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Petitioner: AFTAB ANWAR JALEEL VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Hayat Junejo Title: AFTAB ANWAR JALEEL vs THE STATE Case No.:Criminal Appeals Nos, 3, 6, 16, 19, 20, 23 and Criminal Miscellaneous
JUDGMENT
Reported As: PLD 1971 Karachi 156 Result: Order accordingly Judgment JUDGMENT This judgment shall dispose of 7 connected matters, namely, Criminal Appeals Nos, 3/1970, 6/1970, 16/1970, 19/1970, 20/1970 and 23/1970 filed by appellants Aftab Anwar Jaleel, Humayoon Ashraf, Altaf Ahmed, Akhtar Ali Bawla, Mst. Sohni Sakina and Mujibur Rehman respectively as well as Criminal Misc. Application No, 109/1970 filed by Mst. Rahim-un-nisa Aziz, a Defence Witness in the case for expunction of certain remarks against her. All these matters arise out of the judgment dated 30-12- 1969 of Mr. Muhammad Amir Ansari, Additional City Magistrate, Court No, 28, Karachi; whereby the learned Magistrate acquitted 8 out of 14 accused tried by `him on various charges relating to kidnapping and subsequent 'wrongful confinement as well as committing rape upon one Mst. Saeeda Karim, but convicted and sentenced the appellants as -follows: 1. Aftab Anwar Jaleel.- (a)Under section 376, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000.00 or in default further 2 years' R. I. (b)Under section 366, P. P. C. to 5 years' R. I. and a fine of Rs, 5,000.00 or in default further 1I years' R. I. (c)Under section 366-A, P. P. C. to 5 years' R. I. and a fine of Rs, 4,000.00 or in default 1 year R. I. 2. Hamayun Ashraf.-- (a)Under section 368, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I. (b)Under section 376/109, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I. 3. Altaf Ahmed.-- (a) Under section 366/109, P. P. C. to 2 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I.
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4. Akhtar Ali Bawla.-- (a) Under section 366, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I. 5. Mst. Sohni Sakina.-- (a)Under section 366-A, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000 or in default one year R. 1. (b)Under section 376/109, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000 or in default one year R. I. (c)Under section 368, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I. 6. Mujibur Rehman.- (a) Under section 376/114, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000 or in default 2 years' R. I. 2. The prosecution case briefly stated was as follows:- Mst. Saeeda Karim P. W. 2 was a 18 years old College student and resided with her father P. W. 1 Hifazat Karim. Appellant Mujibur Rehman, who is a pilot was their neighbour. It is alleged that women of bad repute were often found visiting his house and this fact came to the knowledge of the residents of the locality, who made an application against his conduct to East Pakistan Association. Appellant Mujibur Rehman met P. W. Hifazat Karim to seek his assistance in the matter but the latter refused to do so on which he was threatened. It is alleged that In order to take revenge from P. W. Hifazat Karim, Mujibur Rehman sought the assistance of his friends, namely, appellants Akhtar Ali, Altaf Ahmed and others and they started teasing Mst. Saeeda Karim who complained to her father about it. Two of the class-mates of the girl, namely, Nighat Gul and Ferhat Najma, who were both tried in this case alongwith the appellants but were acquitted, were said to be friendly with the appellants and they were persistently asking Mst. Saeeda Karim as well to develop friendship with them. This, however, was resisted by Mst. Saeeda Karim. In November 1965, Mst. Saeeda Karim was called from her class to the Principal's room where she found appellant Mujibur Rehman and Altaf Ahmed having tea with the Vice-Principal of the College, namely, Mst. Rahim-un-Nisa Aziz petitioner in Criminal Misc. Appeal No, 109/1970. Mrs. Aziz wanted the girl to get friendly with the appellants but the latter refused. Thereafter, efforts were made through Mst. Nighat Gul to bring the girl round. Not being successful in wooing Mst. Saeeda Karim the appellants used coercive methods to achieve their object in this connection. It is alleged that messages were sent to Mst. Saeeda Karim through Nighat Gul that unless she came round she would be scandalized at the College. On 14-3-1966 at about 7-40 a.m. Mst. Saeeda Karim was waiting as usual at Gru Mandir Bus-stop for getting into a bus for the College. Appellants Aftab Anwar Jaleel and Akhtar Ali appeared there in a car and the latter asked her to meet Aftab, but the girl refused and in confusion she started to return home. She had, however, hardly reached Bus-stop No, 1 of Jehangir Road when the two appellants again accosted her from the opposite direction. Appellant Aftab Anwer brought the car to a halt close to her, pretended to be her well-wisher and advised her to receive a piece of paper from Nighat Gul and read its contents. The girl got confused and