' By judgment dated 14th September, 1994, the learned Sessions Judge, Mandi Bahauddin convicted accused Atiq-ur-Rehman and Murtaza under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced both of them to 3 years' R.I., 15 stripes and a fine of Rs,1,000 and in default to suffer further R.I. For 6 months and also convicted them under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced both of them to R.I. For 7 years and 30 stripes. Being aggrieved, convict Atiq-ur-Rehman has filed Criminal Appeal No,272-L of 1994 and pauper appellant Murtaza has filed Jail Criminal Appeal No,303-I of 1994. Both the appeals arising out of the same judgment are being disposed of by this judgment.
2. I have heard Mr. Ch. Shahid Saeed, learned counsel for appellant Atiq-ur-Rehman. Mr. Malik Khuda Bakhsh Khokhar, Advocate, who had been nominated to represent the pauper appellant, was absent. These appeals had been fixed yesterday for hearing when these were adjourned for today, and today also Malik Khuda Bakhsh Khokhar, Advocate, had not appeared. Today Mr. Shuja- ud-Din Qureshi, Advocate was nominated to represent pauper appellant Murtaza in Jail Criminal Appeal No,303-I of 1994. He was also heard. Mr. Irshad Ahmad, Advocate, appeared for the State in both the appeals. He was also heard. With the assistance of the learned counsel, I have gone through the record.
3. - Complainant in this case is P.W. Muhammad Aslam, who reported at Police Station Sadar, Mandi Bahauddin on 20-4-1993 that his daughter Mst. Kaniz Bibi aged 13/14 years had been abducted by the two appellants with intent to subject her to Zina- bil-Jabr. On this a case under sections 11 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered vide F.I.R. No,117 of 1993. According to the prosecution case, abduction had taken place on 17-4-1993 from the residence of the complainant. The police conducted the investigation. According to the report under section 173, Cr.P.C., Atiq-ur-Rehman was found innocent and, therefore, he was placed in Column No,2 of the challan. Murtaza accused was challaned in Column No,3. However, during the trial Atiq-ur-Rehman was also summoned to face trial alongwith co-accused Murtaza for the abduction and commission of Zina.
4. In all 13 witnesses were examined by the prosecution. According to P.W.8 Lady Doctor Mubashra, who had examined Mst. Kaniz Bibi on 21-4-1993 i,e, after 4 days of the abduction, the girl was aged about 18 years and in the Doctor's opinion, she had been subjected to sexual intercourse many a times and was 8 to 10 weeks pregnant. No mark of violence was found on the person of the girl. No family member had been witnessed to the abduction and the case depended on the evidence of Mst. Kaniz Bibi, who was not examined as witness, as according to P.W.11 Muhammad Akhtar, Mst.
Kaniz Bibi had again been abducted according to a subsequent F.I.R. The trial Court relied upon the statement of Mst. Kaniz Bibi recorded under section 164, Cr.P.C. On 8-5-1993 and other evidence on record. On the day when the victim was alleged to have been abducted, P.W.6 Muhammad Yar had seen Mst. Kaniz Bibi near the house of complainant walking towards Mandl. Bahauddin and both the accused were following her. According to the statement under section 164, Cr.P.C. The two accused had come to the house of the complainant and informed Mst. Kaniz Bibi that the condition of her mother, who was admitted in hospital, was serious and, therefore, she accompanied them and, while leaving, she took Rs,15,000 from her house. The two appellants in their statement under section 342, Cr.P.C. Totally denied the prosecution case stating that they had been falsely involved on account of personal enmity. Atiq-urRehman also examined D.S.P. Ch. Nawaz as a defence witness for the purpose of establishing that he had been found innocent during the investigation.
5. Learned counsel appearing for the appellants are correct in their submissions that the conviction in this case depended on the evidence of victim, Mst. Kaniz Bibi, but she was not examined as a witness. In this case, the trial Court erred in law in relying upon the statement of Mst. Kaniz Bibi recorded on 8-5-1993 under section 164, Cr.P.C. Admittedly the statement of Mst. Kaniz Bibi was recorded in the absence of the two accused. By the Law Reforms Ordinance, XII of 1972, subsection (1-A) was added to section 164, Cr.P.C. Which read as follows:--- "Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement."
6. The statement under section 164, Cr.P.C. Of Mst. Kaniz Bibi had not been recorded in the presence of the two appellants. In view of the aforesaid provision regarding the opportunity being given to the accused to cross-examine the witness making the statement which requirement is mandatory, the said statement of Mst. Kaniz Bibi could not be considered as legal evidence against the accused.
7. Reference may also be made to a decision of the Federal Shariat Court cited by the learned counsel for the appellants in the case of Ghulam Muhammad v. The State reported in 1992 PCr.LJ 2394. Para. 7 of the saidjudgment is reproduced here:--- "It appears that the learned trial Judge has mainly relied upon 164 statement of Mst. Haleema, the alleged victim but her statement under section 164, Cr.P.C. Cannot be read as evidence in the case as she has not been examined as a witness in the Court. The requirements for admitting such statement as laid down in Article 47 of the Qanun-e-Shahadat, 1984 are also missing in the case.
The learned Advocate-General concedes that the non-examination of Mst. Haleema in Court as witness has proved fatal to the prosecution case."
6. In the absence of the evidence of Mst. Kaniz Bibi, it was unsafe to base the conviction of the two appellants as other evidence did not establish the case against the appellants beyond reasonable doubt.
7. Even otherwise the medical evidence did not support the prosecution case. As observed, according to the Lady Medical Officer, the victim was 8 to 10 weeks pregnant when she was examined on 21-4-1993, whereas, according to the complaint, she had been abducted on 17-4- 1993 and there was no complaint against the appellants that she had been subjected to Zina by the accused prior to 17-4-1993. Medical evidence had also shown that she was used to sexual intercourse for a considerable time. Evidence of P.W.6 Muhammad Yar does not establish that Mst.
Kaniz Bibi had been abducted or lured away by the appellant. According to his testimony, he only saw Mst. Kaniz Bibi walking in front and the two accused following her.
8. As a result, these two appeals (Criminal Appeal No,272/L of 1994, filed by Atiq-ur-Rehman and Jail Criminal Appeal No,303-I of 1994, filed by Murtaza) are allowed, the judgment dated 14-9-1994 passed in Hudood Case No,172 of 1994 by the learned Sessions Judge, Mandi Bahauddin, is set aside and it is directed that both the appellants, namely, Atiq-ur-Rehman son of Khalil-ur-Rehman Kamboh and Murtaza son of Haji Muhammad Rafique Mughal be released forthwith if not required in any other case.