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Petitioner: SHABBIR alias KUKKU and 2 others VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): S. A. Manan, Saeed-Ur-Rehman Farrukh Title: SHABBIR alias KUKKU and 2 others vs THE STATE Case No.: Criminal Appeals Nos.234/L, 307/I. and Criminal Revision No,70/L of 2002 Date of Judgment:2003-12-18 Reported As: 2004 P C R L J 1039 Result: Order accordingly
JUDGMENT
JUDGMENT ' SAEED-UR-REHMAN FARRUKH, J.--- By this judgment we propose to dispose of the following three matters as these arise out of common judgment dated 20-7-2002 passed by Additional Sessions Judge, Faisalabad. (i) Criminal Appeal No,234/L of 2002 (Shabbir alias Kukku and others v. The State and another); (ii) Criminal Appeal No,307/L of 2002 (Mukhtar Ahmed v. The State and others); (iii) Criminal Revision No,70/L of 2002 (Mukhtar Ahmed v. The State and others). 2. In Criminal Appeal No,234/L of 2002, three persons namely Shabbir alias Kukku son of Mukhtar Ahmed, Muhammad Ramzan son of Muhammad Rafique and Abdul Razzaq son of Mukhtar Ahmed have challenged the impugned judgment passed on a complaint filed by Mukhtar Ahmed whereby they were convicted for offence under sections 10(3) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 7 years' R.I. Each on each count. Vide same judgment they were also convicted under section 343, P.P.C. And sentenced to two years' R.I. Each. ' In Criminal. Appeal No,307/L of 2002 (Mukhtar Ahmed v. The State) the complainant has challenged the impugned judgment acquitting five persons namely Mst. Sharifan Bibi, Muhammad Sharif Dogar, A.S.-I., Muhammad Zafar constable and Zakaullah Bajwa, Wireless Operator/Constable Police Station Samundri and Umar Hayat Constable, in the above-mentioned complaint case. ' In Criminal Revision No,70/L of 2002, Mukhtar Ahmed complainant has assailed the impugned judgment to the extent of quantum of sentences awarded to Shabbir Ahmed alias Kukku, Muhammad Ramzan and Abdul Razzaq; as according to him these were not commensurate with the gravity of the offences committed by them.
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3. This case has a chequered history. In the first instance Mukhtar Ahmed complainant lodged F.I.R. No,159 of 1999 dated 28-3-1999 at Police Station Saddar Samundari, under section 16 of the Offence of Zina (Enforcement of Hadd) Ordinance, 1979 against three persons namely Muhammad Zafar, Shabbir alias Kukku and Anwar (Exh.D.A.). In this F.I.R. The allegation levelled was that his daughter Mst. Aasia had been abducted by these three accused for commission of Zina with her. ' Strangely enough, on the very next day i,e, 1-4-1999 Deputy Superintendent of Police Samundri, after sham investigation, opined that the case was false. He purportedly interrogated Muhammad Iqbal, cited as a witness in the F.I.R. And found that the accused were innocent as there was a rumour in the village that Mst. Aasia Bibi was a vagabond and had disappeared on her own and the allegations against Muhammad Zafar and two others about her alleged abduction were false. With astounding alacrity, final report for cancellation of F.I.R. Was prepared. On 3-4-1999, which was put up before the Court on 22-6-1999 who ordered its cancellation.. 4. Feeling disgruntled, Mukhtar Ahmed moved a complaint before the Deputy Inspector-General, Faisalabad Range who directed registration of a case. Accordingly, F.I.R. No,99 of 1999 was registered at Police Station Samundri on 7-4-1999 under sections 337-K/343/354, Pakistan Penal Code against eight persons namely Shabbir alias Kukku, Muhammad Ramzan, Abdul Razzaq, Mst. Sharifan Bibi, Muhammad Sharif Dogar, Muhammad Zafar Constable, Zakaullah Bajwa and Umar Hayat. This F.I.R. Also did not yield positive result as none of the accused person was arrested and the case was cancelled. 5. After the cancellation of F.I.R. No,159 of 1999 under section 16 of the Offence (Enforcement of Hudood) Ordinance, 1979, Abdul Razzaq, cited as accused therein, got registered case under section 7 of Offence of Qazf (Enforcement of Hadd) Ordinance VIII, 1979 vide F.I.R. Dated 1-7-1999 wherein three persons namely Mukhtar Ahmed, Mst. Aasia Bibi and Altaf Din were arrayed as accused for having made false allegation of Zina against him (Abdul Razzaq) in the said F.I.R. No,159 of 1999. ' This case was investigated into and on 27-7-1999 challan was submitted in Court against the three accused, who were arrested but later on bailed out by the trial Court. ' The proceedings of this case, which were pending adjudication before the Sessions Judge, Samundari, were adjourned sine die vide order dated 27-10-2000 as Mukhtar Ahmed had, in the meantime, filed a private complaint before A.T.A. Court, Faisalabad. The complaint was entrusted to a Magistrate by the learned Sessions Judge for inquiry under section 202, Criminal Procedure Code who, after recording preliminary evidence, submitted a report to the learned Sessions Judge, Samundari that prima facie all the eight accused, mentioned in the complaint case, were involved in the crimes alleged against them. The learned Additional Sessions Judge, accordingly, summoned all the eight accused to stand trial for offences under sections 337-K, 343 and 354, P.P.C. Read with sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 6. The accused were charge-sheeted on 11-2-2002. They pleaded innocence and claimed trial. 