Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Fida Hussain and others VS Respondent: The State and others
Court Name: Lahore High Court Judge(s): Ali Zia Bajwa Title: Fida Hussain and others vs The State and others Case No.: Criminal Appeals Nos. 476, 492 and 578 of 2012 Date of Judgment:2021-12-03 Reported As: 2023 PCRLJ 1546 Result: Appeals allowed
JUDGMENT
JUDGMENT ALI ZIA BAJWA, J. Through this single judgment, I intend to decide above titled three criminal appeals. Fida Hussain son of Fateh Muhammad, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur, Sabir son of Ahmad Bakhsh, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur, Saifullah son of Rahim Bakhsh, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur, Latif son of Rahim Bakhsh, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur through Criminal Appeal No.476/2012, Riaz Hussain son of Imam Bakhsh, caste Pauli, resident of Mouza Dhora Rindan, Tehsil Jampur, District. Rajanpur and Riaz son of Khameesa, caste Pauli, resident of Mouza Islampur, Tehsil Jampur, District Rajanpur through Criminal Appeal No.578/2012 whereas Abdul Rasheed son of Fateh Muhammad, caste Pauli, resident of Rakh Peeroo Wala, Tehsil Jampur, District Rajanpur through Criminal Appeal No.492/2012, appellants, have challenged their convictions and sentences recorded by learned Additional Sessions Judge, Jampur vide judgment dated 07.07.2012 wherein, while deciding case FIR No.80/2008, dated 26.03.2008, for offence under sections 364-A, 365-B, 376-11, 452, 148, 149, Pakistan Penal Code, 1860 (`P.P.C.'), registered with Police Station Muhammamdpur, appellants were convicted and sentenced as detailed under:- Sr.#Name of the appellantsConviction and sentence 1) Fida Hussain Sabir Rasheed Saifullah Under sections 365-B/149, P.P.C., sentenced to undergo imprisonment for life with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo simple imprisonment for six months.
---
## Page 2
Lateef Under sections 376(ii)/149, P.P.C., sentenced to undergo imprisonment for life with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo simple imprisonment for six months. Under sections 452/149, P.P.C., sentenced to undergo rigorous imprisonment for five years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo simple imprisonment for one month. Under section 148, P.P.C., sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/- and in case of default in payment thereof, to further undergo S.I. for one month. 2) Riaz son of Imam Bakhsh Riaz son of Khameesa Under sections 365-B/149, P.P.C., sentenced to undergo imprisonment for life with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months. Under sections 452/149, P.P.C., sentenced to undergo R.I. for five years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo S.I. for one month. Under section 148, P.P.C., sentenced to undergo R.I. for two years with fine of Rs.5,000/- and in case of default in payment thereof, to further undergo S.I. for one month. However, Farid Bakhsh, Hazoor Bakhsh son of Ali Muhammad, Farooq, Faiz Muhammad, Shabbir, Hameed, Irshad son of Fateh Muhammad, Hazoor Bakhsh son of Ahmad Bakhsh, Irshad son of Khameesa, Ghaffar, Shamla, Rab Nawaz, Falak Sher, Balakh Sher and Ahmad Bakhsh, accused were acquitted of the charges. 2. The prosecution story as portrayed in the FIR (Exh.PA) lodged on the statement of Aziz Ahmed son of Malik Muhammad, caste Bhani, resident of Mouza Islampura (PW-1) is that about 11/12 years prior to the registration of FIR, marriage of his daughter Mst. Taj Mai was solemnized with Allah Bakhsh son of Haji Muhammad, caste Bhani and four boys and three daughters were born out of this wedlock. That, on 22.03.2008, the complainant along with his spouse Mst. Korri went to the house of their daughter. That, Muhammad Akram brother of the complainant, Reham Ali and Jamshed Ahmed relatives of the complainant, were also sitting on the cots in the courtyard of the said house, when at 10:00 a.m., all of a sudden, a FIAT tractor-trolley stopped at the gate of the haveli. The complainant went towards the gate and saw that 24/25 accused persons armed with firearms were alighting from the trolley. Sabir son of Ahmed Bakhsh, Bahawal son of Ahmed Bakhsh, Rasheed son of Fateh Muhammad, Fida Hussain son of Fateh Muhammad, all Pawli by caste and residents of Islampur armed with guns and rifles forcibly entered into the house of complainant's daughter. Sabir son of Ahmed Bakhsh raised lalkara to teach a lesson for abducting Mst. Sajida daughter of Rasheed, caste