' ABDUL KARIM KHAN KUNDI, J.--Appellants Spin Bacha son of Said Amin of village Kahi and Said Rehman and Abdul Ghaffar sons of Abdul Khaliq of village Sawar Khel were charged along Jafar Khan, co-accused (later on killed) and Akhtar Gul son of Muhammad of village Misiri Banda (acquitted) for formation of unlawful Assembly, armed with deadly weapons, committing rioting, criminally intimidating Mst. Dilarma and her brother Liaqat Hayat, P.Ws. And abducting Mst. Dilarma with intent to force her to illicit intercourse and afterwards co-accused Jafar Khan (killed) committing Zina-bil-Jabr with Mst. Dilarma P.W. In prosecution of common object under section 148/506/149, P.P.C. Read with section 10(3) and 11 of Offence of Zina (Enforcement of I Iudood)
Ordinance, 1979, hereinafter referred to as Ordinance. On the strength of the ocular evidence mainly furnished by Khial Mat Shah (P.W.2), Mst. Dilarma (P.W.4) and Liaqat Hayat (P.W.5) the learned trial Court recorded the conviction of the appellants for the offence under section 16 of the Ordinance under observations that Spin Bacha, appellant, was co-villager of the abductee and she knew him, therefore, she was to face no difficulty in his identification. As far Abdul Ghaffar and Said Rehman appellants were concerned it was observed that they hailed from village Sawar Khel and were not supposed to be personally known to the abductee but that in reply to a question in cross- examination she had stated that the accused talked to each other in her presence and she accordingly learnt their names and inhabitation. It was remarked that Abdul (Mafia and Said Rehman, appellants, were previously known to Akhtar Gul co-accused (acquitted) who in his confessional statement as well in his statement under section 340(2), Cr.P.C., categorically charged them, hence there was no necessity for holding their identification parade. The Court also observed that the appellants remained in abscondenee and in the absence of any motive for false implication by the abductee, charge should stand proved beyond all reasonable doubt. The Court accordingly sentenced the appellants to five years imprisonment, twenty stripes and fine of Rs,4,000 each or in default one year' R.I. Further each. The fine on recovery was ordered to be paid to the abductee as compensation.
2. After hearing the learned counsel for the appellants and the learned Law Officer representing the State we have found that the evidence of Liaqat Hayat (P.W. 5) was confined only to the act of abduction solely and independently committed by Jafar Khan, co-accused (killed). Subsequently the abductee was first met by one Khial Mat Shah (P.W. 2) on way at whom she cried for help but he could not rescue her due to the threatening of Jafar Khan co-accused (killed). The appellants had not joined the principal accused in the commission of the offence of abduction at then. His evidence is thus not relevant qua the appellants on the charge of abduction. The appellants are said to have joined their co-accused Jafar Khan (killed) subsequently in the perpetration of the crime of abduction and for their said participation and role played we have the only evidence of Mst. Dilarama PW. She has stated that when some further distance was covered then the three appellants and one Khan Said (dead) joined their co-accused Jafar Khan who dragged her throughout and they also fully co-operated with him. She, however, did not charge them for any overt act in the abduction throughout. She stated that after late Khuftan time they reached village Khawari where they spent a night, however, no evidence from village Khawari has come forth on record. At morning Azan time she was taken to village Paito where she spent the whole day, again no evidence was produced about her stay at the place. She was afterwards taken to village Sahib Khel where she spent two nights in a house but again no evidence has come forth in this regard.
On the next morning she was taken to a jungle where Jafar Khan, co-accused (killed) committed zinabil-jabr with her at night. She stated that Ghaffar appellant had gone to village Misiri Banda to search for a house and Spin Bacha and Khan Badshah had gone away while Said Rehman and Jafar (killed) stayed back with her. Ghaffar appellant had returned along Akhtari, co-accused (acquitted) to the jungle. Ghaffar and Said Rehman, appellants, were said to have stayed back while Jafar and Akhtari, co-accused (acquitted) took her in a boat across the river to village Misiri Banda where she spent two nights in the house of Akhtari, accused (acquitted) and was subjected to sexual intercourse by Jafar accused (killed). No evidence was led about the boat's people having carried the abductee along Jafar and Akhtari accused (acquitted) across the river. She was afterwards taken by Ghaffar, appellant, and Jafar, co-accused (killed) from place to place and lastly she was taken by Ghaffar, appellant, and two other persons to Police Station. One of the said two persons was said to be Dilwar Khan who was, however, not produced at the trial. The Investigating Officer also did not make a statement that Ghaffar, appellant, had brought the abductee to Police Station for registration of case. He had stated that Abdul Ghaffar, appellant, had produced abductee to Dilwar Khan who had later on produced the abductee in the police station before him. Dilwar Khan's evidence was very relevant to connect Abdul Ghaffar, appellant, with the abduction of Mst. Dilarama as having taken her from place to place and lastly having taken her to police station for registration of case. Abdul Ghaffar, appellant, was also not put the circumstance of having taken the abductee to police station for his explanation during his examination under section 342 Cr.P.C. The evidence as narrated above in the statement of the abductee cannot bring home the charge of abduction as against Abdul Ghaffar and Said Rehman appellants, who hailed from a different village and were strangers to her and without their having been held identification parade. Her evidence shall not be sufficient to record their conviction unless corroborated in material particulars by other evidence. Her evidence against Spin Bacha, appellant, may not necessitate corroboration on the point of identification, nonetheless, to bring home the charge of abduction to him there shall be called for further evidence in corroboration of her ocular testimony ascribing no active role to him at all.