7. At the trial the complainant produced, in all, four witnesses inclusive of himself. Dr. Fareeda Sardar, Gynaecologist, D.H.Q. Hospital Faisalabad appeared as P.W.1. She deposed that on 3-4-1999 she, being a member of the Special Medical Board constituted on the order of the then D.C. Faisalabad, medically examined, alongwith the other members of the Board, Mst. Aasia Bibi daughter of Mukhtar Ahmed (complainant), aged 15 years, and, unanimously, following observations were made:- ' Injuries (i) A bruise 4 c.m. x 5 c.m. On the inner side of left knee joint. (ii) Swelling right little toe which was painful. She was advised X-ray examined. ' Hymen was torn; healed tears were seen all around the orifice.
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' Vagina admitted two fingers tight. Examination was very painful. Four vaginal swabs were taken for semen analysis and semen grouping. ' In her opinion, sexual intercourse had been committed with the girl. The injuries on her person fell within the purview of section 337-L(ii); Pakistan Penal Code. Probable duration of injuries was 1-2 weeks. ' She proved medico-legal report Exh.P.A. Which was signed by her and other members of the Board, i,e, Dr. Imitaz Hamid, Dr. Muhammad Akram surgeon and Dr. Muhammad Saleem. ' In the course of cross-examination she stated that, at that moment, the order passed by the Deputy Commissioner for the constitution of Special Medical Board was not available which might be in the record of the office of the Medical Superintendent. She denied the suggestion that her observation that examination of vagina was very painful was to help the examinee. She also stated that she had not received report of the Chemical Examiner qua the vaginal swabs. 9. Mukhtar Ahmed, complainant, P.W.2 entered the witness-box and deposed that on 20-3-1999, at 7/8-00 p.m. His daughter Mst. Aasia Bibi was present in his house when Mst. Sharifan came there and led her away. She was late handed over to Kukku and Ramzan who took her to saw machine of Abdul Razzaq. The bangles of Mst. Aasia Bibi was broken there and her hair were cut and she was made to wear male clothes. They then subjected Mst. Aasia Bibi to Zina-bil-Jabr. She was later on taken to the house of Abdul Razzaq in Samundari where she was kept for three days and subjected to Zina-bil-Jabr. Finally, Mst. Aasia Bibi was taken to a house near General Bus Stand, Samundari. He went on to state that police conducted a raid and Mst. Aasia Bibi was taken to the police station. Umar Hayat accused took RS.3,800 from him and obtained his thumb-impression on blank paper, and then handed over Mst. Aasia Bibi to him at the police station. He deposed that firstly F.I.R. Was recorded against one Zafar who was set free. He then moved an application before D.I.-G. For ordering arrest of accused Shabbir and Muhammad Ramzan who remained in Police Station Sadar Samundari but were released. With a view to seek justice he was forced to file the present complaint (in Court). ' This witness was cross-examined at great length and, if we say so, mainly to harass and intimidate him. We have noticed that large number of questions, having no bearing qua the alleged occurrence whatsoever, were put to him during cross-examination which covered seven typed pages. 10. He denied having moved an application before D.S.P. Samundari who sent the same to S.H.O. Police Station Samundari for inquiry on 20-3-1999. He was confronted with Exh.D.A. (a copy of the application allegedly submitted by him to the police), which was objected to by the counsel for the complainant on the ground that photocopy could not be exhibited. The learned trial Court, however, proceeded to exhibit the same with the observation that the document was part of police file and its admissibility would be determined at the time of final judgment. He was then shown copy of the statement made by him before police (Exh.D.B.). He admitted that it bore his signature. He denied that he mentioned in (Exh.D.B.) that Zafar son of Habib used to visit his house and after developing illicit relations with Mst. Aasia Bibi enticed her away on 21-3-1999. He denied having got recorded in (Exh.D.B.) that Zafar despite request, did not return Mst. Aasia Bibi. ' He deposed that Mst. Aasia Bibi was restored to him on 26-3-1999. He admitted that her Nikah was solemnized with Shabbir son of Muhammad Jamil, his nephew, and that he used to reside in the same Haveli but in a separate room. However, Rukhsati had not taken place when he divorced her after one year of the Nikah because she was involved in litigation. He denied that Muhammad Shabbir and other residents of the village claimed that Mst. Aasia Bibi did not bear good moral character. ' He was then questioned about F.I.R. No,110, registered at the instance of one Nargis against, Rustum and others. He admitted that Anwar etc. Were mentioned as witnesses in the said F.I.R. He
