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Petitioner: ALI HUSSAIN VS Respondent: MUHAMMAD RAFIQUE AND 2 OTHERS
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Sardar Said Muhammad Khan, Sher Zaman Chaudhary Title: ALI HUSSAIN vs MUHAMMAD RAFIQUE AND 2 OTHERS Case No.: Criminal Appeal No, 1 of 1984 Criminal Miscellaneous No, 1 of 1984 Date of Judgment:1985-10-12 Reported As: PLD 1986 SC (A J & K) 31 Result: Appeal accepted
JUDGMENT
JUDGMENT ' SHER ZAMAN CHAUDHRY, J.- Facts giving rise to this appeal directed against the judgment of the Shariat Court, passed on 11-1-1984, as claimed by the prosecution briefly stated are that on the night between 3rd and 4th of December, 1983 the respondents alongwith other co-accused after breaking window entered into the house of Ali Hussain, appellant. Armed with sticks and revolvers, the respondents inflicted injuries on the person of complainant, his wife Sadiqa Jan and his two daughters Safia and Sumaira. Sumaira, a student of 6th class, and was minor of 13 years age at the time, was then forcibly lifted and kidnapped by the accused-party. On raising alarm Muhammad Hussain a retired Forester, Baqa Muhammad and others arrived at the scene immediately after the occurrence and were informed about the incident by the complainant. On written report made by the complainant at Police Station, Hajira a case was registered against the accused under sections 458/109, A. P. C. And under sections 11/16 and 19 of Offence of Zina (Enforcement of Hudood) Ordinance. 2. On an application, moved at Mirpur, respondents were allowed interim bail by the Shariat Court on 22-12-1983 which was finally confirmed on 11-1-1984. It is this judgment of the Shariat Court, passed on 11-1-1984, the validity of which has now been challenged through this appeal by All Hussain complainant. Raja Slier Muhammad, the learned counsel for the appellant, argued that there exists sufficient evidence on record which clearly connects the accused-respondents, with the crime. In view of the strong prima facie case allowing bail to the respondents was not a proper exercise of the discretion by the Shariat Court. The impugned judgment having been based on artificial reasons could not, therefore, be sustained, submitted the learned Advocate. Sardar Rafique Mahmood, the learned Advocate-General, while supporting the prosecution submitted
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that finding of the Shariat Court that it was a case of further inquiry was erroneous, not supported by evidence on record and as such liable to be set aside. The respondents, in view of the circumstances of the case, were not entitled to the concession of bail. The impugned judgment being violative to the principles governing the bail matters could not be sustained, contended the learned Advocate-General. 3. Controverting the arguments addressed on behalf of the prosecution Mr. Mumtaz Hussain Ratnore, the learned counsel for the respondents, contended that Mst. Sumaira, the alleged abductee, was major and a willing party in the marriage. She was the lawfully wedded wife of Muhammad Rafique respondent. Her statement recorded on the 8th of December, 1983, Nikahnama showing the date of marriage as 8th December and the age certificate issued by the D. H. 0. Palland is after her physical examination were supportive to his submissions, submitted the learned counsel. The finding recorded by the Shariat Court that it was a case of further inquiry was, therefore, according to him, perfectly valid and was open to no exception. Reference in support of his submissions was made by him to 1982 SCMR 894, 1068, 1982 P Cr. L J 1310 and PLD 1977 SC 642. 4. We have carefully gone through the impugned judgment, the documents placed on record by the accused-respondents, F. I. R. And the Police diaries containing the statements of P. Ws. Recorded by the police under section 161, Cr. P. C. Apart from the statements of injured P. Ws., including the statement of Sumaira abductee who supported the prosecution case, statements of witnesses of recovery of school register containing the date of abductee's birtn as 12-8-1970 were also recorded by the police. A perusal of the impugned judgment reveals that the learned Shariat Court having mainly been impressed by the Nikah document came to the conclusion that it was a case of further inquiry and as such respondents in its estimation were entitled to the concession of bail. 5. The question in view of the point taken by the learned Advocates for the respective parties that now, therefore, needs resolution is :- "As to whether reasons made basis by the Shariat Court for arriving at the conclusion that it was a case of further inquiry, were valid and in accordance with the rules governing the bail matters. Respondents' own case as disclosed by them in their application for bail is that Sumaira appeared on 8th of December, 1983 before Magistrate Pallandri with free will and got her statement recorded. She then according to them on the same day contracted marriage with Muhammad