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Petitioner: IMRAN ASHRAF VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Agha Rafiq Ahmed Khan, Syed Afzal Haider, Shahzado Sheikh Title: IMRAN ASHRAF vs THE STATE Case No.:Criminal Appeals Nos.207/L, 208/L and 209/L of 2007 and Murder Reference
JUDGMENT
Reported As: 2012 YLR 325 Result: Appeals accepted Judgment JUDGMENT ' SYED AFZAL HAIDER, J.---This single judgment will dispose of the four connected matters as they have arisen out of one and the same judgment. (i) Appellant Imran Ashraf through Criminal Appeal No,207/L of 2007, whereas (ii) Appellant Ali Hassan through Criminal Appeal No,208/L of 2007, and (iii) Appellants Muhammad Amjad and Qurban alias Mithu vide Criminal Appeal No,209/L of 2007 seek to challenge judgment dated 30-10-2007 delivered by learned Additional Sessions Judge, Kasur whereby they were convicted under section 365(B) of Protection of Women (Criminal Law Amendment) Act, 2006 and sentenced to life imprisonment each with fine of Rs,50,000 each or in default thereof to further undergo six months simple imprisonment each. They were also "convicted under section 376(2) of Protection of Women (Criminal Law Amendment) Act, 2006" and sentenced to life imprisonment each. Appellants Amjad and Qurban were further convicted under section 302(b)/34 of the Pakistan Penal Code and sentenced to death. They were also held liable to pay compensation of Rs, 1,00,000 each under section 544-A of the Code of Criminal Procedure to the legal heirs of the deceased and in case of non-realization of said compensation to further undergo six months simple imprisonment each. However the learned trial court acquitted appellants Ali Hassan and Imran Ashraf from the offence under section 302 of the Pakistan Penal Code while extending benefit of doubt. (iv) The learned Additional Sessions Judge, Kasur has also moved a murder reference, registered in this Court as Criminal Murder Reference No,12/L of 2008, which has been put up for confirmation of
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death sentence along with the appeal matters. ' PROSECUTION STORY 3. The prosecution. Case has been narrated by Manzoor Ali ..Complainant P. W.2, in his application CW 4/2 submitted before the District Police Officer, Kasur on 9-10-2004 for registration of criminal case against accused Muhammad Amjad, Imran Ashraf, Ali Hassan and Qurban alias Mithu. According to this crime information, Mst. Inayat Bibi, sister of complainant, was married to one Mehboob Ahmad and was residing in Usman Wala. The said Mehboob Ahmad died about three years ago leaving a widow two sons and two daughters. Mst. Rabia Mehboob, aged 18/19 years, daughter of the said Mst. Inayat Bibi was a teacher in the second shift in the Government Girls Primary School, Kot Salamatpura. The complaint was that the accused persons would tease her while she commuted between her house and the school. The accused were cautioned many times by the complainant but to no avail. On 7-10-2004 at 4-30 p.m. While she had reached the Railway line on her way back from school, the accused armed with pistols along with two unknown persons forcibly abducted her and put her in a Dala (Toyota Hilux Van). Her hue and cry attracted Malik Mazhar-ul-Haq and Zafar Iqbal to the place of occurrence. They tried to rescue Mst. Rabia Mehboob the abductee but the accused extended threats and forcibly abducted Mst. Rabia Mehboob on gun point with intention to commit zina-biljabr with her. The complainant further slated that due to family honour he did not report the matter and beseeched the parents of accused persons for restoration of Mst. Rabia Mehboob but they did not oblige. On 8-10-2004 the complainant received a telephonic information that Mst. Rabia Mehboob was lying in Kasur Hospital in an injured condition. The complainant along with his brother Muhammad Mansha reached the Hospital. The doctor referred the patient to Mayo Hospital, Lahore. The complainant approached Police Chowki Usmanwala for registration of case but the police did not accomodate whereafter the complainant submitted an application Ex.CW.4/2 before the District Police Officer, Kasur on 9-10-2004 for registration of crime report against the accused persons. F.I.R. No,465 of 2004 Exh.CW4/1 was consequently registered at Police Station Khudian on 9-10-2004 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 324/34 of the Pakistan Penal Code. 4. Investigation ensued as a consequence of registration of crime report. Haji Qasim Ali Inspector CW.4 undertook the investigation. He visited the place of occurrence. On 10-10-2004 he received information that the victim had died, therefore, he converted the offence from section 324 to section 302 of the Pakistan Penal Code. He reached to the DHQ Hospital, Kasur, prepared documents for conducting post mortem 'examination. He also received post mortem report Exh.PB. He recorded statements of Manzoor Ahmad complainant, and Muhammad Ali under section 161 of the Code of Criminal Procedure. On. 15-10-2004 eye-witnesses Mazhar-ur-Haq, Ahmad Ali and Zafar Iqbal appeared and made statements before him. On 18-10-2004 accused Amjad, Imran Ashraf, Ali