MIAN MEHBOOB AHMED, C.J.---This appeal is directed against judgment dated 6-10-1996 delivered by the learned Additional Sessions Judge, Attock whereby he acquitted all the four accused including Muhammad Younus and Mst. Ghulam Sakina the respondents in a case against them under section 16 read with section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979.
2. The facts of the case briefly stated are that a case under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered with Police Ptation Pindigheb, District Attock vide F.I.R. No,53, dated 12-3-1995 on the complaint' of Shabbir Hussain son of Nawab Khan the present appellant against 4 persons namely Abdur Rehman, Muhammad Younus, Mst. Shama Bibi and Mst. Ghulam Sakina. It was alleged in the written complaint on the basis of which the F.I.R. was recorded that Ghulam Sakina respondent No,2 is the wife of the complainant having been married some 5/6 years ago but there was no male issue out of the wedlock; that on 11-3-1995 at about 6.-30 p.m. when the complainant had gone to the mosque for 'Maghrab' prayer Ghulam Sakina was present in the house but on return she was found missing; that it was taken by him that Ghulam Sakina had gone to the house of her parents; that even after waiting for her till late night she did not return whereupon he went to the house of his in-laws and learnt from there that she had not gone there as well. Returning home checking of the household was made by the complainant and it was found that some articles of jewellery and cash of Rs,10,000 which were with Ghulam Sakina have also been taken away by her. Despite effort she had not been traced. The complainant suspected that Ghulam Sakina had been abducted by Abdur Rehman, Muhammad Younus and Mst. Shama Bibi for the purposes of illicit relations. The written complaint was lodged at 8.-00 a.m. on 12-3-1995 on which formal F.I.R. (Exh.P.B./1) was recorded.
3. The police after investigation submitted the challan in the Court. The Court framed charge against the present respondents under section 16 read with section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 while against the other two accused namely Abdur Rehman and Mst. Shama Bibi charge was framed under section 16 of the aforementioned Hudood Ordinance. All the accused denied the allegations and claimed trial.
4. The prosecution in support of its case produced 11 witnesses. P.W.1 Zamirul Hassan, Foot Constable is a formal witness who collected the sealed parcels from P.W.2 for delivery to the Chemical Examiner and deposited the same in his office. P.W.2 Mumtaz Hussain Foot Constable kept safe custody of the sealed parcel delivered to him by the Investigating Officer and handed them over to P.W.1 for onward transmission to the Office of the Chemical Examiner. P.W.3 Noor Muhammad escorted Ghulam Sakina respondent to the hospital for medical examination which was conducted by P.W.11. P.W.4 Mst. Fakhar-un-Nisa, Foot Constable who accompanied P.W.3 for escorting Mst. Ghulam Sakina for her medical examination. P.W.5 Shabbir Hussain the complainant who corroborated the contents of his complaint (Exh.P.B.). P.W.6 Mst. Agar Bano mother of the complainant who saw Mst. Ghulam Sakina leaving the house of the complainant. P.W.7 Dr. Atta Ullah, Radiologist who submitted report (Exh.P.C.) and detected the pregnancy of Mst. Ghulam Sakina as of 25 weeks duration. P.W.8 Nawab Din, Assistant Manager, Hafiz Hotel, Lahor who stated that the two respondents stayed in his hotel in the night between 19-3-1995 and 20-3-1995. P.W.9 Shaukat Ali, A.S.I. who recorded the F.I.R. (Exh.P.B./1) and conducted the investigation of the case.
P.W.10 Shahzad Khan Bangash, Assistant Commissioner, Pindigheb who recorded the confessional statement of Ghulam Sakina respondent under section 164, Cr.P.C. (Exh.P.W.10/B) on 3rd of April, 1995 when she was produced before him by the police and P.W.11 Lady Dr. Kowkab Sultana who medically examined Mst. Ghulam Sakina and submitted the medico-legal report (Exh.P.H.).
5. On the conclusion of the prosecution evidence the statements of all the accused under section 342, Cr.P.C. were recorded. All the accused in reply to the question; why the case against them submitted that it was on account of the enmity of Abdur Rehman co-accused (who is the father- in-law of Muhammad Younus respondent and father of Mst. Shama Bibi respondent) with the complainant which enmity had resulted into litigation also. None of the accused opted to make statement under section 340(2), Cr.P.C. They also did not produce any evidence in defence.
6. The learned counsel for the appellant has raised the following contentions only:-
(i) That statement of Muhammad Younus respondent under section 342, Cr.P.C. was not properly recorded as no question was put to him about a piece of evidence viz. the confessional statement of Mst. Ghulam Sakina (Exh.P.W.10/B) which attributed to whom the commission of offences by him with which he was charged. According to the learned counsel this material irregularity calls for remand of the case; (ii)that there is no enmity brought on record between Shabbir Hussain complainant and Muhammad Younus respondent and, therefore, the learned trial Court was not justified in making the enmity as the ground for giving the benefit of doubt to the accused; (iii)that in view of the law laid in Mubarak Ali and another v. The State PLD 1994 FSC 55 the acquittal of the accused is not justified and appeal merits to be accepted.