Pawli by relative of the complainant namely Rafi Ullah son of Liaqat. Thereafter, Sabir son of Ahmed Bakhsh, Rasheed son of Fateh Muhammad entered into the eastern room, dragged Mst. Taj Mai outside and boarded her in the trolley whereas Fida Hussain son of Fateh Muhammad, Bahawal son of Ahmed Bakhsh took Nadia Bibi alias Guddo Bibi aged about 8/9 years and boarded her too, in the said trolley. That, remaining accused persons namely (1) Sher son of Ahmed Bakhsh, (2) Hazoor Bakhsh son of Ahmed Bakhsh, (3) Hameed son of Fateh Muhammad, (4) Irshad son of Fateh Muhammad, (5) Irshad son of Khameesa, (6) Riaz son of Khameesa, (7) Ghaffar son of Khameesa, (8) Saif Ullah son of Raheem Bakhsh, (9) Lateef son of Raheem Bakhsh, all Pawli by caste and residents of Mouza Islampur, (10) Kaura son of Rab Nawaz, (11) Fareed Bakhsh son of Rab Nawaz, (12) Rab Nawaz son of Bahadur, (13) Jaseem son of Bahadur, (14) Falak Sher son of Dar Muhammad, (15) Balakh Sher son of Dar Muhammad, all Pawli by caste and residents of Mouza Kotla, (16) Ahmed Bakhsh son of Eisa, (17) Farooq Ahmed, (18) Faiz Muhammad, (19) Hazoor Bakhsh, (20) Shamla and (21) Riaz son of Imam Bakhsh while armed with
---
## Page 3
firearms, in aid to their co-accused, entered into the haveli and started making firing. Upon hearing hue and cry of complainant side, PWs were attracted to the spot. All the accused persons in connivance with each other, kidnapped Mst. Taj Mai and Mst. Guddo Mai. 3. Motive behind the occurrence as alleged in the crime report was that Rafi Ullah, a relative of complainant side, had abducted Mst. Sajida daughter of Abdul Rasheed of accused side and in order to take revenge of her abduction, accused persons had committed instant occurrence. Proceedings of Investigating Agency 4. After registration of the case, investigation was entrusted to Nazir Abbas, Inspector (since dead), who got conducted medical examination of the victim. He prepared rough- site plan of the place of occurrence and recorded statements of the prosecution witnesses under section 161, Cr.P.C. Said I.O. also arrested Abdul Rasheed appellant, who during the course of interrogation, led to the recovery of gun .12-bore (P-5) along with one live cartridge (P-6). Thereafter, investigation was entrusted to Abdul Shakoor, ASI (PW-7), who on 11.12.2009 arrested Riaz Ahmed, appellant and who on his disclosure on 17.12.2009, got recovered .12-bore (P-1) along with one live cartridge (P-2). During the course of investigation having found the appellants guilty, Investigating Officer submitted report under section 173, Cr.P.C. against Fida Hussain, Abdul Rasheed, Fareed Bux, Hazoor Bux and Riaz while placing their names in column No.3. Rest of the accused persons were declared were not found involved in the occurrence, by the investigating agency. Proceedings Before the Trial Court 5. After submission of report under section 173, Cr.P.C, learned trial court only summoned and formally indicted the accused against whom such report was filed. After recording the statement of complainant, rest of the accused who stood the trial were summoned vide order dated 03.03.2010 and charge was framed against them to which they pleaded not guilty and claimed trial. Prosecution in order to establish its case produced as many as nine (9) prosecution witnesses. 6. Azeez Ahmed (PW-1) is complainant and eye-witness of occurrence while Mst. Taj Mai (`prosecutrix') (PW-2) is one of the victims of the occurrence. Dr. Ammara Haider (PW-4) medically examined the prosecutrix. Nazir Abbas, Inspector/Investigating Officer of the case had died prior recording of his evidence and Parvez Ahmad 378/HC (PW-6) appeared to furnish secondary evidence on his behalf. Abdul Shakoor, ASI (PW-7) is also investigating officer of this case. 7. After completion of the prosecution evidence, statements of the appellants and acquitted co- accused, as provided under section 342, Cr.P.C, were recorded by the learned trial Court, wherein they maintained their innocence. Upon completion of trial, the learned trial court found the prosecution case proved to the hilt, thus, convicted and sentenced the appellants as mentioned and detailed above. However, Farid Bakhsh, Hazoor Bakhsh son of Ali Muhammad, Farooq, Faiz Muhammad, Shabbir, Hameed, Irshad son of Fateh Muhammad, Hazoor Bakhsh son of Ahmad Bakhsh, Irshad son of Khameesa, Ghaffar, Shamla, Rab Nawaz, Falak Sher, Balakh Sher and Ahmad Baldish, accused were acquitted of the charges. 8. Arguments heard, record perused. 