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Petitioner: MEENHWASSAYO alias KHAMISO VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Abdul Waheed Siddiqui Title: MEENHWASSAYO alias KHAMISO vs THE STATE Case No.: Jail Criminal Appeal No,102/I of 1996 Date of Judgment:1997-04-30 Reported As: 1997 P Cr. L J 1485 Result: Appeal accepted
JUDGMENT
JUDGMENT ' This Jail Criminal Appeal assails the judgment delivered by 1st Additional Sessions Judge, Badin on 23-5-1996 whereby he has convicted the appellant under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and has sentenced him to undergo rigorous imprisonment for ten years and whipping to ten lashes and fine of Rs,10,000 and further imprisonment for one year in default in payment of this fine; has also convicted him under section 16 (ibid) and sentenced him to rigorous imprisonment for seven years and whipping up to ten lashes and fine of Rs,10,000 in case of default further imprisonment for one year. Both convictions are to run concurrently. Benefit of section 382-B, Cr.P.C. Has also been given. 2. Story of prosecution, in brief, is that one Muhammad Uris (P.W.1) lodged an F.I.R. At Police Station, Badin on 19-11-1992 complaining therein that about 20 years back his sister Mst. Noor Khatoon was married with one Majnoon son of Meenhwassayo alias Khamiso accoridng to Shariat- eMuhammadi and from the wedlock there were two minor children. About six months prior to the complaint, he (Muhammad Uris) accompanied by his brother Gul Muhammad (P.W.3), his sister Mst. Noor Khatoon (P.W.4), her husbadn Majnoon (P.W.5) and her father-in-law, the appellant, shifted towards village Karim Bux Jamali and leaving Mst. Noor Khatoon and the appellant behind went for labour towards Tando Muhammad Khan. Two days prior to the complaint, when all the three came back, they found both the appellant and Mst. Noor Khatoon along with two children missing. They searched them but failed. It was finally complained in F.I.R. That Mst. Noor Khatoon was enticed and abducted by the appellant, her father-in-law, with an intention to commit Zina with her.
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3. According to a statement under section 164, Cr.P.C. Of Mst. Noor Khatoon (Exh.7/A) before Mukhtiarkar and F.C.M., Badin on 21-11-1992 she was recovered on 21-11-1992 by police from the custody of the appellant, both of them were brought to the police station and she was of 35 years of age on the said date. She stated that her father-in-law Khamiso alias Wassayo informed her one week after the initial travel of other family members including Mst. Bachul, her mother, for labor that her mother was ailing and intended to arrange their meeting. With that purpose he took her to the village of Nawab Rashid and made her to live there and for about twenty days remained committing Zina with her under a threat of murder. 4. Appellant was challaned, prosecution examined 7 P.Ws. Appellant gave statement under section 342, Cr.P.C. Examined himself on oath and also examined 4 more D. Ws. 5. 1 have heard the leraned counsel for appellant engaged for him on State expenses and counsel for State. Counsel for appellant has 'contended that the only name of the appellant is Khamiso and the name Meenhwassayo attached with him is a mischief of the prosecution; that medical evidence does not support prosecution; that F.I.R. Is delayed; that there are improvements in the version of the prosecution; that there are substantial contradictions; that Majnoon (P.W.5) is wrongly claiming to be a son of the appellant and husband of Mst. Noor Khatoon (P.W.4) ; that the appellant is the real husband of Mst. Noor Khatoon (P.W.4) and out of wedlock he has a son and a daugther; that the story of prosecution does not appeal to common sense in the circumstances of the case. The State Counsel has supported the impugned judgment and has contended that this is a case of incest and incest do take place in every society although it is rare. 6. I have gone through the record of the case including police papers made available to me and have pondered about the contentions of both the counsel. At the outset the point which has agitated my mind is the version of the ages of Mst. Noor Khatoon (P.W.4) and the two claimants of being her real spouse namely Majnoon (P.W.5) and the appellant. In her statement under section 164, Cr.P.C. (Exh.7/A) Mst. Noor Khatoon has declared her age to be 35 years on 21-11-1992. On the same date she was examined by Dr. Naveed Akhtar (P.W.6) who stated tentatively without obtaining report of Radiologist that she was of 35 years as was told to her. One year later, on 14-12- 1993, while deposing before the trial Court Mst. Noor Khatoon still declares herself to be that .Of 35 years. According to entries in Register 5 of the Citizen Code Number maintained by the District Registration Office, Badin she was born in 1951 and she was issued a National Identity Card Number 457-51-070295. If so, then in 1992 she was 41+ - and one year later at the time of her deposition 42 + -. The reason for substracting her real age by 6 and 7 years before the Courts is soon going to be highlighted. According to F.I.R. Lodged on 19-11-1992, when abductee was 41+ - years of age as per her N.I.C. She had led 20 years of married life with per Majnoon (P.W.5). It means that she married with Majnoon (P.W.5) when she was 21 + - years of age. In his deposition on 14-12-1993 Majnoon (P.W.5) is declaring his age to be 30 years. Naturally then, on the date of the institution of F.I.R. He was 29 years of age and 20 years prior to that, at the time of his alleged marriage, he was only a