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Criminal Appeals Nos. 54/L and 109/L of 1986, decided on 23rd October, 1986.

‑‑‑S. 10(2)‑‑Allegation of Zina‑‑Judicial confession recorded after more than two weeks of arrest of accused and during such period she was in police custody‑‑Record showing that even after recording of judgment certain accused was remanded to police by Court‑‑Only evidence being judicial confession by accused which too was retracted‑‑Retracted confession, held, could never be made basis of conviction against other accused and could not be used against maker when retracted‑‑Principles for recording of confession in case of Zina formulated.‑‑[Confession].

Mst. Zubaida's case P L D 1986 F S C 268 and Mst. Bakhan v. The State P L D 1986 F S C 274 ref.

Asif Saeed Khan for Appellant (in Criminal Appeal No. 54/1, of 1986).

Hafiz Ghulam Bari for the State (in Criminal Appeals Nos. 54/L, 109/L of 1986).

M. Latif Khan Khosa for Appellant (in Criminal Appeal No. 109/L of 1986).

Date of hearing: 23rd October, 1986.

.‑‑Muhammad Hussain son of Wahid Bakhsh, and Mst. Rashidan daughter of Ali Muhammad are aggrieved by the judgment/order passed by Additional Sessions Judge‑I, Muzaffargarh on 15‑2‑1986 whereby both the appellants have been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). Muhammad Hussain, appellant has been sentenced to six years' R.I. with twenty stripes and a fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for six months while Mst. Rashidan has been sentenced to four years R.I. and whipping numbering 10 stripes with a fine of Rs.500 or in default of payment of fine to further undergo R.I. for three months. Since both the appellants (in Criminal Appeal No. 54/L of 1986 and Criminal appeal No. 109/L of 1986) have challenged the same judgment, both the appeals have been heard together and shall be disposed of by this common judgment.

2. Mst. Rashidan daughter of Ali Muhammad appellant in Criminal Appeal No. 109/L of 1986 was arrested on 28‑4‑1981 by the police Thana Shah Jamal on the report lodged by Muhammad Hussain in connection with the murder of his son Muhammad Asghar aged about 5/6 years and it is alleged that she had made a confessional statement before the police which was reduced into writing on 7‑6‑1981 by the police and this formed basis for registration of the case (on the orders of the Superintendent of Police, Muzaffargarh). This statement of Mst. Rashidan was treated as an F.I.R. She was examined by the lady Dr. Firdous Ara Mirza, Women Medical Officer on 11‑5‑1981. She was found an old case of sexual intercourse and was referred to gynaecologist Nishter Medical College, Multan for expert opinion for abortion. Her vaginal examination was conducted by lady Dr. Razia Iqbal, Professor Nishtar Medical College, Multan, who opined that Mst. Rashidan might have conceived with early abortion in the past, on 13‑5‑1981 police produced Mst. Rashidan before Khalid Majeed Mirzada, Magistrate 1st Class, Muzaffargarh who recorded her statement Exh. P.E./l. In view of the so‑called judicial confession and the medical reports the challan was put up against both the appellants (under the directions of Superintendent of Police, Muzaffargarh) for offence under section 10(2) of the Ordinance. Both the accused /appellants pleaded not guilty.

3. The prosecution produced eight witnesses in support of the charge.

P.W. 1 (Raja Mir Khan, A.S.I.).‑‑ This witness has got examined Mst. Rashidan in D.H.Q. Hospital, Muzaffargarh by P.W. 3 lady Dr. Firdous Ara Mirza on 11‑5‑1981 and in Nishter Medical College, Multan on 12‑5‑1981 by P.W. 4 (lady Dr. Razia Iqbal Qureshi).

P.W. 2 Abdul Karim (D.S.P.).‑‑ Tehsil Alipur made an application for getting the statement of Mst. Rashidan recorded under section 164, Cr. P.C.

P.W. 3 and P.W. 4. are the lady doctors referred above. They have examined Mst. Rashidan. They have affirmed their medical reports Exh. P. B. and Exh. P.D. respectively and have testified the contents thereof.

