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Petitioner: THE STATE VS Respondent: TANVEER-UL-HASSAN and 5 others
Court Name: Federal Shariat Court Judge(s): Haziqul Khairi, Syed Afzal Haider Title: THE STATE vs TANVEER-UL-HASSAN and 5 others Case No.:Criminal Appeal No,28/P and Criminal Miscellaneous Application No,15/P of
JUDGMENT
Reported As: 2009 P Cr. L J 199 Result: Appeal dismissed Judgment JUDGMENT ' SYED AFZAL HAIDER, J.-- This appeal registered as Criminal Appeal No,28/P of 2005, barred by five months and eighteen days, has been filed by learned Advocate-General, N.-W.F.P. On 30-7-2005 and is directed against judgment, dated 8-12-2004 of learned Sessions Judge, Nowshera passed in Hadd Case No,74 of 2003 whereby Tanveer-ul-Hassan, Fazal Mola, Mst. Baseerat, Shamshad (since dead vide order of this Court, dated 4-5-2006), Tila Muhammad and Mst. Hussan Ara were acquitted from various charges under sections 10, 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. An application for condonation of delay of (5) five months and (18) eighteen days, has also been moved which application is registered as C.M. No,15/P of 2005 in Criminal Appeal No,28/P of 2005. This Miscellaneous Application No,15/P of 2005 will be disposed of along with the appeal under consideration. 2. This controversy arose out , of an F.I.R. No,401 Exh.P.A., registered with Police Station Aza Khel, District Nowshera on 2-9-2001 at 5-30 p.m. Under sections 10/11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, regarding an incident whose date was mentioned as 2-7-2001 but its time was not disclosed. This information was recorded on the statement of P.W.1 Mst. Akhtar Jehan mother of Mst. Shabnam abductee. The informant disclosed that on 2-7-2001 her daughter Mst. Shabnam aged 16/17 years, left her house. After search and enquiry she was satisfied that one Tanveer-ulHassan son of Tila Muhammad resident of Kakshal, Peshawar, an operator employee of Telephone Department posted at Guluzai Telephone Exchange, had abducted her. It was claimed on behalf of the complainant that because of the search efforts the information could not be lodged earlier with the police.
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3. After registration of the F.I.R. The investigation of the incident was entrusted to Said Rehman, A.S.- I. P.W.6 who visited the place of occurrence, prepared site plan Exh.P.B. And recorded statements of P. Ws. Under section 161 of Code of Criminal Procedure. The complainant, it is reported, moved an application to the President of Pakistan, copy of which is Exh.P.W.6/1, on the basis of which her supplementary statement was also recorded. She was also produced before the Judicial Magistrate, Nowshera where her statement Exh.P.W.6/2 under section 164 of Code of Criminal Procedure was recorded on 2-3-2002 wherein she charged one Fazal Mola and two other unknown employees as well as Tila Muhammad. Fazal Karim, Inspector P.W.5 partly investigated the case after its transfer from Said Rehman, A.S.-I. P.W.6. Inspector Fazal Karim during the course of investigation, visited Police Station Race Course Garden, Lahore where he was told by Lady Inspector Azra that she had recovered abductee Mst. Shabnam who was handed over to her father Abad Khan. Restoration of the abductee took place on 29-5-2005 at Lahore as per record available on file though the present case emanating from F.I.R. No,401 Exh.P.A. Was decided by learned Sessions Judge, Nowshera on 8-12-2004 i.e. Six months before she appeared on the scene. During interrogation Sheikh Naseer and Kamran Saeed told Fazal Karim, Inspector, P.W.5 that Mst. Shabnam was not known to them so they were set free. The Inspector took into possession a cassette P.1 vide Exh.P.C. On 11-10-2001 which was produced before him by Mst. Akhtar Jehan mother of abductee on his return to Crime Branch Nowshera from Lahore. The Inspector then recorded her supplementary statement as well as the statement of Abad Khan and thereafter the case was handed over to the local police. After completion of investigation the charge-sheet was submitted to Court on 20-5-2003 by S.H.O. Aza Khel for the trial of present respondents. 