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Petitioner: Mst. SABREEN BIBI VS Respondent: GHULAM MAQSOOD and 2 others
Court Name: Federal Shariat Court Judge(s): Muhammad Khiyar Khan, Ch. Ejaz Yousaf Title: Mst. SABREEN BIBI vs GHULAM MAQSOOD and 2 others Case No.: Appeal No.190/I of 1995 Date of Judgment:1997-07-11 Reported As: 1998 MLD 1090 Result: Appeal allowed.
JUDGMENT
JUDGMENT CH. EJAZ YOUSAF, J.---This appeal is directed against the judgment dated 3-10-1995, passed by the learned Additional Sessions Judge, Rawalpindi, whereby the respondents were acquitted of the charges under sections 16 and 10(3) of Ordinance VII of 1979. 2.Briefly stated, the prosecution case as reflected from the contents of F.I.R. is that on 21-3-1991 at about 10 a.m. Mst. Farzeena Bibi alongwith Mst. Hameedan Begum accused/respondents came to the house of Mst. Sabreen Bibi, the complainant and asked her to accompany them to a place known as "Ganji Gar "for the purpose of bringing earth. She acceded to the request and consequently accompanied them to the place "Ganji Gar" where accused Ghulam Maqsood was already present. As per F.I.R., all the three ladies started digging earth from different places. In the process, accused Mst. Farzeena Bibi and Mst. Hameedan Begum suddenly, caught hold of the complainant from her legs and laid her on the ground. They put off her shalwer, whereupon Ghulam Maqsood accused after catching hold of her, started committing zina with her. In the meantime, both the abovementioned ladies, ran away from the scene and disappeared in a nearby situated forest. The complainant tired to resist, but the same was of no avail. On her noise, Yousaf Shah and Muhammad Nawaz P.Ws., were attracted and on their reaching the spot accused Ghulam Maqsood also fled and disappeared in the forest. The motive for the occurrence, as disclosed in the F.I.R., was, that husband of the complainant, about a year back had reprimanded, abused and forbidden accused Farzeena Bibi from visiting house of the complainant because of her immoral and nefarious character. It was alleged in the F.I.R., that the lady accused being annoyed on account thereof hatched a conspiracy against the complainant so that she may not only be dishonoured and disputed but her character may be stigmatized and stained of. After
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completion of the investigation the accused were challaned to Court for trial. 3.At the trial, prosecution produced ten witnesses. Mst. Sabreen Bibi P.W.1 is the victim of occurrence. She reiterated the version contained in the FIR. During the course of cross-examination she, however, refuted the suggestion, as incorrect, that since they in the previous elections, had supported P.W., Nawaz, therefore, he was falsely deposing in their favour. She also denied this suggestion that her father-in-law i e. P.W.3 Yousaf Shah was not teaching Qur'an in the village. She also denied the suggestion that she had falsely implicated the accused/respondents in the instant case, at the instance of P.W., Muhammad Nawaz. Muhammad Nawaz was examined as P.W. 2. He deposed that on 21-3-1991 at about 10.30 a.m. he was going towards forest for collecting fire wood. In the way, Yousaf Shah P.W., met him who was also going towards the place known as 'Ganji Gar'. When they reached near a depression they heard noise, as a result whereof, they ran towards the place of occurrence and saw Maqsood accused committing Zina-bil-Jabr with Mst. Sabreen P.W. He further deposed that on seeing them accused Maqsood ran towards forest. In cross- examination he, however, voluntarily disclosed that they did not try to catch the accused because their own lives were at stake and risk was involved. He, however, refuted this suggestion as incorrect that the prosecutrix had involved the accused at his instance. Yousaf Shah was examined as P.W.3. He corroborated the statement of P.W.1 and 2 in all material particulars and additionally stated that after the occurrence, he came back to his house alongwith the complainant and they waited for the return of complainant's husband. In the evening, however, they went to the police station and lodged the report. He added that the complainant and her husband were sent by the police to the Hospital whereafter, he returned back home. All the aforementioned witnesses were subjected to lengthy cross-examination but nothing favourable to the defence was elicited. P.W.4 Zahoor Ahmad deposed that on 26-3-1991 he delivered one sealed parcel in the office of the Chemical Examiner, Rawalpindi, intact, which was given to him by Akhtar Hussain, M.H.C. Akhtar Hussain was examined as P.W.S. He deposed that on 21-3-1991 he received one parcel from Soorat Khan Constable which was required to be kept in safe custody, in the police 'malkhana. On 26-3- 1991 he handed over the same, intact, to Zahoor Ahmad Constable for its onward delivery in the office of the Chemical Examiner. Dr. Tallat Mehmooda, Medical Officer, was examined as P.W.6. She had medically examined