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Petitioner: RAWATO and another VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Abdul Waheed Siddiqui Title: RAWATO and another vs THE STATE Case No.: Criminal Appeal No,17/I of 1999 Date of Judgment:1999-04-16 Reported As: 2000 P Cr. L J 333 Result: Appeal accepted
JUDGMENT
JUDGMENT ' Appellants have assailed a judgment delivered by the Court of Sessions Judge, Tharparker at Mithi on 13-1-1999, whereby appellant Rawato has been convicted under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereafter to be referred to as the said Ordinance and sentenced to R.I. For 7 years and appellant Maghno has been convicted under section 109, P.P.0 read with Article 10(3) of the said Ordinance and has been sentenced to R.I. For 2 years. Both of them have been extended the benefit of section 382-B, Cr.P.C. By the same judgment co-accused Dheengo has been acquitted under section 265/H, Cr.P.0 by extending benefit of doubt to him. 2. Succinctly, the story of prosecution is that one Peter son of Ramji (P.W.1), Christian, appeared at Police Station Nangarparkar on 9-7-1997 at 19-40 hours and lodged an F.I.R. Wherein he stated that he is a teacher at Christian Hostel Nangarparkar and also resides at the same place alongwith his family. He has 6 sons and two daughters. His brother-in-law Karmshi (P.W.2) also resides with him. His elder daughter Anjleena (P.W.3) is unmarried and of about 16 years of age. On 13-6-1997 he and his wife Bano (P.W.6) had gone towards Quetta to attend a meeting called by Christians. After the culmination of the meeting, he alongwith his spouse returned back on 29-6-1997 and reached their house at about 9 p.m. On return his elder daughter, while weeping, narrated that in between the night of 15/16 of June, 1997 she was sleeping inside a mosquito net in the courtyard of her house. Near her were sleeping her brother Yaqub and maternal-uncle Karmshi (P.W.2). All of them were having mosquito nets on their carts. Suddenly then appellants Rawato and Maghno jumped from the wall inside the house. They were known to her previously and used to tease her some times. They gagged her mouth and tied her hands with handkerchief. Then Rawato opened her string of Shalwar and committed Zina-bil-Jabr with her. She freed her mouth from handkerchief and started
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crying. Upon this, her brother and maternal-uncle got awakened who were sleeping nearby. Realising this situation, both the culprits went towards northern wall. Then they saw that another co-accused Dheengho also ran away alongwith the two abovementioned offenders. All the three scaled over the wall of the house and ran away. They were also seen by the victim's brother and maternal uncle. After that she informed both the witnesses about the happenings. At the morning time their Nekmard Heero came who was intimated about the incident and was shown the foot- prints of the culprits. ' On having come to know, the complainant went towards Badin where father Thomas was informed who directed him to lodge a report with the police station. Hence the report. ' After necessary investigation all the three nominated accused were challaned and were charged under Article 10(3) read with Article 16 of the said ordinance as well as under sections 342 and 109, P.P.0 to which none of them pleaded guilty. 3. To prove its case, prosecution examined 9 witnesses. Peter (P.W.1), the complainant has deposed in conformity with the contents of F.I.R. Exh.9/A. He has further deposed that his victim daughter Mst. Anjleena is studying in 1st year in Government College, Badin. During the days of incident his daughter had come to Nangarparkar to pass holidays there. On 13-6-1997 he had left for Quetta leaving behind the victim, his brother-in-law Karmshi (P.W.2), and 3 sons aged about 14 years, 9 years and 6 years. He and his wife remained in Quetti for about 10 days and then returned back on 26th June, 1997 at Kotri From Kotri they had gone to Matli where he reported about the family meeting at Quetta. They stayed for 2 days and then came to Nangarparkar on 29-6-1997 at 9-00 p.m. When the victim narrated to them facts of the incident. She informed that in the night of. 15th June, 1997 she was sleeping on cot in a courtyard of her house and her younger brother aged about 6 years was also sleeping with her on the same cot. The victim further informed that the accused/appellant Maghno had closed her mouth and tied her hands behind. Whereas accused Rawato forcibly committed Zina with her. She further informed that after committing rape on her, she raised noise but accused Rawato again put his hands on her mouth when in the meantime, children woke-up and thereafter accused ran away from the scene of offence from back side of the courtyard. The victim further informed him that she saw accused Dheengo running away after scaling over the wall thereafter. The witnesses namely Karmshi, his wife and his son Yaqoob had also seen the accused persons running away from the Wardat. She further informed that the foot- prints of the accused were also covered at the Wardat, which were shown to Heero, the Nekmard of the community. She further informed that the Nekmard Heero tracked the foot-prints which ended in the house of accused persons. Heero had further informed him that the accused persons had admitted their guilt in his presence. The complainant and Heero thereafter informed ex-Chairman of their locality Usman, by name, who directed them to lodge the F.I.R. He and Heero went to Police Station Nangarparkar but the police refused to lodge the F.I.R. They approached Abdul Rahim who called Abdul Latif, Additional S.H.O. Of Police Station Nangarparkar and directed him to register this F.I.R. The A.S.