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Jail Criminal Appeal No.43/I of 1987, decided on 27th April, 1988.
Art .2 A When the statutory law does not include an offence, it would not mean that the act would go unpunished even if it was an offence under the Muslim Law.
If the statutory law does not include an offence, it would not mean that that act would go unpunished even if it was an offence under the Muslim Law.
Now the entire field of Muslim Law has been made applicable not by any ordinary law, but by the Constitution itself, as per Article 2 A, enforced with effect from 3rd of March, 1985.
Previously the ordinary Legislature, without specifically enacting the custom or the usage and bits of personal law, in detail, and in codified enactments, made them part of the law of land and it is more than a century that not only no objection was raised by any one; rather, the wheel of life of the community was kept going by these precepts smoothly and peaceably. Now in 1985, it is the entire body of Muslim Law which has been enforced and so no objection is due for lack of it being in the form of codified enactment, to make it the existing law of Pakistan.
Bank of Oman"s case P L D 1987 Kar. 404 and Mirza Qamar Raza"s case P L D 1988 Kar. 169 mentioned.
Ss.3, 6 & 7 Man and woman as given in Ss.3 and 7 of the Ordinance include dead person Duration of sleep being a period of temporary death, if sexual intercourse is done with a woman who is asleep or is unconscious it will amount to Zina by the man if his act answered the requirements of Ss.3 and 6 of the Ordinance
Al Quran, verse 42 of Surah 39 (Al Zumr), verse 60, Surah Al Anaam; Al Mabsoot (Al Sarakhsi) (Vol.V, p.54); Al Tashree-al-Jinai, Vol. II, pp. 357 358; Al Mughni 1972 Edn., Vol. X, p.190; Tabeen ul Haqaiq by Al Zaili, Vol. 111, p. 184; (Al Mohazzib, Vol. II, p. 268; Al Bahrur Raiq, Vol. V,p.20 and Hashial Tahtavi Alad Durrul Mukhtar Vol, II, p.398 (Raddul Mukhtar) ref.
--S.6 When a person satisfies his lust on a dead body he can be held guilty of Zina bil Jabr as defined in S.6 of the Ordinance.
Vol. I, p. 766; verses 18 to 22 of Chap, LXXX (Albasa); Abu Daud Kitab al Janaiz p.458; Ibne Maja, Vol: I, p.471; Fatawa Qazi Khan Vol. III, p.469; Abdul Aziz Aamir on ( ) (translated by Syed Maaroof Sherazi, (Al; Bahar Publication, Lahore), pp. 25, 254; quoted from Vol. VII, pp.23, 24; Fathul Qadeer, Vol. V, pp.30 31; Fatawa Alamgiri, Vol. II, p.143; Sharah Fatah al Qadeer, Vol. IV, p.138; Al Bahar ur Rahiq, Vol. V, p.3 and Al Badai as Sanai, Vol. VII, p.33.ref.
S.20 Probability that offence may fall under the Hudood laws and not the ordinary law Trial of such an offence should always be conducted and if need be conviction be recorded in vie v of S.20, " first proviso by the Hudood Court.
------Ss.8(a) & 9 Confession Essentials Extra judicial confession Value Confession against circumstantial evidence Propriety Confession retracted before execution of Hadd sentence Effect Confession remains as evidence against accused only for such time as it has not been retracted When the confession is retracted, the Court, even if has passed Hadd sentence, may either acquit accused or order retrial If the retraction is made before the announcement of the judgment, trial Court shall not rely exclusively on the confession of convict and may either decide case on other evidence provided or it may order retrial as laid down in S.9(4). [Confession].
Confession, in a case of Zina, for the purpose of Hadd sentence, must be made four times in four different meetings and the accused should be free from any outside influence, pressure, coercion or duress. It means that the confession must be independent and should be made because of the fear of Allah and the Hereafter, in order to purge him of the effect of the offence. Section 8(a) of the Ordinance VII of 1979 further provides that it must be made before a Court of competent jurisdiction. Exactly, the same is the view taken by Muslim Jurists on the point.
An extra judicial confession, therefore, is not to be taken as confession but just a statement of the witness that he heard the accused saying that he had committed the offence. Such an evidence must be corroborated by other evidence and circumstances of the case if it is to be considered to impose tazir punishment. However, if a confession is against, the circumstantial evidence it will not apply to impose Hadd sentence.
View that the confession once made has to be used as an evidence and that conviction and sentence must be recorded is not correct absolutely as it must fulfil certain conditions before carrying that effect.
If the confession is retracted before the passing of the order, the sentence of Hadd shall not be imposed.
So confession, in order to be effective, must not have been retracted. Again, if it is retracted before the execution of the Hadd sentence, the sentence shall not be executed. The retraction, if it comes at any time during the enforcement of Hadd; the unexecuted part of the sentence shall be stayed. Section 9 provides that in a case in which the offence of Zina or Zina bil jabr is proved only by the confession of the convict," Hadd, or such part of it as is Yet to be enforced, shall not be enforced if the convict retracts his confession before the Hadd or such part is enforced. This section presupposes that the confession subsisted and was not withdrawn till the offence was proved from it. It may mean conversely that if it was withdrawn it could not have been acted upon in proof of the offence.
Subsection (3) of section 9 further provides that in a case where the offence is proved only by confession of the convict and the sentence or any part of it as is yet to be enforced, the Court may order retrial. This provision makes it quite clear that the confession remains as evidence against the accused only for such time as it has not been retracted. However, the moment it is retracted the Court even if has passed Hadd sentence, it may either acquit or order retrial. Consequently, if the retraction is made before the announcement of the judgment, the trial Court shall not rely exclusively on the confession of convict and may either decide the case on the other evidence provided or it may order retrial as laid down in subsection (4) of section 9.
Fatawa Alamgiri (Qanuni Kutab Khana, Lahore), Vol. III, pp.256, 257; Al Hi"daya, Vol. II, p. 488; Hadood o Taazirat, published by Islamic Research Institute, Islamabad p.220 & ref.
Ss.8 & 20 Confession Court of competent jurisdiction Confession to be effective must be recorded not by any Magistrate or a Court but by a Court of competent jurisdiction which is the Court competent to try the case Trial of offence of Zina has to be undertaken by a Sessions Court, jurisdiction of Magistrate has been expressly excluded Any statement before a Magistrate, therefore, is not a confession under S.8(a) and has no legal effect. [Confession].
