' KHAWAJA SHAHAD AHMAD, J.--- The instant appeal has been filed by Aneesa Razzaq, appellant, against the judgment of the Shariat Court dated 18-4-2006, whereby, her appeal filed against the judgment of District Criminal Court Sudhnooti dated 21-9-2005 was dismissed.
2. The facts of the case are that a criminal case under sections 10, 11, 16, 19, ZHA was registered against one Muhammad Ashfaque and others which was filed in Police Station Pallandri by one Muhammad Razzaq on 19-9-2001 at 3-30 p.m. The allegations narrated in the F.I.R. By the complainant were that on 16/17-9-2001 at midnight her daughter Mst. Aneesa Razzaq age 13 years was abducted by Muhammad Ashfaque son of Barkat Ali. The complainant also named Barkat Ali son of Noor Muhammad, Shamim Akhter, wife, and Muhammad Imtiaz son of Barkat Ali as abettoRs, The case was registered by the police and after completion of investigation a report under section 173, Cr.P.C. Was placed before the trial Court. After recording statement of the accused persons under section 242, Cr.P.C., the prosecution was directed to produce the evidence in support of its case. The trial Court after recording evidence of the prosecution and onward proceedings required under law convicted Muhammad Ashfaque, the principal accused and Aneesa Razzaq, the appellant herein although she was not reported by the police as accused in the challan filed under section 173, Cr.P.C. And 'as against it she was placed as witness No,6 in the challan. The trial Court sentenced her to ten years' rigorous imprisonment along with 30 strips and a fine of Rs,5,000 and in case of non-payment of fine the principal accused and the appellant had to undergo a further period of six months' simple imprisonment. This sentence was passed under section 10(2), ZHA on 23-7-2005. An appeal before the District Criminal Court Sudhnooti/Pallandri filed on 1-8-2005 was mainly based on the ground that the appellant being a witness of the case could not be convicted as she was neither challaned nor proceeded against as an accused, her statement under section 242 and 342, Cr.P.C. Were not recorded even the District Court of Criminal Jurisdiction while setting aside the judgment recorded by the trial Court remanded the case for recording judgment afresh in accordance with law. The District Criminal Court recorded its finding on 21-9-2005. Feeling aggrieved with the judgment of the District Criminal Court, as well, the appellant filed an appeal before the Azad Jammu and Kashmir Shariat Court through Criminal Appeal No,34 of 2005 on 28-11-2005. A learned Judge of the Shariat Court recorded his finding on 18-4-2006 and after discussing the facts and arguments on behalf of the appellant recorded his finding in paras.9 and 10 of the impugned judgment mainly on the ground that a charge under section 242, Cr.P.C. Was not read over to the appellant nor the statement under section 342, Cr.P.C.
Was recorded by the learned Judge holding the same as a deviation from settled procedure of trial of a criminal case. The learned Judge however, while relying on a reported case titled Shakeel Ahmed v. State PLD 1998 SC (AJ&K) 31 approved the judgment of the District Criminal Court and dismissed the appeal.
3. The learned counsel for the parties addressed their arguments in detail. Sardar Mushtaq Hussain Khan, Advocate appearing on behalf of the appellant, while repeating his arguments as narrated in the memorandum of appeal submitted that section 342, Cr.P.C. Is a binding provision of law and any deviation tantamount to serious illegality not curable under section 537, Cr.P.C. And the trial thus, conducted is to be vitiated. He also contended that the appellant was listed as P.W.6 in the challan-sheet after investigation by police finding her as innocent and no incriminating evidence was found by the police. She was rightly excluded from the list of accused persons. In the estimation of the learned counsel, the statement of appellant recorded under section 164, Cr.P.C.
Could not be made a ground for conviction. As against it, it has been contended on behalf of the State that the illegality or irregularity - even if accepted to have been committed, the First Appellate Court and the learned Judge of the Shariat Court have seriously attended to the contentions raised on behalf of the appellant and have rightly remanded the case to the trial Court to decide the case afresh under law.
4. While attending to the objections and arguments submitted on behalf, of the State, we feel convinced to record that the contentions of the learned counsel for the State are not correct. A plain reading of the finding recorded by the lower Courts reveals that in spite of holding that serious illegality has been committed by the trial Court, they remanded the case for rehearing under law. Unfortunately each of the Court failed to indicate as to what steps the trial Court could take to record a judgment under law. Again each of the Court failed to attend to the grievance of the appellant who was abducted and raped by the principal accused, and was convicted to ten years imprisonment by the trial Court and also ordered to face retrial on the orders of the First and Second Appellate Courts.
5. Without entering into the merits and facts of the case except to observe that the principal accused has not filed any appeal against the judgment recorded by the District Court of. Criminal jurisdiction and he appears to be satisfied with the finding, whereby, the case has been remanded to the trial Court we proceed to decide the appeal filed by Aneesa Razzaq only.
