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Petitioner: Mrs, GHAZALA PARVEEN VS Respondent: SADIQ DANIELand 18 others
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi Title: Mrs, GHAZALA PARVEEN vs SADIQ DANIELand 18 others Case No.: Criminal Revision Applications Nos. 144, 145 of 2009 and 48 of 2010 Date of Judgment:2011-12-08 Reported As: 2012 YLR 1651 Result: Order accordingly
JUDGMENT
JUDGMENT ' AQEEL AHMED ABBASI, 1,-- The above referred three Criminal Revision Applications, emanating from same incident, for which three different F.I.Rs. Have been registered, are disposed off through this common judgment. 2. Criminal Revision Application No.144 of 2009 has been filed by the applicant on being aggrieved and dissatisfied with the order dated 5-9-2009 passed by the learned 1st Additional Sessions Judge Karachi South in Criminal Bail Application No.141 of 2008 whereby the learned Judge has dismissed the application for Cancellation of bail. Similary, Criminal Revision Application No,145 of 2009 has been filed by the applicant on being aggrieved and dissatisfied with the order dated 5-9- 2009 passed by the learned 1st Additional Sessions Judge Karachi South in Criminal Miscellaneous Application No.59 of 2007 whereby consequent to order passed in Criminal Bail Application No.141 of 2008, the learned Judge has disposed of the " application for pre-arrest bail as not pressed. Whereas Criminal Revision Application No.48 of 2010 has been filed by the applicant on being aggrieved and dissatisfied with the order dated 1st March, 2010 passed by the learned 1st Additional Sessions Judge Karachi South in Sessions Case No.742 of 2006 whereby an application moved by DDPP to take all the respondents accused persons into custody was, dismissed. Since the fate of Criminal Revision Application No.48 of 2010 is dependent upon the decision in Criminal Revision Application Nos. 144 and 145 of 2009, therefore, it will be dealt after the decision in the above referred two revision applications. 3.. It is pertinent to note that all the three cases arise from the orders passed in F,I.R. No.169 of 2005, which according to learned counsel for the applicant, contains the true facts, therefore, it will be advantageous to reproduced the contents of F.I.R. No.169 of 2005, which read as follows:-
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"I am residing at the address mentioned in Column No.2 along with my family and husband and I am serving as the Administrator of Brenton Carey Girls Hostel, situated at 247 Staff Lines, Fatima Jinnah Road, Karachi, for last four years. From the last one year Bishop Sadiq Daniel who is residing in the Trinity Church Compound along with his family wanted to terminate ,,me from my job but my Management Committee was not agreeing for the same. On 11-4-2005 ,Bishop Sadiq Daniel at 9-30 a.m. Along with a group including Shahzar Shamoon, Zafar Iqbal, George Bhatti, Claventina Burdge, Pervaz Barkat, Raj Kumal, Saith Gill, Javed Alam, Riaz Boota, Simon John, Anwar Sardar, Emmanuel Victor, Anwar Lal Din, Irfan Sharif, James Sardar and their 20/2,5 accomplices, to whom I can identify if brought forward, they with intention to occupy the Hostel entered inside, watchman informed me from main gate through Intercom Telephone, I locked the doors of Hostel and in this regard Wormed my staff, after some while there was knock on the Accounts Office of the Hostel, I saw from the window where Sadiq Daniel, Shahzar Shamoon, George Bhatti, Zafar lghal, Claventina Burdge, and other people as well as some workers of Dar-ulKhushnud were standing and they started to break the door, I immediately approached in my office and for assistance called on 15 emergency number and informed them about the 'incident and on phone they also heard the sound of breaking of the doors, after some while they broke the door of Accounts Office and thereafter started to break the center door of my office, I ran inside the Hostel where students of Class IX and X were present for preparation of their Board Examination while remaining students were in their respective schools. I hid himself in the store room till 45 minutes, while they searched for me everywhere, after 45 minutes they found me and caught me, Claventina Burdge, slapped me on 4 my face thereafter started beating me with kicks and fists. George Bhatti and Zafar lqbal were shouting saying kill her. At that time students of Class IX and X came and snatched me from their hands and took me to the prayer, room and locked the door, on which accused persons started to break the doors of prayer room but the students resisted for about 2-1/2 hours and not allowed them to enter inside, on which they gathered all their people who were between 30 to 40 and ,they broke the prayer room door, The girls were shouting that Madam Ghazala is our mother and you cannot take her. The personal guard