Black"s Law Dictionary, Vth Edn.; Stroud"s Judicial Dictionary, 4th Edn. and Words and Phrases (Permanent Edition), Vol. VIII, p.356 ref.
S.8(a) Confession to be relied upon for the purpose of awarding Hadd sentence for Zina must be made four times in four different meetings Where the accused made statement under S.164, Cr.P.C. only once and after that instead of sending him to the judicial lock up he was sent back in the custody of police Such action, held, was not condonable and statement so recorded became very suspicious for the reason that it was not clearly shorn of influence, pressure, duress or coercion.
Mst. Bakhan v. The State P L D 1986 F S C 274 ref.
S.9(3) Retrial Conviction based on ineffective confession and circumstantial evidence Where there was no other evidence on the record and no request was made on behalf of the prosecution that some further evidence may be necessary to do justice in the case, Federal Shariat Court appreciated the entire material brought on record and held that no sentence of Hadd in Zina case could be imposed without the required four eye witnesses and in no case could it be based on circumstantial evidence When no eye witness of the occurrence was produced and there was no direct evidence of any sort on the record, and other circumstantial evidence referred by the prosecution did not show even the remotest involvement of the accused, prosecution failed to connect the accused in any way with the crime Order of conviction based on such evidence was thus bad in law.
S.6(3)(b) Allegation of Zina with dead body of a girl Evidence, appreciation of First informant, at time of lodging his report, neither suspected commission of offence of Zina nor clarified same .Investigating Officer and first informant did not call for medical examination of deceased victim Cause of arrest of accused was not explained but police record showed that accused was arrested on suspicion being a drug addict and wandered around the place of occurrence Prosecution witnesses saw accused wandering at place of occurrence with clothes smeared with earth before occurrence but neither his name was given in F.I.R. as one of suspects nor fact of his clothes smeared with, mentioned therein Missing shroud was not recovered from accused though as alleged he spent whole night at place of occurrence and allegation was that shroud was missing from corpse Recovery of Kassi disbelieved Accused stated to have committed Zina on date of his arrest but examined medically after three days Dead body of victim of Zina was also examined medically after three days of occurrence Confession was not reliable No other piece of evidence connected accused with crime Omission to take impressions of foot prints or finger prints from loose earth of graveyard or on "kassi" and corpse, affected adversely Fact that no dead cells were detected from swabs taken from glan, prepuce or the preneal area pointed to fact that sexual intercourse with dead body could not be attributed to accused Even an iota of evidence to involve accused not forthcoming Accused acquitted in circumstances.
S.103 Recovery Accused pointed out and got recovered "kassi four days after occurrence from an open space in grave yard Kassi did not belong to accused but it was alleged that he had picked up the same from graveyard Recovery disbelieved in circumstances.
Raja Muhammad Bashir for Appellant.
Muhammad Nawaz Abbasi, Assistant Advocate General and Muhammad Aslam Uns for the State.
Dr. Riazul Hassan Gilani, Deputy Attorney General, Iftikhar Hussain Ch. and Hafiz S.A. Rahman, Standing Counsel for Federal Government.
Hafiz S. A. Rahman for Government of Sind.
Muhammad Yaqoob Khan Yousafzai, Advocate General for Government of Baluchistan.
Mian Muhammad Ajmal, Asstt. Advocate General for Government of N.W.F.P.
Maulana Riazul Hassan Noori, Hafiz Salahuddin Yousaf, Mufti Ghulam Sarwar Qadri, Qazi Israrul Haq and Maulana Muhammad Amin Madni Jurjs-consults.
Dates of hearing: 13th, 14th, 16th and 17th December, 1987.
. The appellant Muhammad Naseer, aged about 20 years, has assailed through this Jail Appeal the order dated 4th of March, 1987, passed by Mr. Atta ul Mohsin, Additional Sessions Judge, Gujranwala, whereby he convicted him under section 6(3)(b) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to whipping numbering 100 stripes and death for the commission of Zina on the dead body of Mst. Farhat, aged 21 years which he had dug out from her grave. The trial Court has also sent up a reference under section 6(4) of the Ordinance VII of 1979 for confirmation of the sentences so awarded.
2. The occurrence took place on the night between the 11th and 12th of February, 1987, in Pir Mitha Graveyard, Wazirabad. Mst. Farhat had died after a long illness on the 11th of February, 1987. She was buried on the same day at about 11 00 p.m. in Pir Mitha graveyard. Next day at about 10 00 a.m., the first informant "Muhammad Hussain, father of Mst. Farhat received an information that corpse of his daughter was not in her grave. Consequently, he alongwith Muhammad Naseem Chughtai (not produced), Muhammad Naeem Chughtai (not produced) went to the graveyard and found naked dead body of his daughter lying at a distance under the cover of a wall. He, therefore, leaving behind his companions went to lodge the report at 11 50 a.m. It was complained that some unknown persons had desecrated the dead body of his daughter. Rana Mehrban, S. H. O. City Police Station, Wazirabad P.W.14, registered the case, went to the spot and prepared a site plan. He did not comment about the dead body and did not explain what sort of was alleged. No medical examination was conducted. It is in the evidence of Muhammad Hussain the first informant P.W.6 and his son Muhammad Shafique P. W.7 that the dead body was buried on the same day but the Investigating Officer said nothing as to what action was taken about the dead body.
3. It appears from the deposition of Muhammad Hussain, first informant, P.W.6 that he had found the dead body naked without a "kafan" along a wall at some distance from her grave. He then left his brother (he did not mention him in the F.I.R.), Nadeem and Naseem at the spot and went to the Police Station where he lodged the report. In his cross examination he stated that he had no suspicion as to who had dug up the grave of his daughter. Later, the Police informed him that they had arrested the real culprit.
