' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Shariat Court, dated 5-11-1999, whereby accepting the appeal filed by Mumtaz Ahmed, accused- respondent, order of the District Criminal Court was set aside and he was extended the concession of bail on the ground of completion of statutory period envisage in the proviso to section 497, Criminal Procedure Code.
2. The brief facts of the case are that a written application was filed by the complainant before the Senior Superintendent of Police, Muzaffarabad, alleging that his brother Ishtiaq Akram contested the election to the Legislative Assembly from the Constituency III, Bagh on the ticket of Jammu and Kashmir Peoples Party. On 21-7-1996, Ishtiaq Akram with two other persons, namely, Muhammad Raza Khan and Muhammad Imtiaz Khan, residents of Ravli, left for Muzaffarabad by a Suzuki.
Mumtaz Ahmed son of Muhammad Aziz, accused-respondent, also accompanied the aforesaid persons to Muzaffarabad. They reached Muzaffarabad at about 8-00 p.m. Where they took their meals at hotel Al-Abbas. After finishing their business at Muzaffarabad, Ishtiaq Akram alongwith Mumtaz Ahmed, respondent, left for Rawalpindi but they did not reach the destination. On 22-7- 1996, the complainant came to know that the vehicle in which his brother was proceeding to Rawalpindi met an accident; on this information he went to the place of incident where he was told that Mumtaz Ahmed, respondent, who was injured was admitted in C.M.H. Bagh. He went to C.M.H.
Bagh and inquired from Mumtaz Ahmed about the incident; he was told by him that he was travelling alongwith Ishtiaq Akram, deceased, to Rawalpindi and during the journey they were fired at. Thus, the deceased could not keep control over the vehicle which fell in the river and thus, he was killed. It is further alleged that subsequently, the respondent gave different versions about the incident. However, when the dead body of his brother was found tied with rope on 2-8-1996 at Dhangali, District Mirpur and the post-mortem was performed, it turned out that the deceased sustained injuries by fire-arms. Consequently, a case was registered and on investigations it transpired that the accused-respondent hired Zareen Shah and Ejaz Shahid, co-accused, to put the life of Ishtiaq Akram to an end. .30 bore pistol, the weapon of offence was recovered from the respondent while rifle and kalashnikovs were recovered from other accused persons. A briefcase, jacket, driving licence, identity card etc. Which belonged to the deceased were also recovered at the instance of Mumtaz Ahmed, accused-respondent. Police after the investigation reached the conclusion that the murder of Ishtiaq Akram was committed in pursuance of a conspiracy which was hatched by Mumtaz Ahmed, respondent. The motive for murder is stated to be that during the elections, accused-respondent who was supporter of Ishtiaq Akram, deceased once saw his wife in a compromising position with the deceased near his house; but Ishtiaq Akram, deceased, escaped from there while accused-respondent gave severe beatings to his wife. However, the accused- respondent kept his cordial relations with the deceased as before. Thereafter, he paid substantial amount to the aforesaid co-accused and hatched a conspiracy to kill Ishtiaq Akram. Thus, in pursuance of that conspiracy accused-respondent alongwith aforesaid two persons killed the deceased and thereafter, tied his legs with a rope and threw his dead body into river Jhelum. Just after the incident, the accused-respondent filed a report at Police Chowki Kohala and narrated a fabricated story of attack on them by some unknown persons and falling of the vehicle in the river with the deceased.
3. The accused-respondent sought bail from the trial Court on the basis of completion of two years statutory period envisaged in proviso to section 497. Cr.P.C. But the same was rejected by the trial Court observing that manner in which the murder was alleged to have been committed, shows that the accused-respondent was a "dangerous criminal" and thus, he could not be released on bail in view of the conditions which have been laid down in the aforesaid proviso. However, on appeal to the Shariat Court, the accused was released on bail observing that in the circumstances of the case the accused-respondent was entitled to bail. It is against the aforesaid order of the Shariat Court that the present appeal has been preferred.