6. After going through the record and arguments of the learned counsel for the parties we find that the appellant was allegedly abducted by the principal accused. She was not mentioned as an accused in the F.I.R. Filed by her father and when a thorough investigation was conducted by the police she was found innocent and was not challaned as an accused and as against it she was placed as witness No,6 against principal accused. Throughout the trial, the trial Court did not consider her as an accused with the result that a charge was not framed against her provided by section 242, Cr.P.C. A plain reading of section 242, Cr.P.C. Provides that when the accused appears or is brought before the Magistrate a formal charge has to be framed relating to the offence of which he is accused and has to be asked whether he admits that he has committed the said offence. Section 242, Cr.P.C. Or for that matter any section relating to framing of charge has to be followed after a report under section 173, Cr.P.C. Has been placed before the Court. Section 173, Cr.P.C. Also deals with the report filed by the police against an accused person along with the nature of information and the names of the persons who appear to be acquainted with the circumstances of the case. An overall reading of the Code of Criminal Procedure reveals, among other, that it lays down procedure for trial of a criminal case against an accused and if mandatory provision like recording of statement under section 342, Cr.P.C. Are not fulfilled the accused has to be dealt with keeping in view the facts of the case and he can even be acquitted. As has earlier been mentioned that the Court below unfortunately entered into a discussion and interpretation of some of the sections of the Code of Criminal Procedure and their effect, ignoring the basic point that these sections apply to the case of an accused who has been challaned under section 173 of the Cr.P.C. And have no application to a person who is not an accused before the Court. The appellant in the case was not forwarded to stand trial as an accused, so application of section 242, Cr.P.C. Or section 342 of the same Code becomes irrelevant. Similarly section 164, Cr.P.C. Which deals with power to record statement and confession which has to be recorded during the course of investigation and prior to the trial, it does not deal with an affair which is prior to the beginning of the investigation and after the end of the investigation. The statement of the appellant was recorded as statement which is a relevant evidence against the principal accused and not a confession that she committed the crime punishable under section 10(2) of the Offence of (Enforcement of Zina and Hudood) Act which is reproduced below:-- "10. Zina or Zina-bil-Jabr liable to Ta'zir.--- (1). ..............................
(2) Whoever commits Zina liable to Tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine."
' Section 164, Cr.P.C. In fact provides for the recording of confession by accused person or statements by any person including an accused, therefore, 'appellant did not get her statement recorded as a confession which in fact is made by an accused. Statement under section 164, Cr.P.C. Can be recorded at the instance of a complainant, witness himself or on the instance of accused or Investigating Officer. From the facts of the case it is very clear that the statement recorded by the Magistrate under section 164, Cr.P.C. At the instance of Investigating Officer was in fact a statement of the appellant as a witness of the prosecution, therefore, by any stretch of imagination the statement of the appellant cannot be considered as a confession by an accused against another accused simply because the appellant was never an accused in the case. Even otherwise the trial Court has not relied on the statement of appellant under section 164, Cr.P.C.
While recording judgment. There is another aspect of the case that the trial Court has held that offences under sections 11, 16 and 19 for which the principal accused was challaned have not been proved and that only offence under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance has been proved against the principal accused and the appellant, the sentence was recorded under section 10(2) which brings us to the conclusion that the principal accused and the appellant, herein, have been acquitted of the charges under sections 11, 16 and 19, although the finding to that effect has not been recorded.
7. Now coming to the most important aspect of the case which relates to conviction of the, appellant under section 10(2), ZHA we are persuaded to observe that the trial Court failed to appreciate the Correct law. Section 10(2) ZHA is an independent section, it only provides sentence for Zina liable to Ta'zir and provides that subject to the provisions of sections 7 and 8, the accused shall be liable to Ta'zir, subsection (2) of the said section deals with punishment for the offence of Zina liable to Ta'zir and provides ten years rigorous imprisonment and with whipping numbering thirty strips. Section 7 of the said Act deals with punishment for Zina or Zina-bil-Jabr where accused is minor which section is not applicable in the present case but the fact remains there that this section applies to an accused and not to a person who has not been charged for having committed the offence under this section, therefore, the finding of the trial Court that the appellant was not of the age of 13 years but had attained the age of more than 15 years, even if accepted as correct does not attract section 7 of the ZHA. Coming to the provisions of section 8 which relates to proof of Zina liable to Hadd, we find that the proof on which a sentence is to be recorded should be either in shape of a confession of the accused or testimony of at least four eyewitnesses who depose before the Court that they have seen the occurrence in the manner. Specified in the section itself and that the Court is satisfied that they are truthful persons and abstain from major sins. Coming to the proof as defined by section 8, we find that their should be an accused, a Court of competent jurisdiction and a confession of commission of the offence by the accused. In the present case the alleged confessional statement of the appellant under section 164, Code of Criminal Procedure or her statement before the trial Court cannot be considered as a confession simply on the ground that she was not an accused' before the Court and any admission or statement made by her during her examination-in-chief or cross-examination before the Court does not constitute confession. As far the other proof which provides for availability of at least four Muslim adult witnesses, we need not elaborate the legal position, as the.Proposition before us is not about availability or validity of the statement of eye-witnesses. As sections 7 and 8 of the Offence of Zina (Enforcement of Hudood) Act refer to punishment to be awarded to an accused the word and expression whoever commits Zina liable to Ta'zir under section 10(2), ZHA means an accused person who has committed Zina liable to Ta'zir and under this section a person who has not been charged for committing Zina and also having not been forwarded to the Court to stand trial is not included in the term "whoever". The appellant has never been an accused in this case rather was a witness against the accused who allegedly abducted her, she could not be sentenced by the trial Court on the ground of her admission or statement made before the Court in examination-in-chief or in cross-examination. The finding of the trial Court sentencing her to imprisonment of 10 years and certain number of stripes being totally illegal deserves to be recalled.
