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Petitioner: Syed SAEED MUHAMMAD SHAH and anothers VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Mamoon Kazi, Haziqul Khairi Title: Syed SAEED MUHAMMAD SHAH and anothers vs THE STATE Case No.: Criminal Appeals Nos.15 and 16 of 1992 Date of Judgment:1992-12-16 Reported As: 1993 SCMR 550 Result: Appeals allowed
JUDGMENT
JUDGMENT ' SAJJAD ALI SHAH, J.---Above-captioned two appeals are filed under section 13 of the Special Courts for Speedy Trials Act, 1992, calling in question judgment dated 23-11-1992 of the Special Court for Speedy Trials, Tando Muhammad Khan, whereby Special Case No,1 of 1992 is disposed of convicting appellant Syed Saeed Muhammad Shah under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979 (to be referred hereafter as the Zina Ordinance) and sentencing him to R.I. For 15 years and 30 stripes. Appellant Khuda Bakhsh Sheedi having been found guilty of abetting the offence committed by Saeed Muhammad Shah is convicted for offence under section 10(3) of the Zina Ordinance read with section 109/34 P.P.C. And is sentenced to R.I. For 3 years. Both appellants have been absolved of charges under section 11/12 of the Zina Ordinance and offences under sections 342, 336, 504 and 323, P.P.C. Since impugned judgment and evidence recorded is common, we propose to dispose of both these appeals by single judgment. 2. Briefly stated the relevant facts giving rise to these appeals are that as per the case of the prosecution Mst. Sahiba aged about 12 years daughter of complainant Jaffer was raped twice by appellant Saeed Muhammad Shah on 10-10-1992 at about 3-00 p.m. In the old and abandoned school building situate in the land of Syed Zulfiqar Ali Shah at Jarra canal in Dch Dhandli. Appellant Khuda Bakhsh alias Khudoo Sheedi, who is servant of Saeed Muhammad Shah was instrumental in bringing Mst. Sahiba and her mother and father to the scene of offence by overawing them with threats and stood guard with hatchet in his hand outside the room while rape was carried on. Rape took place while mother and father of Mst. Sahiba were kept at bay under the tree near the spot by appellant Khudoo Sheedi. After the rape Mst. Sahiba and her parents were sent in a vehicle and left outside Saeedpur town. They went to their house and in the morning apprised Saleh Mirbahar,
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Achar Patel and Hassan Mirbahar and others who informed Syed Qabool Muhammad Shah on telephone who advised to lodge complaint with police. On 11-10-1992 at 19 hours (7-00 p.m.) complainant Jaffer lodged report at Police Station Tando Muhammad Khan which was registered as report in Crime No,115 of 1992. Complainant was not satisfied with this report for the reason that according to him name of Saeed Muhammad Shah as rapist was not mentioned in it by the police and it was recorded therein that Khuda Bakhsh Sheedi and one other unknown man had committed rape with Mst. Sahiba. Secondly, jungle was shown as place of rape. Clothes of Mst. Sahiba were recovered and she was referred to the hospital for medical examination. Not satisfied with the report complainant complained to high officers of the police and with their help was able to file second F.I.R. 3. D.S.P. Noor Ali Mari of C.IA. Deposed before the trial Court that on 14-10-1992 on the direction of S.S.P., Hyderabad, he recorded fresh F.I.R. In accordance with information given by complainant Jaffer. He did so and made such entry in the station diary. He forwarded that station diary to S.H.O. P.S. Bulri Karim Shah for incorporating it in 154, Cr.P.C. Register and in the result F.I.R. No,71 of 1992 was registered. He sent Mst. Sahiba for medical examination. He arrested Khuda Bakhsh who was already in lock-up and Saeed Muhammad Shah. He visited abandoned school where rape was committed as claimed by the complainant and prepared such Mashirnama. He recorded 161, Cr.P.C. Statements of P.Ws. Hassan, Haji, Saleh, Mst. Basra (mother of victim) and Achar Patel. He made recovery of clothes of Mst. Sahiba which were already sealed in the investigation of previous F.I.R. The packet was opened in front of complainant who identified the clothes and then resealed. He filed case against D.S.P. Qamaruddin and S.H.O. Younus of P.S. Tando Muhammad Khan for recording incorrect F.I.R. He got recorded statements of witnesses under section 164, Cr.P.C. On 18- 10-1992 he handed over investigation to Crime Branch. D.S.P. Mian Masud Hayat of Crime Branch, Karachi, took over investigation on 18-10-1992 and produced Saeed Muhammad Shah before the doctor in L.M.C. Hospital, Hyderabad for examination and it was reported that he was fit to commit sexual intercourse. D.S.P. Further caught hold of drivers of Suzuki Pick-up and private taxi used in the commission of crime and recorded statements of drivers Muhammad Khan and Bholoo. After transfer of this D.S.P., investigation was taken over by D.S.P. Nizamuddin of Crime Branch who brought appellants to Karachi and got 164, Cr.P.C. Statements of Mst. Sahiba and complainant Jaffer recorded through A.C.M. At Karachi in presence of the appellants. After completion all steps in the investigation, challan was presented. 