' Afzal Khan and four other appellants stand convicted under section 457/34, P.P.C. And sentenced to three years' rigorous imprisonment with a fine of Rs,2,000 each by the learned Sessions Judge, Ghizar, vide his order, dated 21-11-1996. It is further ordered in the impugned judgment that out of the fine realised, Rs,5,000 should be paid to the complainant.
2. Not content with the impugned order, dated 21-11-1996, passed by the Sessions Judge, Ghizar the convicts/appellants have come by way of appeal to this Court.
3. The prosecution story briefly stated may be put up thus:- "That on the night intervening 8-4-1995 and 9-4-1995 Mst. Malika wife of Saat Ali of Village Thaus Yasin was lying asleep along with her children in her house and her husband Saat Ali had gone to Gilgit in search of livelihood, when at about 1 a.m. Few persons attacked her house and out of them, she could only identify Afzal Khan and Muhammad Wali, but she could not recognize their co- accused probably four in number; that the accused party wanted to out rage her modesty and chastity and she was threatened at pistol's point and was put in great mental torture."
4. After registration of the case, A.S.-1. Muhammad Niaz (P.W.4) went to the scene of occurrence, inspected the venue of occurrence and prepared the site plan (Exh.P.W.4/A) at the instance and pointation of Mst. Malika, lodger of the report. According to the Investigating Officer, all the notes given in the site plan are correct and bear his signature. Thereafter, the Investigating Officer (P.W.4) examined three witnesses under section 161, Cr.P.C. The Investigating Officer then summoned Afzal Khan and Muhammad Wali to the Police Station where they were arrested on 9-4-1995. They disclosed the names of their co-confederates, who were with them at the relevant time. The rest of the accused named by Afzal Khan and Muhammad Wali were called to the police station and they were also arrested. The Investigating Officer thereafter, took all the accused to the Court of Magistrate, where their statements under section 164, Cr.P.C. Were recorded by a Magistrate.
Thereafter, the accused were sent to the judicial lock-up.
5. After the completion of investigation, described in the manner above, the local police submitted a charge-sheet under section 457/34, P.P.C. And under section 18, Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 to the Court of Mr. Sher Afzal Khan, Sessions Judge, Ghizar.
6. Who in his turn, charge-sheeted all the five accused jointly under section 457/34, P.P.C. And section 18, Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979, to which they pleaded not guilty and claimed trial.
7. The prosecution in order to establish its case, against the five accused, examined as many as five witnesses. However, none of the accused produced any witness in defence. One Nusrat Ali son of Shahbaz was also examined by the police under section 161, Cr.P.C. And his statement under section 164, Cr.P.C. Was also recorded by Muhammad Issa Magistrate (P.W.5), but he was abandoned at the trial for the reasons best known to the prosecution.
8. Mst. Malika (P.W.1) is the mother of Afsar Ali (P.W.2) and Mst. Bibi (P.W.3). All the three witnesses are inmates of the house and they are closely related inter se. It is to be seen whether the P.Ws.
Have witnessed the occurrence and could identify the culprits at the dead of night without any light in the house. So far their presence in their house is concerned, it is natural because they Were lying asleep in their house, when their house was allegedly attacked by the culprits at 1 a.m.
9. Al the trial, Mst. Malika maker of the F.I.R. (P.W.1) deposed that the accused had ascended the roof of the house situate at Thaus Yasin at 3 a.m. On the eventful night, when she was sleeping inside her house with her children. She has given the number of accused as five and except Afzal Khan and Muhammad Wali, she could not recognize the rest of the co-confederates; that she was holding a lantern while the accused Afzal was carrying a torch in his hand and thus she succeeded in recognizing accused Afzal and Muhammad Wali. It is further deposed by her in examination-in- chief that she had patched up the matter with the accused party and has pardoned the accused party in the name of Allah, according to the custom and tradition of the area. In the cross- examination she stated that she did not see any pistol in the hands of accused.
10. Afsar Ali (P.W.2) and Mst. Bibi (P.W.3) deposed before the trial Court that on the day of occurrence at about 3 a.m. They were sleeping in their house; their father was at Gilgit at that time; that some persons entered into the lawn of their house; they were three or four in number.
According to their statements before the trial Court, the accused party had also taken away a sum of Rs,3,000 from the adjacent room of their house, lying in a box; that both Afsar Ali and Mst. Bibi went to the road side and raised hue and cry for the help; that one Nusrat Ali, their neighbourer was the first person to reach the house on the alarm raised by Afsar Ali and Mst. Bibi. On the arrival of Nusrat Ali (P.W.) (not produced before the trial Court) the accused decamped from the scene of occurrence. So far the amount of Rs,3,000 is concerned, Mst. Malika (P.W.1) is totally silent about the same, nor she had mentioned in her statement the arrival of Nusrat Ali on alarm of her children. In the cross-examination, Afsar Ali (P.W.2) and Mst. Bibi (P.W.3) have admitted that a dispute over a path was existing between them and accused Afzal Khan.
11. Mst. Bibi (P.W.3) also stated in her statement before the trial Court that the accused had stolen a sum of Rs,3,000 from the adjoining room of her house, while the police recovered Rs,5,000 from the accused and paid the same to the complainant party.
