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Petitioner: ABDUL WALI (WALI KHAN) and 3 others VS Respondent: ABDUR RASHID ARIF and 2 others
Court Name: Peshawar High Court Judge(s): Rooh-ul-Amin Khan, Irshad Qaiser Title: ABDUL WALI (WALI KHAN) and 3 others vs ABDUR RASHID ARIF and 2 others Case No.: Writ Petition No,63 of 2010 Date of Judgment:2012-12-12 Reported As: 2013 P Cr. L J 767 Result: Petition dismissed
JUDGMENT
JUDGMENT ' ROOH-UL-AMIN KHAN, J.---Through the instant writ petition the petitioners have called in question the validity of the impugned order dated 14-12-2009 with the prayer that the same may to declared as illegal, without jurisdiction and without lawful authority. 2. Brief, but relevant facts of the case are that on 9-12-2006 the respondent No,1 had filed a complaint under section 3 of the Illegal Dispossession Act, 2005 before the Sessions Judge Peshawar, wherein he claimed himself as owner on the basis of Mutation bearing No,6970 dated 14-4-2003 and in possession of a house measuring 6 Marlas, situated at Sultan Colony Dalazak Road Peshawar. He alleged in the complainant that a few days before he abandoned his accommodation in the disputed house and shifted to another house. In the meanwhile respondents (hereinafter referred to as the petitioners), entered and forcibly occupied the house and illegally dispossessed him. The complaint was dismissed for non-prosecution, thus after a few days he filed another complaint, wherein he claimed forcible dispossession from a house measuring 12 Marlas, despite the fact that in previous complaint he had alleged his dispossession from a house measuring 6 Marlas. The petitioners were summoned by the Additional Sessions Judge-V, Peshawar and during the course of proceedings and trial of the case, the parties arrived at settlement and consequently the petitioners were acquitted of the charge vide order dated 18- 7-2009 in the following manner:-- "Complainant Abdul Rahid son of Haji Qalandar Khan present with counsel Mr. Ghani-ur-Rehman, Advocate. All the respondents present in person with counsel Mr. Abdul Aziz Kundi Advocate. ' The parties stated at the bar to have settled the matter outside the court by way of compromise. The respondent agreed to pay Rs,13,50,000 to the complainant who will transfer the remaining Six
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Marlas of disputed house in the name of respondents No,2 to 5 from his name or the name of his wife whosoever amongst them is recorded owner of the said area of the house. Accordingly, the respondents paid Rs, 13,50,000 in court to the complainant who received the same in presence of counsel and agreed to transfer the remaining six marlas within 10 days to the respondent. In this respect the statement of complainant was recorded and after admitting the same was signed by him duly countersigned by his counsel. The compromise statement was also signed by respondent and their counsel Mr. Abdul Aziz Kundi, which was placed on file Exh. PA. ' Since the parties have compromised the matter and today the complainant received cash amount of Rs,13,50,000 from respondent who admits possession of respondents of the house already taken by them and also admits to transfer the remaining Six Marlas from his name/name of his wife and also bound to attend the office of Tehsildar/Registrar in case of mutation registered in the name of respondents Nos.2 to 5, failing which he would face the consequences of law whereafter, the complainant did not press to proceed with the. Complaint. ' Accordingly, in these circumstances, the accused/respondents are acquitted on the basis of compromise, they are on bail, their bail is cancelled whereafter the sureties are also relieved from the liability of bonds". 3. As mentioned, in the above said judgment the, respondent No,1 received sale consideration in lieu of 6 Marlas house and made undertaking and promised before the Court for transfer of the disputed house in the name of the petitioners. The respondents failed to fulfil the promise and undertaking within the stipulated time, therefore, the petitioners filed an application before the learned Additional Sessions Judge-V Peshawar, (Trial Court) for summoning the complainant and directing him to implement the compromise statement dated 12-7-2009, recorded before the Court, or to take appropriate legal action against the complainant/respondent No,1 and to punish him in accordance with law. The petitioner also prayed for issuance of direction to the respondent` for return of the sale consideration i.e, 13,50,000, which he has received in the Court for transfer of 6 Marlas house in the name of the petitioner. On 14-11-2009 the complainant-respondent No,1 namely Abdur Rashid Arif along with his counsel appeared before the Additional Sessions Judge and agreed to honour the order dated 18-7-2009, but on the next date i.e, 23-11-2009 the counsel for the petitioners produced photocopies of certain mutations, whereby it