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Petitioner: THE STATE and others VS Respondent: ABDUL KHALIQ and others
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Mian Saqib Nisar, Shakirullah Jan Title: THE STATE and others vs ABDUL KHALIQ and others Case No.:Criminal Appeals Nos.163 to 171 and S.M. Case No.5 of 2005Criminal Appeal Nos.60, 61, 65, 66, 67, 60, 61, 62,
JUDGMENT
Reported As: PLD 2011 Supreme Court 554 Result: Appeals dismissed Judgment JUDGMENT MIAN SAQIB NISAR, J.---In all, these are ten matters arising out of the impugned judgment of the Lahore High Court dated 3-3- 2005; eight are the appeals (four each) against the acquittal of the accused having been initiated by the complainant and the State; one appeal has been filed by the convict and the last is the Suo Moto action espoused by this Court. 2. These matters have genesis in a criminal case, which has emanated from an F.I.R. (Exh.Pl) dated 30-6-2002, got registered by Mst. Mukhtar Mai, the complainant, with the Police Station Jatoi, District Muzzafargarh initially under section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (the Ordinance) read with section 109, P.P.C., but thereafter offences under section 19 of the Ordinance, sections 354-A, 217, 119 and 342, P.P.C. And section 7 of Anti-Terrorism Act, 1997 were also added thereto. It was reported by the complainant that on 22-6-2002, due to suspicion that her brother, Abdul Shakoor, has illicit relations with Mst. Naseem alias Salma, the girl, of Mastoi Baradari (accused party); the boy was confined by them in their house; in order to resolve the issue an Akhat"Panchayae was held the same day, in which Faiz Mastoi, Ramzan Pachar and Ghulam Fareed (all accused) acted as the Arbitrators (Salis) for the Mastois, while Maulvi Abdul Razzak (P.W.11) and Manzoor Hussain (not produced) were the arbitrators (Salis) for the complainant, besides Altaf Hussain (P.W.12) and Ghulam Nabi (not produced) were also present. It was decided by the `Panchayatthat by exchange marriages of the complainant with Abdul Khaliq, the accused (brother of Salma) and Abdul Shakoor with Salma the dispute be settled, but Ramzan Pachar and Ghulam Fareed did not agree to this arrangement, therefore, the arbitrators for the complainant left the Panchayat. However, subsequently on the promise of the accused party, that if Mst. Mukhtar Mai came to the `Panchayatand sought forgiveness for her brother, he shall be pardoned according to Baloch customs and the issue stand resolved, Mst. Mukhtar Mai went to the `Panchayat', `Akhatof the Mastois, which was outside the house of Abdul Khaliq (accused), but instead of upholding their word as promised, he caught hold of her when Faiz Mastoi said that Fareed (the father of complainant) be forgiven, but Abdul Khaliq, his brother Allah Ditta, Fayyaz, Ghulam Fareed son of Mahmood, all dragged her into the room of Khaliq's house, where zinabil-jabbar was committed with her by all of them. After one hour she was turned out of the room in a nude condition, with a torn shirt on her body, Fayyaz threw her shalwar and duppta towards her. It is specifically mentioned that due to fear/threats of the accused party and moral onslaught and retribution of the public, the case could not be initiated earlier. Mst. Mukhtar Mai at the time of the initiation of complaint was accompanied by her father Ghulam Fareed; Maulvi Abdul Razzak (P. W. 11), Altaf Hussain (P. W. 12), Sabir Hussain (P. W. 13), her maternal uncle, and one Ghulam Nabi (not produced), all of them were said to have either seen the occurrence or .Participated in the proceeding, or were present at the time of `Panchayat'. 3. Before proceeding further, it, may be pertinent to signify, that being a blatant, heinous and untoward incident it attracted themedia, both electronic and the print, and on account of an atrocious, pernicious and shameful act, it generated both grief and rage in the public at large. The higher-ups of the Government including some Ministers at the Federal and Provincial levels condemned the deplorable act; they, as well as, the Governor of Punjab visited the complainant to pacify her with promises; and avowing that justice shall be Provided to her forthwith. The Governor also announced some fiscal compensation for the aggrieved victim. The incident also drew the attention of the Apex Court and accordingly, a suo moto action was initiated, in which the progress of the investigation was monitored and directions were given for the submission, of chalfan within a specific period. The Anti-Terrorism Court was also directed to decide the matter within a time frame, by even proceeding on day-to-day basis. 4. On account of the investigation, in all 14 persons were indicted in the matter; they were arrested and challaned by the police and charged by the Anti-Terrorism Court (the Court) with the offences under sections 19(4), 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 149, P.P.C. And under section 354-A read with section 109, P.P.C. And under sections
