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Petitioner: Mrs. GHAZALA PARVEEN VS Respondent: SADIQ DANIEL and 18 others
Court Name: Sindh High Court Judge(s): Shahid Anwar Bajwa Title: Mrs. GHAZALA PARVEEN vs SADIQ DANIEL and 18 others Case No.: Criminal Revisions Applications Nos.144 and 145 of 2009 Date of Judgment:2010-01-25 Reported As: 2010 YLR 1275 Result: Order accordingly
JUDGMENT
JUDGMENT 'SHAHID ANWAR BAJWA, J.---According to the petitioner fateful day was April 11th 2005. It is stated by the complainant that at that time she was serving as the Administrator Brenton Carey Girls Hostel, situated at 247 Staff Lines, Fatima Jinnah Road, Karachi. She stated in her complaint that Bishop Sadiq Denial, respondent No,1 who resided in Trinity Church compound wanted to terminate her from her job but managing committee was not agreeable to it. On 11-5-2004, at 9-15 a.m. Bishop Sadiq Denial along with respondents Nos.2 to 13 and 17 and 18 and 20/25 other persons entered the hostel. Complainant stated that the Watchman informed her from the gate through Intercom and therefore she locked the door of the hostel and also informed her other staff. Thereafter she stated that there was a knock on the Accounts Officer door of the hostel and she saw through the window that respondents Nos.1, 2, 3, 4, 5 and other persons were standing and they started to break the door. The complainant stated that she immediately went to the office and on telephone called Emergency No,15 and informed them about the incident. She stated that door of the Accounts Office was broken and thereafter mob started breaking central door of her office. She stated that she went inside the hostel and hid herself in the said room. For about 45 minutes culprits tried to find her and finally found her. Respondent No,5 is alleged to have slapped her on the face and thereafter started beating her with kicks and fists. Respondents "Nos.3 and 4 were shouting and saying, "Kill her". The girl students came forward and rescued the complainant and took her to prayer Room and locked the door. The accused persons started breaking lock of the Prayer Room but students resisted for about 2 and half hours. Upon this personal guard of respondent No,1, one Sajjad loaded his gun and directed towards the girls and told the girls to handover complainant otherwise they would be fired upon. The girls were not intimidated. Upon
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this respondents Nos. 3, 4, and 5 came forward and started beating the girls with kicks and fists and tore their clothes and used abusive language. Respondents Nos.3, 4 and 5 dragged the complainant from the prayer Room to the playground, where respondents Nos. 1 and 2 and others were standing, while beating her all the way. Respondent No,1 commanded respondent No,3 to take off complainant's clothes. Respondent No,2 pulled her shirt upward and respondent No,3 pulled down her Shalwar. Complainant begged respondent No,3 for pity on her for the sake of his daughter. On this, respondent No,3 is stated to have said that she would make complainant fully naked. Then all the accused persons started hitting sensitive parts of her body and naked legs. Respondent No,5, bit the complainant on her shoulder and tried to obtain her signature on certain documents. At that time respondents Nos.15 and 16 arrived there and also pressurized the complainant to put her signature on those papers but she again refused. The accused continued to beat her. After six hours, on intervention of elders and respectable people of the community she was rescued from them. She alleged that all that was done was on orders of and with active participation of respondents Nos.1 and 2. 2. Police refused to register F.I.R. Complainant went to CPLC and then her medical examination was conducted on the' same day. Report of Medico Legal Centre stated as follows:-- (1) Diffuse swelling of right thumb. On examination movement painful, tenderness present. (2) Complaint of pain over right shoulder. On examination movement painful, mild tenderness present. (3) Complaint of pain over left lower part of leg. On examination tenderness positive. Movement painful. (4) Complaint of pain over lower incisor. On examination mild pain. (5) Bruises of size 10 x 8 c.m. On right thigh. (6) Bruises over left lower leg size 6 x 4 and 1.5 x 1 c.m. 3. Final medico legal opinion was, "As per ex-ray report issued from the Department of Radiology Civil Hospital, Karachi the reserved injuries Nos.1, 2, 3, 5, & 6 are declared as other hurts subsection II and Injury No,4: as per Dental opinion issued from the Department of Dentistry, JPMC Karachi, as Shajah-eKhafifah." 