FAZAL ILAHI KHAN, C.J.--Farman Ali son of Said Qamar Zia, Wajid Zaman son of Faqir Zaman, in Criminal Appeal No,148/I of 2000 and Mst. Qamar Zia dauthter of Saif-ur-Rehman, in her Jail Crimimal Appeal No, 27/1 of 2001 the convicts, have challenged the Judgment and. Order of the learned Session Judge, Swabi, dated 18-8-2000. whereby they were convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter referred to as the said Ordinance) and sentenced to suffer 8 years rigorous imprisonment each and to pay a fine of Rs, 5,000 or in default thereof to suffer six months rigorous imprisonment each. Mst. Qamar Zia was further convicted under section 302(b) of Pakistan Penal Code, for the murder of her newly-born child and sentenced to suffer life imprisonment. It was ordered that both the sentences of Mst.
Qamar Zia shall run concurrently and the benefit of section 382-B, Criminal Procedure Code, 'extended to her. Bahadur Khan accused was however, acquittedof the charge.
During hearing of the appeal in motion suo motu notice was issued to Jan Bahadur to show cause why the order of acquittal in his case shall not be set aside. As all these three matters haye arisen out of the same judgment, therefore, we propose to dispose of all of them by this single judgment.
2. The facts giving rise to these matters, briefly stated, are that Mst. Qamar Zia accused/appellant was married to Aziz-ur-Rehman and from the wedlock a son namely Naveed is born. Subsequently, when the relations between the spouse became strained, she was divorced on 13-10-1996 and then she started residing in the house of her parents. During her stay at the house of her parents she became pregnant and which become known to her relations. She made an application to the D.I.- G. Secretary Parliament House Islamabad in which she charged Wajid Zaman and Farman Ali, both residing in her mohllah, for having committed sexual intercourse with her which led to her pregnancy. The 'complaint alongwith a covering letter died 4-4-1998 was sent to D.I.-G., Mardan Range which was ultimately entrusrted to the S.H.O. Police Station Topi who initiated proceeding under section 156(3), Cr.P.C, On 19-4-1998, when the S.H.O. visited the house of the applicant, it transpired that she had given birth to a child 3/4 days before his visit. The S.H.O. entrusted Mst.
Qamar Zia and her newly-born female child to Jan Bahadur vide "Superdari memo." Exh.P.W.-1/1. On 21-4-1998, Mst. Qamar Zia appeared in the police station with the dead body of her child and reported that child had suddenly died his natural death. The S.H.O. sent the dead body to hospital for medical opinion as to whether the death was natural. Lady doctor Nasreen Haider, WMO (P.W.6) medically examined Mst. Qamar Zia and also performed post-mortem examination on the dead body of the child, and in her opinion the child had died of strangulation. Accordingly the present case was registered against the accused/appellants and Jan Bahadar, the acquitted accused, vide F.I.R. No, 369 dated 22-4-1998 under sections 318/406/109, P.P.0 read with sections 5/10 of the said Zina Ordinance. The accused were arrested and the statements of the P.Ws. were recorded.
On completion of the investigation complete challan was submitted before the Court. The accused denied the formal charge framed against them and wanted to face trial.
3. The prosecution in support of its case examined Nowsher Khan, S.H.O. Police Station Topi, who on receipt of the complaint with the covering letter from D.I.-G. Mardan, during inquiry under section 56(3), Cr.P.C, visited the house of Mst. Qamar Zia where he came to know that she had given birth to a child. The lady accused and the child were entrusted to Jan Bahadar on "superdari". He stated that Mst. Qamar Zia brought the dead body of the child to the police station and stated that the child died on his natural death. He also took into possession divorce deed executed between Aziz- urRehman and Mst. Qamar Zia, which is Exh.P.W.1/2. Further investigation in the case was conducted by Late Abdul Ghani, S.I., who registered the case in daily diary at Serial No,8 dated 11-4- 1998 and thereafter sent the child to the doctor for post-mortem examination and on receipt of the postmortem report, registered the case as stated above. He had also prepared the site-plan Exh.PB and the medico legal report of Mst. Qamar Zia is Exh.P.W.1/5 and that of the child Exh.P.W.1/6.
All these recovery memos. were stated to be in the handwriting of late Abdul Ghani Khan with whose handwriting and signature the P.W. was fully acquainted. Azam Khan, (P.W.2) identified the dead body of the child. Mir. Zaman resident of village Maini, (P.W.3) stated that Mst. Qamar Zia was married to his son namely Aziz-ur-Rehman and from her wedlock his son Naveed is born who is alive and is living with him. He further stated that as the relations between the spouse was strained, therefore, she was divorced by his son vide divorce deed Exh.P.W.1/5, which in original was handed over to Mst. Qamar Zia. Haji Faqir Muhammad (P.W.4) is the marginal witness to "Superdari" memo.
