' ROOH-UL-AMIN KHAN, J.---Through this common judgment, I intend to dispose of the instant criminal appeal and connected J.Cr.A. No,89-B of 2013, titled, "Mst. Basmina v. The State", filed by the appellants-convicts Muhammad Saeed and Mst. Basmina, respectively, against their conviction as well as connected Cr. R. No,34-B of 2013, "Rehman Badshah v. Muhammad Saeed", for enhancement of sentence of both the convicts and Connected Criminal Appeal No,114-B of 2013, titled, "Rehman Badshah v. Nawab Khan, filed by complainant Rehman Badshah against acquittal of co-accused Nawab Khan as all the four are the outcome of the same judgment/order of the trial Court/Additional Sessions Judge-I, Karak dated 30-4-2013, whereby appellants Muhammad Saeed and Mst. Basmina were convicted and sentenced in case F.I.R No,179 dated 15-9-2012, registered under sections 496-A and 496-B, P.P.C., Police Station Sabir Abad District Karak, as follow:-- "Accused Muhammad Saeed son of Muhammad Iqbal is convicted and sentenced under section 496-A, P.P.C. To suffer rigorous imprisonment for a period of FIVE YEARS with fine of Rs,50,000 in default of paym ent of fine the accused shall further undergo simple imprisonment for THREE MONTHS. Both the accused facing trial namely Muhammad Saeed son of Muhammad Iqbal and Mst. Basmina wife of Nasrullah Khan are convicted and sentenced under section 496-B, P.P.C.
For rigorous imprisonment for a period of FIVE YEARS with fine of Rs,10,000 each. In default of paym ent of fine both the accused shall further undergo three months' S.I. In respect of accused Saeed both the sentences shall run concurrently. Benefit of section 382-B Cr.P.C. Is also extended in favour of both the accused".
2. The case of the prosecution, as per contents of the F.I.R is that on 15-9-2012, at 0745 hours, Rehman Badshah complainant reported to local police that Nikah of his brother Nasrullah Khan and Mst. Basmia, was performed some 7/8 years back and out of the wedlock, his brother Nasrullah, who is mentally deranged for the last 6/7 years, has a son and two daughters. On the fateful night, when he woke up for Morning Prayer, he found his sister-in-law missing, who was searched, but with no fruitful result. The parents of the lady were also contacted, but she was not found there. The complainant did not charge anybody by name in his report; however, he stated that on satisfaction he would charge the actual culprits. Later on, on recovery of Mst. Basmina, she in her statement under section 161, Cr.P.C. Recorded on 15-9-2012, charged accused Muhammad Saeed for enticing her away and committing Zina with her on several occasions. As a consequence of her statement, she was also arrayed as an accused. Similarly, during investigation one Nawab Khan, father-in-law of co-accused Muhammad Saeed was also nominated as accused.
3. On completion of investigation, challan was submitted against the accused, who were summoned by the trial Court and charge-sheeted to which they pleaded not guilty and claimed trial. In order to prove the guilt of the accused, prosecution examined 11 witnesses. After close of the prosecution evidence, statements of the accused under section 342, Cr.P.C. Were recorded, wherein the two male accused denied the prosecution allegations and professed their innocence, however, the lady accused Mst. Basmina during her examination under section 342, Cr.P.C.
Answered some of the questions in affirmative. All the three accused, however, declined to be examined on oath under section 340(2), Cr.P.C. Or to produce evidence in defence. On conclusion of trial, accused Nawab Khan was acquitted while accused Muhammad Saeed and Mst. Basmina were convicted and sentence as mentioned above.
4. Learned counsel for the appellants-convict argued that the impugned judgment is the result of misreading and non-reading of material evidence available on the record; that there is no eye- witness of the occurrence to prove the alleged abduction of Mst. Basmina by appellant 'Muhammad Saeed; that statement of Mst. Basmina recorded under section 161, Cr.P.C. Wherein she has charged appellant Muhammad Saeed, has no evidentiary value as she has not been examined under section 164, Cr.P.C. And her statement under section 342, Cr.P.C. May not be a substitute of confession; that the prosecution has miserably failed to prove the guilt of the appellants through cogent, coherent, convincing, reliable and trustworthy ocular account; that the medical evidence and FSL report are in direct conflict with the prosecution version; that statement of appellant Mst. Basmina recorded under section 342, Cr.P.C. Is neither a confession nor equated with the confession hence the same cannot be used against co-accused Muhammad Saeed.
Learned counsel argued that if the answers furnished by Mst. Basmina in her statement under section 342, Cr.P.C., are termed to be based on her own volition and consent, then the question would be as to why she did not record her statement under section 164, Cr.P.C. On the very first day of her production before the judicial Magistrate, at the time of framing of charge and that why she had preferred the instant appeal against her conviction from the Jail; that the case of the prosecution is full of doubts benefit of which is to be extended to the appellants, hence, the impugned judgment of the trial Court is liable to be reversed.