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10 and 7(c) of the Anti-Terrorism Act, 1997.. During the course of trial, the prosecution examined 17 witnesses out of which the rather important ones are: Maulvi Abdul Razzak (P.W.11) who stated to be one of the arbitrators for the complainant party, but left the Panchayat when Ramzan and Fareed declined the proposal of exchange marriages; Altaf Hussain (P.W.12) the brother of P.W.11, who states tote present during the `Panchayat confabulations and is also the witness of the alleged occurrence; Sabir Hussain (P.W.13) who has also deposed in similar vein; Abdul Shakoor (P. W.10), in whose context the issue triggered off; he denied of having any illicit relations with Salma, rather claimed that, in fact, he was sodomized by Manzoor, Jamil and Punno (the later is the brother of Salma), It is alleged that the said culprits after fulfilling their lust asked him not to disclose the incident to anyone, but on his refusal, he was locked up with Salma and with an object to cover up their misdeed, a false allegory of an illicit relationship was concocted. P.W.2, Dr.Shahida Safdar examined Mst. Mukhtar Mai and proved a positive report of sexual intercourse with her as Exh.P-E. P.W.7. Is the Magistrate, who recorded the statements of the prosecution witnesses under section 164, Cr.P.C. And proved those as, Ghulam Fareed (Exh.P-L), Ghulam Nabi (Exh.P-M), Abdul Razzak (Exh.P-N) and Sabir Hussain (Exh.P-O). Six persons including the councillors of the area were examined as the court witnesses; while the Defence also produced six witnesses to support its version. 5. On the conclusion of the trial vide judgment dated 31-8-2002 eight out of the fourteen accused (originally) namely Aslam, Allah Ditta (son of Jan Muhammad), Khalil Ahmed, Ghulam Hussain, Hazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were acquitted by the Court, while all others were found guilty of the following offences and sentenced as under:-- "Taking into consideration all the aforesaid facts and the circumstances of the case, I find that Abdul Khaliq, Allah Ditta sons of Imam Bakhsh, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar, Faiz Muhammad alias Faiza (accused of Column No.3 of the challan) along with others, in prosecution of their common design, convened Panchayat, mostly of their Mastoi Baluch tribe of the area, on 22-6-2002 in Mauza Meerwala Police Station Jatoi and coerced, intimidated, overawed the complainant party, and the community; created a sense of fear and insecurity in society; and thereby committed the offences under sections 11, 10(4) of Ordinance VII of 1979 read with section 149/109, P.P.C. And 21-I ATA 1997, and section 6(1)(a). And (b) and subsection 2(b) ATA 1997, punishable under section 7(c) read with section 21-I ATA 1997 and sections 149/109, P.P.C.; and are, therefore, convicted under all the aforesaid provisions of the law. Actions of the aforesaid convicts were cruel which overawed and harassed the society at large and therefore, they are not entitled to any leniency. Under section 7(c) read with sections 21-I ATA, 1997 and 149/109, P.P.C. Each of the six accused persons, namely Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar and Faiz Muhammad alias Faiza accused are sentenced to imprisonment for life, plus fine Rs.20,000, and in default to further undergo six months' R.I. Under section 11 Ordinance VII of 1979 read with 149, P.P.C., each of the four accused namely Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz convicts are sentenced to undergo imprisonment for life, plus thirty stripes each and fine Rs.20,000 each, and in default to further undergo six monthsR.I each under section 10(4) Ordinance VII 1979 (liable to Taazir) read with 149, P.P.C., each one of them is sentenced to death, subject to confirmation by the Hon'ble High Court. Under section 11 Ordinance VII 1979 read with section 21-I and section 109/149 PPC, Ramzan Pachar and Faiz Muhammad alias Faiza (convicts) are sentenced to undergo imprisonment for life, plus thirty stripes, and fine Rs.20,000 and in default to further undergo six monthsR.I. Under section 10(4) Ordinance VII 1979 read with section 21-1 ATA 1997 and section 109/149, P.P.C., Muhammad Ramzan Pachar and Faiz Muhammad alias Faiza (both accused) are sentenced to death, (subject to confirmation by the Hon'ble Lahore High Court. However the accused were acquitted of the charge under section 354-A, P.P.C. 6. Aggrieved, the complainant/State filed appeals against the acquittals, while the judgment was, accordingly, challenged by the convicts, before the Lahore High Court. On hearing, the acquittal appeals were dismissed and by accepting the appeals of all others in toto, they were exonerated from all the charges, except Abdul Khaliq, whose appeal was partly allowed, in that his conviction was converted from section 10(4) of the Ordinance to section 10(3) thereof and his capital punishment was reduced to imprisonment for life, while the fine imposed