' This is an appeal under section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) against the judgment of the Sessions Judge, Abbottabad, dated 29th March, 1982, convicting Shabbir Ahmad, appellant and Mst. Taslim Bibi, co- accused under section 10 (2) of the Ordinance and sentencing each of them to undergo R. I. For 5 years with whipping numbering 30 stripes and a fine of Rs, 1,000 and in default of payment of fine further R. I. For 4 months.
2. Mst. Taslim Bibi, co-accused lodged the First Information Report on 8-6-1981 with Police Station Mirpur, District Abbottabad, alleging therein that about 10 monthsprior to the lodging of the report, one day at Dopehrwela she went out in the fields to bring earth. While she was digging the earth, Shabbir Ahmad, appellant, is alleged to have come there and committed zina-bil-jabr with her. It was further alleged that the appellant also threatened her with dire consequences if she disclosed the incident to anybody else, and he promised to marry her. After about a month or so Mst. Taslim Bibi suspected pregnancy as she did not have her menstaruation. She also approached the appellant to marry her but he declined. She did not disclose her pregnancy to her mother or father and ultimately she gave birth to a bastard female child 2 days before lodging the report. Abdul Hameed Khan, A. S. I. (P. W. 4) after recording the First Information Report (Exh. P. A.) referred Mst.
Taslim Bibi to Civil Hospital, Abbottabad for medical examination. Accordingly she was medically examined by Lady Doctor Farakh Iqbal Zuberi (P. W. 3) on 6-6-1981 at 5-00 p. m. The case was partly investigated by Ali Asghar, I. H. C. (P. W. 6), who prepared , the site plan (Exh. P./B.) and arrested Mst. Taslim Bibi, co-accused. S. I. Noor Zaman Khan is the Investigating Officer who recorded the statement of some of the P. Ws. Under section 161, Cr. P. C. And submitted the challan against Shabbir Ahmad, appellant and Mst. Taslim Bibi, co-accused.
3. In support of its case the prosecution produced 6 witnesses. Dost Muhammad (P. W. 1) is the father of Mst. Taslim Bibi while Mst. Fazilat Bibi (P. W. 2) is her mother. Both these witnesses have deposed that Mst, Taslim Bibi was unmarried at the time of delivery of a female child and she had told them that about 9/10 months back she was forcibly raped by Shabbir Ahmad, appellant. She did not disclose this incident earlier on account of fear and humiliation. Her father Dost Muhammad took her to the Police Station Mirpur, where she lodged the First Information Report (Exh. P. A.). Lady Doctor Farakb, Iqbal Zuberi (P. W. 3) medically examined Mst. Taslim Bibi on 8-4- 1981. In the opinion of the Lady Doctor Mst. Taslim Bibi had given birth to a full term child within two to for days. A. S. I. Abdul Hamid Khan (P. W. 4) and Ali Asghar, I. H. C. (P. W. 6) partly investigated this case. S. I. Noor Zaman (P. W. 5) recorded the statements of some of P. Ws. And submitted complete challan of both the accused persons.
4. Shabbir Ahmad, appellant in his statement recorded under section 342, Cr. P. C. Denied the prosecution allegation. When asked why he was charged he stated as under :- "I have been falsely charged, and I am innocent. The accused is a woman of easy virtues. She wanted to black-mail me at the instance of her parents in order to get me married."
' The appellant produced two witnesses in his defence. Malik Abdul Rehman Khan (D. W. 1) and Syed Samander Khan (D. W. 2) have deposed that they knew Shabbir Ahmad, appellant, who belongs to a notable family of village Morkalan and enjoys good reputation in the village and is also a Khan of the village. Mst. Taslim Bibi in her statement recorded under section 342, Cr. P. C. Also denied prosecution allegation. When asked whether about 10 months prior to the lodging of the report she willfully committed Zina with Shabbir Ahmad, co-accused, she stated as under :- "No, The fact is, that I had been subjected to forcible Zina by accused Shabbir Ahmad against my consent. It was not a zina' but "Zfna-bil-Jabr" committed by accused Shabbir Ahmad against me."
About her medical examination by the lady doctor on 8-4-1981 and giving birth to a full term child, she stated as under :- "I was subjected to "Zina-bil-Jabr" by accused Shabbir Ahmed. I got conception as a result thereof.