4. Kh. Shahad Ahmad, the learned counsel for the appellant, has argued that the Shariat Court has given no reasons for disagreeing with the view taken by the District Criminal Court that the accused-respondent was a "dangerous criminal" and thus, could not be released on bail. The learned counsel has contended that the circumstances indicated above show that despite the fact of alleged illicit relations of Ishtiaq Akram, deceased, with the wife of the respondent, he kept friendly relations with the deceased. However, he hatched the conspiracy indicated above and thus, hired the services of the co-accused to put the life of the deceased to an end. He has particularly stressed that the accused-respondent after the incidence fabricated a false story and lodged a report at Police Chowki Kohala but his fabrication was exposed when dead body of the deceased was found from Dhangali and the legs of the deceased were found tied up. He has further submitted that recoveries of the belongings of the deceased and his conduct of lodging a concocted report at Police Chowki Kohala, prima facie, implicate the accused respondent with the murder of the deceased. Thus, according to him, it cannot be said that the conclusion arrived at by the District Criminal Court that the accused-respondent was, prima facie a "dangerous criminal" was not justified. The learned counsel has referred to the following authorities in support of his contention:-- ' In a case reported as Omair Ahmed Siddiqui v. The State 1996 PCr.LJ 22, the words "criminal", "hardened", "desperate" and "dangerous" have been considered in view of their dictionary meanings and it was observed, that even if the accused is found to be of any of the characteristics namely dangerous etc. Bail would not be granted to him. It was further observed that whether an accused person suffers from any such disqualifications he should be judged from the material placed on the record.
' In a case reported as Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358, it was held that the mere fact that two injuries were given to the deceased with a dagger and the accused person also sustained injuries in the incident would not justify to hold that the accused was a "desperate" or "hardened" criminal and thus, order of the bail allowed by the High Court was upheld.
' In a case reported as Sheraz Khan and another v. The State 1991 MLD 2262, it has been held that the word "criminal" used in proviso to section 497, Cr.P.C. Should be understood in the ordinary sense, meaning a person who is involved in a crime. In a case reported as Muhammad Hafiz v. The State 1992 PCr.LJ 2614, it has been held that if an accused has remained under detention for the statutory period he is entitled to bail provided he is not found to be a "hardened", "desperate" or "dangerous" criminal also in the circumstances of a case.
5. Sardar Rafique Mahmood Khan, the learned counsel for respondent No,1, has controverted the arguments advanced on behalf of the appellant. He has contended that mere levelling the charge of being "dangerous" or "desperate" criminal without any evidence in support of the allegation would not justify the conclusion that an accused person is a "desperate" "hardened" or "dangerous" criminal. The learned counsel has submitted that there is no material on the record to substantiate the arguments advanced on behalf of the appellant that accused respondent was a "hardened", "desperate" or a "dangerous" criminal. The learned counsel has maintained that a person cannot be regarded to be a `criminal' until and unless it is shown that he was previously convicted.
According to the learned counsel until and unless an offence is proved against a person, he cannot be. Dubbed as a "criminal" of any of the characteristics which have been envisaged in the proviso to section 497, Cr.P.C. He has further argued that according to the prosecution's case Ishtiaq Akram, deceased, has illicit relations with the wife of the accused-respondent; the said fact takes the case of the appellant out of the ambit of the said characteristics. He has cited the following authorities in support of his contention:-- ' In a case reported as Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72, it has been held that the proviso added to section 497, Cr.P.C. Entitles an accused person on bail after the completion of statutory period, as of right if he is not found to be a "hardened" or "desperate" or "dangerous" criminal.
' In a case reported as Rahim Bux and others v. The State PLD 1986 Kar. 224, it has been held that after addition of proviso 3 to section 497 it is not mere the discretion of the Court to release an accused person on bail after the completion of statutory period, but it is his right, provided he is not found to be a "hardened" "dangerous" or "desperate" criminal. It was further observed that word "criminal" is not interchangeable with word "person" and if a person is not a convict he could not be regarded as a "criminal" within the meaning of the said proviso.
' In a case reported as Abdul Halim v. The State PLD 1986 Pesh. 92, it has been held that if a person is not proved to have been previously convicted, he could not be regarded to be a "criminal" and would be presumed to be a responsible citizen of a soft character. It was further observed that mere charge against certain person without any evidence would not justify to hold him as a "hardened" criminal.
