of the case and misappreciation/misapplication of law qua the questions involved in the case, cannot be sustained.

18. Consequently, both the appeals are accepted and after setting the convictions and sentences of the appellants they are acquitted. Vide short order of even date, they have been directed to be released from jail, forthwith, if not required in connection with any other case.

19. These are the reasons for the abovesaid order. H.B.T./18/FSC??????????????????????????????????????????????????????????????????????????????????? Appeals accepted.