boy of 9 + - years. But his bride Mst. Noor Khatoon (P.W.4) was of 21 + - years as proved above. On the other hand appellant, who is continuously insisting that he is Khamiso son of Muhammad Uris by caste Machi and has nothing to do with the name Meenhwasayo or Wassayo by caste Mallah, has produced his original National Identity Card number 457-36-070294 issued on 28-8-1976. During his statement under section 342, Cr.P.C. To question by Court "Have you anything else to say", the appellant has replied "Mst. Noor Khatoon is my legal wife. I produce my identity and according to which my name is Khamiso son of Uris Machi but not Meenhwassayo... Name of Mst. Noor Khatoon is entered in B Form which may kindly be called". Fortunately this original N.I.C. Was taken on record by the trial Court and is available and intact in its original records as seen by this Court, yet no exhibit number is allotted to it. This is a procedural error which should have been avoided. Once any document is taken on the record for judicial consideration by the trial Court, it is
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a rule of prudence as well as in the interest of justice to allot an exhibit number lest it remains hidden into the heaps of papers and the course of justice takes wrong directions. Fortunately this non-exhibited substantial documents is corroborated by Exh.14-A (Form A Application for Registration under section 4(1)(a) of the National Registration Act, 1973) as exhibited by Muhammad Hussain (D.W.1) Statistical Assistant, District Registration Office, Badin. Original of this Exh.14- A was seen and returned by the trial Court as is mentioned in the deposition. This exhibit corroborates the entries in the N.I.C. Of the appellant with an addition of the date of application being 29-7-1976 on which date the appellant is declaring his age to be 40 years and status in column No,2 to be married. This being the state of affairs, the appellant was of 56 + - on the date of F.I.R., 36+ - years af age at the time of his alleged marriage with alleged abductee Mst. Noor Khatoon (P.W.4) of 21+ - years at that time and another claimant Majnoon (P.W.5) was 9+ - years of age. It is not the case of prosecution that a Nikah-e-Sharia was performed when the alleged bridegroom had not yet attained puberty, was minor and the bride (alleged victim) was adult of 21+ - years of age and that Rukhsati or consummation of marriage had taken place later on. In the absence of the production of Nikahnama by the prosecution and in the presence of Nikahnama produced by the appellant, although not exhibited (as is evident from the impugned judgment), the case was to be dealt with utmost care both at the level of prosecution as well as at trial but this Court has noticed that the case has not been dealt with caution and care at both the levels. 7. Keeping aside this issue of ages of the bride and two claimant bridegrooms at the time of marriage in the Drama of the whole show for the time being, if only "the question of proper relationships of the complainant, the prosecutrix victim, and the two claimants of the victim lady being her sole legal spouse, inter se, had been resolved the trial Court would have saved itself from apparent errors. The allegation is that the appellant in 1992, when he was 56 + years of age per his N.I.C., enticed, abducted and committed heinous crime of incest with his own daugher-in-law Mst. Noor Khatoon (P.W.4) when she was 41+ - and her husband Majnoon (P.W.5) was 29+ - years of age. During his deposition Muhammad Uris aged 38 years (P.W.1) is stating during his examination- in-chief: "About 20 years back I have contracted marriage of my sister Mst. Noor Khatoon with Majnoon ... About six months prior to this incident we had shifted and settled for labour purpose in the village Karim Bux Jamali where we have constructed Katcha huts where I alongwith my brother-in-law Majnoon, Mst. Noor Khatoon Mst. Phapi and accused Meenhwasayo my father-in-law were residing". (Parenthesis supplied). If the present appellant, whose only name according to N.I.C., is Khamiso Machi, then who is that Meenhwassayo who is father-in-law of this P.W.1/complaiannt? As per the set-up of this Drama, Meenhnwassayo is father-in-law of the sister of this witness and not that of this witness himself. The mystery is unfolded when Mst. Noor Khatoon (P.W.4) replies to a suggestion during cross, "It is incorrect that Majnoon is son of accused", meaning thereby that Majnoon is not the son of appellant Khaimso. Now as per set-up of this stage of a cunning Drama, if Majnoon is not the son of the appellant then the appellant is not her father-in-law in any case. THe secret is further unfolded when the set-up of names is probed into. Appellant's another name Meenhwassayo first of all appears in F.I.R. It remains as such in the deposition of complainant Muhammad Uris (P.W.1). It becomes Wassayo in the statement of Mst. Noor Khatoon (P.W.4) under section 164, Cr.P.C. (Exh.7/A). It continues as such when Majnoon (P.W.5) is declaring the name of his father as Wassayo in his deposition (Exh.8). During cross, this witness deposes: "1 produce the photo copy of my N.I.C. ... My N.I.C. Was prepared after my marriage ... I have not given the name of my wife in my N.I.C. But my wife has her own". Had the N.I.C. Of this witness been allotted an exhibited number, it would have assisted the trial and appellate Courts substantially: but negligently, in violation of the rules of procedure and law, it has not been done. The N.I.C. Not exhibited, but kept in the record, indicates the name of the father of this witness to be Wassayo.