5. Conversely, learned counsel for the complainant contended that the prosecution has proved the guilt of the appellants up to the hilt through cogent, coherent, trustworthy and confidence inspiring evidence; that the defence has failed to shatter the credible testimony of the prosecution witnesses; that statement of co-accused Mst. Basmina recorded under section 342, Cr.P.C.
Squarely proves the prosecution case, hence, both the appellants have rightly been convicted. In support of criminal appeal against acquittal of co-accused Nawab Khan, learned counsel contended that sufficient concrete evidence has also been brought against him by the prosecution which prove his complicity and facilitation of the offence, hence, he is also liable to be convicted and sentenced for the offence.
6. I have heard the exhaustive submissions of the learned counsel for the parties and have gone through the record with their able assistance.
7. Before dilating upon the prosecution evidence and the impugned judgment of the trial Court, the grounds of conviction which find favour with the trial Court are reproduced below:-- "No doubt, the complainant had not charged anyone by name in his initial report which was then incorporated into F.I.R Exh.PA, but when the case was investigated, the local police in view of statement of P.W.5 P.W.9 and P.W.10, recovered the lady accused from the house of accused Saeed to which the male accused have failed to advance any justification, rather from the contents of Nagal Mad No,16 dated 15-9-2012, in view of statement of P.W.2 this assertion of the prosecution got established. In this connection it is not out of question to discuss that the report of medical expert, doctor concerned with deposed as P.W.11 regarding the intactness of hymen is not in negative but in the event of a married lady this kind of evidence cannot be placed as a ground 'of defence to deny the allegation of sexual intercourse and same is the case of FSL report because when the vaginal swa b was taken, it cannot be expected that at that time the lady accused may be recently subjected to sexual intercourse by the male accused, so these grounds are of no avail to the male accused in order to disbelieve the prosecution case against him. In this background of the matter from the record of the case as well as the statements of prosecution witnesses so recorded, this fact is established that male accused Saeed had enticed away the female accused Mst. Basmina for the purpose of sexual intercourse though she was not his legally wedded wife rather the wife of another person and thereafter they both with their mutual consent had committed the offence of fornication".
8. The above mentioned findings of the trial Court qua proof of guilt of the appellants are based on presumptions, surmises and conjectures. It is settled law that conviction cannot be recorded on the basis of mere presumptions. Rather, strong evidence of unimpeachable character is the criteria for curtailing the liberty of an accused person. Perusal of the record depicts that in the F.I.R.
Complainant Rehman Badshah brother of Nasrullah and (brother-in-law) of Mst. Basmia, has not charged anybody by name. Rather, it was a report in respect of missing of his sister-in-law, whose husband is reportedly mentally unsound. According to report, her sister-in-law disappeared from the house on the intervening night of 14/15 September, 2012, and report was made on 15-9-2012, at 7.45 a.m. A look over his report would manifest that he has not levelled any allegation of abduction/enticing or Zina against even the unknown culprits. On 15-9-2012, the acquitted accused who is father-in-law of appellant Muhammad Saeed reported the matter to local police vide Mad Report No,16 and disclosed the presence of alleged abductee in his house. Thereafter, complainant's supplementary statement was recorded, who charged the appellant and acquitted co-accused. During investigation, one Islam Ex-Counciler Kacha Banda produced the abductee before the local police on 5-9-2012 and in light of statement of the complainant; she was also arrayed as accused within the meaning of section 494, P.P.C. Her statement was recorded, wherein she charged accused Muhammad Saeed for enticing her away and committing Zina with her on several occasions.
9. Contrary to the version of the complainant and that of alleged abductee Mst. Basmina, there is another version set forth by co-accused Nawab Khan, which has been incorporated in Daily Diary No,16, of the even date, at 1930 hours, according to which, he being a member of District Security Branch, was in the meeting when he was informed on telephone about coming of a woman after his nephew cum son-in-law Muhammad Saeed. He left the meeting, reached his house and summoned a Jirga and asked the woman to go back to her husband's house, but the decision of the Jirga was not acceptable to brother-in-law of the lady (complainant of present case). He further alleged that she was a lady of easy virtue and was hell bent to dishonour him, so he asked for help to get rid of that woman and demanded that in case of her refusal to go back to her husband's house, she be sent to "Dar ul Aman". He further stated that she had also come to his house, few days before the occurrence, but was returned.
10. It is settled principle of law that prosecution is duty bound to prove its case through cogent, coherent and evidence of unimpeachable character beyond a reasonable doubt and it cannot take benefit of the weaknesses of the defence. Admittedly, the occurrence is of no eyewitness.
