JUSTICE JAVED IQBAL (MEMBER.--- The above captioned appeals, with leave of the Court, have been directed against common judgment dated 7-9-1998 passed by learned Federal Shariat Court whereby the appeals preferred on behalf of appellants have been dismissed and judgment, dated 27- 3-1995 passed by learned Additional Sessions Judge, Faisalabad, whereby the appellants were convicted and sentenced as follows, has been kept intact except the sentence of stripes which have been set aside:--- "Appellants Shahid alias Mazhar, Sajjad, Muzammal and Muhammad NaeemUnder section 10(3) of the Offence of Zina(Enforcement of Hudood)
Ordinance, 1979.25 years R.I. each and thirty stripes each. -do- Under section 11 (ibid). Life Imprisonment each, 30 stripes each and a fine of Rs.10,000 each or in default 3 yearsR.I. each.
Appellant Rana Muhammad Salim Under section 11 (ibid)read with section 109, P. P. C.Life imprisonment, 30 stripes and fine of Rs.20,000 or in default 3 years R.I."
The above captioned appeals are being disposed of by this common judgment.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are that "on 1-10- 1991 minor daughter of the complainant namely Muslim Nasim went to purchase note-books from a shop situated in street No,5, Zulfiqar Colony, Faisalabad. When she did not return, the complainant along with her blind husband went out to search. Her. During the search Rana Abdus Sattar, Khadim Hussain, Umar Din, Muhammad Ashraf and Yousaf of the same colony told her that they had seen her daughter going towards Sumandari Road in the company of Sajjad Ahmad, Muzammal, Shahid alias Mazhar and Naeem. She reported the matter at police station but she was given no hearing.
Thereafter she submitted an application to the D.I.-G. Which was sent to Police Station, Batala Colony that Khalid Mahmood, S.-I. Recorded F.I.R. According to his own liking. She met him in Chowk Fowarah also and made a verbal statement but the police did not arrest any accused. After 18/19 days the police arrested Shahid accused and her daughter was kept for four days and was threatened to make a statement that she had voluntarily gone with Shahid. Thereafter she was sent to Darul Arran and her statement under section 164, Cr.P.C. Was recorded. Then she was all the times subjected to terror and fear that if she made any statement against the accused all members of her family would be murdered. The complainant thereafter got her daughter released on bail who disclosing the details to her stated that when she was going to purchase note-books from a shop and reached the tailor's shop of Naeem accused, the accused persons forcibly took her inside the shop and closed the shutter.
First of all Naeem accused subjected her to Zina-bil-Jabr and thereafter the other accused took her on pistol point to Sumandri Road where a Kalaji colour car had been parked and therein they took her to the bungalow of Shahid accused in Peoples Colony. Sajjad, Muzammal and Naeem subjected her to Zina-bil-Jabr at that place and thereafter Shahid accused took her to Karachi to the house of her paternal aunt and kept on committing rape on her. After 17/18 days Rana Salim father of Naeem accused and maternal uncle of Shahid accused rang up that the secret is out and the boys have been arrested and therefore the girl should be returned immediately. Subsequent to that telephone, Shahid brought her back and Rana Salim produced both of them before the police. The police kept them in custody for four days and, threatening her, forcibly obtained statement against her wishes.
The complainant alleged that her minor daughter is aged ten years and is unable to comprehend the consequences of her statement. She requested for necessary action as the local police had exonerated the other accused. She also alleged that the whole occurrence had taken place at the instance of Rana Salim who had given Rs,1,000 to Shahid accused to take her to Karachi. She requested for necessary proceedings against the accused". After completion of investigation the accused were sent up for trial and on conclusion whereof they were convicted and sentenced as per details given in the preceding paragraph.
3. Leave to appeal was granted by this Court vide order dated 9-1-2001 which is reproduced herein below for ready reference:--- "This order will dispose of Criminal Petitions Nos.35(S) and 36(S) of 1998 as both these petitions arise from common judgment, dated 7-9-1998 of the learned Federal Shariat Court.
2. The learned counsel appearing for the petitioner prayed for leave on the following grounds:---
(a) The learned Courts have erred in believing the statement of the victim in Court as against her statement under section 164, Cr.P.C.
(b) The record indicates that the petitioner was pubert and in case her consent is established then the offence would fall under section 10(2) and not under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
(c) There is no evidence supporting the statement of the victim.
(d) The age of the petitioner is about 14 years and, therefore, if at all offence is constituted that would be under section 7 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 which is not punishable beyond five years.
3. Leave is granted to consider these submissions in the light of the evidence and relevant law.
4. Learned counsel appearing for Shahid Ali alias Mazhar petitioner submitted that Muhammad Naeem petitioner has been allowed bail, therefore, when leave is granted to Shahid Ali alias Mazhar petitioner then he should also be given the same concession. The learned Judge in Chambers had refused bail to petitioner Shahid Ali and, therefore, we are not inclined to consider that aspect before the decision of the appeals. However, the appeals be fixed in the first week of coming session of this Bench."