of Sadiq Dania/ namely Safid loaded hls gun and directed towards the girls and told the girls to hand over Ghazala otherwise he will open the fire, the girls said you fire on us or kill us but we will not let Ghazala go. Having failed to grab me he dropped his gun and went out. Then Zafar lqbal, George Bhattl, Clavintina Berge along with others came forward and started beating the girls with kicks and fists and also pulled the hairs of girls and torn their clothes and abused with bad words and took away all the girl students away from there. George Bhatti, Zafar lqbal and Clavintina Berge dragged me out of the prayer room, beating all the way long to the playground where Sadiq Daniel, Shahzar Shamoon and others were standing. Sadiq Danial commanded George Bhatti take off her clothes. Zafar lqbal took my ,shirt (qamiz) upwards and George. Bhatti pulled down my shalwar, 1 begged George Bhatti to have pity on me for the sake of your own daughter Lubna. He, said you could not be my daughter I will make you fully naked. Then they started hitting my sensitive organs and naked legs. Clavintina Berge bit me on the shoulder and tried to forcibly obtain my signatures on some unknown writings/ documents, when I refused, again they started beating me. At that time Mr, Sher Gill and Mrs. Pamela Shakti arrived there, they also pressurized me to put signatureron the unknown writings, which I once again refused and they continued to beat me. After 6 hours on the intervention of elders and respected people of Christianity I was rescued from them. All the above mentioned accused persons with common intention and object tortured me, attacked the Hostel, exposed me naked to the public view by stripping me off my clothes and humiliated the girl students and tortured them, broke the doors of Hostel and without permission entered inside and given me threats to kill and they are still illegally occupying the Hostel. All the above mentioned was done on the order and active participation of Sadiq Daniel
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and Shahzar Shamoon. On the basis of Inquiry Police lodged the F.I.R. Where State was complainant but I was not satisfied with the F.I.R., on which I moved C. P. No.1289 of 2005 in the High Court of Sindh, in which High Court of Sindh issued directions to take action on my statement. Today I along with my husband Reverend Shafique Kanwal came at Police Station, my claim against the above mentioned accused persons is to outraging my modesty. I request for legal action. Report heard and found correct." 4. Learned counsel for the applicant has contended that from record it may be seen that applicant/complainant Mst. Ghazala Shafiq instantly reported the matter to CPLC and was sent for medical examination on the fateful day when the inc.Ident took place. Her medical examination was conducted on the same day, whereas report of Medico-legal Centre stated as follows:-- (1) Diffuse swelling of right thumb. ' On examination movement painful, tenderness present. (2) Complaint of pain over right shoulder. On examination movement painful, mild tenderness present. (3) Complaint of pain over left lower part of leg. On examination tenderness positive. Movement painful. (4) Complaint of pain over lower incisor. On examination mild pain. (6) Bruises of size 10 x 08 c.m on right thigh. (7) Bruises over left lower leg size 6 x 4 and 1.5 x 1 c.m. ' According to the applicant, no F.I.R was registered to this effect, on the contrary, F.I.R No.44 of 2005 was lodge 13-4-2005 at 1630 hours at Frere Police Station, Clifton Town, Karachi, in which complainant. Naureen Sarfaraz, a lady constable reported that on the day of incident she and another lady police constable were posted inside the gate of Breton Carey Girls Hostel when at about 12-30 hours Mst. Ghazala Shafiq in a company of 15 to 20 girls started ruckus, tore their own clothes, gave fists and kicks blows to both lady constables, when they attempted to stop them they tore uniform of lady constable Nighat Parveen. It was further alleged that as a consequence the complainant lady constable suffered miscarriage of her two months baby. 5. Per learned counsel, since no F.I.R of the complainant was being registered, the applicant held a Press conference to this effect on 12-4-2005, which was published in large number of newspapers on 13-4-2005 wherein the applicant narrated the entire facts. The Christian community of the city condemned the incident and protested against the conduct of the accused persons and the police, whereas the entire incident was highlighted in the print and electronic media as well. The applicant approached various high officials of the Government including President and Prime Minister. Where after the CCPO, Karachi appointed Mr.Sanaullah Abbasi as Incharge of Inquiry. Board to conduct inquiry of the incident. The applicant appeared before such