' Impugned judgment, dated 16-6-1996 has been passed by the Court of Additional Sessions Judge, Haripur whereby it has convicted the appellant and his co-accused Mst. Kali (not in appeal) under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced each of them to undergo 4 years' R.I. In addition, the appellant above-named has also been convicted under section 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and is sentenced to undergo 2 years' R.I. Both sentences have been directed to run consecutively. Benefit of section 382-B, Cr.P.C. Has also been given.
2. Succinctly, the prosecution's story is that Mst. Afsar Jan (P.W.11) .Accompanied by her brother Asim Ali lodged an F.I.R. On 25-8-1994 alleging therein that her son Riaz, who had gone towards Karachi for labour since one year, was married to Mst. Kali about 9 years back. From the wedlock one son aged 5 years was alive. Mst. Kali worked as a maid-servant in village Rehana in the house of late Akhtar Ayub Khan. About one week prior to the complaint, one Muhammad Din intimated that since one day prior to the intimation Mst. Kali had disappeared. For all this one week she was searched and now the complainant party was satisfied that Mst. Kali has been enticed away by the appellant for commission of Zina with her.
' Both the accused were arrested, challaned and charged to which they did not plead guilty.
Prosecution examined 11 P.Ws., appellant and his co-accused gave their statements under section 342, Cr.P.C., did not examine themselves on oath, and did not produce any defence.
3. I have heard the counsel for appellant and State. The contentions of the counsel for appellant are that F.I.R. Is delayed by one week; that there are material contradictions among P.Ws.; that essential witness i,e, Riaz husband of convict Mst. Kali has been withheld whose evidence was necessary regarding pregnancy; that certificate essential under section 364, Cr.P.C. Has not been attached with statements under section 342, Cr.P.C. And therefore, an incurable illegality has found its way into the impugned judgment and in this context reliance has been placed on 1985 PCr.LJ 877 and 1677, 1989 PCr.LJ 1079. Counsel for State has given his consent and has admitted that this case has not been proved beyond reasonable doubts and it is a fit case for acquittal.
4. So far as contention regarding delayed F.I.R. Is concerned it has force. In the column for date and time of incident it has been said that it had taken place one week before at unknown time. F.I.R. In this regard is contradicted by the deposition of Mst. Afsar Jan (P.W.11), the complainant. During cross she has deposed: the father of accused was kept by the local police for 11/12 days in the police station. The local police were insisting on production of Noor Zaman, accused. Now F.I.R. Was lodged on 25-8-1994 and on the same date appellant .And his co-accused Mst. Kali were arrested vide deposition of Amir Muhammad P.W.10) A.S.-I. He deposes:-- "During the days of occurrence I was posted at Police Station Kot Najibullah. On 25-8-1994 I alongwith constables Nawaz No,146, Abdul Hamid 162, near Pind Jamal was present. Abdur Rehman Constable No,277 brought the copy F.I.R. I on receipt of copy F.I.R. I collected Mst. Zarina Jan Lady constable No,160. I inspected the site and prepared the site plan which is marked Exh.P.W.10/1.I raided the house of both the accused. Afterwards from the house of Irshad Mehmood son of Wali Dad I recovered both the accused from the said house situated in Noor Colony opp. T.I.P. I prepared the memo. P.W.3/1. I brought the two accused to concerned Medical Officer for medical examination and got the same."
' If the occurrence had taken place one week prior to the date of report i,e, 25-8-1994 and immediately the appellant was arrested, there is no meaning of keeping the father of appellant at police station for 11/12 days to insist the production of his son, the appellant. Since the complainant has alleged in F.I.R. That one day prior to intimation by servant Muhammad Din Mst. Kali had disappeared, an immediate legal action would have been the result. But there seems in existence a sort of deliberation going on. To this is indicating a reply of Mst. Kali to Question No,6 of statement under section 342, Cr.P.C. She states:-- "My mother-in-law is hostile towards me and falsely charged me in this case. No other witness disinterested has deposed against me."
' The delayed F.I.R., as discussed above, alongwith other attending circumstances creates doubts in the story of prosecution.
5. The material substantial contradictions among P.Ws. Are indeed there Mst. Noor Jehan (P.W.5) has deposed: -- "I am working as a maid servant in the house of Akhtar Ayub Khan for the last 10/11 years I am working as a maid-servant in the bungalow of Akhtar Ayub Khan for the last 13 years. Prior to the day of occurrence Mst. Kali had worked for one month in the house of Akhtar Ayub Khan. I do not know whether Mst. Kali had quarrelled with her mother-in-law, and therefore, she had come to the bungalow of Akhtar Ayub Khan. It is correct that we all maid-servants observe Parda in the bungalow of Akhtar Ayub Khan. It is correct that there are male servants in the house of Akhtar Ayub Khan. I do not know that the husband of Mst. Kali had left himself Mst. Kali in the house of Akhtar Ayub Khan. Similarly, I do not know how Mst. Kali had come to the house of Akhtar Ayub Khan. I had not seen with whom Mst. Kali had gone. My statement was recorded on 25-4-1994."