transpired that the respondent. No, 1 had already alienated his entire holding and was thus left with no property, which he could be transferred to the petitioners. The case ultimately came up for hearing on 14-12-2009 and on the date fixed the learned Additional Sessions Judge dismissed the application of the petitioners with observation that the petitioners would be at liberty to seek their remedy in Civil Court, if they so desire. Hence this' petition. ' Having heard the learned counsel for the parties and perusal of the record reveals that respondent No,1 had filed the complaint under section 3 of Illegal Dispossession Act, 2005 before the Sessions Judge Peshawar, which was marked to Additional Sessions Judge Peshawar for trial. During pendency of trial the parties patched up the matter and effected compromise, thus the petitioners were acquitted of the charges on the basis of compromise. Since at the time of acquittal, the petitioners were in possession' of the disputed house, therefore, the learned Additional Sessions Judge did not pass any order for delivery of possession under section 8 of the illegal Dispossession Act. 5. While passing the order of acquittal the learned Additional Sessions Judge finally decided the case and nothing was left to be taken at a future date. The above said order of acquittal falls within the meaning of "judgment" as envisaged in the provision of section 367 of Criminal Procedure Code. The word "judgment" is not defined in the Criminal Procedure Code, but in general words it means a final judicial determination of a case by a competent Court of law. In legal parlance it A would mean, "judicial verdict of a Court, deciding a case finally". With pronouncement of a
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judgment all the proceedings pending before the Court would stand terminated, leaving nothing for future to be considered or re-considered. No doubt in the instant case the judgment has been passed by the Additional Sessions Judge under Illegal Dispossession Act, 2005, but section 9 of the Act ibid provides that unless otherwise provided in the Illegal Dispossession Act, the provisions of the Criminal Procedure Code 1898 shall be applicable to all the proceedings under the Act ibid. In the instant case after announcement of judgment and acquitting the petitioners of the charge, the trial Court has conclusively decided the matter and the adjudication has attained finality, thus the trial Court has become functus officio and in no manner was competent to alter, change or review the judgment. There is no cavil that there is no specific provision for review in Criminal Procedure Code, rather section 369, Cr.P.C. Provides specific bar on the review of final judgment passed in a criminal case. The power of review may only be exercised in exceptional 'cases, where any arithmetical error appears on the surface of the record. 6. The petitioners filed the application before the trial Court for summoning respondent No,1 and directing him to implement the compromise statement dated 18-7-2009 made before the Court. He also requested for taking legal action against the respondent No,1 and to punish him in accordance with law, besides, directing him to refund the amount of Rs,13,50,000 to the petitioners. The above said application C has no legal footing and violative of section 369, Cr.P.C. If any action on the above mentioned application of the petitioners is taken, it would amount to review of the previous order of acquittal, which is not provided under the law and the Criminal Courts are not vested with the power to alter, modify, re-open or review the case after final decision. Besides, the petitioners have more than one alternate remedies to avail before Civil as well Criminal Courts. A similar proposition came before the August Supreme Court of Pakistan in Dr. A. Basit, Advocate v. Deputy Registrar (Judicial) and others (PLD 2001 SC 1028), wherein law was laid down in the following terms:- ' we hold that while exercising jurisdiction under Article 184(3) of the Constitution the findings recorded by this Court in aforesaid Criminal Appeals cannot be set aside/modified, nor any portion of it can be expunged or substituted". 7. Article 199 of the Constitution of Islamic Republic of Pakistan 1973 provides that the same may not be invoked if alternate remedy is available to the aggrieved party. In one of the case, it was observed by the honourable Supreme Court of Pakistan that jurisdiction under Article 199 could be exercised only on proof of non-availability of adequate remedy. In support of the above observations, reliance may be placed on Human Rights Case (Environment Pollution in Balochistan) (PLD 1994 SC 102) and Muhammad Yusuf and another v. Muhammad Sarfaraz Cheema, Additional District Judge and others (PLD 1987 SC 21). In the light of the above discussion and circumstances of the case this writ petition being devoid of any merit is hereby dismissed with no order as to costs. Petition dismissed. 2013 P Cr, L J 772 [Federal Shariat Court] Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ Mst. ZOHRA BIBI-- -Appellant versus The STATE and 2 others---Respondents Criminal Appeal No, 37-I of 2011, decided on 15th February, 2013. (a) Offence of Zina (Enforcement of. Hudood) Ordinance (VII of 1979)- ----Ss.10(4) & 16---Criminal Procedure Code (V of 1898), S.417(2-A)--Federal Shariat Court (Procedure) Rules, 1981, R.18(a)---Constitution of Pakistan, Arts.203-DD(2), proviso & 203-J--- Appeal against acquittal---Limitation-Plea raised by accused was that appeal against his acquittal filed by complainant was barred by limitation as provided iit S.417(2-A), Cr.P.C.---