asked for that piece of paper from Aftab, who asked her to get into the car. The girl obliged and took her seat in the car. Appellant Aftab, however, did not deliver the promised piece of paper but started the car. The girl raised alarm as a result of which she was threatened that in the event of doing so she would come to grief. This frightened her. Appellant Aftab thereafter took her to the house of his friend appellant Hymayun Ashraf situated at Shaheed-e-Millat Road where appellant Mujibur Rehman also reached shortly thereafter. Appellant Aftab Anwar took her forcibly to another room and committed rape upon her. During this time appellant Mujibur Rehman who was present there took several photographs of the girl and Aftab Anwar in this position. Appellant Aftab Anwar thereafter rang up Nighat Gul and Ferhat Najma as well as appellant Aftab Ahmed, who all came there and congratulated Aftab on his achievement. Mst. Saeeda Karim was threatened that as her photographs in that naked condition were now available of the appellants she had to obey their dictates. Being thus rendered helpless Saeeda Karim was taken to Malir where appellant Aftab again committed rape upon her. At 9-30 p.m. the same evening appellant Aftab took her in a car
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to the Grand Hotel where Nighat Gul, appellant Humayun Ashraf and two absconders, namely, Raj and Fozia were also present. The entire party thereafter came to house No, 16-H, Federal Area where Mst. Saeeda Karim was handed over to Raj and Fozia and confined in the said house for about 10 days. During this time Fozia brought newspapers which had published the news about the abduction of Saeeda Karim and showing the same to Raj asked her to arrange for the removal of the girl to another place as the police was looking for her. At this stage appellant Mst. Sohni Sakina came to the place of Raj and took the girl to her house in Paposhnagar. There she was used as a prostitute, and through Mst. Sohni several persons committed rape upon her. It is alleged that the girl implored everyone visiting her in this manner to provide help to her but her entreaties fell on deaf ears. Instead, she was threatened and beaten by Mst. Sohni Sakina as the latter felt that she was spoiling her business. Mst. Sohni Sakina also told the girl that the police was under her influence and that if she misbehaved she would be killed. After about a month's stay at Mst. Sohni Sakina's place, Saeeda Karim was taken in a car to Hyderabad in the company of Raj, Fozia, Mir Zaman and Shahenshah Hussain. The acquitted accused Chooto alias Ghulamali had made arrangements for them at Hyderabad. The party stayed at Hyderabad for 3 days where, it is alleged, this Chooto also raped Mst. Saeeda Karim and as compensation paid Rs, 500.00 to Mst. Sohni Sakina. The party thereafter returned to Karachi. About 3-4 days thereafter S. H. 0., Nazimabad raided the house of Mst. Sohni Sakina, and arrested her alongwith her husband and Saeeda Karim, presumably on charges of prostitution and of running a brothel but later all of them were bailed out. It is alleged that after the initial act of abduction and rape on the 14th of March 1966, appellant Aftab Anwar Jaleel kept in touch with Saeeda Karim as he was visiting Mst. Sohni off and on and even tried to arrange another house for them through an Estate Broker Khalil P. W. 6. Mst. Sohni thereafter shifted to a house in Nazimabad where also the same activities continued until the girl was recovered on 23rd of May 1966. She was taken to Jamshed Quarters Police Station and from there handed over to Mirza Islam Baig, S. I. P. Crime Branch, Karachi. As the report regarding Saeeda Karim's kidnapping had already been lodged with the Jamshed Quarters Police Station on 21-3-1966 by her father P. W. Hifazat Karim, the police started the investigation after her recovery and they arrested the appellants on 8-6-1966 onwards. Appellant Aftab Anwar Jaleel was already on bail which was granted to him in anticipation of his arrest. As some of the accused wanted to the crime were absconding, they were shown as such while the appellants and their co- accused who were acquitted were challaned by P. W. 14, Shabirul Hassan, Police Inspector, Special Branch, Karachi on 24-9-1966. 3. Mst. Saeeda Karim was examined by Dr. Nuzhat Ara Aziz, C. M. 0., Civil Hospital, Karachi on 28-6- 1966. The doctor found that her secondary sexual characters were well developed. There was, however, no external mark of injury on her body or on her perivate part. On local examination her hymen was found torn at 6 o'clock position and was old and healed. Her vegina admitted two fingers easily and was spacious. In the opinion of the doctor the girl was used to sexual intercourse. 