' HAZIQUL KHAIRI, C.J.--- This appeal is directed against the judgment, dated 30-7-2005, passed by the learned Additional Sessions Judge, Burewala whereby appellants Ali Ahmad and Ali Sher, sons of Lal Din were convicted under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as "the said Ordinance") and sentenced to undergo imprisonment for life R.I. Each. Both the appellants were also convicted under section 10(3) of "the said Ordinance" and sentenced to undergo ten years' R.I. Each. Both the appellants were also extended benefit under section 382-B, Cr . P . C .
2. Briefly, facts of the case are that on 26-5-2001 complainant Sajjad Hussain Shah lodged written complaint, Exh.P.A., at Police Station Gago and in consequence whereof F.I.R. No,200 of 2001, Exh.P.A./1, was registered on 6-7-2001 which states as under:-- "I am Clerk of Advocate. My father is residing in Chak No,361/EB since long and he is a labourer. In the intervening night 23/24-4-2001, accused persons namely Ghulam Rasul, Muhammad Aslam alias Gogi, Muhammad Rafique, Ali Ahmad, Ali Sher, Muhammad Boota who are relatives to each other in connivance with each other, at about 10-00 came to village of my father. At that time Muhammad Rafique was armed with rifle G-3, Ali Ahmad with kalalshnikov, Ali Sher, Muhammad Boota, Muhammad Aslam alias Gogi along with two other persons and Ghulam Rasul were armed with rifle .222 bore. Ali Sher and Muhammad Boota were armed with gun double-barrel. In the same night, bulb of mosque was broken and at about 2-1/2 a.m. (night) after trespassing the house of him, entered in the house and they forcibly abducted my two daughters namely Mst. Saima and Mst. Sumera. When I came back from Lahore then I started their search. On 4-5-2001, my daughters came to me who narrated about the occurrence and told about the aforementioned accused persons. I moved a Writ Petition No,4175 before the Honourable High Court, wherein it was directed that the S.S.P. Would make the inquiry. S.S.P. Made the inquiry on my application on 21-5-2001. I am a respectable citizen. My daughters are virgins and nobody has seen them till today. Accused be dealt with in accordance with law."
3. After completion of investigation challan was submitted in the Court whereafter charge against all the accused persons was framed on 8-1-2003 to which they pleaded not guilty and claimed trial.
4. The prosecution examined eight witnesses. P.W.1 Dr. Atta Muhammad Zafar conducted potency test of appellant Ali Ahmad and found him fit to perform sexual intercourse. P.W.2 Muhammad Rafie, Head Constable No,109 on receipt of two sealed parcels from S.H.O. Kept in the Malkhana and on 27-11-2001 handed over the same to Parvez Akhtar, Constable No,792 for onward transmission to the Office of the Chemical Examiner, Multan. P.W.3 Pervez Akhtar, Constable No,792 delivered two sealed parcels in the Office of the Chemical Examiner, Multan. P.W.4 Mst. Sumera Bibi reiterated contents of her father's complaint, Exh.P.A. She further deposed that the accused persons forcibly boarded them in a car in which appellants Ali Sher and Ali Ahmad, were boarded with them. They took them to Misri Shah, Lahore where they confined them in a room all and the accused persons turn by turn committed Zina-bil-Jabr with them. They were confined for eight days and they were subjected to Zina-bil-Jabr during night whereas they (victims) were being intoxicated during day time so that they may sleep the whole day. She stated that one day the door was opened, they fled away from Lahore and came to their parents house at Chak No,361/EB., P.W.5 Mst. Saima Bibi supported her sister's deposition. P.W.6 Sajjad Hussain Shah, complainant reiterated the contents of his written complaint, Exh.P.A. P.W.7 Dr. Afia Naz Alam conducted medical examination of Mst.
Sumera and Mst. Saima. According to her opinion both (victims) were habitual to sexual to sexual intercourse. P.W.8 Ghulam Mustafa, Inspector/S.H.O. Investigating Officer of the case stated that on 6-7-2001 he received report from S.P. Vehari along with the statement of Sajjad Hussain, complainant. According to inquiry report, only Ali Ahmad, appellant was found guilty for the abduction of Mst. Sumera and Saima. He recorded the formal F.I.R. Exh.P.A./1 and inspected the place of occurrence and prepared rough site plan, Exh.P.J. He recorded statements of P.Ws. Under section 161, Cr.P.C. And on 22-7-2001 arrested appellant Ali Ahmad. The prosecution also examined C.W.1 Akbar Ali, D.S.P. Who deposed that on 14-11-2001, S.P. Vehari entrusted investigation of this case to him. After his investigation, he opined Ali Ahmad, appellant guilty and others accused innocent.