Complainant Rehman Badshah has been examined as P.W.6. His cross-examination is of worth perusal wherein he has categorically admitted that he has not seen accused Muhammad Saeed while entering his house. He further admitted that he has not seen accused Saeed and Mst.
Basmina for any dialogue with each other. He further admitted that he has not seen both Muhammad Saeed and Mst. Basmina while committing zina with each other. Similarly, Akbar Zaman and Jan Nisar were examined as P.W.7 and P.W.8, respectively, who both are also not the eye-witnesses of the occurrence. They were cross-examined and it has been extracted from them that Mst. Basmina has not been enticed away by accused Muhammad Saeed. Thus, there is not an iota of ocular account to prove the enticing away of alleged abductee and thereafter committing zina with her by accused Muhammad Saeed.
11. Dr. Yasmeen Khattak Senior Women Medical officer posted at Molvi Amir Shah Memorial Hospital appeared as P.W.11, who had examined Mst. Basmina on 16-9-2012 at 02.30 p.m. She found her conscious, well oriented in time and space with anxiety and depression. She did not find any sign of violence on her body. No scratches, bruises or abrasions seen on her body. On pre-vaginal examination, V/V OS were found closed. Uterus A/V Normal in size. Pregnancy test was done and found negative. Ultra sound was also done but no sign of pregnancy was found. Vaginal swab were taken and sent to the FSL. The report of the FSL is available on file which is in negative. Thus, no shred of evidence either ocular or circumstantial could be brought on record by the prosecution to prove the commission of zina by the two accused with each other. Similarly, there is not an iota of evidence to prove abduction/enticing away of Mst. Basmina by her co-accused Muhammad Saeed. Admittedly, acquitted co-accused is father-in-law of appellant Muhammad Saeeed. It is not appealable to reason that a father-in-law would help to bring a married lady to the house of his son-in-law for marriage purpose as co-wife of his daughter to devastate the life of his own daughter, thus, the involvement of acquitted co-accused, prima facie, is sufficient to falsify the prosecution story.
12. The other ground which find favour with the trial Court for recording conviction of the appellants is reproduced below:-- "The lady accused while recording her statement under section 342, Cr.P.C. When replied to the evidence collected against her, she voluntarily admitted the prosecution case regarding the allegations levelled against and the offence against both the principal accused is of such a nature that it cannot be committed without the equal participation and consent of both the accused, so in that eventuality too, the case against both the accused facing trial namely Mohammad Saeed and Mst. Basmina stands established and they both got found guilty for offences committed under sections 496-A and 496-B, P.P.C."
'The bare reading of the above findings divulges that the trial Court has been influenced by the statement of lady accused-appellant recorded under section 342, Cr.P.C. And the same has also been based as a proof of guilt of male accused. There is nothing in section 342, Cr.P.C. That the statement of accused may be used against the co-accused or any other person. Statement of accused under section 342, Cr.P.C. Is neither a E confession nor equated with the confession, rather the same is a plea which can be taken by accused in his defence to explain the evidence produced against him. Criminal Procedure Code, 1898, is not a substantive law but it is procedural law and only Qanun-e-Shahadat Order, 1984, is the relevant substantial law, which determined the legal F worth and admissibility of any kind of evidence or statements, therefore, answer made by accused in her statement under section 342, Cr.P.C. Did not come within the ambit of confession, as it is not recorded in accordance with the law prescribed for the same. Article 43 of the Qanun-e- Shahadat Order, 1984, provides that only a proved confession could be considered a circumstantial evidence against co-accused. The prime object of section 342, Cr.P.C. Is to provide the accused an opportunity to offer his explanation about the evidence produced against him and it is neither meant to collect evidence against him or anybody else nor any part of such statement could be used against any other G person. An accused giving evidence against his co-accused shall be liable to cross-examine by his co-accused and the incriminating evidence given by him against his co-accused shall also be put before the co-accused for explanation. In case of failure such evidence cannot be used against the accused to be made the basis of his conviction. By now it is settled law that statement of an accused under section 342, Cr.P.C. Can be used as admission against its maker, when prosecution has satisfactorily discharged its initial burden of bringing home guilt of the accused, but the same statement has absolutely no evidentiary value against the co-accused. Statement of lady accused about commission of illegal intercourse has been contradicted and quashed by her medical report and statement of lady doctor (P.W.11), according to which, she has not been subjected to coition and sexual intercourse. It is golden principle of criminal justice that every accused in a criminal case shall be deemed as innocent unless proved guilty by the prosecution beyond any doubt. In I the circumstances, the trial Court had entered into the field of error to convict and sentence both the appellants-accused on the solitary statement of lady accused-appellant recorded under S.342, Cr.P.C. Wherein she has admitted the commission of copulation with co-accused. In such an eventuality, it was imperative upon the trial Court, to draw the attention of the accused-appellant to the specific allegation of co-accused levelled against him, so that he may have the opportunity to give any explanation, if he so desires. Section 342, Cr.P.C. Also aims at bringing to the notice of accused such point of evidence which are likely to influence the mind of the Court to draw adverse inference against him. For guidance, judgment of the apex Court in case titled, "Shabir Ahmad v. The State" (PLD 1995 SC 343) may be referred. But the prosecution had failed to prove its case against accused beyond reasonable doubt, therefore, the appellants should have been acquitted, even if the lady co-accused had admitted the case of the prosecution. Reliance may be placed on case titled, "Azhar lqbal v. The State" (2013 SCM R 383).