4. Learned counsel for the applicant thereafter referred to newspaper reports of daily Nawa-i- Waqt, Express, Aghaz, Jisarat of April 13th and daily 'Dawn' and Awam of April 16th to show that incident was widely reported by the press. 'First F.I.R. Was registered on 13-4-2005 at 1430 hours being F.I.R. No,44/2005 at Frere Police Station Karachi. It was registered on the complaint of lady Constable Noreen Sarfraz. She stated that on 11- 4-2005 she came for duty at Women Police Station and was directed to report at Trinity Church. She duly reported there. Lady Constable Nighat was already there. She stated that on orders of DSP Clifton, lady Constables were posted inside of the gate whereas male officials stayed outside the gate. At 12-30 p.m. The present applicant along with 15/20 girls came out of the hostel and started a ruckus and also started tearing her own clothes. Both the police constables tried to stop her on which the present applicant and her partner girls attacked the police constables. Police constable rescued her with difficulty. As a consequence of this incident it was stated in the F.I.R. That lady constable Noreen Sarfraz suffered a miscarriage of her two months old fetus. 5. The issue remained an alive issue in the press and eventually on 28-4-2005 CCPO appointed Dr. Sanaullah Abbasi, TPO Saddar Town, to conduct an inquiry who in turn submitted his report on 21- 5-2005. He recorded statements of Rukhsana Naseem, Mrs. Ghazala Shafique, Roma George, Surraya Anthony, Huma Younus, Bishop Ejaz Inayat, Saba Younus, Nargis Shamsher, Shamila Afroze and Zarahshan Haroon and others and in conclusion rendered the following findings:--- "FINDINGS:
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(1) This is a fact that people entered the girls hostel, broke the doors open, dragged Mrs. Ghazala Shfaique outside, manhandled her and outraged her modesty. (2) Both parties did not act in a legal/desirable way to resolve their disputes. The matter should have been either resolved/arbitrated by the Court or by themselves according to the constitution of the Diocese of Karachi. Police should have played their proactive role in resolution of matter before hand after completing homework. 'RECOMMENDATIONS: 'In the light of above facts, it is an established fact that persons forcibly entered in hostel, dragged Mrs. Ghazala Shafique out, manhandled her and outraged her modesty. Local Police remained silent spectators and did not prevent the untoward incident which could have been prevented before its happening. Police rather let it happened. 'Therefore it is recommended that:- (1) A criminal case under the relevant sections of the law may be registered for outrage of modesty. (2) Local Police may be warned for not being pro-actioner. (3) Role of Lady Police will be determined later on, as the case has been registered. The enquiry is under way. Why lady police was called and no male member of the force was sent with them when male members of Christian community were present at the spot. It is also intriguing on the part of local police." 6. As consequences of this report F.I.R. No,87/2005 was registered at Frere Police Station on 27-6- 2005. It was an F.I.R. Under sections 452, 147, 148, 354, 337 and 427, P.P.C. Against unknown persons for forcibly entering the girls' hostel and dragging the present applicant out, manhandling her and outraging her modesty. The applicant not being satisfied which this state of affairs met State functionaries, including the Prime Minister, Chief Minister, Home Minister and Chief Secretary. Ultimately, Home Secretary ordered second inquiry. Mr. Nayer Hussain, AIG was appointed a Inquiry Officer. The inquiry Officer submitted his report dated 25-8-2009 and he recorded the following conclusion:--- "CONCLUSION 'From the statements of the complainants and witnesses it is quite clear that the incident of forcible evacuation of Mst. Ghazala Shafique did take place on 11-4-2005. Although police was informed that there is likelihood of disturbance no action was taken by police, it remained silent spectator while Mat. Ghazala Shafique (administrator) of Brenton Carey hostel was forcibly evacuated from her office. Whether any legal procedure was followed to terminate the services of Mst. Ghazala Shafique was beyond the mandate of this enquiry. 'After the incident had taken place the complainant Mst. Ghazala Shafique tried her best to get the F.I.R. Registered but her complaint was not entertained by police, instead two cases have been registered on behalf of the State. It is quite surprising to note as to why her F.I.R. Was not registered. 