JUSTICE ZAKAULLAH LODHI, MEMBER.----This appeal calls in question the order of conviction recorded by the Sessions Judge, Quetta convicting the appellant to two years' rigorous imprisonment and a fine of Rs. 2,500 or 6 months' R.I. In default under section 10 of the Offence of Zina (Enforcement-- of Hudood) Ordinance, 1979.
2. As the prosecution story goes, Mst. Zar Bano apprehended bodily harm at the hands of her husband who suspected her to be an adulteress and came to be lodged in Dar-ul-Aman, Quetta.
On 8 May, 1979 she complained of stomach trouble to the Superintendent of Dar-ul-Amen and the later sent her to the hospital for medical check up, whereupon it was revealed on 9th May, 1979 that she was pregnant for abut 8 weeks. Upon this report the Deputy Director. Dar-ul-Aman made preliminary enquiry and she confessed that she had been carrying on with Chowkidar, Did Muhammad. Subsequently on 10th May, 1979, P. W. Abdur Rahim Baluch reported the matter to the Police and both Mst. Zar Bano and Din Muhammad Chowkidar were arrested. Uptil this time she had not accused anyone else of having sexual relations with her. However, on 12 May, 1919, when she was produced before the Magistrate for the recording of her confession, she implicated the appellant also by giving his description. She stated that the appellant who had remained posted on police duty in the Dar-ul-Aman also committed sexual intercourse with her with the connivance of said Chowkidar. No wonder that he was picked up in the identifi--cation parade held on 13th May, 1979, as he was posted there for quite sometime and during this period he must have been seen by her. Any--how Mst. Zar Bano, Din Muhammad, and the present appellant were challaned by the police and tried by the Sessions Judge, Quetta, who convicted all the three but only the appellant has come up in the appeal.th th
3. The appellant when examined pleaded innocence. He also examined Sher Shah Head Constable, the then incharge of the Police Guard as his only defence witness who is relevant only the extent that the police constables did not have any access to Dar-ul-Aman, as they remained outside its gates.
4. The prosecution case against the appellant rests only on the confession of Mst. Zar Bano, a co- accused, the rest of the witnesses are formal. Therefore the only point requiring consideration would be whether appellant could be convicted solely on the basis of confession of the co- accused. In this connection section 30 of the Evidence Act may be seen: "Consideration of proved confession affecting person making it and others jointly under trial for same offence.-When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such, persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."
5. Obviously, a confession of a co-accused which does not occupy the position of a statement on oath made before a Court of law cannot be made a ground to support conviction of another co- accused This point was considered in Joygun Bibi v. The State (P L D1960 S C313), wherein it was held that the confession of a co-accused could be taken into consideration against a co-accused but as it did not have the quality of evidence conviction could not be based upon it. Similar view was taken in Sher Dil v. The State (PLD 1972 Lah. 563
6. To conclude it is a case in which no evidence is forthcoming against the accused and he deserves acquittal.
7. The above are our reasons for the acceptance of appeal and setting aside the impugned order vide short order passed on 2nd March, 1981.