' AKHTAR ZAMAN MALGHANI, J.---Judgment dated 19-8-2002 passed by Anti-Terrorism Court, Quetta has been assailed in the instant Appeals (ATA) No,64 of 2002, Criminal Jail Appeals (ATA)
Nos.92 of 2002 and 106 of 2002. We intend to dispose of these appeals by common judgment through impugned judgment:--
(i) Appellants Fouzia Petrak, Farah Hameed, Jarvaiz Mashi and Saleem Salvister were found guilty under section 365, P.P.C. Read with section 7(b) of Anti-Terrorism Court (Amendment) Ordinance of 2001 and sentenced to seven years' R.I. As well as to pay fine of Rs,10,000 each; in default of payment of fine to further suffer three months' S.I.
(ii) Appellant Salim Salvister was also found guilty under section 10(3) Offence, of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to life imprisonment along with whipping 30 strips.
2. Briefly stated, case of the prosecution as disclosed in F.I.R. Exh.P/7-A is that on 7-4-2002, Bashir Javed son of Muhammad Hashim lodged a report with Bijli Road Police Station wherein he stated that on 6-4-2002 his sister namely Nargis aged about 14 years went to Sacred ' Heart School to take practical of Biology. At 2 p.m. He went to fetch/take her back but could not find her there. He searched her at different places but without any success. It was further stated that on 7-4-2002 at about 2 or 3 P.M. Someone called him on telephone and told that his sister was detained by him and demanded Rs,30,00,000 for her return. The complainant raised suspicion upon Salim Salvister, Zeeno; Mashi, Ishaque Mashi, Mst. Farah Mashi and Miss Fouzia Petrak for kidnapping his sister. On this report .a case vide F.I.R. No,22/2002 was registered in Police station Bijli Road Quetta under sections 365-A/109/34 P.P.C. The investigation of the case was entrusted to Muhammad Rafiq S.-I.
Who prepared site plan Exh.P/7-B, arrested Ishaque Mashi on 9-4-2002, Fouzia Mashi and Farah Hameed, on 10-4-2002 and recorded the statements of Muhammad Hashim, Abdul Majeed and Sakeena. He also obtained warrant of arrest of accused/appellant Salim Salvister and submitted incomplete challan Exh.P/7-C through S.H.O. Bijli Road before the Sessions Judge Quetta. It appears from the record that later on the investigation was transferred to Crimes Branch, Quetta and entrusted to P.W.8 Muhammad Nadeem who obtained warrant of arrest in respect of Salim Salvister, Jarvaiz and Amir Kamran on 23-5-2002. He arrested appellant Salim Salvister from Multan and recovered victim Nargis Palvisha from his possession. A memo. To this effect was prepared which has been produced as Exh.P/2-A during the trial. He also took into possession two Cross (Symbol of Christianity) through recovery memo Exh.P/2-C which were produced by the abductee/victim. He also got medically examined the appellant Salim Salvister and Nargis Palvisha. After getting Mst. Nargis Palvisha examined under section 164, Cr.P.0 before Judicial Magistrate, he handed over the investigation papers to S.H.O. Barkat Hussain who prepared challan on 6.6.2002 and submitted to the Court of learned Sessions Judge Quetta.
3. The challan was pending before learned Sessions Judge Quetta when it was transferred to Anti- Terrorism Court No,I Quetta on 19-6-2002. After receipt of challan and observing other legal formalities the learned Judge Anti-Terrorism Court charged the appellants along with acquitted accused Ishaque Mashi under sections 363/365-A, 368, 109 and 34, P.P.C. Read with section 10(3)
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 7-B and 7-E of Anti- Terrorism Act, 1997.