Exh. P. W .1/1, through which Nowsher Khan S.H.O. had handed over the infant child and entrusted Mst.Qamar.Zia to Jan Bahadur accused son of Bahadar of village Maini in healthy condition.
Muhammad Wisal, IHC Police Station Topi (P.W.5) stated that , he was present with late Abdul Ghani Khan, S.I. at the Police Station Topi, when Farman Ali and Wajid Zaman accused in hand cuffs, led the police and pointed out the spot where both of them one by one had committed sexual intercourse with Mst. Qamar Zia. The pointation memo. is Exh.P.W.1/8 and further stated that Haji Jamshed was the other marginal witness to the memo.. Lady Doctor Nasreen Haider, WMO Civil Hospital Topi (P.W.6) examined Mst. Qamar Zia on 21-4-1998, as well as the dead body of her child.
According to her , Mst. Qamar Zia had delivered child and on exdamination she found mark of ligature all around the neck of the child. The medical report is Exh.PR. It was the entire evidence, which the prosecution led in support of its case. The accused was examined under section 342, Cr.P.C. Jan Bahadur, the acquitted accused when questioned about the custody/entrustment of the child, denied the same and further stated that the police officer had taken his signature on a blank paper and that neither the custody of Mst. Qamar Zia, her co-accused, nor her infant baby was given to him, however, he admitted that he had informed the S.H.O. telephonically regarding the death of the newly-born child and he alongwith the parents of Mst. Qamar Zia had gone to the police station. He pleaded innocence of Mst. Qamar Zia in her statement under section 342, Cr.P.C, admitted that she had been divorced by her husband on p13-01996, 1996, vide the deed Exh.P.W.1/2 and that Farman Ali and Wajid Zaman who were residing in her neighbourhoqd, forcibly committed sexual intercourse with her as a result of which she become pregnant, of which she made complaint to the higher authorities. That on her application the inquiry was conducted by the S.H.O. Police Station Topi and in that connection the S.H.O. had visited her house. She denied that she and her child were ever entrusted to 'Jan Bahadar, her co-accused. She denied having committed the murder of her newly-born female child but admitted that the lady doctor had medically examined her. Farman Ali accused/appellant denied having illicit relations with Mst.
Qamar Zia and having committed Zina with her . He further denied having pointed out the place where the alleged Zina was committed. Similar is the statement of Wajid Zaman, accused/appellant.
4. The learned trial Judge on appraisal of the afore mentioned evidence acquitted Jan Bahadar accused while his co-accused were found guilty convicted and sentenced then to the terms of imprisonment and fine stated above.
5. We have heard the learned counsel for the appellants and the learned counsel appearring for the State and have perused the record. We have also heard Jan Bahadar, accused present in Court in 'person in suo-motu notice' issued to him and have gone through the evidence on record with their assistance.
6. In this case the appellants have been found guilty of the offence under section 10(2) of the said Ordinance, while Mst. Qamar Zia has further been held guilty for the murder of her newly-born child. The learned trial Court has relied on the complaint made in writing by Mst. Qamar Zia wherein she has admitted her having been subjected to Zina by the accused/appellants which ultimately led to her pregnancy. In support of the charge no direct evidence of illicit relations of the male accused with Mst. Qamar Zia is available on the record but the learned trial Court while convicting the accused observed that Mst. Qamar Zia having brought the charge against them in her complaint to the D.I.-G. for having committed Zina with her and she having not denied its contents when put to her in her statement under section 340(2), Cr.P.C, was sufficient to connect the accused with the commission of the offence. The learned trial Judge further observed that both the accused are residing in the neighbourhood of Mst. Qamar Zia and to this effect relied upon on the site-plan Exh.PB, wherein the houses of accused are shown in the vicinity of the house of female accused. Further reliance was placed on the medical report, wherein the male accused/appellants were found capable of performing sexual intercourse, which fact they also affirmed when put to them in their statements under section 342, Cr.P.C. Absence of any motive for false charge was also used against the male accused. As far as the case against Mst. Qamar Zia is concerned, it was held that she having admitted the commission of Zina and her conduct of keeping quite till she became pregnant was sufficient to prove her involvement in the offence of Zina. With regard to the death of newly-born child, the learned trial Judge held that the child must be presumed to be in her custody, therefore, it can be safely held that she was responsible for the murder of the child especially when no evidence was produced in defence to prove that the death of child was natural.
7. It was contended by the learned counsel for the appellant that the conviction and sentence . of the appellants are not sustainable on the evidence on record; that the evidence of the prosecution witnesses are not reliable and their testimony not confidence-inspiring. That the learned trial Court failed to properly appraise the conviction and its over all evidentiary value or proof of an offence, was not assessed as required for administration of criminal justice. The mere evidence against the male accused on the record is their capability to perform sexual intercourse which by itself could not be a ground of holding a person guilty of the offence in absence of cogent and reliable evidence connecting him with such an offence. It was further contended that the learned trial Judge has based its finding on assumption, surmises and conjectures.
