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Petitioner: GULZAR AHMAD VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Raja Afrasiab Khan, Abdul Shakurul Salam, Abdul Majeed Tiwana Title: GULZAR AHMAD vs THE STATE Case No.: Criminal Appeals Nos.59 and 62/SAC/L of 1992 Date of Judgment:1992-10-05 Reported As: 1993 P Cr. L J 185 Result: Appeal allowed
JUDGMENT
JUDGMENT ' ABDUL SHAKURUL SALAM (CHAIRMAN).--- This order will dispose of Criminal Appeals Nos.59/SAC/L of 1992 and 62/SAC/L of 1992 as these are connected matteRs, The first appeal is against the judgment of the learned Judge, Special Court for Speedy Trial, Multan, dated 8-9-1992 whereby the appellant was convicted under section 10(3) of the Offence of Zina (Enforcement of Hadd) Ordinance, 1979 and sentenced to ten years' R.I. He was also awarded the punishment of whipping numbering 30 stripes. Further, a fine of Rs, five thousand was imposed to be paid to the victim by way of compensation under section 544-A, Cr.P.C., in default to suffer R.I. For six months more. He .Vas however, given benefit of section 382-B, Cr.P.C. The second appeal is by the State for enhancement of the sentence. 2. Relevant facts are that P.W.3 Faiz Bakhsh lodged a report Exh.PA. At Police Station, Miranpur District Vehari on 30-4-1992 at 7-15 p.m. That at about 2-00 p.m. He was present in his house. His sister Mst. Bakhtoo aged about ten years went to the shop of Gulzar Ahmad to make purchases. She did not come for some time. He alongwith Riaz Ahmad and Muhammad Ramzan (P.W.4) went to fmd out about her to the shop of Gulzar Ahmad. When they reached near the shop, hue and cry of Mst. Bakhtoo was heard. They knocked at the door. Gulzar Ahmad did not open the door. They pushed the door and it opened. They saw Gulzar Ahmad committing rape on his sister lying on the floor. Seeing them he picked up his Chaddar and succeeded in running away from the back window. His sister was lying in a pool of blood. Having seen her in that condition, he got worried and has brought her for report. They have been badly wronged. This statement was recorded by Muhammad Sabir Hussain, A.S.I., P.W.6. The latter noted that Faiz Bakhsh (P.W.) had come with Mian
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Mazhar-ul-Haq son of Mian Haq Nawaz and made the statement. After necessary investigation, the case was put up for trial before the learned Special Court for Speedy Trial, Multan. 3. At the trial, informant Faiz Bakhsh appeared as P.W3. He reiterated the contents of the first information report and added that "her (Bakhtoo)'s Shalwar and shirt were stained with blood and semen. We informed Mian Mazhar-ul-Haq, a Zamindar. Mian Mazhar-ul-Haq went to the police station. I dictated the complaint Exh.PA. At the police station and Sabir Hussain Shah, A.S.I. Went with us to the Lady Doctor. The Lady Doctor was absent at Mailsi and we went to Vehari. The Lady Doctor at Vehari medically examined Mst. Bakhtoo and had given a certificate to us". In the cross- examination he stated that "it is correct that I was living at Chah Dehana with my children two years back. My father lives in village Vanjariwala. Vanjariwala is at a distance of half kilometre from Chah Dehana. It is incorrect that I served as a cook of Mian Haq Nawaz of Chah Fateh Shahwala of village Kikri Kalan. I am `Ryota' of Mian Atta Muhammad at Chah Dehana. The house of my father is at a distance of 3 Killas from village Abadi of Vanjariwala. Muhammad Amin and Sofi Allah Rakha also run shops in village Vanjariwala. The accused commenced running his shop since two yeaRs, There are ten or fifteen houses at Chah Vanjariwala. The accused's house adjoins his shop towards the west. There is no house on the back side of the shop of the accused but there are houses in front of the shop. Mian Mahfooz Ahmad Arain, M.PA. Had contested the elections thrice and once he was defeated and he was successful twice. Israr Khan and Tariq sons of Jang Baz Khan had been the rival candidates of Muhammad Mahfooz, Mian Mazhar-ul-Haq and Mian Zia-ul-Haq are the sons of Mian Haq Nawaz. Mian Haq Nawaz is the real brother of said Mian Mahfooz Ahmad, M.PA. We had been supporting Mian Mahfooz Ahmad in the elections. The family of the accused voted for Israr Khan son of Jangbaz Khan. It is incorrect that Mian Mahfooz Ahmad is against the accused. Mst. Ata Ellahi alias Atto daughter of Mumtaz is my niece (sister's daughter). My house used to be within the limits of Police Station Saddar Mailsi. In February, 1987 my niece Mst. Ata Ellahi got registered a rape case against the accused, Muhammad Saddique and Allah Rakha. Allah Rakha and Siddique are relatives of Gulzar accused. It is incorrect that Ch. Noor Ahmad D.S.P. Reported for the cancellation of the case (voluntarily stated that the case against the accused was tried by the Court). It is incorrect that Mst. Ata Ellahi, my niece was proceeded against under section 182, P.P.C. Allah Rakha, Gulzar and Siddique were released on bail. In Mst. Ata Ellahi's case the accused made