4. Rana Mehrban Khan, S. I. City Wazirabad, who had registered the case and also investigated it stated that on the 14th of February, 1987, he had submitted an application to the District Magistrate for exhumation of the dead body of Mst. Farhat and after taking an order, he on the 15th of February while accompanied by a Magistrate had exhumed it. The only action that he took after the complaint was that he went to the spot and prepared the site plan Exh. P.O. Mst. Shagufta Shaheen, Woman Medical Officer, P.W.1 deposed that on the order of the District Magistrate, Gujranwala, she accompanied by Dr. Muhammad Arshad Chaudhry, Medical Officer, Wazirabad, went to Pir Mitha graveyard, Wazirabad, at 7 00 a.m.; on the 15th of February, 1987. Shaikh Saleem Iqbal, Magistrate 1st Class, Wazirabad, S. H.O. Rana Meharban Khan were also with them. Muhammad Hussain P.W.6, the father of the deceased girl and Muhammad Shafique her brother identified and pointed out the grave. The digging was started under the order of the Magistrate. The coffin was raised at 7 25 a.m., and was opened.
5. The complainant Muhammad Hussain P. W.6, father and Muhammad Shafique P.W.7 brother of the deceased girl identified the dead body. It was then handed over to her for detection of any rape. Her observations are as under:
"The body of a young girl. Pale yellow in appearance due to jaundice. The body was in a very early stage of decomposition. Rigor mortis had passed of. Post mortem stainings were present on dependent parts. Face was blue in colour. Decomposition had not yet started in the abdomen which is usually the earliest part to decompose. On examination of private parts, vagina admitted two fingers. The hymen was torn indicating that the sexual inter course had been committed with her. For detection of semen two swabs from vagina were taken and sent to the Chemical Examiner, Lahore for semen detection.
Exh. P.A., is the original MLR which is in my hand and signed by me. I had also handed over one sealed phial and one sealed packet to the Police.
As per reports of the Chemical Examiner Exh.P.B., and Exh.P.C.; the examinee, in my opinion was subjected to sexual intercourse after her death."
In her cross examination she stated that when the grave was dug, there was earth lying on it. The body was covered with "kafan" when it was taken out from the grave in her presence.
6. The prosecution had" examined 14 witnesses in all in support of its case. As stated above, the complainant Muhammad Hussain P.W.6 is the father of the deceased girl. According to him, he after finding out that the dead body was not in the graveyard and locating her in the cover of a wall left his companions (namely, his brother, Naeem and Naseem) at the spot and went to the Police Station to lodge the report. He, however, did not say as to when the dead body had been placed back after providing a fresh "Kafan". He also did not say if he came back to graveyard after lodging the report. Muhammad Naeem and Muhammad Naseem were not produced in the trial Court.
7. Muhammad Shafique P.W.7, aged 19, brother of the deceased girl and son of complainant P.W.6 testified to the burial of his sister on the 11th of February, 1987 at 11 00 p. m. He, however, had heard on the next day at 9/10 a.m. that dead body of his sister was lying outside the grave. He, therefore, reached the spot and saw that the dead body was lying naked without any "Kafan", along the wall in the open, at some distance from the grave. It is only he who stated that "at about 12 30 p.m., on the same day we buried the dead body and the police and Magistrate had not come by that time. Her dead body was again exhumed by the Magistrate on the 15th of February, 1987 and her dead body was medically examined." It may be noted here that his father Muhammad Hussain complainant had not mentioned his name as one of the persons who had visited the graveyard and located the body of Mst. Farhat lying near the wall. Muhammad Shafique P.W.7 on the other hand, had not mentioned the names of any other persons, who were with him at that time "or had helped him in the reburial. He did not talk even of the brother of his father or Naeem and Naseem who were left behind by his father before going to lodge the report.
8. Shagufta Shaheen P.W.1, is the Medical Officer, whose statement has already been referred to above. Dr. Manzoor Hussain P.W. 2, had only conducted the medical examination of the convict/appellant and found him fit to commit sexual intercourse. He had also taken six swabs. Three from the prepuse and glans and three from the perineal area were taken, dried at room temperature and sent to the Chemical Examiner for detection of semen and dead cells of the deceased. P.W.3 Muhammad Ramzan Head Constable, P.W.4 Muhammad Ashraf, A.S.I., Police Station City, Wazirabad, are formal Police witnesses about the safe keeping of the packets and the phials which were sent to the Chemical Examiner for analysis and report. Rana Meharban Khan, S.I., City Wazirabad, lodged the case and conducted investigation. Muhammad Saeed, P.W.8 stated that he saw the convict/appellant in the graveyard in the morning of 12th. He found him worried and upset and noticed that his clothes were smeared with earth. Pervaiz Shaukat P.W.9 deposed that the appellant had pointed in his presence the grave of Mst. Farhat from which he had dug out the dead body for the purpose of Zifa. According to him, the convict also led on the same .day, to the place where he had committed Zina on the dead body and to the recovery of "kassi" Exh. P.1. In his cross examination this witness stated that he had gone to the Police Station to see Rana Meharban Khan, S.H.O., and to enquire about the progress in this case and had found the convict in Police custody at that time. Jafar and Shafiq P.W.7 were also with him.
9. Muhammad Rafique P.W.10 is a grave digger, who dug the grave to exhume the dead body under the order of the Magistrate. The dead body was identified by the father of Mst. Forhat and was medically examined and buried back again. Muhammad Sadiq P.W.11, testified to have known the convict before the present occurrence. On the 12th of February, 1987 he had gone out for walk at 6 30 a.m., with Saeed P.W.8 when they saw the accused coming from the deserted mosque in the graveyard in upset condition. According to him, the convict was notorious for his bad deeds. He was addicted to narcotics and also used to commit sexual intercourse with animals and other persons. One time had caught a girl from inside her house for that purpose. In his cross examination this witness stated that he had not registered any case against the accused and did not know if he was a previous convict.
10. Shaikh Salim Iqbal, Resident Magistrate Wazirabad, P. W.12 stated that on the 15th of February, 1987, he under the order of the District Magistrate and alongwith S.H.O., Meharban Khan P. W.14, Dr. Muhammad Ashraf, Miss Shagufta Shaheen, Woman Medical Officer, Wazirabad P.W.1," Muhammad Hussain (complainant) P.W.6 and Muhammad Shafique P.W.7 were present in the Pir Mitha graveyard, Wazirabad. He then asked Muhammad Rafique P.W. to dig the grave from which dead body was taken out. Muhammad Hussain P.W.6 and Muhammad Shafique P.W.7 identified the same as dead body of Mst. Farhat. He then handed it over to Woman Medical Officer for medical examination and it was reburied after the needful was done, in the same grave, in his supervision. He further stated that he had recorded the statements under section 164, Cr.P.C. of Pervaiz Shaukat and Jafar Hussain on an application submitted by Rana Meharban Khan, S.I. "Malik Muhammad Bakhsh, Magistrate Ist Class, P.W.13 appeared to state that he had recorded the confessional statement of the accused under section 164, Cr.P.C.
