Full Judgment Text & Judicial Ruling

2014 Y L R 853

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Syed TALIB HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.8-L of 2012, decided on 19th November, 2013.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Penal Code (XLV of 1860), Ss.380, 448 & 34---Zina-bil-jabr liable to tazir, theft in dwelling house, house-trespass, common intention---Appraisal of evidence---Benefit of doubt---Inordinate delay of 2 months and 13 days in registration of F.I.R., was not cogently and plausibly explained---No one had seen accused committing 'zina-bil'jabr' with the daughter of the complainant---Co-accused had been acquitted by the Trial Court---At least, there were 20/25 houses in the street, where occurrence took place---No man of ordinary prudence would try to commit "zina-bil-jabr" with a woman without locking/bolting the door of the room/house which was situated in a narrow thickly populated street---Version/story of the complainant seemed to be improbable---Inhabitants of street had gathered on the spot immediately after the occurrence on hearing the hue and cry of the complainant and the victim; but, none of them had appeared in the Trial Court in order to support the allegations of the complainant---Corroboration, was not a rule of law but that of prudence---Acid test of veracity of the statement of the prosecutrix, no doubt was the inherent merit of her statement, but solitary statement of the victim was neither trustworthy, or confidence inspiring, nor supported by medical evidence---Victim alone could not be relied upon for recording conviction of accused, in circumstances---Medical evidence also did not prove the commission of 'zina-bil-jabr' by accused with the victim beyond reasonable shadow of doubt---Neither any Police Official accompanied the victim to the Lady Doctor who conducted her medico-legal examination, nor any independent person identified her during said examination---As to whose medical examination was conducted by the Lady Doctor was shrouded in mystery---Lady Doctor was not able to give any opinion regarding the commission of zina prior to receipt of report of Chemical Examiner---Sample of semen of accused was not taken by the Doctor, nor sent to the Serologist for grouping---No DNA test of accused was conducted---Trial Court did not properly appreciate the statement of accused made on oath in disposal of the allegations/charges made against him---Statement of accused which was supported by a number of documents was more convincing as compared to the evidence of the complainant, which was not only contradictory, but also not worthy of any credence---Trial Court had de-exhibited all the documents which were produced by accused while making his statement under S.340(2), Cr.P.C.---Inquiry Officer in his report had clearly mentioned that real dispute between the parties was regarding vacation of the house in possession of the complainant as a tenant---Accused had also proved his enmity with a relative complainant---Chances of false implication of accused by the complainant could not be ruled out, in circumstances---Trial Court disbelieved the evidence of the complainant to the extent of presence and participation of two co-accused, but had convicted accused on the same evidence---Whole occurrence as narrated by the complainant in the F.I.R. was not believed, which fact alone had created a serious dent in the veracity of the prosecution story, benefit thereof must accrue in favour of accused as a matter of right and not of grace---Prosecution having failed to prove the charges against accused beyond reasonable shadow of doubt, Trial Court was not justified in recording convictions and sentence against accused---Impugned judgment of the Trial Court was set aside by Federal Shariat Court and accused was acquitted of the charges and was released.

2007 PCr.LJ 1792; PLD 1985 FSC 120; 1986 PCr.LJ 1794; 2007 PCr.LJ 50; 2005 PCr.LJ 1722; PLD 1987 FSC 25; 1993 PCr.LJ 1842 and 2010 SCMR 584 ref.

Khan Muhammad v. The State PLD 1986 FSC 262; Saeed Ahmed and another v. The State 2006 PCr.LJ 1311; 2010 SCMR 584; Shehzad alias Shaddu and others v. The State 2002 SCMR 1009; 1993 PCr.LJ 1842; 2013 SCMR 203 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mrs. Fakhar-un-Nisa Khokhar for Appellant.

Ch. Muhammad Mustafa D.P.P. for the State.

Date of hearing: 12th November, 2013.

JUDGMENT

SHEIKH AHMAD FAROOQ, J.---Through the instant criminal appeal, the appellant/Syed Talib Hussain son of Syed Ghulam Muhammad has challenged the judgment dated 10-11-2011 delivered by the learned Additional Sessions Judge, Lahore whereby the appellant has been convicted under section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to twenty five years'' R.I with benefit of section 382-B Cr.P.C. However, two co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad, who are real brother and father, respectively, of the appellant /Talib Hussain were acquitted of the charges vide the same judgment dated 10-11-2011.