4. Ch. Muhammad Abdus. Saleem, learned Senior Advocate Supreme Court entered appearance on behalf of Muhammad Naeem (appellant) and urged vehemently that legal and factual aspects of the controversy have not been examined in its true perspective which resulted in serious miscarriage of justice and more so, the evidence which has come on record has not been appreciated properly and the conclusions drawn by the learned trial and Appellate Courts have no nexus with it. It is urged emphatically that the learned Federal Shariat Court has not at all considered the defence plea of the appellants in juxtaposition with the prosecution evidence which resulted in grave prejudice. It is also argued that the wish of the abductee to marry one of the accused could not lead to an irresistible conclusion that four accused had committed Zina-bil-Jabr with the abductee and on the basis of available evidence only accused Shahid should have been tried which aspect of the matter remained unattended to by the Courts below. It is pointed out that the statement of abductee got recorded under section 164, Cr.P.C. Being trustworthy should have considered and relied upon which has been disbelieved on flimsy grounds. It is also contended that F.I.R. Was got lodged with a considerable delay without furnishing any convincing explanation and thus it could be inferred safely that it was a false and fabricated case. It is also pointed out that prosecution evidence being highly discrepant and partisan should have been discarded. Ch. Muhammad Abdus Saleem, learned Senior Advocate Supreme Court also attempted to show that the abductee was not of tender age and she was a consenting party.
5. Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court entered appearance on behalf of Shahid (appellant) and contended that the statement of abductee got recorded under section 164, Cr.P.C. Being voluntary could not have been disbelieved and accordingly the appellant should have been acquitted as no incriminating material whatsoever has come on record connecting him with the commission of alleged offences. It is also pointed out that on the basis of discrepant and contradictory evidence no conviction could have been awarded.
6. Sh. Mahmood Ahmad, learned Advocate Supreme Court appeared on behalf of State and supported the judgment impugned for the reasons enumerated therein with the submission that prosecution has established the accusation beyond shadow of doubt on the basis of worthy of credence evidence and judgment impugned being well based does not warrant interference.
7. We have carefully examined the respective contentions as agitated on behalf of the appellants in the light of record of the case and scanned the entire evidence. We have also perused the judgment of learned Additional Sessions Judge, dated 27-3-1995 as well as the judgment impugned. After having gone through the entire record we are of the view that prosecution has substantiated the accusation by leading cogent and concrete evidence and, proved the guilt to the hilt. The statement of complainant namely Mst. Mumtaz Begum (P.W.1) has rightly been considered, appreciated and relied upon by the learned trial Court as well as the learned Federal Shariat Court. A careful scrutiny of the statement of Mst. Mumtaz Begum (P.W.1) would reveal that she has narrated the unfortunate incident in a simple and straightforward manner without any exaggeration or improvement. She was subjected to a lengthy cross-examination but nothing beneficial could be extracted and she stood firm to her statement. In the absence of any rancour and animosity the question of concoction and false involvement does not arise at the cost of the honour of her daughter whose modesty was tarnished in a brutal manner and future spoiled forever. A poor and helpless lady whose husband is blind can by no stretch of imagination implicate falsely such influential persons due to whose influence she failed to lodge even proper F.I.R. And filed a complaint under the compelling circumstances. We have examined the statement of Muslim Nasim (P.W.2) who is the victim and has highlighted the details of the occurrence and stated in a categoric manner that she was subjected to Zina-bil-Jabr by Shahid and Naeem (appellants). She also mentioned in an unequivocal manner about her forcible removal to Karachi, detention/confinement for about 17/18 days and repeated commission of Zina-bil-Jabr by Shahid. She also stated that she remained in police custody for four days where she was forced to express her willingness being consenting party and exonerate all the culprits except Shahid. It is also stated that she was not allowed to see her parents during this period.
In such a state of turmoil, misery and anguish she was produced before the Magistrate and police succeeded in getting her statement recorded under section 164, Cr.P.C. As per their dictate and wishes. How she could have resisted being a student of 6th class and a raw youth. It is worth mentioning that Muhammad Iqbal (C.W.2)/Magistrate 1st Class has stated that Muslim Nasim had remained in police custody. For the last four days prior to her production before the Court and she was under heavy pressure of police and therefore, was not in a position to get her statement recorded and resultantly she was sent to Darul Aman. The statement of Muslim Nasim was got recorded under section 164, Cr.P.C. After 48 hours and in such short span of time how the police pressure and her genuine fear could have been minimized or diminished. The record is indicative of the fact that she was produced before the learned Magistrate to get her confessional statement recorded on 20-10- 1991 and subsequently, she was produced second time for doing the needful on 22-10-1991. We are of the firm view that such confessional statement could neither be voluntary nor without coercion or pressure of the police and thus, deserves little consideration. The degree of privacy and protection available in Darul Aman hardly deserves any elaboration. It is to be noted that she was sent to Darul Aman in the company of police and she was also brought second time before Magistrate through police, hence the question of her free consent does not arise. The statement of Muhammad Iqbal (P.W.2)/Magistrate 1st Class lends full corroboration to the statement of Muslim Nasim that police had pressurized her and in these circumstances how such confessional statement could be termed as "true and voluntary". It has rightly been kept out of consideration.