9. Prosecution case mainly hinges upon Ocular account, medical evidence, recovery of firearm weapons and motive. I would like to discuss each piece of evidence to determine its probative value and strength. Ocular Account 10. Ocular account was furnished through the complainant Aziz Muhammad (PW.1) and one of the victims of occurrence Taj Mai (PW.2). According to prosecution story occurrence took place on 22.03.2008 at 10 a.m. but crime was reported to police on 26.03.2008 at 2:05 p.m. with an extraordinary delay of four days for which no plausible explanation could be furnished. Admittedly, the inter-se distance between the place of occurrence and police station is only 08-KM. Extraordinary delay in reporting the alleged occurrence to police clearly suggests that possibility of
---
## Page 4
deliberation, consultation and concoction cannot be ruled out. It is an axiomatic principle of criminal jurisprudence that when there is delay in reporting the incident to the police then prosecution is under obligation to explain such delay and failure to do that will badly reflect upon the credibility of prosecution version.[1] Respectful reliance can further be placed upon the decision of august Supreme Court in Mst. Asia Bibi case[2], wherein august Supreme Court has considered the delay in reporting the matter to the police, fatal for the prosecution story. Relevant extract is provided below: "29. ...it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be, fatal and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused..." 11. Appellants were nominated in the crime report despite the admitted fact that they were not previously known to the complainant of this case. Complainant stated during his cross- examination that accused were not known to him prior to occurrence. Prosecution could not furnish any explanation as to how complainant got to know the names of accused persons nominated in the crime report. Victim also admitted this fact during her cross-examination that appellants were not previously known to her. This sole fact leads to the inference that complainant got recorded instant FIR after due deliberation and consultation as alleged by the appellants side. Implication of all the accused persons by name by prosecutrix is also astonishing because it is admitted by her that accused persons were not known to her before the occurrence. Although she tried to cover-up this deficiency by swing that she came to know about the names of accused persons during her confinement where they used to call each other by their names but this fact is negated from her own statement. She specifically mentioned in her statement before trial court that she was kept there by the accused persons Farid, Rasheed, Sabir, Safiullah, Latif and Riaz and they committed rape with her without her consent. She failed to explain as to how she got to know about the names of the remaining accused persons because she did not allege that all other accused persons also used to visit the place of her captivity. One can easily infer that she did not get her statement recorded at her own rather same was recorded upon the dictation of her father i.e. complainant of this case, as he admitted in his statement as PW.1. Prosecution version qua the escape of victim from the confinement of appellants is also highly unbelievable. According to prosecutrix, when she got herself extricated from the clutches of appellants and ran away from the place of her confinement on 10.04.2008, she met her husband at Adda Charagh Shah and he took her to the police station, where she got recorded her statement and was medically examined thereafter. Relevant portion of her statement is provided below: "However, after finding an opportunity, I came out from the clutches of the accused. I came to Adda Charagh Shah, where my husband met me. My husband took me to the police station, where I made my statement to the Police. Thereafter, I was also medically examined." On the other hand, in her cross-examination, she stated that at the time of recording her statement, her father Aziz Muhammad, Muhammad Akram, Jamshed and Reham Ali were accompanying her and this fact has also created doubt about her story regarding her extrication and recording of her statement before the local police especially when it is specifically asserted by the complainant that both the abductees were produced by him before the police and statements of both the abductees were also recorded on his dictation. He has specifically stated that at that time he was accompanied by one Malik Jamil Bhani.