' Mehboob (P.W.6) is deposing:-- "On the day of occurrence, Mst. Kali had left the bungalow of Akhtar Ayub Khan early at dawn time.
At about 7-00 a.m. Accused Noor Zaman came to the bungalow and asked about Mst. Kali telling that his sister had died. He replied that she had already gone somewhere ... Mst. Kali had worked for about one month in the bungalow of Akhtar Ayub Khan. When Mst. Kali came to the house of Akhtar Ayub Khan she told that she was turned down by her mother-in-law and that she has taken shelter in the house of Akhtar Ayub Khan. I know that Mst. Kali is married woman. I do not know that the husband of Mst. Kali had come and had taken her alongwith him and maintained her in a rented house. I do not know that the police had planted this case.Against the accused at the instance and connivance of mother-in-law of Mst. Kali accused."
Both these depositions are clear on one point that none of the material witnesses had seen Mst.
Kali proceeding alongwith the appellant and that Mst. C Kali had developed quarrels with her mother-in-law, the complainant. Again P.W.5 has stated that Mst. Kali had worked for one month in the house of Akhtar Ayub Khan, but contrary to this Afsar Jan (P.W.11), the complainant is deposing: "She lived for about 10/15 days in the house of Akhtar Ayub Khan and thereafter, left his house".
About quarrels and disputes with Mst. Kali she is deposing:-- "When I came to Haripur I noticed Mst. Kali in the house of Yousaf Ayub Khan the then Minister. I wanted to take her back with me but she refused to go with me to my house. I have taken my grandson from Mst. Kali and took him with me. My son had been visiting the house off and on. After 7 months of his departure to Karachi she disappeared from my house. Mst. Kali is closely related to me. My son and the younger sister of Mst. Kali are missing. I do not know whether the younger sister of Mst. Kali has contracted marriage with my son."
' About pregnancy of Mst. Kali, Lady doctor Irshad Bibi (P.W.8) has deposed that she was pregnant for 14 weeks on 25-8-1994. The allegation against appellant is that he had enticed Mst. Kali one week prior to the complaint's date i,e, 25-8-1994 for Zina. Naturally then the pregnancy of 14 weeks cannot be cut short to one week or may be eight days and not more. The evidence as it has come on the record and the withholding of a material witness Riaz, the spouse of Mst. Kali, clarifies the position and one finds her reply to Q. No,5 confidence inspiring: "Yes. It is correct. This pregnancy is due to my husband Muhammad Riaz."
' On the one hand Mst. Afsar Jan is alleging in F.I.R. That her son Riaz, husband of Mst. Kali, has gone to Karachi since one year and has not returned. On the other hand as P.W.11 she has deposed that her son has been visiting the house off and on. Then this one year of F.I.R. Becomes 7 months in deposition. Then she is also admitting that younger sister of Mst. Kali and her son are missing. But she is avoiding to tell since when they are missing. She has also avoided to reply to a suggestion that younger sister of Mst. Kali has contracted marriage with Riaz, but she has admitted that Riaz was in jail at Karachi and during his absence Mst. Kali left her house.
It has also come on the record that Mst. Kali had not only worked as a maid-servant in the houses of late Akhtar Ayub Khan and Yousuf Ayub Khan, but there were many other male servants in both the houses. The last visit of the husband of Mst. Kali is not known but it is definitely much less than one year as alleged in F.I.R. There is no report of serologist. There is no ocular evidence of Zina of appellant with Mst. Kali. There is no allegation of Zina against the appellant prior to eight days earlier to F.I.R. And the pregnancy is that of 14 weeks on the date of F.I.R.
' Investigating Officer has not discharged his duties to prove beyond reasonable doubts that the pregnancy of Mst. Kali was the result of Zina with the appellant. Consequently, in no way the allegations against appellant stand proved.
7. I am pursuaded by the case-law cited as 1985 PCr.LJ 877 and 1677 and 1989 PCr.LJ 1079. First case is from Lahore jurisdiction and the principle laid down reads:-- "----Ss. 342, 364 & 357---Penal Code (XLV of 1860), S.161---Trial Judge not giving requisite certification under 5.364, Cr.P.C, after recording statement of accused under S.342, Cr.P.C.--- Omission; held illegality and not curable irregularity."
' Second case is also from the same jurisdiction and to the same effect. Third case is from Karachi jurisdiction and the principle laid down is as under:-- "Non-compliance of provisions of 5.364, Cr.P.C.---Effect of---Additional Sessions Judge has not given certificate in her own hand that examination of appellant was made in her presence and hearing and that record contained a full and true account of statement made by him---Held: Absence of certificate is not a mere irregularity but an illegality not curable under 5.537, Cr.P.C."
In the present case, no such certificate has been inserted. Hence, this I.F illegality has vitiated the entire proceedings.
8. The upshot of the discussion is that the prosecution has failed to prove the case against appellant beyond reasonable doubts. The benefit of doubt is extended to him. The impugned judgment is set aside. A short order in this regard was passed on 17-2-1997. These are the reasons for the said order.