4. In the trial Court prosecution examined 16 witnesses in support of its case. P.W.1 is Jaffer complainant and P.W.2 is Mst. Sahiba, who is victim of rape. P.W.3 is Porho who is brother of Mst. Sahiba and step-son of Jaffer. P.W.4 Muhammad Khan and P.W.5 Bholoo are drivers of vehicles used in the crime. P.W.6 Dr. Farhana Qureshi examined victim on 15-10-1992 in L.M.C. Hospital, Hyderabad and found no marks of violence on her body. According to her hymen of victim was torn and slight bleeding was detected. In The opinion of the doctor the girl was subjected to sexual intercourse and on radiological examination was found between 13/14 years of age. She took vagina slides and sent them to Chemical Examiner. P.W.7 is Dr. Manzoor Shaikh who examined Saeed Muhammad Shah and found him capable of committing sexual intercourse. P.W.8 is Dr. Farida Jabbar who examined victim on 11-10-1992 at Taluka Hospital, Tando Muhammad Khan in connection with investigation of first F.I.R. (Crime No,115 of 1992). According to the doctor" victim was 13 years old and was not virgin as her hymen was ruptured. She was subjected to sexual intercourse between 30 to 40 hours. 5. P.W.9 is Ghulam Mustafa A.S.I. Of C.IA. Who arrested Khuda Bakhsh on 14-10-1992 who was already in custody. P.W.10 is Qamaruddin, P.C. Who attested Mashirnama of Vardat Exh.14/1 prepared on 15-10-1992. He also attested Mashirnama of recovery of clothes Exh.14/2. P.W.11 is Sultan Badshah A.S.I. Who attested Mashirnama of arrest of Saeed Muhammad Shah on 14-10-1992 vide
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Exh.15/1. P.W.12 is Dr. Irshad Memon, who examined complainant Jaffer and found two. Bruises on him of simple nature. P.W.13 D.S.P. Noor Ali Mari, and P.W.14 Mian Masood Hayat have taken part in the investigation of the case as stated above. P.W.15 Ghulam Muhammad S.I.P. And Additional S.H.O. Of P.S. Tando Muhammad Khan cancelled F.I.R. In Crime No,115/92 on the direction of S.S.P., Hyderabad. He submitted final report to S.D.M., Tando Muhammad Khan for orders. He produced such order dated 5-14-1992 as Exh.20/1. P.W.16 is D.S.P. Nizamuddin of Crime Branch who also dealt with investigation as stated above. Prosecution produced two reports from Chemical Examiner. According to the report Exh.21/1 human semen belonging to Group "0" detected in the sealed test tube. ' According to report Exh.21/2 human semen belonging to Group "0" detected in Shalwar and shirt of victim and human blood belonging to Group "B" detected on the vaginal slides. Vide statement dated 11-11-1992 Special Public Prosecutor gave up P.Ws. Achar, Haji, Saleh, Hussain for the reason that they were not eye-witnesses and further had been won over. P.W. Mst. Basra (mother of victim) was given up on the ground that she was an old lady physically and mentally unable to give evidence. P.W. Mr. Ghulam Mohiuddin, A.C.M. Was given up for the reason that he had only recorded statements of Mst. Sahiba and complainant Jaffer under section 164, Cr.P.C. 6. In the trial Court in his statement under section 342, Cr.P.C. Appellant Saeed Muhammad Shah denied prosecution allegations and proclaimed false implication due to conspiracy of Mirs and Pirs who are inimical to him. He denied having committed rape or sexual intercourse with Mst. Sahiba. He filed statement in writing giving background of enmity. According to this statement Syed Qabool Muhammad Shah maternal uncle of this appellant defeated Mir Aijaz Ali Talpur and Mohsin Shah defeated Mir Mumtaz Ali Talpur. Pir Saeed Jan Sarhandi acted as Chief Election Agent of Mir Group. After dissolution of District Council, Hyderabad, Syed Zulfiqar Ali Shah, elder brother of appellant was likely to be appointed as Administrator for which post Khalid Jan Sarhandi was aspirant. It was further stated by Saeed Muhammad Shah that Khuda Bakhsh Sheedi no more worked with him and was employed by Khuda Dino Tangri as labourer in the brick kilns. Prime Minister of Pakistan was assured that the ease was true and he awarded an amount of Rs,1 lac in cash and land admeasuring 16 acres to Mst. Sahiba. Witnesses in the case were taken in protective custody and were tutored. 7. Appellant Khuda Bakhsh alias Khudoo Sheedi in his statement under section 342, Cr.P.C. Denied prosecution allegations and disclaimed any knowledge about the incident. He further stated that he left service of Saeed Muhammad Shah six months prior to the incident. He filed statement in writing in which it was stated by him that he was employed by Khuda Dino Tangri in his brick kilns and was implicated in this case on account of his past service with Saeed Muhammad Shah due to political rivalry with Mirs and Pirs. Appellant Khuda Bakhsh Sheedi also gave statement on oath under section 340(2), Cr.P.C. Further eight witnesses have been examined. Remaining defence witnesses were given up vide statement dated 16-11-1992 of defence counsel on the ground that they had been won over and side was closed. 