Saeed-ur-Rehman Farrukh, J.--This appeal is directed against the judgment dated 8.11.2002 passed by Sessions Judge Rahim Yar Khan, whereby the appellant was convicted under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 12 years R.I.
The benefit of Section 382-B Cr.P.C. was extended to him.
His co-accused, namely Muhammad Naeem and Khushi Muhammad were acquitted.
2. Relevant facts, in brief are; a case under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station City B-Division, District Rahim Yar Khan vide FIR Ex. PB/1 on the complaint of Ghulam Rasool PW-5, dated 20.11.1999. The complainant alleged that he was resident of Muslim Colony and used to earn his livelihood as Fruit vendor. His daughter Mst. Tahira (PW-4) a student of ninth class was suffering from hysterical fits. Eight/nine months prior to the lodging of the FIR, he took her to the appellant for treatment as he was known to perform "Dam Darood". It was alleged that the appellant examined the girl and disclosed that she was under the spell of a Ghost. He stated that she would be required to be left at his house for 2/3 hours daily, to dispel the hysterical fits. The complainant felt apprehensive about the well being of his daughter but appellant assured him that he would treat her like his own daughter Mst. Aniqa.
Thereafter, the wife of the complainant started taking Mst. Tahira to the house of the appellant and leave her there for 2/3 hours. This process continued for 2-1/2 months. Instead of making recovery, Mst. Tahira became more sick and continued to suffer from hysterical fits. She was taken to another "Aamil" who gave Taweez.and told them that the girl was under the spell of black magic performed by the earlier "Aamil". He advised that the girl should "drink" the said Taweez for 7/8 days and after removal of effect of black magic she would narrate as to what happened to her. After few days, Mst. Tahira started weeping and made disclosure, in the presence of Muhammad Siddique, Muhammad Boota and Allah Rakha that during the period of her "treatment" by Ibrar Hussain appellant he had been committing zina Haram with her, while Muhammad Naeem and Muhammad Khushi, armed with pistols, kept guard. She stated that Muhammad Naeem and Ibrar Hussain appellant threatened her that in case she mentioned about zina Haram to anybody they would kill her. They, allegedly, obtained her signatures on some papers. On hearing about this harrowing story the complainant, accompanied by Muhammad Rafique PW.6, and few others went to the house of the appellant who admitted his misdeed and begged pardon. The residents of the Mohallah demanded the accused to leave the locality and return the documents; signed by the victim, to avoid criminal proceedings but he failed to do so.
3. After completion of investigation, the appellant, alongwith two acquitted co-accused, was challaned to Court to face trial for the offence under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
4. The trial Court charge sheeted the appellant and his two acquitted co-accused for the above said offence. They pleaded not guilty and claimed to be tried.
5. The prosecution produced, in all, 10 witnesses, out of whom, the statement of Zulfiqar Ali, Head Constable PW.1 Muhammad Afzal Constable PW.2, Muhammad Iqbal S.I. PW.7. Muneer Ahmad ASI PW.8, Zulfiqar Ali PW.9 and Muhammad Suleman ASI PW.10 are of formal nature and need not be dilated upon. Farhana Azhari lady Dr. Sh. Zaid Hospital PW.3 medically examined the victim on 24.11.1999 and observed as follows:-- "She was a young girl about 17/18 years, old well oriented in time and space. No mark of injury or violence all over the body. No matting of hair no stains. On internal examination vulva vagina healthy. Vagina admits two fingers easily. 3 High vaginal swabs were taken, sealed and sent for onward transmission to chemical examiner, Multan." She opined that the examinee was not virgin and fresh evidence of intercourse was dependent on the report of the chemical examiner, Multan. She went on to depose that, as per report of the chemical examiner, the vaginal swa bs were stained with semen. She admitted that it could not be determined, in the light of the chemical examiner report, as to how many days prior to the examination, the victim was subjected to intercourse. She, however, stated that semen would "remain intact for 19/20 days."
6. Mst. Tahira victim appeared as PW.4 and deposed that she was student of 9th class and she started suffering fits. The appellant who was resident of the Mohallah and known to treat the patients by "Dam Darood" was consulted by her father. He informed him that she was under the influence of "Jins" and she would be required to stay in his house for 2/3 hours daily. He assured her father that she was just like his daughter Mst. Aneeqa. Thereafter, her parents used to leave her at the house of the appellant who would take her into a room and commit zina-bil-jabr with her.