5. On 29-6-2005, statements of accused persons were recorded under section 342, Cr.P.C. Wherein they denied the allegations levelled against them. Before I take up their statements it would be advantageous to refer to its significance under section 342, Cr.P.C. The Supreme Court of Pakistan in the case of S.A.K. Rehmani v. The State reported in 2005 SCM R 364 has observed:-- "There is no cavil with the proposition that "section 342, Cr.P.C. Can be bifurcated into two parts.
Subsection (1) of section 342, Cr.P.C. Confers discretion to the Court while its second part is mandatory and besides that the section revolves around the maxim audi alteram partem, i,e, that no one should be condemned unheard." AIR 1940 Nag. 283, 41 Cri.LJ Jour 585, AIR 1957 Mys. 9, ILR 1956 Mys. 114, 1957 Cri.L. Jour 208, AIR 1936 Pesh. 211, AIR 1937 Pesh. 20, 38 Cri. Jour 387, AIR 1935 Cal.
605, AIR 1936 Oudh 16, 36 Cri.L Jour 1303, AIR 1934 Oudh 457. "The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth, and it constantly happens that the accused's explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no explanation or a false or unsatisfactory explanation is given".
6. Now all the eight accused persons namely Ali Ahmad (appellant), Ali Sher (appellant), Muhammad Suleman, Muhammad Riaz, Muhammad Rafique, Muhammad Boota, Muhammad Aslam and Ghulam Rasul in reply to questions asked by the learned Sessions Judge came out with exactly the same reply along with the contentions raised by them against the prosecution. In short the questions asked by him and reply given by all the accused persons were verbatim the same leading to irrebutable conclusion that the trial Court had acted with gross illegality, judicial impropriety and in flagrant breach of mandatory provisions of section 342, Cr.P.C. Which requires examination of an accused person separately and independently. I am fortified in my view by the case of Muhammad Aslam v. The Crown reported in 1969 PCr.LJ 1178 wherein it was held that "if there are more than one accused each and every accused shall be examined separately. Short cut procedure would amount to flagrant violation of the provision of law". In the case of Afzal Khan and 4 others v. The State reported in 1997 PCr.LJ 1416 "Joint examination of several accused under section 342, Cr.P.C. Is illegal and vitiate the whole trial". In the case of A.M. Nur Mian v. Mokhlesur Rahman Almansuri reported in PLD 1967 Dacca 503 it was held that a written statement by the accused cannot anticipate the requirement of the Court, and therefore, cannot be deemed to be a substitute for examination under section 342, Cr.P.C.
7. We have heard Mr. C.M. Sarwar, learned counsel for the appellants, Mr. Muhammad Sharif Janjua, learned counsel for the State and have also perused record minutely with their assistance.
8. Learned counsel for the appellants brought to our notice a number of grounds on which the conviction and sentence of the appellants may be set aside. It was urged by him that there was delay of three months in lodging F.I.R., for which there is no explanation on record. According to C.W.1 Akbar Ali, D.S.P. Headquarters, Lodhran he was entrusted the investigation of the case and he found only Ali Ahmad, appellant, guilty and other innocent. In cross-examination he stated that Mst. Sumera Bibi had illicit relations with Moulvi Ghulam Farid, the Imam of the mosque of the village. There was no abduction as alleged in F.I.R. Both Mst. Sumera and Mst. Samina went to Lahore at their own with Ali Ahmad, appellant. The matter was reported to "Punchayat". Its members Muhammad Akram, an Ex-Counciller and Muhammad Riaz Mohl took Mst. Sumera from Lahore and dropped her to Chak No,361/EB and later on handed over to her grandfather Babar Hussain Shah. Neither of the alleged abductees ever reached Chak No,361/EB at their own and ever visited Pakpattan. It also came to his knowledge that the grandfather of the girls Babar Hussain Shah refused to register the case against any person because he believed that his granddaughters were at fault. According to P.W.7 Dr. Afia Alam, W.H.O., who conducted medical examination of Mst. Sumera Bibi and Mst. Samina in her report had stated that there were no mark of violence or injuries on their external examination. There were no strains on vulva, their hymens were torn and healed and their vagina admitted two fingers easily. The swabs were stained with semen. They were habitual to sexual intercourse. It was stated by the learned counsel for the appellants that swa bs were sent to Chemical Examiner after six months, which could only remain intact for 17 days only. Neither the grandfather nor "Khala" of the alleged victims nor independent witnesses were produced by prosecution. Except Ali Ahmad, appellant all the others seven accused were declared innocent by the police.
9. Thus, gross illegality was committed by the learned trial Court while proceeding under section 342, Cr.P.C. There are a number of loopholes in the prosecution case as well which leave us with no option but to set aside the conviction passed and sentences given to the appellants by the learned Additional Sessions Judge, Burewala. Resultantly the appeal is accepted with the direction to jail authorities to forthwith release both the appellants, namely Ali Sher and Ali Ahmad unless they are required in some other criminal case.