8. The District Criminal Court and the Shariat Court have remanded the case against the appellant to the trial Court for retrial which also deserves reversal as the case which has been remanded to the trial Court is not against the appellant as she has not been included or ordered to be included in the list of accused by any Court, therefore, the remand order is as well illegal and foreign to the provisions of the Criminal Procedure Code regulating the procedure for trial of a person who has not been forwarded to face the trial as an accused.
9. From precepts, traditions and case-law it reveals that in some cases the confession or for that matter the statement made by the victim lady has been treated sufficient evidence for convicting her but the majority view expressed in different treaties is that the mere statement made by the victim of the rape has not been approved one of which is of the time of Hazrat Umar (RTAH) who himself recorded that once a woman came to him and said that a man committed sexual intercourse with her while she was sleeping. He then ran away and she could not identify him.
Hazrat Umar (RTAH) accepted her excuse and acquitted her (Ela-us-Sunnah by Maulana Zafar Ahmad Usmani, Vol. XI, pp.666-667). Almost a similar event is reproduced to have taken place in the time of Hazrat Ali (RTAH) when Shuraha came to him and said, "I have committed adultery"
Hazrat Ali (RTAH) said to her, "you might have been forced or someone might have committed sexual intercourse-with you while you were sleeping". (Kitabul Fiqh Alal Mazahibil Arabaa (Urdu translation), Vol. V, pp.166,
167. While dealing with the same subject the learned Chief Justice of the Federal Shariat Court in a case reported as Mst. Safia Bibi v. The State PLD 1985 FSC 120, in para 20 observed as under:-- "(20) There is little difference between the view of Imam Malik and others on the point of law that rape with a woman absolves her of criminal liability. The only difference is on the point of the evidentiary value of the self-exculpatory statement Imam Malik places the burden of proving the self-exculpatory evidence on the woman, and this burden can be discharged by her by proving that she raised alarm or complained against it. She can discharge her burden by production of circumstantial evidence."
' And after discussing the subject controversy the learned Judge held that there is no difference on, the main point between Fiqa, common law of England or the law in Pakistan that the appellant/victim cannot be G. Convicted on the evidence on record in the shape of her confession or part of her statement made in examination-in-chief or cross-examination. The finding recorded in the referred report is distinguished on the point that in the appeal before us the case is not one of confession of an accused and is merely an explanatory statement made by a witness in the Court who has never been considered as an accused right H from filing of F.I.R. Till recording of statement made under section 342, C r. P . C .
10. Looking from another angle it is by now settled principle of law that confession by victim or for that matter statement made by her in the Court, a portion of the said statement cannot be considered in isolation to convict an accused as in such-like cases the requirement of law is that whole of the statement has to be taken into consideration. While dealing with identical proposition Mr. Justice Aftab Hussain, Chief Justice of the Federal Shariat Court of Pakistan in the case of Mst.
Safia Bibi observed in para. 13 of thejudgment as under:-- "(13) This is a clear departure from the well-known principles of criminal law that it is the duty of the prosecution to establish by evidence the offence of an accused person beyond any shadow of doubt. It is settled law that a confession should be read as a whole and the self-exculpatory portions therein cannot be excluded-from consideration unless there be evidence on record to prove those portions to be incorrect. The learned Additional Sessions Judge could not hold Mst.
Safia Bibi guilty of Zina by consent under section 10(2) of the Ordinance, in the absence of any evidence to establish that she and Maqsood Ahmad had any sentimental attachment for and were on intimate terms with one another. No such evidence is forthcoming on the record.
The nutshell of the above is that accepting the appeal,, the appellant Aneesa Razzaq is acquitted while setting aside the conviction order recorded against her by the trial Court and remand order recorded by the District Court of Criminal Jurisdiction and approved by the Shariat Court of Azad.
Jammu and Kashmir. The finding recorded hereinbefore shall not in any way affect or influence the proceedings pending against the principal accused in the trial Court.