MEHMOOD MAQBOOL BAJW A, J.---Recording acquittal of respondents Nos.2 to 6 (Hereinafter called the Respondents) through judgment dated 30th March, 2009, rendered by a learned Additional Sessions Judge, Okara, while accepting application under Section 265-K of The Code of Criminal Procedure, 1898 (Act V of 1898)
(Hereinafter called The Code) made by respondents in a private complaint, accusing the respondents with the charge under Sections 10, 11 of The Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 (Hereinafter called The Ordinance) and Sections 371-A and 371-B of The Pakistan Penal Code, 1860 (Act XLV of 1860) (Shall be called Act XLV of 1860 as and when required), prompted the appellant, Mst. Kausar Bibi (mother of Mst. Aqsa, victim, since dead) to assail the legality and validity of said adverse conclusion by way of present appeal.
2. Initially , the appellant got crime-report bearing No.535 of 2006 lodged under Section 11 of The Ordinance against respondents Nos.1, 4, Amanat son of Akbar and four un-identified assailants with the allegations that the respondents and their associates abducted her daughter Mst. Aqsa, school going, whose Nikah was arranged with Ali Nawaz Shah. The victim when did not turn up from school, search was started and it was informed by Shehzad and Ghulam Shabbir about the factum of her abduction.
Ultimately , the victim which according to the story was kept in Lahore and Depalpur , made her escape good and implicated the respondents and others, levelling not only allegation of abduction but also that of zina.
3. Alleged distortion of facts and conduct of defective investigation due to influence of the respondents, the appellant filed private complaint on 30th March, 2007.
4. After recording cursory evidence, a learned Additional Sessions Judge, Okara, summoned the respondents, persons complained of.
5. After the death-of Mst. Aqsa, the victim, the respondents made an application under Section 265-K of Act V of 1898, pleading no probability of their conviction due to death of victim, which after due notice was accepted through judgment questioned while relying upon the judgment of this Court dated 20th January , 2009, delivered in Criminal Revision No.1 1-L of 2007 "T anveer Ahmad and others v . The State and others" (un-reported).
6. The conclusion under challenge was subject to criticism not only by learned Counsel for the appellant but also by the learned law of ficer but with endorsement of reasons by learned Counsel for the respondents.
The arguments advanced by adversaries though are not incorporated but will be reflected in our discussion.
7. Cursory evidence led by the appellant consists her statement, statement of Mst. Aqsa Bibi (victim), Ghulam Shabbir and Shahzad Hassan Shah.
8. Provisions of Section 265-K of The Code though cannot be used to deprive the prosecution of opportunity to lead evidence but nevertheless, power can be exercised at any stage, if there is no probability of conviction of the accused.
The expression "probability" has not been defined in The Code, which has been defined in Black's Law Dictionary (Tenth Edition) as under: "Probability , n.
1. Something that is likely; what is likely .
2. The degree to which something is likely to occur; often expressed mathematically; POSSIBILITY (I).
3. The quality , state, or condition of being more likely to happen or to have happened than not; the character of a proposition or supposition that is more likely true than false.
4. The amount of rational confidence with which a contingent event may be expected to materialize or become true."
9. Keeping in view the yardstick, respective contentions of adversaries are to be examined.
10. Perusal of the judgment assailed reveals that taking into account factum of death of victim, the learned Trial Court while banking upon the un-reported judgment of this Court, the reference of which has been made earlier , opined that after the death of victim, the star witness, there is no likelihood of conviction of the respondents.
11. Admitting the factum of death of victim, advancing arguments on legal premises on the strength of Articles 46 and 47 of The Qanun-e-Shahadat Order , 1984 (President Order No.10 of 1984) (Hereinafter called Order 10 of 1984), making reference to the order dated 9th September , 2006, declining to record statement of victim but incorporating gist of accusation made and her cursory statement recorded, it was argued that both the provisions were not kept in view which makes such statement not only relevant but also having binding force.
12. We have gone through the judgment of learned Single Bench of this Court delivered in Criminal Revision No.11-L of 2007, whereby while accepting' the revision petition, application under Section 265-K of The Code was accepted. In the judgment, both the provisions relied upon by learned Counsel for the appellant were extensively dealt with.
13. W e have also examined both the provisions in the light of arguments advanced and case-law relied upon .
14. Despite our best efforts, we remained unable to lay our hands on the alleged statement of victim under Section 164 of The Code. Record reveals that victim was produced by the police before the learned Area Magistrate on 9th September , 2006, with request in writing for recording her statement, which request was declined through order of even date for ready-reference: "I.O. has requested for recording statement of abductee under Section 164, Cr.P.C. I have asked her version. She is alleging accused persons for commission of offence. As the accused persons are not present in the court for stating their version and for negating the version of alleged abductee. So far the time being request of I.O. is turned down."
