Ch. Ejaz Yousaf, , C.J.--This judgment will dispose of two ' connected appeals i,e, Criminal Appeal No, 144/I of 2003, filed by appellant Ghulam Rasool son of Ghulam Qasim and Jail Criminal Appeal No, 132/I of 2003 filed by Moulvi Muhammad Rainzan son of Ghulam Qasim, as both these appeals arise out of the same judgment dated 18.6.2003, passed by the learned Additional Sessions Judge, Sargodha Camp at Shahpur whereby the appellants, afore-named, were convicted under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance") and sentenced to undergo 'life imprisonment each. Appellant Maulvi Muhammad Ramzan was also convicted under Section 10(3) of "the Ordinance" and sentenced to undergo fourteen years R.I. Both the substantive sentences of imprisonment were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was, however, extended to the appellants.
2. Facts of the case, in brief, are that on 15.11.1999, report was lodged by one Muhammad Akhar with P.S. Shahpur Saddar, District Sargodha wherein, it was alleged that complainant's 'daughter namely, Mst. Yasmin in order to take lesson of Holy. Quran used to visit the house/mosque of Maulvi Muhammad Ramzan. On 24.7.1994, as per routine, she went to the mosque but did not return. The complainant went in search of her and in the course, came across Muhammad Bashir and Muhammad Hussam, who told him i,e, the complainant that they had seen Maulvi Muhammad Ramzan, Muhammad Jan, Sohnia Khan and Ghulam Rasool taking away Mst. Yasmin on a car towards Khushab. It was further alleged in the FIR that the complainant's daughter was taken away for commission of zina. On the stated allegation formal FIR Bearing No, 182 dated 15.11.1999 was registered under Section 11 of "the Ordinance" and investigation was carried out in pursuance thereof. On the completion of investigation the appellants were challaned to the Court for trial whereas, names of Sohnia Khan and Jan Muhammad were placed in Column No, 2 of the challan form.
3. Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegation leveled against the appellants, produced nine witnesses, in all. P.W. 1 Dr. Munawwar Hussain had, on 3.2.2001, examined Maulvi Muhammad Ramzan qua the potency test. He produced the MLR as Exh.PA/1. P.W. 2 Lady Doctor Homera Batool, W.M.O. Shahpur, had on 20.2.2001, examined Mst.
Yasmin alias Sohana Yasmin and observed as under: "Patient was 30 weeks pregnant with normal FHS (foetal heart sound) on per abdomen examination and for further confirmation ultra soundgraphy was advised. On pelvic examination vagina was very lax but stria graviton was seen on abdomen. It was not possible to confirm that either she has delivered previously or not."
She produced copy of the MLR as Exh.PB. After consulting ultra-sound report i,e, Exh.PC she opined that patient was 28 weeks pregnant with normal and healthy foetus. P.W. 3 Bashir Ahmad, ASI, had, on the statement made by the complainant, recorded the formal FIR as Exh.PE. P.W. 4 Muhammad Aslam, ASI had partially investigated the case. P.W. 5 Muhammad Akbar is the complainant. He, at the trial, reiterated the version contained in the FIR. P.W. 6 Muhammad Hussain had on 24.7.1999, allegedly seen the appellants taking away Mst. Yasmin. P.W. 7 Abdul Aziz, ASI, is the Investigating Officer of the case. Rao Ghulam Abbas, Radiographer, DHQ Hospital, had identified ultra sound report i,e, Exh.PC issued by Dr. Salah-ud-Din Nasir, P.W. 9 Muhammad Aslam, ASI, is another Investigating Officer of the case.
5. On the conclusion of the prosecution case, the appellants were examined under Section 342 Cr.P.C. In their above statements both the appellants denied the charge and pleaded innocence. In answer to the question that Mst. Yasmin used to get lesson of Holy Quran from him? appellant Maulvi Muhammad Ramzan stated that he was Imam Masjid and children used to come to him for learning Holy Quran. Mst. Sohana Yasmin also used to visit him. She in order to join the said appellant had left- the house of her parents at her own. They were residing in their house in Peharpur, District, D.I. Khan when police arrested them. After that Mst. Yasmin was released on bail by Court at D.1. Khan whereas; he was admitted to transit bail before arrest by the learned Sessions Judge Khan. Mst. Yasmin was neither abducted nor he had committed zina with her. After having been released on bail Mst. Sohana Yasmin who had declared him as her husband was taken away by her father and other relatives and was brought to Sargodha where she was murdered as she was not prepared to make statement in line with the allegation contained in the FIR. In fact, she had negated the story of the prosecution. FIR for the murder of. Sohana Yasmin was lodged but with the connivance of the police the -dammi accused was got released/acquitted. He also got examined one Sanaullah D.W. 1 who stated that appellant Muhammad Ramzan had entered into nikah with Mst. Yasmin in consideration of a dower amount of Rs, 500/,
6. After hearing arguments of the learned counsel for the parties, the learned trial Judge convicted the appellants and sentenced them to the punishments as mentioned in the opening para hereof.