2. Precisely, the prosecution story as narrated by the complainant/Mst. Hanifan Bibi (P.W.2) in the complaint (Exh.PB) on the basis of which formal F.I.R. No.213 of 2002 dated 20-4-2002 (Exh.PA) was registered at Police Station North Cantt: (Shumali Chowhani) Lahore, is that the complainant is resident of Altaf Colony (Fareed Town) Hussain Road, Lahore Cantt. and a poor lady, having children. Her husband namely Muzammil Hussain is a permanent patient and in order to bear the daily house-hold expenditures, the daughter of the complainant namely Shahzadi, aged about 17/18 years, who is unmarried, used to do embroidery for earning. The complainant had obtained a house on rent of Rs.1000 per month at Khyber Colony, Kachi Abadi, Lahore Cantt. for facilitating her daughter and paid three months advance rent of Rs.3000 along with security of Rs.2000 to Talib Hussain son of Ghulam Muhammad (landlord) although, the owner of the house was Ghulam Nabi, his elder brother, who is a proclaimed offender in a theft case in Police Station North Cantt. Talib Hussain/accused during the period of tenancy, tried to develop relationship with her daughter/Mst. Shahzadi and one day the said Talib Hussain with the help of his brother/Shakir Ali took some photographs of her daughter and started blackmailing her. On 7-2-2002, at about 6/7 p.m., the complainant had gone to `Bazaar for some work when Talib Hussain/accused trespassed into her house and upon his direction, his brother Shakir Ali closed the door of the house from outside by bolting it. Thereafter, Talib Hussain/accused forcibly committed 'zina-bil-jabr' with the daughter of the complainant without her consent. In the meanwhile, complainant came back from "bazaar" and Shakir ran away upon seeing her. The complainant opened the door of the house and saw Talib Hussain present in the room and committing 'zina' with her daughter, who was raising hue and cry. On seeing the complainant, the accused/Talib Hussain also ran away. The inhabitants of "mohallah" were also attracted to spot and they saw Talib Hussain running. The complainant alleged that accused/Talib Hussain gave her threats of dire consequences in case, she reported the matter to police, he would burn down her house and abduct her daughter/Shahzadi. After some time, the accused/ Ghulam Muhammad, Shakir Ali and Talib Hussain started throwing the luggage of the complainant out of the house and not only misappropriated most of it but also forcibly occupied the house. The complainant along with her daughter went to Police Station North Cantt. on the same day but no proceedings were initiated. The police also did not get her daughter medically examined, whereupon she got her medically examined on the orders of Special Judicial Magistrate, 1st Class Lahore Cantt. The complainant requested for initiation of proceedings against the accused persons and for restoration of the possession of the house along with the misappropriated luggage.

3. After completion of usual investigation, a report under section 173 Cr.P.C. was submitted in the learned trial Court against the accused for taking cognizances of the offence.

4. The learned trial Court framed the charges against the convicted accused/ present appellant /Talib Hussain as well as acquitted co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad on 18-9-2004 under section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 448/34 and 380/34 P.P.C. The accused did not plead guilty and claimed to be tried.

5. In order to substantiate the allegations levelled by the complainant and to prove the charges, the persecution got recorded statements of as many as six witnesses including the statements of the complainant and the victim which were recorded as P.W.2 and P.W.3, respectively. The ocular account of the incident was furnished by complainant herself/Mst. Hanifan Bibi (P.W.2) and his daughter namely Mst. Shahzadi/ victim(P.W.3). The medical evidence was tendered by lady Dr.Lubna Nasim /P.W.4, who had medically examined the victim on 13-2-2002. P.W.4 recorded the following observations in her medical report:--

"A young unmarried girl of average built, conscious well oriented in time and space, gave history of sexual assault by one person on 7-2-2002 at about 7.00 p.m. L.M.P 3-2-2002.

General Examination.

No marks of any recent violence on her body except a scabbed abrasion 1.5 x.2 cm back of left hand.

Local examination:

(1) No mark of any injury on her external genetalia.

(2) No stains of semen or blood or her body or clothes, history of change of clothes, history of bath taken.

(3) Hymen torn showing multiple tear around the circumference which were old and completely healed but one tear at 3-0 clock position was in the healing stage showing oxidative edematous red margins which bled to touch. A big tear completely healed at 6-0 clock position. A small laceration 0.8 x 0.5 cm in healing stage tendered to touch and red in colour was present at the fourchette. Vagina admitted two fingers tightly. Three vaginal swabs were taken, sealed and sent to the Chemical Examiner for detection of semen, blood and semen grouping. The opinion will be given after receiving the Chemical Examiner report.