Rafique accused-respondent. In support of their claim they placed Nikahnama on Shariat Court's file. Influenced by this document the Shariat Court at page 3 of the impugned judgment observed :- "As the question of `Nikah' of Mst. Sumaira Khanum with Muhammad Rafique, petitioner, has cropped up in the shape of photostat of `Nikannama' it will be harsh to refuse bait to the accused- petitioners at this stage. As stated earlier, the question of abduction as well as 'Mikan' alleged by the accused persons, necessitate further inquiry, it is considered expedient to allow bail than to refuse the same." ' It is thus clear that the sole ground made basis for the impugned judgment was the factum of so- called 6. We have given our deep thought to the point involved in the case. The point, in our estimation, that needs to be taken note of, however, is that offence is alleged to have been committed on the night between 3rd and 4th of December, 1983. The case against the accused-respondents, as is evident from the copy of F. I. R. Placed on record, was registered on the 5th of Decemoef, whereas the `Nikah' even if assumed to b genuine was, as claimed by the respondents themselves, performed on 8th of December. It is no case of the respondents that Mst. Sumaira Khatoon was already married to Muhammad Rafique respondent when the occurrence is alleged to have taken place. It is thus clear that this aspect of the case so vital to the just and proper decision of the bail
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petition somehow escaped the notice of the learned Shariat Court. Since the proposition involved in the case was not attended to in its correct respective, this lapse has, therefore, in our view, rendered the impugned' judgment invalid. 7. It is correct that Supreme Court would be reluctant to interfere with the discretion exercised by the Courts below in bail matters but then if in its estimation discretion is found to have been exercised in violation to the principles governing the bail matters; it will not hesitate to look into the matter itself. We have carefully gone through the judgments referred by the learned counsel in support of his case. We are in respectful agreement with the principles enunciated in those authorities but those autnorities and the principles enunciated in those judgments have no relevancy to the case now in hand as the point really involved has not been attended to by the learned Shariat Court in its correct perspective. 8. Offences like kidnapping and Zina from their very nature tend to destroy the very fabric of a just and civilised society, moreso of Islami society to which we all claim to belong to. We are not oblivious o the principle that mere heinousness of alleged offence would seldom be made basis declining bail to the accused-petitioners. To refuse bail there must exist evidence on record clearly connecting the accused with th crime. There must, so to say, exist a prima facie case against the accused. Viewing the proposition in this perspective we find that accused respondents, as have expressly been stated in the F. I. R. Have effected forcible entry into the house of complainant and after inflicting injuries on the person of complainant and other inmates of the house forcibly lifted the unmarried minor daughter of the complainant with the intention to commit Zina. Then there are statements of injured P. Ws. Clear! Implicating the respondents. There is also statement of Sumaira Khatoon, who did not support the respondents even before the Shariat Court, which was recorded by the police after respondents were allowed bail. She supported the prosecution and alleged that she had consistently been raped by the two respondents while she was in their custody. The evidence on record without going into the deeper appre:iation of it clearly connects the respondents with the crime alleged to have been committed by them. 9. Since there exists clear prima facie case against the respondents I cannot, therefore, be said that it is a case of further inquiry. The E impugned judgment having been based on faulty approach by the learned Shariat Court to the point involved is invalid and as such could not b maintained. ' For the foregoing reasons we set aside the impugned judgment. Bail allowed to the respondents by the Shariat Court stands cancelled. Appealr accepted. ORDER OF THE COURT ' Before announcing the judgment the case was called. Although the respondents were directed to appear in the Court today they are absent. Judgment is announced in their absence. The trial Court shall issue non-bailable warrants against the accused-respondents and shall also initiate proceedings for forfeiting the surety bonds as well as personal bonds of the absconding accused. Bail cancelled. P D 1986 SC (A J & K) 35 Present : Raja Muhammad Khurshid Khan, C. J. And Sardar Said Muhammad Khan, Criminal Appeal No, 8 of 1983 STATE-Appellant versus NASEER AHMAD-Respondent (On appeal from the judgment of the Shariat Court dated 9-6-1983, in Criminal Appeal No, 13 of 1981). Criminal Revision Petition No, 1 of 1983 STATE-Appellant versus BOSTAN AND 2 OTHERS-Respondents (Criminal Revision Petition against the judgment of the Shariat Court r dated 31-1-1983, in Criminal Appeal No 22 of 1981),