4. The charge was read over to the appellants to which they pleaded not guilty. In order to substantiate its accusation prosecution produced 8 witnesses. After close of prosecution evidence the appellants were examined, under section 342, Cr.P.0 in respect of incriminating pieces of evidence, which were denied by them. However, appellant Salim Salvister took plea that Mst. Nargis Palvisha has gone with her own free will and consent and they are legally married husband and wife as he has converted to/embraced Islam to marry Nargis Palvisha. Appellant Salim Salvister also gave statement on oath as envisaged under section 340(2), Cr.P.C, but did not produce any defence. On the other hand, remaining appellants did not opt to give statement on oath.
Appellants Fouzia Petrak and Farah Hameed's produced one D.W namely Michael Murad who- produced Attendance Register of Sacred Heart School Exh.D/27 and Exh.D/48 which shows that on the day of incident i,e, 6-4-2002 there was Holiday in the school. In order to appreciate the prosecution evidence in its true perspective it would be beneficial to give brief substance of each of the witnesses produced by the prosecution.
' P.W.1 Bashir Javed stated before the Court that Nargis Palvisha is his sister and appeared in the matriculation examination. On 6-4-2002, she went to Sacred Heart School, Khojak Road Quetta for taking her practical examination, which was from 11-00 a.m. To 3-00 p.m. He further stated that he went to School for taking her back at 3-00 p.m. But could not find her there. Thereafter he and his brother Muhammad Iqbal searched for her at different places but without success. According to this witness his sister Nargis Palvisha often used to talk about two teachers Miss Farah Hameed and Fouzia Petrak, therefore, he enquired about the addresses of above mentioned teachers from the Chowkidar of the school and went to Miss Farah Hameed's house situated in Christian Town. It was further stated by him that on his enquiry Miss. Farah Hameed advised him to enquire about his sister from Ishaque and Salvister who are relative of Miss Fouzia Petrak. He again contacted Chowkidar for ascertaining the address of Salim Salvister and Miss Fouzia Petrak but Chowkidar did not give him address of both the persons. On the next date i,e, 7-4-2002 his father was informed through telephone call that his daughter is in custody of the telephone caller and demand of Rs,30,000,00 was made for her release whereupon he lodged report Exh.P/1-A.
P.W.2 Abid Khan, A.S.-I. Crimes Branch. He stated in his statement that on 23.5.2002, he along with Muhammad Nadecm IP 'was present'at Multan in order to arrest accused Salim Salvister and recover abductee Nargis Palvisha. On the same day at morning time, the informer informed them about the presence of Salim Salvister along with. Nargis Palvisha in a house situated at Zaid Town Multan whereupon they went to the said town and informer pointed out the house where Salim Salvister was residing. With the help of local police they raided the house and recovered Nargis Palvisha from there. Recovery memo Exh.P/2-A was prepared which was signed by him. Salim Salvister present in the house was also arrested. On personal search of appellant Salvister a purse containing visiting cards, telephone diary, two National Identity Cards belonging to accused Salim Salvister, three "amulets" on white papers and one "amulet" on the note of rupees ten and one rosary were recovered which were taken into possession through memo. Exh.P/2-B. The appellant Salim Salvis,ter along with abductee were brought to Quetta. Nargis Palvisha produced two Cross (Symbol of Christianity) to the DSP Babar Gul which were taken into possession vide recovery memo. Exh.P/2-C.
P.W.3 Dr. Muhammad Omar Lango ' Police Surgeon examined appellant Salim Salvister on 27-5-2002 and found him potent. He issued certificate Ex,P/3-A in this respect.
P.W.4 Dr. Fareeda ' examined Palvisha Nargis on 24-5-2002 and observed as under:-- "GENERAL EXAMINATION.
' No fresh injury mark on whole body and the genital area.
PERVIGINAL EXAMINATION.
' Hymen torn. Specific examination done in the presence of Gynecologist Robia, ULTRA SOUND REPORT.
' Shows uterous size 1.4 CM. Normal endometrium. Both overies are normal.
BLOODGROUP. B+. .OPINION.
(1) Her radiological age is about 15 yea's. She is major at the time. (Mensurating).
(2) She is deflorated on examination.