Mst. Sabreen Bibi and found the following injuries on her person;-- "Injury No. 1 . No. Three scratches mark above left breast. No.2 Multiple bruises over back of lower part of chest left side. No.3. Two scratches marks on right side of chin." She further observed as under;-- "Vagina lax. Hymen torn. Tears old healed." It was further deposed by P.W.6 that in her opinion the victim was habitual to sexual intercourse. She further deposed that two vaginal swabs were taken by her which were subsequently sent to the Chemical Examiner for detection of semen. She stated that probable duration of injuries was approximately 10 to 12 hours. She confirmed that Exh.PB was correct carbon copy of M.L.R. which was in her hand writing and bears her signatures. She further deposed that report of the Chemical Examiner Exh. PG indicated that the swabs of the victim, which were sent for chemical examination, were found stained with semen. P.W.7 Soorat Khan deposed that he, on 21-3-1991 took Mst. Sabreen Regum to RGH for her medical examination. After her medical examination Doctor gave him one sealed parcel and Shalwar Qamiz of the victim which he handed over to Muhammad Riaz A.S.I. on 22-3-1991, intact. P.W.8 is a formal witness to the arrest of accused Ghulam Maqsood and Mst. Hameedan Begum. Riaz Hussain, S.I. P.W.9 deposed that on 21-3-1991, the complainant alongwith her husband Mukhtar Shah came to him and get recorded her statement Exh. yA which was thumb marked in token of its correctness. He further deposed that he accordingly, sent Exh.PA to the Police Station Taxila, for the formal registration of the case, against the accused persons. He prepared the
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injuries statements and sent her to D.H.Q. Hospital, Taxila, under the escort of Soorat Khan Constable. It was further deposed by him that he, thereafter, conducted the investigation of the case and on completion thereof, challaned the accused to Court for trial. P.W. 10 Dr. Ikram Ullah Khan Niazi deposed that on 21-3-1991 he had examined Ghulam Maqsood accused and found him fit for performing sexual act. He produced Exh. PH, a carbon copy of his medical report. 4.After the close of prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their statements all the accused not only denied the charge but also refuted, all the incriminating circumstances, brought on record in the prosecution evidence against them and pleaded that they were innocent. Both the lady accused refused to lead any evidence in their defence or to appear themselves as their own witnesses in terms of section 340(2), Cr.P.C. In their statements recorded under section 342, Cr.P.C., they, however, stated that the instant case was fabricated against them due to political rivalry with P.W., Muhammad Nawaz. They added, that Muhammad Nawaz P.W., who was inimical towards them had previously too, got a case registered against nephew of Mst. Farzeena accused under section 377, P.P.C., in which, not only the accused were ultimately discharged but as a consequence thereof, a case under section 182, P.P.C., was registered against said Muhammad Nawaz P.W. Accused Ghulam Maqsood produced one witness in his defence, namely, Kazim Ali Shah, who supported the plea taken by the accused in his statement recorded under section 342, Cr.P.C. He too, refused to appear as his own witness under section 340(2), Cr.P.C. 5.After hearing arguments of the parties the learned trial Court acquitted all the accused/respondents of the charges, observing and recording the following conclusions:-- (1)That there was unexplained delay of several hours in lodging the F.I.R. (2)That both the statements made by the complainant i,e, one in the shape of report/F.I.R. and the other subsequently, recorded at the trial, were inconsistent with each other inasmuch as, (i)In the report, it was mentioned that she was caught hold of by the lady accused from her legs whereafter, she was ridden over by the male accused whereas, in their statement at the trial, she stated that both the lady accused caught her by her neck whereafter, she was laid on the ground. (ii)That as per complainant's statement made at the trial, the male accused was already present at the place of occurrence when the complainant alongwith other lady accused reached the spot whereas, this fact was not disclosed in the F.I.R. (iii)That during the course of cross-examination it was disclosed by Mst. Sabreen Bibi P.W. 1 that she after the occurrence reached her house at about 4. p.m. whereas according to Yousaf Shah P.W.3 they reached the house at 11 a.m. (iv)That the oral evidence too was contradicted by the medical evidence. According to Dr. Tallat P.W.6 the complainant was examined by her on 22-3-1991 and in her opinion the probable duration of the injuries was approximately 10 to 12 hours whereas according to the prosecution story occurrence had taken place at about 10-30 a.m. on 21-3-1991. Therefore, as per trial Court, it was clear that the victim had not sustained injuries during the alleged occurrence