' MUHAMMAD SIDDIQUE, J.-According to the prosecution the facts of the case briefly are that Mst.
Jumiashah, appellant was married to Muhammad Zahid, complainant (P. W. 8) about 15/16 years prior to the occurrence. Two sons and two daughters including Mst. Hanifa (P. W. 7) were born out of this wedlock. At the relevant time complainant Muhammad Zahid had gone to Saudi Arabia and in his absence his wife Mst. Jumiashah, appellant was living with her children in the house of her husband in the village Dankolla. It is alleged that Umar Farin appellant developed illicit intimacy with Mst. Jumiashah, appellant and used to come to her house at night. On the night of occurrence i. e., one month prior to the lodging of the First Information Report i. e., 7-2-1981, Umar Farin, appellant came to the house of Mst. Jumiashah, appellant and after some time both left the house and went away. At the time of their departure except Mst. Bibi Hanifa (P. W. 7) other children of Mst.
Jumiashah were sleeping. Mst. Jumiashah is alleged to have informed her daughter Mst. Bibi Hanifa (P. W. 7) that they should go to sleep and that she would be coming back very soon. A lantern (P. 1) was burning at that time and Mst. Bibi Hanifa (P. W. 7) claims to have identified both the accused persons in the light of the lantern, Mst. Bibi Hanifa has further alleged that before their departure accused Umer Farin also laid with her mother Mst. Jumiashah in her cot. However Mst.
Jumiasha did not come back to her house. At the relevant time her husband Muhammad Zahid (P.
W. 8) was in Saudi Arabia. He was informed by his paternal aunt's son through a letter that his wife Mst. Jumiashah had been abducted by Umer Farin, accused. On the receipt of this information, he returned from Saudi Arabia and on 5-2-1981 he reached his village. On inquiry he was informed by his daughter Mst. Bibi Hanifa (P. W. 7) how Mst. Jumiashah had been abducted by accused Umer Farin. He then on 7-2-1941 went to Police Station Aluch where he lodged the First Information Report (Exh. P. A). A. S. I. Maulvi Jami (P. W. 9) after recording the report reached the spot on the following day and prepared the site plan (Exh. P. B). He took into possession one lantern (Exh. P. 1) produced by Mst. Bibi Hanifa vide memo. (Exh. P. W. 3/1). He recorded the statements of the witnesses under section 161, Cr. P. C. He received information that both the accused were present in Mansebra, Hazara Division. Accordingly after obtaining permission from S. P. Swat he started for Mansebra in the company of two constables and Rebman Shah (P. W. 6), brother of Mst. Jumiashah, abductee.
He, however, could not find the accused persons there. He was informed there that the accused persons had left for District Swat. Accordingly be returned from Hazara and while proceeding towards Swat near the village Beshart; he saw both the accused persons standing on the road side and giving signals for stopping the Suzuki, in which the Police Party was travelling. Rehman Shah (P.
W. 6) the real brother of Jumiashah identified both the accused and told the Police Officer accordingly. The Police Officer stopped the Suzuki and arrested both the Accused persons. At the time of their arrest the Police Officer recovered one tape-recorder (P. 2), two silver bangles (P. 3), one necklace (P. 4) from the personal search of Mst. Jumiashah and took them into possession vide memo Exh. P. W. 6/1. He also prepared the site plan (Exh. P. B. 1) where the accused persons were arrested. The Investigating Officer produced both the accused persons in the Court of Mr. Naeemul Hadi Khan, S. D. M. Alpuri, District Swat, where the confessional statements of both the accused persons were recorded (Exhs. P. W. 1/1 and P. W. 1/4) respectively. After recording their confessional statements both the accused persons were sent to Judicial lock-up. After the usual investigation the Investigating Officer challaned both the accused persons. They were tried by the Sessions Judge, Swat.
2. In support of its case the prosecution produced 9 witnesses. Mr. Naeemul Hadi Khan. A. C. (P. W. 1)
Alpuri, recorded the confessional statements of both the accused persons. Sher Muhammad Khan, S. H.
0. (P. W. 2) Aluch challaned both the accused persons Gul Zada (P. W. 3) has attested the recovery memo. (Exh. P. W. 3/1) of lantern (P. 1), Moulvi Sahibud-Din (P. W. 4) is the Pesh Imam of village Dankool and he had performed the Nikah of Mst. Jumiashah accused with Muhammad Zahid (P. W.