11. The convict in his statement under section 342, Cr.P.C. denied the entire prosecution case set up against him. He also denied to have made a confessional statement, before the Magistrate and stated that the Magistrate had obtained his thumb impression on a blank. paper. He, however, admitted that he was medically examined but did not know if any swabs had been taken from" the vagina of Mst. "Farhat or that they were stained with semen. With regard to his apprehension he stated that he was arrested from the Dera of Sain Acchoo at Sohdara. While explaining as to why the case against him he stated that "I have been falsely involved in this case by the I.O. The P.Ws. had no enmity with me. They deposed against me at the instance of the Police."
12. He also appeared as his own witness under section 340(2), Cr.P.C. and deposed that he was innocent and had been falsely involved. In his cross examination he stated that he did not know Shafique P.W. or Mst. Farhat. He also denied that he loved her or that he had a motive to commit the offence after her death as he could not find an opportunity during her lifetime. He denied the confession of the guilt and stated that he was arrested from Sohdara. He also denied taking "Bhang", heroin, opium or any other intoxicant. He admitted that there was a Dera in Pir Mitha graveyard where people from the city used to go for taking "Bhang" but he used to take "Bhang" from Dera Mehdi Shah and never went to Dera of Shedu to take "Bhang". He also denied any recovery of "Bhang" as attributed to him. He also denied the suggestion that he was not tortured or that he had not shown any marks of violence to the Medical Officer. He denied his confessional statement but admitted that he had thumb marked the statement Exh. P.N. He further stated that "It is correct that due to this incident there was great resentment and processions of the public against me and the Police shifted me from Wazirabad to Gujranwala, in order to save my life". He denied that he led to the recovery of "kassi" or that he was making a false statement.
13. The learned trial Court after considering the evidence on the record and other legal objections held that:
(1) The sexual intercourse with the dead body of woman by a man falls within the definition of Zina.
(2) The accused had made a confessional statement before a competent Magistrate voluntarily and he had recorded this in accordance with the law and that it can be used as an evidence against him.
(3) It is not necessary that the statements be recorded before the Court of competent jurisdiction and that a statement recorded by a Magistrate under section 164, Cr.P.C., could be used as evidence.
(4) The accused cannot take the benefit of retracted confession at that stage.
(5) The sentence of Hadd must be awarded on the basis of the confession made by the accused as provided under section "8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
The trial Court further found that the accused had committed the offence under section 6 and as he being not Mohsin his case fell under subsection 3(b) of section 6 making him liable for the punishment of whipping numbering 100 stripes at a public place and the sentence of death by hanging by his neck till he was dead.
14. The first point arising in the case is whether carnal intercourse with a corpse can be termed as Zina so as to fall within its statutory definition as given in section 4. It reads as under:
"A man and a woman are said to commit " Zina" if they wilfully have sexual intercourse without being validly married to each other. "
Section 6 which defines Zina bil jabr is as follows:
"6. (1) A person is said to commit Zina bil jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:
(a) against the will of the victim,
(b) without the consent of the victim,
(c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of heart, or
(d) ....................
Penetration is sufficient to constitute to sexual intercourse necessary to the offence of Zina bil jabr.
(2) Zina bil jabr is Zina bil jabr liable to Hadd if it is committed in the circumstances specified in subsection (1) of section 5 ..............Section 5(1) reads as under:
(a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married, or
(b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be, married.
15. As this was an important legal question we requested a number of "Ulema" and Juris-consults to assist us in its determination and we are thankful to Maulana Salahuddin Yusuf, Maulana Riazul Hassan Noori, Maulana Mufti Ghulam Sarwar Qadri, Maulana Muhammad Amin Madni and Maulana Qazi Israrul Haq who came well prepared and rendered valuable assistance. We also heard the learned counsel for all the Provincial Governments as also the Federal Government who appeared to enlighten us on the point. The views of the "Ulema" and Juris-consults be summed up briefly as follows:
16. According to Maulana Salahuddin Yusuf the definition of Zina as adopted by the "Hanafi Fuqaha", does not bring the commission of the offence of sexual intercourse with a dead woman, within the ambit of Zina. He, however, suggests that this is a very heinous crime and that even death penalty may be awarded by way of "taazir". The Maliki, Shale, and Hanbli Jurists including Imam Auzai however, treated it as Zina and are of the view to impose Hadd penalty on the perpetrator. He had relied on ( ) Volume V, page 247, Volume VII, page 33, Volume II, page 433, ( ), Volume III, page 269, ( ), Volume X page 152. Maulana Riazul Hassan Noori narrated the Hanafi view but urged that Hadd penalty should be provided for such offences. He relied on al Muhalla, Volume XI, page 308 and al Modawwana, Volume VI, page 298 to state that Zina bil jabr is "Haraba" and sentence for it under "taazir" can be more than what is under Hadd and was cited in support. Maulana Muhammad Amin Madni and Maulana Mufti Ghulam Sarwar Qadri, however, opined that it was not Zina and punishment by way of "taazir" can only be imposed. Maulana Muhammad Amin Madni relied on, Volume IV, page 407, Al Islam Aqidat wal Shariat page 293 in justifying the sentence of death for such a crime. Maulana Salahuddin Yusuf had relied on Volume IV, page 74, Volume III, pages 152, 153. pages 114, 115, pages 106, 107, Volume I, page 688 supporting the above view. Maulana Muhammad Amin Madni had relied on Volume II, page 592, Volume I, page 688 and page 239. Maulana Riazul Hassan Noori, had relied for the same view on page 134. Maulana Salahuddin Yusuf further stated that according to some jurists, the punishment of Hadd and taazir can be combined in certain cases. His reliance was on ( ) w Volume X, page 184 Volume II, page 354, Volume III page 173, Volume VII, page 39. All the jurists are also agreed that the Hadd sentence can neither be imposed nor enforced if the confession had been retracted. However, according to them, the sentence under taazir will not become inoperative and even confession for once is sufficient for it. Maulana Qazi Israrul Haq opined that in order to impose the sentence of Hadd the confession should be made four times in four different meetings an cited Volume II page 653.