-I verbally promised before Abdul Rahim to record the F.I.R. But due to the pressure of the accused party he did not record it---On 1st July, 1997, complainant went to Matli to approach Father Thomas and narrated to him the facts of the incident with whom he went to one Shakil Pathan at Hyderabad where he had given application to him about this incident. Shakil Pathan directed him to go back to Nangarparkar and lodge report. On reaching Nangarparkar, the complainant met with a news reporter namely Ghazi and requested him to accompany him to Police Station Nangarparkar for lodging the report. The S.H.O. Kept them on promises that he will record their F.I.R. Within 3/4 days. The complainant again contacted on telephone with Shakil Pathan at Hyderabad and informed him that F.I.R. Of this incident was not being registered. Shakil Pathan telephoned to Deputy Commissioner Mithi. The said Deputy Commissioner on receiving telephonic message arrived at Nangarparkar on 8-7-1997. He called Heero and obtained
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information about this incident. The Deputy Commissioner then called the complainant party at Inspection Bungalow at Nangarparkar. He obtained facts from him and his wife and his victim daughter Anjleena. The Deputy Commissioner then directed for lodging report. Then this F.I.R. Was lodged at Police Station Nangarparkar which has been produced as Exh.9/A. This witness has proved the F.I.R. To be correct and bears his signature and has further deposed that the accused persons present in the Court were previously known to him. They were on visiting terms with the house of the complainant prior to this incident. Karmshi (P.W.2), has deposed in conformity with the F.I.R. He has also deposed that 5/6 days prior to this incident the parents of victim Mst. Anjleena had gone to Quetta. His house and the house of complainant are separate but within the same enclosure. In the night of incident he was sleeping at a distance of 8/10 paces from the cot of the victim. He has further deposed that he, his wife, Yagoob and the victim alongwith her minor brothers were sleeping in the courtyard of the house. They were in a fast sleep and woke up at the cries of the victim. He, his wife and Yagoob woke up and saw all the accused running away and he followed them. The house of the accused and their house is separated by a small wall which is in- between. The accused ran away by scalling over the wall and went towards their house. The victim disclosed to his wife, that Zina had been committed upon her. She further informed his wife that accused Rawato had committed Zina with her forcibly by being her mouth and hands, again said the victim disclosed the all facts to him. There were foot-prints of three persons at the Wardat which were covered by them. It was moonlit night. In the morning he informed Heero who was shown foot-prints available at the Wardat. Heero had gone to the houses of accused and met them and then informed that the accused were repenting upon their guilt. The victim requested him that he may keep secret this matter till arrival of her parents. Mst. Anjleena (P.W.3), the victim, has deposed that she is not definite about the actual time of the incident. During the night in between 15/16 June, .1997 she was sleeping alone on her cot, whereas her younger brothers Janwaris and Aneel aged about 10 years and 7/8 years were sleeping on another cot. She was fast asleep. Suddenly she opened her eyes when some-one closed her mouth and tied her hands. She identified two persons namely Rawato and Maghno as they were previously know to her. Rawato untied her Shalwar forcibly and committed sexual intercourse with her. After commission of sexual intercourse upon her, her body was stained with semen. Thereafter, her mouth and hands were opened by accused Maghno. This Maghno was standing at some distance at that time. Thereafter, she raised cries which attracted Karsmshi and Keshu. They saw the accused persons running away from her house. She had no enmity with the accused. Again said that the accused persons used to tease her and express vulgar talks with her when she used to pass near their house. She had disclosed to her maternal aunt about this incident and then her maternal aunt disclosed this fact to her maternal uncle who informed the matter to their Nekmard Heero. Heero directed to report the matter with police but she requested that they may wait till the arrival of her parents. On 29-6- 1997 she narrated the incident to her father. She did not know as to whom approached her father in connection with registration of this case. So far as she remembers, no person had sympathised with her father relating to this incident. Her statement was recorded by police and all the accused persons present in the Court are same. Dr. Kanta (P.W.4), Woman Medical Officer, R.H.C, Islamkot has proved medical examination of the alleged victim on 10-7-1997. According to her, the examinee was aged about 16 years, was unmarried and any sort of injury on her person was not detected, she has further deposed as under:- "From internal P.V. (per vaginal) examination, I found her hymen reptured. Which easily admits 2 fingers, and therefore, from her external and internal examination, on the P.V. I came to the conclusion that the rape was committed upon the said lady, about 2/3 weeks prior to the issuance of certificate. I prepared such certificate, which I produce as Exh.12/A, it is same, correct and bears my signature."