8) about 15 years prior to the occurrence. Liaqat Shah (P. W. 5) is the father of Mst. Jumiashah, accused. He has supported her Nikah with the complainant Muhammad Zahid (P. W. 8). Rehman Shah (P. W. 6) is the real brother of Mst. Jumiashah. He had joined the investigation and had gone with the Police to Mansehra. He has deposed that while their Suzuki reached village Besham at Khuftanwelia, they saw 2 persons on the road side waiting for the Suzuki. He identified them as his sister Mst. Jumiashah and co-accused. Umer Farin. They stopped the Suzuki on his Plantation. The Police arrested both the accused persons. He had also attested the recovery memo. (Exh. P. W. 6/1) regarding possession of tape-recorder (P. 2), two bangles (P. 3) and one necklace (P. 4) from the possession of his sister Mst. Jumiashah, Mst. Bibi Hanifa aged about 10/11 years appeared as P. W.
7. She is the real daughter of Mst. Jumiashah appellant. She has narrated how on the night of occurrence her mother Mst. Jumiashah eloped with co-accused Umer Farin. She was subjected to lengthy cross-examination but the defence could not shake her credibility. Muhammad Zahid, complainant appeared as P. W.
8. According to him at the relevant time he was in Saudi Arabia but on receiving, information, he returned to his village and after collecting information from his daughter Mst. Bibi Hanifa, he lodged the First Information Report on 7-2-1981. Maulvi Jami, A. S. I. (P. W. 9) is the Investigating Officer in this case.
3. Mst. Jumiashah appellant in her statement recorded under section 342, Cr. P. C. Denied the prosecution allegations. When asked whether she absconded 'after the occurrence till she was arrested alongwith co-accused Umer Farin on 11-2-1981 on the identification of her brother Rehman Shah (P. W.) she replied in the negative. When asked whether she, made a confessional statement (Exh. P. W. 1/4) on 12-2-1981, before a Magistrate she stated as under : "No, The confessional statement was extracted from me through third degree methods used by the Police."
' When asked why the P. Ws. Her husband Muhammad Zahid, her daughter Mst. Bibi Hanifa, her brother Rehman Shah and her father Liagat Shah had deposed against her, she stated as under : "They have falsely deposed against me. My daughter, brother and father have deposed against me at the instance of my husband."
' When asked what was her statement and why she was charged, she stated as under :- "I am innocent and falsely charged. The fact is that on the night of occurrence one Sherin Bashir of or village had come to my house at night time and had tried to assault me. In self-defence I stabbed him and thereafter due to fear I ran to the house of my maternal uncle situated in village Belanai. On return to my village when I was waiting for the Bus at the Stop I was alone arrested by the Police Umar Farin accused was not with me at that time."
' Umer Farin, appellant in his statement also denied the prosecution allegations. When asked whether he absconded after the occurrence till he was arrested alongwith Mst. Jutniashah on 11-2- 1981 by the local Police, he stated as under :- ' I never absconded. In fact I was working as labourer in Mansehra. I was not arrested in the company of Mst. Jumiashah."
' When asked whether he made a confessional statement Exh. P. W. 1/1 on 12-2-1981 before a Magistrate, he stated as under :- "No, The confessional statement was extracted from me through third degree methods used by the Police."
' When asked why the P. Ws. Had deposed against him, he stated that they had charged him on suspicion. He claimed to be innocent and falsely charged in the case. The accused persons did not produce any evidence in defence. The trial Court vide impugned judgment cated 31-10-1981 convicted both Umer Farin and Mst. Jumiashah under section 16 read with section 19(2) of the Ordinance and sentenced each of them to undergo R. I. For 5 years with 20 stripes. Against his conviction and sentences Umer Farin, appellant, filed Jail Criminal Appeal No, 159/I of 1981. Mst.
Jumiashah challenged her conviction and sentences through a separate Criminal Appeal No, 33/1/82. Muhammad Zahid, complainant, has also filed Criminal Appeal No 25-P of 1981 against the convicts praying that sentence under section 16 of the Ordinance be enhanced and the accused be also convicted and sentenced under section 10 of the Ordinance. This appeal was admitted for regular hearing and notice was issued to the convicts vide an Order dated 23-12-1981.
4. Since all the three appeals arise out of the same impugned judgment and relate to the same occurrence they shall be disposed of by this judgment.
5. We have heard at length the counsel for the parties and have also perused the entire material available on the record.
6. It is vehemently contended by the learned defence counsel that after finding that it was a case of elopement and not of abduction, the learned Sessions Judge was not legally justified to convict Umer Farin and Mst. Jumiashah under section 16 of the Ordinance. He has cited several authorities in support of his argument. If Mst. Jumiashah, appellant had herself gone out of her house then it could not be said that Umer Farin, appellant had taken or enticed her away with intent that she may have illicit intercourse with him. Similarly this Court has already held in several cases that a female cannot abet her own abduction, enticement or concealment. In other words a female cannot be a victim and an offender at one and the same time.
(i) Criminal Appeal No, 140/I of 1981 ;
(ii) Criminal Appeal No, 139/I of 1981 ;
(iii) Criminal Appeal No, 144/1 of 1981 ;
(iv) Criminal Appeal No, 4/P of 1981 ; and
(v) Criminal Appeal No, 8/P of 1981.