'The background of the incident appears to be the tussle between Mr. Sadiq Daniel and Mrs. Ejaz Inayat for the position of Bishop but this particular incident of 11-4-2005 took place in the presence of police. The complainant Mst. Ghazala Shafique, Administrator, Brenton Carey Hostel may be exaggerating the actual incident but forcibly evacuation from her office did take place for which her complaint should have been registered. The role of police is also not above board it appears they were trying to help in the evacuation. 'It is recommended that the cases already registered may be handed over to some impartial officer/ agency for investigation and case of Mst. Ghazala Shafique may also be registered." 7. It is submitted by the learned counsel for the applicant that constitutional petition No, 1289/2005 was filed on 1-12-2005. The learned AAG on instruction stated that the petitioner may like to appear before the Incharge of concerned police station where her statement would be recorded and in
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case any case of cognizable offence is made out, further action in accordance with law shall be taken. It was after this order was passed by the High Court that the third F.I.R. Was registered being F.I.R. No,169/2005 at 1800 hours and it was under sections 147, 148, 149/ 337-A (i), 506-B and 354-A, P.P.C. It is submitted by the learned counsel that as soon as order was passed by the High Court the police tried to arrest her. She was able to obtain bail before arrest from this Court and that bail was subsequently confirmed by this Court. As soon as F.I.R. Was registered the present respondent applied for pre-arrest bail. Initially pre-arrest was granted and thereafter vide order dated 4-1- 2006 pre-arrest bail was confirmed by Sessions Judge, Karachi South. The relevant part of the order of Sessions Judge reads as under:-- "Admittedly there is counter F.I.R. No,44/2005 under sections 147, 148, 353, 337-A, 337-F-(i), 338(A), P.P.C. Regarding the same incident against present complainant Mst. Ghazala registered at Frere P.S. On the report lodged by one lady Constable Naureen Sarfraz. Furthermore, challans in both the cases have been filed before the Court of Judicial Magistrate. All the offences shown in the challan are bailable except section 338-A, P.P.C. Furthermore, section 354-A, P.P.C. Has been substituted by section 354, P.P.C. 'Since there are counter cases between the parties regarding the same incident and challans have been submitted in the Court of Magistrate and the sections applied are not serious, therefore, there will be no justification in sending the accused persons to jail as they are even otherwise entitled for bail. 'I therefore, confirm the interim pre-arrest bail of the applicant/ accused already granted on same terms and conditions," 8. Final charge sheet was submitted by police on 25-5-2006. In this charge sheet section 354 was substituted by section 354-A. It may not be out of place to mention that on 20-1-2006 CCPO ordered constitution of a three members team of police officials which number was enhanced to a 5 members team and based on report of this team investigation was entrusted to DIGP and thereafter challan was submitted on 26-5-2006. In the challan although it was clearly stated that Zafar labal started removing her shirt and George Bhatti removed her Shalwar and beat her on sensitive parts, section 354 was substituted for 354-A. Therefore on 17-8-2006 the present applicant moved an application under section 190(2), Cr.P.C. Before IIIrd Judicial Magistrate Karachi South for addition of section 354-A and transfer of the case to the Court of session. The present respondents contested this application. On this application on 28-10-2006 Honourable IIIrd Judicial Magistrate passed an order allowing the application and sending the case to the District and Sessions Judge. The relevant part of the order is as under:-- "In consonance with above scale or law I have minutely examined the contents of F.I.R. As well as charge sheet and other material available on record,. I see the contents of F.I.R. As well as charge sheet explicitly shows that it is alleged that the complainant was dragged out from her office room by the accused persons and they put off her clothes and stated stroking on the private parts of the complainant's body, moreover the perusal of Inquiry Report dated 21-5-2005 available in the Police File it reveals that in the said Inquiry many witnesses were examined and the witnesses namely Rukhsana Naseem, Surriya Anthony, Saba Younus, Daisy John, Shakeela Darshan, Zaresh Aziz, Huma Younis, Saima all were students and they specifically stated in their statements that mob of people forcefully entered the hostel, smashed the doors and brutally beaten the Girls and pulled them from heirs, took Madam Ghazala Shafique to playground where Zafar Iqbal took her shim while second person pulled down her Shalwar. 'The said position has also been admitted by the P.I. For the State. From above facts, it is quite crystal clear on record that the case is made out which comes under the clenches of section 354- A, P.P.C. And the same is exclusively triable by the Court of Session. Accordingly I hereby allowed