by the Trial Court was maintained. The benefit of section 382-B, Cr.P.C. Was also extended to him. It seems significant to mention here, that while rendering its decision, the following (main) reasons/factors have prevailed with the Court: that the version of the prosecution is not proved beyond doubt, as its evidence is not confidence inspiring, thus, the benefit must go to the accused; delay in the lodging of the F.I.R. Has not been sufficiently and plausibly explained, the complainant party was reluctant to initiate the case, but influence in this behalf was exerted by Maulvi Abdul Razzak (P.W.11), who is the mastermind thereof; the F.I.R. Was registered after due consultations and deliberations; sole testimony of the prosecutrix to prove the occurrence, no one else had seen it and hence is insufficient to establish the guilt of the accused; the DNA and SEMEN tests were not conducted to prove the gang rape; there are contradictions and inconsistencies in the statements of the witnesses inter se and also with their previous statements; there are improvements in their statements made before the Court; the occurrence has not taken place in the manner as is stated by the P.Ws.; there are no significant marks or injuries on the body of the prosecutrix, which is very unusual in such kind of a case; no duration of the heeled marks on the body of the victim has been given by P.W.2., thus, it is not possible to ascertain, if those were sustained during the occurrence; adverse inferences have been drawn for the non-production of Ghulam Nabi and Ghulam Fareed in the witness box as they, in their statements under section 164, Cr.P.C. Recorded by the Magistrate, have not fully supported the version of the prosecution, the former's stance that on the given date/day he was not in the village and thus not a witness to the incident and/or modus operandi of the offence. The learned High Court has also considered the prosecution evidence regarding each of the accused, the individual role imputed to them and has found that the prosecution has failed to prove its case to their extent, except Abdul Khaliq for which reasons have been duly assigned in the impugned judgment. 7. This is how, the noted appeals have reached this Court, besides vide order dated 14-3-2005 this Court took suo moto cognizance of the matter, because soon after the impugned judgment, a learned Single Member of the Federal Shariat Court, while exercising
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the suo moto jurisdiction suspended the impugned judgment, thus it was inevitable for the Court to interfere in order to avoid a ludicrous situation from arising and to prevent a conflict between two constitutional institutions of the State. 8. Anyhow, the leave, in these matters, was granted on 28-6-2005 and the important points in this behalf are: the jurisdiction of the Anti-Terrorism Court to try the case; effect of delay in lodging the F.I.R.; whether the sole testimony of the victim in rape case is sufficient for the purpose of conviction; whether the marks of injuries on the body of the victim are superfluous to secure conviction; whether the High Court has A passed the judgment on surmises and conjectures in violation of/or ignoring the mandate of law; with reference to the above, some case law has also been cited in the LGO. Simultaneously, this Court was also pleased to suspend the impugned judgment and non-bailable warrants of arrest were issued of all the accused who were acquitted, even those by the trial Court; since then they are all behind the bars (Emphasis supplied). 9. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court, has opened arguments in these cases and has divided his submissions into two main heads: The Law and The Evidence. Under the first, he has dilated upon the point of jurisdiction and it is submitted that rape is a grievous bodily harm and injury to a person, thus the offence is duly covered by section 6(1)(a & b) read with sections 6(2)(b) and 7(c) of the Anti-Terrorism Act, 1997 (the Act). To elucidate the above, the learned counsel has cited the dictums reported as Bhupinder Sharma v. Himachal Pradesh (AIR 2003 SC 4684), Hyam v. DPP, HL [1974] 2 All ER 73, R v. Miller [1954] 2 All ER 529 and R v. Robinson [1993] 1 WLR 168. He has also relied upon the judgment reported as Shakil and 5 others v. The State (PLD 2010 SC 47) to argue, that in a gang rape case the conviction awarded by the Anti-Terrorism Court was upheld by this Court, primarily on the reasoning that no prejudice was caused to either side and none (in that case) had objected to the jurisdiction at any stage of the proceeding. The case, according to the learned counsel, is apt for settling the jurisdictional question and should be followed in this matter. In order to show, that the incident (gang rape) created terror in the area, thus attracting the provision of the Act, on account of which the residents thereof even thought of migration, he has referred to the statements of the court witnesses. 