' In view of these decisions the convictions of Umer Farin and Mst. Jumiashah, convicts under section 16 of the Ordinance are liable to be set aside.
7. According to the learned counsel for the State the learned Sessions Judge has erroneously not relied upon the confessions of the appellants recorded by Mr. Naeemul Hadi Khan, A. C. S. D. M.
Alpuri (P. W.
0. The learned Sessions Judge has observed that these confessional statements of the appellants were not voluntary and true as the accused in their statements recorded under section 342, Cr. P.
C. Have stated that the confessional statements were, extracted from them through third degree methods by the police. It is further observed by the trial Court that the Magistrate who recorded the confessional statements had not disclosed his identity to the accused and had not asked them as to for how many days they remained in police custody. They, were also not informed that they Would not be sent back to Police custody after recording confessions. The learned Sessions Judge has further observed that after recording the confessional statements of the accused in the Court of A. C. Alpuri they were handed over to A. S. I. Moulvi Jami. For these reasons the learned Sessions Judge ruled out of consideration the confessional statements of the accused. Persons. Both the accused persons were arrested on 11-2-1981' at Khuftanwela near village Shand of Police Station Besham. Next day i. e., 12-2-1981 both the accused persons were produced in the Court of Mr. Naeemul Hadi, S. D. M. Alpuri. This clearly shows that both the accused persons were produced before the Magistrate at the earliest without any delay. No doubt the accused persons in their statements recorded under section 342, Cr. P. C. Have stated that their confessional statements were extracted from them through third degree methods used by the police but there is nothing on the record to substantiate this allegation. Even the Investigating Officer (A. S. I. Mouivi Jami was not put any such suggestion in cross-examination. The last question put to him was that the confessional statements were recorded A on promise. There is no indication regarding the nature of the alleged third degree methods used by the Police against the accused persons. Even the nature of promise has not been disclosed by the defense. If there was an allegation of any third degree method against the Police then the proper course for the defense was to put the same to the Investigating Officer or the complainant who was accompanying the raiding party. The confessional statements were recorded on 12-2-1981 while the statements of the accused under section 342, Cr. P. C. Were recorded on 12-9-1981. There is nothing on the record to show that after their confessional statements 'the accused persons made any allegation or complaint to the proper authorities regarding third degree methods used by the Police or otherwise alleging that their confessional statements were not voluntary and true but were obtained through coercion, B.
Threats or promise etc. It was only at the end of the trial that this allegation of third degree method has been leveled against the Police, otherwise there is nothing on the record to support such allegation. The conduct of the accused persons also goes against them in this behalf. Their mere allegation in their statements under section 342, Cr. P. C. Is not sufficient to discard their confessional statements unless such allegation is supported by other evidence circumstantial or documentary. We have minutely scrutinised the confessional statements of Umer Farin (Exh. P. W.
1/2) and of Mst. Jumiashah (P. W. 1/5) and find that the learned Magistrate put the following questions to them before recording their confessional statements :- {{URDU TEXT}}
8. After recording these statements the learned Magistrate. Recorded the following certificate {{URDU TEXT}} A perusal of the above shows that the learned Magistrate had complied with necessary legal formalities before recording the confessional statements of the accused persons. The mere fact that it is not clear that the Magistrate had disclosed his identity to the accused would not make their confessional statements involuntary. In cross-examination Mr. Naeemul Hadi Khan, Alpuri (P.
W. 1) had clearly stated that he had disclosed his identity to the accused Umer Farin and Mt.
Jumiashah. There is no allegation that this Magistrate or the Investigating Officer was inimical towards the accused or otherwise was interested in getting confessional statements from the accused persons in an illegal manner. Both these Officers were subjected to cross examination by the defence but no such suggestion was made to them. Regarding the fact that the Magistrate had not asked the accused persons as to for how many days they remained in Police custody, the same Magistrate in cross-examination has clearly stated that he had also asked the accused as to how many days they remained in police custody, but these facts have not been mentioned by him in writing. In the absence of any allegation against him we have no reasons to disbelieve his statement before the trial Court that he had asked the said question but he had not mentioned it in writing. This omission has not in any manner prejudiced the case of the accused because it is an admitted fact that they were arrested late in the evening on 11-2-1981 and were produced before the Magistrate next day. Similarly the question that after recording their confessional statements the accused persons were handed over to Maulvi Jami, A. S. I., it is argued that there was no other agency other than the Police for sending the accused persons to the judicial lock-up. There is no allegation that after their confessional statements mints the accused persons were kept in Police custody and were not straightaway sent to the judicial lock-up. From the perusal of facts and circus stances of the case we are convinced that the confessional statements of the accused persons were recorded promptly without any delay and the Magistrate had complied with the legal formalities before recording their confessions A mere omission of certain questions in writing would not be sufficient to vitiate the confessional statements which otherwise have been proved satisfactorily. We, therefore, are of the view that the learned Sessions Judge was not justified in holding the confessional statements as not voluntary and true. In fact the accused persons had voluntarily made their confessional statements before Mr. Naeemul Hadi Khan A. C./S. D. M., and the same are true. If they were false the accused persons could easily prove the same. For example both the accused persons have stated in their confessional statements that at that time Mst.