(3) She was not pregnant at the time of examination, by Ultra sound report and Urine report.
' In this regard she issued medical certificate Ex.P/4-A.
P.W.5 Rafaqat son of Barkat Mashi stated in his statement that on 6-4-2002 appellant Jarvaiz asked him to accompany him to Mian Channu where he was going in connection with engagement of his brother. Thereafter he along with Jarvaiz Mashi went to the house of appellant Salim Salvister who was at that time residing in Kabeer building. According to this witness after meeting with appellant Salim Salvister, Jarvaiz Mashi directed him to go to Karachi by Coach because due to family of appellant Salim Salvister there was no space in the Taxi, which was hired by them for journey to Karachi.He was further directed to wait for them at Coach stand Karachi. He accordingly went to Karachi and waited at Coach stand for them but they did not turn up, therefore, he came back to Quetta. It has been further stated by this witness that after 15 days accused Jarvaiz met him and told that he along with accused Salim Salvister and a pathan girl went from Karachi to Sukkur and thereafter to Multan where they stayed in the house of priest Kamran.
P.W.6 Nargis Palvisha stated that she was studying in Sacred Heart School where she was in acquaintance with the teachers other than those who were teaching her. On 6-4-2002, she went to take practical of Biology in the school along with her brother Bashir Javed. Her other sister was also with her for taking practical. At 11-00 a.m. After taking practical examination her sister went away along with brother while she remained there as her examination was to end at about 1-30 p.m. She further stated that at 1.30 P.M. When she came out after taking her practical Miss Fouzia Petrak and Farah Hameed offered her cold drink. After taking the said cold drink she became unconscious and could not know how she was taken out of the school. When she regained her senses she found her in a room where Jarvaiz and Salim Salvister were present. She enquired from them about her parents who told her that her parents are present outside and gave a glass of water for drinking.
After drinking the said water she again became unconscious. After coming to senses she found her in a dark room having no light or window etc. The appellants Salim Salvister and Jarvaiz were present there and on her enquiry she was told that she has been brought to Mian Channu.When she tried to cry, appellants Salim Salvister and Jarvaiz tied her legs and hands and also tortured her. It was further stated by her that the accused/appellants Jarvaiz and Salim Salvister used to gave her some thing in drinking due to which she remained most of the time unconscious while in their custody. Whenever she came to senses, she felt pain in the lower part of her body. One day when she came to her senses she found her travelling in a vehicle where police and her uncle were also present. The appellant Salim Salvister was also in the vehicle.
P.W.7 Muhammad Rafiq I.0 is Investigating Officer of the Case.
P.W.8 Muhammad Nadeem Inspector, Crimes Branch is second Investigating, Officer who was entrusted with the investigation after transfer of the case to the Crimes Branch. He recovered the abductee from Multan and arrested accused Salim Salvister. After completion of investigation handed over the papers to S. H.0 Barkat Hussain who prepared challan Exh.P/8-A and submitted the same to the Sessions Court.
5. The learned trial court after appraising the evidence on record and hearing the arguments of the parties found the appellants guilty and sentenced them 'as mentioned above. However, accused Ishaque was found innocent and acquitted of the charge.
6. We have heard the arguments of the learned counsel for the appellants, learned counsel for the Complainant and Raja Amir Abbas Advocate for State. It is contended by Syed Ayaz Zahoor Advocate for appellants Miss Fouzia Petrak and Farah Hameed that there is no evidence on record to connect his clients with the alleged offence except improved statements of P.W.I Bashir Javed and P.W.6 Nargis Palvisha which are liable to be excluded from consideration as these witnesses A have dishonestly improved their version before the court in order to involve the appellants Miss Fouzia Petrak and Farah Hameed. Further elucidating his argument learned counsel stated that in F.I.R. Exh.P/7-A only asuspicion was raised about the involvement of his clients but when examined in the Court P.W.1 dishonestly improved his version and stated that he went to meet Miss Farah in order to enquire about his sister. According to the learned counsel the appellants Miss Fouzia Petrak and Farah Hameed were charged for abetment of the offence but there is no evidence on record, which could prove their abetment, or instigation on their part for abduction of Nargis Palvisha. It was further argued that the police have failed to record statement of Chowkidar, Head Mistress or students of the concerned school from where the victim was allegedly abducted and an adverse inference can be drawn against the prosecution to the effect that in fact no such incident has taken place in the school. He further stated that the trial court has not properly appreciated defence plea which was proved, beyond any doubt that on the day of incident appellants were on holiday and not present in the school.
