' CH. EJAZ YOUSAF, J.---This appeal is directed against judgment dated 29-4-1997 passed by the learned Additional Sessions Judge, Attock, whereby the respondent was acquitted of the charges under sections 16 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. The prosecution case as gathered from the record is that on 6-12-1995, a written report/complaint was submitted by one Nazir Ahmad son of Ahmad Khan, the present appellant, in Police Station Fatch Jang, District Attock, wherein it was alleged that the respondent No,1 had abducted his unmarried daughter namely, Mst. Sarwar Bano, aged 15 years for the purpose of committing Zina with her. On the stated allegations. Formal F.I.R. Bearing No,382 dated 6-12-1995 was registered under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and in consequence thereof the abductee was recovered on 17-12-1995. Subsequently on 18-12- 1995, she was produced on before the Assistant Commissioner, Fateh Jang, for the purpose of recording her statement under section 164. Cr.P.C.
3. It would be pertinent to mention here that in her above statement she not only fully supported the allegations levelled by her father in the complaint/F.I.R., but also unequivocally disclosed that she was abducted and deceitfully taken away by respondent No,1 and was also subjected to Zina- bilJabr. It was further disclosed by her therein, that she was compelled to sign a Nikahnama as well.
The Investigating Officer, after registration of the case got her medically examined, prepared rough sketch of the place of occurrence, arrested the accused, who too, was got medically examined and on the completion of investigation challaned the case to the Court for trial. Record reveals that the calender of witnesses, in column No,6 of challan form, included the names of following prosecution witnesses:- "( I Nazir Ahmad son of Ahmad Khan 12) Mst. Sarwar Bano daughter of Nazir Ahmad
(3) Ghulam Muhammad son of Ahmad Khan
(4) Muhammad Sharif son of Sarwar Khan
(5) Riaz Hussain No,485/HC
(6) Lady doctor Hajab Farrukh
(7) Dr. Adil Younis
(8) Muhammad Nazir No,105/LHC
(9) Muhammad Mumtaz No,661/C
(10) Allah Bakhsh, A.S.-I.
4. At the trial, Mst. Sarwar Bano was examined as P.W.1. In her examination-in-chief she not only fully implicated the respondent No,1 in the offence, but gave each and every detail of the incident in an unequivocal manner. It would be advantageous to reproduce hereinbelow the same in extenso: -- "About one year and three months ago at about 4-00 p.m. I was present in my village for purchasing goods. Muhammad Ishaq accused met me in the village street and he told me that his daughter was sick. His daughter's name was Shaheen. She was my friend. He took me to village Parana on a Suzuki. At village Parana he further told me that his wife took Mst. Shaheen to Islamabad hospital. From there he took me to Dhok Piracha instead of Islamabad deceitfully. He kept me in that house for 3 days and there he committed Zina-bil-Jabr with me alongwith two other persons. Thereafter,' Muhammad Ishaq accused took me to Haripur where he kept me in a house and got paper thumb-marked. The accused brought me back to Dhok Piracha in the evening. Accused kept me in Dhok Piracha for two to four days, after coming from Haripur. Then accused took me my village for compromise with my Parents. Accused left me at Khunda Mor and went away. I went to the house of my parents. On the next morning I went to police station alongwith my father. Police took me to Civil Hospital, Fatehjang and examined me from W.M.O. The Lady Doctor took my Shalwar into possession. On the same day, police produced me before the A.C., M.I.C., Fatehjang, who told us to come next morning. Next morning I was produced before the A.C./M.I.C. Who recorded may statement under section 164, Cr.P.C."
5. Record further reveals that her cross-examination was, deferred and the case was adjourned for 15-4-1997, at the request of the appellant, as he wanted to change his counsel without assigning any reason. On 15-4-1997 too, the case could not proceed and was further adjourned to 29-4-1997 as the complainant's counsel being indispbsed sought adjournment. On 29-4-1997, P.W.1 when subjected to cross-examination, took a somersault and introduced altogether a different story to the effect that she was neither abducted nor confined nor subjected to Zina-bil-Jabr and that she after leaving her parent's house had contracted the marriage with the respondent with her free-will and consent. It would be worthwhile to mention here that in doing so, each and every suggestion made to her, by the defence, was accepted and admitted to be true and correct. Her statement was followed by an application under section 265-K, Cr.P.C. By the respondent No,1 which ultimately resulted in his immediate acquittal vide judgment dated 29-4-1997, passed on the same day.
6. We have heard Mr. Ibad-ur-Rehman Lodhi, Advocate, learned counsel for the appellant, Mr. M.
Bashir Peracha, Advocate, learned counsel for the respondent and Mr. Muhammad Aslam Uns, Advocate, for the State and have also gone through the relevant record with their help.