Jurniashah was pregnant from Umer Farin, accused. Admittedly her husband Muhammad Zahid had no access to her during this period. If the confessional statements (Exh. P. W. 1/1 and Exh. P. W.
1/4) were not voluntary and true the fact of Mst. Jumiashah's pregnancy could easily be verified as it was a pure question of fact which the accused could easily disprove, if it was false.
9. If the accused persons had stuck to their confessional statements before the trial Court, they could be convicted and sentenced under section 5 of the Ordinance. However, since before the trial Court the accused persons have retracted from their earlier confessional statements, we have to judge the value of their retracted confessions. It is argued by the learned Defence Counsel that retracted confession should be ignored completely and the appellants should be acquitted. On the other hand the learned counsel for the State argues that retraction should only save the accused from the penalty of hadd provided under section 5 but they can be convicted for tazir. We are inclined to agree with the latter. In fact this is what the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 clearly provides. It is provided by section 9 of the Ordinance that in a case in which the offence of Zina-bil-Jabr is proved only by the confession of the convict, hadd or such part of it as is yet to be enforced, shall not be enforced if the convict retracts his confession before the hadd or such part is enforced. Similarly in a case in which the offence of Zina or Zina-bil-Jabr is proved only by testimony, hadd or such part of it as is yet to be enforced. Shall not be enforced, if any witness resiles from his testimony before hadd or such part is enforced, so as to reduce the number of eye-witnesses to less than for. In such a case the Court may award tazir on the basis of the evidence on record. Further section 10 of the Ordinance says that whoever commits Zina or Zina-bil-Jabr which is not liable to hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of qazif liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, shall be liable to tazir.
We are of the view that this case is clearly covered by tazir. It is otherwise well settled now that an accused can be convicted on retracted confession provided it is voluntary and true. In the instant case even independent corroboration is available on the record.
10. Mst. Jumiashah, appellant was married to complainant Muhammad Zahid about 15 years prior to the occurrence and she gave birth to 4 children. All the for children were minors at the time of occurrence. It is also admitted fact that at the relevant time the father of the children namely Muhammad Zahid, complainant was away from the house and Mst. Jumiashah alone was looking after her children. Hence leaving the children all alone and remaining absent from them and from her house for a considerable period supports the prosecution version. As a mother of 4 minor children she could not leave them all alone in this manner. Her conduct and absence from herd house, therefore, goes against her. It is established on the record that bot the appellants Mst.
Jumiashah and Umer Earin were arrested together by th Police on 11-2-1981. The recovery memo. Of the articles recovered from Mst. Jumiashah, appellant also supports their arrest at the relevant time. Another circumstance which goes against Jumiashah, convict is that her own daughte Mst.
Hanifa (P. W. 7), her father Liaqat Shah (P. W. 5) her real brother Rehman Shah (P. W. 6) have deposed against her. The defence has brought nothing on the record even to suggest that these witnesses who are so closely related to her, had any animus or motive to falsely implicate her in this case.
11. We have also considered the plea taken up by Mst. Jumiashah convict in her statement under section 342, Cr. P. C. And find no substance in it. The defence has placed no material on the record to show that her plea could be possible. If she had stayed in the house of her maternal uncle in village Belanai, she could easily produce her said maternal uncle or some other member of that family to prove this fact. This shows that indirectly she admits her absence from her own house and children.
12. After bearing the counsel for the parties and going through the entire material available on the record we are convinced that the prosecution has established the guilt of Umer Farin and Mst.
Jumiashah beyond any doubt. They have been committing offence under section 10(2) of the Ordinance which also resulted in pregnancy of Mst. Jumiashah.
13. The upshot of the above discussion is that the conviztions and sentences awarded to Mst.
Jumiashah and Umer Farin, convicts under section 16 of the Ordinance are set aside and instead they are convicted under section 10(2) of the Ordinance and each is sentenced to undergo R. I. For 5 years plus whipping numbering 20 stripes and a fine of Rs 1,000 or in default of payment of fine further R. I. For 4 months. The sentence of whipping shall be executed in a public place in accordance with the provisions of the Execution of the Punishment of Whipping Ordinance, 1979.
14. These appeals stand disposed of in the above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.