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Criminal Appeal No. 199 of 1986, decided on 8th March, 1987.

‑‑‑Ss. 7 & 11‑‑Criminal Procedure Code (V of 1898), S. 342‑‑Allegation of Zina‑‑Notice (reply) issued by Advocate at instance of accused not proved by examining Advocate in Court and no question put to accused to enable them to explain their position under S. 342, Cr.P.C. nor any other person was examined to prove notice‑‑Such notice, held, could not be relied upon and used as a piece of evidence against accuse .

P L D 1956 Lah. 704 and 1969 S C M R 777 ref. Epp.

Messrs Bengal Friends &Co. v. Messrs Cour Benode Saba &Co. PLD 1969 SC 477; Khan Muhammad Yousif Khan v. S.M. Ayoob P L D 1973 SC 160; Din Muhammad v. The Crown 1969 S C M R 777 and Murtaza Ali Khan v. The State P L D 1986 Kar. 121 rel.

‑‑‑Ss. 7 & 11‑‑Allegation of Zina‑‑Evidence on record showing that complainant was not sure about date and had made prevaricating statements about accused and other persons who levelled allegation of Zina against her‑‑Relations between parties were strained‑‑Evidence of complainant was required to be corroborated independently for purpose of conviction of accused which was not done‑‑Complainant, held, failed to prove her case beyond reasonable doubt‑‑Accused given benefit of doubt and acquitted.

Muhammad Hayat Junejo for Appellants.

Usman Ghani Rashid for Respondent No. 2.

Rashid Tariq Khan for the State.

Date of hearing: 2nd March, 1987.

The appellants were tried under section 7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 before the learned Additional Sessions Judge (Hudood) Sukkur Division, at Sukkur, who by his judgment, dated 17‑11‑1986 has convicted the appellants Abdul Hafeez Khan and Mst. Jamila under section 11 of Offences of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced them to suffer simple imprisonment for six months and to pay a fine of Rs.5,000 (Rupees five thousand) each, or in default to suffer simple imprisonment for one month more. In addition to the above sentence appellant Abdul Hafeez has to suffer sentence of 5 stripes.

Aggrieved with the above judgment, the appellants have filed the present appeal.

The brief facts of the case are that the complainant Mst. Rehana Jabeen was married with appellant/accused Farrukh Hafeez on 3‑5‑1985 at Sukkur, and Rs.50,000 were fixed as dower. On the same day the complainant was taken by the appellants from Sukkur to Karachi by Sukkur Express, and reached Karachi on 4‑5‑1985 in the morning. It was alleged by the complainant that as soon as they reached Karachi, her husband told her that the dower was exorbitant and asked her to forego the dower amount. The complainant told him that he should talk to her parents. It was further alleged that appellant Farrukh Hafeez continued his demand to forego her dower for two days but the complainant told him that he should talk to her parents. That on 5‑5‑1985 appellant Abdul Hafeez Khan and Mst. Jamila, father and mother of appellant No. 1 respectively, also asked her to forego the dower amount, but she refused, on which they were annoyed and threatened her that in case she failed to forego dower she will be killed. According to her she was then mercilessly beaten and was made to sign a written paper and also a writing about some admission. On the next day she was told by the appellants that she had executed a writing by which she had given up her dower, and admitted her unchastity, and had further permitted her husband to contract another marriage. That she will never go to Sukkur, and will serve her in‑laws for whole of her life. It was further alleged that a Valima ceremony was fixed on 10‑5‑1985, therefore, her parents and brothers came from Sukkur to Karachi on 9‑5‑1985. The complainant narrated the above facts to them, on which they were very much annoyed and wanted to take her back to Sukkur without attending the Valima ceremony, but the appellants /accused showed repentence and requested the complainant and her parents not to leave Karachi and to attend Valima ceremony. Believing the words of repentence of the appellants, the parents of the complainant attended the Valima ceremony and thereafter, brought the complainant to Sukkur in accordance with the tradition. That after few days the accused/appellants came to Sukkur for taking the complainant, back to Karachi but she refused to go with them till they returned the documents signed by her under compulsion, and withdrew the false allegations of unchastity levelled against her, by executing the deed in writing. The appellants Nos. 1 and 3 promised to do so on which they provided 2 stamp papers for execution of writing which they took away to Karachi for execution after consultation, but they never returned and kept silent. The complainant sent notice to the appellants on 28‑5‑1985 through her Advocate to withdraw the false allegations and return the documents which were got executed from her. The accused/appellants received the above notices, and instead of repenting and withdrawing false allegations, they sent a reply on 9‑6‑1985 in which they repeated the same allegation Therefore, the complainant filed a direct complaint which ultimately came up before the learned trial Judge who framed charge against the three appellants under section 7 of Offences of Qazf (Enforcement of Hadd) Ordinance, 1979 to which the appellants pleaded not guilty.