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This witness has admitted that his wife, allegedly Mst. Noor Khatoon, has her own N.I.C. However, he has not produced it. The same stands proved from Form "A" maintained under section 4(1)(a) read with section 4(2) of the National Registration Act, 1973 as exhibited by Muhammad Hussain (D.W.1) Statistical Assistant, District Registration OFffice, Badin and is a conclusive proof that on the date of application for N.I.C. i,e, 29-7-1976 she was a married lady and the name of her husband was declared to be Khamiso Machi without any other alternative name like Meenhwassayo or Wassayo and that her year of birth was 1951 and that she was correctly declared to be of 25 years and the name of her father was declared as Jumo and she was registered and allotted an N.I.C. With Number 457-51-070295 in consecutive No,457-36-070294 as allotted to her spouse Khamiso Machi, the appellant. This piece of documentary evidence has gone unchallenged and, therefore, holds ground. Reliance in this respect has correctly been placed on 1987 PCr.LJ 247 Placentia D. Due to the non-exhibition of susbtantial documents, although produced as proved above, this Court called for Original Control Register (RG-3) along with relevant original record of the Registraiton Office, Badin on 10-4-1997. I have thoroughly checked these original records, asked relevant questions from incoming officer, have brought photo copies of Register for the Citizen Code Numer (RG-3) from consecutive numbers from 070281 to 070300 on the record, returned the original, and found the above record intact and with no interpolation, rubbing, changing, cutting, addition or alteration so far as consecutive numbers 457-36-070294 (N.I.C. Of Khamiso son of M. Uris, Post Office Badin) and 457-51-070295 (N.I.C. Of Noor Khatoon wife of Khamiso) are concerned. I am satisfied that the two N.I.Cs. Were issued together more than two decades ago and no such name like Meenhwassayo or Wassayo was attached with Khamiso son of Muhammad Uris Machi and that Noor Khatoon had obtained N.I.C. In her marital status declaring her spouse to be Khamso Machi and not Meenhnwassayo or Wassayo. At this stage I am satisfied that the following passage appearing at pages 6 and 7 of the impugned judgment is a clear proof of non-reading of evidence by the 1st Additional Sessions Judge, Badin (Mr. Abdul Ghafoor Memon): ' So far as Form ' A' of one Noor Khatoon is concerned, the same does not read name of husband to show that she is the same Noor Khatoon and wife of present accused." ' Although a photo copy of the Form ' A' of Mst. Noor Khatoon is kept on the record as Exh.14-C as produced by Muhammad Hussain (D.W.1), but its original was seen and returned by the trial Court as is mentioned in the end of this deposition. Since this defence witness, has not been crossed and shattered, whatever the document produced by him must have been presumed by the trial Court as a genuine document under the provisions of Article 92 of Qanun-eShahadat, 1984. The trial Court has not cared or, may be, has avoided to read Columns 2 and 8 of this. Form "A" (Exh.14-C). Column 2 is a declaration of Noor Khatoon that she is married and column 8 is a declaration that the name of her husband is Khamiso Machi. This Court cannot appreciate non-reading of such a substantial piece of evidence which would have taken the trial Court to a safe and proper dispensation of justice. ' Another passage of the impugned judgment at page 6 last para. Is as under:-- "Nikahnama is produced in defence to show taht abductee/victim is wife of the accused but neither the Moulvi who performed the Nikah and registered the marriage nor any witness of the marriage is examined in defence." ' This Nikahnama seems to have been produced at some stage by the defence, but I do not find any mention about it anywhere in the record. Neither it has been allotted any exhibit number by the trial Court. Where has gone this important piece of evidence which could have a corroborative or at least persuasive value? A document which has not been believed in the impugned judgment is missing. This conduct of the trial Court is highly regrettable. Inter alia the maxim "Justice should not only be done, but it should appear that it has been done" is violated here.