6. We have given due consideration to the arguments raised at Bar. It may be stated that so far as the argument advanced on behalf of the accused-respondent that the respondent cannot be regarded to be a "criminal" muchless a "dangerous criminal" until and unless guilt is proved against him is concerned is not tenable; because after the decision of the Supreme Court of Pakistan in a case reported as Moundar and others v. The State PLD 1990 SC 934, the matter has been finally resolved in terms that the word "criminal" used in the proviso should be read in ordinary meaning i,e, a person who is involved in a crime; it is not necessary that he should have been proved so on some previous occasion or in the case in which he has been arrested. So far as the contention of the learned counsel for the appellant that the accused-respondent has master minded conspiracy to put the life of Ishtiaq Akram, deceased, to an end is concerned, prima facie, the recovery of the pistol, belongings of the deceased from him and'his conduct of filing a report at Police Chowki Kohala after the incident clearly shows that if at all he is a "criminal", he is not an "ordinary criminal" but a "dangerous criminal" within the meanings of proviso to section 497, Cr.P.C. According to the prosecution story, despite the alleged illicit relations of the deceased with the wife of the accused- respondent, he kept friendship with the deceased and at the long lost he killed him by hiring the services of the co-accused. When the dead body of the deceased was found from river Jhelum, Dhangali, the legs of the dead body were found tied with a rope and fire-arm injuries were found on the person of deceased. The alleged recoveries of pistol and the belongings of the deceased from the accused-respondent also, prima facie, connect him with the commission of the offence with which he has been charged. It may also be pointed out that the learned Judge in the Shariat Court did not consider these aspects of the matter and simply mentioned in the impugned judgment that in the circumstances of the case the accused-respondent was entitled to bail; the learned Judge in the Shariat Court did not rebut the conclusion arrived at by the trial Court that the accused-appellant was a "dangerous criminal" within the meanings of the relevant proviso. It may be further observed here that whether the accused person is "hardened", "desperate" or "dangerous" criminal or not, is to be ascertained from the circumstances of a particular case, material placed on the record, manner in which the offence was committed and the motive to commit the offence. A reference may be made to an unreported case titled Muhammad Aziz v. The State (Criminal Appeal No,2 of 1998 decided on 15-5-199,8), wherein it was held as under:-- "(5) .... We are of the opinion that the question as to whether an accused is hardened, desperate or dangerous criminal within the meaning of the aforesaid proviso is to be seen in light of the circumstances of each case, i,e, (i) the motive for murder, (ii) the part which each of the accused played in the completion of the offence, (iii) prima facie evidence in support of the incriminating act attributed to the accused persons, and (iv) the effects of the act of the accused on the family of victims and on the society at large."
' Considering the above mentioned principles, we are of the view that findings of the trial Court that the accused-respondent was, prima facie, a "dangerous criminal" were based on the correct appreciation of law in the circumstances stated above. Thus, we accept the appeal, set aside the judgment of the Shariat Court and order that the accused-respondent Mumtaz Ahmed shall be taken into custody and confined to jail. The bail and personal bonds furnished by him are hereby cancelled.
Bail cancelled.
2004 P Cr. L 843 [Federal Shariat Court] Before Zafar Pasha Chaudhary, J MUHAMMAD HANIF---Appellant versus THE STATE---Respondent Criminal Appeal No,108-L of 2003, decided on 16th January, 2004.
Offence of Zina (Enforcement'of Hudood) Ordinance (VII of 1979)--- ----Ss. 7 & 10(3)---Appreciation of evidence---Not only complainant, himself was eye-witness in the case, but statement of victim girl who was dumb since birth, was equally important as she had made a very natural statement---Statement of mother of victim girl was equally important as she had made a very material statement---Mother of victim girl had taken the girl to field and she being dumb correctly picked up accused (boy) pointing out her finger towards him---Victim girl being young and disabled child could not have implicated the accused falsely---Other prosecution witness had also lent support to the prosecution evidence as he claimed having seen the accused running away from near the place of occurrence which had established that accused was present at the time of occurrence---Most important witness was Lady Doctor who in her statement had clearly proved that victim girl was subjected to Zina--Doctor's report was supported by report of Chemical Examiner--Accused was aged 14/15 years old at the time of occurrence and was student of 8th class---Lenient view though had always been taken regarding youngsters and the students, but in the present case, a very heinous offence had been committed by subjecting a child who was born dumb, to Zina-bil-Jabr---Victim girl kept on suffering both physically and mentally---Accused had already been awarded five years R.I. Keeping his age in view---Conviction of accused was maintained under Ss.7 & 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but his sentence was reduced from five years' R.I. To three years R.I.
Accordingly. [p. 845] A, B & C Rana Amjad Ali Shaheen for Appellant.
Shoaib Zafar for the State.
Date of hearing: 16th January, 2004.
' As per prosecution, the appellant Muhammad Hanif on 18-4-2000 at about 4-00 p.m. Committed Zina-bil-Jabr with Nageena Bibi daughter of Farzand Ali the complainant. Nageena Bibi is dumb since her birth. The complainant alongwith other witnesses were passing by the side of wheat fields, they heard the cries of pain. They reached the place of occurrence and saw that appellant was committing Zina with Nageena Bibi. On seeing the witnesses approaching, he left Nageena Bibi and fled away. The appellant was found guilty during investigation and was tried by Mr. Abdul Mannan Khan, Additional Sessions Judge, exercising his power as Judge Juvenile Court, Ferozwala.
