The petitioners were tried by Judicial Magistrate Section 30, Chiniot under section 363/376, P.P.C.
And were awarded sentence of four years' R.I. Each and a fine of Rs.5,000 each, in default of payment of fine to further R.I. Six months under section 363, P.P.C. Nazir was further convicted under section 376, P.P.C. And was sentenced to four years' R.I. Plus fine of Rs.5,000 or in default six months'
R.I. Vide judgment, dated 19-3-1985. Additionally he was awarded sentence of 30 stripes under section 376, P.P.C. Read with section 4-D of Whipping Act. The petitioners filed appeal against the aforesaid judgment in the Sessions Court which was dismissed by the learned Additional Sessions Judge, Jhang vide his judgment dated 19-3-1985, hence the present revision petition.
2. There is no need to discuss the evidence in detail as this revision petition can be decided solely on the legal objection which is of fundamental character and goes to the root of the case.
3. The learned counsel appearing on behalf of the petitioners has urged that the petitioners were not given any reasonable opportunity to cross-examine the star prosecution witness i.e. Mst.
Sakina Bibi P.W.2 abductee/prosecutrix in this case, and as such, the trial stood vitiated on account of this lacuna in the prosecution case. Placed reliance on Ranjah v. The State PLD 1962 B.J. 12, Hakeem v. The State PLD 1963 (W.P.) Kar. 63 and Muhammad Abbas v. The State PLD 1972 P Cr. L J 649.
4. The learned counsel appearing for the State has candidly conceded that Mst. Sakina Bibi was examined by the trial Court on 5-4-1985 and her cross---examination was reserved, as the learned defence counsel was not available at that time. Thereafter she was never produced for cross- examination and placing reliance on her evidence, the petitioners were sentenced to the various terms of imprisonment mentioned above. He any how half-heartedly argued that in the present case no prejudice has been caused to the petitioners as the case is otherwise proved by the other evidence. Hence the aforesaid cases are not applicable to the facts of the present case.
5. After hearing the learned counsel for the parties and perusing the record, I find there is sufficient force in the submission of the learned counsel for the petitioners that in view of the legal defect mentioned above, the statement of Mst. Sakina P.W.2 cannot be read as evidence as is apparent from the following observations of his Lordship Sajjad Ahmad, J. In Hakeem's case.
"A statement of a witness under the Evidence Act is not effective and complete unless it is subjected to cross-examination by the opposite --party or unless the opposite party had an opportunity to do so and which it has declined or not availed of. The right of cross-examination is of particular importance for accused persons in criminal trials involving their life and liberty depending on the verbal statements of the witnesses deposing against them."
6. In view of the above legal position, I accept the revision petition, set aside the conviction and sentence of the petitioners.
7. As the occurrence took place in the year 1974, `therefore, after the lapse of 16 years, I do not think it expedient to order retrial of the case, and therefore, acquit the petitioners. They are on bail and they are discharged from the bail bonds.