Reference to stance of victim "attributing commission of offence" though cannot be equated with statement under Section 164 of The Code, due to non-com pliance of the provisions of Sections 164 and 364 of The Code but even if premium is granted, it cannot advance plea of appellant to make the said statement "relevant" under Article 47 of Order 10 of 1984 for the reason that there was no representation of the responden ts being accused as envisaged by second proviso to the Article under discussion, though they got the "right" and "opportunity" to cross-examine the victim. The argument as such is misconceived and ill-founded.
15. Argument advanced on behalf of respondents that cursory statement of victim cannot be taken into consideration under Article 47 of Order 10 of 1984 as the respondents were not given right to cross-examine her is without force keeping in view the second proviso of said provision, according to which evidence given in a judicial1 proceedings will be relevant if the opposite party in the first proceedings had the "right" and "opportunity" to cross- examine.
"Right" and "opportunity" must co-exist. If a person and party has no right to cross-examine the witness, then question of grant of opportunity does not arise at all.
Needless to state that in an inquiry , person complained of has no right of participation, until cognizance of the matter is taken and accused is summoned.
Since the person complained of has no right to participate in the proceedings at preliminary stage, therefore, question of conferment of right to cross-examine does not arise at all.
16. Cursory statement of the victim recorded by learned Trial Court was referred to, suggesting its relevancy under Article 46 of The Order 10 of 1984.
Provision of Article 46 of Order 10 of 1984, enumerates eight eventualities in which statement of a person referred to in said provision becomes relevant.
We have minutely examined clause (1) of Article 46, upon which reliance was placed upon with vehemence.
The said provision shall apply when statement is made by a person about the cause of his death or to any of the circumstances resulting in death, when cause of death of said person is fact-in-issue.
Admittedly , keeping in view the accusation, cause of death is not in issue.
In order to treat any statement as "Dying Declaration", it must be proved that declaration was made in extremity , at the point of death, having no hope of this world, compelling the maker to speak truth and truth).
Cursory statement of the victim was recorded on 11th August, 2008, though occurrence took place in April, 2006, approximately . Pursuant to above stated facts and law, provisions of Article 46 of The Order 10 of 1984 cannot be invoked by the complainant.
17. Rule of law enunciated in "Mushtaq Ahmad and another v. The State" (1973 PCr.LJ 1075) by no stretch of imagination can substantiate plea of appellant because in the Report under reference, the victim though was subject to rape but her physical condition was serious having multiple cuts on her abdomen, chest and other parts of the body . It was not a simple case of rape.
Ratio expounded in "Bashir Ahmad and others v. The State and others" (2006 PCr.LJ 662), (Federal Shariat Court) does not help the appellant to treat the statement of victim as "Dying Declaration" as the victim made statement disclosing cause and circumstances of homicide.
In "Sirajuddin v. The State" (1990 SCMR 588), the deceased himself lodged FIR., which was treated as dying declaration after his death.
Similar is the situation in the case of " Niaz Ahmad v . The State" (PLD 2003 SC 635 ).
18. V iewed from whichever angle, cursory statement of the victim cannot be treated as "Dying Declaration".
19. Rest of the arguments also being dealt with will not be sufficient to make interference in the impugned conclusion.
20. Cursory statement of appellant is nothing but hearsay . She deposed what was told to her by other witnesses.
21. Statements of Ghulam Shabbir and Shehzad Hussain, seeing the victim in the company of respondents in white colour vehicle are not suf ficient to cover the case within ambit of Section 1 1 of The Ordinance,
22. Bald statement of appellant without disclosing source of information about the sale of victim, name of the seller would not be suf ficient to cover the case within the mischief of Sections 371-A and 371-B of Act XL V of 1860.
23. Contention raised on behalf of appellant to decide the fate of the case after recording evidence of appellant and the witnesses in the circumstances is without force as there will be no likelihood of conviction of the respondents.
24. Conduct of the respondents, pleaded repeatedly , resulting in delay and transfer of case at Okara by the order of learned Lahore High Court, Lahore, is not required to be dealt with having no nexus with the parameters to decide the fate of appeal.
25. Pursuant to above, no exception can be taken to the impugned judgment.
Appeal without force is hereby dismissed. 2 3 Mushtaq Ahmad and another v. The State (1973 PCr.LJ 1075 (Lahore) Sirajuddin v. The State (1990 SCM R 588)
Niaz Ahmad v. The State (PLD 2003 SC 635)
Bashir Ahmad and others v. The State and others (2006 PCr.LJ 662 (FSC)
Muhammad Ijaz and another v. Muhammad Amir and another (2008 SCM R 819) Jainal Abedin Mia v. Wajid Ali Howladar and 7 others (1969 PCr.LJ 857) Mst. Fatima Bibi v.
Muhammad Jamil and 4 others (1988 PCr.LJ 864) Azmat Bibi and another v. Asifa Riaz and 3 others (PLD 2002 SC 687) Mst. Nasreen Akhtar v. Hasnain Mehdi and 6 others (2012 PCr.LJ 853. "NIAZ-UD-DIN and others v. THE STATE and another" (2011 SCM R 725).