10. Malik Muhammad Saleem, the learned counsel for the defence has not joined issue with Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court on jurisdiction, rather has supported him by adding certain facts; that vide order dated 24-7-2002, the trial Court before commencing the proceeding decided that it has the jurisdiction, none assailed it; the Supreme Court also, as mentioned above, in the first suo motu action required the challan to be submitted before the Anti-Terrorism Court, and set out a time frame for the decision of the case by that Court. Be that as it may, during the hearing of the case, learned Attorney General was personally summoned and was put to notice on the issue, but the Deputy Attorney General who from time to time has been attending the proceeding(s), has not controverted the jurisdictional aspect. The State counsel has also not questioned it. 11. In view of the above, we find that the issue of jurisdiction in these matters has lost efficacy; it emerged on account of the specific situation (indicated above) which has ceased; no one at the relevant time raised any objection thereto; all the concerned are in agreement that the Anti-Terrorism Court had the jurisdiction; appeals before the learned High Court were, accordingly, filed by both the sides and decided without there being any such objection; more than eight years have elapsed since the incident took place and those who have been acquitted, obviously have acquired a right of defending their acquittal and the one who is convicted seeks his acquittal and the State and the complainant are pressing to set aside the acquittal(s) and are urging to maintain the conviction of Khaliq. It is not established if any prejudice has been caused to the parties in any manner whatsoever and therefore now, if at this stage any interference on the basis of jurisdiction is made, justice; rather than being promoted shall stand, defeated, and serious prejudice shall be caused to either side. Therefore, keeping in view the peculiar circumstances of the case and by following the ratio of the judgment reported as Shakil and 5 others (supra), we would not like to hold against the jurisdiction of the Anti-Terrorism Court and leave it an open question to be decided in some appropriate case, in which it is a live issue. 12. Adverting to the other submissions of Ch. Aitzaz Ahsan, Senior Advocate Supreme Court/the learned counsel, under the first head (The Law), he has argued that the impugned judgment is against the law and it cannot sustain; in this respect, he urged that previous statements of the P.Ws. Have been invalidly and illegally used by the learned High Court for impeaching their credibility, in particular, when the P.Ws. Had denied the making of certain statements, in the fact finding inquiry, conducted by the SP Crimes Range as per orders of the Government. Thus, without proving the statements in accordance with law, those could not be used for the purpose of confronting P.Ws. In their cross-examination. Besides, those were allegedly signed by the P.Ws., this is prohibited by section 162, Cr.P.0 and therefore these statements were illegal and could not be used in terms of Article 140 of the Qanun- eShahadat Order, 1984 (QSO, 1984). In this context, the learned counsel has also submitted that section 161, Cr.P.C. And Article 140 of the QSO, 1984 are governed by section 162, Cr.P.0 which prohibits the signing of these statements. Likewise, serious criticism has been made that the learned High Court has used and relied upon the statements under section 164, Cr.P.C. Of those persons, who were not produced by the prosecution in evidence; in this respect, it is stated that such statements are not substantive piece of evidence and have a limited use of confronting a PW, who appears in the Court and for no other purpose whatsoever, reliance is placed on 1969 PCr.LJ 1580; Yaru alias Yar Muhammad v. The State, 1995 M LD 515; Nasrullah v. The State 1985 PCr.LJ 428; Amjad Ali alias Kaloo v. The State 1984 SCM R 979; Nadir Khan and another v. The State 1974 PCr.LJ 224; Salehon v. The State AIR (33) 1946 PC 38; Brij Bhushan Singh v. Emperor; it is stated that holding the sole testimony of the prosecutrix insufficient to award conviction is against the law laid down in judgments reported as PLD 1991 SC 412; Mst. Nasreen v. Fayyaz Khan and another PLD 2003 SC 863; Muhammad Abbas v. The State 2002 SCM R 303; Rana Shahbaz Ahmad v. The State 1992 PCr.LJ 1944; Muhammad Amir Khan v. The State 2001 PCr.LJ 503; Saleem Khan and others v. The State and others 1993 PCr.LJ 1839; Muhammad Boota v. The State 1993 PCr.LJ 1839 (FSC); Muhammad Boota v. The State. He has further argued that the victim in rape cases does not require corroboration and has drawn support from PLD 1989 SC 742; Muhammad Akram v. The State 2002 SCM R 1009; Shahzad alias Shaddu and others v. The State 1999 SCM R 1102 Mehbood Ahmad v. The State 1975 SCM R 69: Haji Ahmad v. The State, PLD 1984 SC 218 (SAB); Ghulam Sarwar v. The State. Reference in the above context is also made to the cases from the Indian jurisdiction: (1995) 5 SCC 518; Karnel Singh v. M.P, AIR 1996 SC 1393; State of Punjab v. Gurmit Singh AIR 2003 SC 4684; Bhupinder Sharma v. Himachel Pardesh AIR 1988 SC 753;
