Appellant Mst. Tasleema has been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by Additional Sessions Judge, Peshawar by judgment dated 22-5-1995 and has been sentenced to undergo rigorous imprisonment for 7 years and to suffer 10 stripes. She has challenged her conviction and sentence by the appeal in hand.
2. Complainant Ali Akbar elder brother of the appellant made a complaint to A.S.I. Ikhtian Gul on i1- 6-1991 at 21-00 hours wherein he disclosed that his sister Mst. Tasleema, whose engagement had taken place with one Anwar Khan but Nikah had not been performed, had been enticed away by accused Mst. Shah Khoobana, who was her neighbour, on 8-6-1991 at about 10-00 hours on the pretext of taking her to the Ziarat of Shahbaz Baba. He also disclosed in the complaint that when his sister went out, accused Zaman and Muhammad Ali also joined them and they forcibly took his sister away. He was searching for her but failing in that he made the report on 11-6-1991. F.I.R. No.240 was recorded on the basis of that complaint in Police Station Badaber.
3. Accused Mst. Shah Khoobana and Zaman were arrested on 13-6-1991. The appellant and accused Muhammad Ali were produced in Police Station Badaber by Councillor Muhammad Rafiq on 16-7-1991 but accused Muhammad Ali subsequently absconded
4. After investigation all the three accused were sent up for trial before Additional Sessions Judge Peshawar. Accused Mst. Shah Khoobana and Zaman were charged under section 11/16 of the Hudood Ordinance read with section 109, P.P.C., while the appellant was charged under section 10(2) of the Hudood Ordinance. All the three accused pleaded not guilty to the charges and claimed trial.
5. Five witnesses were produced by the State in proof of the prosecution case while all the three accused made deposition under section 342, Cr.P.C. But none of them made any deposition on oath nor produced any defence.
6. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant as aforesaid and acquitted accused Zaman whereas Mst. Shah Khoobana was also convicted and sentenced under sections 11/16 of the Hudood Ordinance.
7. The very FI.R. Discloses that one she was taken out of her house by accused Mst. Shah Khoobana, the appellant was confronted by acquitted accused Zamen and absconding accused Muhammad Ali who allegedly made her accompany them by force. Mst. Sakina mother of appellant Mst.
Tasleema also made statement to the same effect that her daughter had been abducted by the accused facing trial. Mst. Tasleema was not medically examined after her recovery and so there is no oral or documentary evidence from the prosecution side to show that the appellant had been subjected to sexual intercourse by any person. However, the appellant made the following deposition under section 342, Cr.P.C. To a question that she had eloped with co-accused Muhammad Ali on 8-6-1991: --- "It is totally incorrect. The co-accused were living in our neighbourhood and were on good visiting terms with us, therefore, on the day of occurrence, co-accused Mst. Shah Khubana came to our house and asked me to accompany her to the Shrine of Shahbaz Baba. With the permission of my mother and elder Bahbi Mst. Bast Bibi, who were present at home at that time, I left with her, In the meanwhile, the other co-accused Muhammad Ali alias Maddali, absconding and Zaman accused facing trial also joined us. At that moment I came to know about their evil intention. I tried my best to escape from their clutches, but the accused Muhammad Ali and Zaman threatened to kill me.
They have taken me to an area which I did not, where, they kept me in a house. The accused Muhammad Ali committed illicit intercourse with me forcibly till our arrest by the Illaqa Police. I am totally innocent."
8. It transpires that on the basis of the aforesaid reply the learned Judge convicted the appellant under section 10(2) of the Hudood Ordinance. I have very anxiously considered the above said deposition of the appellant and I have come to the conclusion that the appellant nowhere stated that she had been a consenting party to the sexual intercourse being committed with her. Actually she charged her co-accused for subjecting her to rape and committing sexual intercourse with her forcibly and without her consent. Her deposition nowhere suggested that she was a willing party to the sexual intercourse being committed with her. In such view of the matter she could not be held guilty of the offence of committing Zina. Actually it appeared that she was a victim of rape and she was not to be blamed for that. The purpose of examination of an accused under section 342, Cr.P.C is to afford an opportunity to him to explain the circumstances which come to light against him in the prosecution evidence and the overall effect of that statement has to be taken into consideration. The E trial Court cannot make any pick and choose from that statement or to hold him guilty of an offence which is not intended to be disclosed there from. Primarily it is the duty of the. State or the prosecution to prove the guilt of an accused and in the absence of that he cannot be convicted for an offence which is not disclosed in the statement made under section 342, Cr.P.C.
9. There was brought no prosecution evidence on the record to show that appellant Mst. Tasleema had committed any offence under section 10(2) of the Hudood Ordinance. She had been convicted without any evidence having been brought to prove the said guilt and in her statement under section 342, Cr.P.C she had not deposed about any offence under section 10(2) of the Hudood Ordinance.
10. Consequently the appeal is accepted. The conviction and sentence of the appellant recorded on 22-5-1995 by the Additional Sessions Judge Peshawar are set aside and she is acquitted of the