The lady doctor/P.W.4 after receiving the Chemical Examiner Report No.228 dated 22-3-2002 opined that the sexual act per vagina had been committed. P.W.5/Ghulam Abbas, S.I, who is I.O. of this case, narrated various steps taken by him during the investigation including the arrest of the accused on 28-10-2002. On completion of investigation, he submitted the challan against the accused in the court. P.W.6/ Dr.Syed Zia-ud-Din examined the accused/ Syed Talib Hussain on 29-10-2002 and did not find anything to suggest that he was unable to perform sexual act/intercourse. The remaining witness i.e. P.W.1, produced by the prosecution, is formal in nature.

6. After the closure of the evidence of the prosecution, the statement of the convicted accused/present appellant was recorded under section 342, Cr.P.C. on three different dates of hearing i.e. 5-12-2006, 19-10-2011 and 2-11-2011, wherein he denied the allegations levelled against him by the complainant. Accused/Talib Hussain, in response to a crucial question as to "why this case and why the P.Ws. deposed against you" replied as under during his examination under section 342, Cr.P.C. on 19-10-2011:

"Hanifa, P.W.2 came to me for obtaining a house on rent and told me that her husband was dealing in narcotic and she wanted a separate residence. Hence, I handed over the key of my house in Khyber Colony to Hanifa/P.W.2, She promised that she would bring her I.D Card after three days. After three days when I went to the house of Hanifa/P.W.2, I saw that other women were also present in her house hence I stood outside the house. Upon her insistence I went inside the room where she offered me tea, which I took. In that tea some intoxicant was present. I became semiconscious upon which some girls sat with me and my pictures were taken which were distributed in the area. I became conscious at 11/11-30 midnight when I was lying in the courtyard and one Shaukat picked me up. I moved an application in Police Station North Cantt. which I would produce in defence evidence. When no proceedings were initiated I moved an application before S.P. Cantt. An inquiry was conducted by Ashraf Khichi, A.S.-I. and Ashraf Khichi A.S.-I. in report dated 10-3-2002 elaborated that I did not get myself medically examined and neither the victim Shahzadi/P.W.3 got herself medically examined and both the applications of the complainant and my application were the result of fact that the possession of my house was disputed and both the parties were trying to occupy the same. Applications are for vacation of the disputed house. When Ashraf Khichi A.S.-I. on 10-3-2002 has reported that the Shahzadi victim/P.W.3 had not got herself medically examined then how can her medical examination be held on 13-2-2002. We had given 60,000 dollars to Tahir Rasool son of Ghulam Rasool stamp vendor who at present is in USA. Ghulam Rasool and Tahir Rasool misappropriated the said amout. We demanded the return of money. In retaliation he not only lodged the in hand F.I.R. but also F.I.R. No.459/2002 Police Station North Cantt. an F.I.R. of dacoity and an F.I.R. of murder against us. Apart from the F.I.R. a civil suit was also filed by him. Hanifa Bibi had illicit relationship with said Ghulam Rasool stamp vendor and they had relationship with each other since 1987. In fact in the year, 1987 Hanifa Bibi had lodged an F.I.R. under Hudood case against Zahid Rasool son of Ghulam Rasool as well and both parties entered into compromise later on. Ghulam Rasool and Hanifa Bibi helped each other in different civil and criminal litigations which shows their deep link with each other. Even the services of the summons issued in the in hand case were effected by said Ghulam Rasool. On account of this grudge a false F.I.R. was lodged by Hanifa Bibi/P.W.2, all the witnesses are false".

The convicted accused/present appellant also made a very lengthy statement on oath in disproof of the allegations/ charges as envisaged under section 340(2) Cr.P.C. The accused also produced three witnesses in their defence. Additionally, the convicted accused/present appellant placed on record documents/Exh.D-1 to Exh.D-113 in his statement under section 342 Cr.P.C. dated 2-11-2011 as well as while appearing as his own witness on 28-10-2011.

7. Upon conclusion of the trial, the learned trial Court vide judgment dated 10-11-2011 while acquitting the co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad, convicted Talib Hussain/present appellant as mentioned in paragraph-1 of this judgment.