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the preset application as prayed, let the case be sent to the Honourable District and Sessions Judge South Karachi." 9. The case was thereafter assigned to 1st Additional Sessions Judge, Karachi South and numbered as Case No, 42/2006. On 2-12-2006 complainant filed an application for taking the accused into custody in view of addition of section 354-A in the challan. Meanwhile on 9-1-2007 Criminal Transfer Application No,2/2007 was filed by the present respondents. The matter eventually ended up on 31-7-2007 when the Honourable Supreme Court passed the following order-- "By consent of Mr. Raja Qureshi learned counsel for the petitioner, Mr. Suleman Habibullah, learned counsel for private respondents and Mr. M. Sarwar Khan, learned Additional Advocate General, Sindh, the impugned order of the High Court is modified and all the three cases arising out of F.I.Rs Nos. 44/2005, 87/2005 and 169/2005, are directed to be tried separately by 1st learned Additional Sessions Judge, Karachi South. The delay in filing this petition is also condoned for the reasons mentioned in the application for condanation of delay. This petition is accordingly converted into appeal and stands disposed of in the above terms." 9. After the order was passed by the Supreme Court present applicant withdrew his application filed on 2-12-2006 for taking the accused persons into custody. 10. On 18-1-2007 the-complainant filed an application for cancellation of bail. This application was numbered to Criminal Miscellaneous Application No,59/2007. Since the trial Court was not deciding cancellation of bail application, criminal Miscellaneous Application No,186 of 2007 was filed before this Court. The trial Court heard the cancellation of bail application on 19-10-2007 and then adjourned it to 3-11-2007 for orders. Since the matter had been adjourned by trial Court for orders, Criminal Miscellaneous Application 186/2007 was withdrawn by the complainant. The Court below continued to adjourn decision on cancellation of bail application. On 21-1-2008 Deputy District Attorney moved in the trial Court application for custody of the accused persons. Meanwhile the trial Court had adjourned application for cancellation of bail for announcement of order to 2-2- 2008. On 1-2-2008 protective bail was granted by this Court in Criminal. Bail Application No,91 of 2009. The order of this Court was in the following words:-- "Without dilating upon the merits of the case or otherwise the applicants are granted protective bail for ten days subject to furnishing surety in the sum of Rs,50,000 each with P.R. Bond in the like amounts to the satisfaction of Nazir of this Court. 'The period shall commence from the date of filing the bail before arrest application." 10. Since bail had been granted by the High Court on 1-2-2008, on 2-2-2008 the accused persons filed application in the trial Court for dismissal of cancellation of bail application. 11. After having obtained an order from this Court on 1-2-2008 bail application was filed by the present accused before the trial Court on 15-2-2008. The bail application was still pending (being B.A. No,141/2008) when on 23-2-2008 bail application No,172/2008 was filed in this Court and on 25- 2-2008 interim bail was granted to the present accused persons which application was finally decided on 2-7-2009 and the following direction was issued by this Court:-- "Learned counsel for the applicants and the complainant agree that a direction be given to the trial Court to decide both these applications within a specified time. They also agree that till the decision of these applications, the applicants shall not be arrested. I, therefore, direct that both these applications shall be simultaneously decided after hearing the concerned parties. The trial Court is directed to decide these applications by 7th September, 2009. 'With the above observations, this bail application stands disposed of." 12. Thereafter the impugned order was passed by which order the cancellation of bail application filed by the present applicant was dismissed and Crl. B.A. No,141/2008 filed by the present respondents was disposed of as not pressed. This has been a narration of facts as given by the Advocate for the complainant.