4. The trial Court framed formal charge against the accused under sections 10/11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 on 28-10-2003 to which they did not plead guilty and claimed trial. The charge was framed at the time when Mst. Shabnam was still reported to be missing. This tact was mentioned in the charge. 5. To prove its case the prosecution produced as many as six witnesses. The evidence was recorded between 27-1-2004 and 5-6-2004. Prosecution evidence was closed on 4-10-2004. After close of the prosecution evidence, statements of the accused under section 342 of Code of Criminal Procedure were recorded on 18-11-2004 wherein they had taken the common plea that "no P.W. Had deposed against them except the statement of Mst. Akhtar Jehan who was interested in their conviction". Tanveerul Hassan respondent, in his statement, categorically stated that Mst. Shabnam was "arrested by the police of Punjab Province at Lahore, where Mst. Akhtar Jehan, complainant, has given a statement that abductee Mst. Shabnam had left her house on some differences with the complainant and she was never abducted by any one". He also stated that there was nothing on record to show that names of Mst. Shabnam or accused Mst. Baseerat were borne on the electoral roll of the village Pir Piai. The learned trial Court after assessing the entire record, on coming to the conclusion that case was not proved by the prosecution, acquitted all the accused by giving them benefit of doubt. Hence this appeal against their acquittal by the State and not by the complainant herself. 6. That in response to the present appeal against acquittal filed by State, learned counsel for respondent moved an application in this Court on 11-1-2007 which was registered as Criminal Miscellaneous No,2/I of 2007 and fixed before us along with the main Criminal Appeal No,28/P of 2005. Learned counsel has also placed on record certain documents relating to the controversy of this case but these papers pertain to a period after the conclusion of the trial Court on 8-12-2004. The relevant portions of the story as narrated by respqndent in different paragraphs of this miscellaneous application are reproduced below:--- Para.2 "That the number of accused in the case based on F.I.R. No,401 dated 2-9-2001 of the impugned order of acquittal is six as mentioned in Criminal Appeal No,28/P of 2005 i.e. (1)
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Tanveerul Hassan son of Tila Muhammad (2) Tila Muhammad father of Tanveerul Hassan (3) Mst. Husan Ara mother of Tanveerul Hassan (4) Shamshad son of Muhammad Yousaf (5) Fazal Mola son of Roohullah and (6) Mst. Baseerat whereas in the daily diary report dated 24-6-2005, the abductee has also charged (7) Nasreen wife of Siraj-ud-Din (8) Zeenat daughter of Siraj-ud-Din and (9) Safia daughter of Siraj-ud-Din." Para.3. "That perusal of the Application No,301/P of 2005 by the Advocate-General, N.-W.F.P., Peshawar before the Federal Shariat Court for early hearing of the Criminal Appeal No,28/P of 2005 on the same subject, law and facts of the case would show that the Supreme Court of Pakistan is also seized of the case in a suo motu Reference No,8 of 2005 and the matter has also been impugned before the High Court, Peshawar in Writ Petition No,1139 of 2005." Para. 4. "That pending decision by the Supreme Court of Pakistan in suo motu Reference No,8 of 2005, Writ Petition No,1139 of 2005 was not tenable under the law. Yet another police diary report No,38 Roznamcha dated 19-9-2005, Police Station Aza Khel was registered under sections. 11, 15 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 452, P.P.C. Against Siraj-ud- Din and his wife Nasreen and three other unknown armed persons." Para.5. "That a special investigation team comprising ten Police Officers of repute and experience was constituted to probe into matter. They thorough interrogated Mst. Nasreen, Tila Muhammad, Mst. Baseerat, Tanveerul Hassan etc. And re investigated the case F.I.R. No,401, dated 2-9-2001 under sections. 