entreaties to parents of Mst. Ata Ellahi and they pardoned them and the accused were acquitted. It is incorrect that in Ma Ellahi's case nobody was challaned and police had reported about the cancellation of the case as being false". Further, he said that "she (victim) did not come for 15 minutes then we proceeded towards the shop of Gulzar. It is incorrect that we ran towards the shop of the accused after sufficiently long time. I had stated before the police that Mst. Bakhtoo did not come for a short time (confronted with Exh.DA.) where in the words (URDU TEXT) had been used. Muhammad Ramzan and Riaz were present when I sent Mst. Bakhtoo to purchase soap. None else was present in the house when she went towards the shop of the accused. We were preparing thatched but so we sent Mst. Bakhtoo to the shop. We were plastering the thatched but with mud when we went towards the shop. We started plastering the said but at 7-00 a.m. As soon as we went near the door of the shop of the accused we heard shrieks. When we started from our house the shop of the accused was visible from our house. The door of the shop is towards the south. The door was not visible from our house. Our house is towards the east of the shop. The door was fallen down when we pushed the same. Only left plank of the door was fallen down. When the left plank of the door was opened I went inside the shop firstly. The other two could not enter the shop. When I entered the shop of the accused, he had left Mst. Bakhtoo and was already holding his Chadar in his hand. The window of the shop is four feet in length and 3 feet in width. The window is at a distance of 8 feet from the door. The window is three feet high from surface of the shop. The window of the shop was lying open through which the accused ran away. We did not chase the
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accused, and we began caring Mst. Bakhtoo. We took her to our house. There were no sign of violence on her body and there were no sign of struggle in the shop and no blood had trickled in the shop. I went to the house of Mian Mazhar-ul-Haq. 25 minutes after we had brought Mst. Bakhtoo to our house. The house of Mazhar-ul-Haq is situated in Chah Fateh. The Dera of Riaz- ulHaq is 4 acres away from the Dera of Mian Mazhar-ul-Haq. I went to him alone. I did not visit the Dera of Zia-ul-Haq. I returned home with Mazhar-ulHaq by his car. Riaz Ahmad did not come to air house. The members of my family, Mazhar-ul-Haq and Riaz Khan Pathan only assembled there. They stayed at the house for 10 minutes before going to the police station. It is correct that we went to the police station by car of Mian Mazhar-ul-Haq. My father, the victim, my mother and Riaz were also with us. When we contacted Sabir Hussain Shah A.S.I. I narrated the incident first and Mian Mazhar-ulHaq after me. The Police Officer asked about the incident from Mst. Bakhtoo, Ramzan and Riaz P.Ws. The Police Officer did not record the F.I.R. At that time but he went to Mailsi. It is correct that after obtaining the medical certificate the F.I.R. Was recorded. Mian Zia-ul-Haq met us in the hospital at Mailsi. He accompanied us to Vehari. Mazhar-ul-Haq and Riaz were with us when we went to the Lady Doctor at Vehari. Both Mazhar-ul-Haq and Mian Zia-ul-Haq contacted the lady Doctor who has come for evidence and asked her for medical examination of Mst. Bakhtoo. It is correct that Mazhar-ul-Haq had been with us during the investigation of this case". He denied the suggestion that they had roped the accused in the case at the instance of Mian Mazhar-ul-Haq, Mahfooz-ul-Haq and Zia-ul-Haq. 4. His father Muhammad Ramzan appeared as P.W.4. He said that "when we were at a distance of four paces from the shop, we heard the shrieks of Mst. Bakhtoo. We shouted the accused to open the door and when he did not do so, we pushed the door. One plank of the door was opened and we saw that the accused had climbed on Mst. Bakhtoo and was committing rape. On our sight the accused picked up his Chadar and ran away through the window of the shop. The shirt and Shalwar of Mst. Bakhtoo were stained with blood. We brought Mst. Bakhtoo to our house and then she was taken to the Lady Doctor Vehari who medically examined Mst. Bakhtoo. She was taken to the police station. Before obtaining the medical certificate we had taken her to the police station. The police took the blood-stained clothes of my daughter. I thumb-marked the memo. Of the clothes". In cross-examination, he said that "Gnlzar Ahmad accused is Hafiz-e-Quran. The accused is wearing beard since lone before this incident. The accused had led the Taravi' prayer in Ramazan The shop of the accused is at a distance of one Bigha from our house. The incident took place on the 15th or 20th. Mian Mazhar-ul-Haq brought me here today by his car. It is incorrect that Faiz Bakhsh lived at Chah Dahanawala during the days of incident. Faiz Bakhsh P.W., my son is a cook. During the days of incident my son Faiz was not serving as a cook of Mian Haq Nawaz but he employed