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Petitioner: JAVAID VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Muhammad Mahboob Ahmed Title: JAVAID vs THE STATE Case No.: Criminal Appeal No. 77-1 of 1996 Date of Judgment:1999-03-03 Reported As: K.L.R. 1999 Shariat Cases 40 Result: N/A
JUDGMENT
JUDGMENT M. MAHBOOB AHMED, C.J.- This appeal is directed against judgment, dated 23rd of April, 1996, passed by learned Additional Sessions Judge, Kot Addu whereby the appellant has been convicted under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Hudood Ordinance) and sentenced to undergo rigorous imprisonment for ten years and thirty stripes. 2. Briefly stated that prosecution case as gathered from the record is that on 30.7.1994 report/complaint, Ex.PC, was lodged by one Allah Dad son of Fateh Muhammad with Chirag Ali, A.S.I., Police Station, Mehmood Kot, wherein, it was alleged that he i.e. The complainant was resident of Mauza Alurid of District Muzaffargarh. In the night between 29.7.1994 and 30.7.1994 he, alongwith other family members, was sleeping in the courtyard of his house. At midnight, he awoke and saw that his grand-daughter, namely, Mst. Amena was missing from her bed. He alongwith his son, namely, Riaz Hussain and nephew Javaid went out of. The house in her search. They were attracted by cries of the victim, to a nearby situated field and in the light of torch saw, that the appellant was committing zina-bil-jabr with her, under a mango tree in a Jawar {{URDU MISS}} crop cultivation. They bawled after the accused who, on seeing them rushing to the place of occurrence, fled from the spot. On inquiry, they were told by the victim that she, in order to answer the call of nature had left her house, at about mid night. After easing herself, when she was tying her azarband {{URDU MISS}} the appellant appeared on the scene of occurrence, threatened her, dragged her to a nearby mango tree and there subjected her to zina-bil-jabr. On the stated allegations, F.I.R. Bearing
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No. 108/94 was registered at Police Station, Memood Kot under section 10 of the Hudood Ordinance and investigation was carried out in pursuance thereof. On the completion of investigation the appellant was challaned to the Court for trial. 3. Charge was accordingly framed to which the accused/appellant did not plead guilty and claimed trial. 4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellant produced eight witnesses, in all. P.W. 1 Dr. Majiddun had on 9.8.1994, examined the appellant for the potency test. He produced in the Court the certificate issued by him as Ex.PB. P.W.2 Iqbal Hussain, A.S.I./Moharrir, Police Station, Kot Addu had on 30.7.1994 recorded formal F.I.R., Ex. C/I. On 31.7.1994 he had also received one sealed envelope alongwith a sealed phial from the Investigating Officer for keeping the same in safe custody. He deposed that he had kept the same in Malkhana and on 1.8.1994 had handed over the same to Irshad Hussain, Constable intact for onward transmission to the Office of the Chemical Examiner. P.W.3 Muhammad Sarfraz, Constable on 31.7.1994 had accompanied the victim to D.H Q. Hospital, Muzaffargarh for medical examination, a Shalwar, an Azarband, a sealed envelope and a phial, were handed over to him, by the lady doctor which he subsequently made over to the Investigating Officer who took the- same into possession vide recovery memo, Ex.PD. P.W.4 Lady Dr. Salma Bano, W.M.O., D.H.Q. Hospital had on 31.7.199.4 medically examined the victim. She produced in Court her report as Ex.PE. She deposed that as per result of the examination following injuries were found on the person of the victim.- (1) "A bruise about 1 x 1 cm on the left cheek 02 cm below the lower eye lid. (2) A swelling about 2 cm x 3 cm on left upper lip. Area was tender and bluish colour. (3) An abrasion 1/2 cm x 1/2 cm on the left side of chin. (4) Slight bruising of nail beds of index and middle finger of right had." She further deposed that the victim had no history of menstruation before the incident. The clothes of the examinee were stained with dark coloured blood. Her thighs were also stained with blood, hymen was showing 2/3 fresh tears. The tears were bleeding freshly. On her internal examination it was, however, found that menstrual blood was coming from the servix. P.W.4 was of the opinion that injuries mentioned in the certificate were simple in nature and were the result of blunt weapon. In the course of her cross-examination she admitted the suggestion as correct that if sexual intercourse is done forcibly, then there would be injuries on the private part. P.W.5 Mst. Amena is the victim. She at the trial, while supporting the prosecution version gave details of the incident and deposed that in the fateful night she in order to answer the call of nature had gone out of her house. After easing herself while she was tying Azarband, of her Shalwar the appellant reached _ the spot, caught hold of her, dragged her to a nearby field and subjected her to Zina-bil-Jabr. On the cries raised by her, her grand-father and uncle, namely, Fayyaz and others were attracted. A torch was flashed, whereupon the appellant tied away from the spot. She further deposed that soon after the occurrence she had narrated the entire facts to her grand-father and others whereafter, she was taken to the Police Station. P.W.6 Allah Dad is the complainant. He at the trial besides affirming on oath contents of the complaint, Ex.PC, corroborated the statement of P.W.5 in