The complainant examined herself as Exh.8, produced notice, dated 28‑5‑1985 Exh.9, reply of the appellants, dated 9‑6‑1985 Exh. 10, direct complaint Exh. 11, her statement recorded under section 200, Cr.P.C. Exh. 12, and also examined Abdul Hafeez her father Exh. 13.

After close of the prosecution case, the appellants were examined under section 342, Cr.P.C. but they denied the allegations and stated that the case against them is false. The appellant No. 1 further stated that after the marriage, his wife was with him at Karachi for 6 days, and thereafter, she was taken away by her parents to Sukkur as per tradition. After three days he went to the house of in‑laws alongwith his mother to fetch his wife, where they told him that he should remain as Ghar Damad', which he refused, therefore, they have filed this false case against him and his parents. The appellants Nos. 2 and 3 also adopted the statement of appellant No. 1. The appellants did not examine any witness in their defence and the learned Judge was pleased to convict them as described above.

I have heard Mr. Muhammad Hayat Junejo learned counsel for the appellants, Mr. Usman Ghani Rashid learned counsel for the complainant, and Mr. Tariq Rashid Khan learned counsel for the State.

The contention of Mr. Muhammad Hayat Junejo is that there was no evidence that the notice (reply) Exh. 10 was actually issued at the instance of the appellants, inasmuch as the learned Advocate who issued the notice (reply) was not examined in the Court. He further contended that the admission by counsel was not binding on clients in criminal case. In this connection he has relied upon P L D 1956 Lah. 704. He further contended that even the question regarding issuance of notice by the appellants was not put to them in their statement under section 342, Cr.P.C. to enable them to explain the position and, therefore, it could not be used against the appellants, reliance has been placed on 1969 S C M R 777. That the evidence of Abdul Hafeez father and the only witness of the complainant having been discarded by the learned Judge, the appellants Nos. 2 and 3 could not be convicted on the solitary evidence of complainant whose relations with the appellants were admittedly strained.

On the other hand it was contended by Mr. Usman Ghani Rashid that since the learned Judge had not put this question to the appellants regarding issue of notice, the matter may be remanded back to the learned Judge. That since Hadd' was not applied in this case, the evidence of Mst. Rehana Jabeen coupled with the notice (reply) Exh. 10 was sufficient for the purpose of conviction of the appellants. He has further contended that since the imputation of unchastity was with regard to early period of life (before the marriage), therefore, the husband is liable for Qazf, and the order of the learned Judge that the husband appellant Farrukh was subject to lian was unjustified, and he should have been convicted for Qazf.

Mr. Rasheed Tariq Khan appearing for the State was of the view that the appellants have been rightly convicted by the trial Judge and they were not entitled to any leniency.