Khushi Muhammad and Muhammad Naeem accused kept guard. The threatened her that in case she informed any body about sexual assaults by the appellant she would be killed. The appellant obtained her signatures on some papers after administering intoxicant to her. She stopped visiting the house of the appellant after 2-1/2 months but remained ill and fits would occur. Her father took her to another "Aamil" who gave her "Taweez" for 7/8 days. She then disclosed to her father, uncle Muhammad Siddique and others that the appellant had been committing zina-bil-jabr with her at his house. Her father informed Mirza Sajid Baig etc. rekdents of the Mohallah who inquired from the appellant about the occurrence. The appellant promised that he would abandon his house and return the papers bearing her signatures. Later on, he refused to return the documents resulting in the registration of case. She further deposed that she was medically examined by the lady doctor.
She was cross-examined at great length by the defence but, apart from inconsequential discrepancies viz-a-viz her statement before the police, nothing substantial could be gained. She denied the suggestion that her father demanded divorce for her from the appellant and contended that her Nikah with him never took place. She asserted that the appellant had obtained her signatures and thumb impression on blank papers. She stated that "it is incorrect that my parents has simply taken "Taweez" from Ibrar accused without leaving me in the house of Ibrar accused." The witness has given forthright account of the whole occurrence and no justification is made out to disbelieve her.
7. Ghulam Rasool complainant entered the witness box as PW.5 and gave detailed statement regarding the unfortunate occurrence in which his young daughter was subjected to zina-bil-jabr by the appellant for 2-1/2 months, on the pretext of administering spiritual treatment to relieve her from hysterial fits. He deposed that it was after 7/8 days of her taking Taweez from another "Aamil" that she narrated the whole occurrence to him in the presence of Muhammad Siddique, Muhammad Boota etc. He deposed that the appellant had obtained signatures of his daughter after administering some intoxicant to her. The witness contacted Mirza Sajid Baig and Muhammad Abdullah who talked to the appellant. He sought pardon for the offence and also held out a promise to return the papers signed by her but later on refused to do so. He then got the case registered against the appellant.
This witness was also cross-examined at great length spread over three typed pages. We have carefully perused his statement as a whole and found it confidence inspiring. He refuted all the suggestions put by the appellant to exonerate himself. He mentioned the name of second "Aamil" as Mureed Hussain from whom Mst. Tahira took some "Taweez" and then made disclosure about the dastardly treatment meted out to her by the appellant. He denied the suggestion that Thanedar had told him that there was no "Kala Ham" and things could not have taken place as alleged by him. He refuted the plea of the appellant that Nikah of Mst, Tahira had been performed by his wife with the appellant and he demanded Talaq but without success.
8. Muhammad Rafique PW.6 is the witness of the extra-judicial confession made by the appellant, in his presence. He deposed that the appellant had clearly admitted the factum of commission of zina-bil-jabr with Mst. Tahira. He also made disclosure about having obtained signatures of Mst.
Tahira on plain papers and promised compensate the complainant besides returning the papers.
He denied the suggestion that the complainant was related to him.
9. Munir Ahmad. ASI PW.8 investigated the case. He arrested the appellant on 20.11.1999 and got him medically examined for potency. He also recorded the statement of Mst. Tahira and produced her before a Illaqa Magistrate for getting her statement about medical examination. He denied the suggestion that he opined the appellant to be innocent.
10. After conclusion of the prosecution evidence, the statement of the appellant was recorded under Section 342 Criminal Procedure Code. He denied the prosecution story in toto. In reply to the question as to why the case had been registered against him, he gave a detailed reply as under:-- "I am innocent. The complainant/father of the alleged victim is follower of false "Peer and Faith". He had dispute with his wife. He developed suspicion through the different persons including his "Peer" that his wife intended or had given in Nikah the alleged victim to me. The complainant approached his Peer (whose name he intentionally did not disclose during his evidence) and on the instigation of said Peer he surrendered his daughter/victim to the said Peer and she remained with Peer for indefinite period. On further instigation of the said Peer the complainant has got registered a false case against me with a concocted story. May be the complainant was mis-led by the said Peer or some other follower of the said Peer or it is also possible that his wife might have also played some role in the registration of false case against me. The complainant .and Mst. Tahira, are father and daughter inter-se whereas rest of the PWs are related and interested with the complainant. I have neither committed any zina with the victim nor have ever kept her in my house nor I have performed any Nikah with her. This case is only outcome of false suspicion and malafide instigation against me.