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8. In arriving at the conclusion that Khamiso is not Meenhwassayo or Wassayo, I am also supported by the non-shattered and firm deposition of D.Ws. Muhammad Usman (D.W.2) who has deposed during cross "Khamiso had one son and one daughter from Mst. Noor Khatoon. So, she is his wife. We had gone to attend Khatna ceremony of son of Khamiso in village Yousif Soomro about 5 or 6 years ago. I do not know any Meenhwassayo". Haji Noor Muhammad (D.W.4) in his deposition (Exh.17) has stated "I know Khamiso Machi so also his wife Mst. Noor Khatoon. I know them since 7 or 8 years". During cross, he has deposed, "I do not know about any Meenhwassayo. It is not correct to say that Khamiso is present accused Meenhwassayo of this case". The prosecution has failed to blow dents in this deposition who has also deposed that he has remained as a Councillor of Badin Municipality. Muhammad Siddique (D.W.5) has d posed, "I know Khamiso Machi and his wife Noor Khatoon. I know them since 10 years. I know them because Khamiso was working as Hari with me. During his harapship Mst. Noor Khatoon all along was with him and had given birth to two children: One daughter and one son". To certain suggestions he replied "Khamiso had invited me for Aqiqa at the village of Yousif Soomro about 5 years ago. Accused present in the Court is Khamiso but not Meenhwassayo. It is not corect to say that he is Meenhwassayo". This witness has also gone intact. Appellant has appeared as D.W.3 and his statement on oath under section 340(2), Cr.P.C. Is inspiring confidence. He deposes:-- "Mst. Noor Khatoon is my wife. I have one son and one daughter who are alive from Mst. Noor Khatoon whereas two other children born from her were expired. I was residing in Badin and was working as Hari of Haji Khamiso Bhatti. I was also working as Hari in the village of Yousif Soomro, P.W. Majnoon is Massat (son of sister) of my wife. Mst. Noor Khatoon is my wife but not of P.W. Majnoon. This false case has been filed against me. The P.Ws. Including Mst. Noor Khatoon in collusion with the police have filed this false case against me. I am innocent." (Brackets supplied). 9. Now I turn back to resolve the matter in terms of an effort of substantial substractions of their ages on the part of Mst. Noor Khatoon (P.W.4) and Majnoon (P.W.5). As proved earlier, the documentary evidence is available that at the time of the alleged marriage of the two, the age of bride was 21+ and that of the bridegroom 9 + - in case Majnoon is believed to be true in disclosing his age to be 30 years on 14-12-1993 in the trial Court. But the fact is that he has tried to substract considerably from his real age. The N.I.C. Which he produced in the trial Court during deposition is available in the records. It proves beyond any shadow of doubt that Majnoon is son of Wassayo, is resident of village Haji Darya Khan, Deh Kanwar Post Tando Jam, District Hyderabad which place is about 100 kilometres distant from village Chuhar Jamali District Badin, the original village of Mst. Noor Khatoon, the appellant, the complainant is in a different District. He was issued N.I.C. No,452- 53-147863 on 16-7-1978. It means he was born in 1953, if so, then on 14-12-1993 when he was deposing before the trial Court he was of 40 + - years of age. He was subtracting, intentionally indeed, his age by 10 years before the trial Court with a purpose to hoodwink it. He knew that at the relevant time the appellant was that of 57 + - years of age. He had the design in his mind to prove that the appellant was his father Wassayo, but in case he was disclosing his correct age i,e, 40 years, then it was creating doubts as to whether a poor shifting labour, like the appellant, could become a father at 17 years of age and could marry at the age of 16 years in the type of exploiting society he was barely existing. Mst. Noor Khatoon (P.W.4) was substracting from her real age 6 and 7 years, as discussed (supra), because she was taking pains to show that she was not so elderly to her alleged husband Majnoon as it was appearing to be in case Majnoon was 30 + -. But in case a wrong year of birth was given in the N.I.C. Of Majnoon and he was correct in disclosing his age to be 30 years, then he was only 9 + - at the time of his marriage with the prosecutrix who was 21 + - or 22 + - at that time and at 9 + - males are not pubert at all. Taking this issue of ages of the three from any angle, it appears that there is a criminal conspiracy which has hatched up against the appellant to grab his legally wedded wife and two children.