him as a cook after two months of this incident. It is incorrect that during the days of incident Faiz P.W. My son was a cook of Mian Haq Nawaz and lived at Chah Dahana. Riaz also lived in our Ahata. Riaz is a labourer and sprays pesticides. On the day of this incident he was present at the house and did not go out for spray. All of us had returned home two hours before this incident. On the day of this incident I had gone for cultivation at Chah Dahana and Faiz and Riaz were doing labour at Chah Dahana. We came to the house separately...Faiz went to the shop alone and when he found the door closed, he came running towards us and then all of us went towards the shop. When we heard the shriek of Mst. Bakhtoo, we did not raise the alarm. The left plank of the door was fallen down after our push. The fallen plank was in order when the police came there. The brothers of the accused had done so. I had stated before the police that Shalwar and shirt of my daughter were stained with blood. (Confronted with Exh.DA. And found not so recorded). We all the three pushed the door and one plank was fallen down immediately. All of us entered the shop. Faiz Bakhsh entered the shop first and we followed him. It is incorrect that we saw the accused when Chadar was in his hand and he had left the victim. Voluntarily said that we had seen the accused
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sitting on the body of Mst. Bakhtoo. We did not try to apprehend the accused by chasing because we were looking after the victim. We did not raise alarm when the accused was running. When the victim was brought to home, none of the neighbours came there. After one or one and a half hours, Faiz went to the house of Mian Mazhar-ul-Haq and Mian Zia-ul-Haq, Mian Mazhar-ul-Haq and Mian Zia-ul-Haq brought Sabir Ali, A.S.I. To the spot. Sabir Ali, A.S.I. Remained at the spot for one or one and a half houRs, He inspected the spot and interrogated all of us. The A.S.I. Had come on the spot one or one and a half hours after the incident. He inspected the spot within fifteen minutes. The blood had trickled on the spot which was showed to the A.S.I. Mian Zia-ulHaq had come to the spot, when A.S.I. Inspected the spot then we went to the Police Station Miranpur. At P.S. Miranpur the Police Officer recorded the statement of my son Faiz Bakhsh. From Police Station Miranpur we proceeded straight to Vehari...It is correct that case of Mst. Ata Ellahi was cancelled by the police. In the case of Mst. Ata Ellahi, Mian Mahfooz-ul-Haq, Mazhar-ulHaq and Zia-ul-Huaq had been supporting us." 5. The victim Mst. Bakhtoo appeared as P.W.S. In the exmination-inchief she said that "when I reached the shop of the accused, he was already standing in the door. He pushed me inside and closed the door from inside. He opened the string of my Shalwar and climbed on me. He committed rape. I made a shriek and my brother, my father and Riaz came there. They pushed the door which was opened. At the sight of the P.Ws. The accused carried his Chadar with him and ran away through the window of the shop'. In cross-examination, she said `Faiz my brother is married and used to live at Chah Dahanawala during those days. Riaz also worked at Chah Dahanawala during those days. I used to make purchase on the shop of the accused before this incident. I used to purchase articles from other shops as well. I did not go elsewhere when I went to purchase soap from the shop of the accused. The accused abruptly closed the door of the shop from inside as soon as I went there. The accused placed his hand at my mouth so I could not make shriek. As soon as the accused placed his hand on my mouth, my brother and father knocked the door. The door was opened immediately by a push. Both the planks of door of the shop of accused were broken by a push. As soon as my brother, father and Riaz entered the shop, the accused ran away through the window. It is correct that my brother, my father and Riaz chased the accused upto Chah Bailanwala. As soon as they ran after the accused, I went home. My father, brother and Riaz reached home half an hour after my arrival in the house. My brother Faiz went towards the house of Mian Mazhar-ul-Haq two or three hours afterwards. He brought Mazhar-ul-Haq and Zia-ul-Haq to our house. The Police Officer also came with them. All of us went to the police station first and then to Vehari. The F.I.R. Was recorded at P.S. As dictated by my brother Faiz Bakhsh. The police officer had been satisfying himself and interrogating the P.Ws. At the spot. Mazhar-ul-Haq and Mian Zia- ul-Haq brought me to the Lady Doctor for medical examination. Mazhar-ul-Haq and Zia-ul-Haq told the lady doctor that they had been sent by Mahfooz-ul-Haq M.P.A. For medical examination. I have come to this Court room today by the car of Mian Mahfooz. It is correct that the police officer had been telling me the statement which I was to make today". 