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all material particulars P.W.7 Irshad Hussain, Constable on 1.8.1994, was entrusted with a sealed envelope for onward transmission to the Office of the Chemical Examiner which according to him, was delivered intact. P.W.8 Chiragh Ali, A.S.I, is the Investigating Officer. He had also recorded complaint, Ex.PC. 5. On the completion of prosecution evidence the accused/appellant was examined under Section 342, Cr.P.C. In his statement he denied the charge and pleaded innocence. He, however, failed to lead any evidence in his defence though in the above-referred statement, he had shown his inclination to do so. He did not opt to appear as his on witness in terms of Section 340(2) Cr.P.C. 6. After hearing arguments of the learned counsel for the parties the learned Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para hereof. 7. I have heard Mr. Abdul Ghafoor Gormani, Advocate, counsel for the appellant, Mr. Saleheen Mughal, learned counsel for the State and have also perused the entire record with their help. 8. Mr. Abdul Ghafoor Gormani, Advocate, learned counsel for the appellant raised the following contentions:- (i) That the F.I.R, was lodged with a Considerable delay and was purposely anti dated in order to cover up the same; (ii) that identification of the appellant, in the circumstances of the case, was doubtful particularly when the torch, in the light of which the occurrence was allegedly seen by P.Ws, was neither taken into possession nor produced in Court, Reliance has been placed on the cases of Mst. Jameela v. Muhammad Yaseen and others, reported as PLD 1983 FSC 523 and Bashir Ahmad alias Mannu v. The State. Reported as 1996 SCM R 308; (iii) that the semen of the appellant was not taken for grouping; (iv) that non-production of alleged eye-witnesses of the occurrence, namely, Javaid and Fayyaz was fatal to the prosecution case; (v) that the prosecution evidence being contradictory was not worthy of credence; (vi) that the girl being a consenting party, the appellant could not have been convicted; and in the end it was pleaded that the appellant having been falsely implicated by the complainant on the basis of enmity as well as, in order to grab money deserved acquittal for being a raw youth, was at least, required to be dealt with leniently. 9. Mr. Saleheen Mughal, Advocate, learned counsel for the State on the other had, while controverting the above contentions, submitted that the guilt of the accused/appellant was substantially and materially brought home by the prosecution at the trial, through independent, reliable and truth worthy evidence, therefore, the impugned judgment was unexceptionable. He submitted that ,the alleged delay in lodging the F.I.R, was neither established on record nor it was proved that the F.I.R, was anti dated to the advantage of the complainant. He submitted that non- production of the torch by the prosecution otherwise, was not material because the appellant was
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previously known to the victim and the evidence of visual identification given by the victim was of exceptionally good quality. In support of his contention he placed reliance on the cases of Mst. Shamim Akhtar v. Fayyaz Ahmad and to others, reported as PLD 1992 SC 211 and Muhammad Irshad v. The State, reported as PLD 1995 SC 475. He pointed out that the so- called discrepancy with regard to the availability of cotton or Jawar crops at the place of occurrence as pointed out by the learned counsel for the appellant in Ex.PF to, was not material because both cotton and Jawar crops were available on and around the place of occurrence. Regarding non-mentioning of the name of the appellant in the site plan he submitted that the omission to, was not fatal to the prosecution case in view of the law laid down in the cases Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCM R 908), Attaullah and 5 others v. The State through Custodian, Lahore and 11 others (PLD 1996 SC 234) and Pervez v. The State (PLJ 1996 FSC 218). He further submitted that the defence plea being inconsistent was rightly disbelieved by the learned trial Court. He pointed out that initially it was pleaded that a sunt of Rs. 12,000/- was borrowed by P.W.6 from the appellant and in order to grab the same, case in had was fabricated. Later on, it was stated that the victim had sexual intercourse with "some one else" with her flee will and consent and it was probably Mumtaz who was apprehended by the police and kept in custody for a few days. He maintained that the statement of the victim being natural and coherent implicit reliance has to be placed thereon particularly when the same is duly corroborated by medical as well as ocular and circumstantial evidence. 