10, 11 and 16 of the Offence of Zina (Enforcement of. Hudood) Ordinance, 1979 Police Station Aza Khel, Sarfraz son of Siraj-ud-Din and Mst. Safia daughter of Siraj-ud-Din, in the fresh case under F.I.R. No,363, dated 19-9-2005 under sections 11/15/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 452, P.P.C. Police Station Aza Khel and daily diary of Police Station Aza Khel dated 24-6-2005." Para.6. "That in their order, dated 8-12-2005 in suo motu Case No,8 of 2005, a Division Bench of the Supreme Court of Pakistan comprising Honourable Mr. Justice Rana Bhagwandas and Honourable Mr. Justice Hamid Ali Mirza have held at page 2 of the first line of their order that "M[st. Shabnam is present in the Court and she owns the statement recorded by her before the Judicial Magistrate, which clearly indicates that she has knowingly created a scene implicating innocent and respectable persons of the locality with an ulterior motive". It has further been held by the aforesaid Honourable Division Bench of the Supreme Court of Pakistan in para.2 line No,6 that "since the alleged abductee has been recovered, her statement recorded, Investigating Agency shall complete the process of investigation and submit a final report through Deputy Registrar (Judicial) of this Court within seven days." Para.7. "That the Superintendent of Police, Investigation, Nowshera in his detailed report of four pages addressed to the Deputy Registrar (Judicial), Supreme Court of Pakistan, Islamabad vide No,1877/P, dated 13-12-2005 and copies thereof endorsed to Provincial Police Officer, N.-W.]F.P., Peshawar under Endt. No,1878-80/P, dated 13-12-2005 at page 4 line No,10, states that "on 9-12- 2005 Mst. Shabnam, abductee was produced before the Court and she was sent to Dar-ul-Aman, Peshawar. A false case was reported by the complainant Ibad Khan against accused Siraj-ud-Din and Mst. Nasreen, therefore, on 12-122005, Challan under section 173, Cr.P.C. Was submitted before the Court of District and Sessions Judge, Nowshera through proper channel for the cancellation of case and release of accused under sections 169/63, Cr.P.C. On 12-12-2005, the District and Sessions Judge, Nowshera cancelled the case and released the accused under section 169, Cr.P.C. Para.8. That the registration of fresh F.I.R. No,363, dated 19-9-2005 under sections 11, 15, 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 452, P.P.C. Police Station Aza Khel necessitated reinvestigation of the case with particular reference to daily diary report dated 24-6-2005, police diary report No,38 Roznamcha dated 19-9-2005, Police Station Aza Khel and F.I.R.
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No,401, dated 2-9-2001, Police Station Aza Khel and subsequently matter was quashed by District and Sessions Judge, Nowshera on 12-12-2005 under section 169, Cr.P.C." 7. In order to arrive at balanced conclusion of the present appeal in which retrial has been prayed for against the acquitted accused as also to appreciate the grounds taken for condonation of delay it is worthwhile reproducing the statement of Mst. Shabnum daughter of Ibad Khan recorded under section 164, Cr.P.C. On 5-12-2005 by Mr. Muhammad Arshad Khan Senior Civil Judge/Judicial Magistrate, empowered under section 30, Cr.P.C. Nowshera and now forming part of Criminal Application No,2-I of 2007 moved in Criminal Appeal No,28/P of 2005:--- "I was reading in the 6th class in Government Girls High School Pirpiai. In the year 2001 when I was coming back from my school, I saw that Mst. Nasreen wife of Siraj-ud-Din resident of Pirpiai along with another unknown person were present near my school and asked me to sit in the motor car. They told me that they would take me to my home. But they did not take me to my house and took me to Lahore and left me at a street used for immoral acts. After three days I got out from the house and tried to escape but I was arrested by the police and taken to the lady Police Station. My parents were informed by the police and as such they reached Lahore and I returned to my home with them. After some days during the days of Election, 2001, I along with my friend Mst. Baseerat daughter of Ghulam Said had gone to Girls High School Pirpiai i.e. On the day of election. Mst. Baseerat told me to meet her friend and as such we came out from the school. I saw that