6. Sabir Hussain, A.S.I. Investigating Officer appeared as P.W.6. In the cross-examination, he said that Saeed and Mazhar-ul-Haq were with the complainant at the P.S. After recording the F.I.R. I had asked Mian Mazharul-Haq and Saeed about this incident. The said Saeed is the son of Mian Haq Nawaz Mst. Bakhtoo was with the complainant at the police station. After recording the F.I.R. I did not record the statement of Mst. Bakhtoo at the police station. I recorded the statement of Mst. Bakhtoo at Vehari after obtaining the medical certificate. We took Bakhtoo to the Civil Hospital Mailsi in the car of Mian Mazhar-ul-Haq. It is correct that Bakhtoo was sent to the Civil Hospital Mailsi first and we went there afterwards in the same car. We stayed at the Civil Hospital Mailsi for forty-five minutes. I did not see Faiz Bakhsh, Ramzan, the brother and father of the victim at the Civil Hospital Mailsi and also at Vehari..........The lady doctor did not give me the blood-stained clothes of
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the victim. I got Bakhtoo medically examined and the foot constable had received the envelope and clothes from the lady doctor. 7. P.W.7 Muhammad Aslam, S.I. Stated in the examination-in-chief that "Faiz Bakhsh produced blood-stained Shalwar and blood-stained shirt of Bakhtoo which were taken into possession vide memo. Exh.P.E." In cross-examination, he said that "the brother and some other people had come in defence of the accused that he is Hafiz-e-Quran, but they could not produce any tangible evidence. They had told me that the accused is innocent. It is incorrect that they had told us that this case was outcome of party faction.... It was my duty to advise the P.Ws. About this case and I did so". 8. Lady Doctor Nasreen Ateeq Bajwa who had examined the victim had appeared as P.W.8 and said that "there was no mark of violence on her person... I have left blank column of duration". 9. Riaz Ahmad mentioned in the F.I.R. As a witness was given up as unnecessary. 10. The accused/appellant denied the allegation against him in his statement under section 342, Cr.P.C. And in answer of question No,7 "Why this case against you", he said that "I have been falsely involved in this case at the instance of Mian Mahfooz Ahmad, M.PA. He had earlier got me involved alongwith my other relatives in a similar case F.I.R. No,51 dated 28-2-1987 under section 10-7-1979, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Police Station Saddar Mailsi at the instance of Ata Ellahi and that case proved to be false during the investigation conducted by Noor Muhammad, D.S.P. Present case is also outcome of the same enmity". He declined to appear under section 340(2), Cr.P.C. As his own witness. 11. Learned counsel for the appellant has contended that from the evidence it is quite clear that the F.I.R. Was recorded under political influence and after preliminary investigation. The extraneous influence is apparent from the very beginning taking of the complainant in the car to the police station, getting the victim medically examined and even taking them to the Court for appearing as witnesses and from the fact of the Investigating Officer advising the witness about the statement to be made in Court. Secondly, he submitted that according to the prosecution case the victim was lying in a pool of blood in the shop. No blood was taken in possession from the said place. Thirdly, that according to Faiz Bakhsh P.W.3, he alongwith Riaz Ahmad and Muhammad Ramzan went to the shop of the appellant, but he was contradicted by his own father Muhammad Ramzan P.W.4 when the latter said that his son 'Faiz went to the shop alone and when he found the door closed, he came running towards us and then all of us went towards the shop'. Fourthly, he submitted that if the witnesses had seen the appellant committing the crime they would not have allowed him to run away. The two male witnesses do not even say that they pursued him. Fifthly, according to the prosecution case the window through which the appellant went out was open. It is rather unnatural that the big window would be left open. He lastly contended that according to the victim "the accused placed his hand on my mouth so I could not make any shriek. As soon as the accused placed his hand on my mouth, my brother and father knocked the door. The door was opened immediately by a push." Learned counsel submits that this would show that the victim was not violated upon. It was an afterthought that the case was made out. He also submitted that two eye- witnesses Faiz Bakhsh and Ramzan P.W.3 and P.W.4 respectively brother and father of the victim had not seen the occurrence and the solitary statement of the child girl could not be made the basis of the conviction. He relied on Abbas Ali Shah v. Emperor AIR 1933 Lah. 667. 12. Learned counsel for the State has submitted that two eye-witnesses though related were natural witnesses and the solitary statement of the victim could be relied upon. He referred to Muhammad Razaq v. The State PLD 1985 FSC 298. He also submitted that non-appearance of the accused/appellant to make a statement under section 340(2), Cr.P.C. Would lead to an adverse inference against him. Learned counsel also submitted that the fact that Mazhar-ul-Haq had