7. Mr. Ibad-ur-Rehman Lodhi, Advocate, learned counsel for the appellant has contended that the impugned judgment is not only capricious but arbitrary as well. The same is also against the settled norms of the administration of justice. He argued that the trial Court had gone wrong in law by acquitting the accused in sheer disregard of the evidence available on record, particularly the statement of the victim recorded by Magistrate under section 164, Cr.P.C. He maintained that the adjournment subsequent to the examination-in-chief of the victim was intentionally and purposely sought for, in order to prevail upon the witness and procure false and obliging concessions in his favour whereas the facts were other way round. Learned counsel for the appellant further submitted that the respondent No,1 in fact, ultimately succeeded in achieving the very end. He pointed out that though the alleged abduction had taken place on 5-12-1995 and as per Nikahnama produced by the respondent No,1, his Nikah with the victim took place on 10-12-1995 yet no explanation regarding their relationship for the intervening period was available on record. He pleaded that in the circumstances the trial Court should have refrained from acquitting the accused at such a premature and early stage and ought to have proceeded with the trial of the case thereby allowing the prosecution to lead further evidence in order to find out the truth. He further added that the alleged Nikah was performed at Hariput by Maulvi Muzaffar Din, Nikah Registrar Union Council Darvesh who subsequently verified that no entry of such Nikah was available with him which gave rise to the suspicion that Nikahnama furnished by the respondent No,1 was a fabricated document.
8. Both the learned counsel for the State as well as respondent No,1 when confronted with the above evidence available on record/proposed to be led by the prosecution at the trial, candidly conceded that the learned Additional Sessions Judge, Attock, instead of pressing into service the provisions of section 265-K, Cr.P.C. And acquitting the accused should have permitted the prosecution to lead rest of the evidence. They expressed their nor objection for remand of the case.
9.In order to ascertain as to whether there is substance in the contentions raised on behalf of the appellant we have ourselves minutely gone through record of the case. It appears that in addition to the statement of the victim at the
(i) trial the following material was available on record which prima facie connect the accused with the offence:--
(ii) Statement of the victim recorded under sedtion 164, Cr.P.C.
(iii) 161 statement of P.Ws. Muhammad Sharif son of Sarwar Khan and Ghulam Muhammad son of Amjad Khan who had allegedly seen the accused while he was "taking away" the victim on 5-12- 1995.
(iv) The medical evidence.
(v) Chemical Examiner's Report.
(vi) Certificate issued by Muzaffar Din, Nikah Registrar of Union Council Darvesh to the effect that there was no entry in the register regarding the alleged Nikah.
(vii) Statements of other prosecution witnesses under section 161, Cr.P.C.
(viii) Other material i,e, site plan etc. ' In view of the above material on record, it, therefore, could not have been concluded by the learned trial Court, without referring to the same, that there was no probability of the accused being convicted of any offence. We do not want to go into detailed examination of the above material/evidence at this stage, lest it may prejudice the case of either party, yet in order to show that the impugned judgment is not sustainable, some discussion of the evidence available on record appears imperative. It would also be pertinent to note that some of the conclusions could not have been drawn by the 'learned trial Court, whereas certain features of the case remained unnoticed while others were given undue importance and there was has been misreading and,non-reading of evidence by the learned trial Court. For instance, assertions contained in the judgment regarding the victim's admission in her cross-examination to the effect that she was neither abducted nor subjected to Zina-bil-Jabr have been negated by her own deposition embraced in her examination-in-chief, which in pith and substance fully corroborates the prosecution version given in the complaint/F.I.R. As well as in 164, Cr.P.C. Statement of the prosecutrix and 161, Cr.P.C. Statements of the other prosecution witnesses. Unfortunately the learned Court below has failed to take notice of the same. Besides, it also appears to have been wrongly concluded by the trial Court that the prosecutrix was sui juris. Conclusions made in this behalf palpably appear to be without any basis, particularly in the absence of Radiologist's Report or ossification bone test. Further, authenticity of Nikahnama relied upon by the learned trial Judge too, was under jeopardy in view of the certificate issued by the Nikah Registrar Muzaffar Din of Darvesh and the fact that the same was yet to be proved on record in accordance with the procedure prescribed by law. Thus, to our mind, the learned trial Court was not justified in abruptly allowing the application and acquitting the accused without marshalling the evidence, at such a premature stage and without ascertaining as to whether there was any probability or possibility of the accused being convicted of any office. It would be pertinent to mention here that a recourse to section 265-K, Cr.P.C. Though could be made at any stage of the case yet it cannot be pressed into service to stifle the prosecution. It is a cardinal principle of jurisprudence that the parties to the litigation should be given fair opportunity to place on record their respective cases. Furthermore, under section 265-K, Cr.P.C. The Court is bound to record cogent reasons before concluding that there is no probability of the accused being convicted of any offence and that could only be done after evaluating the entire evidence collected by the prosecution which aspect unfortunately has been ignored in the instant case. In other words it may be said that the conclusions, required by the Court to be drawn, in exercise of the powers under section 265-K, Cr.P.C. Should not be based on fanciful or imaginary reasons, but should be founded on the basis of appraisal of entire material available on record. The power under section 265-K, Cr.P.C. Is not intended to be exercised whimsically in the manner in which, the learned Trial.Court in the instant case has done. In view of above discussion, we are inclined to hold that the instant case was not a case in which section 265-K, Cr.P.C. Could have been invoked by the learned Trial Court without providing an opportunity to the prosecution to produce further evidence, therefore, the order under appeal cannot sustain.
10. The upshot of the above discussion is that the above appeal is allowed, order dated 29-4-1997 is set aside, and the case is remanded to the learned Additional Sessions Judge, Attock, for trial, from the stage at which, it was when the impugned order was passed. Parties are directed to appear before him on 23-12-1997.