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Bharwada Bhogiawal v. Gujerat; the view of the Court that DNA etc. Tests were not conducted due to any weakness of the prosecution case and the omission/lapse should effect the veracity of the prosecutrix is conjectural and is against the law declared by the superior Courts, even otherwise due to the lapse on part of the investigator, the prosecutrix should not suffer, besides, such omission is not fatal to the case of the prosecution, see 2002 SCM R 1009: Shahzad v. The State ; he submits along similar lines vis-a-vis the view of the Court qua the absence of marks of violence or the injuries on the body of the victim; learned counsel has referred to cases 1999 SCM R 1102: Mehboob Ahmed v. The State 1975 SCM R 69; Haji Ahmed v. The State PLD 1984 SC 218 (SAB); Ghulam Sarwar v. The State; the learned counsel has further pointed out that in this case while making statements under section 342, Cr.P.C., the accused have not propounded their defence, rather in this behalf have solely relied upon their cross- examination; however, in the cross-examination vital suggestions have been given through which the case of the prosecution in material aspect has been admitted. In this context, Ch. Aitzaz Ahsan, Senior Advocate Supreme Court has made reference to certain portions of the cross- examination, such as about sodomy with Abdul Shakoor, he mentioned that P.W.14. Stated "Incorrect to suggest that Abdul Khaliq accused stated that as his brother Punno had been accused of committing Sodomy with Abdul $hakoor, therefore, he could not give Salma in marriage to Abdul Shakoor" Like-wise P.W.11 while replying a suggestion, "it is false to suggest that in BADLA of Mst. Mukhtar Mai, Salma was proposed to be taken and for sodomy another woman plus land was demanded by the complainant" Again P.W.14 responded "incorrect to suggest that up to 26-6-2002, Abdul Razzaq PW and my father tried to compound the matter in terms of their demands or for the same reasons the sodomy case was also not got registered". On his contention that the incident of Zina with the prosecutrix and her nudity incident is also admitted, reference has been made by the learned counsel to the suggestions '"I did not state to the Inspector/SP/RC on their query. "whether after Zina-bil jabr the accused persons turned me out in quite naked condition"? Replied "no I had worn shirt and my private part was covered with duppta as the Azarband of my shalwar had been broken; shalwar was in my hand" "incorrect that she was handed over the shalwar inside the room after the rape" Further in response to a suggestion P.W.13 stated "incorrect that as we went there, we saw Mst. Mukhtar Mai holding Shalwar in her hand". Moreover in the cross-examination of Mst. Mukhtar Mai, the suggestions culminate into the following replies "I recorded in the complaint that I had come out of the room in nude condition" "I stated to the police that after the accused person committed Zina, I came out in nude condition and called out my father Ghulam Fareed. I had not put on the shalwar as it was without string, nor I covered the same on my body, and my father had arrived just then". Apcording to the learned counsel, this is a confession of the fact that she did come out of the room without shalwar on her body. The suggestion is only that the accused, (who had thus admittedly taken the shalwar off her body in the first instance) were not responsible for her venturing out naked. But this is an admission that she did come out naked. It is also pointed out that responding to a suggestion in relation to Abdul Khaliq, P. W.14 replied "incorrect to suggest that he performed conjugal duties as my husband in the said night", furthermore; "incorrect to suggest that upto 28-6-2002, Maulvi Abdul Razzak P.W. And my father tried to compound the matter in terms of their demands or for the same reason the sodomy case was, also not got registered". It is explained that the suggestions, in the cross-examination have the effect of a defence plea, is an implied admission, an indirect admission and to support his point of view, reliance has been placed on the cases reported as 2010 SCM R 1009: Muhammad Shah v. The State, 2000 YLR 1406; Khalid Pervaiz v. The State 2003 CLD 80(sic.); Mian Sajidur Rehman v. Messrs Granulars (Private) Limited through Manager Commercial Lahore, 2005 PCr.LJ 729; Ibrar Hussain v. The State 2004 M LD 1062: Muhammad Inayat alias Inayatoo v. The State 2006 SCM R 577; Muhammad Tashfeen and others v. The State. 13. Under the caption of 'THE EVIDENCEon the factual premise, it has been urged by the learned counsel that glaring and patent errors of misreading and non-reading of evidence have been…
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