---
## Page 5
12. It is pertinent to mention that surprisingly, whole of prosecutions story is silent about the recovery of Mst. Nadia Bibi alias Guddo daughter of Taj Mai. No prosecution witness uttered a single word regarding the date, place, time etc. of release of aforementioned Nadia Bibi. Astonishingly, she was also not produced as witness in the Court despite the fact that she was a star witnesses of prosecution case being one of the abductees of the occurrence. The silence of prosecution story regarding her recovery and her non-production before the learned trial court has raised serious doubts about the prosecution story. On 06.12.2010 learned DDPP for state gave up Nadia alias Guddo being minor. Giving up a witness as unnecessary or won over is prerogative of prosecution. Prosecution is at liberty to produce as many witnesses as it thinks fit to prove its case against the accused. But giving up a witness because she was minor has no legal justification. A child is fully competent to depose before a court of law subject to his/her capacity and intellect to understand what he/she deposes about. Whether a child is a competent witness or not and whether he/she passes the 'rationality test' is something which is to be decided by the court in accordance with Article 3 read with Article 17 of Qanun-e-Shahadat, 1984 after carrying out voir dire i.e. French term- which means speak the truth. The term Voir Dire as defined in various lexicons has been provided hereunder for further elaboration: According to Black's Law dictionary voir dire connotes: "A preliminary examination to test the competence of a witness or evidence"[3] According to Webster's Unabridged Dictionary: "An oath administered to a proposed witness or juror by which he or she is sworn to speak the truth in an examination to ascertain his or her competence." According to Advance Law Lexicon A rule requiring that a party must call the best evidence that the nature of case will allow.[4] According to Advance Law Lexicon A special form of oath administered to a witness whose competency to give evidence in the particular matter before the Court is in question, or who is to be examined as to some other collateral matter.[5] Voir dire is an inquiry within a trial to decide relevant ancillary issues which are material for just decision of that trial. Without conducting voir dire taking a plea by the prosecution that Nadia alias Guddo cannot be produced as a witness before the trial court being a minor is something unheard of and legally net justified. It is discretion of the trial court to determine the competence of a child witness through putting different questions to him/her and if she/he passes the 'rationality test', she/he is a competent witness. Without opting such process as envisaged under the law, a sheer illegality was committed and damage shall be suffered by none other but prosecution. In Raja Khurram Ali Khan,[6] apex Court after referring Articles 3 and 17 of Qanun-e-Shahadat, 1984 empathetically held that: "45. A close reading of the above provisions reveals that the essential conditions for a child, or for that matter any person, to appear and testify as a witness, is that the child or the person must have the capacity and intelligence of understanding the questions put to him, and also be able to rationally respond thereto. This threshold has been referred to as passing the "rationality test", and the practice that has developed with time in our jurisdiction is for the same to be carried out by the presiding Judge prior to recording the evidence of the child witness." In the circumstances, she could have been the most natural witness of the occurrence and an adverse inference can legitimately be drawn under Article 129(g) of the Qanun-e-Shahadat, 1984 that had she been produced, she would have not supported the case of the prosecution.[7] According to crime report there were three other prosecution witnesses namely Muhammad Akram, Raham Ali and Jamshade Ahmed, who witnessed the abduction of Taj Mai and her
---
## Page 6
daughter Nadia Bibi alias Guddo, but they were not produced before the trial court, hence prosecution withheld their evidence too. Best evidence rule is one of the vital rules applicable in criminal cases. This rule has great significance in criminal trials. An accused is considered innocent until proven guilty and his guilt should be proved beyond any reasonable doubt which implies that prosecution is duty bound to produce best available evidence to prove his guilt. If duty is cast upon the court to arrive at the truth, it is also obligatory for the prosecution to come to court with the whole truth by making complete disclosure without withholding any substantial evidence. A failure to adduce the best evidence thus makes the prosecution case susceptible, leading to an adverse inference being drawn against it, as such, failure amounts to suppression of actual facts. In the aforementioned circumstances it is abundantly clear that the prosecution withheld the best available evidence and in view of Article 129(g) of Qanun-e-Shahadat, 1984, adverse inference shall safely be drawn that had these prosecution witnesses been produced before the learned trial court they would not have supported the prosecution case. Reliance can be placed on a plethora of judgments of esteemed apex Court.