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Petitioner: MUMTAZ AHMAD and 2 others VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Sheikh Ahmad Farooq, Muhammad Jehangir Arshad, Shahzado Sheikh Title: MUMTAZ AHMAD and 2 others vs THE STATE Case No.: Jail Criminal Appeal No,150-I of 2009 and Criminal Reference No,5-L of 2010 Date of Judgment:2012-07-18 Reported As: 2012 YLR 2529 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SHEIKH AHMAD FAROOQ, appellants/Muhanunad Ishfaq, Nazeer Ahmed and Mumtaz Ahmed were tried in a case arising out of F.I.R. No,52 of 2002 dated 30-4-2002 registered in Police Station Pak Gate Multan for offence, under section 10(4)/19 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 377/384/148/149/292, P.P.C. By the learned Additional Sessions Jduge, Multan, who, by virtue of his judgment, dated 26-10-2009, after having found them guilty, convicted and sentenced them as under:-- (1) Appellants/Mumtaz Ahmed and Nazeer Ahmed: Offence: Sentence: (i)under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979)Death sentence as ta'zir each. (ii)Under section 377, P.P.C.Life imprisonment each with fine of Rs.2,00,000 each. (2)Appellant/Muhammad Ishfaq: Offence: Sentence: (i)Under section 10(4)/19(i) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 109, P.P.C.Death sentence. (ii)under section 377/109/34, P.P.C.Life imprisonment as ta'zir with fine of Rs.2,00,000. (iii)Under section 292, P.P.C.Three months imprisonment with fine of Rs.25,000.
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' In default of payment of fine, all the convicts were ordered to further suffer one year simple imprisonment each. In case of recovery of fine, 1/2 of the same was ordered to be paid to the victim Mst. Sughran Mai. The sentences of imprisonment were ordered to run consecutively. However, the learned trial Court acquitted co-accused Muhammad Shafi and Muhammad Iqbal by extending benefit of doubt to them. ' The appellants, by filing this appeal from jail, have called in question the conviction and sentences awarded to them vide the impugned judgment, whereas the learned trial Court has sent criminal Reference No,5/L of 2010 for confirmation of sentence of death. We intend to decide both the above matters through this single judgment. 2. Succinctly, the prosecution story as narrated by complainant/Abid Hussain, (P.W.1) in his complaint (Exh.PL), is that he was married with Mst. Sughran Bibi (P.W.2) about 16 years ago and five children were born out of the said wedlock. The complainant stated that he had to recover the labour charges regarding embroidery on dopatta from accused/Nazir and his wife Mst. Memo. He contended that about one year and three months earlier, he and his wife were called for payment of labour charges by the accused at Multan in a chobara of one Hakeem Noor Muhammad situated in street Shaikhanwali, Police Station Pak Gate, where Muhammad Shafi (brother of Mst. Memo) was living. Mst. Memo and Muhammad Shafi were present in the said chobara. Muhammad Shafi accused took him to bazar for collecting money and they visited different shops. On their return, after about one hour, he found his wife Mst. Sughran Bibi standing at Chowk Haram Gate along with Khadim Hussain and Iqbal Hussain. He stopped the vehicle, whereupon Muhammad Shafi accused hurriedly alighted from the vehicle and slipped away. The complainant's wife informed him in the presence of said Khadim and Iqbal that when he along with Muhammad Shafi had gone to bazar, after a little while, accused Mumtaz armed with knife, Nazeer Ahmed, Muhammad Ishfaq having a camera and Allah Ditta armed with pistol and having a camera entered the room and closed the door. Mumtaz and Allah Ditta/accused pointed their respective weapons upon her, while Nazeer Ahmed accused forcibly removed her clothes. Accused Mumtaz committed zina-bil-jabr with her, followed by Nazeer Ahmed/ accused who also committed zina-bil-jabr as well as carnal intercourse with her, while accused /Ishfaq and Allah Ditta took her nude snaps. She resisted and raised hue and cry. The witnesses told the complainant that on hearing alarm, they went to the chobara of Hakeem