Hassan and Qurban appeared before him but he arrested the accused persons on 20- 10-2004 under the direction of learned Additional Sessions Judge, Kasur which order was issued on a petition filed by the complainant. He sent the accused to judicial lock up on 3-11-2004. On 6-11- 2004 he recorded statements of fifteen persons under section 161 of the Code of Criminal Procedure. On 2-2-2005 the Station House Officer and the Deputy Superintendent of Police probed into the matter and after deleting the Offences under section 362 Of the Pakistan Penal Code as well as section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 charged the accused under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The Station House Officer then submitted investigation completion report under section 173 before the Court on 18-2-2005 requiring the accused persons to fact trial. 5. It is pertinent to mention here that the complainant, being dissatisfied with the police investigation filed private complaint against all the four accused persons on 11-5-2005. The learned
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trial court in paragraph 5 of the impugned judgment has observed as under:- "In the challan case at Serial No,2 I.0 came to the conclusion that there were illicit relations between the accused Amjad and deceased Mst. Rabia Mehboob. She tried to convince the accused Amjad to conduct marriage with her through telephonic messages made on different telephone numbers as mentioned in the report under section 173, Cr.P.C. But the accused Amjad refused to get marriage with her she herself put her on fire. According to the report under section 173, Cr.P.C. All the accused are innocent in murder. However, accused Amjad is guilty for the offence under section 10/ 7/79 Islamic law." ' PROSECUTION EVIDENCE 6. The learned trial court, however, proceeded with the complaint case along with the police report case. Charge was framed by the learned trial Court against accused persons on 29-10-2005 under sections 11 and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as sections 302, 34 of the Pakistan Penal Code. The accused did not plead guilty and claimed trial. 7. The complainant produced eight witnesses to prove his case whereas evidence of four witnesses was recorded by the learned trial court as Court Witnesses. The gist of the deposition of the witnesses is as follows:- (i) P.W.l Mazhar-ul-Haq stated that on 7-10-2004 at about 3-30 p.m. He went to the workshop of Ahmad Ali in order to purchase a tractor. Zafar Iqbal Mistri was also present in the workshop. He along with Zafar Iqbal and. Ahmad Ali left for Salamatpura and after crossing the Railway Station, they saw a Dala wagon parked near water tank of Railway. Six armed persons namely Amjad, Imran, Ali Hassan, Qurbaii alias Mithoo and two unknown persons were standing besides the Dala. Rabia Mehboob was coming from the opposite side. These armed persons forcibly put her in the Dala-wagon. On her hue and cry they ran towards the Dala but the accused threatened them and made good their escape towards Dhing Shah. The witness along with his companion went to the well of Manzoor and informed him. (ii) Complainant Manzoor Ali appeared as P.W.2 and endorsed the contents of his complaint Mark- A. (iii) P.W.3 Zafar Iqbal is an eyewitness of the alleged abduction of Rabia Mehboob near the Railway water tank. He supported the version of Mazhar-ul-Haq P.W.1. (iv) P.W.4 Muhammad. Arshad had identified the dead body of Mst. Rabia Mehboob at the time of post mortem examination and he also received the dead body from the Investigating Officer. (v) Muhammad Ashraf appeared as P.W.5 to state that he accompanied Ishaque up to the brick kiln , of, Abdul Ghafoor situated at village Bhallo as he had to purchase bricks. As they reached near the petrol pump of Major Iftikhar situated at Ferozpur Road near village Bhallo, they saw a girl who had caught fire on the backside of the petrol pump. They reached near the girl and in the meanwhile Akhtar also reached there on motorcycle. They tried to save her. Four armed boys were standing there along with a Dala. The girl was burnt and the boys ran away. The witness and his companions threw soil on the burning girl and extinguished the fire. Then they enquired about her name. She disclosed her identity as Mst. Rabia Mehboob resident of Mandi Usman Wala. She nominated Imran Ashraf, Ali Hassan, Amjad and Qurban alias Mithu and also stated that the aforementioned boys had abducted her on the previous day, took her to Lahore and committed zina-bil-jabr with her turn by turn. She further stated that when the boys were bringing her back, she protested against the treatment meted out to her upon which the said boys set her on fire near village Bhaloo. Many people gathered there and took her to hospital. The witness further stated that after six/seven days he came to know through newspapers about the death of the girl in the hospital. He along with Ishaque went to Manzoor Ali complainant and informed him about the occurrence who took them to the police station but the police officer was not present on that day. However the police recorded his statement after 12/13 days.