17. The contention of the learned counsel for the appellant was that the words "man and woman" in section 4 refer to living human beings and not a corpse or dead ones. He also referred to section 6 to say that emphasis having been placed on consent means that the victim is living being so as to withhold or refuse the same. It is argued that the facts of the case neither fall under section 297 of the P.P.C., nor under the provisions of the Ordinance, VII of 1979 or any other statutory law and so no Court had the jurisdiction to try and punish the appellant.
18. The question whether the offence falls under the P.P.C., or under any other law will be discussed .a little later. However, as argued by the learned Advocate General Sind and supported by the Assistant Advocate General, Punjab, Mr. Abbasi and the AdvocateGeneral, N.W.F.P. it is not correct that if the statutory law does not include an offence, it would mean that that act would go unpunished even if it was an offence under the Muslim Law. According to them the entire body of the Muslim Law has become now a part of the law" of this country, as existing law and so if an offence falls even thereunder the principal Courts of the country shall be entitled to try it. It is to be noted that it is nowhere given as conferring validity only to such laws which are duly enacted in codified form by the competent legislature. Rather, the entire body of Muslim Personal Law and even laws of the other religions and customs which were never codified became part of the existing law by virtue of sections 5 and 6 of the Punjab Laws Act, 1872, which read as under:
5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be
(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority;
(b) the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to.
"6. In cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience."
19. The custom in certain cases and Muslim Personal Law in others, which we find in codified forms, in various books, like Customary Law by Rattigan and Mohammadan Law by Mulla, were never codified by any legislature yet they were applied to all the issues of custom and Muslim Personal Law. In fact these codifications were made by private people from the available customary practices, decided cases of personal law as revealed by Quran and Sunnah or laid down by Muslim Jurists. It may be interesting to record here that though the Muslim Personal law had the Divine source for it, the Parliament of England has throughout been recognising the Common Law as the Law of the land though it was developed in a vacuum by the Courts and the Jurists and was never enacted or codified by the Parliament.
20. In Pakistan just after the partition of the Sub Continent the first such law (Act IX of 1948) was made in 1948 providing in section 2 that "Notwithstanding any custom or usage to the contrary, in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endowments, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." The legislature did not codify any of those laws and left it to the people to arrange their affairs accordingly and to the Courts to decide any disputes that may arise therein in accord with Quran and Sunnah. A similar law (Act W.P. V of 1962) was made in 1962, section 2 of which is as under:
"S.2. Notwithstanding any custom or usage, in all questions regarding" succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy, or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims."
21. So just a provision by the ordinary competent legislature made an un-codified law applicable to all matters mentioned therein and it was left to the people or the Courts to identify, dig out and apply that law. Now the entire field of Muslim Law has been made applicable, not by any ordinary law, but by the Constitution itself, as per Article 2 A, enforced with effect from 3rd of March, 1985. The relevant portion of the Article 2 A is reproduced below for reference:
Article 2 A. Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which he has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;
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"Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah."
The result is that previously the ordinary legislature, without specifically enacting the custom or the usage and bits of personal law, in detail, and in codified enactments, made them part of the law of land and it is more than a century that not only no objection was raised by any one; rather, the wheel of life of the community was kept going by those precepts smoothly and peaceably. Now in 1985, it is the entire body of Muslim Law which has been enforced and so no objection is due for lack of it being in the form of codified enactment, to make it the Existing Law of Pakistan. In fact the Sind High Court in the Bank of Oman case P L D 1987 Kar. 404,and Mirza Qamar Raza case P L D 1988 Kar. 169 not only applied the un-codified
Muslim Law as in Quran and Sunnah but declared the laws made by the State legislature as void due to their repugnancy.
22. It is true as observed by the trial Court, that "Man" and "Woman" are not defined in Ordinance VII of 1979 but the learned counsel relied on section 10 of the P.P. C. which defines them as under:
"The word "man" denotes a male human being of any age; the word "woman" denotes a female human being of any age."
Emphasis by the learned counsel for the appellant is being placed on the word "being" to say that it denotes the state of being alive. This section, however, will not apply here as section 19 of the Ordinance VII, of 1979 expressly makes applicable only sections 34 to 38 of Chapter II, sections 6,1 to 72 of Chapter III and Chapter V and VA of the P.P.C., to, the Ordinance VII of 1979. But as we are dealing with a Hudood case we have to get assistance for interpretation from the Muslim Law and no other law.
23. Consequently, in order to know whether the words "man" and "woman" as given in sections 3 and 7 of the Ordinance VII of 1979 can include dead persons also, we have to refer to Quran and Sunnah. In verse 42 of Surah 39 (Al Zumr) of Quran the dead person is equated with one who is asleep. It states "It is Allah that takes the souls (of humans) at death and those that die not during their sleep. Those on whom He passed the decree of death He keeps back but the rest He sends (to their bodies) for a time appointed. The same position is stated in verse 60 of Surah Al Anaam to say "And it is He that makes you dead by night knowing what you have done by day and then rouses you so that an ordained term (of life) may be fulfilled . . . . . . "
24. Both these verses do go to show that duration of sleep is a period of temporary death, Now if sexual intercourse is done with a woman who is asleep or is unconscious it will undeniably amount to Zina by the man if the act answered the requirements of sections 3 and 6 of the Ordinance VII of 1979. Please see Al Mabsoot (Al Sarakhsi) Volume V, page 54. Reference be also made to the view of Imam Abu Hanifa and his disciples as quoted in Al Tashree al Jinai Volume II, pages 357 35 8. It is stated on their behalf that if a sane adult man has intercourse with an insane woman or a minor child who is fit, for the purpose, the man is liable to Hadd. The good reason advanced is that it is the act of the subject and capability of the object for it, that determines the liability of the subject, for, undoubtedly the object who is infant, insane, asleep etc., will not be liable in such circumstances. Similar, is the view of Imam Maalik, Imam Shafii and one faction of Hanblies. As about the sleeping object Ibne Qudama has quoted a Tradition at page 190 of al Mughni Volume X 108 (Ed.1972) that only the sleeping man and woman will not be liable. The reason is that in such a state the sleeping object could neither show willingness nor give consent due to sleep, insanity unconsciousness or minority and so cannot be held liable. The general rule as given in Tabeen ul-Haqaiq by al Zaili Vol. III, page 184 is that if one of the parties was for any reason, incapable or not free to act such as insane, infant, asleep, or under duress or coercion no liability will attach to him or her and only the other active party will be liable. It is further stated therein that if the inactive agent is a female then only she will not be liable but if the inactive agent is a male both will be saved from the Hadd punishment. See also (Al Mohazzib Vol. II, p.268, Al Bahrur Raiq Vol. V, p.20, Hashial Tahtavi Alad Durrul-Mukhtar Vol. II p.398 (Raddul Mukhtar). So, for the purposes of the case before us it cannot be denied that if a person satisfies his lust on a dead body he can be held guilty of Zina bil jabr as defined in section 6 of the Ordinance VII of 1979.