4. The defence of the appellants was one of denial. Appellant Aftab Anwar Jaleel denied each and every allegation against him. He stated that long before 14th March 1966, he had "romantic attachment" with Saeeda Karim; and the courtship with her started in the house of D. W. Wahid Shibli, who is son-in-law of Saeeda Karim's uncle Mohammad Akbar. The appellant stated that Saeeda Karim even proposed that he should marry her but this was declined by him because by that time he had discovered that she was a girl of easy virtues. On this refusal Saeeda Karim threatened him that as her heart was broken, she would either commit suicide or would make his life miserable by involving the appellant in a false case. The appellant stated that about 4 months before 14-3-1966 his romance with Saeeda Karim came to an end and thereafter he had not contacted her at all. The appellant stated that the case against him was the outcome of revenge and as a result of this false case his career as a student
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as well as future citizen of the State had been completely ruined. Appellant Humayoon Ashraf stated that he was asked by P. W. Hifazat Karim as well as by P. I. Shabirul Hasan that he should become approver in this case against other accused and on his refusal to do so he was falsely involved in this case. He pleaded alibi by stating that on the alleged date of offence he was playing an Inter-Collegiate Match for Urdu College against S. M. College from 8-30 a.m. onwards. Appellant Altaf Ahmad's defence was also one of denial. He stated that P. W. Hifazat Karim had contacted and asked him to depose against appellant Mujibur Rehman and on the appellant's refusal to comply with this request he had been falsely involved. Appellant Akhtar Bawala, however, stated that he could not say as to why Saeeda Karim had deposed against him, he asserted that he had been made an scapegoat by the Police because he had refused to be tutored as a witness against appellant Mujibur Rehman. The appellant stated that P. Ws. Yasin and Usman were stock witnesses of the Police and had deposed against him at their instance. The defence of appellant Sohni Sakina was that on 13-3-1966 she was confined in Yahya Clinic, Ferere Road, Karachi as she was operated upon on account of miscarriage; and she had to remain for over 7 days in the clinic after which she shifted to the upper storey of a house at Paposhnagar belonging to one Dr. Mukhtar Ahmad which was taken on rent by her husband, who had sub-let one room thereof to Mst. Saeeda Karim, Raj and Fozia. These three girls were accordingly, living independently. After the appellant and her husband left this house and shifted to house No, 186/A in North Nazimabad, Mst. Saeeda Karim who had given the name of her father as one Abid of Lahore told them that she could not go to her father's house on account of her step-mother and as she was trying to get some job at Karachi, she should be allowed to stay with them. Taking pity on her she was allowed to do so. The appellant, however, denied that she took Saeeda Karim to Hyderabad or that she asked her to lead a life of sin. The appeallant stated that she had been involved in this case as, after the raid on her premises she shifted to another house, where she did not take Mst. Saeeda Karim with herself. The girl felt offended also because the appellant had "quarrelled with her for having fallen on evil ways", and she suspected the appellant of revealing her misdeeds to her parents. According to the appellant, it was on this account that Mst. Saeeda Karim had implicated her in this case. Appellant Mujibur Rehman admitted that he was a neighbour of P. W. Hifazat Karim but denied that there was any complaint against his conduct or that he had any reason to molest Mst. Saeeda Karim. He also denied that he had ever gone to Women's College or met Mst. Rahim-un-Nisa Aziz. In other words, this appellant denied each and every allegation against him and pleaded alibi by stating that on the alleged day of kidnapping he was at Pakistan Air Force Hospital, Mauripur from 8-00 a. m. to 3 p. m. in connection with his physical fitness examination for Commercial Pilot's Licence and Radio Flight Licence. This test, according to him was being conducted by a Medical Board consisting of two officers each from Navy and Air Force. The appellant alleged that P. W. Hifazat Karim and his family were inimical towards him because they wanted him to marry Mst. Saeeda Karim. The girl, according to the appellant used to throw letters addressed to him through the partition wall in between the two quarters, and a number of such letters were delivered by him to Hifazat Karim to advise Mst. Saeeda Karim to behave properly. The appellant stated that he refused to marry Saeeda Karim as she was a girl of easy virtues and had on that account been expelled from New Girls School. Her father was, however, so keen to have him as his son-in-law that he persuaded one Dr. M. M. Ahmed, father-in-law of the appellant to get divorce from the appellant for his daughter Mst. Jamila. The appellant stated that as he used to remain absent from his quarter, in his absence Mst. Saeeda Karim and her sister Farida used to call their girl friends as well as boy friends without his consent and when he came to know about it he complained to Hifazat