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' Heero (P.W.5) has deposed that he is a Member of Union Council and Nekmard of Christian community. He has further deposed as under:-- "Karamchi had informed me that accused Rawato committed rape with Mst. Anjleena alongwith Magno and Dheengo. I had also seen the foot-prints in the courtyard of the house of Mst. Anjleena. There were foot-prints of 3 culprits. The foot-prints were upto the cot of Mst. Anjleena. The foot- prints were with shoes. I had contacted with the accused and disclosed to them that their foot- prints are available in the courtyard of the house of Anjleena, and therefore, they are responsible for committing of rape. All the accused had admitted before me having entered into the house of Peter and committed rape with Anjleena but further disclosed that it is a matter in between them and the father of the girl Peter and let him to come back and thereafter, they will settle the same. I then returned back and met with Anjleena and I directed her to lodge the report. But she expressed that since her father and mother had are to Quetta therefore, she alone will not report to the matter to police in absence of her father and mother. Peter and his wife returned back from Quetta from 29th June, 1997, and the F.I.R. Was registered after approaches from various authorities on intervention of Deputy Commissioner. Prior to this, local police was not ready to register the F.I.R. Due to influence of the accused. ' Mst. Bano (P.W.6), the mother of alleged victim, has deposed:- "We returned back to Nangarparkar from Quetta on 29-6-1997. As soon as I reached in the house, my daughter Anjleena started weeping. She informed that Rawato had committed rape upon her. She further informed that Maghno and Dheengo were also with him. Anjleena informed that while she was sleeping, on the cot at the night time, her hands and mouth was tied by Maghno while Rawato committed sexual intercourse with her. She further informed me that after sexual intercourse, her hands mouth were opened by the accused, who thereafter ran away. She further informed me that she raised cries, which attracted her maternal uncle and brothers, who woke-up and followed the accused but the accused went away to their houses. We then informed our Head Master Peter and the people of the vicinity and went to report the matter but no one had listened to us, for the reasons best known to police. We then went to Badin. Were we approached the head of our institution. I had also approached Shakeel Pathan. Shakeel Pathan then directed us to go to Nangarparkar, and if the F.I.R. Is not registered by Police, then we may report to him about the matter, but the Police even then could not register our F.I.R. Master Peter then again approached Shakeel Pathan, and informed him that the F.I.R. Is not being registered. Shakeel Pathan then contacted D.C. Who arrived at Nangarparkar and with his influence, our F.I.R. Was recorded." ' Muhammad Jaman (P.W.7) is a Mashir of arrest of appellant Rawato on 23-7-1997 and proved such Mashirnama as Exh.20-A. Sono (P.W.8) is a Mashir of Wardat. He has deposed:-- "Peter is complainant in this case. I went, inside the house. There were some foot-prints at the Wardat. Police had shown me the place where the "cot were lying at the time. Such Mashirnama was prepared which I produce as Exh.21-A, it is same and bears my signature. Co-Mashir was one Kolhi, but I do not remember his name." ' Nabi Baksh (P.W.9) Investigating Officer has proved working as S.H.O. Police Station Nangarparkar on 9-7-1997 on which date he recorded F.I.R. Exh.9/A. After completing investigation, he submitted challan. In his statement on oath under section 340(2), Cr.P.C, appellant Rawato has deposed as under:- "The complainant party was also previously Kohlis, and they were converted to Christianity, therefore, they approached us to change our religion. The complainant also preached his religion to Kolhi students, residing in the hostel, and I had shifted those Kolhi students in my own hostel to save them from conversion, and due to that reason, the complainant has involved me in this case at the instance of Christian Missionary. I pray for justice. One Chhagan boy was being converted as
