Full Judgment Text & Judicial Ruling

2019 P Cr. L J Note 34 [Federal Shariat Court] Before Mehmood Maqbool Bajwa,Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ TANVEER and another---Appellants Versus The STATE and another---Respondents Criminal Appeal No. 1/L of 2018 and Reference No. 1/L of 2012, decided on 17th September, 2018. (a) Penal Code (XLV of 1860)--- ----Ss. 458, 337-H(2) & 337-L(2)---Offence of Zina (Enforcement of Hudood) Ordinance(VII of 1979), Ss. 10(4) & 11---Lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, act so rashly and negligently as to endanger human life or personal safety of others, hurt and zina-bil-jabr---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with co-accused persons entered into the house of complainant and abducted his daughter to take revenge of the abduction of daughter of one of the co-accused---Accused persons caught hold of the daughter of complainant and during the course of rescue, the accused persons inflicted the complainant and his family members with handles of the rifle and advanced threats to kill them and that while abducting the daughter of complainant, made aerial firing outside the house---Motive behind the occurrence was stated to be that daughter of co-accused had illicit relations with someone, who had abducted her few days back and the co-accused of the accused had suspicion that the complainant had played some role in her abduction---Record showed that prosecutrix got recorded her first statement before the special court on 27.9.2005 and deposed that during night, some unknown persons with muffled faces entered into their houses, forcibly abducted her on the gun point and on resistance caused injuries to her uncle---Abductee was taken to a nearby Dera, wherefrom she was taken to another Dera, situated at the bank of the river, where she was humiliated, maltreated and raped by various persons---Abductee was allegedly released by the said unknown persons after two days---Abductee could not identify accused as they kept on putting scarf on their faces during such period of time---Abductee had testified that the accused persons present in the court were not the same, who had abducted her and committed rape with her---Abductee was declared hostile on the request of Public Prosecutor and was subjected to lengthy cross-examination, but she insisted upon the version testified in her examination-in-chief and denied the entire story of the prosecution---During the proceeding of the case, application was moved for re-calling and re-examination of the prosecution witnesses on the ground that the prosecutrix and other eyewitnesses earlier had recorded their statement as the accused persons had threatened them of dire consequences---Request was allowed and statement of victim was recorded for the second time on 5.10.2005 before the special court, wherein she reiterated the version so recorded before the police and nominated the accused persons including the accused with their role in abduction and rape---Record transpired that at the end of the trial, special court had transferred the case for want of jurisdiction on 26.7.2007 to the trial court for adjudication, where the case was proceeded with as de novo---Charge was re-framed and prosecution witnesses were summoned for their statement as such besides recording the testimony of other witnesses, the abductee was re-examined on 8.3.2010, who once again deposed the similar story as narrated earlier---Abductee had testified that she was recovered in result of the police raid conducted at the house of co-accused which belied her previous statement that she came at her own after being let free by the culprits---Complainant, father of the abductee although narrated the same story as mentioned in the complaint, but he did not nominate or attribute any role to the accused in his earlier two statements recorded before the special court---Complainant had categorically exonerated the accused and other co-accused from having role in the crime alleged as stated before by deposing that culprits had muffled faces and that the acquitted persons including accused were not real culprits---Eyewitness had also got recorded two statements, wherein he had involved the acquitted accused persons along with accused only having played the role in the abduction---Statement of said witness was contradictory regarding the manner the occurrence took place---Complainant and abductee had not shown the said eye-witness to be present at the time of occurrence, which belied his testimony and made his presence as eye-witness highly doubtful---Another eyewitness had involved the acquitted accused persons and present accused for having role in the abduction of victim---Testimony of another eyewitness was also contradictory to the version given by other eyewitnesses as such no explicit reliance could be placed on his statement---Eyewitness/uncle of the victim lady in