7. On the contrary, the learned counsel for the State submitted that he has not been able to find any fault with the impugned judgment which is well reasoned and in accord with the principles of dispensation of justice in the criminal cases. Similarly the learned counsel for respondents Nos.1 and 2 contended that no case has been made out on behalf of the appellant for interference with the judgment of the trial Court which is based on plausible reasons. He submitted that the citation pressed into service on behalf of the appellant is not applicable to the facts of the case in hand.
8.We have given anxious consideration to the respective contentions of the learned counsel for the parties and have examined the total evidence oral as well as documentary on record. Before adverting to the contentions of the learned counsel for the appellant it may be observed at the outset that though initially the appeal was filed against all the accused persons but later it was not pressed as against the co-accused Abdur Rehman and Mst. Shama Bibi who vide order dated 14- 4-1997 were deleted from the appeal as respondents and consequently Muhammad Younus and Mst. Ghulam Sakina remained arrayed as respondents Nos.1 and 2.
9. We are of the view that the contentions raised on behalf of the appellant have no force.
Legitimate inferences have been drawn by the Trial Court, from the evidence on record and we do not feel persuaded to reach different conclusions. It is the admitted position that there is no ocular evidence on record about the alleged commission of Zina-bil-Raza by the parties between 11th of March to 29th of March, 1995. As regards the medical evidence it may also be observed that it does not give any corroboration to the allegation of Zina-bilRaza by the parties on the dates mentioned above. The approximate age of fetus is 25 weeks as determined by the Radiologist vide his report (Exh.P.C.) by the examination through ultrasound made on 1st of April, 1995. The medico- legal report (Exh.P.H.) also shows the period of pregnancy as 26 weeks. That being so, this pregnancy cannot be attributed to the alleged Zina-bil-Raza by the respondents between the 11th of March, 1995 to 29th of March, 1995. Thus, there is no evidence whatsoever on record which, in any manner, implicates the respondents with the offence of Zina-bil-Raza. The statement of P.W.8 Nawab Din the Manager of the hotel also does not lend support to the prosecution version as the stated stay in the hotel is between the night of 19th March, 1995 and 20th of March, 1995 and there is no averment in the statement of this witness about any commission of sexual intercourse by the parties during that night as well.
10.Adverting now to the confessional statement, it may be stated that the same appears to be the result of influence by the Police on Ghulam Sakina who was produced before the Assistant Commissioner for recording of confessional statement on 3rd of April, 1995 when she had been in Police custody since 29th of March, 1995. The confessional statement appears to have been got recorded after the ultrasound report on 1st of April, 1995 which gave the result of pregnancy of the said appellant just to get a corroboration to the case of prosecution about the commission of an offence covered by section 10(2) of the Ordinance. The tenor of the confessional statement when read conjunctively does not inspire confidence and appears to be a padding for the purposes of support to the case.
11. The enmity between respondent Muhammad Younus and the co-accused who were also acquitted namely Abdur Rehman and Mst. Shama, on the one side and the complainant/appellant, on the other, is admitted and, therefore, it could be legitimately inferred as has been done by the learned Trial Court to be the basis of case against the said persons. As regards the conceiving of pregnancy it being the admitted position that Ghulam Sakina' respondent is a married woman who was living with her husband the complainant prior to her alleged departure from the house on 11th of March, 1995 the same was the result of the wedlock.
12.Taking up the first contention raised on behalf of the appellant it may be observed that the same is of no consequence so far as the case of the prosecution is concerned. Before examining this proposition it would be appropriate to reproduce subsection (1) of section 342, Cr.P.C. for facility of reference:-- "Section 342.---(1). "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."
A perusal of the above provision shows that its main purpose is to enable the accused to explain circumstances appearing in the evidence against him and requires of the trial Court to put such questions to the accused as the Court considers necessary, and for the purpose aforesaid, question him generally of the case after the witnesses of the prosecution have been examined and before the accused is called upon for his defence. It also emerges from the provision aforementioned especially from the words underlined above that it does not appear to be the intendment of section 342, Cr.P.C. that questions to be put to the accused shall separately relate to each and every piece of the evidence of the prosecution. There is, thus, no prejudice which can be construed to have been caused to the prosecution by not putting questions relating to a part of the evidence. Apart altogether from the above position even if it be assumed to be a lacuna the same shall go to the benefit of the accused and the prosecution cannot be allowed to take benefit thereof, especially when it did not press this point before the trial Court at the appropriate stage.
13.Before parting with the case it may also be observed that conviction in cases of this nature cannot be recorded on the basis of flimsy grounds which do not find support from the evidence on record since this is not only a cardinal principle of dispensation of justice in the criminal jurisdiction but is the basis of dispensation of justice in the Islamic System as well that reliable and flawless testimony should be available for condemning any person as guilty. The learned Trial Court following the aforesaid principle very correctly acquitted the respondents and we see no reason to interfere with the judgment of the learned lower Court.
14.Resultantly this appeal being without merit is dismissed.