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Criminal Appeal No, 8 of 1983 and Criminal Revision No, 1 of 1983, ,'decided on 15th December, 1985. (a) Criminal Procedure Code (V of 1898)- -- S. 417-Penal Codc (XLV of 1960) S. 302/307-Azad Jammu and Kashmir 151, .Ic Penal Laws Enforcement Act, 1974, S. 5/15-Appeal against acquittal-Accused killing one person and injuring fifteen by throwing hand grenade-Delay in lodging first information report not wilful - Prosecution version not rendered doubtful despite alleged improvements in statements of prosecution witnesses and complainant-Two out of six eye-witnesses related to accused as well and shown inimical to him- Shariat Court holding that all six eye-witnesses had deep rooted enmity against accused and insisting upon independent corroboration of their testimony-Wrong assumption of fact on part of Shariat Court-Miscarriage of Justice-Statement of a defence witness suffering from inherent defects making his testimony doubtful - Other defence witnesses, supporting plea of alibi of accused, closely related to him and not trustworthy-No doubt existing about identification of accused - Order of acquittal passed by Shariat Court set aside and order of conviction passed by trial Court against accu.Ed., restored in circumstances.-[Appeal against acquittal]. [pp. 41, 42]D, G, H, J, K & L Mian Said Baghdad v. Said Mian and others 1983 SCMR 117; State v. Muhammad Hu>sain and 8 others 1981 P Cr. L J 129; Haider All v. Mohammad Hussain and another 1981 SCMR 112; Hussain Bakhsh v. Allah Bakhsh and others 1981 SCMR 410; Azad Jammu and Kashmir Gave, nment v. Sardar Shah PLD 1960 Azad J & K 1; Bachal v. The _State PLD 1978 Kar. 710; Sher Dil alias Sher Gut and another v. The State 1973 P Cr. L J 802; Ghulam Abbas v. Zafar Ali and 3 others 1970 SC M R 527 ref. (b) Criminal Procedure Code (V of 1898)- -- S. 154-First Information Report-Delay in loding of F. I. R.-Accused killing one p-.:son and injuring fifteen including women and children by throwing hand grenade-Complainant and others remained busy in dressing wounds of injured-Police Station at a distance of nine miles connected with place of occurrence with a Katcha path passing through difficult hilly tertain-Delay caused in lodging first information report in circumstances, held, could not be said to be wilful.-[First Information Report-Delay]. [p. 39]A Karamat Ali v. The State 1979 SCMR 438 ref. (e) Penal Code (XLV of 1860)- -- S. 302/307-Criminal Procedure Code (V of 1898), S. 417-Appreciation of evidence - Mere relationship of witnesses with deceased no ground to render their testimony as partisan especially when they were also related to accused.-[Evidence]. [p. 3918 (d)Penal Code (XLV of 1860)- -- S. 302/307 - Criminal Procedure Code (V of 1898), S. 417-Appreciation of evidence - Statement of an interested but natural witness can be believed with implicit faith without difficulty-If witness is related to both complainant and accused party and his evidence otherwise does not suffer from any inherent defect, Court held, would not insist upon necessity of corroborating statement of such witness. [p. 40]C Muhammad Sharf v. The State PLD 1978 SC (A J & K) 146 rel. (e) Criminal Procedure Code (V of 1898)- --- S. 154-Penal Code (XLV of 1860), S. 302/307-First Informa- tion Report - Mention of each and every detail of incident in first information report, held, neither possible nor necessary ( I ) Penal Code (XLV of 1860)- [p. 411D --S. 302/307-Criminal Procedure Code (V of 1898), S3. 164. 161 & 417-Appreciation of evidence -Statements of witnesses-Omission or contradiction- Marked difference. Held, existed between an Omission and contradiction-Omission could amount to a contradiction only if it was shown that it was not natural in circumstances of case that witness should have stated fact which he omitted in First Information Report or in his statement under S. 161,
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CriMinal Procedure Code-Omission must be shown not only to be material omission but it must amount to a material contradiction regarding testimony of a witness doubtful on crucial part of prosecution story, [p. 41]E (g) Criminal Procedure Code (V of 1898)- S. 417-Penal Code (XLV of 1860), S. 302/307-Appeal against acquittal-Ordinarily order of acquittal passed by Courts below, held, was not to be disturbed until and unless it was shown to be perverse or it was manifestly wrong and had resulted in miscarriage of justice. [p. 43]F Sardar Rafique Mahmood, Advocate-General for the State. Raja Mumtaz Hussain Rathore for Respondents. Date of hearing: 15th December, 1985. JUDGMENT ' SARDAR SAID MUHAMMAD KHAN, J.-As the above entitled appeal and the revision petition arise out of the same incident, we propose to dispose both of them. By this single order. 