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Criminal Appeal No. 80/L of 1988, decided on 19th November, 1988.

‑‑‑Ss. 11, 13 & 10(3)‑‑Application of evidence‑‑Mere levelling accusations against a person in F.I.R. does not make him accused unless and until some evidence implicating such person in the commission of offence is available‑‑Unless informant is examined, information cannot be put in evidence‑‑Non‑production of informant deprives accused of his right to cross-examine first informant and casts a doubt and weakens prosecution case.

---‑Ss. 11, 13 & 10(3)‑‑First Information Report cannot be utilized as 'substantive evidence and even if the maker of F.I.R. had died it cannot be used as corroboration of testimony of another person‑‑Unless the informant is examined the information cannot be put in evidence.‑ (First Information Report].

‑‑‑Ss. 11, 13 a 10(3)‑‑First Information Report‑‑Delay in lodging‑ Effect‑‑Prosecutrix who was alleged to be abducted had returned home at least 8/9 days before making application for registration of case and no explanation for such delay was given in the application‑‑Such F.I.R., held, would be viewed with suspicion.‑‑[Delay‑‑First Information Report].

‑‑‑Ss. 11, 13 & 10(3)‑‑Offence of Zina‑‑Appreciation of evidence‑‑No eye‑witness except mother of prosecutrix produced‑‑Prosecutrix who was in better position to give details of incident not produced by prosecution‑‑Details of incident given by mother of prosecutrix, held, would be only hearsay.

Q.M. Salim for Appellants.

M. Saleem Shad for the State.

Date of hearing: 23rd October, 1988.

.‑‑Mst. Asho wife of Dad Khan, Gul Muhammad son of Ghulam Qadir, Dur Muhammad son of Ghulam Qadir and Bashir Ahmad son of Faizu, all Baloch by caste, residents of Mauza Tahir Walt, Tehsil Ahmed Pur East, District Bahawalpur have been convicted by Mr. Abdul Ghaffar Khan, Additional Sessions Judge‑III, Rahimyar Khan vide his judgment, dated 15‑2‑1986 for the offences under sections 11, 13 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced as under:‑‑

(a) Bashir Ahmed. Dur Muhammad and Gul Muhammad under section 11 of the Ordinance have been sentenced to life imprisonment and whipping numbering 10 lashes and a fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for six months.

(b) Gul Muhammad under section 10(3) of the Ordinance to twenty years R.I. with whipping numbering 10 stripes.

(c) Mst. Asho, Dur Muhammad, Bashir Ahmad and Gul Muhammad under section 13 of the Ordinance have been sentenced to life imprisonment and whipping numbering 10 stripes except Met. Asho. All the sentences are to run concurrently and the benefit of section 382‑B, Cr.P.C. has been extended to the accused.

2. A written application, dated 22‑9‑1984 drafted by one Muhammad Munir Jamali Petition Writer Liaqatpur on behalf of one Mst. Allah Jawai wife of Gamon addressed to Assistant Superintendent of Police Circle Liaqatpur was received in Police Station Shidani Sharif District Rahimyar Khan which was entered in the daily diary as Report No. 16 in the Thana on 23‑9‑1984. The application contained the allegations that the applicant, alongwith her mother Met. Sharam Khatoon U/3 months prior to this application were returning home, after having seen their Peer at Liaqatpur, towards Malikpur and were waiting for the arrival of Bus at metalled road at a distance of two miles towards western side of Janpur at K.L.P. Road, a wagon came and stopped there and two persons with muffled faces alighted down from wagon and forcibly lifted Mst. Allah Jawai and made her to board the wagon. Mat. Sharam Khatoon, her mother was pushed away. She was taken to Mauza Tahirwall where she was kept locked in a room. Gul Muhammad son of Ghulam Qadir used 'to commit Zina‑bil‑Jabr and Bashir Ahmed and Dur Muhammad kept watch over her. After two days the applicant was brought by the accused Bashir, Gul uhammad, Dur Muhammad and Mst. Asho in a bus to a 'jungle Elaqa Punoon Aqil and there she was sold to one Laloo Sindho who committed Zina. The accused received a sum of Rs.30,000 (thirty thousand). Laloo kept strict watch over her. 8/ 9 days prior to the making of this application, the applicant was successful in escaping from the clutches of Laloo Sindhu and came to her house and narrated her tale to the parents. It was prayed in the application that Police Thana Shidani Sharif be directed to register the case against the accused. Only the four accused persons mentioned above were challaned and the learned trial Court framed charges against them, to which they pleaded not guilty.