10. As regards identification of the appellant the point sought to be made by the learned counsel for the appellant is that non-production of the torch, in the light of which, P.W.6 had allegedly seen and identified the appellant at the time of occurrence, was fatal to the prosecution case but he while making this submission lost sight of the very material position that in believing the prosecution evidence qua identification of the accused, the learned trial Court has primarily relied upon the statement of the victim and has only sought corroboration thereof from the statement of P.W.6. It is evident from record that the appellant being a co-villager and residing at a distance of 20/30 kadms from the house of the victim was previously known to her. He was closely seen by her at the time of occurrence which according to her lasted for about 10 to 15 minutes, therefore, it could not have been concluded that it was a case of mistaken identity. Further, the defence plea, introduced at the trial, that the victim was a consenting party leads to the inference that firstly the occurrence was true and secondly it was not a case of substitution of the accused and the person involved therein was none-else than the present appellant. Additionally testimony of P.W.6 being purely corroboratory in nature, it would have made no difference if he had not at all seen the culprit or would have stated so merely on the disclosure made to him by the victim, soon after the occurrence. However, notwithstanding the above since it has come on record through the statement of P.W.6 that he, in the course of investigation, had handed over the torch in question to the police, therefore, its non-production at the trial would not effect credibility of his statement . An other fact which goes to his credit is that at the very outset i.e. In his statement recorded under Section 161, Cr.P.C, he had stated that at the time of occurrence he had identified the accused in the torch light. Following portion of his statement is explicit on this point:- "I had stated that. I was having a torch with me. Confronted with Ex.PC where it is not so recorded but any how it is stated that the accused was identified in the torch light." Obviously in view of above it cannot be presumed that he plea that P.W.6 had identified the appellant in torch light was an afterthought or was introduced in order to beef up the prosecution case.
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11. In the case of Mst. Shamim Akhtar v. Fayyaz-Akhtar, reported as PLD 1992 SC 211, it was alleged that Mst. Shamim Akhtar, in that case, had seen/identified the culprit in the torch light which was not produced by her, at the trial. Still it was held that non-production of the torch was not fatal towards the prosecution case because the culprit was previously known to the victim. 12. So far as the cases cited at the bar by the learned counsel for the appellant are concerned, the facts of the present case are wholly distinguishable from the, facts of the cited cases inasmuch as in the cases of Mst. Jameela v. Muhammad Yasin and others, reported as PLD 1983 FSC 523, the culprit was not previously known to the victim and the occurrence allegedly took place in a room where, there was no source of light except a Diya [(URDU TEXT)] which was not taken into possession. In the circumstances it was held that non-production of Diya [(URDU TEXT)] was fatal, whereas, in the case of Bashir Ahmad alias Mam v. The State, reported as 1996 SCM R 308 to, the culprit was not previously known to the witnesses. Further it was found that Shah Ramzan, P.W.7, and Mst. Zainab, P.W.8, being closely related to the deceased were interested witnesses and in view of admitted immoral back ground of the deceased it could not have been believed that he suddenly became religious minded to install a bulb in front of his house for the convenience of Mosque going people, in the light of which the witnesses had allegedly seen the occurrence. The cited cases therefore, would be of no help to the appellant. 13. In furtherance of his next contention that since semen specimens were not obtained for grouping therefore, the omission was fatal towards the prosecution case. Mr. Abdul Ghafoor Gormani, Advocate, learned counsel for the appellant has vehemently contended that in the instant case appellant after his arrest was though physically got examined and report of the doctor i.e, P.W.1 qua the potency test was tendered in evidence as Ex.PB yet no effort was made to procure the semen of the accused for sending the same to the Serologist for semen grouping so as to ensure that the semen found on the vaginal swabs was of the same group. He stated that in the absence of the Serologist report, Ex.PH, i.e. Chemical Examiner's report had lost its evidentiary value. He has placed reliance on the cases of Mst. Ihsan Begum v. The State, reported as PLD 1983-FSC 204 and Abid Javed alias Mithu v. The State, reported as 1996 P.Cr.L.J. 1161. 