8. Before us it was submitted on behalf of the appellants that evidence of three most important witnesses of prosecution namely P.W.1 complainant Jaffer, P.W.2 Mst. Sahiba and P.W.3 Porho is defective and unreliable and is not sufficient to form basis of conviction. In this context the very first attack on the abovementioned evidence is that the investigation in this case has been conducted dishonestly inasmuch as first of Crime No,115 of 1992 was cancelled in illegal manner and without justification due to political pressure. To this reply given by learned A.A.-G. For the State is that first F.I.R. In Crime No,115 of 1992 was dishonsetly recorded with attempt to screen main culprit Saeed Muhammad Shah, whose name was not mentioned as rapist and place of incident was also shown in jungle which was factually incorrect. We propose to examine this aspect of the case first. During the hearing of appeal when mention was made before us about first F.I.R. In Crime No,115 of 1992, we
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wanted to peruse it and we were informed that it was not included in the record for the reason that it was not acted upon and cancelled. An application was filed in the court before us for causing production of F.I.R. In Crime No,115 of 1992 on the ground that there was no legal justification for filing second F.I.R. In Crime No,71 of 1992 and such illegality was not curable under section 537, Cr.P.C. After hearing learned counsel for the appellants and State we sent for the relevant record of investigation of F.I.R. In Crime No,115 of 1992 ' and its cancellation. In compliance the requisite record was produced before us. 9. In both F.I.Rs, mentioned above, complainant.Is Jaffer father of victim of rape Mst. Sahiba. F.I.R. In Crime No,115 of 1992 was registered as P.S. Tando Muhammad Khan on 1140-1992 at 7-00 p.m. Which was registered by S.H.O. Muhammad Younus, who also undertook to investigate the case. According to this F.I.R. At about 2-00 p.m. Khuda Bakhsh son of Iddan Sheedi who is servant of Saeed Muhammad Shah came to the house of complainant alongwith one other young boy who was not identified and told complainant that Saeed Muhammad Shah had sent for his daughter and saying that both of them forcibly took away Mst. Sahiba in the jeep. At a distance of about one mile to the south of house of complainant Khuda Bakhsh removed clothes of Mst. Sahiba and forcibly committed sexual intercourse with her. Complainant raised cries and he was given Lathi blows by that other man. Then that other man also committed rape with the girl and both of them continued doing that up to 6-30 p.m. Afterwards, they brought daughter of complainant to his house in the jeep. Complainant remained in his house for the night and in the morning informed Nekmard Achar Patel, who after some time advised him to file report with the police. Papers relating to the investigation of F.I.R. No,115 of 1992 show that clothes of Mst. Sahiba were recovered which were found to be stained with semen and blood and were put into a sealed parcel. Mst. Sahiba was referred for medical examination and she was so examined by P.W.8 Dr. Farida Jabbar on 11-10-1992. Place of occurrence was inspected and memo. Prepared. Mst. Sahiba not being in proper state of mind declined to give statement under section 161, Cr.P.C. Khuda Bakhsh Sheedi was arrested. Second F.I.R. In Crime No,71 of 1992 was registered at P.S. Bulri Karim Shah on 14-10-1992. P.W.13 D.S.P. Noor Ali Mari of C.IA. Centre, Hyderabad deposed that he was directed by S.S.P. To record fresh F.I.R. As F.I.R. Of Jaffer was not correctly recorded according to his instructions. He recorded statement of complainant Jaffer in the station diary Exh.5/1, which was thumb marked by the complainant. The station diary was sent to S.H.O. P.S. Bulri Karim Shah, who incorported the same in 154, Cr.P.C. Register. D.S.P. Noor Ali Mari then took in hand the investigation afresh. P.W.15 Ghulam Muhammad S:I.P. Was additional S.H.O. Of P.S. Tando Muhammad Khan and on 14-10-1992 he cancelled F.I.R. In Crime No,115 of 1992 on the direction of S.S.P. This S.S.P. Who directed cancellation of F.I.R. And fresh investigation by Noor Ali Mari was not examined in the trial Court. He was under .Legal obligation to explain under what provisions of law he had issued direction for cancellation of F.I.R. And filing a fresh F.I.R. He could have been examined as Court witness also to explain as to what material was available with him on the basis of which he was satisfied that first F.I.R. Was false. At page 241 of the paper book there is order of the Magistrate Exh.20/1, which shows that he has disposed of the case arising from Crime No,115 of 1992 as cancelled "C" Class mainly for the reason that S.S.P. Hyderabad had recommended that action on the grounds that name of Saeed Muhammad Shah and correct place of Wardat were not mentioned by S.H.O. 10. In Part V of the Criminal Procedure Code there is Chapter XIV containing sections 154 to 176 which relate to the information to the police and their powers to investigate. These provisions cover information in cognizable cases as well as in non-cognizable cases. Under section 154, Cr.P.C. It is mandatorily bounden duty of the police officer to register F.I.R. Of a cognizable offence. Under section 157, Cr.P.C. He has to send his report to the Magistrate and if he does not want to investigate a case for reason of insufficient grounds then also he has to send his report to the Magistrate with reasons for his such conclusion. Under section 159, Cr.P.C. The Magistrate may direct an