at 10.30 a.m. on 21-3- 1991. It was further noticed by the trial Court that though, both the witnesses were attracted on the noise of the complainant and had reached the spot soon thereafter, yet no attempt at all was made by them to catch hold of the accused particularly by P.W.3 Muhammad Yousaf who happens to be father-in-law of the complainant. It was further observed by the trial Court that though, injuries were allegedly received by the complainant on her person, as a result of the incident in question and her shirt was also allegedly torn, yet injury statement of the victim, brought on record by the prosecution, does not support the same. (v)That as per complainant Mst. Sabreen Bibi the lady accused allegedly came to her house at 10.30 a.m. whereas, according to P.W.3 Muhammad Yousaf Shah he found house of the complainant locked at 8.00 a.m on the same day.
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(3)That the earth which was allegedly dug by the ladies was not taken into possession and produced at the trial by the prosecution. (4)That the motive alleged in the complaint/F.I.R. was also not proved at the trial. Lastly, it was also observed by the learned trial Court that had the motive been true, there would have been no occasion for the complainant to accompany the lady accused to the place of occurrence particularly in view of their strained relations. 6. Learned counsel appearing on behalf of the appellant has raised the following contentions:-- (a)That the delay in lodging the F.I.R. was not inordinate because the complainant, in the meantime, was waiting for her husband's return back to his home. (b)That the so-called discrepancies and contradictions occurred in the statement of the witnesses, were of minor in nature and were natural, keeping in view the fact that the statements of P.Ws., were recorded at the trial, after the lapse of four years and three months. (c)That the complainant had neither any reason nor occasion to falsely implicate the accused persons in the commission of the offence. (d)That the observations of the trial Court regarding difference of timings, as disclosed by the P.Ws., were not crucial because villagers have some very odd notions of timings. (e)That the observations of the learned trial Court with regard to the fact that the medical evidence was at variance with ocular testimony of witnesses was not correct. (f)Lastly, it was prayed that since the learned trial Court had wrongly acquitted the accused/respondents of the charge, therefore, their acquittal may be set aside and they may be punished, for the offences charged for. 7. Learned counsel for the accused/respondents, on the other hand, while controverting the above contentions raised by the learned counsel for the appellant, urged as under:-- (1)That double presumption of innocence arises in favour of the accused/respondents. (2)That the medical evidence belies the prosecution evidence. (3)That the alleged motive was not proved at the trial. (4)In the end, it was pleaded that the appeal being non-meriting may be dismissed. 8. We have given our anxious consideration to the above submissions made by the learned counsel for the parties and have also carefully perused the record. 9.In order to substantiate his first contention, that the delay in lodging the F.I.R. was sufficiently explained, learned counsel for the appellant, vehemently urged that the delay in lodging the F.I.R., was properly and appropriately explained at the trial and it was made clear that since husband of the complainant was away to his job, therefore, the complainant had to wait for him before lodging the report. He argued that in the circumstances, the trial Court ought to have believed the explanation offered by the prosecution and should not have drawn adverse inference against the prosecution on account thereof. In order to supplement his above contention he placed reliance on the following reported judgments:-- 1.Zahoor Ahmad v. The State 1995 SCMR 1388 2.Iqbal Shah v. The State PLD 1981 FSC 284 3.Noor Ahmad v. The State 1968 SCM R 325 In this behalf, it may be observed that though the alleged incident had allegedly taken place at about 10.30 a.m. on 21-3-1991 and the report as well as F.I.R., were lodged by the complainant at about 8.00 p.m. yet the delay in lodging the same was suitably explained by the complainant at the trial in the following words;-- "I prepared the meal for the family. My husband came at 6.p.m. on the day of occurrence. We took Aftari, I talked to my husband about the occurrence. Nawaz P.W., came to our house. He did not talk to my husband about the occurrence. Thereafter we went to Sangjani police post. I reached alongwith my husband at Police Post at 7.30 p.m. and remained there for about 7.8 minutes. I orally