2. The respondents, Naseer Ahmed, Bostan Khan, Abdul Hussain and Munshi Khan, were tried by the District Criminal Court Poonch for offences under section 302/307, A. P. C. And section 5/15 of the Islamic Penal Laws Act read with section 34, A. P. C. For committing the murder one Aftab Ahmed and causing injuries to 15 others by throwing a hand grenade on 12-7-1979 at about 11-30 p. m. When Aftab Ahmed and others had gathered at the house of Muhammad Shall, P. W., for performing the ceremony of `Mehndi' of his marriage. Naseer Ahmed, respondent, was convicted and sentenced under section 5 of the Islamic Penal Laws Act: he was also imposed `Rakoomat-e- Adil to the tune of Rs, 40 000 under section 15 of the Islamic Penal Laws Act, which was to be paid to the injured persons after the recovery of the amount. The other accused-respondents were given the benefit of doubt and were acquitted by the trial Court. Naseer Ahmed, respondent, appealed to the Shariat Court against the judgment of the District Criminal Court while the State filed an appeal against the order of acquittal passed in favour of Bostan Khan and others. The appeal filed against Bostan Khan and others was dismissed in limine on 31-1-1983, while the appeal filed by Naseer Ahmed was accepted by the Shariat Court vide its judgment dated 9-6-1983 and his conviction and sentence were set at naught. Now, the State has filed the appeal against the order of the Shariat Court challenging the acquittal of Naseer Ahmed while the revision petition has been directed against the summary dismissal of the appeal which was filed against Bostan and others. 3. The brief facts, according to the prosecution, are that the marriage of Hay. Muhammad Shafi, P. W., was scheduled to take place on the 13th of July, 1979, and thus the ceremony of `Mehndi' was being performed at his house on the night intervening between 12th and 13th July, 1979. Muhammad Shafi had invited his `Brothers' to attend the aforesaid ceremony; and consequently the prosecution witnesses and some others were present in the house of Muhammad Shafi, when at about 11-30 p. m. Naseer Ahmed, respondent accompanied by Bostan Khan, Abdul Hussain and Subedar Munshi Khan appeared on the spot and threw a hand grenade inside the room where the said ceremony was in progress. The hand- grenade exploded inside the room causing injuries to as many as 16 persons, including women and children, out of whom. Aftab Ahmed succumbed to the injuries on the spat. The motive for murder, as stated in the F. 1. R., was that Nasreen Akhtar, daughter of Abdul Hussain, accused-respondent, was married to Muhammad Shafi, P. W., but she was divorced by him and was subsequently married to Zaheer Ahmed, the son of Bostan Khan, respondent, and the brother of Naseer Ahmed, respondent. Subsequently, Abdul Khaliq, P. W., promised the hand of his daughter to Muhammad Shafi and the marriage was scheduled for the 13th of July, 1979. It was in connection with the said marriage that the ceremony of 'Mehndi' was being performed. According to the prosecution case Bostan and Abdul Hussain were against the marriage of Muhammad Shafi with the daughter of Abdul Khaliq, P. W. It was further alleged that the village community had ex-communicated Bostan Khan,
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accused-respondent, for his doubtful character and due to some dispute over some `Khalsa' land. Thus, according to the prosecution, accused-respondents joined hands to avenge themselves by killing Muhammad Shafi, P. W. 4. We have heard the argumeuts and perused the record. It has been argued by the learned Advocate-General that the Shariat Court has opined that there was delay in making the F. I. R. Which was un-explained. He has argued that occurrence took place at about 11-30 p. m. And the distance of Police Station from the place of occurrence is nine miles. He has argued that it is on the record that Abdul Razzaq, complainant, left the place of occurrence for lodging the F. I. R. At about 4-00 a. m. And thus after covering a distance of nine miles for which he had moved through a difficult hilly terrain lodged the same at 9-00 a. m. He has argued that the Shariat Court has also over looked the fact that it is recorded in the F.I.R. That the delay in lodging the F. I. R. Was due to the fact that after the incident the complainant and others had been busy in dressing the wounds of injured persons, who were as many as 15 in number and some of them had sustained serious injuries. He has further contended that in the circumstances of the case it could not be expected from the complainant or any other person present on the spot to run to the Police Station immediately after the occurrence. It has been argued that the explosion of the hand grenade resulted not only in the death of Aftab Ahmed but also caused injuries to as many as 15 persons; including womed and children, and thus would have caused enormous confusion and terror in the minds of the persons present on the spot. He has cited Karamat All v. The State (I), wherein delay of twelve hours