1. This appeal is directed against the judgment dated 2.12.2004 of the Additional Sessions Judge, Chunian District Kasur whereby the appellant was convicted under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance') and sentenced to ten years R.I. with fine of Rs, 10,000/- and in default to further undergo three months S.I. He was also convicted under. Section 324 PPC and sentenced to seven years R.I. with fine of Rs, 10,000/- and in default three months S.I. He was also convicted under Section 452 PPC and sentenced to five years R.I. with fine of Rs, 5,000/- and in default to further undergo two months S.I.'All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C.
2. 2.Facts in brief are; on 18.8.2002 Mst. Parveen Akhtar PW.1 lodged a report in writing (Ex.PA) at Police Station Chunian district Kasur leading to formal FIR (Ex.PA/1) in respect of an occurrence that took place at night time during the course whereof her daughter Mst. Tayyaba Khartum was allegedly abducted by the appellant at gun point. In the scuffle that took place the complainant was fired upon by him causing injuries on her right and left legs. The occurrence was allegedly witnessed by Mehboob Alam and Yameen son of Abdul Ghafoor.
3. According to FIR, mother of the appellant and one Aftab Shah were present outside the door of the house of the complainant and all three succeeded in forcibly taking away the daughter of the complainant.
4. 3.Investigation was initiated and on completion thereof it was only the appellant against whom the challan was submitted before the Court by the police to face trial for offences under Sections 324/452/34 PPC and Section 11 of "the Ordinance. Co-accused of the appellant i,e, his mother and Aftab Shah were found to be innocent and their names were placed in Column No, 2 of the report under Section 173 Cr.P.C. The appellant, having denied the correctness of the allegations levelled against him in the charge sheet, the prosecution was directed by the learned trial Judge to lead its evidence.
5. 4.At the very outset the learned DDA made a statement on 19.7.2003 giving up Mehboob Alam and Yameen "as being won over by the accused".
6. In all, seven witnesses were produced by the prosecution. The statements of Muhammad Ashraf SI PW. 3 and Muhammad. Ashiq Constable PW.4 are not material, being formal in nature.
7. Mst. Parveen Akhtar alleged abductee PW.1 deposed about the occurrence at some length.
8. According to her at mid night on 18.8.2002 there was a knock at the door of her house. Then the appellant scaled over the wall and caught hold of her daughter Mst. Tayyaba Khanum and dragged her out of her house. On resistance being offered by the witness the appellant allegedly fired shot with his pistol hitting her on left and right thighs. He then forcibly abducted Mst. Tayyaba Khanum and went away. Mother. of Waseem accused and Aftab Shah were at that time present outside in the street.
9. 5.Mst. Tayyaba Khanum PW.2 supported the prosecution story as divulged-in the FIR. She also stated that she appeared before a learned Magistrate and got her statement recorded. The accused allegedly kept her in two houses of Aftab Shah for two successive nights. She stated that Aftab Shah was their neighbour and they "did not want his conviction".
10. Dr. Muhammad Mushtaq PW. 5 deposed about the medical examination of Mst. Parveen and proved his medico-legal certificate (Ex.PC/1).
11. 6.Mr. Jahangir Ali Gondal, Civil Judge (Judicial Magistrate), Nankana. Sahib appeared as PW.
6. He deposed that on 20.8.2002 Mst. Tayyaba Khanum was produced before him by Ghulam Asghar ASI for recording her statement. After observing all the formalities he recorded her statement (Ex.PD).
12. At that time the appellant was also present in Court in custody.
13. The confessional statement of the appellant (Ex.PD/1) was also recorded by him.
14. Statement of Ghulam Asghar SI PW.7 is with regard to the investigation carried out by him in the case.
15. 7.After completion of the prosecution evidence the statement of the appellant was recorded under Section 342 Cr.P.C. He denied the correctness of the prosecution story in-toto. He alleged that it was Aftab Shah who was the real culprit in the case but he had been exonerated by the complainant party "due to achievement of their ulterior object---". He denied having abducted Mst.