K The statement of lady co-accused under section 342, Cr.P.C. By no way would be helpful to the prosecution when otherwise the prosecution has miserably failed to prove the guilt of the accused through cogent, coherent and trustworthy evidence and when version of the prosecution and statement of the accused totally runs contrary to each other and similar is the case of medical evidence and statement of lady accused-appellant.
13. Apart from above, if we take the statement of lady coaccused/appellant in juxta position with other facts and circumstances of the case, one thing which creates serious doubt pricking the judicial mind would be that if at all she was ready to admit the case of the prosecution, why she remained mum from the date of her arrest till her statement in the Court? Why she did not record her confessional statement during investigation of the case? Why did not she plead guilty at the time of framing the charge and why after her conviction and sentence she filed the instant criminal appeal from jail? All these queries, strongly suggest that she has not answered the questions of her statement under section 342, Cr.P.C. In the mode and manner mentioned therein. No admission of guilt is available on the record in the present case till the stage of recording statement of the accused. The lady accused has also not confessed her guilt at the time of framing formal charge.
The findings rendered by the learned trial Court are therefore, against the L available evidence and the law on the subject. Courts are not supposed to accept the sole statement of accused for conviction or acquittal or to fix criminal liability on the accused. Wrong answer, without any supporting piece of evidence and inconsistence with the material collected by prosecution cannot be based for conviction, particularly where the co-accused has ulterior motive or personal vendetta.The M accused cannot be convicted even if he has confessed his guilt or pleaded guilty, if the facts on record run contrary and do not constitute an offence. For conviction of accused, the Court is under legal obligation to consider the entire record and available evidence. The immodest conduct of the co-accused (Mst. Basmina) is manifest from record. She was interested in spousal relation with the appellant to the extent that during subsisting marriage, she left her house and husband and went behind the appellant to his house. It would not be out of place to refer the example and instance of historical incident of Hazrat Yousaf (A.S.) and Bibi Zuleha, where circumstantial evidence was preferred over contradictory ocular evidence and Hazarat Yousaf (A.S) was exonerated of the charge levelled against him. Moreover, punishment provided under section 496-A, P.P.C. Is imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Similarly, punishment of imprisonment for a term which may extend to five years and fine not exceeding ten thousand rupees has been provided under section 496-B, P.P.C, The appellants have been awarded full dose punishment provided under the ibid sections of law, by the trial Court leaving no room for enhancement of sentence. Thus, the revision petition is not maintainable.
14. As regard appeal against acquittal of co-accused Nawab Khan. He has been attributed the role of facilitating his co-accused Muhammad Saeed. It appears from the record that appellant Muhammad Saeed is his son-in-law. No shred of evidence has been brought on record to prove the guilt of accused Nawab Khan. He is charged for facilitating his co-accused Muhammad Saeed, but it would not be appealable to a prudent mind that a real father would help his son-in-law in abducting a lady for him to set in ablaze the life of his own real daughter. In the circumstances, the learned trial Court was quite justified and right to acquit him of the charge.
15. These are the detailed reasons for my short order of even date which is reproduced herein below:-- ' For the reasons to be recorded later on, instant criminal appeal as well as Jail Criminal Appeal No,89-B/2013, titled, "Mst. Basmina v. The State" are allowed. Consequently, the conviction" and sentence recorded vide impugned judgment/order dated 30-4-2013, by the trial Court/Additional Sessions Judge-I, Karak are set aside and both the appellants are acquitted of the charge levelled against them in case F.I.R No,179 dated 15-9-2012, registered under sections 496-A and 496-B, P.P.C., Police Station Sabir Abad District Karak. Both the appellants be set at liberty forthwith, if not required in any other case. However, Superintendent concerned Jail shall shift appellant Mst.
Basmina to "Dar ul Aman" Peshawar, in case she shows her willingness for the same, otherwise, she be released, with intimation to this Court. Connected Criminal Appeal No,114-B of 2013, titled, "Rehman Badshah v. Nawab Khan " stands dismissed in limine while Criminal Revision No,34-B of 2013, "Rehman Badshah v. Muhammad Saeed" being not maintainable is hereby dismissed.