3. The prosecution produced seven witnesses in support of the charge. They are:‑‑

P.W. 1 (Manzoor Ahmad) the father of Mst. Allah Jawai,

P. W. 2 (Mst. Sharam Khatoon, the mother of Mst. Allah Jawai)

P. W. 3 (Mukhtar Ahmad, the brother of Mst. Allah Jawai)

P. W. 4 (Lady Dr. Durdana Anjum)

P. W. 5 (Dr. Shabbir Ahmad Awan examined Gul Muhammad accused for potency),

P. W. 6 (Muhammad Ashraf Shah, A.S.I.), and

P. W. 7 (Muhammad Hussain S.H.O.)

4. P.W. 1 (Manzoor Ahmad) deposed that his wife Mst. Sharam Khatoon had gone with Mst. Allah Jawai to Mauza Chauhan to see Peer and in the evening were returning home when the occurrence took place which was narrated by his wife at night when she came back home. In the cross‑examination disclosed the name of the husband of Mst. Allah Jawai as Gaman Khan who resided at Ahmedpur East.

P.W. 2 (Mst. Sharam Khatoon) deposed that she and her daughter Mst. Allah Jawai were going to see the Peer at about Maghrib time ( . . . . . . . . . . . . . ) and were on the side of a metalled Road near Muhammad Wah Canal when a wagon came there and asked them to board the wagon whereupon they refused. On refusal she was pushed away and her daughter was lifted. She came back home weeping and told her tale to the husband and son Mukhtar Ahmad (P.W. 3). After about 2/2 months her daughter came back home and told that Gullo accused had committed Zina with her whereas Dur Muhammad and Bashir have been watching movement so that she may not run and Mst. Asho had accompanied all the accused for selling out her daughter to some one in the province of Sind. In cross‑examination she stated that in her statement under section 161, Cr.P.C. the occurrence was stated to be Maghribwela (but it was Aserwela in the said statement). The witness admitted that her son Mukhtar Ahmed (P.W. 3) had filed a writ petition in the High Court for the registration of the case a fact which was denied by Mukhtar. It was also admitted by her that she did not know the accused.

P.W. 3 (Mukhtar Ahmad) deposed that his mother had narrated the occurrence. He has denied that he had filed any writ petition in the High Court for the registration of this case.

P.W. 4 (Lady Dr. Durdana Anjum) Women Medical Officer, District Hospital, Bahawalpur stated that he had examined Mst. Allah Jawai wife of Gaman Khan on 26‑9‑1984 and has recorded her observations in the report Exh. P.A. Two vaginal swabs were taken and sent to the Chemical Examiner and the report of the Chemical Examiner was in the positive. As such she was of the opinion that she was subjected to sexual intercourse. In her opinion sexual intercourse with Mst. Allah Jawai was done and in cross‑examination admitted that detection of semen can be possible within seven days from sexual intercourse.

P.W. 5 (Dr. Shabbir Ahmad Awan) examined Gul Muhammad son of Ghulam Qadir and found him potent.

P.W. 6 (Muhammad Ashraf A.S.I.) deposed that on 23‑9‑1984 while he was posted at Police Station Shedani Sharif, 51st. Allah Jawai had presented an application on the basis of which the formal F.I.R. was recorded by him. This witness was disclosed the name of the husband of Mst. Allah Jawai but he did not examine him (husband) under section 161, Cr. P. C.