I became pregnant and delivered a full term female child, who had died thereafter in Jail at the age of two months. I had voluntarily submitted myself for medical examination by a lady doctor."
' When asked why the P. Ws. Had deposed against her she stated as under :- "The P. Ws. Have not deposed against me. They have infect supported my plea."
' When asked what was her statement and why she was charged she stated as under :- "I am innocent and falsely charged. I have been wrongly added as an accused in this case by the police instead of a witness."
She however, produced no evidence in defence.
5. The learned Sessions Judge vide impugned judgment dated 29-3-1982 convicted and sentenced Shabbir Ahmad, appellant and Mst. Taslim Bibi as mentioned above. Only Shabbir Ahmad, appellant has challenged his conviction and sentences through the present appeal.
6. I have heard at length the counsel for the parties and have also perused the entire material available on the record.
7. It is vehemently contended by Mr. M. Bilal, the learned counsel for the appellant that there is no legal evidence available on the record to justify the conviction of the appellant. According to him the statement of Mst. Taslim Bibi, co-accused cannot be used against the appellant as it is clearly exculpatory. Even if her statement is accepted, there is no corroboration available on the record to connect the appellant with the offence charged. It is, further argued by Mr. Bilal that the F. L R.
Logded by co-accused Mst. Taslim Bibi should be kept out of consideration. Reliance in this behalf is placed upon PLD 1956 SC 470 and PLD 1975 SC 607. The statements of Dost Muhammad (P. W.
1) and Mst. Fazilat (P. W. 2) father and mother respectively of Mst. Taslim Bibi are hearsay and could not be used against the appellant. Mr. Sahibzada Akhtar Munir, Assistant Advocate-General N.-W. F.
P. Frankly admits that there is no direct evidence against the appellant other than statements of co-accused Mst. Taslim Bibi and her father and mother and the medical evidence. According to him the evidence of Dost Muhammad (P. W. 1) and Mst. Fazilat (P. W. 2) is not hearsay and can be used against the appellant.
8. I have given my anxious consideration to the arguments advance by the counsel for the parties, and am inclined to agree with the contentions of the defence counsel Mr. M. Bilal. It is an admitted fact that there is no direct evidence against Shabbir Ahmad, except the statement of co- , accused Mst. Taslim Bibi. In her statement before the Police as well as in "' her statement under section 342, Cr. P. C. Before the trial Court she has alleged that she was subjected to forcible zina-bil-jabr by Shabbir Ahmad, appellant. This clearly shows that her statement is exculpatory although the teat= Sessions Judge has found that she was a consenting party. It is well-settled now that the exculpatory statement of an accused person cannot be used against co-accused without independent corroboration. In the instant case admittedly there is no such corroboration available on the record. In such circumstances it is not safe to use the exculpatory statement of Mst. Taslim Bibi, co-accused against the present appellant. Similarly I am not inclined to use the statement of Dost Muhammad and Mst. Fazilat against th appellant because they have clearly deposed that it was Mst. Taslim Bibi who told them that about 9/10 months prior to the delivery, she wa forcibly raped by Shabbir Ahmad, appellant, as a result of which she got conception and ultimately gave birth to a child. Thus the source of information of these two witnesses was Mst. Taslim Bibi, co- accused. In such a situation their statements would clearly amount to hearsay. Moreover, the conduct of Mst. Taslim Bibi co-accused and her parents also goes against them. It is not denied that Mst. Taslim Bibi throughout has been living with her parents i,e, Dost Muhammad and Mst.
Fazilat Bibi (P. Ws.). It is a question of common sense that pregnancy in advance stage is openly visible and therefore Mst. Fazilat at least being the mother of Mst. Taslim Bibi, co-accused should had known this fact much earlier. Admittedly Mst. Taslim Bibi was an unmarried girl at the relevant time and therefore her conception must be the subject-matter of discussion not in her own family but even by other people because pregnancy of an unmarried girl, is, not considered only a grave sin but also disgraceful for the entire family. Silence on their part for such a long period also goes against the prosecution.
9. After taking into consideration the relevant facts and circumstances of the case I have reached the conclusion that the case of the prosecution against Shabbir Ahmad, appellant is highly doubtful. Accordingly giving benefit of doubt to him, 1 accept this appeal, set aside the conviction and sentences of the appellant and acquit him. He is already on bail and his bail-bond is discharged.