7. We have heard Mr. Abdul Karim Khan Kundi, Advocate, learned counsel for appellant Ghulam Rasool in Criminal Appeal No, 144/I of 2003, Mr. Nadeem Mukhtar Chaudhary, Advocate, learned counsel for appellant Moulvi Muhammad Ramzan in Jail Criminal Appeal No, 132/I of 2003, Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State and have also perused the entire record-with their assistance, carefully.
8. M/s. Abdul Karim Khan Kundi and Nadeem Mukhtar Chaudhary, Advocates, learned counsel for the- appellants have, inter-alia, contended that the prosecution has miserably failed to bring home charge - against the appellants inasmuch-as neither the alleged abductee was produced, at the trial, nor any direct evidence was led to substantiate the charge that; statement of. P.W. 6 Muhammad Hussain, the witness of wajtakker, in the absence of the statement of the abductee too, was of no significance because it was not proved on record that she was taken away by force.
They maintained that in the absence of any substantive piece of evidence, conviction could not have been recorded against the appellants on the basis of suspicion or circumstantial evidence,' which were purely of corroboratory nature. They have added that since Mst. Yasmin was murdered by the complainant, therefore, the possibility that the defence plea i,e, that she had entered into nikah with appellant, Muhammad Ramzan with her free will and consent, could not have been ruled out.
9. Mr. Muhammad SharifJanjua, Advocate, appearing for the State, on the other hand, has urged that since Mst. Y.asmin was already in the wedlock with one Shamsher and she was abducted by the appellant and was subjected to zina, therefore, they were rightly convicted for the offence. He however, has not controverted that Mst. Yasmin, while living with her parents, was murdered and that prior thereto she had given birth to two children and that she was not examined, at the trial.
10. We have given our anxious consideration to the respective contentions of the learned counsel for the parties. In the instant case the learned trial Judge, while holding the appellants guilty, has though discussed the evidence led, at the trial, by the prosecution as well yet, while deciding the question "as to whether the prosecution evidence was sufficient to bring home charge against the appellants" has concluded that since plea of valid marriage was raised in defence which could not be substantiated therefore, the appellants were liable for the offences. Observations made in pares 23 and 24 of the impugned judgment are explicit in this regard. In our view, such a course adopted by the learned trial Judge, in deciding the case, is not only strange but against law as well because legally the Court is required to come to a conclusion on the whole of the evidence laid before it and not on the plea of the accused alone and this exercise has to be done systematically. The Court, therefore, while deciding a case, at first, must evaluate the prosecution evidence and see as to whether it has the capacity to Ming home charge against the accused and if the answer is in the affirmative, only then plea of the accused alongwith defence evidence, if any, may be, weighed so as to reach a definite conclusion. Needless to point out that perusal of defence plea/evidence may eventuate in convincing the Court of innocence of the accused, or it may cause the Court to doubt, in which case the accused would be entitled to acquittal, or it may, and some time does strengthen the case for the prosecution. However, it is well settled that unless presumption of innocence imputed to the accused is crowd out by the force of evidence produced by the prosecution at the trial, the defence evidence is not required to be looked into. What to speak of convicting an accused on the ground of weakness in his defence. This view receives support from the following reported judgments:--
1. Rab Nawaz and another vs. The State PLD 1994 SC 858;
2. Mst. Shamshad vs, The State 1998 SCM R 854;
3. Safdar Ali vs. The Crown PLD 1953 Federal Court; 93;
4. Hakim Ali and another vs. The State 1971 SCM R 432;
5. Nadeem-ul-Haq Khan and another vs. The State 1985 SCMR 510;
6. P. Durugappa vs. State of Mysor AIR 1956 Mysore 40 (V. 43, C 17 May); and
7. Bharadqaj Singh vs. State AIR 1952 Calcutta 616.
11. Assessing, independent of the defence plea, the prosecution evidence, it may be noted here that in the instant case, it appears to be extremely deficient. Neither star witness of the crime i,e, the alleged abductee/victim has been produced at the trial nor evidence was led to prove that Mst.
Yasmeen was forcibly taken away or subjected to Zina-bil-Jabr. Learned counsel for the State has pointed out that after registration of the case and her recovery, the abductee was murdered, however, according to him, the record is silent as to when the murder took place, for what reason and as to who was responsible. However, according to the learned counsel, she, at the relevant time, was living with her. parents and the appellants were behind the bars. It would be pertinent to mention here that as per statement of PW.