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Karim but the latter did not take any action. Mst. Saeeda Karim was frequently taken by different people and she returned late in night in different cars which the appellant used to see in front of his quarter. In other words, the contention of the appellant was that the girl was virtually a prostitute and he had been falsely involved by her as he had refused to marry her on that account. 5. As many as 17 witnesses were examined in defence by the various accused persons who were put on trial in this case. It is not, however, necessary to deal with their evidence at this stage as I propose to refer only to the material passages thereof at appropriate stages while discussing the evidence against each appellant separately. 6. The most important evidence in the case on which the conviction of the appellants is based is the testimony of Mst. Saeeda Karim herself who claims to be the victim of this outrage. Her evidence is substantially in accordance with the prosecution case as stated in paragraph 2 above and, therefore, need not be repeated. 7. As pointed out by their Lordships of the Supreme Court in the case of Muhammad Abdul Khaleque and others v. The State in a case of this kind where the evidence and condition of the prosecutrix form the only evidence which the Court has to go upon it is necessary in order to sustain a conviction, that it should at least be found that the woman's statement is in accordance with all the probabilities and has all the appearances of having been honestly made. It has accordingly to be seen if this test is satisfied in respect of the testimony of Saeeda Karim which is admittedly the only evidence against some of the appellants and the main plank of the prosecution case against the remaining as well. 8. It is an admitted position that till 1962 Saeeda Karim was a student in New Town Secondary School under a different name of Aisha Karim. In July 1962, however, she joined Government Girls Secondary School on Clayton Road and her name was for the first time shown as Saeeda Karim. The explanation given by P. W. Hifazat Karim for this change (which appears on page 108 of the paper book) is hardly convincing, and there appears force in the contention of the defence that the school was changed not because of the girl's illness but even her name was changed because she would not have been acceptable in the new school. For the same purpose it appears that P. W. Hifazat Karim did net obtain any School Leaving Certificate from the New Town School; nor did he mention in the Admission Form of Clayton Road School (Exh. 11/A) about her studies in the former school as clearly admitted by him. It is significant that against column 8 of the Application Form relating to "last recognized College/School or class attended" the name of the New Town School had been concealed and it has been shown that the girl was studying at home. Surely, there was some purpose behind it and it is not difficult to see as to what it could have been. 9. Mst. Saeeda Karim left this College when she joined the Karachi College for Women on 7th September 1965. Her subjects were English, Urdu Compulsory, Urdu Advanced, Economics and Civics. There also she was very irregular in attendance and by no means devoted to her studies. The evidence of Ayub Ahmed D.W. an Accounts Clerk in the College who appeared as a witness under a letter of authority, Exh. D-6/A issued to him by the Principal shows that the girl attended Economics Classes for only 4 periods in November and one period in December. In the register for the months of September and October her name did not figure at all because she had not attended any period of Economics. In December, she attended only one lecture out of 13 while in November her attendance related to four periods out of 20. The position in other subjects was no better. In Urdu Advanced she attended 4 lectures during November and December. In September her attendance was nil while in October she attended only one lecture. In the English Classes she attended 8 lectures out of 22 in October, 3 out of 21 in November and 2 out of 20 in December. In Civics her attendance was nil because she did not attend a single period. All this is based on the documentary evidence of the Attendance Register Exh. D-6/C produced by this witness. This register is duly signed by the Principal of the College and the correctness thereof is not open to1