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(vi) P.W.6 Akhter Hussain stated that since he was involved in some abduction case, so he did not want to give any evidence in this case. (vii) P.W.7 Dr. Farzana Shaheen had conducted post mortem examination of Mst. Rabia Mehboob and observed as under:- "EXTERNAL APPEARANCE. ' A dead body of young female about 18-19 years of age. She was almost 95% burnt. Grossly oedematous face, chest and whole four limbs but small part of face including upper lip, lower lip lower part of nose, small part of left cheek and right cheek were saved. Eyes and mouth were closed. Hair of frontal and parietal region were burnt. No clothes were present on the body. On PV examination hymen ruptured. Two vaginal swabs were taken and sent to- chemical examiner, Lahore. ' On dissection ' Hyoid bone was intact. Brain oedematous. Chest cavity contained 2 litre blood stained fluid. Both lungs and heart were blackish in colour and oedimatious. All other organs were healthy. ' Opinion ' In my opinion the cause of death in this case was shock due to 95% of burning of body. Injury burning was ante mortem and sufficient to cause death in ordinary course of nature. Time between injury and death was about 2 to 3 days approximately and time between death and post mortem about 15 hours. After post mortem examination I handed over the stitched dead body, PMR, police papers and one sealed container which contained two vaginal swabs to Muhammad Akbar constable Police Station Khudian. Exh.PB is the correct carbon copy of post mortem report which is in my handwriting and bears my signatures. According to report of Chemical examiner Report No,2063-9 dated 13-10-2004, Exh.P.C, the result was that the swabs were stained with semen hence in my opinion she was subjected to sexual intercourse. Exh.PB/1 is the diagram showing the location of injury is also in my handwriting and bears my signatures." (viii) P.W.8 Muhammad Akbar Constable No,235 stated that the dead body was recovered from one PCO on 11-10-2004. He did not know the name of PCO. He carried the dead body to DHQ Hospital, Kasur and after medical examination the medical officer handed over to him one sealed parcel and a vial which he produced before the Investigating Officer. This witness was declared hostile by the learned trial court on the request of learned DDA. 8. The learned trial Court also recorded statement of four Court witnesses. The gist of their testimony is as under:-- (i) CW. I Akbar Ali Assistant Sub-Inspector stated that he was posted as Moharrar at Police Station Khudian. On 1,1-10-2004 Haji Qasim Ali Sub-Inspector handed over to him one sealed phial for onward transmission to the office of Chemical Examiner, Lahore and on 13-10-2004 he handed over the same to Muhammad Amin constable for the said purpose. (ii) CW.2 Mian Muhammad Rafique Sub-Inspector stated that on 9-10-2004 Haji Qasim Ali SubInspector/Investigating Officer sent him to Lahore for recording statement of Rabia Mehboob victim. He reached at Mayo Hospital, Lahore and approached the Medical Officer, Gujranwala Ward, Mayo Hospital, Lahore and also moved an application Exh . CW . 2/1 for recording statement of Rabia Mehboob victim. The Medical Officer refused the permission in writing, on the ground that the patient was not able to make any statement. On 10-10-2004 he again went to Mayo Hospital, Lahore and repeated application Exh.CW.2/2 for recording statement of Rabia Mehboob which application was allowed by the Medical Officer as the patient was able to speak and understand. He went to the ward where Mst. Rabia Mehboob was admitted. Muhammad Mansha and her aunt were also present there in the ward. He recorded her statement CW.2/3. (iii) CW.3 Muhammad Amin Constable No,163 deposited one sealed phial containing swabs in the office of Chemical Examiner, Lahore on 26-10-2004 which had been handed over to him by the
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Moharrar on the same day. (iv) CW.4 Haji Qasim Ali Inspector undertaken the investigation whose detail has already been mentioned in paragraph 4 of this judgment. ' THE DEFENCE PLEA 9. The complainant closed his evidence on 27-4-2007. Thereafter the learned trial Court recorded statements of the accused under section 342 of the Code of Criminal Procedure on 23-7-2007. The accused denied the allegations levelled against them and in reply to question "Why this case has been registered against you and why the complainant, P.Ws. And victim's statements Exh.C.W.2/3 involved you in this case. What do you say about it?" all the accused gave the same reply to both the questions. The said answers are as under:-- ' Answer: "The mere moving of application is no proof unless the doctor concerned appeared in the court and proved the same in accordance with law. These applications Exh. C. w . 