' MUFTAKHIRUDDIN, J.-These two appeals arise from the judgment dated 11-6-1985 passed by Additional Sessions Judge I, Bahawalnagar whereby both the appellants have been convicted under section l0(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo R. I. For five years each with l0 stripes and a fine of Rs, 2,000 each of in de.Fault of payment of fine further to undergo R. I. For four months. Since both the appellants have challenged the same judgment, they have been heard together and shall be disposed of by this common judgment.
2. The F. I. R. Was lodged by Muhammad Sharif, the father of Mst. Zubaida on 7-2-1985 in the Police Station Fortabbas District Bahawal- . Nagar and it was stated therein that his wife had died one year prior to the lodging of the report and four sons and one daughter namely Mst. Zubaida were living with him in the Chak No, 269/H.R. One Ghulam Hussain was also living in the same Chak and used to visit his house. About three-four months ago his daughter (Mst. Zubaida) went to the house of Ghulam Hussain where none else was present in the house. Muhammad Pervez son of Ghulam Hussain caught bold of Mst. Zubaida and committed Zina with her forcibly. Mst. Zubaida did not disclose the occurrence due to shame. Now Mst. Zubaida has become preg .Ant from the Zina committed against her by Pervez she had disclosed this to him. On this disclosure Muhammad Ishaque son of Allah Din and Muhammad Yaqoob son of Gohar Ali residents of Chak No, 269/H.R.
Formed a Panchayat and Pervez accused was called there and he had confessed his guilt and begged pardon.
3. Mst. Zubaida was sent to the lady doctor (P. W. 2) on 13-2-1985 for medical examination. During the investigation it came to light that Mst. Zubaida was not having good reputation in the town and people appeared before the police and did not speak well of her. The prosecution branch also directed the investigation to be carried on that line. Accordingly Mst. Zubaida was also arrested on 15-3-1985. Thus, both the appellants were sent up for trial.
4. At the trial both the accused professed their innocence. Mst. Zubaida repeated the allegation of Zina and said that it was committed by Pervez while the accused Pervez denied the allegation and contended that he was not responsible for the pregnancy of Mst. Zubaida. The prosecution has examined 11 witnesses. The brief summary of the prosecution witnesses is given below.-
(i) P. W. 1 Dr. Sher Zaman Bhatti examined appellant Muhammad Pervez and has recorded his age as 14 years and found him a young boy having good physique and health. External geniealia were fully developed. Pubic and axillary hair were present and declared him sexually potent.
(ii) Lady Doctor Zohran Manzoor examined Mst. Zubaida daughter of Muhammad Sharif (the complainant) on 13-2-1985 at 12 mid-day and has expressed her opinion that she is about 18 years old. In cross-examination made on behalf of Mst. Zubaida the lady doctor has not ruled the possibility that the age of Mst. Zubaida may be six months more than 18 years. The opinion recorded about Mst. Zubaida is as under.- External examination.-No mark of violence seen outside the private parts.
Internal examination.-No discharge was seen outside the private parts. Hymen was found raptured. Old tags of tears were present. Cervix was soft and uterus. Size of 16 weeks of pregnancy.
' Four vaginal swa bs were taken. Two were sent for semen analysis to Multan and two for semen grouping to Lahore. She was an old and habitual case of sexual intercourse and carrying pregnancy of 16 weeks. Vaginal swa bs were taken and handed over to the police for sending the same for the examination of Chemical Examiner who made a positive report-the semen having been found.
(iii) P. W. 3 Muhammad Aslam H. C. Stated that Gbulam Rasool constable had handed over to him two sealed envelope and sealed phials containing vaginal swabs of Mst. Zubaida which were handed over to him, were forwarded to the office of the Chemical Examiner.
(iv) P. W. 4 Manzoor Ahmad was handed over sealed parcels and two phials sealed by Muhammad Aslam P. W. 3 which were delivered to the office of Chemical Examiner.
(v) P. W. 5 Noor Muhammad A. S. I. Was posted as A. S. I. At Police Station Fortabbas on 16-2-1985 when he through an application Exh. P. A./1 got Muhammad Pervez medically examined. He has also arrested Mst. Zubaida on 15-3-1985.
(vi) P. W. 6 Muhammad Ishaq son of Allah Din said in Court that he knew nothing about the occurrence and was declared hostile. According to the prosecution case he was the person before whom it was said that he was present in the Panchayat where appellant Pervez had made extra- judicial confession that he had committed Zina with Mst. Zubaida. The counsel for Mst. Zubaida did not put any question in cross-examination.