I have considered the contentions of the learned counsel and have also gone through the R & P of the case. It is an admitted position that the learned Advocate who issued the notice Exh.10 was not examined, nor any other person was examined to prove that the notice (reply) Exh.10 was issued at the instance of the appellants, therefore, the same was not proved as required by law. It has been held by Hon'ble Supreme Court in Messrs Bengal Friends and Co. v. Messrs Cour Benode Saba & Co. P L D 1969 SC 477 observation at page 483, that the documents which are not copies of any judicial record could not be received in evidence without proof of signatures and handwriting of person alleged to have signed or written them as required by section 67 of the Evidence Act. This legal position was re‑affirmed by their Lordships in the case of Khan Muhammad Yousif Khan v. S.M. Ayoob, reported in P L D 1973 SC 160. It is also clear from the statements Exhs. 15, 16 and Exh.17, that question regarding issuance of notice Exh. 10 at the instance of the appellants was not put to them in order to enable them to explain. In Din Muhammad v. Crown 1969 S C M R 777, it was held that Criminal Procedure Code‑‑S. 342‑‑circumstances from which inferences adverse to accused sought to be drawn should be put to accused when he is questioned under section 342, Cr.P.C. In Murtaza Ali Khan v. The State P L D 1986 Kar. 121, it was held by the Division Bench of this Court that Tribunal Court not putting any question to accused in his statement under section 342, Cr.P.C., whether he had given confession and whether it was voluntarily and true, held that it was mandatory for the Court to have put the above question to the accused to find out if confession was voluntarily and true, and therefore, confession was ruled out of consideration. Mr. Usman Ghani Rashid, learned counsel for the complainant has contended that the matter may be remanded back to the trial Court for putting this question to the appellants under section 342, Cr.P.C. I am afraid the argument of the learned counsel cannot be accepted in view of the peculiar circumstances of the present case, inasmuch as it is clear from the above discussion that even the document itself was not legally proved, and therefore, to remand the case back to the trial Court on this point will not serve any cause of justice, but will be an exercise in futility. From the above discussion and the legal position it is clear that it was not proved that the notice Exh. 10 was issued at the instance of the appellants. Moreover, no question was put to the appellants to enable them to explain their position under section 342, Cr.P.C. Therefore, the notice Exh. 10 could not be relied upon and used as a piece of evidence against the appellants.

Complainant Mst. Rehana Jabeen in her evidence has supported the contents of her direct complaint and has stated that after the marriage she was taken to Karachi where they reached in the morning. As soon as they reached in the house, her husband told her that the Mehar fixed was too exorbitant and asked her to forego the same, but she told him to talk to her parents. That her husband continued his demand and on her refusal she was maltreated and ultimately forced to write, and sign the documents. That when her parents and brothers came to attend the Valima ceremony, she narrated the above facts to them on which they were very much annoyed and wanted to leave with her for Sukkur immediately without attending the Valima ceremony. The appellants showed repentence and requested them to attend the Valima ceremony otherwise it will give them bad name. They attended the Valima ceremony and thereafter, left for Sukkur alongwith her. That appellant No.1 and her mother came to take her back but she refused to go with them. Later she sent notice Exh. 9 to them, which was replied to and the same has been produced as Exh. 10. In cross‑examination she has stated that for the first time allegation of Zina was levelled against her by her mother‑in‑law on 6th May 1985 in the morning. At that time she was all alone, again stated that 3 accused and the brothers of her husband were also present at that time, again stated that three accused had jointly levelled allegation of Zina against her. She further stated that she cannot say as to why accused levelled allegation of Zina against her. In reply to another question she stated that it is a fact that accused did not attribute the allegation of Zina to any person by name with her. She has admitted in cross‑examination that her father wanted the appellant No. 1 to execute some stamp paper, for which Farrukh expressed that he will consult his parents and then sign it. He took away the stamp paper. The stamp paper was written by her brother in presence of Farrukh. She has further stated that it is a fact that had accused Farrukh signed the written stamp paper, she would have agreed to go with him to Karachi.

The narration of above evidence will show that the complainant was not sure about the date, and has made prevaricating statements about the persons who levelled allegation of Zina against her. Whether the appellant No. 1 alone made the allegation, or all the appellants, or brothers of the appellant No. 1 as well. Moreover the relations between the parties being strained, her evidence required independent corroboration for the purpose of conviction of the appellants. The evidence of Abdul Hafiz father of the complainant the only other witness has been discarded by the learned trial Judge, and for valid reasons. There is no other evidence which could corroborate the evidence of complainant Mst. Rahana Jabeen.

In view of the above discussion, I am of the view that the complainant had failed to prove its case beyond reasonable doubt, and, therefore, while giving benefit of doubt to the appellants, I allow this appeal, set aside their conviction and sentence and acquit them of the charge. The appellants are on bail and their bail bonds stand cancelled.

In view of my finding with regard to the prosecution evidence it will be futile to continue with the proceedings regarding lian against the appellant No. 1, and therefore, the order of the learned trial Judge in this respect stands set aside.

M.Y.H./F‑5/K Appeal allowed.

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