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10. The learned counsel for appellant has contended that in the absence of the Report of Chemical Examiner and violence against victim, the benefit of doubt should be given to the appellant. Dr. Naveed Akhtar (P.W.6) has deposed: "No scratches or bruises on any part of body. There are no marks of violence on the body of lady Mst. Noor Khatoon. In opinion ibe sexual intercourse not committed by force". But the prosecurtix is deposing as P.W.4: "The accused used to maltreat me and confine me in the house and also committed rape with me forcibly". Dr. Naveed Akhtar (P.W.6) has also admitted that vaginal swa bs were taken, but the chemcial report was not received. The prosexutrix is admittedly a married lady since 20 years and had given birth to 4 children, out of whom two were living. Her deposition that she was maltreated and rape was committed forcibly is negated by medical evidence. 11. So far as contention of delay of two days in F.I.R. Is concerned it has its own mystery. The complainant relates in F.I.R. (Exh.4/A): "On 17-11-1992 we all the three returned back to our house and found that my sister Mst. Noor Khatoon alongwith two children and her father-in-law Meenhwassayo alias Khamiso were not there. Then we remained in search for them, but nothing has happened. Now I have arrived here and do hereby lodge complaint". This complaint was lodged on 19-11-1992 i,e, 2 days after the alleged knolwedge of the missing of the appellant etc. Abduction and rape and so on and so forth. Gul Muhammad (P.W:3), a brother of the complainant and abductee deposed: "On enquiry my mother Mst. Phapi informed us that accused had taken away Mst. Noor Khatoon and both her childrne on the pretext of her treatment. Then we were searching Meenhnwassayo and Mst. Noor Khatoon and children. After six months we came to know that accused Meenhnwassayo is residing at Village Yousif Soomro. Then I, Uris alongwith police went to vilalge Yousif Soomro where police recovered Mst. Noor Khatoon from house of accused Meehanwassayo". So far as the complainant P.W.1 is concerned, he lodged F.I.R. On 19-11-1992 after search of two days as alleged and the recovery of the alleged abductee, two children etc. And arrest of the appellant was effected next day on 20-11-1992 vide recovery Memo. (Exh.5/B), in case the deposition of P.W.3 is believed to be true, the delay in reporting is that of six months. Neither there is any explanation for the delay of two days nor, if P.W.3 is believed for six months. The contnetion is found to be correct. In this context the learned counsel has rightly relied on the law enunciated by this Court and reported as PLD 1983 FSC 192. 12. Now comes the trun of the contentions about improvements which have been carried by the prosecution to the extent of substantial contradictions shattering the entire story. As per F.I.R. Complainant Muhammad Uris (P.W.1), his brother Gul Muhammad (P.W.3), his sister Mst. Noor Khatoon (P.W.4), her husband Majnoon (P.W.5) and father-in-law of Mst. Noor Khatoon (the appellant) had shifted from their original village Choohar Jamali to Village Karim Baldish Jamali for labour. Then they left behind in their Katcha huts only Mst. Noor Khatoon (with children) and her father-in-law, the appellant, and all others went towards Tando Muhammad Khan for labour. In her statement under section 164, Cr.P.C. (Exh.7/A), the alleged abductee Mst. Noor Khatoon is adding one more person in the lsit of those who had shifted from village Choohar Jamali. The person is Mst. Bachul, her mother. This Mst. Bachul is one of those who then left for Tando Muhammad Khan leaving behind the abductor and the abductee only and this Mst. Bachul is the lady about whom appellant informed the abductee that she was ailing and created a pretext to move her out from the house and then committed heinous crimes of incest etc. Gul Muhammad (P.W.3) is adding his father Jumo and substracting his mother Mst. Bachul from the list of those who had gone towards Tando Muhammad Khan leaving behind the couple and children. He is also deposing that after return and enquiry, his mother Mst. Phapi informed that the appellant had taken the abductee on the pretext of her treatment i,e, the treatment of this very Mst. Phapi. But this Phapi had not gone with the complainant and others, was left behind, then whose ailment was amde a pretext by the appellant? This contradiction goes into the roots of the story of prosecution. Then Gul Muhammad
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(P.W.3) is deposing that they had returned after 4/5 days and found the abductee etc. Missing. In contrast to this, in her statement under section 164, Cr.P.C. The abductee is stating that one week after their left over behind, appellant abducted her and for twenty days remained committing Zina-bil-Jabr with her, in contradiction to both, the complainant (P.W.1) is stating that they returned 2/3 days…
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