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Validity---Federal Shariat Court was empowered under proviso to Art.203-DD(2) of the Constitution to convert finding of acquittal into one of conviction, subject to providing opportunity to acquitted accused of being heard in his own defence---Appeal against acquittal order was to be governed by Art.203-DD of the Constitution---Provision of S.417(2-A), Cr.P.C. Was not applicable to appeal against acquittal, as the same was being heard and decided in accordance with jurisdiction vested in Federal Shariat Court as provided under Art.203-DD of the Constitution--- Federal Shariat Court (Procedure) Rules, 1981, were framed in exercise of powers conferred by Art. 203-J of the Constitution and would have precedence over procedural law including Criminal Procedure Code, 1898---Appeal by complainant was filed within the period of limitation as provided in Rule 18(a) of Federal Shariat Court (Procedure) Rules, 1981. [p. 7791 A & B (b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),-- ----Ss. 10(4), 11 & 16---Criminal Procedure Code (V of 1898), S.417(2-A)---Federal Shariat Court (Procedure) Rules, 1981, R.18(a)--- Constitution of Pakistan, Art.203-DD(2), proviso---Gang rape--- Appeal against acquittal---Appreciation of evidence---Benefit of doubt--- Accused was acquitted by Trial Court on the ground that charge against him was not proved---Validity--- Victim was not recovered from Dera' of accused rather she was produced before police by a political person---According to recovery memo, recovery of victim was shown in another case registered under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereas the acquittal order was passed in other case---Swabs which were taken from vagina of victim were sent to the office of Chemical Examiner, who found the same to be stained with semen but Chemical Examiner sent one swa b to Serologist for semen grouping---According to report of Serologist, one vaginal swa b was insufficient for grouping---Victim according to her own 'statement was subjected to sexual intercourse by three accused during a period spreading over two months and eleven days of her illegal detention in 'Dera' of accused---In absence of semen grouping as well as DNA test, no accused could be held guilty of commission of offence of Zina with victim---Prosecution failed to prove charges against acquitted accused beyond reasonable shadow of doubt-- Judgment of acquittal passed by Trial Court, extending benefit of doubt to accused was un-exceptionable---Appeal was dismissed in circumstances. [pp. 780, 7821 C & G (c) Criminal trial-- --Opinion of police---Scope---Ipse dixit of police is not binding on Court. [p. 781] D (d) Criminal trial--- ----Benefit of doubt must accrue in favour of accused as matter of right and not of grace. [p. 781] E Tariq Pervez v. The State 1995 SCM R 1345 rd. (e) Criminal Procedure Code (V of 1898)--- ----S. 417---Appeal against acquittal---Appreciation of evidence--Principles---Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction---Appraisal of evidence in appeal against conviction is done strictly, whereas in appeal against acquittal, such rigid method of appraisement is not to be applied---Appellate Court should not interfere in acquittal judgment unless the same is found to be perverse, arbitrary, capricious, result of gross misreading or non-reading of evidence, resulting in miscarriage of justice---Presumption of innocence of accused is multiplied after his acquittal from a court of competent jurisdiction. [p. 7811 F Muhammad Aslam v. Sabir Hussain and others 2009 SCM R 985 rel. Muhammad Yousaf Zia and Saifullah Khan for Appellant. Ch. Abdul Ghaffar for Respondents. Ch. Muhammad Sarwar Sidhu, Additional P.-G. Punjab for the State. Date of hearing: 7th February, 2013. JUDGMENT ' SH. AHMAD FAROOQ, J.---Through the instant criminal appeal, the appellant/Mst. Zohra Bibi has challenged the judgment dated 16-6-2011, whereby the learned Additional Sessions Judge, Gujrat