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made the statement before the police." The above narrated facts were duly corroborated by P.W. Yousaf Shah who during the course of cross-examination unequivocally and categorically stated that after the occurrence he alongwith the complainant returned to his house and instead of contacting the police they waited for the return of complainant's husband. He has further confirmed that on the return of complainant's husband, they went to the police station, in the evening, where they stayed about half an hour, wherefrom the complainant alongwith her husband and a police man was sent for the medical examination. All the above narrated facts were also duly confirmed by the Investigating Officer of the case P.W.9 Riaz Hussain who during the course of his cross-examination stated that the complainant came to him at about 7.15 p.m. on 21-3-1991 and she was being accompanied by her husband. It was slightly dark at the relevant time. He also explained that the police post is situated at a distance of three kilometers from the village. It has come on record that occurrence had taken place in the Holy month of Remazan. The complainant had herself deposed that on the day of occurrence her husband after taking ' sahri' had left for his job. It has also come on record that after the occurrence the complainant alongwith her father-in-law i,e, P.W.3 came back home and kept on waiting for the return of her husband, till evening and that after 'aftari' she disclosed about the incident to her husband whereafter, they left for the police station in order to lodge the complaint. Admittedly, the occurrence had taken place in the month of March which is one of the winter months. The people normally take 'aftari' after the Maghrab prayers which in the month of March falls in between 5.00 to 6.00, therefore, if the time is computed therefrom, lodging of the report at 7,15 p.m in the police station which is situated at a distance of three miles from the complainant's village does not appear to be inordinate. Further, as observed by the Hon'ble Supreme Court as well as, this Court in the afore-quoted judgments, the delay of one or two days in lodging the report, in cases of zina, cannot be deemed inordinate. In such view of the matter, we are c inclined to hold that delay in lodging the F.I.R., in the instant case, not fatal to the prosecution. 10. In furtherance of his second contention namely "about the contradictions and discrepancies pointed out by the learned trial Court in the statements of prosecution witnesses", the learned counsel for the appellant vehemently argued that though there were some minor contradictions in between the statements of prosecution witnesses reduced into writing by the police earlier under section 161, Cr.P.C. and subsequently, recorded by the trial Court yet, the same were insignificant, and likely to occur due to the lapse of time. He argued that the incident had taken place in the year 1991 whereas, the statements of the prosecution witnesses at the trial, were recorded in April, 1995, therefore, accrual of minor contradictions was natural. He maintained that observations of the trial Court, in this behalf, were ex facie, bad in law. In support of his above argument he placed reliance on the following reported judgments : 1.Roshan and 4 others v. The State PLD 1977 SC 557 2.Ch. Muhammad Yaqoob and another v. The State 1992 SCM R 1983 In the above referred first case, the Hon'ble Supreme Court of Pakistan while taking notice of the fact that the accused having been brought to trial after three and a half years of the occurrence and rustic prosecution witnesses inclusive of a woman, subjected to lengthy and gruelling cross- examination lasting from 2 to 4 days each, by counsel reputed for employing brow-beating tactics of witnesses. Certain contradictions, between their statements at trial and those recorded earlier, were inevitable. Relevant portion of the judgment reads as follows;-- "Before embarking on an examination of the evidence, or record, it is necessary, in a case of this nature, to examine certain background details in order to achieve a more realistic perspective. The occurrence took place in October, 1967, and the accused were brought to trial in May, 1971, nearly 3- 1/2 years. At the trial rustic witnesses, including Mst. Rehmat, were subjected to lengthy and
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gruelling cross-examination extending over periods ranging from two to four days each, by counsel who has acquired a reputation for employing brow-beating tactics on witnesses and was criticised for this practice in a case which came before the Court some years ago. Under these circumstances, it should come as no surprise to discover that the cross-examination of the prosecution witnesses brought out certain contradictions between the statements made by them at the trial and the statements recorded earlier by the committing Magistrate and the police." In the above referred second case the Hon'ble Supreme Court of Pakistan was pleased to hold that contradictions or improvements or any other factor, which may, adversely effect on the credibility of a witness, would not by itself be sufficient, to reject the testimony of such a witness as a whole. The Hon'ble