25. It is true that when a person dies he or she severs all the concern and connection with this world. His property immediately devolves on the heirs and any marital relation is snapped. The personal claims lapse while the financial stand transferred. He, however, takes his unpaid debts, his deeds and the body with him. It is reported in Volume I, page 766 that a sinner on a bier says do not take me away while pious one says take me away fast and this plea is heard by all the living beings except man. At page 776, it is narrated that the dead person hears the footsteps of those who leave him after burial. It is also reported at page 751, that sinners suffer torment in the grave. These facts also go to support that a dead person has feelings though living cannot communicate with him. Man remains a man from birth to his resurrection as given in verses 18 to 22 of Chapter LXXX (Albasa). Again, it is reported from Aisha that the Holy Prophet equated breaking of a bone of a dead body with that of breaking o a bone of a living person (Abu Daud Kitab al Janaiz page 458). Imam Syuti reports from Jabir that he and others were waiting in a graveyard for burial when they saw bones of calf and arm. They intended to break, on which the Holy Prophet observed as stated above. Imam Tayyabi reports from Ibne Masud that the dead body should not be desecrated as this is as prohibited as an act of insulting or degrading the living. Reference be made to Ibne Maja Vol. I, p.421. Thus, if the breaking of bones of a dead body is equated with the same act in respect of live people then why sexual intercourse with a dead body cannot be equated with a similar act to a living body.
26. We have already stated in para. 16 above that Malki, Shafii and Hanbli jurists as also Imam Auzai treat sexual intercourse with a dead body as Zina. There is a counter view of Hanfis only but that too is divided. See Fatawa Qazi Khan Vol. III, page 469. Abdul Aziz Amir in his book (as translated by Syed Maaroof Sherazi (Al Bahar, Publication Lahore) pages 25, 254 quotes from Vol. VII, pages 23, 24, Fathul Qadeer Vol. V pages 30 31 and Fatawa Alamgiri Vol. II, page 143 that according to Imam Abu Hanifa Zina can be committed only with a live woman. Here the Imam does not employ the same reason of the insane woman or a minor child as already referred to in para. 24 above though it was equally applicable. The reason as reported from him for this view is that the tissues or parts of a dead body are also dead or lifeless and so the intercourse with it means as if nothing happened. Further, it is argued there that it is an abhorable and detestable act which is abnoxious to the human mind and that it exhorts no animal lust.
27. This argument, however, is not as impressive as the one quoted in para. 24 above. According to Hanafis Zina is defined as sexual intercourse by a man through the vagina of a woman who is not married to him. (See Sharah Fatah al Qadeer Vol. IV, page 138, al Bahar ur Rahiq Vol. V, page 3, Al Badai as Sanai Vol. VII, page 33). The essential requirements are that there should be penetration of the male organ of a male into the female organ of a female with the intention of committing sexual intercourse. The object thus, must be the private part of a female of human specie. So such an act with animals or other devices cannot be called Zina. However, the private part of an infant, insane or an unconscious or sleeping woman cannot be given a different name. It is thus, Zina. But such acts with dead bodies, insane or sleeping women or minors can be committed only by perverts or sex maniacs. Their animal lust reaches such a height and it compels them so much that they crazily go for any object to satisfy or quench it. Their state of mind is quite the reverse of what is being argued. Such persons could be defended on the ground that they are mentally sick, as is done in the West, but not on the ground that it is impossible for a man to commit such a crime. The mere fact that such men have been using animals and corpses for such purpose would negate the argument. It may be mentioned here that the Muslim Jurists looked to the state of mind of the perpetrator of the act which matters in the offence and not that the state of the object. (See al Mabsoot ibid). Further Quran makes no such distinction and rather the above quoted three verses and other precedents show support for the liability. In any case, such abhorable and detestable acts need more attention to be curbed.
28. The other contention that the act done neither fell within the ordinary law nor the Ordinance VII of 1979 has also no merit. Firstly, the P.P.C. has section 297; which would cover it, if no other provision or special law is there to take care of it. However, as discussed above in detail, the definition of Zina as given in. section 4 of the Ordinance VH of 1979 and provision of section 6 do cover the offence committed against the dead body. Particular reference may be made to clauses (a) and (b) of section 6(1). Clause (a) is against the will of the victim whereas clause (b) is without the consent. The will be expressed by a competent and conscious person whereas without consent may mean where one may not be in a position to give consent. The trial Court even charged the appellant under section 297, and sections 5 and 6 of the Ordinance VII of 1979. At any event, there is nothing on record as also the law to show that offence in question could never fall under the Ordinance VII of 1979. Again, in case of doubt or where it is probable the offence may fall under the Hudood law and not the ordinary law, and the trial shall always be conducted and if need be conviction recorded in view of first proviso to section 20 of Ordinance VII of 1979 by the Hudood Court. It is also necessary for the reason that in case the trial Court convicts under the ordinary law the appeal must go to the Federal Shariat Court as only it would be able to convict under both the situations while the High Court shall have to return the case to be dealt with by the Federal Shariat Court, if it comes to the conclusion that it was a case under Ordinance VII of 1979. Further it may bring in contradictory results if appeal against conviction filed before a High Court is accepted as also a revision before the Federal Shariaj Court for enhancement. It is thus the intention of law that if "there to even a slight doubt the case must be tried as a Hudood case, as it is an exclusive jurisdiction.