a black colour motorcar was parking and Mst. Nasreen wife of Siraj-ud-Din her daughter Zeenat and Safia and another person his name later on disclosed at Tanveer-ul-Hassan were sitting in the motor car. Mst. Baseerat handed over me to Nasreen and went away. I was got up in the motorcar by force by the said persons and Tanveer-ulHassan threatened me by pistol to be silent. Mst. Nasreen wore me a black colour Burqa and motor car started. After some distance, Tanveer-ul-Hassan injected me and I became unconscious when I became conscious I found myself in the control of Punjabi people. On the next day a black thin woman came and I was subjected to immoral business. Mst. Nasreen her daughters and Tanveer-ul-Hassan were present for three days and then returned. While I remained there for three years having busy in immoral business. Meanwhile, one Muhammad Rafi alias Juja son of Muhammad Shafi resident of Sukkur met me and I told him my story. He developed friendly relations with me but he did not commit Zina with me. One Abdul Hafeez Bhatti resident of Sukkur (who was S.D.O. WAPDA) was also used to come and met me and used to commit immoral acts with me. Both the said persons willing to contract marriage with me. Then Mst. Nasreen came there and took me to Karachi. I was handed over to lady namely Robi Khan. After five or six months I was handed over to another lady namely Shamim and I was taken to Sukkur to a Qehba Khana. I spent some months in Sukkur. I was again handed over to Robi Khan and taken to Karachi. Then I was handed over to one Zafar Chaudhri in Karachi. Meanwhile, Mst. Nasreen again reached Karachi and I was brought to Rawalpindi. When we reached Pirwadhai Bus Stand Rawalpindi, I succeeded to escape, I also took away the purse of Nasreen along with Rs,1,240. On 23-6-2005 I reached my home at Pirpiai and narrated the whole story to my parents. I spent about 2-1/2 months with my parents and told them to marry me with Muhammad Rafi alias Juja, as I liked him. But my parents refused to do so. Therefore, at about 2-1/2 months back at morning time, I came out of my house and went Sukkur to meet Muhammad Rafi. I also took away the mobile phone of my father bearing No,0321-8813508. At last time I have not been abducted by any one, however, I had gone to Sukkur with my own sweet will to contract marriage with Juja. But the local police of Police Station Azakhel reached there and I was brought to Police Station Azakhel District Nowshera. ' xxxx Nil (accused not present) RO&A dated 5-12-2005." 8. For a proper, fuller and judicious appreciation of the entire controversy agitated through this criminal appeal against acquittal it is pertinent to reproduce here the text of the order, dated 8-12-
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2005 of the apex Court passed in suo motu Case No,8 of 2005 available on the file of Criminal Miscellaneous Application No,2/I of 2007 in Criminal Appeal No,28/P of 2005:--- "Rana Bhagwandas, J.---- In response to the direction made on the last date of hearing i.e. 22-11- 2005, Provincial Police Officer, N.-W.F.P. Has submitted a detailed report tending to show that alleged abductee Mst. Shabnam has been recovered from Sukkur (Sindh) by the investigating team deputed by District Police Officer, Nowshera. She was brought to Nowshera and produced before Senior Civil Judge/Judicial Magistrate, Nowshera for recording her statement under section 164, Cr.P.C. In her statement before the Magistrate, she has falsified the version of her father who recorded F.I.R. No,363, Police Station Azakhel registered on 19-2-2005. In the said F.I.R. Mst. Nasreen, her husband Tanveer-ul-Hassan as well as many other persons were nominated, some of whom have obtained bail while the others have been detained in custody without the submission of a charge-sheet. Investigating Officer Muhammad Jan Khan, Police Station Azakhel states that in the absence of incriminating statement of Mst. Shabnam, he was not in a position to submit the charge-sheet against the persons arrested and produced for remand. Mst. Shabnam is present in the Court and she owns the statement recorded by her before the Judicial Magistrate, which clearly