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investigation or hold a preliminary enquiry or otherwise dispose of the case in the manner provided in the Code. Under section 169, Cr.P.C. If there is insufficient evidence or reasonable grounds do not exist to justify forwarding the accused to the Magistrate such police officer can release him on his executing a bond with or without sureties and such report is to be sent to the Magistrate under section 173 for appropriate orders. Section 173, Cr.P.C. Is most important section in this Chapter for the reason that under this section final report of investigation is to be sent by the police officer to the Magistrate empowered to take cognizance of offence. This report is to contain names of the parties, nature of information and names of persons who appeared to be acquainted with the facts and circumstances of the case. Names of accused are to be mentioned whether in custody or not. Report of police officer under section 173 is merely an information of the police officer and the same is not admissible in evidence. Presumption of innocence of accused involved in it is not diminished by mere fact that the case has been sent up for trial or that particular witness or person formed opinion against the accused. In support of this proposition, reference can be made to the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736. 11. We have Police Act, 1861 and Police Rules, 1934 in the field. In Police Rules, Chapter XXV relates to investigation. In the said Chapter Rule 55(2) onwards relates to the investigation of the case by a police officer in cognizable as well as non-cognizable cases. These rules cover almost all steps necessary to be taken in the course of investigation and to bring the investigation to a close and final report as contemplated under rule 25.57. This rule envisages that on completion of investigation final report is to be submitted to the Magistrate and in a case in which police are unsuccessful and it is considered advisable to suspend the investigation, final report is to be submitted as required under section 173, Cr.P.C. In the book titled Police Laws of Pakistan by Shaikh Abdul Haleem (1978 Edition) at the end of the Police Rules, 1935 there are prescribed forms and at page 1166 there is Form No,25.57(2) depicting format of final report under section 173, Cr.P.C. And column No,8 whereof reads as under:-- "Brief description of information or complaint, action taken by police with result and reasons for not proceeding further with investigation." 12. The form mentioned above clearly shows that final report is to be sent to the Magistrate under section 173, Cr.P.C. In the case in which investigation is not completed for some reason. Under section 190 the Court taking cognizance has very vast powers to do so upon receiving a complaint of facts which constitute such offence or upon a report in writing made by police officer or upon information received from any person other than police officer or upon knowledge of Magistrate/Judge or his suspicion that such offence has been committed. 13. In view of powers Of the police for the purpose of investigation and the Court for the purpose of taking cognizance stated above, it is to be seen now whether in this case cancellation of first F.I.R. (Crime No,115 of 1992) by P.W.16 S.I.P. Ghulam Muhammad, Additional S.H.O. At P.S. Tando Muhammad Khan is legally justified or not. According to this witness he did so under the orders of S.S.P. Who was not examined. Order of the Magistrate Exh.20/1 is on the record (at page 241 of the paper book) which appears to have been passed in perfunctory manner because in view of Senior Superintendent of Police first F.I.R. Had to be cancelled. Order of the Magistrate manifestly is passed without judicial application of mind. If name of Saeed Muhammad Shah was omitted in first F.I.R. Then there was no legal impediment in the way of recording further statement of complainant mentioning therein name of Saeed Muhammad Shah with role assigned and change of place of occurrence. He could have been taken in custody and proceeded according to law and if there was evidence against him, he could have been challaned. If omission was on account of dishonesty of the police officer who wrote F.I.R. Then action should have been taken against him and all the facts should have been brought to the notice of the Court. Complainant did not come to the police station alone and he was with several persons including his daughter. If complainant