P.W. 7 (Muhammad Hussain S.I.) stated that on 26‑9‑1984 Muhammad Ashraf A.S.I. produced Mat. Allah Jawai, prosecutrix alongwith Mat. Sharam Khatoon, Manzoor Ahmad, Mukhtar Ahmad and Mazhar Ahmad P.Ws and he verified the investigation. But in cross-examination expressed his ignorance whether Mst. Allah Jawai was a married woman or not and did not call any other witness for investigation except verification of statements of aforementioned persons.

4. Mat. Allah Jawai was not produced in Court. From the record it is found that she was given up because of her re‑abduction and untraceability vide report Exh. P.C. This report was made by one Munir who was not examined in Court. No report was lodged about the abduction of Mat. Allah Jawai by any one nor the summon was issued at the address of her husband which fact had become known to the police even during investigation. Mst. Allah Jawai could be found living with parents or her husband but the prosecution did not care to enquire from them. It would, therefore, be not safe to say that she was re‑abducted or was untraceable.

5. From the narration of the facts deposed by the prosecution witnesses and from the perusal of record it is clear that Mat. Allah Jawai had come back home 8/9 days before 22‑9‑1984 when she had made the application before the A.S.P. Police for setting the authorities in motion for the investigation of the offences she had complained about. Accused Gul Muhammad, Dur Muhammad were arrested on 20‑10‑1984 from their residence and Gul Muhammad was got medically examined on 3‑11‑1984 by P.W. 7 (Muhammad Hussain S.I.)

6. There is no eye‑witness except Mst. Sharam Khatoon (P.W. 2) who has deposed that there came out two persons having muffled their faces. Yet no identification parade regarding the persons allegedly having come out of the wagon to lift Mat. Allah Jawai was arranged when accused persons were arrested. Only Mst. Allah Jawai could give the details but she has not been produced by the prosecution, the details given by P.W. 2 is thus hearsay. The medical report was of no avail to the prosecution as Mat. Allah Jawai was not medically examined before 26‑9‑1984. She is married woman and her husband is alive. Appearance of Mst. Allah Jawai before the Investigating Officer (P.W.7) and her medical‑examination on 26‑9‑1984 lends support to the contention that on 23‑9‑1984, she was not before the police and the F.I.R. was registered only on the orders of the A. S. P. to whom the application was addressed. Mere levelling accusations against a person in F.LR. does not make him an accused person unless and until some evidence implicating such person in the commission of the offence is available and unless the informant is examined the information cannot be put in evidence. The non‑production of Met. Allah Jiwai has certainly deprived the accused of their right to cross‑examine the first informant. It casts a doubt and has weekened the prosecution case. Even otherwise the F.I.R. cannot be utilized as substantive evidence and even if the maker of F.I.R. had died (this is not in the instant case) It cannot be used as corroboration of the testimony of another person because unless the informant is examined the information cannot be put in evidence. The statement of Met. Sharam Khatoon that her daughter on return had told the names of the accused is hearsay and is not admissible in evidence. P.W. 2 also contradicts the version given in F.I.R. In that Met. Sharam Khatoon in her statement recorded in Court said that she was going to see her Peer at about Maghrib time and were on the side of the Metalled Road when a wagon came and lifted her daughter while in the F.I.R. It has been said that Mst. Allah Jiwai alongwith her mother were returning having seen the Peer when the occurrence took place.

7. There is yet another aspect of the case which assumes importance and it is the delay in lodging the F.I.R. Mat. Allah Jiwai had returned home at least 8/9 days before making the application for the registration of the case and no explanation for this delay is even given in the application. Courts have always viewed the first information with suspicion when there has been unexplained delay in giving it. 8/9 days delay have not been explained at all.

8. For the above reasons it would not be safe to maintain the conviction of the accused /appellants. We accordingly allow this appeal and set aside the conviction and sentences passed against the appellants and they are acquitted of the charge. Appellants Gul Muhammad son of Ghulam Qadir, Dur Muhammad son of Ghulam Qadir and Bashir Ahmed son of Faizu shall be released forthwith if not required in any other case. Met. Asho wife of Dad Khan is on bail. Her bail bond stands discharged.

M.B.A./309/F Appeal allowed.

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