Noor Muhammad and had seen the occurrence from the broken window. They knocked the door, whereupon the accused fled away through the door of the adjoining room. Mst.Sughran also told the complainant that when accused removed her clothes then Mst. Memon went in the adjoining room. The motive behind the occurrence is that the accused/Nazir Ahmad had suspicion that the complainant had illicit relation with his wife/Mst.Memon and he had taken her naked pictures. The accused blackmailed the complainant and after extorting Rs, 10,000 from him burnt the said snaps of his wife. After some days, the accused again showed him more snaps and started to blackmail him. The complainant remained quiet for the sake of his honour. At last, he got registered a crime report at Police Station City Jalalpur, which was cancelled due to lack of jurisdiction. The complainant alleged that the accused namely Nazir, Allah Ditta, Ishfaq and Mumtaz have committed the offences in connivance with Mst. Memon and Muhammad Shafi. Hence, F.I.R. No,52 of 2002 was registered at Police Station Pak Gate, Multan. 3. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences. 4. The learned trial Court on 17-6-2003 framed the charges against the convicted accused/present appellants as well as the acquitted accused namely Muhammad Shafi and Muhammad Iqbal for the commission of offences falling under the mischief of sections 10(4) and 19 of the Offence of
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Zina (Enforcement of Hudood) Ordinance, 1979 read with section 109, P.P.C., sections 377, 148 and 149 P.P.C. And section 292 P.P.C. The accused did not plead guilty and claimed trial. 5. The prosecution in order to prove its case produced eight witnesses at the trial. Furrukh Hafeez, A.S.-I. And Attaullah Inspector were examined as C.W.1 and 2 respectively. The gist of the evidence of prosecution witnesses is as follows:- ' P.W.1/Abid Hussain is the complainant of the case, who repeated the contents of his complaint and fully supported the version of the victim. P.W.2/Mst.Sughra Mai, who is the victim of the occurrence, reiterated the allegations levelled by her husband namely Abid Hussain/ complainant(P .W.1). She stated that the accused/Mumtaz and Nazir not only committed zina-bil- jabr but also sodomy with her. She further stated that the accused Iqbal and Ishfaq facilitated their co-accused in the commission of the offence and took her photographs while she was naked. She contended that on her hue and cry Nazir/ accused put his hand on her mouth, whereupon she made a bite on his finger. She also deposed that Khadim and Iqbal P. Ws were attracted to the scene of crime on hearing her hue and cry and witnessed the whole occurrence. She further deposed that Exh. PA to Exh.PK are the photographs which were prepared by the accused persons during the commission of sodomy, zina-bil-jabr and molestration. ' P.W.3/Muhammad Iqbal who is real brother of the victim and an eye-witness of the occurrence, stated that he saw the occurrence from the broken window of the room. He fully supported the version of the prosecution as narrated by P.W.2/Mst.Sughra Mai. ' P.W.4/Riaz Hussain is witness of recovery memo Exh.PM wherein an amount of Rs,1000 and one Camera were recovered from accused Ishfaq while in police custody. ' P.W.5/Dr.Fayyaz Khan Durrani conducted the potency test of accused/Mumtaz Ahmad and Nazir Ahmad and found them fit to perform the sexual act. In this regard he produced M.L.C. Exh.PN and Exh.P0. ' P.W.6/Saeed Ahmad, Sub-Inspector who is Investigating Officer in this case narrated the various steps taken by him during the investigation of the case including the arrest of the accused/Nazir and Mumtaz Hussain and recovery of naked photographs of Mst.Sughran Mai vide recovery memos Exh.PJ and Exh.PK. He stated that Abid Hussain/ complainant, Mst.Sughran Mai/ victim, Khadirn Hussain and Iqbal/P.Ws in their statements Dated 11-5-2002 exonerated accused Allah Ditta from the commission of the offence. The said P.Ws clarified that they, have nominated Allah Ditta due to misunderstanding whereas the name of the original accused was Muhammad Iqbal son of Allah Qadir. P.W.6 