3. Akhtari, co-accused (acquitted) made a judicial confession which, on reading, was found exculpatory in nature and character and also inconsistent with the abductee's statement. She was to implicate Akhtari, co-accused (acquitted) equally for the offence, stating that he was brought by Ghaffar appellant, along and that Abdul Ghaffar and Said Rehman appellants stayed back while he and Jafar accused (killed) took her in a boat across the river to his house in Misiri Banda where she spent two nights and was subjected to zina-bil-jabr by Jafar Khan, accused, in his house His judicial confession was, however, to state that Abdul Ghaffar and Said Rehinan appellants, had brought a girl and a boy along to his house, requesting him to allow them to stay in his house for two days and that he made the girl to stay inside his house and the boy outside in the hujra and that on the second night there was conducted a police raid on his father's house, at which he requested Abdul Ghaffar, appellant to take along the girl and boy. Here a very pertinent question shall arise if exculpatory judicial confession of an accused can be used as against his co- accused. Reference is made to Article 43 of the Qanun-e-Shahadat Order, 1984 which reports that a confession as such shall be on one hand used as a proof against a person making it and on the other hand it can be taken into consideration as circumstantial evidence as against his co- accused. This section of law explicitly excludes from consideration an exculpatory judicial confession of an accused as against his co-accused. In the context we A would also refer to section 342 Cr.P.C. Which orLains a cardinal principle of criminal trial that for the purpose of enabling the accused every circumstance appearing in evidence against him shall be put to him for his explanation and if and when any incriminating circumstance has not been put to the accused for his explanation during his examination under section 342 Cr.P.C., the same shall not be used against him to record his conviction on its strength. In the case Abdul Ghaffar and Said Rehman, appellants have not been put the incriminating evidence contained in the judicial confession of Akhtar Gul, co-accused (acquitted) for their explanation and for this reason alone the said incriminating evidence cannot be used against them.
4. Next we refer to the statement of Akhtar Gul, co-accused (acquitted) recorded on Oath under section 340(2), Cr.P.C., in which once again he has absolved himself of the charge but tried to implicate Abdul Ghaffar and Said Rehman, appellants. Again very wording of the provision of law states that an accused shall give evidence on Oath in disproof of the charge or allegations made against him or any person charged or tried together with him at the same trial. As such an accused is supposed to give evidence on Oath in disproof of the charges or allegations made against him as well the charges or allegations made against his co-accused. Herein the acquitted co-accused during his evidence on Oath has demonstrated his bona fides by ignorance and tried to shift the criminal liability to the appellants in the perpetration of crime. Once again a very pertinent question shall arise if the incriminating evidence as deposed by him can be used as against his co-accused without having been put to his co-accused for explanation during their examination under section 342 Cr.P.C., and whether an accused having given an incriminating evidence as against his co-accused will be subjected to cross-examination by his co-accused or not. As far as examination of the accused under section 342 Cr.P.C., is concerned, he may be examined more than once at any stage of the proceedings, if need be. Article 44 of the Qanun- eShahadat Order, 1984 renders all accused persons including accomplice liable to cross- examination. Cross-examination is the examination of a witness by the adverse party and adverse party is one against whom the witness has given evidence at the trial. Necessarily if an accused as a witness gives evidence against his co-accused the latter will be assumed to be an adverse party, entitled to cross-examine the witness. It thus comes to that an accused giving evidence against his co-accused shall be liable to cross-examination by his co-accused and the incriminating evidence given by him against his co-accused shall also be put to his co-accused for his explanation and if he has neither been cross-examined by his co-accused nor his incriminating evidence has been put to his co-accused for his explanation, then such incriminating evidence given by him cannot be used as against his co-accused to be made the basis of his conviction on the charge.
5. The learned trial Court further observed that the appellants remained in abscondence and the circumstance as such was used in corroboration of the ocular evidence of the abductee. It was, however, found that there was not led evidence by the prosecution to prove the abscondence of the appellants nor the factum of abscondence was put to the appellants for their explanation during their examination under section 342 Cr.P.C. Consequently the factum of alleged abscondence cannot be used as an incriminating evidence against the appellants in corroboration of the ocular evidence.
6. In short, we have found it a case that the appellants were not charged in the F.I.R., registered with considerable delay. The appellants were only charged by the abductee in her statement which was not substantiated and corroborated by other evidence in material particulars. The abductee's statement was not found confidence inspiring. The exculpatory judicial confessions of acquitted co-accused and the factum of alleged abscondence could not be used as incriminating evidence against the appellants for reasons ibid. Jaffar, the real culprit, has since been done to death. The appellants have not been attributed an overt act and active role in the perpetration of the crime of abduction. There cannot, therefore, be withheld the extension of benefit of doubt to the appellants in the peculiar circumstances of the case. We would consequently accept the appeals, set aside the conviction and sentences and order the discharge of the appellants' bonds.