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denied the suggestion that Mushtaq (cited P.W., in the present complaint) and Tariq accused of F.I.R. No,110 of 1999 were related inter se. He admitted that Sardar (a witness in the present case) was brother of Tariq accused in F.I.R. No,110. He admitted that Tariq and Mushtaq were convicted by the trial Court in case F.I.R. No,110 but volunteered that they were acquitted by the Lahore High Court. ' He was also questioned about case F.I.R. No,159 and admitted that it was found false by police authorities and same was cancelled. He admitted that his daughter filed writ petition before High Court and second case was got registered against the police officials etc. Which, too, proved fruitless and the accused mentioned therein were opined by different police agencies to be innocent. He vehemently stated that this case was not properly investigated as it was against police officials. ' He was then questioned about facts of the case under section 379/411, P.P.C. And denied for lack of knowledge a to whether Abdul Razzaq accused (in the present case) was a P.W. In the said theft case. The case under section 7 of the Qazf Ordinance was registered against him and Alaf Din (cited P.W.) at the instance of Abdul Razzaq accused/appellant and its proceedings had been adjourned sine die due to the pendency of the complaint case. He denied that Mst. Aasia Bibi bore bad character and that she left his house on 20-3-1999 at about 12-00 in the night and initially went to a petrol pump namely Warriach Petroleum by the side of the main road and that she left his house in male dress. He also denied that three/four days thereafter she was found at taxi-stand of Samundari and that she was taken to the house of one Sahib by Tariq Taxi driver. 11. Mst. Aasia Bibi, alleged victim, appeared as P.W.3. She deposed that on 20-3-1999 she was seduced out of her house by Mst. Sharifan and handed over to the accused. She raised hue and cry whereupon the accused threatened her to keep silent failing which she would be doe to death. She was then forcibly taken to saw machine of Abdul Razzaq where Razzaq, Shabbir and Ramzan broke her bangles, cut off hair of her head and forced her to put on male clothes. She was then subjected to Zina-bil-Jabr by them. Thereafter, she was taken to the house of Abdul Razzaq in Samundari and confined there for 3 days and all the three persons, above-mentioned, subjected her to Zina-bil- Jabr. Then they took her to a house near General Bus Stand and leaving her there went away. Then the police conducted raid and took her to the police station. She narrated her woeful story to Sharif Dogar, Umar Hayat, Zafar and Bajwa but to no avail and all the four tortured and raped her. She was confined in the police station for three days. On the third day they asked her father to bring Rs,3,800 who brought the amount. Umar Hayat took the money from her father and got his thumb- impression on blank papers. It is, thereafter, that she was handed over to her father. She was in bad shape and could neither.Stand nor sit. Next day she was medically examined, whereafter the D.I.-G. Was approached alongwith medico-legal report who ordered the registration of the case "but the case was registered on false facts". Her father and Alaf Din went to police station but they were booked in a false case and confined for sixteen days so much so that leg of Alaf Din was broken by the police through torture. 12. She was also cross examined at length. She was questioned as to whether the factum of her being taken away to her house by Mst. Sharifan was mentioned by her in statement before the Magistrate and it was found that this fact was missing in said statement. She was also confronted with the contents of writ petition (Exh.D.D.) with regard to' the presence of Razzaq, Shabbir and Ramzan accused (appellants herein) in the, house of Mst. Sharifan at that point of time. It appears that this fact found mention in the writ petition as she was not confronted with (Exh.D.D.) in this regard. Though in Court she had deposed that her father was asked to bring Rs,3,800 by the police, yet in the writ petition the amount mentioned was Rs,38,000. She stated that only Nikah had been solemnized with Shabbir but marriage had not taken place. She denied the suggestion that Rukhsati had taken place. She also refuted the assertion that Shabbir divorced her due to her bad