found that Allah Ditta was not involved in this case. However, he specifically stated that in his investigation accused/Iqbal, Mumtaz, Nazir, Shafi and Mst.Memon Mai were found to be fully involved in this case. ' P.W.7/Mukhtiar Ahmed Inspector had also undertaken the investigation. On 16-10-2002 he recovered Rs, 1000 and one naked photograph of Mst. Sughran on the pointation of Shafi accused and took the same into possession through recovery memo Exh. PT and Exh.PU respectively which were attested by Khadim Hussin and Din Muhammad P.Ws. ' P.W.8lMuhammad Ramzan Sub-Inspector had arrested Ishfaq/ accused on 28-11-2002 when his petition for pre-arrest bail was dismissed. During investigation, Ishfaq accused got recovered a camera and cash Rs,1000 from the residential chobara of Hakeem Noor Muhammad and the same were taken into possession through recovery memo Exh.PM which was attested by Riaz Hussain and Mulzam Hussain. He also prepared site plan of the place of recovery Exh.PV. During investigation,. Ishfaq accused disclosed that he had destroyed the 'negative' of the photographs of Sughran Bibi. ' The learned trial Court summoned Farrukh Aziz, A.S.-I., Atta Muhammad, Inspector and Mumtaz Hussain, DSP as court witnesses and recorded their statements as C.W.1 to C.W.3 respectively. The said C.Ws testified the registration of F.I.R. No,64 dated 2-4-2002 in Police Station City Jalalpur
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Pirwala on the statement of Abid Hussain/P.W.1. C.W.2 deposed that during investigation of the said F.I.R., it transpired that the occurrence had taken place at Multan and as such, F.I.R. No,64 of 2002 dated 2-4-2002 was cancelled. C.W.3 during, the course of his cross-examination, clarified that Mst.Sughran Mai/victim had never stated before him that the occurrence had taken place at Multari. 6. After closure of the evidence of the prosecution and recording of the statements of the C.Ws, the accused/appellants were examined under section 342 Cr.P.C. And in response to the crucial questions regarding their involvement in the case and the reasons for deposition of prosecution witnesses against them, the, accused/ Mumtaz Ahmed replied as under:-- "The case is false and frivolous. The complainant of this Case No,52/02 i,e, this case was registered by Abid Hussain and his version is supported by the statement of Mst. Sughran. P.Ws. Iqbal and Khadim also supported the version of above said case. This case was registered on 19-7-2002 under section 10(4)/7/79 Zina Ordinance read with sections 377/ 384/ 292/ 148/ 149, P. P . C., Police Station Pakgate, Multan. The same Abid Hussain complainant lodged F.I.R. No,64 of 2002 on 2-4- 2002, at Police Station City Jalalpur Pir Wala under section 10(4)/16/7/71, Zina Ordinance read with 506/292, P.P.C. In which Abid Hussain, the same complainant stated that he along with his wife Mst. Sughran went in the house of Nazeer Ahmed to collect money of embroidery labour where Shafi took Abid Hussain to the Bazar at Jalalpur city and during his absence in the house of Nazeer Ahmed at Jalalpur Pir Wala, Nazeer and Mumtaz committed alleged rape and when Abid Hussain came back his wife Mst. Sughran was, not present in the house of said Nazeer Ahmed accused nor she reached in her own house and during her search made by P.Ws., they found Sughran near the Bus Stand near graveyard of Jalalpur city and on the statement of Abid Hussain F.I.R. No,64 of 2002 above mentioned was registered repeating the same allegations which has been narrated in present F.I.R. No,52 of 2002 and then the I.O. Ata Ullah Inspector recorded the statements of the P.Ws. Mst. Sughran, the alleged victim, Iqbal and Khadim Hussain P.Ws. The I.O. Prepared the site plan on the pointation of the P.Ws. And the I.O. Also prepared the place of recovery. Of Mst. Sughran and inspection note were also prepared by the I.O. Of the house of Nazeer accused. Throughout the investigation, none of the P.Ws. Ever alleged before Ata Ullah Inspector I.O. Of case F.I.R. No,64 of 2002 at Police Station City Jalalpur Pir Wala. That the occurrence has not taken place at Jalalpur Pir Wala city but at Multan city. None of the