his statement before the special court on 27.7.2005 had deposed that he did not know who abducted the lady---Said witness did not nominate the present accused---When said witness was re-examined on 15-12-2006, he had nominated acquitted accused persons but did not nominate the present accused; however on 24.4.2010 said witness had nominated the present accused for abducting the victim---Said witness was uncle of the prosecutrix and his testimony in view of his earlier depositions had lost credibility, whereupon no reliance could be placed for holding the present accused guilty of the charge---Allegedly, present accused took the prosecutrix to the Dera, which was within the same vicinity and was kept there for a considerable time, but there was nothing on record to show that the relatives of the abductee made any effort in the area to recover her---Such state of affairs factually seemed to be significant to arrive at a conclusion that the prosecution story did not fit in with the attending circumstances of the case---Undoubtedly, the occurrence had taken place in dark night and none of the prosecution witnesses had mentioned the source of identification in their testimonies---Eye-witness, in circumstances, could not identify the culprits with such details---Medical evidence of the prosecutrix merely showed that she was used to regular sexual intercourse, hymen was old ruptured and healed, which was insufficient to fix the liability of crime as alleged---Medical evidence also showed that there was a contusion with abrasion on right knee joint and on right foot on her person---Absence of any mark of violence on or around the vagina did not support that she was subjected to rape by ten men---Medical evidence did not corroborate the ocular testimony furnished by the prosecutrix and other prosecution evidence---Sufficient contradictions existed not only in the statements of prosecution witnesses, but the prosecution witnesses themselves had contradicted their own version by making various contradictory testimonies and backing out of their earlier deposition---Variant ocular account furnished by the prosecution witnesses in no way could be believed to be trustworthy and true as such on such testimonies, no conviction could be awarded---Undeniably, the ocular account was in conflict with the medical evidence of the prosecutrix, which was a hard blow for the prosecution, resulting in failure of the prosecution to establish the case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court. Nazim Khan and 2 others v. The State 1984 SCMR 1092 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 458, 337-H(2) & 337-L(2)---Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Ss.10(4) & 11---Lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, act so rashly and negligently as to endanger human life or personal safety of others, hurt and zina-bil-jabr---Appreciation of evidence---Delay in lodging of FIR---Record showed that despite the police station and check post being close to the house of the prosecutrix, the father of the abductee had lodged the report after two days of the occurrence without any explanation---Such delay could not be condoned in the attending circumstances of the case. Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 458, 337-H(2) & 337-L(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(4) & 11---Lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, act so rashly and negligently as to endanger human life or personal safety of others, hurt and zina-bil-jabr---Recovery of weapon of offence---Reliance---Scope---Recovery of weapon of offence, shot gun of .12-bore, was made from the possession of accused---Record showed that empties were also recovered but the same were not sent to Forensic Science Laboratory and were not kept in safe custody and that on recovery of alleged weapon of crime, both were sent together for forensic Science Laboratory examination and report---Such practice was deprecated particularly, when the same were sent with unexplained delay---In the present case, both the parcels along with the recoveries of other shot guns effected from the acquitted accused persons were sent together, which had lost its credibility. Muhammad Farooq and another v. The State 2006 SCMR 1707; Ali Sher and others v. The State 2008 SCMR 707 and Ali Khan v. The State 1999 SCMR 955 rel. (d) Criminal trial--- ----Motive---Scope---Motive played a vital and significant role---Motive itself was of no significance in absence of strong, trustworthy and unshakeable evidence, which led the accused to the guilt---Motive was a double edged weapon, which cut both the ends. (e) Criminal trial--- ----Absconsion--- Effect--- Abscondence of accused was relevant factor but it could not be considered as conclusive proof of a crime---Prosecution had to independently prove the charge on the basis of strong and cogent evidence without any shadow of doubt that the accused had committed the crime. Rohtas Khan v. The State 2010 SCMR 566 and Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel. Mudassar Farooq for Appellants. Amanat Ali for the Complainant. Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General Punjab for the State. Date of hearing: 13th September, 2018. JUDGMENT SHAUKAT ALI RAKHSHANI, J.---The appellant by means of instant Cr. Appeal No. 01/L of 2018 has assailed the judgment dated 08.02.2012 (hereinafter referred as the "impugned judgment") rendered by Additional Sessions, Judge Chiniot (hereinafter referred as "Trial Court") in pursuance of FIR bearing No.226 of 2005 (Ex.PV/1) of P.S Saddar, Chiniot for abduction of P.W.3 Mst. Fouzia and committing gang rape with her. The appellant beside co-accused was convicted and sentenced in the following terms:- i. Under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to DEATH, ii. Under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for life imprisonment with fine of Rs. 25,000/- and in case of default to further undergo six months' S.I. iii. Under section 458, P.P.C., for fourteen years R.I with fine of Rs. 10,000/- and in case of default to further undergo six months' S.I. iv. Under section 337-L(2) for two years' S.I. and under section 337-H(2), for three months' S.I. (All the sentences shall run concurrently). The State has also made Reference No.1/L of 2012 for confirmation of the capital sentence. 2. In precise, the facts brought on surface by the prosecution reveals that complainant Inayat Ali on 02.06.2005 at about 10:30 a.m. lodged an FIR bearing No. 226/2005 (Ex.PV/1) on the basis of complaint (Ex.PV) with Police Station Saddar, Chiniot with the allegations that in between the night of 30th and 31st of May, 2005, while he was sleeping along with his family members, Muhammad Nawaz, brother in law, one Azhar and Noor in the courtyard of his house. At about 12:00 am (night) accused Anwar, Akbar Ghulam Ali, Sajid and 6 unknown persons armed with fire arms, entered in his house and made lalkara that they had come to abduct P.W.3 Mst. Fouzia daughter of complainant to take revenge of the abduction of one Shabana daughter of Anwar. The accused persons caught hold of his daughter, P.W.3 Mst. Fouzia and during the course of rescue, the accused persons inflicted him and his family members with handle (butt) of the rifle and advance threats to kill them all and that while abducting P.W.3 Mst. Fouzia made aerial firing outside his house. The motive was stated to be that Shabana daughter of accused Anwar had illicit relations with one Mumtaz, who had abducted her a few days back and the co-accused of the appellants had suspicion that the complainant had played some role in her abduction. 3. Proceedings with the investigation, P.W. Muhammad Sharif, S.I. being investigating officer of the case inspected the place of abduction and prepared site plan Ex.PX, secured 18 crime empties from the place of occurrence through recovery memo Ex.PF. On 04.06.2005 abductee was recovered, whereof site plan of the place where she was kept was prepared through recovery memo Ex.PY and the abductee was medically examined by lady Dr. Miftah Shaukat, who examined the abductee and subsequently issued medical certificate Ex.PS with the following observations:- "History kidnapping on Monday. On external examination the following injuries were found on her person. Contusion with abrasion measuring 1 cm x 1 cm on right knee joint. Abrasion measuring 2.5 cm x 1 cm on Right foot. P/V Examination On P/V examination hymen was old ruptured and hailed. Vagina admits two fingers easily. Six high vaginal swabs were taken and sent to the chemical examiner for detection of semen and grouping opinion. OPINION

In my opinions, the examinee was used to regular sexual inter-course. Final opinion was kept pending till the receipt of report of Chemical Examiner and report of Serologist. Injury Nos.1 and 2 were declared as 337-L(2), P.P.C. caused by blunt weapon. Probably duration of injuries could not be determined. After completion of the examination carbon copy of medico-legal certificate, one sealed vial and one envelope were handed over the Bibi Rani constable. Ex. PS is the correct carbon copy of medico-legal examination which is in my hand and bears my signature. I also endorsed application for medical examination of Mst. Fauzia Ex.PT under my signatures and seal. I have seen Ex.PU report of Chemical Examiner, according to which the swabs procured by me, were found stained with semen. In view of the report of chemical examiner Ex.PU I am, of the opinion that sexual intercourse was committed with the victim. During the course of investigation, on 07.06.2005 accused Ghulam Ali, on 17.06.2005 accused Anwar, on 23.06.2005 accused Tanveer, on 03.07.2005 accused Akbar, on 06.07.2005 accused Muhammad Ali and Liaqat Ali, and lastly on 10.07.2005 accused Nadeem and Sajid