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has acquitted respondents Nos.2 and 3/Muhammad Sharif and Zafar Shah of the charges under sections 16 and 10(4) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section. 109, P.P.C. By extending them benefit of doubt. 2. The prosecution story as narrated in the F.I.R. Which was lodged by Mst. Zohra Bibi is that on 22- 8-2005, her daughter namely Saiqa Rashid was taken from her house by Mst. Zubaida Bibi and Mst. Sumaira Bibi in her absence on the pretext of visiting the shrine of Baba Hanju Sarkar for lighting agarbatties. The youngest daughter of the complainant namely Mst. Asia Rashid also informed the complainant that the said accused/Mst. Zubaida and Sumaira along with two unknown male accused boarded Mst. Saiqa Rashid in a white coloured car and went towards Zaman Hotel. The complainant alleged that the accused have abducted her daughter on the abetment of Zafar Ali Shah, Zulfiqar Ali Shah, Ahmad Ali Shah and Javed alias Mitho Butt with an intention to kill her. The motive for the occurrence is stated to be the registration of a case earlier by the complainant against the accused regarding the murder of her other daughter namely Mst. Asifa Rashid. 3. After completion of usual investigation, a report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences. 4. The learned trial Court framed the charge against the accused on 19-3-2011 under sections 16 and 10(4) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 109, P.P.C. The accused did not plead guilty and claimed to be tried. 5. The prosecution in order to substantiate the charges against the accused produced nine witnesses. However, the learned Prosecutor gave up Malik Liaqat Ali, DSP and. Mukhtar Ahmed, S.I and closed the prosecution evidence after tendering the reports of Serologist/Exh.PK and Chemical Examiner/Exh.PL. The learned trial Court also examined Mst. Asia Rashid as C.W.1. There is no need to reproduce the gist of the statements of the witnesses of the prosecution in this judgment as the same has been done by the learned trial Court in the impugned judgment dated 16-6-2011. However, the relevant portions of the statements of the witnesses of the prosecution would be discussed and examined in the subsequent paragraphs of this judgment. 6. After the completion of the evidence of the prosecution, the learned trial Court examined the acquitted-accused/Muhammad Sharif and Zafar Ali Shah as envisaged under section 342, Cr.P.C. Wherein they categorically denied the occurrence and claimed innocence. In response to a crucial question during the course of their examination, the accused/present respondents Nos.2 and 3 replied as follows:-- "We are innocent and were also declared innocent in all the successive investigation of police department including RIB, Gujranwala which remained unchallenged and even case was also recommended to be cancelled. Complainant and her other family members are having bad repute and are habitual blackmailer and there are many criminal cases registered against complainant, P.Ws. And her other family members i.e, F.I.R. No,62/93 under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979, P.S Civil Line, Gujrat Exh.DA, F.I.Rs, Nos.383/92, 250/2001, 251/2001, 734/86, 450/89, 435/89 under Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979 at P.S. Sadar Gujrat Exh.DB, Exh.DC, Exh.DD, Exh.DE, Exh.DF and Exh.DG respectively. F.I.R. Nos.249/01, 191/96, 192/96, 269/89, 263/89, 735/86 under section 13-20 Arms Ordinance police station Sadar Gujrat i.e, Exh. DH, Exh.DJ, Exh.DK, Exh.DL, Exh.DM and Exh.DN, F.I.R. No,434/89 under section 353/322/307, P.P.C., 13 20-65, A.O. At P.S. Sadar Gujrat i.e, Exh.DP. ' However, both the respondents neither opted to make statements on oath in disproof of the charges as provided under section 340(2), Cr.P.C. Nor produced any evidence in their defence. 7. Upon conclusion of the trial, the learned trial Court vide judgment dated 16-6-2011 has acquitted the accused/present respondents Nos.2 and 3 of the charges by extending them benefit of doubt. 8. Before proceeding further in the matter, we would like to point out that non-bailable warrant of arrest of Zafar Shah/accused/respondent No,3 were issued by this Court on 19-11-2012 and 3-12-
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2012 and according to the report of Bashir Ahmad, ASI, P.S Saddar Gujrat dated 26-1-2013 forwarded by the S.H.O. Police Station Saddar Gujrat, the said Zafar Shah had gone abroad. Hence, perpetual non-bailable warrants of arrest of Zafar Shah/respondent No,3 are ordered to be issued and the instant appeal to the extent of Zafar Shah is consigned to the Record Room. However, the appellant can get the instant appeal resurrected after the arrest of Zafar Shah/respondent No,3. Now, we proceed to adjudicate the instant appeal only to the extent of respondent No,2/Muhammad Sharif. 