16. Tayyaba Khanum and injured Mst. Parveen Bibi PW.1. He disowned having made any confessional statement before the learned Magistrate.
17. 8.I have heard the learned counsel for the parties and perused the record with their assistance.
18. I find that the impugned judgment is not sustainable, for the reasons stated in sequel.
19. 9.Two eye-witnesses namely Mehboob Alam and Yameen whose names were duly mentioned in report under Section 173 Cr.P.C., were given up by the learned Public Prosecutor "as having been won over". An objection was raised by the defence in this regard during arguments but it was overruled by the learned trial Court with the following observations: "It is argued by the learned defence counsel that the prosecution has not produced the eye- witnesses and as such a serious prejudice has been caused towards the prosecution case. I am not convinced by this arguments for the reason that on the one hand, it is the sweet will of the prosecution to produce the witnesses on their own choice ---".
20. 10.In "Mel Muhammad El Dabbah vs. Attorney General of Palestine" [AIR (32) -1945 Privy Council 42] following principle was laid down: "There is no obligation on the prosecution to tender witnesses, whose names were upon he information but who were not called to give evidence by the prosecution, for cross-examination by the defence. The prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless, it can be shown that the prosecutor has been influenced by some oblique motive."
21. 11.However, this rule of law was modified/departed from in "Khairdi Khan and others vs. The Crown"
22. [PLD 1953 Federal Court 223] it was laid down at page 224 of the report as under: "It is hardly necessary to stress the great importance which attaches to the non-production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non- production is established. It is true that the prosecutor is not bound to produce before the Court a witness who is not expected to give true evidence, but he cannot escape the duty of causing such a witness, if his evidence be of importance, to be present at the trial in case the opposite party should wish to examine him."
23. 12.It is necessary, at this stage, to quote the divine commandments, as revealed in Holy Qur'an, with regard to evidence:
383. And Hide not testimony; and whosoever hideth it, his heart verily is sinful. And Allah is of that which ye wcrk, knower. (2: 283) 61. 0 ye who believe! Be ye staunch a justice, witnesses for Allah, even though it be against ourselves or (your) parents or (your) kindred, whether (the case be of) a rich man or a poor man, for Allah is nearer unto both (than ye are). So follow not passion lest ye lapse (from truth) and it ye lapse or fall away, then lo! Allah is ever Informed of what ye do. (4: 135) 337. 0 ye who believe! Be ye maintainers of justice, and bearers of testimony for Allah's sake, though it be against yourselves or your parents or kindred. Be he rich or poor, Allah is Higher unto either, wherefore follow not the passion, lest ye deceiate. If ye incline or turn away, then verily of that which yye work Allah is ever Aware.(4: 135)
24. 13.Under the Islamic system of dispensation of justice, the Public Prosecutor has no right to withhold any prosecution evidence from the Court. He is rather enjoined by our faith to produce the entire evidence available with him before the Court to enable it to assess/adjudge its worth and then reach the conclusion as to whether or not the prosecution had succeeded in proving its case or not against an accused.
25. 14.In fact, the present case is not solitary one in which this situation has arisen. The rule laid down by Honourable Federal Court is not being adhered to. Even the Quranic injunctions supra are not being followed. On the contrary, general practice has crept in the trial of criminal cases throughout the country to the effect that the prosecution either gives up some cited witnesses by alleging that they had been "won over' or by contending that they were unnecessary and as such not being examined.
26. This undesirable rather illegal practice can be effectively dealt with by the trial Court by resort to its vast/unbridled powers under second part of Section 540 Cr.P.C. by summoning cited/ uncited witnesses whose testimony is considered necessary for just decision of the case. It goes without saying that ascertainment of truth is the primary duty of the Court and it cannot absolve itself from its due performance merely on account of technicalities. The accused cannot be left at the mercy of the prosecutor to be condemned to jail to suffer imprisonment on the basig of evidence led against him during the trial, at his sweet will.