(vii) P. W. 7 Muhammad Siddique constable has stated in Court that on 20-2-1985 he was posted at Police Station Fortabbas when Muhammad Aslam H. C. P. W. 3 handed over to him two sealed phials and one sealed envelope for onward transmission to the office of Chemical Examiner, Lahore which he transmitted the next day. No question was put in cross-examination by either of the accused/ appellant.
(viii) Arshad Ali son of Abdullah (P. W. 8) has stated that he along-with other persons of the village advised Muhammad Sharif complainant to control his daughter many a time. He has also said that Mst. Mumtaz the daughter-in-law of Muhammad Sharif is a lady of bad character and from that he concluded that Mst. Zubaida accused is also of easy virtue. During the cross-examination by the counsel for the appellant Muhammad Pervez the witness said that `it is correct that Muhammad Sharif complainant had lodged the report against Muhammad Yaqoob for the offence of abduction of Mst. Mumtaz daughter-in-law of the complainant. The complainant compromised in that case after taking some money. During the investigation, it transpired that Mst. Zubaida accused had illicit relations with Israr and Iqbal. Ghulam Hussain father of Pervez accused and Muhammad Sharif complainant are not on speaking terms with each other.
(ix) P. W. 9 Muhammad Rafique Inspector, has stated that on 7-2-1985 he formulated the F. I. R. Exh.
P. C. On 15-2-1985 arrested Muhammad Pervez accused, sent Mst. Zubaida for her medical examination to T.H.Q. Hospital Fortabbas. Accused Pervez was got medically examined and Mst.
Zubaida was sent to the Hospital. During the cross-examination he admitted that "It is correct that it was made known during the local investigation that IsTar and Iqbal had illicit relations with Mst.
Zubaida. He further admitted that' it is correct that it came to his knowledge during the investigation that character of the daughter-in-law of the complainant was not good. It was also found correct that the family of Pervez accused had been living in Tehsil Chishtian in the past. It was also found correct that the family of Pervez accused came to live in the Ahata shown in the site-plan 2/3 months prior to his inspection of the spot. Father of accused Pervez purchased the Ihata shown in the site-plan from a Hajam.
(x) P. W. 10 Muhammad Yaqoob son of Gohar Ali has said that about 3/3f months back Muhammad Sharif P. W. Called him and Ishaque P. W. 6 and told them that his daughter Mst. Zubaida had been subjected to Zina-bil-Jabr by Muhammad Pervez accused one or two days back (this witness was examined in Court on 11-5-1985) the father of Mst. Zubaida hod told him that Pervez had committed Zina-bil-Jabr with Mst. Zubaida about four months back as a result of which Mst. Zubaida become pregnant. Pervez was then called by Muhammad Sharif in his house in his presence. First of all he denied having committed Zina but on the assurance of the complainant that he would do nothing against him. Pervez confessed guilty and requested to be pardoned. During the cross-examination he was confronted with the statement recorded under section 161, Cr. P. C. And it was found that he had also stated before the police that Muhammad Sharif had called him at his house. He however, has admitted that a brother of his wife is named Muhammad Iqbal but denied that the said Iqbal had illicit relations with Mst. Zubaida.
(xi) Muhammad Sharif son of Chiragh Din (P. W. 11) has reiterated her earlier statement contained in the F. I. R. In the cross-examination he said that Siddique, Munir and Jafar were also present when Pervez had confessed his guilt. The above three persons were called by him personally (three persons were not examined in Court.)
5. From the narration of facts given above it is found that the case of the prosecution rests on the statement of P. W. 1, Dr. Sher Zaman, P. W. 2, Lady Doctor Zoharan Manzoor, P. W. 8, Arshad Ali and P.
W. 10, Muhammad Yaqoob and the medical evidence. The prosecution has endeavoured to build his case against the accused Pervez on the alleged extra-judicial confession stated to have been made by him before P. W.
10. The other item of evidence relied by the prosecution is the presence of semen in the vaginal swa bs of Mst. Zubaida and all these have cumulatively found favour with the trial Court as corroborative evidence for the conviction of the appellants.
6. There is no direct evidence about the commission of Zina by Pervez except the accusation made by Mst. Zubaida and the extra-judicial confession alleged to have been made before Yaqoob (P. W.
10). It may be pointed out that. Mst. Zubaida did not appear as a witness under section 340, Cr. P. C.