He after holding trial, held that appellant guilty under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and the appellant being less than 18 years as a juvenile was sentenced to five years' R.I. A fine of Rs,5,000 was also levied on the convict/appellant and in default to suffer three months' S.I. The benefit of section 382-B, Cr .P.0 . Was extended.
2. During trial, the prosecution examined the complainant Farzand Ali as P.W.1. He supported the prosecution case fully and stated that he saw the appellant committing Zina-bil-Jabr with Mst.
Nageena his daughter, who was dumb since birth. He was cross-examined at length but nothing could be brought on file to discredit his testimony. The second witness is Muhammad Ramzan.
According to him, he was told by the complainant and father of Nageena Bibi that she was missing since about 3-30 or 4-00 p.m. Farzand Rafique and Hakim came to his fields. He was called upon, on which he joined them. Farzand complainant informed the witness that his daughter Nageena Bibi was missing. He saw that accused was running away at a distance of one acre, obviously from the place of occurrence, where according to the complainant, Nageena Bibi was being subjected to Zina-bil-Jabr. The next witness is Mst. Manzooran Bibi P.W.9 the mother of the victim Nageena Bibi. According to her after the incident, the victim Nageena Bibi gave details of the occurrence through demonstrations and signs. She stated that she was made to lie down on the ground. Her Shalwar was put off, during which she remained weeping. Throughout the occurrence the victim had a swear pain in her private parts and she did not take meals for 2/3 days, also could not sleep on account of pain and the mental agony. She was bleeding from her private parts, which could not be stopped. She took the victim to the fields i,e, place of occurrence, where the appellant and his four brothers were picking ladyfingers. The victim identified the appellant and pointed out towards him, meaning thereby that he was the person, who committed rape on her. The statement of Lady Dr. Fokia Asif P.W.6 is important. She medically examined the victim Nageena Bibi and described her age as seven years. On her vaginal examination hymen was found torn and was inflammed and was bleeding on touching. One finger could penetrate with difficulty and pain.
Vaginal swa bs were taken and sent for chemical examination. According to the report of the Chemical Examiner Exh.P.C. The swa bs were found to be stained with semen.
3. Relying on these pieces of evidence, the learned trial Judge convicted and sentenced the appellant as detailed supra.
4. The learned counsel for the appellant has argued that Mst. Nageena the victim was produced in Court but the learned trial Judge found that she was not capable of explaining all the details due to her adolescence, dumbness and illiteracy. The statement of the complainant is practically the solitary statement left in the field, which should not be relied upon by the trial Court. The submission is misconceived. It is not only the complainant P.W.1, who is eye-witness. The statement of mother is equally important as she has made a very natural statement. The mother took her to the field. The girl correctly picked up the boy by pointing out her finger towards him. The victim being young and disabled child could not have implicated him falsely. Then the witness Muhammad Ramzan also lend support to the prosecution evidence as P.W.2. He saw the appellant running away from near A the place of occurrence. It means that the appellant was present at the time of occurrence. This witness although intended to favor the appellant yet he stated that the appellant was found running away from the place of occurrence. The most important witness is statement of the lady doctor, which clearly proves that Nageena Bibi was subjected to Zina. The doctor's report is supported by the report of the Chemical Examiner.
5. The learned counsel in the alternative argued that the appellant is a young boy and was the student of class 8th at the time of the occurrence, therefore, a lenient view should be taken, so that his future career may not be totally impaired. According to the material facts brought on the record, the appellant no doubt was aged about 14/15 years at the time of occurrence. It also remains unrebutted that he was student of 8th Class. The school certificate has been placed on the file. It is true that a lenient view has always been taken regarding youngsters and the students but in the present case, a very heinous offence has been committed by subjecting a child who is born dumb to Zina-bil-Jabr. She kept on suffering both physically and mentally.
6. The learned counsel has very emphatically prayed and pleaded that if a lenient view is adopted, it will help the appellant to reform. The appellant has been awarded five years' R.I. Keeping the appellant's young age in view, I maintain his conviction under section 7 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 however, his sentence is reduced from five years' R.I. To three .Years' R.I. The fine cannot be levied, therefore, the amount of fine of Rs,5.,000 will be treated as compensation under section 544-A, Cr.P.C. And the same will be paid to the victim Nageena Bibi through her father. In default of payment of compensation, the appellant will further suffer three months' S.I. Benefit of section 382-B, Cr.P.C. Shall be extended.
7. The appeal is disposed of subject to the reduction of the sentence.