14. No doubt in the above judgments it has been laid down Medical Officers examining the male for potency should also obtain specimen of semen of the accused so that no doubt be left about the identity of the person committing zina or zina-bil-jabr and that the Police Officers in their reference should also request the doctor concerned to take the specimen of semen of the male accused yet, the fact remains that opinion of an expert being purely corroboratory in nature and admissible only to the extent pf aiding or facilitating the Court to come to its on decision, the report of the Serologist can neither take precedence over substantive pieces of evidence nor can dislodge' or substitute the same. It is well-settled that primarily it is, resistibility of the Court to call for the opinion of an expert, if in the circumstances of a particular case it is considered necessary but it cannot be said that in all cases of zina or zina-bil-jabr report of the Serologist would be decisive. In a number of cases including the cases of Muhammad Nawaz v. The State reported as 1994 SCM R 1614 and Saeedullah Khan v. The State, reported as 1986 SCM R 1027 oral evidence has been preferred over the medical expert's evidence. 15. So far as the cases cited at the bar by the learned counsel for the appellant are concerned, the facts of the present case are wholly "distinguishable from the facts of the cited cases. In the case of Mst. Ihsan Begum v. The State, reported as-PLD 1983 FSC-204. Mst. Ihsan Begum was a married
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woman and had been with her husband till three days before her arrest. Though name of Zaman Shah her co-accused was found to have been mentioned in the hotel register but nothing in evidence was found that she had stayed with him, in the hotel. Her stay in another hotel to, was not proved, therefore, it was held that since grouping of the semen was not done for matching, therefore, report of the Chemical Analyst was not relevant for the purpose of deciding their guilt. Whereas, in the case of Abid Hussain alias Mithu v. The State, the victim and complainant Mst. Abida Bibi herself had exonerated the accused. She had neither recognized or identified him at the trial, to be the culprit, nor had she stated that he, was present at the time of occurrence. Further in that case report on the swa bs, sent to the Serologist, for semen grouping was not produced in Court. Additionally, the prosecution witnesses related to file victim were also given up unnecessarily. Another eye-witness did not claim to have seen the occurrence. Lady doctor had also not noticed any marks of violence on the body of the victim and the injuries on the vaginal area, according to her, could not have been the result .Of sexual intercourse. In the circumstances benefit of doubt was extended to the accused and he was acquitted but in the instant case the facts are other way round, therefore, to my mind the above cases are of no help to the case of the appellant. 16. In order to supplement his next contention that since other witnesses of the occurrence were not examined by the prosecution and were given up at the trial, therefore, the prosecution version was improbable, the learned counsel for the appellant emphatically contended that since Fayyaz Hussain and Javed, close relatives of the victim, who had allegedly seen the occurrence, were not produced at the trial by the prosecution without any cogent reason, therefore, the learned trial Court ought to have drawn an adverse inference on account thereof that if examined they would not have supported the prosecution case. He maintained that the omission so made was fatal to the prosecution case. In support of this contention he has placed reliance on State through Advocate-General Sindh, Karachi v. Farman Hussain and others, reported as PLD 1995 SC 1. 17. Though in the above case it has been held by the Hon'ble Supreme Court of Pakistan that non- production of the mashirs without valid reasons would react adversely on the recovery of weapons and arrest of the accused persons yet, to my mind the observations made by the Hon'ble Supreme Court of Pakistan in the said case would not be of any use to the case of the appellant, as the same have been primarily made in the background and circumstances of that particular case. In Farman Hussain's case, the prosecution case mainly rested on the evidence of to child witnesses though there were some other corroboratory pieces of evidence as well. It was alleged that Tariq- Nawaz aged 11 years and baby Aisha Qamar were playing near the stairs of their flat, when a suzuki car, in which three persons including the driver were sitting reached there, to