were arrested by P.W. Muhammad Sharif S.I. On 13.07.2005 he got recovered a shot gun .12 bore rifle through recovery memo Ex.PG from Anwar, on 18.07.2005 a shot gun .12 bore rifle Ex.PK from Tanveer. On 15.07.2005 accused Muhammad Anwar got recovered at his pointation one torch through recovery memo Ex.PJ. On the same day at the pointation of accused Liaqat he got recovered a T.V, CD, Iron chain and cot through recovery memo Ex.PH. 4. On 19.07.2015 accused Mumtaz, taxi driver and Ghulam Sarwar were arrested having role in the crime and consequently, on 21.07.2005 got recovered a car, which was taken into possession vide recovery memo Ex.PE. A licensed gun of Ghulam Sarwar was also taken into possession through recovery memo Ex.PL. P.W.9 Dr. Mumtaz Hussain Sajid examined injured Muhammad Nawaz and observed the nine injuries on his person, which included contusions, abrasions and swellings, caused by blunt weapon, which certificate was produced as Ex.PM. 5. On conclusion of the investigation, challan of the case was submitted under sections 7-ATA, 10(4)/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, 337-H2/337-L2/148/ 149/458, P.P.C. before the Anti Terrorism Court. The Special Judge Anti Terrorism Court, while commencing with the Trial framed charge under sections 120- B/149/148, 16 of the Offence of Zina (EOH) Ordinance 1979, 337-A(2)/337L(2), 337-H(2), 10(4)/11, 10(3)/11 of the Offence of Zina (EOH), Ordinance, 1979 and under section 7 Anti-Terrorism Act, 1997, which was denied as such court proceeded with the trial. 6. In order to substantiate the allegations, the prosecution produced 12 witnesses. P.W-7 Inayat, P.W-8, Mst. Fouzia, P.W-9 Abdul Qayyum, P.W-10 Muhammad Nawaz, P.W-11 Azhar and P.W-12 Noor did not support the prosecution version thus they were declared hostile witnesses as they had exonerated the appellants from the commission of the offence and deposed that they could not identify the culprits as they had muffled their faces. 7. On the pretext of being threatened the prosecution witnesses were recalled and re-examined as P.W.8 Mst. Fouzia and P.W.11 Azhar and P.W.1 Inayat did not change their position before Special Judge, ATC, Faisalabad and testified that none of the culprits were identified by them and similarly exonerated the accused persons facing the trial. 8. At the end of the prosecution evidence, the appellant and co-accused persons were examined under section 342, Cr.P.C., who refuted the allegations. None of them opted to get record their statement on oath as envisaged under section 340(2), Cr.P.C. After hearing the final arguments, instead of deciding the case learned Special Judge Anti-Terrorism Court, Faisalabad transferred the instant case to the Court of District and Sessions Judge, Jhang for its onward entrustment to the Court having ordinary jurisdiction with the observation that section 7 of the ATA of 1997 was not made out. 9. The learned trial Court after receipt of the case file instead of proceeding with the case from stage it was left, proceeded with the same as de novo, henceforth the appellant along with co-accused persons were charged afresh under sections 458, 10(4), 337 -L(2)/337-H(2); to which they pleaded not guilty and claimed trial. In the meanwhile another co-accused Nawaz was also arrested, who was also charged to which he did not plead guilty and asked for trial. 10. In this around of litigation, the learned trial Court invited the prosecution to produce evidence to substantiate the charge; as such the prosecution produced as many as 12 witnesses however, suffice to adhere that the seriatim of the prosecution did change. 11. On closure of the prosecution evidence once again, the appellant along with co-accused persons were subjected to the query as envisaged under section 342, Cr.P.C, which allegations were rebutted and held to be incorrect by them and they in clear words professed their innocence by refusing to accept their guilt. All of them did not choose to make their statement as provided under section 340(2) of the Cr.P.C. 12. After hearing the parties; on 08.02.2012, the learned trial Court holding the appellant and co-accused persons guilty of the charge pronounced the judgment and thereby convicted and sentenced them in the terms mentioned in para supra, whereas accused Ghulam Sarwar, Mumtaz and Nawaz were acquitted of the charge; while extending benefit of doubt to them. It is important to make note of the fact that during pronouncement of the judgment, the appellant Tanveer skipped away, who was later on arrested on 20.03.2018. 13. The co-accused persons being aggrieved from the impugned judgment preferred an appeal before this Court bearing Crl. Appeal No.4/L of 2012 filed by one convict Nadeem and Crl. Appeal No.5/L of 2012 filed by convicts Anwar, Akbar, Sajid, Liaqat Ali, Muhammad Ali and Ghulam Ali. 14. This Court by means of common judgment dated 31.05.2013, allowed both the appeals and thereby acquitted all the appellants and answered the Reference No.1/L of 2012 as negative. 