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accompanied the complainant to the police station, taken the victim for medical examination, or the advice of P.W.7 Muhammad Aslam S.I. Investigating Officer to the witness about the statement to be made in Court should not affect assessment of the testimony given in Court because in the circumstances prevailing no case is registered without help of person of influence and that witnesses are generally advised by police about the evidence when they appear in Court. 13. In reply, the learned counsel for the appellant referred to Mst. Ameer Khatun v. Faiz Ahmad and others PLD 1991 SC 787 to point out that no adverse inference can be drawn under section 340(2), Cr.P.C. For nonappearance of an accused. 14. Learned counsel for the respondent may be right that F.I.R. Is not recorded unless the complainant is accompanied by an influential person or that Investigating Officers advise the witnesses about their depositions when they appear in Court but this does not mean that it is either right or condonable. Extraneous influence in registration of a case, its investigation and depositions in Court can colour the whole thing so much that it may be impossible to discern where the truth lies. In this case, it stands established that right from the beginning till the hearing, political or official influence was brought to bear in the conduct of the case. It is axiomatic that any evidence given under influence or advice is not voluntary and has to be excluded. But in view of the heinousness of the crime, the evidence on record was repeatedly gone through and extensive extracts have been quoted to see if the testimony was consistent with normal behaviour or conduct. Occurrence is day time. The place is in front of the house of the witnesses. With the good character certificate given to the accused by the father of the victim, it would be not normal that he would be committing the crime at the time and the place. Then blood is said to have fallen on the spot. It was never taken in possession. The victim had appeared at the time of lodging of the report but neither her statement was recorded nor alleged blood-stained clothes taken in possession. ' The lady doctor had left the column relating to the period of the crime and examination 'blank'. The male witnesses do not try to catch hold of or chase the accused when he allegedly escaped from the window. Nor any other person is produced to prove that the accused was seen coming out of the window or going away from the scene. Previously the appellant was similarly involved and the same set of people were against him. He belongs to the rival political faction out of power. Nothing had come out of the said involvement. The case was given very anxious consideration. Without giving benefit of every wrong and all to the prosecution as the learned counsel for the State urges, it is not possible to come to the conclusion that the case against the appellant is proved beyond reasonable doubt. In the absence of reliable prosecution evidence, non-making of statement under section 340(2), Cr.P.C. Cannot lead to conviction. Extraneous influence, unsatisfactory and contradictory evidence on record leave no option but to give benefit of doubt to the accused which is his right. Therefore, allowing the appeal, his conviction and sentence are set aside. He is acquitted. He shall be released forthwith, if not wanted in any other case. Resultantly, the State appeal for enhancement of sentence fails and is dismissed. ' (Sd.) ' Abdul Shakurul Salam, Chairman Raja Afrasiab Khan, Member. ' ABDUL MAJID TIWANA, MEMBER--- I generally agree with the conclusion reached by the learned Chairman that the appellant is entitled to the acquittal on benefit of doubt on account of major contradictions amongst the statements of the eye-witnesses, particularly between Faiz Bakhsh complainant (P.W.3), the brother, and Muhammad Ramzan (P.W.4), the father, respectively, of Mst. Bakhtoo, the victim of the rape. Their contradictory statements not only made their presence as eye-witnesses doubtful but also rebounding on her own forthright statement as a prosecutrix, rendered it untrustworthy, thereby undermining the genuineness of the entire prosecution story to the advantage of the appellant.
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2. However, with utmost respect, do not agree with his Lordship's view that the extraneous influence in the form of political influence exerted by the complainant party through Mian Mahfooz-ul-Haq, M.PA. And his relations on the police and the lady, doctor, and certain acts of the police in the form of preliminary enquiry before the registration of the case and their advising or tutoring the prosecution witnesses at the trial, also contributed towards the failure of the prosecution case. The practice or malpractice of exertion of…
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