12. To a Court question, Afsar Ali (P.W.2) has deposed that accused Afzal was having a torch in his hand, Hamidullah accused was carrying a knife and accused Rehmat Ali was armed with a rifle.
Afsar Ali (P.W.2) has also stated in answer to the Court question, that his mother Mst. Malika had also come to the road side with them, but in examination-in-chief, the P.W.2 stated that his mother was inside the room throughout and she never came out of the room.
13. Mst. Malika (P.W.1), Afsar Ali (P.W.2) and Mst. Bibi (P.W.3) have made major departures from their statements recorded under section 161; Cr.P.C. As well as under section 164, Cr.P.C. They contradict each other in respect of time of occurrence, which is given as 1 a.m. In the written report and 3 a.m.
In their statements at the trial. Mst. Malika (P.W.1) has not mentioned in her written report, statement under section 161 as well as under section 164, Cr.P.C. Before the Magistrate, that any amount was stolen by the accused from their house. She also did not mention in her written report that she was having a lantern in her hand at the relevant time and accused Afzal Khan was carrying a torch in his hand. In the written report, Mst. Malika has stated that a few persons had attacked her house and out of them, she could only identify Afzal Khan and Muhammad Wali and the rest, she could not recognize. Except Afzal and Muhammad Wali, none of the remaining accused are mentioned by Mst. Malika (P.W.1), Afsar Ali (P.W.2) and Mst. Bibi (P.W.3) in their statements.
14. Afsar Ali (P.W.2) and Mst. Bibi (P.W.3) are of tender age. At the trial, the trial Judge was bound to put certain questions to them in order to hold them as competent witnesses. The trial Judge has not put any question to these two witnesses, who are of tender age to satisfy himself, as to whether these two witnesses were able to give rational answers to the questions put to them by the Court and there is no certificate issued to this effect by the trial Judge that they were put certain questions to which, they gave rational answers.
15. (P.W.4) Muhammad Niaz, A.S.-I./S.11.0., is the Investigating Officer, while (P.W.5) Muhammad Issa, Tehsildar/M.I.C., who recorded the statements of the P.Ws. And accused under section 164, Cr.P.C.
16. After recording the evidence of five prosecution witnesses, the trial Judge examined the accused five in numbers under section 342, Cr.P.C. Jointly.
17. Section 342 of the Criminal Procedure Code contemplates individual examination of the accused. Recording of joint statement of several accused under section 342, Cr.P.C. Is illegal and vitiates the whole trial. The object of section 342 of the Criminal Procedure Code is that the Court should draw the attention of the accused to the specific points in evidence upon which the prosecution relies to prove its case against the accused, so that he may have the opportunity to give any explanation, if he so desires. All the incriminating evidence should have been put separately to each accused, while being examined under section 342, Cr.P.C. But in the case in hand, all the five accused were examined jointly under section 342 of the said Code, and no incriminating evidence has been put to any of the accused during their examination under section 342, Cr.P.C. Even the confessional statements of the accused recorded by the Magistrate under section 164, Cr.P.C. Though retracted at the trial, have not been put to the accused, while being examined under section 342 of Criminal Procedure Code. Any incriminating evidence which is not put to the accused during the examination under section 342, Cr.P.C. Cannot be made a base for conviction and such conviction would be wholly illegal. Reference can conveniently be made to Abdullah and others - Petitioners v. The State Respondent PLD 1967 Pesh. 62 and Muhammad Chuttal - Appellant v. The State - Respondent 1991 M LD 392.
18. As stated above, in a Court question, Afsar Ali (P.W.2) has stated at the trial that accused Afzal Khan was having a torch in his hand, Hamidullah accused was carrying a knife and accused Rehmat Ali was duly armed with a rifle at the relevant time, but no incriminating weapons of offence have been recovered from either of the accused.
19. Mst. Malika (P.W.1) maker of the report has given the time of occurrence in the written report as 1 a.m., but at the trial, she alongwith her son and daughter (P.W.2) and (P.W.3) have stated the time of incident as 3 a.m. Further the stolen amount of Rs,3,000 has not been mentioned in the written report, nor in the statements under section 161 as well as in the statements under section 164, Cr.P.C. Before the Magistrate.
20. In this case, Nusrat Ali son of Shahbaz of Village Thaus Yasin, a neighbour of complainant party, according to Afsar Ali (P.W.2) and his sister Mst. Bibi (P.W.3) was the first person, attracted to their house on the alarm raised by them and on the arrival of Nusrat Ali, the accused party fled away.
Nusrat Ali was duly examined by the police under section 161, Cr.P.C. On 9-4-1995 and his statement under section 164, Cr.P.C. Was also recorded by Muhammad Issa Magistrate (P.W.5) on 17-4-1995.
But strangely enough the name of Nusrat Ali (P.W.) does not figure in the list of witnesses in column No,6 of the Challan. Nor Nusrat Ali, the material witness was called by the trial Court under section 540 of the Criminal Procedure Code. Rather he was abandoned by the Prosecution, as is clear from the statement of the District Attorney at the trial. Nusrat Ali was the only independent witness in the present case.
21. In the light of the above discussions, the prosecution has miserably failed to bring home the guilt to the appellants. The result is that the appeal is accepted, the impugned conviction and sentences are set aside and the appellants are hereby acquitted from the charge, levelled against them. The bail bonds furnished by the appellants stand discharged.