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question, as I shall point out while considering Miscellaneous Application No, 109/1970, on 24-12- 1965, the name of Saeeda Karim was struck off from the rolls for irregular attendance and non- payment of tuition fees. It was, however, re-entered in January next year, only to be removed again in March 1966. Intimation to this effect was conveyed to her father on 15th March 1966 vide letter Exh. D-6/D: but he denied to have received the same. 10.With this background let me consider as to whether the story of the girl as to what happened on 14-3-1966 is natural or probable. It is stated by Saeedl. Karim several times in her evidence that she used to observe pardah and wear burqa while going to College. To quote her own words : "I used to observe pardah and wear burqa while going to College. I did not use to unveil my face. Before 14th March 1966 accused Aftab had never spoken to me nor I spoke to him." A little later in her deposition she stated as follows:-- "At first instance when accused Aftab conversed with me I was under veil. I had not unveiled myself at any other juncture. It is correct to suggest that before 14th March 1966 I did not unveil my face." In view of this consistent stand taken by Saeeda Karim it is difficult to see as to how Aftab Anwar Jaleel could spot her at Gru Mandir Bus Stop when her face was admittedly covered with burqa and he had never seen her before. When confronted with this situation, Mr. Manzoor Hussain, the learned counsel for the State had to admit that the girl had "spoken a lie in this respect;" and that the appellants must have seen her on several occasions before this incident. I am also not impressed by the girl's assertion that she was induced to sit in the car of Aftab Anwar Jaleel as she wanted to see what was contained in the roll of paper offered to her if she was so keen about it she could have seen the same when it was offered to her by her friend Neghat Gul the previous evening. Having, however, refused to see it then, there was hardly any need for her to walk in the car of Aftab Anwar Jaleel specially when she was, on her own showing, fully aware of the designs of the appellants. 11.It is admitted by the girl that while she was being taken to Malir she noticed a number of passerby but raised no alarm on the road. Nor did she protest or raise any alarm at the time of getting down from the car. This is, however, not all. On 8-5-1966 the girl had her first contact with the police when she was arrested from the house of appellant Sohni Sakina on a charge of prostitution. Although she claims to have given out her entire story to S. I. P. Moinuddin and A. S. I. P. Abdul Hamid, this assertion on her part is obviously false. Neither of these two police officers has been examined although S. I. P. Moinuddin was shown as a witness at Serial No, 8 in the charge- sheet. It is on the other hand an admitted position that Saeeda Karim gave her name as Samina daughter of Abid. She was produced before the Court in the prostitution case twice but did not allege rape or abduction before the Magistrate. On the other hand, she contacted at least two Advocates, namely Messsrs Abdul Karim Lakhan and Hassan A. Shaikh, for her defence in the prostitution case. She signed her vakalatnama (Exh. D/A) in favour of Mr. Lakhan as Samina Abdi and also filed her bail bond Exh. D/AA in the same name. She was obviously keen to suppress her identity all the time as she was admittedly leading the life of a prostitute. It is on the testimony of such a girl that the conviction of all the appellants has been based. 12.As pointed out by Beaumont, C. J. in the Full Bench case of Emperor v. Mahadeo Tatya :-- "It is a very well-settled rule of practice in India following the English rule, that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the Courts insist on corroboration of the complainant's story. The nature of the corroboration must necessarily depend on the facts of each particular case." 13.In Muhammad Abdul Khaleque and others v. The State which has already been referred to above their Lordships of the Supreme Court emphasised the principle that in a case relating to a2
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charge of rape where evidence and condition of the prosecutrix form the only evidence which the Court has to go upon, it is necessary in order to sustain a conviction, that it should at least be found that the woman's statement is in accordance with all the probabilities and has all the appearances of having been honestly made. In the words of Cornelius, C. J.: "In a case of this kind, it is very necessary that before finding the accused persons guilty of rape, i,e, of sexual intercourse without the consent of the woman, the Court should be satisfied that the woman's story is corroborated either by circumstantial evidence connecting the accused persons with the crime, or at least by some circumstances connected with the woman which would serve by itself to show that her story of forcible inter-course is true. The mere fact of the story having been told to a number of relations shortly after the occurrence is insufficient corroboration. Equally, the fact of the story having been communicated by the relations to other neighbours and later to the authorities is by no means sufficient corroboration." The same…
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