Inquiry Board. Her statement was recorded, whereas statement of other P.Ws. Including Rukhsana Naseem, Roma George, Surriya Anthony, Huma Younus, Bishop Ejaz Inayat, Saba Younus, Nargis Shamsher, Shamila Afroze, Zarafshan Haroon and others were also recorded. Consequently, the Inquiry Report was submitted on 21-5-2005, wherein following findings and recommendations were given:-- "FINDINGS (i) This is a fact that people entered the girls hostel, broke the doors open, dragged Mrs. Ghazala Shafiq outside, manhandled her and outraged her modesty. (ii) Both parties did not act in a legal/ desirable way to resolve their disputes. The matter should have been either resolved/arbitrated by the court or by themselves according to the Constitution of the Diocese of Karachi. Police should have played their pro active role in resolution of matter. ' RECOMMENDATIONS ' ENQU IRY BY MR. S4NAULLAH ABBASL
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(i) A criminal case under the relevant sections of the law may be registered for outrage of modesty. (ii) Local police may be warned for not being pro active. (iii) Role of lady police will be determined later on, as the case has been registered. The enquiry is under way. Why lady police was called and no male member of the force was sent with them when male members of Christian community were present at the spot. It is intriguing on the part of local police." 6. Per learned counsel for the applicant, instead of following recommendations as contained in the Inquiry Report an F.I.R. Bearing No.87 of 2005 was registered on behalf of the State on 27-6-2005 against unknown persons. Since the applicant was not satisfied with registration of the F.I.R. Lodged by the police, she approached the Home Secretary for proper inquiry into the matter who directed another inquiry to Additional Inspector General Police (Investigation) Mr. Nayyer Hasnain, who after examining the complainant and the witnesses completed the inquiry and reached to the following conclusion: "CONCLUSION ' From the statements of the Complainants and witnesses it is quite clear that the incident of forcible evacuation of Mst. Ghazala Shafique did take place on 11-4-2005. Although police was informed that there is likelihood of disturbance no action was taken by police, it remained silent spectator while Mst. Ghazala Shafique (administrator) of Brenton Carey hostel was forcibly evacuated from her office. Whether any legal procedure was followed to terminate the services of Mst. Ghazala Shafiq was beyond the mandate of this enquiry. ' After the incident had taken place the complainant Mst. Ghazala Shafique tried her best to get the F.I.R. Registered but her Complaint was not entertained by police, instead two cases have been registered on behalf of the State. It is quite surprising to note as to why her F.I.R. Was not registered. ' The background of the incident appears to be the tussle between Mr. Sadiq Danial and Mr. Ejaz Inayat for the position of Bishop but this particular incident of 11-4-2005 took place in the presence of police. The complainant Mst. Ghazala Shafique, Administrator, Brenton Carey hostel may be exaggerating the actual incident but forcible evacuation from her office did take place for which her complaint should have been registered. The role of police is also not above board it appears they were trying to help in the evacuation. ' It is recommended that the cases already registered may be handed over to some impartial off cer/agency for investigation and case of Mst. Ghazala Shafiq may also be registered." disturbance no action was taken by police, it remained silent spectator while Mst. Ghazala Shafique (administrator) of Brenton Carey hostel was forcibly evacuated from her office. Whether any legal procedure was followed to terminate the services of Mst. Ghazala Shafiq was beyond the mandate of this enquiry. ' After the incident had taken place the complainant Mst. Ghazala Shafique tried her best to get the F.I.R. Registered but her Complaint was not entertained by police, instead two cases have been registered on behalf of the State. It is quite surprising to note as to why her F.I.R. Was not registered. ' The background of the incident appears to be the tussle between Mr. Sadiq Danial and Mr. Ejaz Inayat for the position of Bishop but this particular incident of 11-4-2005 took place in the presence of police. The complainant Mst. Ghazala Shafique, Administrator, Brenton Carey hostel may be exaggerating the actual incident but forcible evacuation from her office did take place for which her complaint should have been registered. The role of police is also not above board it appears they were trying to help in the evacuation. ' It is recommended that the cases already registered may be handed over to some impartial off cer/agency for investigation and case of Mst. Ghazala Shafiq may also be registered."