P.Ws. Of case F.I.R. No,64 of 2002 ever stated that the occurrence did not take place at locality of Jalalpur City rather it was committed at Pakgate Multan within jurisdiction of PS. Pakgate, Multan. No witness and the owner of the alleged Chobara were ever associated with this investigation nor they were cited or produced before this court later on. All the witnesses are imported from Shuja Abad at a distance of about 50 KMs from Multan because no such occurrence was committed at Multan so no PW of the locality supported the false and concocted version of the complainant party. It is false case. All the P. Ws. Are interested and are related inter se inimical to me and my co-accused. They have falsely deposed against me and my co-accused. In fact Abid Hussain complainant had friendly relations and was a (WASDA) of said Mushtaq Lang. I have previous dispute with Khuda Bukhsh Lang who is close relative of said Mushtaq Lang who was Tehsil Nazim at that time. Due to enmity with Khuda Bukhsh Lang, regarding Lamberdari with Lang family this complainant was engaged to get a false case registered against me and my co-accused. Mushtaq Lang had very close relation with Saeed Gujar Inspector who is a notorious police officer of Punjab Police and this Saeed Gujar with the connivance of the Lang family above mentioned, complainant Abid Husain and his wife Mst. Sughran were used as sex tool against me and my co-accused with a concocted story prepared by Saeed Gujar. The prosecution has also belied his own version by declaring/got acquitted Mst. Memo Mai one of the co-accused. The Lang family had been approaching me that if you give us Lamberdari of your village we will
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drop this false case against you. I am innocent. I have been victimized due to my local Lamberdari rivalry with the Lang family who is big Zamindar of our area." ' Appellants/Muhammad Ishfaq and Nazeer Ahmed relied upon the statement/ reply of Mumtaz Ahmed regarding their involvement in this case. ' However, accused/appellants neither opted to make statement, under section 340(2), Cr.P.C. On oath nor produced any witness in defence in disproof of the charge/allegation made against them. 7. Upon conclusion of the trial, the learned trial Court vide judgment dated 26-10-2009 acquitted the accused Muhammad Shafi and Muhammad Iqbal by giving them benefit of doubt. However, the present appellants were found guilty and sentenced as 'mentioned hereinbefore in para-1 of this judgment. 8. Being aggrieved by the impugned judgment dated 26-10-2009, the appellants have challenged the legality and validity of their convictions and sentences through the instant appeal before this Court. 9. Barrister Salman Safdar, learned counsel for the .Appellant/Mumtaz Ahmad contended that the prosecution has failed to prove the case beyond shadow of doubt. He submitted that the ocular account was not worthy of reliance as the presence of the only eye-witness i.e P.W.3 who is a resident of Jalalpur Pirwala is not established at the place of occurrence i,e, Pak Gate Multan. He , submitted that complainant/P.W.1 was untrustworthy and unreliable witness, who made dishonest improvements in his statement. Even otherwise he was not an eye-witness of the occurrence. The complainant had initially got registered F.I.R. No,64 of 2002 on 2-4-2002 at Police Station Jalalpur Pirwala. He further submitted that earlier, the complainant and eye-witnesses, including the victim, had narrated a totally different story of the alleged occurrence. The date of the alleged incident, place of occurrence, the accused and their roles were all variance with present F.I.R./Exh.PL which cast serious doubts on the prosecution version. The prosecution has miserably failed to give any reasonable explanation regarding inordinate delay of 15 months in lodging the F.I.R. The prosecution case was itself not clear whether the occurrence had taken place 3 months or 15 months prior to registration of the case. Khadim Hussain, alleged eye-witness was given up by the prosecution as having been won over by the accused. Complainant and eyewitnesses had exonerated Allah Ditta by replacing him with