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Christian, but due to my efforts, he was saved. Voluntarily say some of our Kohlis have changed their religion, but they again were converted in their own religion." ' In his statement on oath under section 340(2), Cr.P.0 appellant Maghno has deposed:-- "I did not trespass alongwith Rawato Kohli and Dheengo to the house of complainant nor helped Rawato in committing sexual offence with Mst. Anjleena. I had forced the boys of my community not to mix-up with the complainant, and to remain on their own religion. This annoyed the complainant party and has involved me in this case." ' Mirza Khan (D.W.1) a Contractor by profession, has deposed. "Peter is Christian by religion. While Rawato and Magno are Kohli by religion. I heard that Peter had filed criminal case against accused Rawato and Maghno. But actually no such incident had taken place in Nangarparkar Town. The accused are involved in this case due to religious difference." ' Paroo Mal (D.W.2) has deposed: "I am Ex-Member of District Council Mithi. I used to visit Nangarparkar in connection with my personal affairs. I know complainant Peter as well as accused Rawato and Maghno. I have not heard any such incident occurred in Nangarparkar, with regard to rape with the daughter of complainant. When the report was registered at Police Station Nangarparkar, I came to know about this incident. Complainant Peter and P.W Heero are Christians. While accused are Kohli by religion. There is the religious difference in between Christian community and Kohli community. 4. I have heard the counsel for appellants and State. At the out set, the learned counsel for appellant Mr. Rasool Bakhsh Palejo has argued in favour of taking a judicial notice of the religiously charged atmosphere in such localities of Pakistan and India where Christian missionaries are active in converting scheduled and lower caste Hindus to Christianity. Such localities include deserts and marshes of Badin, Tharparkar, Katch, Kathiawar, Maharashter areas. Of recent, the law and order situations in Gujrat, Maharshter areas of India had worsened to an extent that many churches were burnt and simultaneously hundreds of vexatious and frivolous criminal cases had cropped up between Hindus and Christian missionaries to an extent that even international media remained active in reporting for many months. The learned counsel for appellant has made a reference to the following ruling of a D.B. Of this Court reported as 1998 M LD 1137 in which the havocs played by religious differences in a charged atmosphere are highlighted. "Before entering into the arena of the case, the first and foremost fact about which we have taken a judicial notice is the existence of the circumstances of extreme hatred amongst the citizens of Pakistan on petty sectional differences and nefarious activities carried against each other in violation of inter alia, the following Injunctions of Islam and the Fundamental Rights as conferred by the Constitution of the Islamic Republic of Pakistan. On the other hand, under such circumstances, in the Courts of Pakistan such false cases are cropping up in which allegations of incest, sadism, bestiality, lesbianism, coitus per os, murder after commission of rape, gang rapes, urinating into the mouth and carnal intercourse against the order of nature with one's wife, daughter and son, intercourse with a dead female etc. Are made and due to the hatred generated by extreme sectarianism. ' When we look at the present case before us in this general perspective, we find certain mysteries of the case unfolding themselves before us in the following manner." ' The Counsel has contended that the appreciation of evidence in the present case needs a highly cautious dealing in view of the abovementioned judicial notice taken by a D.B. Of this Court. The learned counsel for State has admitted that such a charged atmosphere is existing in the locality to which this case belongs as well as in the contiguous areas which are falling on the Indian side of Karunjhar mountains and continue upto Gujarat and Maharashtar. I do agree with both the counsel that the present case needs a microscopic dealing to satisfy the needs of justice. 5. Admittedly, the parties belong to two different religions namely.
