' MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal has been filed by the convict-appellant, Shabbir Hussain, against the order recorded by the Shariat Court on 14-2-2002, whereby the appeal tiled by the convict-appellant against the order of the District Court of Criminal Jurisdiction, Bhimber dated 29-8-2000 was dismissed.
2. The necessary facts, precisely stated, are that a case under sections 10/6 of the Offence of Zina (Enforcement of Hudood) Act, 1985 and section 452, A.P.C. Was registered against the accused- appellant and another at Police Station Bernala, on the written application of Mst. Perveen Akhter, on the basis of which the. F.I.R. Was recorded. It is stated in the F.I.R. That the complainant is resident of village Loota. Her husband is employed in the army. She is living with her brother-in-law, Iftikhar Ahmed, a student of 5th class. On 8-5-1997, at about 7-30 p.m., the complainant and her brother- in-law were present in their house. Shabbir Hussain son of Mian Khan and Muhammad Aslam son of Mehndi Khan, Awan by caste, residents of Doobay, came at their home and asked about their goat. They also asked for water. Iftikhar Ahmed, the brother-in-law of the victim, went to bring water for them but they left the place without drinking the water. At about 10-30 p.m. Both the accused persons came back and entered into the house of complainant. The complainant woke up. Shabbir Hussain, appellant, herein asked her to keep quiet. In the meantime Iftikhar Ahmed also woke up. It is alleged in the application that accused, Muhammad Aslam, caught hold of Iftikhar Ahmed and put him beneath the quilt. Shabbir Hussain committed Zina-bil-Jabr with the complainant. It is further alleged in the F.I.R. That the accused, Muhammad Aslam, also committed Zina-bil-Jabr with her. It is further stated in the application that on the following day of occurrence, the complainant went to the house of her in-laws. Her father-in-law was not present at home.
When her father-in-law came back, she told him about the occurrence and then they went to lodge a report. The report was lodged on 10th of May, 1997 at about 5-00 p.m.
3. The occurrence is stated to have been witnessed by Iftikhar Ahmed, brother-in-law of complainant. After registration of the case, the police started investigation. The accused persons were apprehended by the police. On completion of investigation, they were sent to the District Court of Criminal Jurisdiction, Bhimber for facing their trial for the alleged offences. The charge against the accused was framed on 27-8-1997. The accused persons pleaded not guil.:y.
Consequently, the prosecution was directed to produce evidence in support of its case. The prosecution examined 10 witnesses in support of its case. During the trial, the accused Muhammad Aslam absconded and was proceeded under section '512, Cr.P.C. By the trial Court.
4. After evaluating the prosecution evidence and other material on record, the trial Court arrived at the conclusion that the prosecution has succeeded in proving its case against the convict- appellant who Oh he day of occurrence at 10-30 p.m. Entered the house of victim and committed Zina-bil-Jabr with her. Consequently, the appellant was convicted to 12 years' rigorous imprisonment under section 10(3) of the Offence of Zina (Enforcement of Hudood) Act, 1985, 3 years' rigorous imprisonment under section 452, A.P.C. And a fine of Rs,1,000 in case the fine is not paid, it was directed that the appellant shall face the imprisonment of one month more. However, the accused was acquitted by the trial Court in a case registered against him under section 13/20/65 vide its order dated 29-8-2000. The convict-appellant preferred an appeal against his conviction order before the Shariat Court but the same was also dismissed vide the impugned order dated 14-2-2002. It is the aforesaid order of the Shariat Court against which the present appeal has been preferred by the convict-appellant.
5. In support of appeal it was vehemently contended by Mr. Muhammad Yunus Tahir, the learned counsel for the appellant, that the prosecution has failed to prove the case against the convict- appellant beyond any reasonable shadow of doubt. The learned counsel contended that there being material contradictions in the evidence of the prosecution, it would not be safe to convict the appellant on the basis of sole statement of victim which is not corroborated by any other connecting material. The learned counsel contended that Shalwar of victim which was seized by the police and is alleged to have spots of semen, was not sent to Chthical Examiner nor the same was put to convict-appellant while examining him under section 342, Cr.P.C. Thus, according to the learned counsel for the appellant, the incriminating material which was not put to the accused- appellant seeking his explanation cannot be used against him, but all the Courts have ignored this important aspect of the case. He, therefore, submitted that the judgments of all the Courts may be set aside and the convict-appellant may be acquitted of the offences alleged to have been committed by him.
6. On the other hand Sardar Abdul Razik Khan, the learned Additional Advocate-General, appearing on behalf of the State, fully defended the judgment recorded by the Shariat Court and the trial Court. He submitted that the statement of victim, Perveen Akhter, is confidence-inspiring and the same is supported by the medical evidence.
7. We have given our due consideration to the arguments advanced at the Bar by the learned counsel for the parties and with their assistance have examined the record. It is most unfortunate that in the instant case the victim of offence who is a lady under the influence of the relatives of the accused in the first instance tried to save the skin of the convict- appellant by stating that she could not recognize the accused. However, when the Court sent all the relatives and so-called Kharpanchs out of the Court. 'the victim, Perveen Akhter, fully supported the case of the prosecution. She has given a satisfactory explanation about the delay in lodging the She categorically 'stated that no male member of his family was present at the time of occurrence.
