' SYED TAHIR ALI SHAH, J.--- This jail petition, with the leave of the Court is directed against the judgment/order, dated 28-10-2003 of the Chief Court, Northern areas, whereby Criminal Appeal No,11 of 2003, filed by the convict/petitioner Obidullah son of Malook was dismissed and the conviction and sentenced were maintained.
2. The petitioner/convict was booked against F.I.R. No,15 of 2000 for the offence under sections 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. F.I.R. No,15 of 2000 was registered at Police Station Gunner Farm on the basis of Marasala sent by the S.S.P. Special Branch Northern Areas Gilgit. The German lady Heiki HuettenKofer M.D. Has narrated the fateful episode through her written complaint which is reproduced below:-- "To The Officer-in-charge, Police Station Gunner Farm, District Diamer.
' On August 3, 2000, a man later identified as Abeedullah son of Maluk, raped me, forcing me to have sexual intercourse with him against my will. This attack occurred in the vicinity of Fairy Meadows at about 2-00 p.m.
' It happened while I was hiking to Nanga Parbat Base Camp. I was separated from my friends, Angelika Schmiedt da Silva, Harald Rein and Nicole Gonell when they decided to take a break. I continued on to check to see if we were on the right track. After some time a young man in a clearing about 30 meters below the trail called and waved, motioning me to come down. When I did not go down, he climbed up. He was taller than I was, clean-shaven with a mole on his cheek.
He told me in broken English that it would be quicker to cross the glacier at this point rather than a backtrack. I told him that I was afraid because I had never crossed a glacier before. He claimed he was going across the glacier himself to meet his wife and children and offered to guide me. I told him I would like to wait for my friends, but after about 15 minutes he convinced me that they must have taken another route and were not coming.
'Reluctantly I followed him over several steep and rocky moraines. He stopped in a deep hollow near the glacier hidden from view, where he demanded that I have sex with him. When I refused, he became violent, picking up stones and threatening me with them. He warned me that if I did not do what he said, four other men waiting nearby would also rape me. Fearing for my life, I was afraid to scream. Seeing that he was blocking the only route of escape, I tried desperately to plead and reason with him. He was extremely aggressive, bragging that I was not the first woman he had raped. He threatened to kill me if I did not do what he said. I begged for mercy as he pinned me against a stone, cutting my wrist. Paralyzed with fear, I felt myself slipping into shock as he forced himself on me. He penetrated me and ejeculated. After he finished, I managed to start away from his partway up the step moraine. Following me, he insisted that I go out on the glacier with him, perhaps with the intent of pushing me into a crevasse where my body would never be found. As lie was closing in on me on the top of moraine, my friends came into distant view on the trail above. I whistled and shouted for help and he fled. Still in shock, I told my friends what had happened.
Harald chased him but was unable to catch him. I gave a description of my attacker to Aziz, the Manager of Riakot Serai campground. Based on my description, the people of Fairy Meadows immediately knew who he was.
' The local people captured the attacker and I positively identified him the following morning. I confronted him but he refused to look me in the eye. Admitting this guilt, the villagers offered to punish him themselves. They told me that I could get 20,000 Rupees in compensation from his family. His father pleaded for his life, and I was urged not to go to the police. When we tried to photograph him, he broke away, but was eventually recaptured. Accompanied by the village Mullah, my friends and I transported him to Gilgit where he was placed into police custody at approximately 4-00 p.m. August 4.
' Under penalty of perjury, I swear that the foregoing is true. Heike Huettenkofer M.D. August 4, 2000."
3. Before the F.I.R. Came into black and white at Police Station Gunner Farm, partial investigation was conducted by police at Gilgit which include the examination of the convict and the victim lady by the concern doctors at District Headquarter Hospital Gilgit. The rest of investigation was carried out by S.H.O. Gunner Farm. After having satisfied of such investigation the police submitted the challan in the Court of Sessions Judge, Chilas, Northern Areas.
4. The learned trial Judge examined as many as 14 P.Ws. Recorded the statement of the convict under section 342, Cr.P.C. Wherein the accused denied the charge and contended that he was not apprised of the proceedings to be held before the Magistrate for recording the statements of the witnesses under section 342, Cr.P.C. And that he was also not provided an opportunity to engage counsel for his defence. The learned trial Judge, according to his assessment of the materials available on his file found accused guilty of relevant offence convicted him and sentenced to 10 years' R.I. However, the punishment of strips provided in the relevant section was not inflicted due to the age factor of the accused vide his judgment/order, dated 5-5-2003.
5. Not contended with the findings of the trial Court, the convict/ petitioner preferred an appeal with the Northern Areas Chief Court which was registered as Criminal Appeal No,11 of 2003.
Unfortunately the convict/petitioner could not find favor of the learned Judge of the Chief Court and resultantly his appeal was dismissed vide short order, dated 28-10-2003, whereby the sentence awarded by the trial Court was maintained. It is worth to note here that we, in spite of our best efforts could not trace the detail judgment of the Chief Court, which according to the learned Judge was to be returned following his short order.