29. There is thus no merit in any of the technical objections. We, therefore, proceed to consider the appeal on its merit. The learned trial Court has based its decision exclusively on the confession of the appellant though it has noted the arguments of the learned counsel on the other evidence which is mostly circumstantial. It held in para. 14 that "in view of above discussion, I have come to the conclusion, on the basis of confession made by the accused the Hadood can be imposed as provided in section 8(A) ibid." It further held in para. 11 that "Thus I hold that the accused had made confessional statement before a Magistrate voluntarily who was competent to record it ........therefore it can be used as an evidence against him." He also accepted the argument of the District Attorney as mentioned in para. 13 that the confession made voluntarily must be used against an accused and the question of retraction appears only to save him from the Hadd sentence later. The learned trial Court, however, avoided to consider the question whether the confession was made before a Court of competent jurisdiction.
30. The view taken by the learned trial Court that the confession once made has to be used as an evidence and that conviction and sentence must be recorded is not correct absolutely as it must fulfil certain conditions before carrying that effect. As stated somewhere above, there is no disagreement among the jurists on the point that if the confession is retracted before the passing of the order, the sentence of Hadd shall not be imposed. See Fatawa Alamgiri (Qanuni Kutab Khana, Lahore Volume III, page 257, al Hi"daya Volume II, page 488. So, confession, in order to be effective, must not have been retracted. Again, if it is retracted before the execution of the Hadd sentence, the sentence shall not be executed. The retraction, if it comes at any time during the enforcement of Hadd, the unexecuted part of the sentence shall be stayed. We also refer in this connection to section 9 which provides that in a case in which the offence of Zina or Zina bil jabr is proved only by the confession of the convict, Hadd, or such part of it as is yet to be enforced, shall not be enforced if the convict retracts his confession before the Hadd or such part is enforced. This section presupposes that the confession subsisted and was not withdrawn till the offence was proved from it. It may mean conversely that if it was withdrawn it could not have been acted upon in proof of the offence.
31. Subsection (3) of section 9 further provides that in a case where the offence is proved only by confession of the convict and the sentence or any part of it as is yet to be enforced, the Court may order retrial. This provision makes it quite clear that the confession remains as evidence against the accused only for such time as it has not been retracted. However, the moment it is retracted the Court even if has passed Hadd sentence, it may either acquit or order retrial. Consequently, if the retraction is made before the announcement of the judgment, the trial Court shall not rely exclusively on the confession of convict and may either decide the case on the other evidence provided or it may order retrial as laid down in subsection (4) of section 9. The view taken by the trial Court is, therefore, neither in accord with the statutory law nor does it conform with the views of the Muslim Jurists on this point.
32. It may further be noted that confession, in a case of Zina, for the purpose of Hadd sentence, must be made four times in four different meetings and the accused should be free from any outside influence, pressure, coercion or duress. It means that the confession must be independent and should be made because of the fear of Allah and the Hereafter, in order to purge him of the effect of the offence. See page 200 of "Hadood o Taazirat" published by Islamic Research Institute, Islamabad. The section 8(a) of the Ordinance VII of 1979 further provides that it must be made before a Court of competent jurisdiction. Exactly, the same is the view taken by Muslim Jurists on the point.
An extra judicial confession, therefore, is not to be taken as confession but just a statement of the witness that he heard the accused saying that he had committed the offence. Such an evidence must be corroborated by other evidence and circumstances of the case if it is to be considered .to impose tazir punishment. However, if a confession is against the circumstantial evidence it will not apply to impose Hadd sentence.
33. The learned trial Court, however, did not go into the question as to which is the Court of competent jurisdiction in such a case. He left this point just by saying that this provision is not defined in the Ordinance VII of 1979. A reference to section 20 of this Ordinance shows that the Code of Criminal Procedure applies mutatis mutandis, in respect of cases under this Ordinance. Section 403 of the Code" speaks of the term, Court of competent jurisdiction. The term has also been used in various other Codes. In this view of the matter, the trial Court must have applied its mind to see whether the confession before a Magistrate was made in the Court of competent jurisdiction or not. Black"s Law Dictionary (Vth Edition) says that the Court of competent jurisdiction is the one which has power and authority of law at the time of acting to do the particular act or the one having jurisdiction under the Constitution and or laws to determine the question in controversy. Stroud"s Judicial Dictionary (IV Edition) says that a metropolis Magistrate was a Court of competent jurisdiction within the meaning of Metropolitan Management Amendment Act, 1890 for the purpose of recovery by a Borough Council of the expenses or repair of a road not repairable by the residents at large.
34. The Words and Phrases (Permanent Edition) Volume VIII page 356 states that State, Circuit and Chancery Courts were Courts of competent jurisdiction to adjudicate suits against Federal Public Housing Authority under Contract Settlement Act authorising suit before any competent jurisdiction. It further states that the term signifies Courts of general jurisdiction whether federal state or territorial. The Words and Phrases (Permanent Edition) Volume VIII page 353 also mentions competent Courts to say that it is Court either civil or criminal having lawful jurisdiction. The Law Terms and Phrases (P L D Edition) refers to P L D 1951 page 430 for the meaning of the term. In that case S.A. Rahman the then Judge of the Lahore High Court had opined that where a trial was unsupported by the sanction of the competent authority it could not be said that the accused was tried by a Court of competent jurisdiction. The consensus thus is that it is a Court which can determine the case or the controversy involved.
35. Section 164, Cr.P.C., under which the statement of the accused was recorded before a Magistrate in this case as a confession, lays down that any Magistrate of the 1st class and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial. It will thus be seen the Magistrate acting under this section may not be a Court in respect of the case. That Magistrate, therefore, cannot be called a Court of competent jurisdiction. This view is supported by section, 364(1) Cr.P.C., which says that whenever the accused is examined by any Magistrate or Court other than a High Court the whole of such examination, including every question put to him and every answer given by him, shall be recorded in---------------The distinction made here between the Magistrate and Court is quite significant.
36. As said above, the confession to be effective in respect of Ordinance VII of 1979 must be recorded not by any Magistrate or a Court but by a Court of competent jurisdiction. Thus whenever the law says that the Court of competent jurisdiction it will mean that the Court competent to try and not any other Court or any Magistrate. It will be seen that trial of the offence of Zina has to be undertaken only by a Sessions Court as laid down in the second proviso to section 20 of the Ordinance VII of 1979 and the jurisdiction of a Magistrate has been expressly excluded. Any statement before al Magistrate, therefore, is not a confession under section 8(a) of the Ordinance VII of 1979 and therefore, has no legal effect.