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correctly dictated contents of F.I.R. And mentioned the name of Saeed Muhammad Shah and place of incident but police officer made vital omissions and when the contents were read out and the omissions were noticed, complainant would have raised hue and cry and would not have participated further in the investigation. First F.I.R. Was registered on 11-10-1992 and second F.I.R. Was registered on 14-10-1992 and in between there were three days in which further steps were taken in the investigation, clothes of Mst. Sahiba were recovered at the police station and put into scaled parcel, she was sent for medical examination, place of occurrence was visited and Khuda Bux Sheedi was taken in custody. If police officer scribing first F.I.R. Made deliberate and dishonest omission in F.I.R. Then on the charge of misconduct departmental proceedings could have been taken against him under rule 16.24 of the Police Rules, 1934, which would have been a better and efficacious course than judical proceedings. P.W.13 D.S.P. Noor Ali Mari of C.I.A. Deposed before the trial Court that he had filed case against D.S.P. Qamaruddin and S.H.O. Younus of Tando Muhammad Khan for recording incorrect F.I.R. In cross-examination he admitted that he did not secure the investigation papers pertaining to first F.I.R. Which was recorded at P.S. Tando Muhammad Khan. He has not explained further in his evidence as to for what offence cases were filed against D.S.P. Qamaruddin and S.H.O. Younus. On our query as to what happened to that case, learend AA.-G. Informed that F.I.R. Was registered at C.I.A. Centre against these police officers for offences under sections 224 and 225-A, P.P.C. In which they have absconded and the police department is waiting. Section 224, P.P.C. Is resistance and obstruction of person of his lawful apprehension and section 225-A is omission to apprehend and both these offences are bailable punishable with R.I. For two years and three years respectively or with fine. In any case D.S.P. Qamaruddin and S.H.O. Younus were not produced by the prosecution in this case and it is unascertainable as to what stand they would have taken with regard to allegations against them. In such circumstances it can be said that in this case prosecution has withheld important evidence by not examining S.S.P. Who ordered cancellation of first F.I.R. And registration of second F.I.R. And D.S.P. Qamaruddin Shaikh and S.H.O. Younus who were concerned with registration of first F.I.R. Explanation is also very strange that these police officers arc absconding and department is waiting for them. It is likely that case registered against these officers will be decided after the final decision of the main case. Explanation also gives rise to presumption that these police officers were not to be made available to be examined as defence witnesses, if defence wanted to do so. 14. Going back to the appraisement of evidence brought on the record it can be said that the three most important witnesses in the case of the prosecution are P.W.1 Jaffer, P.W.2 Mst. Sahiba and P.W.3 Proho. P.W.1 Jaffer is father of Mst. Sahiba and in the caption of his deposition column of age is blank. In his evdience he has not claimed that he was working for Saeed Muhammad Shah in any capacity. There is observation of the.Trial Court at the foot of page 59 of the paper book that this witness wears spectacles and his one eye is useless. It appears that this observation is made on the basis of admission made by this witness. Incident took place on 10-10-1992 at 3-00 p.m. And we need not go into first F.I.R. In Crime No,115 of 1992 registered at P.S. Tando Muhammad Khan on 11-10- 1992. It would suffice to say that this F.I.R. Was cancelled and copy of it was not given to the defence and was not placed on the record. In this F.I.R. Name of Saeed Muhammad Shah is not mentioned and there is no allegation against him of rape. Place of incident is also shown as in jungle. In the absence of this F.I.R. Complainant could not be cross-examined by defence on this point. Prosecution was commenced with second F.I.R. Which was registered on 14-10-1992 at 7-30 p.m. Second F.I.R. Which was recorded after three days of incident (sic) incorporated in 154, Cr.P.C. Register of C.I.A. Hyderabad and then copy sent to P.S. Bulri Shah Karim for compliance because of its jurisdiction. There is graphic account of incident which runs into more than three typed pages. Narration in F.I.R. Can be divided into three parts. First part relates to what happened before the
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rape. Sceond part relates to details of rape. Third part relates to what happened after rape and at the police station. 15. Salient features of narration of F.I.R. Briefly stated are to the…
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