This appeal has been directed against the judgment dated 20-10-1996 passed by the Additional Sessions Judge, Multan, whereby the appellants were convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to eight years' R.I. With whipping numbering thirty stripes and also to fine of Rs.10,000 each and in default thereof to further undergo R.I. For six months each. Ashiq Hussain accused was also convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to six year's R.I. With whipping numbering thirty stripes and fine of Rs.10,000 and in default thereof to further undergo R.I. For six months.
2. The facts of the case in brief are that on 12-8-1993 one Khan Muhammad son of Muhammad Sharif instituted a complaint against ten persons including the present accused/appellants for the offence under sections 16 and 10(2) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 419/420/467/468 and 471, P.P.C. It was alleged therein that Mst. Nusrat Mai accused was married to him vide Nikahnama, dated 1-7-1973. She after living for some time with him instituted a suit for dissolution of marriage due to strained relations. It was also disclosed therein that a compromise was however subsequently affected on 6-2-1980 and Mst. Nusrat Mai again started living with the complainant. It was further stated in the complaint that Mst. Nusrat Mai accused thereafter, developed illicit relations with co-accused Ashiq Hussain who later, enticed her away on 1-7-1982 for which a case F.I.R. No. 176 of 1982 was registered. It was also case of the complainant that in order to save her skin accused Mst. Nusrat Mai thereafter, started posing herself to be Tahira Sultana daughter of Allah Ditta instead of Mst. Nusrat Mai and fraudulently got prepared Nikahnama with -the active connivance of the remaining two persons. It was also case of the complainant that accused by changing her name also instituted suit for jactitation of marriage in the Court of Judge Family Court, Multan, which was got dismissed in default on 8-3-1993.
However, Mst. Nusrat Mai again on 25-4-1985 instituted a suit for jactitation of marriage in the Family Court, Multan. It was also stated in the complaint that having been confronted with the institution of third suit of Mst. Nusrat Mai the complainant on 24-5-1985 also instituted a suit for restitution of conjugal rights in the Court of Judge Family Court, Multan. Both the suits were dismissed on 11-12-1991. On appeal, however, the suit for restitution of conjugal rights was decreed.
It was also case of the complainant that during this period the accused continued committing Zina by consent thereby rendering themselves liable for legal action under the aforementioned sections. Lastly it was stated by the complainant that since F.I.R. Filed by him earlier was cancelled, therefore, he filed a writ petition in the High Court of Punjab in consequence whereof he was directed to file the complaint in question, as a result whereof the trial was conducted and accused were convicted in the manner described hereinabove.
3. At the very outset it has been submitted by the learned counsel for the appellants that before proceedings with the trial, copies of the complaint as well as' other documents including the statements recorded by Magistrate under section 200/202, CC.P.C. Were not supplied to the accused by the learned trial Court, which was a condition precedent under section 265-C(2)(d) of the Code of Criminal Procedure. It has also been vehemently contended that omission so made by the trial Court has materially prejudiced case of the accused/appellants because in absence of the documents in question neither the accused was in a position to properly cross-examine the prosecution witnesses nor was able to lead his defence. Learned counsel for the appellants submitted that before proceedings with the trial, the trial Court under the law, was bound to supply copies of the complaint alongwith gist of evidence as well as other documents to the accused filed by the complainant enabling him to ascertain the nature of accusation for the purpose of leading his defence. It has further been contended by the learned counsel for the appellants that the omission so made is crucial in nature and has invalidated subsequent proceedings. Reliance in this behalf has been placed on the case of Ghulam Muhammad v. The State duly reported in 1985 SCM R 1442. It has also been urged by the learned counsel for the appellants that a number of documents including the statement of Mst. Naziran, real mother of the accused Mst. Nusrat Mai which was recorded in civil proceedings were tendered in Court through the statement of learned counsel for the appellants Mr. Muhammad Ramzan Khalid. The learned counsel for the appellants further submitted that the trial Court, while recording conviction, inter alia amongst others, has also relied upon the statement in question which under the law was not permissible.
Learned counsel for the complainant Mr. Syed Athar Hussain Bokhari as well as Mr. Muhammad Saleheen Mughal, learned counsel for the State while confronted with the above proposition candidly conceded that there is nothing on record to substantiate that before framing the charge and proceedings with the trial, copies of the documents as required by section 265-C(2)(b) were supplied to the accused. They in the circumstances, gave in writing that they would have no objection if the case is remanded back to the trial Court for proceedings afresh after remeding the defect. Consent so given be placed on record.
4. I have given my anxious considerations to the foregoing submissions and have also perused the relevant record with the help of learned counsel for the parties. Keeping in view the written consent given by the learned counsel for the parties and following the dictum laid down by the Hon'ble Supreme Court of Pakistan in 1985 SCM R 1442 I am inclined to accept the appeal. It would be pertinent to mention here that this Court too, in the case of Rita Margrett Randill v. The State duly reported in PLD 1986 FSC 753 has observed that the provisions of section 265-C are mandatory and non-compliance thereof shall vitiate the trial. Therefore, in this view of the matter, the appeal is allowed, the impugned judgment dated 29-10-1996 is set aside and the trial Court is directed to proceed with the trial of the case afresh in accordance with the law after supplying copies of the requisite documents to the accused as required by section 265-C(2)(b) of the Criminal Procedure Code. Since this is an old matter, therefore, the trial Court is directed to expeditiously dispose of the same within a period of three months. The parties are directed to appear before the trial Court on 27-2-1997. The appellants are on bail granted by this Court. The same shall remain intact till 27-2- 1997. The learned trial Judge shall, however, be at liberty to consider whether or not they shall continue on bail during the trial.