Muhammad Iqbal, who was ultimately acquitted by the learned trial Court. Tile ocular account was disbelieved by the learned trial Court to the extent of Muhammad Shafi, Muhammad Iqbal and Mst. Menlo. He further contended that Mst.Sughran Mai (P.W.2)(victim) made dishonest improvements in her statement. The presence of P.W.3 at the, scene of occurrence is doubtful; that the statements of P.W.1 and P.W.2 regarding F.I.R. 64/02 were at variance with their statements with respect to the present case. The medical evidence did not support the ocular account. No D.N.A test was conducted in this case. He claimed that the learned trial Court had given undue importance to the photographs, ignoring the fact that the negatives of the said photographs were not available. While concluding his arguments, the learned counsel pleaded that the appellants deserve acquittal because all the evidence and attending circumstances prove that the prosecution case is highly doubtful and it is case of no evidence. ' Learned counsel for the appellant. Mumtaz Ahmad has relied upon the following case law in support of his arguments:-- ' 2010 SCMR 1706 (Muhammad Asghar v. The State), 2011 SCMR 45 (Mushtaq Hussain v. The State), 2011 SCMR 208 (Abid Ali v. The State), 1996 SCMR 176 (Abdul Rehman v. Fateh Sher), 1995 SCMR 599 (Ata Muhammad v. The State), 1972 SCMR 651, (Sher Bahadur v. The State), 2003 SCMR 647 (Mst. Mumtaz Begum v. Ghulam Farid and others), PLD 2011 SC 554 (The State v. Abdul Khaliq), 2006 SCMR 1846 (Lal Khan v. The State), and 2001 SCMR 25(Allah Wadhayao v. The State) 10. Malik Muhammad Saleem, Advocate, who appeared on behalf of appellants/Nazir Ahmad and Muhammad. Ishaque, submitted that prosecution has failed to establish the guilt of the appellants
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as no reliable evidence has been produced in this regard, that the learned trial Court has not properly appreciated the evidence available on record and passed the impugned judgment on the basis of surmises, that there are many contradictions in the statements of the prosecution witnesses and no sentence could be awarded on the basis of such like contradictory/ shaky evidence. He maintained that co-accused/Muhammad Iqbal and Shafi have been acquitted from the charges by the learned trial Court and on the basis of the solitary statement of victim, the present appellants have been convicted. He contended that there is neither any medical report, or report of Chemical Examiner nor Serologist report available, on the record regarding matching of semen, which were necessary in a case where gang rape is alleged to have been committed. The F.I.R. Was registered with the delay of fifteen months and no plausible explanation has been furnished for the said delay, the allegedly recovered photographs are not substantive piece of evidence and cannot be used against the appellants. Even otherwise, it is not revealed from the photographs that both the appellants committed the rape with Mst.Sughra at the same time as both have not been found to be together in any of the photographs. Furthermore,. It cannot be said with certainty that the person shown in the photographs is the same original person, particularly after introduction of computer technology. It is a well-known practice to black mail the people in the society through this device, particularly when the Negative and original photographs are not available on the record. He argued that the photographs are only admissible in evidence when the same are, proved through reliable witnesses which is missing in this case He contended that the story introduced by the prosecution seems to be unnatural, fabricated and false because no wife would allow her husband to commit rape with another lady in her presence, particularly, with the connivance of her real brother as alleged in this case. He further argued that the trial Court has disbelieved the half story of prosecution and the remaining evidence is neither independent nor any corroboration is available on record. He claimed that the recovered Camera in this case is planted and no actual pictures available on- the record and also no technical witness was produced to prove this. Finally, he argued that the judgment of the trial Court is not well reasoned and the conviction recorded and sentences awarded by the learned trial Court are only on the basis of conjectures as there was no evidence available on record which could justify the imposition of sentence of death. 