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Petitioner: MUHAMMAD JAMIL VS Respondent: THE STATEHonorable Justice Sardar Muhammad DogarShabbir Ahmad Khan,Muhammad Hanif Khatana
2002 Y L R 3921
2002 Y L R 3921
[Federal Shariat Court]
Before Sardar Muhammad Dogar, J
MUHAMMAD JAMIL‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No.266‑L of 2000, decided on 20th February, 2001.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S.11‑‑‑Appreciation of evidence‑‑ Statements of victim woman and prosecution witness were recorded by Trial Court, but both were not cross‑examined on behalf of accused due to non‑availability of his counsel‑‑‑Case was adjourned for recording further evidence, but both victim and prosecution witness were not bound down for cross‑examination on adjourned date‑‑ Subsequently on application of accused filed under S.540, Cr.P.C. praying for re -summoning of victim and prosecution witness for cross‑examination, both victim and prosecution witness were summoned for completion of their cross‑examination‑-Prosecution witness appeared and was cross -examined, but victim woman did not appear despite notices, non‑bailable warrants and warrants‑‑‑Victim woman who failed to appear was reported to have died and her Death Certificate in that regard was produced before Court‑‑‑Due to failure of prosecution to produce victim for her cross examination, her deposition recorded earlier alongwith prosecution witness, could not be read in evidence as same had become inadmissible‑‑‑Deposition of the victim in circumstances, had to be excluded from consideration‑‑‑Statement made by prosecution witness did not contain any incriminating material to connect accused with offence for which he stood convicted and sentenced‑‑‑Statements made by other prosecution witnesses also did not contain anything conclusively incriminating accused with offence for which he stood convicted and sentenced‑‑‑Accused was acquitted in circum stances.
PLD 1963 (W. P.) Kar. 63 and Hakeem v. The State and others 1986 PCr.LJ 2047 ref.
Shabbir Ahmad Khan for Appellant.
Muhammad Hanif Khatana, Addl. A.‑G. and Ch. Muhammad Ayub for the State.
Date of hearing: 20th February, 2001.
JUDGMENT
This appeal is directed against judgment dated 28‑10‑2000, by Additional Sessions Judge, Lahore, whereby learned Trial Judge, convicted the appellant under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance and sentenced him to undergo R.I. for 5 years, plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. for one year. He was also awarded 10 stripes.
2. Occurrence in this case had taken place, a month prior to 20‑4‑1993, in the area of village Mohlanwal, at a distance of 15 kilometers from Police Station, Manga Mandi, District Lahore.
F.I.R. No. 102 of 1993 (Exh. PB/1) was registered at the police station by Yousaf Ali, S.I. P.W. 5, on 20‑4‑1993 at 4‑35 p.m., on receipt of statement Exh. PB, made by Muhammad Munir, P.W.2, on the same day at 4‑10 p.m. at Police Post Sundar, before Tanvir Raza, S.I. (not examined at the trial for having died).
According to F.I.R., appellant and Muhammad Ilyas, were frequent visitors to the house of the complainant. They in fact, used to pose, as sons of his mother Begum Bibi, who was a widow. Both of them visited the house of the complainant, in the month of Ramzan and told Mst. Begum Bibi that they were going to perform Umrah and would like to take her with them, for performing Umrah and Hajj. Mst. Begum Bibi talked to the complainant. When they visited their house again, after 3/4 days, her mother agreed to go to perform Umrah and Hajj. They paid a sum of Rs.15,630 to both the accused. Muhammad Jamil returned after 2/3 lays and told them that he had succeeded in obtaining Passport and Visa for Mst. Begum Bibi and they are required to pay Rs.50,000 more for Hajj and Rs.10,000 for miscellaneous expenditure. Complainant and his mother paid that amount also, after collecting the same. Thereafter, both of them took away, Mst. Begum Bibi on 27th of Ramzan for performing Umrah. Complainant and his brother Muhammad Iqbal and Bashir Ahmad, went to Lahore Airport to see her off. Fifteen days, thereafter Muhammad Jamil returned. On inquiry, he told complainant that his mother had gone to perform Hajj and she had not yet returned. Muhammad Jamil told him, that whenever his mother returns he will inform them. Towards the end of the F.I.R., it is alleged, that he suspected that Muhammad Ilyas and Muhammad Jamil, had taken away his mother alongwith a sum of Rs.70,000 and had played a game with them. He expressed suspicion, that they night have murdered his mother. It is stated that his mother while leaving the house had taken alongwith her 20 yards of cloth for Kaffin, 4 pieces of wearing clothes and shoes.
3. The case was investigated initially, by Tanvir Raza, S.I., who could not be examined at the trial for having died and Wajid Ali, D.S.P., P.W.4. Mst. Begum Bibi, on having returned, home, joined investigation. Her statement under section 161, Cr.P.C., was recorded during investigation. She was, also, got medically examined by the Lady Dr. Naureen Rasool as she had alleged that she had been subjected to Zina by Muhammad Jamil i.e. appellant herein, while being at Karachi. Appellant was arrested on 29‑5‑1993. After completion of necessary investigation, separate challans against the appellant and Muhammad Ilyas accused were sent to the Court of Sessions Judge and Magistrate respectively.