8. It was contended by the learned counsel for Mst. Qamar Zia that having raised the plea in her statement under section 342,Cr.P.C, that she had been subjected to Zina by force, the fact that she kept quiet for a long period because of the social environment in which she was residing, could not have been used against her. Her statement is exculpatory and as such not inculpatory to make out an offence of Zina under section 10(2) of the said Ordinance against her, in absence of any other evidence. As far as strangulation of the newly-born child is concerned, she could not have been convicted for the said murder merely on the assumption that the child was supposed to be in her custody, the possibility could not be ruled out that the child might have at some time remained exposed and in the custody of other members of the family and they might have acted independently to do away with the child considering it a perpetual disgrace to the family when she was residing in a joint family. There is no direct circumstantial evidence that she committed the murder. As far as Jan Bahadar, accused/appellant is concerned, he is present in Court he repeated his earlier assertion that in fact the female accused was never entrusted to him in the strict sense, which could make him responsible. However, having come to know that the minor child had died he immediately thereafter informed the police, he was therefore rightly held not responsible for the, murder by the learned trial Court.
9. After hearing the learned counsel for the appellants and perusal of the record with their assistance there appears no legal evidence on record to prove the offence of Zina against the male accused. As far as conviction of the accused is concerned, the learned trial Court has relied on the application made by Mst. Qamar Zia addressed to the D.I.-G., Secretary Parliament House wherein she had charged the two accused, who were residing in her neighbourhood, for committing sexual intercourse with her. The learned trial Court placed , reliance on the contents of the application and the medical evidence, that both the accused were capable of committing sexual intercourse, although there was no evidence that hey had committed Zina with Mst. Qamar Zia. Neither the fact that they are residing in the neighbourhood of the complainant not the medical evidence that they are capable of committing sexual intercourse, by itself, is of any help to advance the prosecution case in proof of the offence of Zina which require strong independent evidence free of any reasonable doubt. Mst. Qamar Zia, is an accused in the case, therefore, her statement as referred to above could not have been relied upon and read as evidence against her co-accused. Excluding such evidence the only piece of evidence that the accused resides in the neighbourhood of the complainant and found capable of committing sexual intercourse are mere surmises and conjectures, and could be used as corroborative piece of evidence. The trial. Court failed to judicially appraise the prosecution evidence before basing reliance on it while administering criminal justice. Accordingly there is no evidence whatsoever to prove that the accused/appellants Farman Ali and Wajid Zaman have committed the offence of Zina.
10. As far as the case of the Mst. Qamar Zia, accused is concerned the learned trial Court has based her conviction on the contents of her application referred to above read with her statement recorded under section 342, Cr.P.C. Although she had categorically stated that she was forcibly subjected to sexual intercourse by her neighbourers namely Farman Ali and Wajid Zaman, her silence till such time that he pregnancy became known to the family, has been wrongly considered as circumstantial evidence corroborating the contents of her application holding her a consenting party to the offence of Zina. Keeping the social environment in which she was at the relevant time were even if the offence is committed by use of force such occurrence is seldom reported in time positively because it bring shame to the family and secondly or danger to her life. There is no allegation that she was of easy virtue or that she had developed illicit relations with the accused/appellants. There is also no evidence that she was on regular visiting term to the house of the accused which led to illicit intimacy, therefore, her statement under section 342, Cr.P.C, that she had been subjected to sexual intercourse by force has not been given due consideration in appraisal of evidence. For the reason her conviction under section 10(2) of the said Ordinance is unsustainable.
As far as the charge under section 302(b) P.P.0 against her is concerned, there is no direct evidence against her. The prosecution case entirely rests on assumption and inference drawn from the fact that the infant child was in her custody before such death. Reliance is also placed on the medical evidence that the death of infant child is by strangulation, but such inference cannot be drawn and conviction based thereon facts and circumstances of the present case. The infant child might have been strangulated as opined by the lady doctor but the possibility could not be ruled out that some other member of the family might have committed the offence in her absence as contended by her counsel. In the absence of any other evidence the mere fact that the infant child was supposed to be with the mother all the time by itself would not be sufficient to prove beyond reasonable doubt that she committed the murder. For safe dispensation of criminal- justice conviction on such circumstantial evidence alone could not be sustained.
11. As far the suo motu notice issued to Zia and her child were entrusted to him or not, his conduct of having informed the police of the murder of the infant child in time is sufficient to exonerate him of his responsibility, if any, imposed upon him.
12.For the reason stated above, both Criminal Apeal No, 148/I of 2000 by Farman Ali and Wajid Zaman and Jail Appeal No, 27/I of 2001 by Mst. Qamar Zia are accepted, the judgment of the learned trial Court is set aside and the accused/appellants are acquitted of the charge. Farman Ali and Wajid Zaman are on bail, their bail bonds are stand discharged. Mst. Qamar Zia shall be released forthwith, if not required in any other case. Suo mom notice issued to Jan Bahadar is vacated.