2/1, Exh.C.W.2/2 have absolutely no connection with the prosecution case because no doctor appeared in the court to own the endorsement. Moreover, the statement of the victim Rabia Mehboob which the prosecution wants to treat as, dying declaration is neither signed by any doctor nor by C.W.2. According to Muhammad Rafique S.I. The said statement was thumb marked by one Mansha and one Mst. Zahida who according to C.W .2 Muhammad Rafique S.I. Is aunt of the deceased. Even otherwise, no private person has any authority to sign or thumb mark the dying declaration in this way. Moreover, neither Mst. Zahida nor Muhammad Mansha appeared as P.Ws. Before the court. The matter does not end here in the challan i.e, report under section 173, Cr.P.C. It has been written at the end that two statements of the deceased under section 161, Cr.P.C. Were recorded, one by Muhammad Arif S.-I. And the other by Muhammad Rafique S.I. The I.O. i.e, Haji Qasim Ali who prepared the report under section 173, Cr.P.C. Has deposed before the honourable Court that these two statements were very contradictory, unsigned by the doctor hence, the same were not made the part and parcel of the judicial record and report under section 173, Cr.P.C. Is silent about it i.e, none of the two statements were annexed with the same. How the statements Exh.C.W.2/3 was smuggled in the judicial file is a matter which should be noticed seriously by the honourable Court. To conclude regarding C.W.2/3, it is not worth the paper on which it has been written." ' Answer: "The case against me is false and fabricated. There is no legally admissible statement of the victim on the judicial file. The prosecution has terribly failed to prove the so-called statements/ dying declaration CW.2/3 of the victim. It was not annexed to the report under section 173, Cr.P.C. Because first statement under section 161, Cr.P.C. Was recorded by Muhammad Arif S.-I. And second was recorded by Muhammad Rafique S.-I. It is strange, surprising and most unfortunate that this statement CW.2/3 does not bear the signature of the scribe Muhammad Rafique S.-I. Nor of any doctor nor it was certified or attested by a Magistrate. Therefore, this statement cannot be relied upon by the prosecution. It is a mockery of dying declaration. The actual occurrence as alleged by the prosecution remains totally unproved and there is no evidence of any witness who himself saw the victim being set on fire by any of the accused. It is proved on record that nobody abducted the victim from amongst the accused nor she met death at the hands of any of the accused. So far as I am concerned it is categorically stated by I.O. Haji Qasim. Ali Inspector CW.4 that I am not least concerned with the occurrence either abduction of the victim or regarding the murder of deceased Rabia Mehboob. It is brought to the notice of honourable court that CW.2 Mian Muhammad Rafique has deposed that the victim was unable to see as well as unable to sign. So much so that CW.2 stated that he had not written anywhere -that the statement of victim was read over to her. I have been involved in this case because of local politics, friction and mala fide of the complainant in order to backmail me. The entire case speak volume of mala fide on the part of the complainant and his so-called witnesses produced by him. The so-called dying declaration is
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classic example of mala fide of the complainant- in connivance with Muhammad Rafique S.-I. C.W.2 which is neither here nor there." 10. The accused produced two witnesses in their defence. The gist of their account is as under: ' Nazir Hussain appeared in defence of accused as DW.1 and stated as under: "I and his friend Riasat Ali had made a Park in the Railway compound in front of the school. I and Riasat made a programme to go to Bazar. At the same time Rabia Mehboob deceased came out from the school and she went towards Railway Lines, and she stopped near the "Zakheera" after crossing the Railway Lines. The two children which were her students aged about 8 and 5/6 years from there the said girls went towards the residential area leading to Bazar. We stayed at Station. She was leading ahead of us. After coming back she boarded the train alone. After that I do not know about the occurrence what happened. On 7-10-2004 victim Rabia was present at the Railway Station at about 4-00 p.m. After leaving the train we returned to the Bazar. About one month after the registration of the case police of the concerned police station called us and I recorded the statement as stated above to the I.O. I also submitted the affidavits to the I.O. In this regard. I also appeared before the different I.Os of this case. " (ii) Muhammad Riasat appeared at the trial as DW.2 to state as under:-- "I have made a park in front of school. I am residing near the school. On 7-10-2004 I was sitting in the park, along with Nazeer Hussain son of Qamer Din. We aimed to go to