of the culprits caught hold of Master Tariq Nawaz, forcibly put him in the car, and took him away. Subsequently the police party, on receiving spy information raided a bungalow and recovered the above kidnappee besides arresting eight accused persons and recovering weapons from them. Both the given up witnesses, in that case, stood mashirs to the arrest of the accused persons and recovery of minor as well as weapons from their possession. Prosecution failed to produce the above-named mashirs and instead relied upon the testimony of the Investigating Officer who was also a signatory of the mashir namas. In that regard a reference was made to the evidence of P.W.9 who had testified before the trial Court that Mashir Muhammad Anwar was seen by him in the compound of the Court building for to days, when hearing of the case was in progress, and that he, i.e. The witness had further expressed his ignorance whether the other witness namely Rashid was still alive or had died and that he had not seen them for the past 2/3 days. In the circumstances, it was observed that non- production of those mashirs would lead to the inference that they were
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purposely withheld and if produced, they would not have supported the prosecution case. Still their Lordships were pleased to observe that despite omission on the part of the prosecution to produce the above to mashirs, no adverse inference was required to be drawn on account thereof, because it was found that the offence of kidnapping was generally being committed by organized gangs and members of the public were scared to appear as witnesses, against them. It would be pertinent to mention here that in Farman's case it was also alleged that investigation was not conducted in an honest and impartial manner. 18. The law in this regard is well-settled now. In a recent judgment delivered in the case of Muhammad Ahmad and another v. The State and others, reported as 1997 SCM R 89 the Hon'ble Supreme Court of Pakistan while elaborately discussing the subject and relying on the case of Zar Bahadur v. The State, reported as 1978 SCM R 136 was pleased to lay down that the prosecution is neither bound nor required to examine every eye-witness of a crime. Relevant observations are reproduced herein below for ready reference:- "Before concluding, we would like to dispose of the objections of the learned counsel for the appellant regarding the failure of the prosecution to cite/examine any witness from the vicinity of the place of occurrence and non-examination of Arshad P.W. Who according to the prosecution was an employee of the deceased and had witnessed the occurrence. Nothing turns on these objections as it is a matter of common knowledge that the people from the locality generally hesitate to come forward as witnesses in such cases for fear of reprisals from the accused party. This tendency, though unfortunate, has been taken note of in a number of cases and condoned in view of the peculiar conditions prevailing in the country. Reference may pertinently be made to the following observations in the case of Ghulam Mohyuddin alias Muhammad Panah v. The State (1976 P.Cr.L.J. 311): "It is now well-known that, generally, people in our country hesitate to come forward as witnesses and give evidence in such cases, because they do not wish to get themselves involved in other people problems. Probably there is good reason for their hesitation because by appearing as witnesses in criminal cases one is likely to incur the wrath and attract the enmity of the accused persons and their party men. We have come across a large number of cases where people were murdered simply because they had dared to appear as witness in such cases. What is still more disheartening is that the law Enforcing agencies in the country hardly afford any protection to those who have the requisite public spirit and are willing to come forward and testify against criminals and thus incur their hostility. We have also noticed, in a large number of cases, that whenever the F.I.R., contains the name of some 'independent' or 'unrelated' persons as eye- witnesses of the occurrence, alongwith some relatives of the deceased, who saw the . Occurrence, the former usually resile from their statements or, at least, tend to make concessions in favour of the accused and have quite often to be declared 'hostile'. The cause for this appears to be the same as mentioned above, namely that 'independent' or 'unconnected' witnesses see no reason to endanger their lives for what they consider to be 'none of their business' and in many cases such witnesses are proved to be won-over by .Inducements or to resile under threats_________________________ . Once it is recognized that such conditions are prevailing in the country and that some pressure, by way of inducement or threat, has been put on some prosecution witnesses, it cannot be said that an adverse presumption must…
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