And has reiterated the accusation in her examination recorded under section 342, Cr. P. C. The statement made by Mst. Zubaida is self-serving and casts a doubt on its veracity for the simple reason that she throws, the principal blame on Muhammad Pervez accused and intirely exonerate herself. The judicial history presents abundant warning against the danger of placing too much reliance on such confession/statement in case of heinous offence. The confession mug either admit in terms of the offence, or at any rate substantially all the facts which constitute the offence.
The maker of the confession must implicate him/her substantially to the same extent as it does the other accused. Statements which enculpate the maker more than or equally with others alone can afford any satis-B factory guarantee of their truth and when the maker of statement entirely exonerates himself/herself or throws the blame on other is excluded from consideration, because such self-serving statements are robbed of all evidentiary value against the other accused and casts doubt on its veracity.
7. The law on the use and evidentiary value of extra judicial confession is now well-settled. It may be stated that when it is tendered in evidence the first thing to be considered is whether it is admissible, the admissibility depending on whether or not it is hit by any of the tainting factors of inducement, threat or promise. And as a rule of caution and prudence now firmly established, Courts have refused to act upon the same and have insisted on independent support of it by corroborative evidence C on material particulars. In the absence of reliable corroborative evidence it cannot furnish a satisfactory basis for the conviction of the co-accused. It is not uncommon that extra-judicial confession are some time wrung out of villagers by persons in, authority by putting the accused person to severe examination during the investigation and sometimes by threats and inducements. It is on account of such suspicion that Courts are reluctant to act upon extra-judicial confession. It is in evidence that the accused Pervez did not confess his guilt. P. W. 10 (Muhammad Yaqoob) in his examination-in-chief has admitted that "first of all he denied having committed Zina but on the assurance of the complainant that he would do nothing against him. Muhammad Pervez accused confessed his guilt. Keeping in view the above principles we have examined the statement of Mst. Zubaida under section 342, Cr. P. C. And the statement of P. W. 10 (Muhammad Yaqoob) and are constrained to hold that they do not inspire confidence. To our minds the statement of Mst. Zubaida is a self-serving statement containing indications of an effort to throw the hatred the neck of Pervez accused under some undetectable influence. Muhammad Yaqoob is admittedly the brother-in-law of Iqbal whose name is linked with Mst. Zubaida and about whom there is an allegation of immorality by no other person than a prosecution witness namely Arshad.
Prosecution witness namely Muhammad Ishaque about whom it was said by the complainant that he was also present in the Panchayat when the accused Pervez had made the extra-judicial confession totally denied it. The other persons found present were not examined. The statement of Muhammad Yaqoob, therefore deserves to be dropped out of account. The retracted confession in Islam has never been made a basis of conviction against an accuse& person.
8. This is a case in which the prosecution itself is not sure as to who was responsible for the commission of Zina as a result of which Mst. Zubaida become pregnant. On one-hand the accused Pervez was charged but there is evidence produced by the prosecution itself which shows her a woman of bad repute and about this the learned Trial Court has observed: "According to M. L. R. (Exh. P. B.) Mst. Zubaida was found an old habitual case of sexual intercourse because she was carrying the pregnancy of 16-week size. Her age is about 18 years. According to the Chemical Examiner report Exh. P. B./3, her vaginal swabs were found to be stained with semen.
Her medical examination was conducted on 13-3-1985 and on the same day, her vaginal swabs were taken by the Woman Medical Officer. This fact proves that even a few days before her medical examination, she had been indulging in sexual intercourse which fact reflects her bad character also and her contention that she was subjected to Zina-bil-Jabr four months prior to the lodging of the F. I. R. Proves to be false.'
' From the evidence recorded in Court the learned Additional Sessions Judge has recorded his finding about Mst. Zubaida in these words :- "The medical evidence read with the other evidence on the file proves that Mst. Zubaida Begum had become pregnant as a result of Zina with her own consent and that no force was used on her as has been alleged in the F. I. R. The delay of four months in lodging the F. I. R. Is also a factor in support of the above contention and mere statement that she did not apprise her father of the occurrence out of shame is not believable."
9. The statement under section 342, Cr. P. C. Of Mst. Zubaida and the statement of P. W. 10 thus being removed, the entire superstructure of the prosecution case, shaky in itself, tumbles to the ground completely. To our minds there is no satisfactory basis whatsoever for upholding the conviction of the appellants. For the above reasons we accept both the appeals and acquit the appellants. They shall be released forthwith if not required in any other case.
' These are the reasons for our short order.