8. Mrs. Fakhr-un-Nisa-Khokhar, Advocate, learned counsel for the appellant submitted that there is an unexplained delay of about 2-1/2 months in the registration of the case as the occurrence took place on 7-2-2002 whereas the F.I.R. was lodged on 20-4-2002. She further submitted that not only the medical examination of the alleged victim namely Mst. Shahzadi was got conducted privately after five days of the occurrence i.e. on 13-2-2002 but also the report of the lady Dr.Lubna Naseem (P.W.4) was false and maneuvered. In fact, the learned counsel for the appellant alleged that another woman was produced before the lady Dr.Lubna Naseem/P.W.4 for medical examination as is evident from the incorrect entries regarding the name of the father of Mst. Shahzadi as well as her age. She clarified that the name of the father of Mst. Shahzadi as admitted by the complainant/Mst. Hanifan Bibi, is Sher Khan, who divorced her and the second marriage of the complainant took place with Muzammil Khan about 25/26 years ago. She claimed that in view of the duration of the second marriage of Mst. Hanifan Bibi/ complainant/P.W.2, the age of Mst. Shahzadi, who was born out of the wedlock of Mst. Hanifan Bibi with Sher Khan, could not be less than 27 years. She also challenged the genuineness of the application filed by Mst. Hanifan Bibi before the Magistrate, Police Station, North Cantt. Lahore dated 11-2-2002/Exh.PC as well as the orders passed thereon by the learned Magistrate. She maintained that neither the semen of convicted accused was obtained for its grouping by the I.O. nor DNA test was got conducted despite the request made by the accused to the learned trial Court in this regard through an application. She submitted that the previous enmity of the parties for false implication of the present appellant is proved from the record. She emphasized that the two co-accused namely Syed Shakir Hussain and Syed Ghulam Muhammad, who are real brother and father of the present appellant, respectively, have been acquitted by the learned trial Court while relying on the same set of evidence and as such, the conviction of the present appellant cannot be maintained. She pointed out that there is no eye-witness of the commission of "zina" by the convicted accused/Syed Talib Hussain with Mst. Shahzadi and the statement of the victim is neither confidence inspiring nor supported by the medical evidence. She highlighted various discrepancies, contradictions and improvements in the statements of the witnesses of the prosecution, which, had created doubt regarding the genuineness of the prosecution story. She asserted that the benefit of doubt should be given to the accused. While concluding her arguments, she argued that the prosecution story is highly improbable and the complainant/ P.W.2/Mst. Hanifan Bibi and victim/Mst. Shahzadi/P.W.3 are not reliable witnesses in view of their antecedent. She pleaded for setting aside the impugned judgment dated 10-11-2011 and acquittal of the appellant from the charges.

In support of her arguments, learned counsel for the appellant has relied upon the following reported judgments:--

(1) 2007 PCr.LJ 1792

(2) PLD 1985 FSC 120

(3) 1986 PCr.LJ 1794

(4) 2007 PCr.LJ 50(FSC)

(5) 2005 PCr.LJ 1722

(6) PLD 1987 FSC 25

(7) 1993 PCr.LJ 1842

(8) 2010 SCMR 584.

9. Conversely, Ch. Muhammad Mustafa, learned D.P.G. appearing on behalf of the State claimed that the prosecution has fully proved its case against the appellant. He submitted that the delay in the registration of the case is fully explained as the police was not taking cognizance of the offence despite the information of the occurrence vide Rapt No.15 dated 12-2-2002. He further submitted that the medical examination of the victim namely Mst. Shahzadi was conducted by P.W-4/Lady Dr.Lubna Nasim in compliance with the orders of the Magistrate. He maintained that the allegation of `zina' against the present appellant is fully established from the statements of the complainant/ P.W.2/Mst. Hanifan Bibi and Mst. Shahzadi/P.W-3 as well as from the report of the lady Dr.Lubna Nasim ,who appeared as P.W-4. He denied the chances of appearance of another woman instead of Mst. Shahzadi before the lady doctor/P.W.4 as well as issuance of a false report by the said P.W.4. He refuted the contention that the complainant had a motive for false implication of the present appellant. Lastly, he supported the impugned judgment and requested that the same may be upheld.

10. We have heard the learned counsel for the appellant as well as the learned Deputy Prosecutor-General Punjab at length. We have also minutely examined the oral and the documentary evidence available on the record in addition to evaluating the impugned judgment.