Bazar. In second shift Rabia Mehboob, deceased was teaching in the school. She was crossing us along with two school girls, aged about 8 and 6 years. She was ahead about 10/19 feet. We were on the eastern side from Railway Line and victim Rabia Bibi and other school girls to western side from Railway Lines. Both the girls went to the "Zakheera" and victim Rabia Mehboob went to Railway Station and she reached near the Kanteen. We also followed her. After few minutes train was arrived. She was boarded in the train Boggee which was in front of Kanteen. After that we went to Bazar. Second clay it has come to our knowledge that she has set fire. In our prdsence she alone boarded in the train. I also stated to the police as narrated today before the court." ' THE RATIONALE FOR CONVICTION 11. The learned trial Court after completing codal formalities of the trial returned a verdict of guilt. Conviction and corresponding sentences were awarded as indicated in the opening paragraph of this judgment. Hence these appeals and the Murder Reference before us. 12. The reasons that prevailed upon the learned trial Court to record conviction and sentences may be summed up as follows:- (i) The dying declaration Exh.CW.2/3 of Mst. Rabia Mehboob was "correct word by word" and stood proved by the evidence of complainant and the Investigating Officer; (ii) The defence witnesses corroborate the fact of boarding the train by victim as disclosed in the dying declaration; (iii) Qurban accused failed to prove alibi; (iv) The role of burning the victim, attributed to Amjad and Qurban appellant has been corroborated by the evidence of Muhammad Ashraf P.W.5; (v) That the victim was abducted from Khudian Railway Station by appellants Qurban alias Mithu, Muhammad Amjad, Ali Hassan and Imran Ashraf and subjected to rape; ' A careful scrutiny of the impugned judgment shows that the learned trial court essentially relied upon the dying declaration alone. In paragraphs 61 and 62 of the impugned judgment it was held that the dying declaration was correct "word by word." Consequently the four appellants were convicted for abducting the victim from Railway Station Khudian as well as for committing Zina bil Jabr and two appellants were awarded death sentence. In other words the story of abduction and
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rape as narrated in the dying declaration alone was believed. Oral testimony was discarded as mentioned elsewhere in this judgment. 13. There are two points that we would like to mention in this respect. Learned trial court stated that he was not awarding death sentence "because the accused are being convicted on the basis of dying declaration and this occurrence is not witnessed by the witnesses as per law and procedure." This is not a valid reason to avoid imposing death penalty because if the learned trial court was morally convinced about the veracity of the story which was tragic then death penalty could not have been avoided as the victim had been ravished and burnt in a brutal manner. To kill an unarmed and a trapped female in such a situation is something horrible. Such an incident causes terror in the society. The second point is that the learned trial court ought to have known that the Protection of Woman (Criminal Law Amendment) Act, 2006 amended Ordinance VII of 1979 and by virtue of section 5 inserted a new section 376-B in the Pakistan Penal Code. The conviction would, therefore, be recorded not under Act of 2006 but under section 376-B of Pakistan Penal Code. ' ARGUMENTS OF CONTENDING PARTIES 14. We have gone through the file. Evidence placed on record as well as statements of accused have been perused. The relevant portions of the impugned judgments have been scanned. We have also heard the learned counsel for contending parties at length. 15. Learned counsel for Amjad and Qurban appellants urged the following points for consideration of this Court:-- (i) It is a case of no evidence; (ii) Witnesses for the prosecution are interested; (iii) It is not possible for three other accused to be present when mother of Amjad was also there; (iv) The report of the Chemical Examiner is forged; (v) The oral evidence was disbelieved by learned trial Court; (vi) That Akhtar Hussain PW.6 did not say anything against the accused; (vii) Abduction has not been proved; (viii)CW.2 Mian Muhammad Rafique Sub-Inspector did not know as to what is a dying declaration; (ix) That the eye witnesses had either resiled, or were given up or have not been believed; (x) That the witnesses mentioned in the dying declaration were not produced at the trial; and (xi) The dying declaration suffers from contradictions. 16. Learned Counsel representing Ali Hassan appellant put forward the following contentions for consideration: (i) That there are two dying declarations on record and one is at a loss to…
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