2. Dr. Humera Batool, Mst. Yasmeen, at the time of her examination, was found pregnant for 30 weeks though record is also silent as to where from she had conceived and/or if the pregnancy was the result of Zina then as to who was responsible for the same. But the fact remains that with the murder of Mst. Yasmeen, chances of coming in this world, of the child in her womb also doomed.
It would be pertinent to mention here that statement of the victim/ woman in cases of zina, particularly of zina-bil-jabr, is of immense importance and great evidentiary value because in such cases, other evidence being merely corroborative, conviction in practice, almost entirely depends on her statement and credibility, so far as the essential ingredients are concerned. In the case of Zahoor Ahmad v. The State (NLR 1995 SD 608) Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan was pleased to hold that most important piece of evidence in zina cases is statement of the victim herself, secondly, comes the medical evidence and lastly any other piece of evidence.
As stated above, though the learned trial Judge, in this case, has not bothered to assess or evaluate the prosecution evidence to see as to whether it was sufficient to base conviction thereon yet, perusal of record shows that a Photostat copy of the statement of Mst. Yasmeen, at the trial, was placed on record by the prosecution, obviously to prove the charge but, in our view, the same was of no help to the prosecution because statement of a witness under Section 164 Cr.P.C. being not a substantive piece of evidence and its use being limited to get confront its maker at a subsequent stage and that too, after examination of the Magistrate who had recorded the same, which in the instant case was not done, was no evidence against the accused. In the case of Mamand and another vs. Emperor AIR (33) 1946 Privy Council) it was held that statement of a witness under Section 164 Cr.P.C. could have ' been used only to discredit the evidence given by the witness in Court, and not for any other purpose and that such statement could not have been treated as substantive evidence of the facts stated. Reference in this regard may also be usefully made to the following reported judgments:-- (1)Nisar Muhammad vs. Khanzali and another PLD 1959 (W.P.) Peshawar 115; (2)Mahomed Khan and .another vs. Emperor AIR 1930 Sind 308; (3)Salehon vs. The State 1971 P.Cr.L.J. 224; and (4)Abdul Ghani vs. The State PLD 1963 (W.P.) Lahore.
Testimony of the rest of the witnesses being purely of confirmatory and corroboratory nature, in the absence of testimony of the abductee/victim, we are left with no other substantive piece of evidence except statement of P.W. 6, who had, on 24.7.1999, allegedly seen the deceased going with the accused persons but his statement too, is of no use for the prosecution because he has not uttered ,a single word regarding commission of zina with her or that she was taken away by the appellants forcibly. It is well settled that unless substantive or direct evidence is available conviction cannot be based on any other type of evidence, howsoever, convicting it may be.
Reliance, in this regard, may be placed on the cases of Muhammad Noor vs. Member-I, Board of Revenue, Baloehistan and others reported as 1991 SCM R 463 and Qalb-e-Abbas alias Nehola vs. The State reported as 1997 SCM R 290.
It would also be relevant to mention here that in his statement, at the trial, the I.O. has admitted the suggestion as correct that Mst. Yasmin before her death had given birth to two children and on her return to her parents she was murdered which implies firstly; that she lived with Maulvi Muhammad Ramzan for quite a long time because in the FIR it was alleged that she at the time of occurrence was a virgin girl and secondly; that the instant was a case of elopement and not of abduction.
12. For the facts and reasons, mentioned above, we are of the view that the occurrence, in the instant case, has not taken place in the manner as suggested by the prosecution. Prosecution has miserably failed to produce confirmatory evidence, in this regard. In this case, there is room for doubt, benefit of which must go to the appellants. Therefore, both these appeals are allowed. The convictions and sentences recorded against appellants namely, Ghulam Rasool son of Ghulam Qasim and Mouvli Muhammad Ramzan son of Ghulam Qasim by the learned Additional Sessions Judge, Sargodha Camp at Shahpur vide the impugned judgment dated 18.6.2003, are set aside and they are acquitted of the charges. They shall be released forthwith if not required in any other case.
13.Before parting with the judgment we would like to note that in the instant case, Mst. Yasmin has been murdered and the same appears to be not only after math of the occurrence but part of the same transaction. Since it is not conspicuous on record as to what happened to the case of her murder, therefore, District Judge, Sargodha in whose jurisdiction the offence is alleged to have taken place, is directed to inquire into the matter and see as to at what stage the case at present is? and if no case is found registered then to get the needful done and proceed in accordance with law. Report be furnished within a fortnight of the receipt hereof.
These are the reasons for our short order of the even date.