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reputation. She denied the suggestion that on 20-3-1999 at night time she went to petrol pump in male dress and then proceeded to a taxi stand from where Tariq Taxi Driver took her to the house of Sahib. 13. Last witness produced by the prosecution was Sardar son of Abdul Rahim who supported the complainant about the abduction of Mst. Aasia Bibi by Mst. Sharifan and her handing over to Shabbir and Ramzan who took her to the saw machine of Abdul Razzaq. They broke the bangles of Mst. Aasia Bibi and cut off her hair. Then they took her to the house of Abdul Razzaq in Samundari where she was subjected to Zina-bil-Jabr by them in the deserted house and then, in collusive manner, she was handed over to the police. On the 6th day the police allegedly arrested him and his brother Mukhtar Ahmad and Bhabi who were taken to the police station. It was six days later that Qari Arif, Mushtaq and his brother Liaqat went to the police station and they saw Mst. Aasia Bibi present there in bad shape. Her clothes were bloodstained and she was looking at about to death. Police handed over Mst. Aasia Bibi to her father. 14. This witness was also subjected to lengthy cross-examination. He admitted having appeared before the Magistrate and recorded his statement on 11-5-2000 wherein he mentioned the factum of Mst. Aasia Bibi being handed over by Mst. Sharifan to Kakku, Razzaq and Ramzan, but it was found to be recorded differently. According to him this fact was told to him by Mst. Aasia Bibi and her father. He admitted that he did not see the accused committing Zina-bilJabr with Mst. Aasia Bibi. He admitted that case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was got registered by Mst. Nargis against his brother Tariq and others. He also admitted that accused Tariq, Mushtaq were convicted by the trial Court but they were acquitted by the High Court. He admitted having constructed houses alongwith his relatives on State land in the village but denied that any proceedings or steps were taken by the authorities for their demolition. 15. After conclusion of the prosecution evidence the trial Court examined the accused under section 342, Criminal Procedure Code. Abdul Razzaq appellant, in his statement under section 342, Criminal Procedure Code, denied the allegation of the prosecution in toto. In reply to the question as to why the complaint had been lodged against him, he stated that it was merely an attempt on the part of the complainant to save himself, his daughter Mst. Aasia Bibi and Alaf Din from the rigors of. Qazf case registered vide F.I.R. No,320 under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979). He also pleaded that F.I.R. No,159 dated 28-3-1999 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and F.I.R. No,99 dated 7-4-1999 under sections 343/337-K, P.P.C. Registered at the instance of the complainant had been found false by the police. He contended that the prosecution witnesses were related inter se and inimical towards him and his co-accused. According to him Mst. Aasia was a woman of bad character and she left her house on 20-3-1999 of her own. ' He offered to produce defence evidence but stated that he would not appear as his own witness under section 340(2), Criminal Procedure Code. ' Muhammad Ramzan appellant, while making statement under section 342, Criminal Procedure Code, denied the allegations of the prosecution in toto and also contended that the medico-legal report of (Mst. Aasia Bibi P.W.) was fabricated. As regards the reasons for the complaint case being lodged against him, his reply was identical as to Abdul Razzaq appellant. ' Similar is the position of Shabbir alias Kukku in his statement under section 342, Criminal Procedure Code. ' It is not necessary to refer to the statements of other acquitted co-accused namely, Muhammad Sharif Dogar, Mst. Sharifan Bibi, Muhammad Zafar Bajwa, constable, Zaka Ullah and Umar Hayat, for the reasons stated in the sequel. ' In defence, Shabbir alias Kukku appellant, submitted the following documents:-
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(i) Certified copy of Report "Ikhtetami", in the form of cancellation F.I.R. No,159, dated. 28-6-1999, Police Station Samundari, Faisalabad (5 leaves) Exh.D.F./1, Exh.D.F./2, Exh.D.F./3, Exh.D.F./4, including the orders of the Ilaqa Magistrate. (ii) Certified copy of F.I.R. No,207, dated 15-6-1998 under section 379/411, P.P.C., Police Station Samundari, Exh.D.G. (iii) Certified copy of F.I.R. Exh.D.H. (No,258, dated 13-6-1993), Police Station Samundari under section 379/411, P.P.C. (iv) Certified copy of F.I.R. No,110, dated 8-3-1999, Police Station Sadar under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Exh.D.I. (v) Certified copy of Nikahnama, dated 12-8-1998 between Muhammad Bashir and Mst. Aasia, Exh.D.J. (vi) Certified copies of application under section 32/34, Square No,15-21, Chak No,465/GB in 4 leaves Exh.D.K., Exh.D.K./1, Exh.D.K./2 and Exh. D.K. 3 ; and (vii) Certified copy of Rupt No,9, dated 3-4-1999, Police Station Samundari Exh.P.L. (under objection by the learned counsel for the complainant. Objection will be decided at the time of judgment). ' Abdul Razzaq appellant did not produce any defence evidence. From the perusal of the record it appears that Muhammad Ramzan also did not lead any defence evidence. 