in lodging the F. I. R. Was not held to be inordinate because the Police Station was at a distance of 14 miles which was connected with the place of occurrence with a Kutcha path. (1) 1979 SCM R 438 5. After giving our due consideration to the arguments advanced, we are of the opinion that there is much force in the contention of the learned Advocate-General that taking into consideration the circumstances of the case, especially the number of the injured persons, the explanation recorded in the F. 1. R. And the distance of Police Station from the place of occurrence, it cannot be said that there was any wilful delay in lodging the F. I. R. The explosion of the hand grenade not only caused injuries to a large number of persons; including women and children, but must have created an havoc and terror in the minds of the persons present on the spot. In these circumstances, it is too much to expect from the persons present on the spot that they should have shown more promptness. In our view delay in lodging the F. I. R. Was necessitated by the nature of the incident and has been fully explained. 6. Next, it has been argued by the learned Advocate-General that the Shariat Court has misread the evidence and drew a wrong conclusion that all the prosecution witnesses had 'deep rooted' ,enmity with the respondents. He has particularly referred to the statements of Abdul Razzaq, complainant, and his brother Abdul Khaliq whose daughter was to be married to Muhammad Shafi. It has been argued that there is nothing on the record to substantiate the conclusion drawn by the Shariat Court that these two prosecution witnesses had any enmity whatsoever 'with the respondents. He has further maintained that the mere fact that Abdul Razzaq, complainant, was also cited as prosecution witness against Bostan and others in another case registered under section 307, A. P. C. Would not justify the inference that Abdul Razzaq, P. W., was inimical to the accused-respondents, especially so when he has admitted in the cross-examination that he was cited as witness in that case because the occurrence took place in his presence. 7. We have closely perused the statements of Abdul Razzaq and Abdul Khaliq, P. Ws., and we are of the view that nothing has been brought on the record to justify the conclusion that Abdul Razzaq and Abdul Khaliq, P. Ws., were inimical to Naseer Ahmed or other respondents. It is correct that the daughter of Abdul Khaliq, who is niece of Abdul Razzaq, P. W., was going to be married to
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Muhammad Shafi and this caused annoyance to the respondents but mere relationship is no ground to render their testimony as partisan, especially so when they . Are also related to rvaseer Ahmed, respondent, and Bostan, accused respondent. It has been stated by Abdul Razzaq, P. W., in cross examination that real sister of Bostan, accused-respondent, is married to his real uncle. It means that aunt of Naseer Ahmed, respondent, who is son of Bostan, respondent is married to the uncle of Abdul Razzaq, complainant and Abdul Khaliq, P. W. Thus, Abdul Razzaq, complainant, and Abdul Khaliq are not only related to Muhammad Shafi by virtue of subsequent marriage of Muhammad Shafi with the daughter of Abdul Khaliq, P.W., but they are also closely related to Bostan and Naseer Ahmed, accused-respondents. It has been also stated by Abdul Razzaq that he and the accused persons belong to the same family, meaning thereby that they descended from a common ancestor. It is on the record that Bostan, respondent, was ex-communicated by the village community as a whole and not by Muhammad Shafi, Abdul Razzaq or Abdul Khaliq. According to the prosecution case .The ex-communication was due to the belief of the village community that Bostan had illicit relations with his daughter-in-law. Thus, it cannot be said that Abdul Razzaq, complainant, or Abdul Khaliq had any personal grudge against Bostan or for that matter against Naseer Ahmed, accused-respondent. The learned Advocate-General has referred to a case reported as Muhammad Sharif v. The State (1), wherein it was opined that as to whether a witness is to be believed or not depends upon the facts of each cast. It was further opined that if the witnesses are found to be natural, law does not insist upon the necessity of corroboration before relying on the testimony of such persons even if they are found to be related to the deceased and are inimical to the accused. It was observed as under:- "The learned counsel firstly contended that the presence- of the eyewitnesses at the time of occurrence was open to serious doubts. He submitted that all the P. Ws. Are inter se related and inimical towards the accused and their presence at the relevant time of occurrence being unnatural they cannot inspire confidence and should not be relied upon without independent corroboration which is lacking in the present case. ' Whether a witness is to be believed depends on the circumstances and facts…
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