On 14.10.2000 the statement of the appellant was recorded, without oath, in the presence of his counsel, wherein he claimed that he was potent and so at the time of alleged occurrence.
On 7.8.2002 the learned DDA closed the prosecution evidence, after tendering the report of Chemical Examiner (Ex. PD).
11.We have heard the learned counsel for the parties and perused the record with their assistance.
12.It is contended by the learned counsel for the appellant that Mst. Tahira was a girl of unsound mind who used to suffer hysterical fits and, therefore, her statement could not be relied upon for convicting the appellant. He pointed out that there was no eye-witness of the occurrence, though the alleged process of zina-bil-jabr continued for 2-1/2 months. He also placed heavy reliance on the acquittal of the co-accused of the appellant to argue that the prosecution story stood partially demolished thereby.
On the other hand, learned counsel for the State stoutly defended the impugned judgment.
12-A. The statement of the victim is duly corroborated by the extrajudicial confession made by the appellant in presence of Muhammad Rafique. This witness held out a promise to the appellant not to prosecute him that if would leave his abode in the Mohallah but also return the papers on which he had secured some signatures of Mst. Tahira. The appellant failed to do so and Ghulam Rasool complainant was left with no option but to report the matter to the police. The testimony of lady Dr. Fatima Azhari and the report of Chemical Examiner lend full support to the statement of the victim..
Perusal of reply given by the appellant during his statement under Section 342 Criminal Procedure Code (para-10 ibid) shows that he was himself not clear as to what specific plea to take to prove his innocence. His faltering reply, rather lent indirect support to the prosecution case. There is also indirect admission of his guilt in the suggestion put to him, reproduced in para-6 ibid. The appellant did not lead any defence evidence and also failed to take up the courage to enter the witness box and depose on Oath in support of his plea of innocence.
13.It is pertinent to notice that none of the prosecution witness had any motive to false implicate the appellant in this serious crime.
As regards the plea of the appellant that since Mst. Tahira was Suffering from hysterical fits she could not be held to possess sound mind suffice it to say that it was only during the period of hysterical fits that a person lost control over his senses and when it was over he would behave like a normal person. The deposition of Mst. Tahira, referred to hereinbefore, leaves no room for doubt that she was a sane person and a competent witness to depose about the occurrence.
14.For what has been stated above, we are fully convinced that the prosecution had succeeded in proving its case against the appellant beyond any shadow of doubt. He was rightly convicted by the trial Court for Offence C under Section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. The substantive sentence imposed on him was fully commensurate with the gravity of the crime which is also maintained.
15.The appellant acted like a demon and continually subjected a sick girl to his List for months by pretending to be a faith healer. In our view the learned trial Judge failed to follow sound judicial principles and mechanically allowed the benefit of Section 382-B Criminal Procedure Code to the appellant. See "Ghulam Murtaza versus The State" [PLD 1998 Supreme Court 152 at 158], 'Mukhtiar- ud-Din versus The State" [1997 SCM R 55 at 65] and 'Muhammad Rafiq versus The State" [1995 PSC (Crl.) 830 at 838] we asked the learned counsel for the appellant to explain as to why, in the peculiar facts and circumstances of the case, this benefit should not be withdrawn. He failed to give any satisfactory reply. We are of the considered view that the appellant was not entitled to the benefit of Section 382-B Criminal Procedure Code, which benefit is hereby withdrawn.
16.Before parting with this judgment we are constrained to remark that the evil of fake Soothsayers, pseudo spiritualists and faith healers, claiming to possess supernatural powers to treat the physical and mental ailments of people is spreading like an epidemic in the country.
Some of them have become so emboldened that they claim to control evil spirits which could be invoked by them to fulfil the desires of their clients. Almost in every city one comes across bill boards and wall chalking by such miscreants, inviting people to consult their with tall promises to make their wishes come true. Some of them openly claim to practice black magic even. One shudders to visualize as to how many innocent persons, like Mst. Tahira, victim in this case, might be falling prey to their machinations leading to deprivation of not only money but, in some cases, their honour as well. It appears that there is no law on the Statute Book available to curb these anti-social and un-Islamic activities. It is for the government to take notice of this matter and adopt steps for appropriate legislation enabling the law enforcing agencies to deal with such persons with iron hand.
17. To conclude, the appeal is dismissed and the benefit of Section 382-B Cr.P.C. allowed to the appellant by the trial Court, is withdrawn.