16. We have heard the learned counsel for the parties and perused the record with their assistance. We have also gone through the record of the Qazf case pending before the Additional Sessions Judge, Samundri which was sent for. The record pertaining to the F.I.R. No,159, dated 28-3-1999 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Sadar, Samundri , by Mukhtar Ahmad complainant and F.I.R. No,99, dated 7-4-1999 under sections 343/337-K, P.P.C. Registered at Police Station Samundari was also examined and so also the order of learned Magistrate regarding cancellation of F.I.R. No,159. ' It is contended by the learned counsel for the appellants (Criminal Appeal No,234/L of 2002) that (i) it was a wholly baseless and frivolous complaint filed by Mukhtar Ahmad and the prosecution evidence led in support thereof was not only deficient in material details but also lacked intrinsic truth (ii) that the complaint case was merely by way of counterblast to the Qazf case registered against Mukhtar Ahmad complainant, his daughter Mst. Aasia Bibi, the alleged victim of this case and Alaf Din (iii) there was delay of more than a year in lodging the complaint which has not been explained satisfactorily and this fact, per se, adversely reflected upon the veracity of the prosecution story. ' In his bid to persuade us to reach the conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt their learned counsel led us through the contents of the complaint and the statements of the prosecution witnesses. He has pointed out discrepancies in the statements of the witnesses on certain points touching the merits of the case. It was also urged that the report of the Chemical Examiner, not having been produced on record, adverse inference had to be drawn against the prosecution. ' On the other hand, learned counsel for the complainant as well as Raja Abdur Rehman, Assistant Advocate-General, Punjab, while supporting the impugned judgment argued that the complaint case was filed by Mukhtar Ahmad after he had failed in his efforts to get relief qua his F.I.Rs, which were got cancelled by the appellants in connivance with the police and it was measure of last resort that he approached the trial Court with his complaint. According to them the prosecution witnesses were truthful and their testimony inspired-confidence and the learned trial Judge has not committed any illegality in, convicting the appellants. ' As regards the non-production of the report of the Chemical Examiner it was urged that the same was inconsequential in view of the statement of the victim as well as the deposition of the lady doctor who examined her for rape.
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' We have given our deep thought to the facts and circumstances of the case. Really sad picture, of the conduct of the police qua the occurrence in dispute has emerged on the record. On 28-3-1999 Mukhtar Ahmad complainant went to Police Station Samundri and got registered the case under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against three persons namely Muhammad Zafar, Shabbir alias Kukku and one Anwar levelling allegations of abduction of his daughter by them for committing Zina with her. The police file shows that on the very next date i,e, 28-3-1999, D.S.P. Samundri formulated his final opinion that the case was baseless and false. He purportedly interrogated only Muhammad Iqbal, cited as a witness in the F.I.R. And then went on to opine that there was rumour in the village that Mst. Aasia Bibi was a vagrant and disappeared from the village of her own. The final report of cancellation was prepared on 3-4-1999. It was put up before the Magistrate on 22-6-1999 who passed order for its cancellation. Perusal of the order of learned Magistrate also leaves one in a state of shock as he, too, without application of judicial mind to the facts of the case, went by the ipsi dixit of the police to the effect that F.I.R. Was false. He did not bother to check as to whether the police have carried out any investigation worth the name before submitting a report for cancellation of the F.I.R. He was exercising judicial/quasi-judicial powers in the matter and clearly failed to perform his duty in this regard, as per settled principles on the subject. ' Taking benefit of the cancellation of F.I.R. No,99, as mentioned above, Abdul Razzaq rushed to the police and got a case under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979) vide F.I.R. No,320, dated 1-7-1999 i,e, within eight days of the cancellation of the said F.I.R. Wherein he accused three persons namely Mukhtar Ahmad complainant, his daughter Mst. Aasia Bibi and Alaf Din as having made false allegations of Zina-bil-Jabr against him in the. Cancelled F. I . R: No,159. ' The police, this…
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