'MIAN FASIH-UL-MULK, J. Appellants Itifaq and Mst. Ziffat Bibi were tried by learned Additional Sessions Judge-III, Abbottabad on charge under sections 322/328/496-B, P.P.C. And having found guilty were convicted. Accused were sentenced under section 496(b), P.P.C. To undergo rigorous imprisonment for a period of five years each with a fine of Rs,5000 or in default to further undergo four months S.I. And under section 328, P.P.C. To five years R.I. Each with a fine of Rs,5000 and in default to further under go four months S.I. Benefit of section 328-B, Cr.P.C. Was extended to them.
Both the appeals are disposed of through this single judgment as in both the appeals common questions of law and facts are involved.
2. Facts of the prosecution case are that on 21-5-2008 complainant Babu Khan along with Gulistan Khan, made a report that on preceding day at about 1-00 p.m., he received information about a newly born baby lying in Nallah Lahoor Kass. Upon such information he along with Israr-ul-Haq, Zahid and Khaliq Dad rushed to that place and found a newly born baby lying on grass at Dhaka Rakh. The complainant took the baby to his village, informed all the inhabitants and after consultation informed the local police. Complainant lodged the F.I.R. But charged no one for the offence. Muhammad Nazir Sub-Inspector started investigation and arrested the appellants whereafter both the accused were produced for recording their confessional statements.
3. After completion of investigation complete challan was put in Court. A trial formal charge was framed against the appellants, who professed innocence, false implication and claimed trial. The prosecution in support of its case examined ten witnesses.
4. On close of prosecution evidence, appellants were examined under section 342, Cr.P.C. Where both the appellants retracted their confessional statements. They did not appear as their own witnesses on Oath as required under section 340(2) Cr.P.C. Nor produced any evidence in defence.
5. On the assessm ent of evidence, the appellants were found guilty and were convicted and sentenced as mentioned above.
6. Messrs Sardar Muhammad Haseeb Abbasi and Muhammad Zareed Qureshi Advocates appeared on behalf of the appellants whereas the State was represented by Miss Alia Advocate.
Learned counsel for the appellants bitterly criticized the impugned judgment and contended that there is no evidence direct or circumstantial against the appellants regarding commission of offence except the so-called confessional statements of Ziffat Bibi and Itifaq. The learned counsel maintained that the case against the appellants being highly doubtful, the learned trial Court has erred in law to withhold the benefit of such doubt in favour of the appellants. It was further contended that no DNA test was carried out to establish paternity or maternity of child. The impugned conviction and sentence was based on no evidence. It was finally argued that investigation was conducted in violation of section 156(b), Cr.P.C. And the learned trial Court has illegally tried the appellants under section 496(b) read with section 328, P.P.C. Elaborating their submissions, it was contended that under the definition of "Fornication" as mentioned in section 496(b), Cr.P.C. a man and a woman not married to each other are said to commit fornication if they wilfully have sexual intercourse with one another. There is not an iota of evidence which would establish wilful intercourse inter se the appellants, which fact is not even available in the so-called confessional statement of Mst. Ziffat Bibi. As regards section 328, P.P.C. Neither there is any allegation or evidence nor proof to constitute such offence.
7. On the contrary, it was argued that the trial Court has considered the entire evidence on the record and has concluded that the prosecution has succeeded in proving its case against appellants beyond reasonable doubt. The learned counsel went on to say that there was no enmity or reason for false implication of appellants and that the confessional statement of Ziffat Bibi is corroborated by the statement of Lady Doctor P.W.4. Finally, it was submitted that the trial Court has rightly convicted and sentenced the appellants and the impugned judgment does not suffer from any illegality or infirmity.
8. I have given my conscious consideration to the arguments of learned counsel for both the parties and I am of the view that the arguments advanced by the learned counsel for the appellants are not devoid of any force. I find enough weight in their arguments. It is admitted fact that none has charged the appellants for commission of offence. The prosecution witnesses have also not uttered a single word against the appellants. The prosecution has been able to obtain confessional statements of appellants but that too are not only contradictory to each other but even if considered true and voluntary, would hardly make out a case constituting the commission of offence under section 496(b) P.P.C. There is no direct or circumstantial evidence to link the appellants with the commission of, offence.
9. In the case of Mushtaq v. The State 2002 PCr.LJ 1312, it was held that "for giving benefit of doubt to an accused, it was not necessary that there shall be many circumstances which created a reasonable doubt in prudent mind about the guilt of accused. He would be entitled to benefit of doubt not as a matter of grace or concession, but as a matter of right".
10. Learned State Counsel has put much emphasis on the portion of statement of P.W.4 which reads "Breast engorged, milk came, extracted from it on both sides. Hymen is not intact, uterus bully, lochia discharged present OS opened. She is not virgin. She is postnatal 4-5 days".
'Learned counsel attempted to argue that the presence of milk in breast of unmarried girl would be considered sufficient proof of commission of offence. The answer to this argument is available in the case of Mst. Siani v. The State reported in PLD 1984 FSC 121. His Lordship observed as under:-- "Thus more presence of milk in the breasts of Mst. Siani appellant would not conclusively establish that she recently aborted or delivered a child after illegal conception from co-accused Ghulam Najaf or any other person. In the instant case this circumstance alone is not sufficient to prove the charge under section 10 of the Ordinance against the accused. The statement of the Lady Doctor Shahnaz Akhtar P.W. As an expert is covered by section 45 of the Evidence Act. Even if we believe and accept the medical evidence, the next question which arises is as to the value of such medical evidence---Whether medical evidence alone can be made basis of conviction or not. Normally it is not safe to treat expert evidence of a doctor alone as sufficient to base the conviction".
11. Considering a detailed analysis of the evidence available on record, I am constrained to hold that the prosecution has not been able to connect the appellants with the crime or establish its case against the appellants beyond any shadow of doubt.
12. The upshot of the above discussion is that there being no satisfactory basis for upholding the conviction and sentence of appellants, the impugned conviction and sentence is set aside and both .The appellants are acquitted of the charge. Appellant Itifaq, if not required in any other case shall be released forthwith whereas appellant Ziffat Bibi, who is on bail and is discharged of the bail bonds.