6. Mr. Javed Iqbal Advocate, who was engaged as pauper Counsel for the convict on his request from jail, assailed before us the judgment/order of the Chief Court on the following scores:--
(i) That the judgment/order of the Chief Court as well as of the trial Court do not enjoy the blessing of judicial order, as according to him, the P.Ws., were not brought in the witness-box for cross- examination during trial. This fact also escaped from the consideration of the Chief Court in the course of appeal.
(ii) That the F.I.R. Has been lodged with great amount of delay and that also unexplained.
(iii) That there is apparently misreading and non-reading of evidence available on record.
(iv) That the medical evidence is not worth consideration due to glaring drawbacks and same does not support the prosecution case.
7. The learned Advocate-General on the other hand vehemently opposed the petition stating that the prosecution case stands proved against the convict-petitioner beyond any shadow of doubt.
8. We have given our patient hearing to the arguments so advanced by the learned counsel and the Advocate-General and gone through available record minutely. The conviction awarded by the trial Court and confirmed by the learned Chief Court stands on two-folds grounds i,e, the statements recorded under section 164, Cr.P.C. Of the victim lady and her three companions and the medical examination of the accused and victim.
9. It has come on the record that the victim lady and her three companions were examined by the Magistrate First' Class Chilas under section 164, Cr.P.C. And later on such statement were relied upon by the trial Court while convicting the accused in the shadow of section 244-A, Cr.P.C. It is also not disputed that the makers of such statements were not brought in the witness-box for examination during trial. These points require consideration in the light of the provisions of sections 164, 244-A of Cr.P.C. And Article 47 of Qanun-e-Shandat Order to find out whether the statement recorded in the circumstance of the case can be held a ground for conviction of the accused.
10. Section 164, Cr.P.C. Power to record statements and confessions.--- (1) Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a Police Officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.
(1-A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement.
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or trial.
(3) A Magistrate shall, before recording any such confession explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect: Section 244-A, Cr.P.C. Statement made under section 164.--- The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of Evidence Act, 1872. (now Qanun-eShadadat Order, 1984).
Article 47, relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.--- Evidence given by a witness in a judicial proceeding, or before any persons authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Provided that: The proceeding was between the same parties or their representatives-in-interest; The adverse party in the first proceeding had the right and opportunity to cross-examine; The question in issue were substantially the same in the first as in the second proceeding.
11. The perusal of record clearly reveals that the accused, during the investigation was taken to the Court of Magistrate at Chilas where the statement of victim lady and her companions were to be recorded under the relevant provision of law. It has also come on the record that the convict petitioner admittedly is an illiterate person. It also appears that the statement makers/witnesses were foreigners and the accused did not understand their language. The accused, thus, in such situation was not in a position to face the proceeding before the learned Magistrate. An illiterate person cannot be expected to be familiar with the proceedings prevalence in a Court of law. It was, therefore, mandatory on the part of Magistrate to facilitate the accused to engage a counsel for his defence which seemingly was not extended to him. It also appears that no notice was given to convict-petitioner before recording the statement of P. Ws. Under section 164, Cr.P.C. The facilities provided under section 361, Cr.P.C. Were not also provided to the accused during such proceeding in the Court. The Magistrate has thus transgressed all the boundaries of law and procedure which otherwise he was bound to adopt. Answer to Question No,3, put to the accused during trial clearly suggests that he had no notice of the proceeding, nor the facility to engage a counsel was extended for the purpose of cross-examination which according to the provisions of the above quoted section was mandatory. The over-writings, appearing in the statements. Is indicative of the fact that the M.I.C. Was under the full control of P.Ws. The ink used and the handwriting differing from the original has made the things more doubtful.
12. On the strength of these observations made above, we are of the definite view that the statements recorded by the Magistrate at Chilas do not qualify to be a statement under section 164, Cr.P.C. Any statement recorded in violation of law and procedure cannot be considered a valid statement and the same cannot be a substitute for statement recorded during trial going through the process of cross-examination. Therefore, no conviction can be sustained on the basis of such statement specially, when its maker was not examined during trial.
13. Coming to the medical evidence which is another pillar for conviction of the accused it can safely be said that the opinion formed by the concerned doctors is not on the basis of the skill and tests required for the proof of a sexual intercourse.
14. It is also a petty, on the part of the prosecution that no endeavor was made to bring the victim lady in the witness-box in spite the fact that she was available at Islamabad during the progress of the trial.
15. The judgments of the Chief Court as well as of the trial Court do not possess the quality of a standard judgment as these are devoid of reasoning. A judgment should contain points for determination, discussion thereon and the reasons for such decision. Unfortunately the judgment of the two Courts below lack in qualities of a valid judgment.
16. Having considered the entire facts of the case and the law points raised therein we have come to the conclusion that the sentence awarded by trial Court and confirmed by Chief Court cannot be sustained. Petition for leave to appeal is converted into appeal. Order passed by the trial Court dated 5-5-2003 and that of the Chief Court dated 28-10-2003 set aside, convict/appellant is acquitted. These are the reasons of our short order, dated 21-4-2006.