' This appeal is directed against the judgment, dated 21-1-1993 passed by the learned VIth Additional Sessions Judge, Karachi East, whereby the appellant was convicted for offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), sections 314 and 315, P.P.C. And sentenced for various terms.
2. It is case of the prosecution, as narrated by P.W.4 Muhammad Khan, that his daughter Mst.
Sakina Bano went out of his house for meeting her friend, wife of the appellant. According to him the girl did not return, hence he went for her search to the house of the appellant, who had gone to his village in Haripur Hazara. It is further case of the prosecution that on 10-7-1990 the appellant contacted P.W.1 Mst. Nargis for treatment of Mst. Sakina Bano, who died before getting any aid.
However, a case was registered at Police Station Shahrah Faisal Colony, Karachi East on 1-9-1990 at the complaint of Muhammad Khan. The police arrested appellant Gulzar Ahmad on 3-9-1990 and after usual investigation challaned him before the Court. The case came up for trial before the Court of the learned VIth Additional Sessions Judge, Karachi East, where the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined P.W.1 Mst. Nargis, midwife, P.W.2 Abdur Rashid, P.W.3 Sher Muhammad, S.I., P.W.4 Muhammad Khan, complainant, P.W.5 Dr. Shamsuddin, P.W.6 Yaqoob, S.I. Investigating Officer, P.W.7 Dr. Amanullah and P.W.8 Muhammad Bash S.I.
3. In his statement recorded under section 342, Cr.P.C. The appellant denied the allegation and claimed innocence. However, he neither examined himself on oath under section 340(2), Cr.P.C. Nor produced any witness in defence. The learned trial Judge found the appellant guilty for the offence and convicted him for the same as mentioned hereinabove. Hence this appeal.
4. Sardar Muhammad Ishaque, Advocate, appeared for the appellant and Mr. A.H. Masood, Advocate, appeared for the State.
5. The learned counsel for the appellant at the very outset took me through the judgment of the learned trial Judge. The best evidence which convinced the learned trial Judge for awarding conviction to the appellant is that of the admission of the appellant before Investigating Officer P.W.6 Yaqoob, S.I. The learned trial Judge has dealt with his evidence in the words as under:-- "Similarly P.W. Yaqoob the I.O. Whose evidence in detail has been brought on record earlier has stated to the fact that on 3-9-1990 when the accused was arrested he disclosed that on the day of incident Mst. Sakina came to him and told about her pregnancy and he gave some medicine to the deceased for abortion but when nothing happened he brought the mid-wife Nargis and on her advice deceased was removed to the hospital and at that time Mst. Nargis was also with him'and the deceased."
6. Admittedly statement of accused person recorded under section 161, Cr.P.C. Before police is inadmissible in evidence. It cannot be taken as substantive piece of evidence. The trial Court has erred by relying on such evidence.
7. The second material point is regarding non-examination of the appellant himself on oath or non-producing of witnesses in defence. The learned trial Judge's observations in that respect are as under:-- "The accused in his statement under section 342, Cr.P.C. Has denied the prosecution evidence but he has not examined himself on oath nor has produced any witness in defence."
8. It may be observed that at the trial the accused person is given only a chance to examine himself on oath in disproof of the charges and allegations levelled against him or examine any witness in his defence. It is not obligatory for him to do so. The prosecution has to prove its case by its own evidence. It cannot borrow legs from the defence for proving its case. Besides, there is also contradiction regarding getting a car on rent from P.W.2 Abdul Rashid. Abdul Rashid has made two versions --- one he has said that he rented out the car to the appellant and the other is that he said that he rented the car to one Ibrahim. Evidence of this witness as such has no evidentiary value. It has been wrongly relied upon by the learned trial Judge. In such view of the fact the learned counsel for the State candidly conceded that charge under section 10(2) of the Ordinance and sections 314 and 315, P.P.C. Has not been proved against the appellant beyond reasonable doubt. In such view of the fact, the appeal is accepted, the conviction and sentences awarded to the appellant by the learned trial Court on 24-1-1993 are set aside and he is acquitted of the I charge. He be set at liberty forthwith if not required in any other case. As a consequence of acceptance of the appeal the suo motu notice for enhancement of the sentence has become infructuous which is discharged accordingly.