After the occurrence she went to the house of her father-in-law who was not at home and when he came back the complainant told him about the occurrence and then they lodged the report. A study of her statement shows that she has proved all the contents of the F.I.R. The defence failed to get anything divulged from her in favor of convict-appellant during the cross-examination. Her statement is confidence-inspiring. She has successfully proved that she was subjected to Zina-bil- Jabr by the convict-appellant. Her statement is trustworthy and the same is also supported by the statement of lftikhar Ahmed whose presence at the place of occurrence is natural and it has not been even denied by the defence. Besides the abovementioned evidence, the medical evidence fully corroborates the version of the victim and it is supportive of the prosecution's case. The lady doctor, Mst. Zahida, who examined the victim, has stated categorically that the victim was subjected to sexual intercourse which took place a few days prior to the examination of the victim.
8. It may be pointed out that there are some minor contradictions in the case of the prosecution but those are quite natural in the circumstances of the case and not material for the purpose of giving any benefit to the convict-appellant. The case was very poorly conducted by the counsel who appeared for the convict-appellant in the trial Court as it is not his case that the accused were falsely implicated or that a false case was cooked up against them out of enmity or for some other grudge. It is not possible for us to believe that a young lady would implicate the innocent person and would let loose the person who is really involved in the occurrence. Since the convict- appellant has failed to point out any enmity or grudge against the complainant or the prosecution witnesses, therefore, we have to accept the prosecution version as it is. Moreover, it is a rare phenomenon that an innocent person would be implicated and the real culprit would be left out. In our view despite all the pressure and unfair methods used by the relatives of the convict-appellant, the case of prosecution against the convict-appellant stands established. The Courts below have already taken a lenient view in awarding the sentence of 12 years to the convict-appellant for committing the offence of Zina-bil-Jabr. In the circumstances of the case the sentence already awarded to the convict-appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Act, would meet the ends of justice. Therefore, the conviction order recorded by the trial Court as well as the Shariat Court in the offence of Zina-bil-Jabr stands upheld.
9. So far as the conviction order recorded for the offence under section 452, A.P.C. Is concerned in our view, both the trial Court as well as the Shariat Court committed a serious illegality by convicting the appellant in the said offence. The ingredients constituting the offence under section 452, A.P.C. Are lacking in the instant case, therefore, the convict-appellant should have been acquitted in the aforesaid offence. For the purpose of proper appreciation of the ingredients of section 452, A.P.C., it would be useful to reproduce section 452, A.P.C. Which reads as under:-- "House-trespass after preparation for hurt assault or wrongful restraint.--- Whoever commits house-trespass having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine,"
' The bare reading of this section shows that where the accused persons make preparations for committing any of the offices es specified in the section, then the offence is constituted under the said section. Where the evidence on record did not show that the accused made preparation for causing hurt or assault or causing wrongful restraint to any person or that the accused carried any weapon of offence when they forced their entry into the house or they attacked or attempted to attack any of the witnesses present in the house, the accused could not be convicted under this section. Even while examining the convict-appellant under section 342, Cr.P.C. It was not put to the appellant that he trespassed into the house of complainant for causing hurt etc. Or assault to the inmates of the 'house. It was also not put to the convict-appellant that after trespassing into the house of complainant, he used force for the commission of offences mentioned in the section by pistol. Thus, the incriminating material, if any, relating to the offence must have been put to the convict-appellant for seeking his explanation under section 342, Cr.P.C. But in the instant case there seems to be no incriminating material relating to house-trespass for committing tac offences mentioned in the above section. Mere entering into the house of a person for committing Zina-bil-Jabr with a lady does not in all circumstances constitute the offence of house-trespass independent of the offence of Zina-bil-Jabr. The predominant intent of the convict-appellant in the instant case appears to be and it is the case of the prosecution itself that the convict-appellant alongwith his co-accused entered into the house of complainant for committing Zina-bil-Jabr with her. In a case reported as Muhammad Mushtaq v. State 2001 YLR 1164 it was observed as under:-- "... It appears that the trial Court sought the explanation of the accused under section 342, Cr.P.C.
On the basis of report submitted by police under section 173, Cr.P.C. And not on the basis of material brought on record of the trial Court by the prosecution. This way of examining the accused under section 342, Cr.P.C. Is not recognized by any canons of law or justice."
' It was further observed that the explanation of accused is to be sought only on incriminating material which is brought on record by the prosecution. Extraneous circumstances which do not form part of the evidence of prosecution are not material for the purpose of conviction and those cannot be taken into consideration.
10. Thus, having come to the conclusion that the ingredients essential for constituting the offence under section 452, A.P.C. Were lacking in the instant case, the trial Court as well as the Shariat Court wrongly recorded the conviction of convict-appellant under section 452, A.P.C. And awarded the sentence of three years' rigorous imprisonment. This sentence of 3 years' rigorous imprisonment was to run after the completion of the sentence of 12 years' which was awarded to convict- appellant for committing the offence of Zina-bil-Jabr. In this view of the matter, for reasons to be recorded hereinbefore, we acquit the accused from the offence allegedly committed under section 452, A.P.C.
11. In the light of what has been stated above, with this modification' which has been mentioned in para. No,10 of this judgment, the rest of the appeal filed by the convict-appellant stands dismissed and the order of conviction recorded by the District Criminal Court and the Shariat Court under section 10(3) of the Offence of Zina (Enforcement of Hudood) Act, stands maintained.