11. First of all, we would like to discuss the inordinate delay in the lodging of the F.I.R. The alleged occurrence took place on 7-2-2002 at about 6/7.00 p.m. whereas the F.I.R. No.213/2002 was registered in Police Station North Cantt. Lahore on 20-4-2002 i.e. after a delay of 2 months and 13 days. No doubt, the complainant reported the incident to the police on 9-2-2002 (Exh.D/74) which was registered as Rapt No.15 dated 12-2-2002 (Exh.D/80) according to Police Rules No.24.4. However, the Police suspected the information and as such, proceedings were conducted under section 157 Cr.P.C. Thereafter, the complainant/Mst. Hanifan Bibi moved an application to the Special Judicial Magistrate North Cantt. Lahore on 11-2-2002 (Exh.PC/1) in order to get her daughter/Mst. Shahzadi medically examined. The medical examination of the victim/Mst. Shahzadi was conducted by Lady Dr. Lubna Naseem/P.W.4 on 13-2-2002 and Mst. Hanifan Bibi/ complainant submitted another application to S.H.O North Cantt./Exh.PB on 11-4-2002 whereupon the present F.I.R. No.213/2002 was registered on 20-4-2002. There is no explanation as to why complainant/Mst. Hanifan Bibi submitted the second application on 11-4-2002 i.e. after a lapse of about two months, for registration of F.I.R. when her daughter namely Mst. Shehzadi was medically examined on 13-2-2002 and carbon copy of M.L.C, according to P.W.4, was delivered to the victim soon after the examination. No doubt, the complainant/P.W.2 and Mst. Shahzadi/victim (P.W.3) had tried to explain in their respective cross-examination that they got the medical report/carbon copy of M.L.C. on 20-4-2002 after a lapse of 2 months and 13 days but this contention of the complainant is totally belied not only by the P.W.4/Lady Dr. Lubna Nasim as well as from the M.L.C. itself, wherein it is clearly mentioned that Mst. Shahzadi received a signed carbon copy on 13-2-2002 but also from the application of the complainant herself dated 11-4-2002 (Exh.PB) with which the medical report was attached. Even otherwise, there are dishonest improvements/additions in the second application dated 11-4-2002 i.e. Exh.P.B whereupon, the F.I.R. No. 213/2002 was registered in Police Station North Cantt. Lahore on 20-4-2002 when compared to the earlier Rapt No.15 dated 12-2-2002 (Exh.D/80). In the second complaint/Exh.PB dated 11-4-2002, the complainant/ Mst. Hanifan Bibi not only claimed to have seen Talib Hussain/accused committing "zina" with her daughter, which did not find mention in Rapt No.15 dated 12-2-2002 (Exh.DD/80) but she also added one more accused namely Ghulam Muhammad, who is father of the remaining two co-accused namely Talib Hussain and Shakir Ali in order to throw a wider net. Hence, it is established there is an inordinate delay in the registration of the case and explanation advanced by the complainant for the said delay does not appear to be cogent or plausible. In this regard, the Federal Shariat Court of Pakistan in its judgment in the case of Khan Muhammad v. The State reported as 1986 FSC-262 has held that in cases of "zina", the delay in registration of the case makes the prosecution story highly doubtful. This court in another judgment pronounced in the case of Saeed Ahmed and another v. The State reported as 2006 PCr.LJ 1311 has considered the delay of even 24 days in lodging the F.I.R. as fatal to the prosecution case. A similar view has been expressed by the Hon'ble Supreme Court of Pakistan in a judgment reported as 2010 SCMR 584 wherein it has been laid down that inordinate delay in reporting the matter to the police and recording the evidence of the witnesses by the police adversely affects the prosecution case.

12. Adverting to the ocular account of occurrence, we are of the view that as a matter of fact, no one had seen the present appellant committing "zina-bil-jabr" with the daughter of the complainant Mst. Shehazdi as the complainant/P.W.2 specifically mentioned in her first application dated 9-2-2002 whereupon Rapt No.15 dated 12-2-2002 was recorded by Police (Exh.D/80) that when she opened the door of the house, Talib Hussain/present appellant fled away from the scene of the crime and story of commission of "zina" was told to her by her daughter Mst. Shehzadi. On the contrary, Mst. Hanifan Bibi/Complainant (P.W.2) in the second complaint/Exh.PB, dated 11-4-2002 and while making her statement in the trial Court as P.W.2, deposed that she saw Talib Hussain committing "zina-bil-jabr" with her daughter/ Mst. Shehzadi, who was raising hue and cry. The version of the complainant is that when Talib Hussain/ present appellant was committing "zina-bil-jabr" with Mst. Shehzadi, his elder brother namely Shakir Ali/acquitted accused had bolted the door from the outside. The complainant/Mst. Hanifan Bibi (P.W.2) during her cross-examination admitted that Shakir Ali/accused ran away after unbolting the door from the outer side on seeing her. In this connection, it is significant to mention that learned trial Court in para 28 of impugned judgment dated 10-11-2011 has disbelieved the involvement of Shakir Ali, who is real brother of present appellant/Talib Hussain, in the commission of the offence. The said co-accused/Shakir Ali has been acquitted by the learned trial Court vide judgment dated 10-11-2011.…

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