P.W. 5 Khalid Majeed Mirzada, Magistrate 1st Class, Muzaffargarh testified that he had recorded the judicial confession under section 164, Cr.P.C. made by Mst. Rashidan. In the cross‑examination the learned Magistrate admitted that on the opening lines of the confessional statement Exh. P.L./2 the word 'on oath' is written by him, later corrected himself by saying that it was done inadvertently (but the record does not indicate that the word 'on oath' were scored out by him). It was also not enquired from Mst. Rashidan that after how many days of her arrest she was produced before him for making the confession. After the conclusion of the confessional statement Mst. Rashidan was taken out from the Court by D.S.P.

P.W. 6 Nazar Hussain Khan, A.S.I. on the orders of the Superintendent of Police, Muzaffargarh recorded the formal F. I. R. Exh. P. F.

P.W.7 Dr. Abdul Ghaffar, Medical Superintendent, D.H.Q. Hospital on the request made by police had examined Muhammad Hussain for potency and proved his report Exh. P.G. wherein it has been mentioned that he is potent (a fact not disputed by Muhammad Hussain).

P.W. 8 Tariq Masood deposed that he had registered the case on the direction of the Superintendent of Police under the Ordinance and investigated the case, arrested the accused and challaned them in Court.

4. Mst. Rashidan in her statement recorded under section 342, Cr. P. C . denied that she had committed Zina with his co‑accused Muhammad Hussain and also denied that she had made any judicial confession and stated that she was arrested on 28‑4‑1981 and on the night between 12113th May, 1981 she was isolated from her mother and brothers and was kept by A . S. I. in his private room and during the night was tortured physically and mentally and was produced before an officer who did not disclose his identity. The statement ascribed towards her was in fact dictated by D.S.P. and during all the time the police remained present in the room later she was handed over to the Deputy Superintendent of Police.

5. Muhammad Hussain in answer to question No. 6 put his case in these words.‑‑

"I am innocent. Previous to this occurrence with approval of the parents of co‑accused Mst. Rashidan I made a promise to marry with Mst. Rashidan but one month prior to this occurrence when I came to know about her bad character and ill reputation of Mst. Rashidan, I refused to marry her. I have never committed Zina with her. She on my refusal for marriage brutally murdered my son namely Asghar Hussain and later on in order to put pressure falsely implicated me in this case."

None of the accused /appellants produced defence.

6. The learned trial Judge was of the opinion that the statement recorded by P.W. 5 was a judicial confession and since Mst. Rashidan was unmarried till her arrest, she has indulged in Zina. The appellant Muhammad Hussain was convicted on the basis of the so‑called judicial confession Exh. P.E. and also because no defence evidence was led to prove his defence version.

7. We have carefully examined the record. There is no evidence except the so‑called confession and that too has been retracted. Mst. Rashidan did not appear as a witness under section 340(2), Cr.P.C. nor Muhammad Hussain was present when her, so‑called statement was recorded by P.W. 5. The allegations contained in the statement recorded by P.W. 5 serve only Mst. Rashidan, she has thrown the blame on Muhammad Hussain. We have pointed out in Mst. Zubaida's case P L DI 1986 F S C 268 that retracted confession can never be made a basis of conviction against the other accused person. It cannot be used against the maker also because it has been retracted. We find that it was recorded after more than two weeks of the arrest of Mst. Rashidan and during the period she was in police custody. It has been established on record that even after this statement was recorded by the Magistrate she was remanded to the police. The principles for recording of confession in case of Zina have been formulated by us in Mst. Bahkhan v. The State P L D 1986 F S C 274. These principles are:‑‑

"(i) The confession must be made without fear, promise or pressure and it is the duty of the Qazi to be satisfied about it.

(ii) In order to ascertain, the above, the Court must allow the accused time, opportunity and to have legal advice and must also explain the legal consequences of confession.

(iii) the Court must verify that the man is not sick or insane and is in fit state of mind.

(iv) The confession must be made four times and at different sittings so that the accused is out of the sight of the Court and away from the police or parties pressure before coming back for subsequent confessions."

The statement of Mst. Rashidan being removed there is no evidence left and the prosecution case falls to the ground. There is no evidence that accused committed Zina.

8. For the above reasons both the appeals are accepted. The conviction and sentences passed against the appellants are set aside and they are acquitted of the charge. Mst. Rashidan shall be released forthwith if not required in any other case. Muhammad Hussain is on bail. His bail bonds stand discharged.

These are the reasons for our short‑order announced at the conclusion of the hearing of the appeals on 23‑10‑1986.

M.B.A./310/F Appeals accepted.

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