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13. Dr. Farogh Naseem, Advocate for some of the respondents, gave his own narration of facts and it was follows. Applicants and the respondents are Christian by faith and follower of Anglican Protestant denomination. Their Church is called church of Pakistan. There is a Bishop of Pakistan, who heads the Church of Pakistan. Church of Pakistan is divided into 8 dioceses. Diocese of Karachi encompasses Karachi and Balochistan, A Dutch gentleman was Bishop of Karachi for a long time. He expired and office of Bishop of Karachi became vacant. Elections were held in 1997 and respondent No,1 and one Aijaz Inayat were candidates for election of office of Bishop of Karachi. Respondent No,1 alleged rigging in the election. A suit was filed in the High Court. Status-quo was ordered by the High Court in the suit and finally suit was disposed of on the basis that a fact finding inquiry shall be held under the order of Archbishop of Canterbury and thereafter result of such inquiry shall be followed. That inquiry recommended fresh elections. Fresh elections were held on 4-2-2002 and respondent No,1 was elected as Bishop of Karachi. This was done in accordance with the order passed by this Court in Civil Suit No,1454 of 1997 on 28-1-2002. In suit No,996/2002 filed by the present respondent No,1 against the said Aijaz Inayat on 1-10-2002 an order was passed by this Court restraining him from acting, representing or stating himself in any manner to be Bishop of Karachi. Counter suit was filed by said Aijaz Inayat No,279 of 2002. Both the suits are still pending. 14. Learned counsel submitted that restraining order passed by this Court on 1-10-2002 against Aijaz Inayat is still in the field. He further submitted that another suit No,87/2005 has been filed by respondent No,1 against the said Aijaz Inayat for vacation of Bishop House. Learned counsel further submitted that one Sardar Masih retired as Priest but did not vacate the house given to him. Suit No,601 of 2007 was filed. That suit is still pending. Through interim order he was directed to handover the charge of his see. He did that and also vacated the house. 15. Learned counsel submitted that on April 10th 2005 a meeting of the managing committee was held in which Mrs. I. Pearl, Dr. Shireen Martin, Mrs. P. Shakti respondent No,16 and Mrs. Freed Shergill respondent No,15 were present. This was a meeting of Board Committee of Brenton Carey Hostel and the meeting decided that services of present applicant be terminated on ground of insubordination, gross misconduct and mismanagement. The committee in this connection considered various complaints received by it from the students and priests. In consequences of this decision of the committee letter of suspension dated 10-4-2005 under the signature of present respondent No,1 was issued to the present applicant. It was when this letter was sought to be served, the learned counsel submitted, that the present applicant conducted herself as was alleged in F.I.R. 44 of 2005. Learned counsel referred to newspapers clipping of daily New Akhbar, Jura'at and Awan of April 15th, Khabrain of April 16, daily Jang of April 15th, Awam of April 19th, Khabrain of April 29th, Jura'at of April 26th, daily Dawn of April 15th to contend that the present applicant's conduct as Incharge of hostel has been very diabolical and had caused serious unrest in the Christian community. Learned counsel further submitted that Executive Committee of the Karachi Diocese in its meeting held on 18-2-2004 resolved to strike-off names of all the presbyters from the diocesan rolls who had worked beyond the system and procedure. Consequently, show- cause notice dated March 8th, 2005 was issued to the husband of the applicant. As soon as this show-cause notice was issued, husband of the applicant filed Civil Suit No,283 of 2005 in the Court of IV-Civil Judge, Karachi South, in which suit it was, inter alia, prayed that show-cause notice dated 8-3-2005 be declared as null and void and without lawful authority. This civil suit was dismissed. 16. There were two applications before the learned Court below. One was application under section 497(5), Cr.P.C. Filed by the complainant for cancellation of bail granted vide order dated 4-1-2006 and other was application for bail filed by the respondents after application under section 190(2), Cr.P.C. Was allowed by the Judicial Magistrate on 28-10-2006 and section 354-A was added to the Final Charge Sheet. Vide the impugned order while the application filed by the
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complainant/applicant was dismissed, application filed by the respondent/accused persons was disposed of as not pressed. Criminal Revision Application No,145 of 2009 has been filed to challenge order on application under section 497(5), Criminal Revision Application No,144 is in respect of order on application of the present respondents. 17. With this background of acrimony between the parties, the stage is now set to come to submissions of the learned counsel. Learned counsel for the applicant made the following submissions. (1) Learned Court below in its order, dated 5-9-2009 ventured beyond its domain and took upon itself a premature exercise of attacking the F.I.R. And medical evidence. At the stage where the trial Court was i.e, at the stage where question involved is only whether bail should or should not have been granted, it was only required of the Court to make a tentative assessment and not to embark upon deeper appreciation of the lis before it. (2) The bent of the mind of Court below is clear from the fact that it reproduced the first half of the F.I.R. In its order and chose to completely ignore the second half of the F.I.R. Such choice even if not deliberate cannot be concomitant Freudian connotations. (3) That the Court below did not take into consideration nature of the offence as made out by a simple, unencumbered reading of the F . I . R . (4) The learned Court below did not refer to a single citation of case law cited by the complainant/ applicant although a number of judgments of the Supreme Court and High Courts were cited by the complainant/applicant during arguments. (5) There were eight eye-witnesses of the incident. None of them has been considered by the learned Court below. Thus, there was ample material available in the shape…
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