11. Learned counsel for the appellants Nazir Alimad and. Muhammad Ishfaq has relied upon the following judgments in support of his arguments:-- (1) 1998 MLD 1592 (WAPDA v. Ghlam Shabbir> (2) PLD 2003 Karachi 148 (Mat. Marium Haji and others v. Mrs. Yasmin R.Minhas and others) (3) 2005 YLR 1716 (Najma Shahzadi alias Rani Bibi v. The State) (4) 2000 MLD 1193 (Ashique Ali Lashari v. The State) (5) PLD 2004 Lahore. 829 (Rehmat Shah Afridi v. TheState) (6) PLD 1996 Lahore 28 (Sajjad Hussain v. The State) (7) 2002 PCr.LJ 1765 (Government of Sindh through Advocate-General Sindh v. Fahad Naseem and 3 others). 12. Conversely, Mr. Nazir Khan, Advocate, for the complainant has contended that the impugned judgment dated 26-10-2009 is based on well reasoning and the learned trial Court has rightly convicted the appellants. He stated that the recoveries effected from the accused/appellants have proved the prosecution case and the prosecution witnesses were duly cross-examined but no specific question regarding the details of occurrence was put to them. He maintained that the delay has been properly explained by the complainant and the prosecution had the option to leave the witness, which was won over by the accused party. He asserted that the Negatives of the photographs were burnt by the accused party to destroy the evidence. He argued that the act of
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the accused has been elaborately explained in the F.I.R and evidence and it is a case of direct evidence. Lastly, he submitted that the occurrence has not been challenged or denied and all the witnesses supported the statement of the victim. 13. Learned D.P.-G. Appearing on behalf of the State has supported the impugned judgment and contended that the prosecution has fully proved its case against the appellants. He contended that ocular account is proved by P.W.3, who is real. Brother of the victim and P.W.1. The statement of complainant/P.W.1 is relevant under Article 19 of the Qanun-e-Shahadar Order, 1984 as he has described the whole occurrence. The recovery of photographs from Mumtaz and Nazir and Camera which was recovered from the possession of Ishfaq/accused, further strengthen the prosecution case. The Photographs Exh.PA and Exh.PB show the accused Mumtaz committing zina- bil-jabr with the victim. Similarly, Exh.PC, PD and PG clearly show accused Nazir committing zina- biljabr with victim, that photograph/Exh.PH depict that victim is crying and weeping helplessly, that photographs/Exh.PA to Exh.PH were produced by the complainant while appearing in the court as witness, while photographs/Exh.PK were recovered from the accused/ Nazir. He contended that the defence cannot confront the P.Ws. With statements recorded under section 161, Cr.P.C. In case F.I.R. No,64 according to law. He claimed that the charges were proved against the accused/present appellants and they were rightly convicted' and awarded punishment, 14. We have heard the learned counsel for the parties at length in addition to scanning the evidence on record with their able assistance. 15. Admittedly, in the present case two F.I.Rs, were got registered by the complainant/Abid Hussain regarding the same occurrence. The first F.I.R. No,64 of 2002, dated 2-4:2002, under sections 10(4) and 16 of Offence of Zina (Enforcement of Hudood) Ordinance,1979 read with sections 292, 506/384, P.P.C. Was lodged at Police Station, Jalal Pur Pirwala, wherein investigation was conducted and statements of the complainant, victim and the P.Ws. Were also recorded under section 161 of the Cr.P.C. However, during the course of investigation, it transpired that the occurrence had taken place at Multan in the jurisdiction of Police Station, Pak Gate Multan and as such, the aforesaid F.I.R. Was cancelled. The second F.I.R. No,52 of…
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