indicates that she has knowingly created a scene implicating innocent and respectable persons of the locality with an ulterior motive. ' In view of statement of Mst. Shabnam before a Judicial Officer exonerating the persons involved in the commission of crime alleged against their', there remains no justification for their further detention in jail. It further appears that her father Ibad Khan knowingly and deliberately lodged a false F.I.R. Against innocent persons and thereby rendered himself liable to penal action. Since the alleged abductee has been recovered, her statement recorded, investigating agency shall complete the process of investigation and submit a final report through Deputy Registrar (Judicial) of this Court within 7 days for our perusal. Likewise the Court, at whose orders the alleged accused persons are lodged in jail custody shall decide their fate with utmost expedition strictly accordingly to law and consider the question of necessary proceedings against the complainant for lodging a false and frivolous case with police. ' A report in this regard shall be submitted by the trial Court through Deputy Registrar (Judicial) of this Court within 7 days from today without fail. Subject to above directions, suo motu case is disposed of. (Sd.) Rana Bhagwandas, J. (Sd.) Hamid Ali Mirza, J." 9. That in pursuance of the above mentioned order, dated 8-12-2005 passed by the Honourable Judges of the Supreme Court in suo motu Case No,8 of 2005 a report from the Superintendent of Police Investigation, Nowshera was sent to the apex Court through its Deputy Registrar Judicial on 13-12-2005, which is available on record of Criminal Miscellaneous No,2/I of 2007 in Criminal Appeal No,28/P of 2005 and is being reproduced in extenso as it will help in clinching the issue under discussion. "Memorandum" ' Kindly refer to the order-sheet, dated 8-12-2005 of the Supreme Court of Pakistan (copy attached). ' A fresh case vide F.I.R. No,363, dated 19-9-2005 under sections 11/15/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979/452, P.P.C. Police Station Azakhel was registered on the report of complainant Thad Khan son of Akbar Khan resident of Pirpiai Jan Abad. The complainant stated in his report that he along with his wife Mst. Akhtar Jehan and Mst. Shabnam (daughter) were asleep in the Veranda of their house. At about 0200 hours they awoke on hue and cry of their daughter. They saw accused Mst. Nasreen wife of Siraj-ud-Din and Siraj-ud-Din with three unknown accused standing adjacent to their Charpies. Two of accused took his daughter Mst. Shabnam from the Charpai. The complainant and his wife tried to rescue their daughter but both
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the accused pushed them back and threatened them with dire consequences. The accused took his daughter out of the house and locked the door of the house from out side. The complainant charged accused Mst. Nasreen wife of Siraj-ud-Din and Siraj-ud-Din son of Nazar Din resident of Pirpiai Station Koroona with three unknown accused for the commission of offence. ' The case was under investigation. Accused Siraj-ud-Din was arrested and produced before the Court in connection with police remand. The Court granted three days police remand and the accused was interrogated. After the expiry of police remand, the Court remanded him to judicial lock-up. Accused Mst. Nasreen got BBA from the Court of Additional Sessions Judge, Nowshera, which was recalled by the Court on 24-10-2005 and the local police of Police Station Azakhel took her into custody. ' On the following day she was produced before the Court of Shah Wali Ullah Hashmi, Civil Judge/Judicial Magistrate, Nowshera and request for police remand was made but the Court refused to grant police remand in the light of section 167(5), Cr.P.C. Wherein it is mentioned that when the accused forwarded to the Magistrate is female and is not involved in cases of Qatal or dacoity, the Magistrate shall not authorize the detention of the accused in police custody and the Police Officer making investigation shall interrogate the accused in the prison in the presence of an officer of jail and a female Police Officer. Therefore, Mr. Khalid Naseem, Inspector Investigation, Nowshera was deputed to interrogate Mst. Nasreen in the prison. He interrogated the accused in the prison and reported that the accused pleaded to be innocent. ' The suo motu case was fixed before the Supreme Court of Pakistan for hearing and adjourned from time to time. ' On 22-11-2005, Mr. Awal Khan, Superintendent of Police, Investigation, Nowshera, Hidayat Shah, Inspector Legal, Nowshera and S.