Supreme Court was further pleased to hold that Court notwithstanding such contradictions, can rely upon, a portion of the statement of such a witness, if it is corroborated by other reliable evidence or circumstances. Now, if the so-called discrepancies and contradictions, pointed out by the Trial Court are tested on the touch stone of above dictum, it would emerge, that the contradictions in question pointed out by the learned Trial Court, were minor in nature and had no substantial bearing on the case, as put forth by the prosecution. For instance, one may refer that though the trial Court while recording its conclusions, has given much importance to this "contradiction" that in the report/F.I.R., it was mentioned by the complainant that she at the time of commission of offence, was caught hold of by the two women accused from her legs whereafter, she was ridden over by the male accused, but since, at the trial she has stated, that both the lady accused had caught her by her neck, therefore, this discrepancy (as per trial Court) had greatly marred evidentiary value of her statement. To our mind truthfulness or evidentiary value of a testimony is not dependent on the existence of such minor contradictions because, contradictions by themselves do not lead to result that what even the witness has stated on the salient features of the case and which conforms to other evidence on record is to be thrown out. In case the statement recorded earlier by the Police and one taken at the trial are corroborating each other, in pith and substance, then notwithstanding, the so-called minor discrepancies the same could be safely relied on. Likewise, the observations of the Trial Court in considering discrepancies qua "timings and the villagers" cannot be given much importance, because notion of the villagers about timings etc are normally, not only vague but indefinite and imprecise as well. Particularly the woman-folk cannot be expected to give the same with mathematical precision and accuracy. We are fortified, in this view, buy a judgment of the Hon'ble Supreme Court delivered in the case of Gul Sher and another v. The State, reported in 1968 SCM R 756 wherein the Hon'ble Supreme Court of Pakistan was pleased to hold as under:-- "It seems to me that this argument was based on the statements of the witnesses that the occurrence took place at about 1-00 a.m. These village folks, especially women witnesses, gave the time not by watch but by mere guess and hence much would not turn on such statements." In view of the above discussion we are inclined to hold that the learned Trial Court was not justified in discrediting testimony of the prosecution witnesses on account of the so-called, minor contradictions/discrepancies. 11. In furtherance of his next contention "that the complainant had no occasion or motive to falsely implicate the accused in the instant case", learned counsel for the appellant, vehemently, argued that neither any personal enmity was alleged by the defence against the complainant for falsely implicating the accused nor it was pleaded at the trial that the other prosecution witnesses have had any motive to falsely depose against the accused/respondents. He pointed out that though it was pleaded and suggested at the trial, by the accused/respondents in their defence that they had been implicated by the complainant and other prosecution witnesses at the instance of P.W. 2 Muhammad Nawaz who, as per the accused/respondents had personal enmity against them yet, it was not proved at the trial that as to on what count the enmity was, and what were its basis.
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Though in answer to question No.10 accused Ghulam Maqsood in his statement recorded under section 342, Cr.P.C. had stated that there were two groups in the village and P.W., Muhammad Nawaz is the leader of the rival group and that he had got registered a false case against one of his relatives and that the instant case was a result of previous enmity, yet, as per our estimation, the so-called rivalry between the two groups in the village and criminal litigation between the parties would not be itself constitute enough material to indicate that the accused persons were falsely implicated in the case. We are fortified in this view, by the observations of the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan made in the case of Sultan Maqsood v. The State reported in PLD 1985 SC 305 wherein it has been held as under:-- "In so far as the aforementioned factual aspect of the enmities highlighted by both the learned counsel is concerned, it is not necessary to examine them any further so as to reach definite conclusions regarding their authenticity. Assuming that there was election rivalry and previous litigation between the appellants family and the Sardars and criminal litigation between a female relation of the prosecutrix and the accused side, they by themselves would not constitute enough material to indicate that the…
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