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' Sanatan (commonly known as Hindus) and Christianity. The Christians are neo-christians and have been converted from Kolhis and other scheduled as well as non-scheduled low castes of Hinduism. They are the complainant party. On the others side are the appellants and their acquitted co-accused who are Kolhi Hindus. Peter (P.W.1), the complainant, has admitted that he is matriculate and has shown his occupation to the Hostel Incharge in the title of his deposition. In F.I.R., he has stated that he is a teacher in Christian Hostel, Nangarparkar. During cross he has admitted that he has been converted from Kolhi religion to Christianity and that he resides in Nangarparkar from 16 years and knows the entire Kolhi community of the area including the appellants and their original residential villages near Nangarparkar. He has also admitted that at the relevant time, his victim daughter was studying in Saint Michael Convent High School, Mirpurkhas where a foreigner mother Mrjleena was Principal who was murdered on 28-6-1997. This admitted position of the complainant needs to be compared with the admitted position of the appellants. Rawato has declared in his statement on oath that he is a Hindu by caste a Kolhi, by occupation a teacher. During his examination-in-chief he has stated that due to conversions there was some resentment. It appears that there was one hostel in which Kolhi students were residing and were being converted by the hostel-keepers who were Christians. Appellant Rawato, being a teacher, shifted the Kolhi students to his own hostel to save them from conversion. During cross, prosecution has utterly failed to create a dent in the abovementioned statement under section 340(2), Cr.P.C. On the contrary, appellant Rawato has further proved his plea of defence in the following words:-- "The complainant party were also previously Kolhis, and they were converted to Christianity, therefore, they approached us to change our religion. The complainant also preached his religion to Kolhi students, residing in the hostel, and I had shifted those Kolhi students in my own hostel to save them from conversion, and due to that reason, the complainant has involved me in this case, at the instance of Christian missionary. I pray for justice. One Chhagan boy was being converted as Christian, but due to my efforts, he was saved. Voluntarily say some of our Kolhis have changed their religion, but they again were converted in their own religion." ' Appellant Maghno has replied to a suggestion by prosecution as under:-- "Complainant is Priest of Christian community/religion. Since my childhood, I know complainant is a Priest." ' From this admitted position of the parties, it stands clarified that the appellant Rawato was a teacher and was resisting the missionary activities of the complainant which had generated enmity which has been admitted by ' Mst. Anjleena (P.W.3) during cross. To this effect is the following piece of admission by Heero (P.W.5); ' Voluntarily says that recently about 20 days back due to pressure of Kolhi teachers, some of the students of Peter had left his hostel and joined with Kolhis. ' Even the Investigation Officer Nabi Bakhsh P.W.9 has admitted existence of animus between the two communities in the following words:-- "I knew that accused Dheengo was Vice-Chairman of UC Adhigama and was a respectable person. It is correct to suggest that there was dispute in between Christian community and accused community over conversions of religion Wore this incident." 6. The learned counsel for appellant has vehemently contended that the delay in lodging F.I.R. Has not been explained plausibly and that there is conflict among the material witnesses about the computation of this delay per se. According to Peter (P.W.1), the complainant, occurrence had taken place in between the nights of 15/16th June, 1997 and he had returned from Quetta on 29 of June, 1997 and was immediately informed about the crime. On this point he has been corroborated by Mst. Anjleena (P.W.3), the victim. They have been contradicted by Karmshi (P.W.2) who has
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deposed that 5/6 days prior to the incident, the parents of the alleged victim had gone to Quetta and it was the night of 15th June, 1997 when the incident had taken place. Meaning there-by that the complainant (P.W.1) had returned by 20th or 21st of June, 1997 and was informed accordingly. But during cross he has stated that the complainant had returned on 19-6-1997. The F.I.R. Was actually lodged on 9-7-1997. Consequently the F.I.R. Was lodged 24 or 25 days after the incident, but from the date of knowledge of complainant the computation becomes conflicting. In case Karmshi (P.W.2) is believed it will come to a delay of 19 or 20 days, and according to complainant it stands computed as 10 days. Even if this conflict is ignored, the question arises as to whether explanations about delay are plausible. The learned counsel has contended that this delay in lodging F.I.R. Is divisible into two periods and each period lacks a plausible explanation. First is the period between the date of occurrence and the date of the knowledge of the complainant. About this period Karmshi (P.W.2) is forwarding the following…
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