9. Learned counsel for the appellant submitted that the impugned judgment is the result of misreading and non-reading of evidence available on record. He further submitted that the sufficient incriminating evidence was produced by the prosecution which proved that the present respondents had committed Gang Rape and the learned trial Court has wrongly acquitted them. He further submitted that the learned trial Court totally ignored the legal value of the statement of the victim which was duly supported by medical evidence and the report of the Chemical Examiner. He maintained that the respondents remained absconder for a long period which proved their involvement in the case. He contended that the learned trial Court while acquitting the respondents did not take into consideration the findings recorded by his predecessor in the judgment dated 15-5-2010 whereby a coaccused/Mirza Aftab Ahmad of the same F.1.R. Was convicted on the basis of similar evidence. He claimed that the Investigating Officer did not investigate the case fairly in order to protect his colleague namely Mirza Aftab Ahmad who is Sub- Inspector in the Police Department. Finally, he pleaded that the respondents No,2 may be convicted for commission of the offence of "zina" and sentenced accordingly in accordance with law. 10. Conversely, the learned counsel for respondent No,2/ Muhammad Sharif raised a preliminary objection to the effect that the instant appeal is barred by time. He submitted that the instant appeal has been filed by a person aggrieved by the order of acquittal passed in a case arising out of F.I.R. No,449 of 2005, dated 22-5-2005 and as such, according to section 417(2-A), Cr.P.C., the period of limitation for filing of such an appeal, is only thirty days. He explained that the impugned judgment was passed on 16-6-2011, whereas the instant appeal has been filed on 16-8-2011 i.e, after a period of sixty days. On merits, he submitted that acquitted accused/Muhammad Sharif was not named in the F.I.R. He, further submitted that initially, not only the first Investigating Officer but also Malik Liaqat Ali DSP/RIB Gujranwala found the accused nominated in the F.I.R. Innocent and came to the conclusion that Mst. Saiqa Rashid was neither abducted nor subjected to "zina". The police also recommended the case for cancellation vide daily diary No,47, dated 21-4-2007. However, a report was submitted under section 173, Cr.P.C. In the learned trial Court while placing the name of the accused persons in Column No,2. He contended that neither the victim was recovered from the custody of acquitted accused/Muhammad Sharif nor the grouping of the semen could be done by the Serologist as evident from the report Exh.PK. He further contended that the dera' of Muhammad Sharif where the victim.Was allegedly confined and subjected to gang rape was neither pointed out by the victim nor the Investigating Officer could locate the same. Lastly, he argued that the prosecution could not prove the case against acquitted accused/Muhammad Sharif beyond reasonable shadow of doubt and he was rightly acquitted by the learned trial Court vide impugned judgment dated 16-6-2011. 11. However, the learned Additional Prosecutor-General Punjab, while supporting the instant appeal, submitted that the solitary statement of the victim namely Mst. Saiqa Rashid wherein she stated that Muhammad Sharif had been committing sexual intercourse with her during her illegal detention, is sufficient to convict the said accused. 12. We have heard the learned counsel for the appellant as well as the learned counsel for the respondent No,2/Muhammad Sharif and the learned Additional Prosecutor-General Punjab. We have also carefully examined the record and the impugned judgment dated 16-6-2011.
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13. First of all, we would like to decide the question of limitation for filing of the instant appeal which has been raised by the learned counsel for respondent No,2/Muhammad Sharif. Admittedly, the instant appeal has been filed by a lady/Mst. Zohra Bibi, who is aggrieved of the order dated 16-6- 2011 whereby respondent No,2/Muhammad Sharif has been acquitted by the learned Additional Sessions Judge Gujrat in a case arising out of F.I.R. No,449 of 2005 dated 22-8-2005. Ordinarily, against an order of acquittal passed by a trial Court, an appeal is filed in the High Court in the light of section 417, Cr.P.C. There is no cavil to the legal proposition that the period of limitation for filing an appeal in the High Court, by an aggrieved person against an order of acquittal passed by the trial Court is thirty days. According to section 417(2-A), Cr.P.C, which is being reproduced hereunder for ready reference and proper appreciation:- ' Sec.417. Appeal in case of acquittal.---(1) Subject to the provisions of sub-section (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court ,from an original or appellate order of acquittal passed by Court other than a High Court. -(2) ................... (2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order. 14. The impugned order of acquittal was passed on 16-6-2011 whereas the instant appeal was filed on 16-8-2011 i.e, after more than thirty days. Here, we would like to point out that the learned counsel for respondent…
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