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' The applicant filed a Constitution Petition No.D-1289 of 2005 before this Court, seeking registration of F.I.R. Petition was allowed and the police was directed to record the statement of complainant and register an F.I.R. If cognizable .Offence is made out. Accordingly, F.I.R. No.169 of 2005 was registered against the respondents. 7. On registration of above F.I.R. No.169 of 2005 the accused persons moved applications for bail before arrest bearing Criminal Bail Application No.1019 of 2005, Criminal Bail Application No.1048 of 2005 and Criminal Bail Application No.1051 of 2005 before the learned Sessions Judge Karachi South, who granted ad interim. Pre-arrest bail to the respondents, whereafter vide order dated 4-1- 2006 pre-arrest bail granted to the respondents was duly confirmed. Per learned counsel, interim charge-sheet was submitted on 23-12-2005 without recording the statement of the complainant and her witnesses. The complainant challenged such improper investigation and submission of challan. Whereafter CCPO Karachi vide order dated 20-1-2006 constituted three members Board comprising DIGP (Investigation-II) and 2 SSPs, which was later enhanced to 5 members comprising DIGP (Investigation-II) and 4 SSPs to deliberate on the investigation and to give recommendations for re-investigation of the case. However, per learned counsel, in utter disregard to the above directions the concerned S.-I. Noor Sabir submitted final challan on 21-1-2006. The Board so constituted recommended re-investigation of the case. Whereafter 42 witnesses were examined and consequently final challan was submitted on 25-5-2006 wherein section 354-A, P.P.C. Was substituted by section 154, P.P.C. Per learned counsel, in the challan section 354-A, P.P.C. Was omitted, although eight eye-witnesses supported the case of the complainant. The complainant moved an application under section 190(2), Cr.P.C. Before the learned Magistrate, who allowed the same vide order dated 28-10-2006. Per learned counsel, such order has not been challenged hence still in force. After inclusion of section 354-A, P.P.C. The applicant moved an application before the learned trial Court for taking the accused persons into custody on the ground that the accused persons are not on bail under section 354-A, P.P.C., but no order was passed by the learned trial Court. Applicant moved Criminal Miscellaneous Application No.59 of 2007 before the learned Sessions Judge Karachi South for cancellation of bail granted to the accused persons on 4-1-2006. Since no order was being passed on above application, the applicant invoked the extraordinary jurisdiction of this Court seeking directions to the trial Court to pass appropriate orders on pending application. Whereafter, arguments on application for cancellation of bail i.e. Criminal Miscellaneous Application No.59 of 2007 were heard by the trial Court and the case was fixed for order on 2-2-2008. In the meantime, Deputy District Attorney on 21-1-2008 filed an application before the trial Court for custody of the accused persons stating therein that the accused persons are not on bail under section 354-A, P.P.C. Accused persons in the meantime obtained protective bail from this Court vide order dated 1-2-2008. On 2-2-2008 the accused persons moved an application before the trial Court for dismissal of Criminal Miscellaneous Application No.59 of 2007 on the ground that the accused persons have been granted protective bail by High Court vide order dated 1-2-2008. ' Such order was assailed by the applicant by filing Criminal Petition No.22-K of 2008 before the Hon'ble Supreme Court. During pendency of such petition, the accused persons filed Criminal Bail Application No.141 of 2008 before the learned trial Court. However, during pendency of such bail application the accused persons moved Criminal. Bail Application No.172 of 2008 before the High Court and vide order dated 25-2-2008 interim bail was granted to the accused, persons. The Hon'ble Supreme Court under the circumstances disposed of the matter vide order dated 16-1- 2009 with directions to the parties to approach the Court below. On 2-7-2009, this Court in Criminal Bail Application No.172 of 2008 directed the learned trial Court to decide the Criminal Bail Application No.141 of 2008 and Criminal Miscellaneous Application No.59 of 2007 within two months. Pursuant to which directions, both , the above matters i.e. Criminal Miscellaneous Application No.59