27. 15.In this behalf one may quote, with profound respect, the dictum laid down by the Supreme Court of Pakistan in "Abdul Salam versusThe State" [2000 SCM R 102]: "Section 540, Cr.P.C. empowers the Court to summon or examine any person as a witness at any stage of an inquiry or trial, if it considers him to be a material witness and whose evidence appears to be essential to the just decision of the case. The power is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan case or the complaint, as the case may be. The only requirement is that he should be material witness and his evidence should be essential to the just decision of the case." Also see "Imran Ashraf versus The State" [2001 SCM R 424 at 462], "Muhammad Azam versus Muhammad Iqbal and others" [PLD 1984 S.C. 95 at 118] and "Rashid Ahmad versus The State" [PLD 1971 S.C. 709 at 712].
28. 16.As mentioned above, the occurrence was allegedly witnessed by Mehboob Alam and Yameen.
29. Their evidence was vital for just and fair decision of the case. The statement of the DDA about giving them up "as being won over" should not have been accepted lightly.
30. 17.There is yet another legal flaw in the impugned judgment. The learned trial Judge relied upon the confessional statement (Ex.PD/1) attributed to the appellant, for convicting him, with the following observation: "The statement of accused Waseem (Ex.PD/1) reveals that he had admitted his presence at the spot and firing upon the complainant....
31. He did not notice that the mandatory requirements of law for recording confessional statement as postulated by Section 164 Cr.P.C., were not fulfilled by the Magistrate in this regard. Perusal of trial Court's record showed that the appellant was present while the statement of Mst. Tayyaba Khanum was being recorded under Section 164 Cr.P.C. Immediately thereafter, he proceeded to record the so called judicial confessional statement of the appellant. He neither got his handcuffs removed nor allowed him time to ponder over the grave consequences of his proposed confession after making him conscious ..about it. Even the requisite certificate was not appended at the end of the confessional statement.
32. There is nothing on record either to show that the appellant was sent to judicial lock up on the completion of his statement. It seemed that the Magistrate was not conscious/aware of the legal requirements of recording a judicial confession. He acted casually, to say the least, which is deprecated. The so called judicial confession stood completely denuded of evidentiary value and could not have been relied upon at all by the trial Court while deciding the fate of the case.
33. 18.Since I propose to remand the case to the trial Court, therefore, I have intentionally not discussed the worth of the depositions of the Mst. Parveen Akhtar and Mst. Tayyaba Khanum and Dr. Muhammad Mushtaq PW. 5 lest it might prejudice the, case of either of the parties.
34. 19.For what has been stated above, this appeal is accepted and the case is remanded to the learned trial Court with the direction to record the statements of Mehboob Alam and Yameen as Court witnesses with permission to the parties to cross-examine them.
35. The so called confession of the appellant shall be excluded from con.sideration as it lacked evidentiary value in the eye of law, for reasons stated hereinbefore.
36. After recording the evidence of the two Court witnesses, the supplementary statement of the appellant under Section 342 Cr.P.C. shall be recorded, with opportunity to lead defence evidence, if so desire by him. On conclusion of the trial fresh judgment shall be pronounced, in accordance with law, on the basis of evidence/material brought on record.
37. 20.The alleged occurrence took place on 18.2.2002. The appellant had throughout been behind the bars, firstly as under trial prisoner and, after pronouncement of the impugned judgment as a convict. In this view of the matter the appellant is directed to be released on bail subject to his furnishing bail bond in the sum of Rs, 2,00,000/- with two sureties each in the like amount to the satisfaction of learned trial Court.
21. It is directed that the case shall be decided within a period of two months, positively, with the compliance report to the Additional Registrar of this Court, branch registry, Lahore.