15. As stated in the preceding para, appellant Tanveer Ahmed was arrested on 20.03.2018, whereafter, he was sent to jail to serve out the sentence awarded to him through the impugned judgment. 16. The appellant being aggrieved and dissatisfied has challenged the impugned judgment through this appeal, while assailing the legality of the same on 02.05.2018, which though on the face of record was barred by time, however, this Court, keeping in view of the circumstances of the case on 23.05.2018 allowed Crl. Misc Application No.6-L of 2018 and as such condoned the delay caused in filing of the appeal. 17. We have heard the arguments advanced by learned counsel for the appellant Mr. Mudassar Farooq and conversely Ch. Muhammad Sarwar Sidhu, Additional Prosecutor General, Punjab for the State and Mr. Amanat Ali Advocate for complainant Inayat and perused the record with their valuable assistance. 18. The learned Counsel for the appellant inter alia contended that the prosecution has failed to prove the charge as the evidence on record produced by the prosecution suffers from material contradictions, which has created high doubts, thus on such score the conviction and sentence is unsustainable. He stressed upon that there is a considerable delay of almost two days in lodging of the FIR and that despite such delay appellant was not nominated in the FIR and was subsequently involved in the case, which cannot be taken into account as involvement of the appellant is nothing but an afterthought victimization. He added that the ocular testimony is untrustworthy, which by no means can be made basis to hold the appellant guilty of the charge as the said ocular evidence also does not get corroboration from any independent evidence. He maintained that this Court has also disbelieved the testimony of the prosecution witnesses, holding the evidence to be contradictory, thus has recorded acquittal, henceforth the case of the appellant also needs to be dealt with on the same touchstone of appreciation of evidence, which entitles him for the relief of acquittal. On the other hand learned counsel for the complainant half heartedly and reluctantly opposed the appeal, however mulled that the appellant must pay the unpaid compensation amount agreed before this Hon'ble Court during the course of hearing of the appeals by acquitted accused persons. He mainly opposed the acquittal of the appellant on the mere ground that he remained fugitive and as such requested for dismissal of the appeal. Learned Additional Prosecutor General Punjab for the State, Chaudhry Muhammad Sarwar Sidhu has also opposed the appeal on merits and emphasized that the appellant being proclaimed offender is not entitled for the relief claimed in the appeal and requested for dismissal of the same. 19. After analysis of the pros and cons of the adversaries, in view of the record perused from wall to wall, we have arrived at the conclusion that the entire case of the prosecution hinges upon (i) the ocular testimony of P.W.2 Inayat (father of abductee), P.W.3 Mst. Fouzia (the abductee), P.W.4 Walayat, P.W.6 Azhar and P.W.7 Muhammad Nawaz (uncle of abductee), (ii) recovery of abductee, (iii) recovery of crime weapons coupled with crime articles recovered from the place of occurrence, where she was allegedly confined and subjected to rape, (iv) pointation of place of occurrence, (v) positive FSL report of shot gun and last but not the least (vi) the motive. While thrashing the evidence on record, we would like to firstly dilate upon the testimony of P.W.3 Mst. Fouzia, the prosecutrix. She has got recorded her first statement before the Special Judge, Anti Terrorism Court, Faisalabad as P.W.8 on 27.09.2005, wherein she had deposed that on the intervening night of 30th-31st of May 2005, while she was sleeping at her home; at about 12:00 mid-night, some unknown persons, who had muffled their faces entered into their house, forcibly abducted her on the gun point and on resistance caused injuries to her uncle Muhammad Nawaz, where-after she was taken to a nearby Dera, where from she was taken to another Dera situated at the bank of the river, where she was humiliated, maltreated and raped by various persons. She further stated that on third day, she was released in the area of Chak No.10/JB by the said unknown persons, who she could not identify as they kept on putting scarf on their faces during such period of time. She categorically testified that the accused persons present in the Court were not the same, who had abducted her and committed rape with her. At such stage, she was declared hostile on the request of public prosecutor. She was subjected to lengthy cross-examination, but she insisted upon the version testified in her examination-in-chief…

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