8. We have also perused the medical evidence furnished by Dr. Naveeda Rashid (C.W.1) whose statement is as follows:-- "On 19-10-1991, I examined Mst. Muslim Naseem daughter of Manzoor Hussain aged 12/13 years caste Syed resident of Zulfiqar Colony, Faisalabad. She was brought by S.-I. Khalid Mehmood. I medically examined her. My observations are as follows:--
(1) Breast was under-developed.
(2) Pubic and axillary hairs were black and scanty.
(3) Hymen was torn, tears were old and healed.
(4) Vagina admitted two fingers tightly.
Two vaginal swa bs were taken, dried in cold temperature. They were sealed into a packet. They were sent to the Office of Chemical Examiner, Lahore for detection of semen. In my opinion, the girl was habitual to sexual intercourse. Exh.P.D. Is the true photo copy of the original M.L.R. I had compared Exh.P.D. With the original available on the file of State case titled the State v. Sajjad and others case F.I.R. No,298/91 dated 8-10-1991 under sections 10/11 of Zina (Enforcement of Hudood) Ordinance, 1979."
9. The statement of Dr. Naveeda Rashid (C.W.1) makes it abundant clear that the hymen of Muslim Nasim was torn and tears were old and healed which, also lends corroboration to the statement of Muslim Nasim that she had remained in unlawful detention of the appellants for more than 17/18 days during which Zina-bil-Jabr was committed repeatedly and thus, it has rightly been observed by Dr. Naveeda Rashid (C.W.1) that she was habitual to sexual intercourse. The Chemical Examiner's Report bearing No,1953/S makes the factum of Zina confirm as the swabs were stained with semen. The statements of Khadim Hussain (P.W.3) and Muhammad Ashraf (P.W.4) also lend support to the statement of Muslim Nasim upto the extent that she was taken to Sumandri Road as the above mentioned witnesses had seen Muslim Nasim in the company of appellants on 1-10-1991 which aspect of the matter was neither refuted nor rebutted.
10. We have kept the defence version in juxtaposition to that of prosecution version and examined the same carefully. Both the appellants were not preferred to get their statements recorded on oath pursuant to section 340(2), Cr.P.C. And no defence witness was produced. They both have simply denied the allegation with the submission that a false and concocted case was got registered on account of enmity. They have failed to mention even the nature of so-called enmity. Had there been some enmity it could have been substantiated by leading some evidence which could not be done due to the reasons best known to the appellants. We are conscious of the fact that it is bounden duty of the prosecution to prove the guilt beyond shadow of doubt but where a distinct and specific plea is taken then at least some evidence should be led to substantiate it. In view of over-whelming incriminating evidence as discussed above the defence plea i,e, denial simplicitor being baseless has rightly been disbelieved. No doubt that police has exonerated the accused but the reasoning so given being sketchy cannot be subscribed to and moreso it is not binding upon this Court. The investigation has been conducted in a haphazard manner and dishonestly. The police was reluctant even to get the accused arrested in time and every effort was made to get the matter prolonged which cannot be without extraneous consideration. The police has attempted to provide every possible assistance and shelter to the accused persons which is highly condemnable. The police has also made every attempt to distort the factual position and hide the reality. The exoneration of accused persons in the above explained scenario would have little significance.
11. In sequel to. Above mentioned discussion we are of the considered view that prosecution has proved. The accusation beyond shadow of doubt by producing worthy of credence evidence. The statement of Muslim Nasim (abductee) finds full support from medical evidence as well as the oral account furnished by Mst. Mumtaz Begum (P.W.1), Khadim Hussain (P.W.3) and Muhammad Ashraf (P.W.4). As mentioned herein above the statement of Muslim Nasim got recorded under section 164, Cr.P.C. Is not voluntary and thus, has rightly been discarded. The medical evidence as well as the statement of Muhammad Iqbal (C.W.2)/Magistrate 1st Class is indicative of the fact that abductee Muslim Nasim was of tender age. It has come on record that she was student of 6th Class and her age in medical certificate has been shown about 12/13 years whose future has been spoiled in a merciless and brutal manner. Insofar as the question of age of the appellants are concerned that has been agitated first time before this Court which should have been disputed at the opportune moment by filing an application for ossification test. No birth certificate or school leaving certificate whatsoever have been furnished before the learned trial Court and thus, the question of age cannot be determined at this stage in the absence of any evidence which otherwise appears to be a false, fabricated and afterthought plea.
In the light of what has been stated above, the conclusion as arrived at by the learned trial Court and affirmed by the learned Federal Shariat Court being well-based and unexceptionable does not admit interference. The appeals being devoid of merits are dismissed.