-I. Muhammad Jan, Incharge Investigation Nowshera attended the Honourable Supreme Court of Pakistan at Islamabad. The State was represented by Muhammad Saeed Khan Shangla, Additional Advocate-General, N.-W.F.P., Peshawar. The case adjourned to 8-12-2005 and the Additional Advocate-General was directed by the Court to ask the Inspector-General of Police, N.-W.F.P., Peshawar as well as Deputy Inspector-General of Police, Mardan Region, Mardan to make hectic efforts and recover the abductee within 15 days otherwise they shall appear before the Court on the date fixed. ' A special team of professional Police Officers was constituted by the Deputy Inspector-General of Police, Mardan Region, Mardan to investigate/unearth the real facts of case vide F.I.R. No,363, dated 19-9-2005 under sections 11/15/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979/452,P.P.C. Police Station Azakhel. ' The team interrogated the following persons:-- (1) Tila Muhammad son of Said Hassan resident of Shabqadar presently residing at Hameed Abad, Kakshal Police Station Yaka Tooth Peshawar. (2) Sarfraz (aged about 21/22 years) son of Siraj-ud-Din resident of Pirpiai. (3) Mst. Baseerat (aged about 18/19 years) daughter of Ghulam Said wife of Arshid Ali resident of Pirpiai presently residing at Chowki Drab. (4) Tanveerul Hassan son of Tila Muhammad resident of Shabqadar presently residing at Hameed Abad, Kakshal Police Station Yaka Tooth Peshawar. (5) Mst. Safia daughter of accused Siraj-ud-Din. (6) Fazal Mula son of Roohullah resident of Kangra Shabqadar, Charssadda. (7) Muhammad Fayaz son of Muhammad Hamayun resident of Dagi Khel Nowshera Kalan. (8) Haji Muhammad Riaz son of Juma Khan resident of Dheri Khel Nowshera Kalan. (9) Mst. Zeenat daughter of accused Siraj-ud-Din. (10) Farooq Shah son of Tamber Shah resident of Pirpiai. (11) Miskeen Shah son of Koodin resident of Mohallah Jan Abad, Pirpiai.
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' During investigation, phone records of telephone No,0923- 580414 was received wherein the number of mobile phones called on most occasions were checked. One of the mobile phone location turned out to be at Sukkur, wherein a police party was dispatched to Sukkur. ' The said police party reached Police Station "A" Section, Sukkur on 3712-2005 and reported their arrival in connection with the investigation of the case. The deputed, police party along with S.H.O. Police Station "A" Section Sukkur and Lady Police party were in search of the abductee in Sukkur Bazar when she came out of a beauty parlor and met the police party in the main Bazar of Sukkur. She was handed over to Women Police Station where she spent night. ' On 4-12-2005, the police party left Sukkur for Nowshera and on 5-12-2005 after reaching District Nowshera, the abductee was produced before the Court of Mr. Muhammad Arshid Khan, Senior Civil Judge, Nowshera for recording statement under section 164, Cr.P.C. Her statement was recorded by the said Court (copy attached) wherein she charged the following accused for the previous case vide F.I.R. No,401, dated 2-9-2001 under sections 10/11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Police Station Azakhel:--- (1) Tanveer-ul-Hassan son of Tila Muhammad resident of Hameed Abad Kakshal, Police Station Yaka Tooth Peshawar. (2) Mst. Nasreen wife of Siraj-ud-Din resident of Pirpiai. (3) Mst. Zeenat daughter of Siraj-ud-Din resident of Pirpiai. (4) Mst. Safia daughter of Siraj-ud-Din resident of Pirpiai. (5) Mst. Baseerat daughter of Ghulam Said wife of Arshad Ali resident of Pirpiai. ' She further stated that she was subjected to immoral business. One Muhammad Rafi alias Jaja son of Muhammad…
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