4. Impugned judgment was passed by the learned Trial Judge, after recording statements of Mst. Begum Bibi, P.W.1, Muhammad Munir, complainant, P.W.2 (son of P.W. 1), Lady Dr. Naureen Rasool, P.W.3, who had medically examined Mst. Begum Bibi on 22‑4‑1993, Wajid Ali, D.S.P., P.W.4, who had investigated the case, Yousaf Ali, S.I., who had recorded F.I.R. Exh. PB/1, at the police station on receipt of complaint Exh. PB on 20‑4‑1993, Muhammad Feroz Khan, S.I., who had arrested the appellant on 29‑5‑1993, on rejection of his application for pre‑arrest bail by Additional Sessions Judge, Lahore and statement of the appellant under section 342, Cr.P.C. wherein he had pleaded innocence.
5. Learned counsel for the appellant, after having gone through the evidence contended with reference to the statement made by Mst. Begum Bibi on 12‑6‑1994 that the same had been erroneously relied upon by the Trial Judge for basing conviction, as said statement was not admissible evidence, for reason that the accused had not been given proper opportunity to cross‑examine her and so the statement cannot be read as evidence against the accused. In that he relied upon PLD 1963 (W.P.) Karachi page 63, Hakeem v. The State and 1986 PCr.LJ page 2047, in both the above‑noted citations, convictions were set aside and cases were remanded to the Trial Court on the ground that the witnesses upon whom reliance had been placed against the appellants had not been cross‑examined by the accused on proper opportunity, having not been given).
Learned counsel submitted that the remaining evidence does not connect the appellant with the crime and so he deserves to be acquitted.
Learned Additional Advocate -General who appeared on call, neither controverted the legal objection raised by the learned counsel for the appellant about the admissibility of the statement made by Mst. Begum Bibi nor challenged the contention that remaining evidence does not connect the appellant with the crime.
6. In this case statements of Mst. Begum Bibi, P. W.1 and Muhammad Munir, P.W.2, were recorded by the Trial Judge on 12‑6‑1994. Both were not cross‑examined on behalf of the accused due to non‑availability of their counsel.
The case was adjourned for recording further evidence for 4‑7‑1994. P.Ws.1 and 2 had not been bound down for cross examination on that day. Counsel for the appellant appeared on the day i.e. 4‑7‑1994 and submitted an application under section 540, Cr.P.C. praying that P.Ws. 1 and 2 be re‑summoned for cross‑examination as the learned counsel had not been able to cross- examine them as he could not appear before the Court for being busy before the High Court. The said application remained pending till 1‑7‑1997. In the meantime proceedings in the trial continued. Learned Trial Judge after hearing arguments on the said application on 1‑7‑1997 passed the following order:‑
"Wajid Ali, D.S.P. Range Crime is present. The learned defence counsel submitted that he being the I.O. of this case should be examined in the last and that before going to Federal Shariat Court he had submitted an application under section 540, Cr.P.C. seeking an opportunity to cross‑examine the P.W.1 and P.W.2. He explained that on that day he remained busy in the High Court and he could not reach this Court well in time, and in spite of a request for keeping the matter in waiting, P.W.1 and P.W.2 were examined and their cross examination was closed and also that the accused being an illiterate person could not be presumed to have a faculty of cross‑examining the witnesses and he was deprived from his such valuable right for no fault on his part.
The learned D.D.A. has opposed this petition.
The contents of the application are self‑explanatory. The absence of the learned defence counsel due to his pre‑occupation to keep the case in waiting. In the interest of justice the application is allowed. Both the P.Ws. be summoned for 19‑7‑1997 for completion of their cross -examination."
Muhammad Munir, P.W, appeared in response to the order passed by the learned Trial Judge and he was cross‑examined. Nonetheless Mst. Begum Bibi did not appear in spite of notices, non‑bailable warrants and warrants. The undertaking given by the counsel for the appellant of producing her was also did not bear fruit as he failed to comply with the undertaking. Ultimately her appearance was dropped on receiving a report on 22‑4‑2000 from the process server that Mst. Begum Bibi had expired. Her death 8 certificate in that regard was produced before the Court.
According to the record learned Trial Judge after conclusion of the examination‑in -chief of Mst. Begum Bibi on 12‑6‑1994 noted as follows:‑‑
xxxxxxxxxxx by accused Jamil.
___________ Nil, opportunity given.
In the order sheet of that day it is written as follows:‑‑
It is clear from the order passed by Trial Judge on 1‑7‑1997, noted above that the learned Trial Judge had continued the absence of the learned counsel for the appellant and non‑availing of the opportunity to cross- examine Mst. Begum Bibi on 12‑6‑1994 tentamounted to the effect that no proper opportunity had been given to the accused to cross‑examine the witness.
The failure of the State/prosecution/complainant to produce her for cross‑examination thereafter is also obvious from the facts noted above. In the circumstances deposition of Mst. Begum Bibi recorded on 12‑6‑1994 cannot tie read in evidence as the same became inadmissible. Her deposition, therefore, have got to be excluded from consideration.
7. Statement made by Muhammad Munir, P.W.2 do not contain any' incriminating material to connect the appellant with the offence for which he stands convicted and sentenced.
Statements made by the other P.Ws. i.e. to 6 also do not contain anything conclusively incriminating the appellant with the offence for which he stands convicted and sentenced. That being the position on record there is no course except of allowing this appeal is left. This appeal is, therefore, allowed and the appellant is acquitted. He shall be released forthwith, if not required in any other case.
H.B.T./87/FSC Appeal allowed.