[8] In Muhammad Rafique[9] in para number 33 it was held by the apex Court that 'It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it.' It was firmly held in Muhammad Asif[10] as under: "In our considered opinion these two independent witnesses could provide the first degree of evidence of reliable nature, thus, adverse inference has been drawn that because they were not supporting the prosecution case so set up, therefore, they were dropped at the trial. In this way, the best evidence, independent in nature, was withheld from the court for obvious reasons. This fact by itself is sufficient to discard the evidence of the interested and related witnesses because their evidence is not only of the second degree but also for the reason given above due to their unnatural conduct." When there is better evidence available with the prosecution, then it is bounden duty of prosecution to produce that evidence before the court to prove every limb of its case beyond reasonable doubt. In the aforementioned circumstances this Court has no hesitation to hold that best evidence in this case was withheld which adversely affected the prosecution case and benefit shall go to none other but the appellants. 14. There is another important aspect which should not be left unaddressed. The role of trial court is not of merely of a silent umpire or spectator. What if either of the parties withholds any evidence which should be produced to unveil the true scenario and which, if produced, be unfavourable to the party withholding such evidence. In such a situation a question that arises for deliberation is whether the trial Judge should simply overlook the attempt of a party to conceal real facts from the court or is there a legal duty of his own, independent of the parties, to play an intrusive role in the proceedings to find out the truth and administer justice. The purpose behind the entire mechanism of trial is to arrive at the truth and to discover the veracity of allegations levelled against the accused. Under the scheme of law as provided in the Code of Criminal Procedure, 1898 ('Code'), trial court is not left dependent on the prosecution or defense. In order to enable the trial court to do complete and substantial justice various provisions have been provided. The salutary provisions of section 540 of the Code were enacted where under any court, by exercising its discretionary authority at any stage of enquiry, trial or other proceeding, can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. In the same manner, section 94 of the Code is of vital significance through which a trial court can summon any document which is necessary to arrive at a just
---
## Page 7
decision of the case. Trial court is fully empowered to summon any witness or document which it thinks is available but not produced by the parties in order to conceal the truth and which is important for dispensation of justice. Rendering a judgment on the basis of inchoate, unconvincing and speculative presentation of facts would not meet the ends of justice. It shall also not be out of place to add a line of caution that summoning of already available evidence but withheld by the parties and crafting new evidence are entirely different. Former is within the domain of trial court but later is obviously prohibited, especially in an adversarial system. 15. Moreover, neither the prosecutrix pointed out her place of confinement nor did investigating officer visit the same. According to Taj Mai she and her daughter were taken to the house of some Sauntra but astonishingly he was not joined into investigation by the investigating officer. Not pointing out the place of occurrence, despite the fact that she extricated herself from appellants and came to police station, creates serious dent in prosecution case and makes it highly doubtful. In the aforementioned circumstances, prosecution story qua the abduction of Taj Mai and her daughter Nadia alias Guddo and how they became free from the clutches of appellants is shrouded in mystery and could not be proved by the prosecution beyond reasonable doubt. It is an admitted fact that one Bahawal brother of accused Sabir was murdered on the alleged day of occurrence and son in law of the complainant and husband of the victim Taj Mai was nominated as an accused in that case. Relevant part of statement of complainant is reproduced hereinafter: "We have heard that Bahawal Pauli was murdered on the day of instant occurrence. Allah Baksh is my son in law. On the third day of occurrence, I came to know that murder case was registered. I had heard that my son in law Allah Baksh was one of the accused in that murder case." Ocular account is full of doubts and contradiction qua the manner and mode of occurrence, hence, cannot be relied upon being result of consultation and deliberation. Considering all the aforementioned facts and circumstances, I am persuaded to hold that ocular…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.