2022 PLP 459 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Being aggrieved with the dismissal of complaint filed under sections 7/11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, vide judgment dated 30.09.2019, pronounced by the learned Additional Sessions Judge-I, Mansehra, the complainant has preferred the captioned appeal under section 417, Cr.P.C., accompanied with the petition for Special Leave to Appeal under subsection (2) of section 417, Cr.P.C., with a prayer to set aside the impugned judgment and the respondents Nos.1 to 4 be convicted and sentenced for commission of offence punishable under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

2. This appeal calls in question the legality, validity, and propriety of the impugned judgment. After hearing learned counsel for the appellant, Special Leave to Appeal as contemplated by section 417(2), Cr.P.C. was granted by this Court vide order passed on order sheet dated 06.11.2019.

3. It has been averred by the complainant/appellant in the complaint case that the respondents Nos. 2 to 4 had executed affidavits, wherein they had made false imputation of Zina and about her naked snaps; on the basis of said false affidavits/statements, she was divorced by her husband, i.e., respondent No.1 and on the basis of mentioned allegations, she had also been disgraced in the community.

4. A perusal of record reflects that the appellant and respondent No.1 bonded in matrimonial tie on 01.05.2002. From wedlock, one daughter and two sons were born, who are residing with the respondent No.1 (the father). Mst. Yasmeen Bibi, the appellant being real mother of three minors prior to filing the instant complaint approached the concerned Court by filing a petition under section 491, Cr.P.C. (Habeas Corpus) on 16.02.2017, against her husband/ respondent No.1, which was dismissed on 21.02.2017. Thereafter, she approached to the Guardian Court by filing a petition on 23.02.2017, which also culminated on dismissal vide judgment dated 26.07.2019. Custody of the minors with father/respondent No.1 attained finality.

5. The complaint under sections 7/11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, was instituted on 25.02.2017. During preliminary inquiry held on 28.02.2017, statements of complainant and her three witnesses were recorded and thereafter vide order dated 13.03.2017, passed by the learned Trial Court, the accused persons/respondents have shown their appearance on 22.05.2017. Charge for the offence punishable under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 was framed on 09.06.2017. On commencement of the trial, prosecution produced as many as six witnesses. Statements/depositions of the witnesses does not find mentioned exhibits, so much so that prosecution witnesses numbers have also been wrongly mentioned by the learned Trial Court. Their details are given as under: Examination-in-Chief of the following witnesses have not been recorded. Their statements recorded during preliminary inquiry were relied upon by the learned Trial Court. Examination - in-Chief of the following witnesses were recorded after framing of charge. Sardar Muhammad Jamil (P.W.4) Chan Israfeel (P.W.3) Mst. Yasmeen Bibi (P.W.5) Siraj Ahmed Shah (P.W.4), Muhammad Mushtaq (P.W.6) Qazi Bilal, (P.W.5).

6. With the able assistance rendered by the learned counsel for the parties, we have found following incurable irregularities, committed by the learned Trial Court. i) The adopted procedure by the learned Trial Court runs contrary to law and normal procedure as evidence without recording examination-in-chief on oath cannot be considered as evidence. ii) The impugned judgment has been rendered on the strength of defective evidence. iii) Points for determination have not been formulated in terms of section 367, Cr.P.C.

7. The law of evidence has essentially provided the manner and mode of the recording statement of witnesses which cannot be bypassed under any circumstances, otherwise the statement recorded in disregard of the mandatory provision of law would become inadmissible and of no legal worth to be relied upon. In this regard Article 132 of the Qanun-e-Shahadat Order, 1984, deals with the production and mode of examination of witnesses. Provision of Article 133 of the Qanun-e-Shahadat Order, 1984 in mandatory words provided as follows:-

133. Order of examination. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined. (2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.

8. Needless to iterate that what has not been pleaded during examination-in-chief cannot be allowed to be proved. As a general rule of Qanun-e-Shahadat Order, 1984, only such statement is legal and admissible which is given during the course of judicial proceedings and is on oath and is taken by a person authorized under the law to take down the evidence and that it is made in the presence of the adverse party, giving the right to the adverse party to cross-examine the statement of such deponent. To the above general rule of Qanun-e-Shahadat Order, 1984, there are two exceptions where statement made by witness without being cross-examined and made at the back of the accused persons are made admissible. These two exceptions are; one covered under Article 46 of the Qanun-e-Shahadat Order, 1984, when a person makes a statement as to the cause of his death; and the second exception is under section 512, Cr.P.C., where an accused person absconds, law makes it permissible under section 512, Cr.P.C., to preserve the evidence, therefore, during abscondence of an accused persons, statement of the witness which recorded with a view that if at the trial of the absconding accused such witness is either dead or has become incapable giving evidence or his presence cannot be acquired without unnecessary delay, his statement previously recorded at the back of the accused can be taken into evidence as held in the cases of Arbab Tasleem v. The State, reported in PLD 2010 Supreme Court 642 and Muhammad Jameel and another v. The State 2018 SCMR

141. Admittedly, the statements of three PWs named above including complainant were not recorded in accordance with law. Providing opportunity of cross-examination at a subsequent stage, these statements could not have been appreciated either way on account being violation of mandatory procedure.

9. Section 367, Cr.P.C. indicates that a judgment must contain therein point or points for determination, the decision thereon and reasons for the decisions. This section of the Code casts duty upon courts to formulate/ point for determination and the court while writing judgment has to ponder over all possible situation and probabilities for drawing just decision. Section 367, Cr.P.C. is not permissive but imperative. It is therefore, the duty of the Judge to ensure not only that he dispenses justice but the justice also seems to have been done. Provision of this section is mandatory and intended to constitute a substance as distinguished from mere form of judgment. Judgment not showing the points for determination or decisions thereon is not a judgment in the eyes of law as held by the Apex Court in the cases of Sahab Khan v. The State (1997 SCMR 871) and Muddassar v. The State (1996 SCMR 3).

10. It is not out of context to mention that misappreciation of evidence leading towards illegality, gross irregularity, perversity or infirmity or finding of the learned trial Court based on surmises, conjectures, shocking or artificial, warrants interference by the appellate Court as contemplated by section 417, Cr.P.C. Undeniably, any legal defect in the proceedings on account of an act of the court shall not prejudice any of the parties. For the reasons mentioned hereinabove, we are inclined to partly accept the appeal, set aside the impugned judgment dated 30.09.2019, passed by the learned Additional Sessions Judge-I, Mansehra and the case is remitted to the learned trial Court for de novo trial after affording fair opportunities to the parties to lead their evidence in accordance with law. During query made by this Court, the respondents Nos. 2 to 4 in disproof of sworning in the affidavits were found willing to record their statements on oath. It needs to be reiterated that statements under section 340(2), Cr.P.C. be recorded in presence of the defence counsel. They shall be set at liberty to adduce defence evidence in juxtaposition. Hopefully, judicial verdict in accordance with law shall be recorded and pronounced by the learned trial Court at an earliest, preferably within span of sixty (60) days after receipt of copy of this judgment. JK/4/FSC Order accordingly.