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of 2007 and Criminal Bail Application No.141 of 2008 were heard and disposed of by the trial Court vide impugned order dated 5-9-2009 whereby learned trial Court dismissed the Criminal Miscellaneous Application No.59 of 2007 filed by the applicant/complainant and disposed of Criminal Bail Application No. 141 of 2008 as not pressed by the accused persons. 8. In the earlier round of proceedings, both these revision applications were heard and disposed of by learned Single Judge of this Court vide combined judgment dated 25-1-2010 in the following terms:-- "50. There are 18 accused persons. Role of every one of them is not identical. They, as far as offence under section 354-A is concerned, fall into four categories:- (i) Respondent No. 1 allegedly commanded respondent No.3 to strip the complainant; (ii) Respondents Nos.2 and 3 who it is alleged respectively pulled up shirt and pulled down shalwar of the complainant; (iii) Respondent No.5 who allegedly bit the complainant on her shoulder; (iv) Other private respondents who were cam followers or by standers or who made hay of insult and disgrace of the complainant while sun of infamy shone. 51. Result of the above discussion is, following Sarfraz Khan's case . (supra), that impugned order dated September 5, 2009 and order dated 4-1-2006 are set aside, bail applications of respondents Nos.], 2, 3 and 5 are dismissed and interim bail granted to other respondents is confirmed. Criminal Revision Applications No.144 and 145 of 2009 are disposed of in the above terms." 9. Being aggrieved and dissatisfied with the above judgment of this Court in Criminal Revision Applications Nos.144 and 145 of 2009, respondents Nos.1, 2, 3 and 5 preferred Criminal Petitions Nos.30-31 of 2010 before the Hon'ble Supreme Court, which were converted into appeal and disposed of by the Hon'ble Supreme Court vide short order dated 24-2-2010 whereby the judgment passed by the learned Judge of this Court to the extent of petitioners was set aside and the cases were remanded to this Court for fresh decision. However, while setting aside the judgment, it was observed by the Hon'ble Supreme Court that bail granted to the petitioners by Sessions Judge Karachi South vide short order dated 4th January, 2006 in F.I.R. No.169 of 2005 registered at Police Station Frere, Clifton Town, Karachi under sections 147, 148, 337-A(i), 506-B, 354-A, P.P.C. Is kept intact till decision of High Court. In the short order, the Hon'ble Supreme Court further observed that initially section 354-A, P.P.C. Was mentioned in F.I.R. No.169 of 2005 dated 16th December, 2005 but subsequently section 354-A, P.P.C. Was omitted, however, the Magistrate while taking cognizance of the case vide order dated 28th October, 2006 added section 354-A, P. P.C. As well. It was further observed that the said order is still intact and had not been challenged. It was further observed by the Hon'ble Supreme, Court that since the petitioner and co-accused Zafar Iqbal did not press the application for grant of bail under section 354-A, P.P.C., as such they cannot be treated to be on bail by any Court under this section, therefore, to this extent law will take to its course accordingly. Thereafter, the Hon'ble Supreme Court while recording the reasons has remanded the case to this Court for fresh decision in Criminal Revision Applications Nos.144 and 145 of 2009 in the following manner:-- "13. We, therefore, by our short order noted above set aside the impugned order to the extent of petitioners and remanded the case to High Court for fresh decision of Criminal Revision Applications Nos. 144-145 of 2009 holding that the petitioners and co-accused Zafar Iqbal cannot be treated on bail by any court under sec-tion 354-A, P.P.C. And that the law will take its course accordingly. Since the case law cited by learned counsel in this situation became irrelevant, the discussion as to that being an academic discourse, shall be an exercise in futility. These are the reasons for our short order."
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10. Learned counsel for the applicant has vehemently argued that the respondents/accused have committed a heinous crime on the fateful day, which is punishable with death or life. However, per learned counsel, by abusing the process of law and with the active connivance of the police officials they have managed to avoid the rigours of the law so far. Per learned counsel, there is no denial to the fact that the alleged incident took place on the fateful day, but the accused persons are attempting to distort the actual facts by exercising their influence over police and by issuing threats to the complainant and her family, as well as prosecution witnesses. Per learned counsel, the impugned order has been obtained by misrepresentation of facts, as the learned trial Court has not taken into account the material collected during the course of investigation. It is contended that the contents of F.I.R No.169 of 2005 are duly corroborated by the statement of prosecution witnesses including eyewitnesses recorded under section 161, Cr.P.C., whereas the inquiry conducted by the senior police officials also support the case of complainant. Per learned counsel, on taking the complete stock of the material available on record and the events stated hereinabove, it may be seen that the accused persons are fully implicated in the instant crime and under no circumstances were entitled to concession of pre-arrest bail which is otherwise based on misconceived facts. It is contended by learned counsel for the applicant, that prima facie case is made out against the accused persons, who have outraged modesty of complainant in the eye of public at large, therefore, the pre-arrest bail granted to the accused persons is liable to be cancelled and the accused persons are required to be apprehended by the police to face trial. While concluding her arguments the learned counsel for the applicant has , also readout the statements of some…
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