37. It must further be appreciated that the accused had denied even the charge against him before the trial began. He also denied the allegations made against him by the witnesses, in his statement under section 342, Cr.P.C., and made a sworn statement to that effect under section 340(2) Cr.P.C. He, therefore, had not confessed the commission of offence before the Court of competent jurisdiction. He rather categorically denied having made a confessional statement before the Magistrate, P.W. 13. There was thus no confession as such. Some other evidence had also been led before the trial Court but the trial Court did not mention the same though it was brought to his notice by the District Attorney. He instead relied on the confession which was non existing in the eyes of law. The impugned order is thus an order based on no evidence.
38. Further, the confession to be relied on for the purpose of awarding Hadd sentence for Zina must be made four times in four different meetings as held in the case of Mst. Bakhan v. The State (P L D 1986 F.S.C. 274). The statement made under section 164 Cr.P.C., before .the Magistrate was made only once and instead of sending the accused to the judicial lock up he was sent back in the custody of the police. Such an action is not condonable even under the ordinary law and the statements so recorded become very suspicious for the reason that it was not clearly shorn of influence, pressure, duress or coercion.
39. Normally, a case of this nature would have been sent back for retrial as provided in section 9(3) of the Ordinance VII of 1979. However, as there is other evidence on the record and as no request had been made on behalf of the prosecution that some further evidence, may be necessary to do justice in the case, we have ourselves appreciated the entire material brought on the record. It may be noted first of all that no sentence of "Hadd" in a Zina case can be imposed without the required four eye witnesses and in no case can it be based on circumstantial evidence. Admittedly, there are no eye witnesses of the occurrence and there is no direct evidence of any sort on the record. The impugned order is thus bad in law. The other circumstantial evidence referred to by the State counsel does not show even the remotest involvement of the appellant. We have, therefore, come to the conclusion, as detailed below, that the prosecution failed to connect the accused, in any way with the crime.
40. It appears from the tenor and wording of the F.I.R. and the subsequent events that the first informant at the time of lodging his report either did not suspect the commission of the offence of Zina or did not clarify it. The words used by him in this regard are Rana Mehrban Khan Sub Inspector who had investigated the case went to the spot, prepared the site plan Exh. PO but neither he nor did the first informant call for medical examination. Rather, the first informant declined the suggestion of the S. H. O., and applied for the reburial of the dead body without medical examination. The word has also not been explained by any circumstance till after the accused was arrested. It may have reference to act of ( ). The cause of his arrest also is not explained but the police record shows that he was arrested on a suspicion that he was a drug addict and wandered around in the graveyard. Muhammad Shafique P. W.7 (brother of the victim girl) saw him wandering there in the premises of the graveyard on the night of burial yet his name was not given in the F.I.R., as one of the suspects. Muhammad Saeed P.W.8 saw the accused next day at 6.30 a.m., while coming out of a deserted mosque in the graveyard with clothes smeared with earth while the F.I.R., was lodged at 11.30 a.m. Muhammad Saeed was accompanied by Muhammad Sadiq P.W.11 but he did not mention the clothes smeared with earth. Be that as it may, how can it be said that if a man is seen coming out of a deserted mosque in a graveyard with clothes besmeared with earth he must have committed Zina with that dead body. In any case, if the accused had spent the night in a deserted mosque it should not be surprising that his clothes were smeared with earth as distinguished from mud which would have covered the fresh grave, normally. Again the allegation was that the shroud ( ) was also found missing from the corpse when it was found outside the grave. This shroud ( ) was not recovered and if the accused spent the whole night in the graveyard it could not have disappeared. Further, if the accused had committed the offence or suffered fear after the detestable act why should he stay in the same graveyard for the whole night.
41. Next is the evidence of recovery of "kassi" and pointation by the accused of the grave and the place where he committed the offence. This was done in the presence of Pervez Shaukat P. W.9 who was joined in the investigation after he went to Rana Mehrban Khan S. H. O. P. W.14 to inquire about the progress of this case. This witness, however, did not disclose his interest in the case. The occurrence took place on the night between 11th and 12th. The accused was arrested on the 13th. He pointed out and got recovered "kassi" on 15th from an open space in the graveyard. The "kassi" did not belong to the accused and he had picked up the same from the graveyard. It is thus strange that it kept lying there for 4 days. The next pieces of evidence are the reports of Chemical Examiner in respect of the samples taken by Dr. Shagufta Shaheen P. W.1 and Dr. Manzoor Hussain P.W.2. The reports state that the vaginal swabs were stained with semen (Ex. P.B) as also the swabs from prepuce, glans and perineal area of the accused. No vaginal ephithilial cells were, however, detected. It is to be noted that the occurrence had taken place on the night between 11th and 12th, the dead body was medically examined on 15th while the accused on 16th February, 1987.
42. The accused was arrested on 13th. According to the case diary he had stated on the same date that he had committed Zina on the dead body but he was not medically examined. The dead body was also not medically examined on the 12th when it was discovered as having been taken out of the grave. There is nothing on the record to show why and on whose information or suspicion, the accused was arrested. The Investigating Officer, Meharban Khan, P. W.14 stated in cross examination that he arrested appellant on his previous record which was not disclosed. The appellant remained in Police custody for two days after which he was produced on 15th February, 1987 for getting his statement recorded under section 164, Cr.P.C., but the whole thing was over within half an hour from 4.00 to 4.30 p.m. He was thereafter returned to Police custody instead of judicial lock up.
43. The upshot of the whole discussion is that the confession was neither admissible in evidence nor could that statement be termed so. Further, whatever its nature it has been retracted and disowned. It thus could not have been relied upon. No other piece of evidence connects the appellant with the crime. The mere suspicion cannot take the place of proof. The omission on the part of the prosecution to take impressions of foot prints or finger prints from the loose earth of the grave or on the "kassi" and the corpse would also affect adversely. The fact that no dead cells were detected from the swabs taken from the glans, prepuce or the preneal area also point out to the fact that the sexual intercourse with the dead body could not be attributed to the appellant. There is thus not even an iota of evidence to involve the appellant in the commission of the crime.
44. The result is that this appeal succeeds. The appellant is acquitted of the charges against him and it is directed that he will be released forthwith unless he is wanted in some other case. The reference sent up to this Court by the trial Court is also answered accordingly.
The death sentence is not confirmed.
M.B.A. /409/F.Sh. Appeal accepted.
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