' The learned counsel for appellant Salim Salvister stated that Nargis Palvisha was sui juris and has gone with the appellant Salim Salvister with her own free will and consent and they got married to each other in accordance with law, as such, no offence was committed by the appellant Salim Salvister and he is entitled to acquittal. In alternate he requested for reduction in the sentence.
' The learned counsel for the complainant supported the judgment of the trial court and stated that there is sufficient evidence on record to connect the appellants with the alleged offence and they have been rightly convicted and sentenced by the trial court because they have committed a heinous offence by taking away an innocent school girl and spoiling her life.
' The learned State counsel also supported the arguments of the learned counsel for the complainant and further stated that the evidence of P. W.1 Bashir Javed and P.W.6 Nargis Palvisha coupled with medical certificate is sufficient to prove, the charge against the appellants and prayed for dismissal of their appeals.
7. We have anxiously considered the arguments put forth by the learned counsel for the parties and also perused the record as well as minutely examined the evidence produced during the trial including impugned judgment.
' It is the case of prosecution that the appellant Salim Salvister with the aid and abetment of other appellants namely Fouzia Petrak, Farah Hameed and Jarvaiz Mashi abducted Nargis Palvisha and committed Zina bil Jabber with her. So far appellants Fouzia Petrak and Farah Hameed are concerned, they have been convicted under section 365, P.P.C. Read with section 7-B of the Anti- Terrorism Act on the allegation that they helped principal accused Salim Salvister in abducting Nargis Palvisha and for that purpose according to the prosecution they have offered cold drink to Nargis Palvisha at the time of incident due to which she became unconscious and was taken out from the school. To substantiate these allegations prosecution relies upon the statement of P,W.1 Bashir Javed and P.W.6 Nargis Palvisha. P.W.1 Bashir Javed stated in his statement that his sister used to talk about Miss fouzia Petrak and Miss Farah Hameed, therefore, he enquired about her missing sister from Miss Farah Hameed who referred him to Miss Fouzia Petrak who, according to appellant Farah Hameed, was relative of Salim Salvister and Ishaque Mashi but the perusal of F.I.R.
And Farde-Bayan on the basis whereof F.I.R. Was registered shows that no such allegation was made against the appellants Miss Fouzia Petrak and Farah Hameed in it by the P.W.1 when lodging report about the abduction of his sister. This material improvement made by this witness cannot be lightly ignored and the statement of P.W.1 to this extent is not believable and liable to be excluded. The learned trial court has illegally and wrongly relied upon improved statement of this witness while basing conviction of Miss Fouzia Petrak and Farah Hameed on the basis thereof.
Similarly P.W.6 Nargis Palvisha has also involved the appellants Fouzia Petrak and Farah Hameed in the alleged offence for the first time in Court by saying that when she came out after taking her practical, the appellants Fouzia Petrak and Farah Hameed offered her cold drink. By drinking the same she became unconscious and did not know how she was removed from the school. The perusal of her statement before the trial court shows that the part attributed to these appellants i,e, offering of cold drink containing intoxicant have not been stated by her when examined by the police under Section 161, Cr.P.C., and same was confirmed by I.O. P.W. Muhammad Nadeem It appears that she has made a dishonest improvement in order to implicate appellants Fouzia Petrak and Farah Hameed in the offence because except this part attributed to them, no other evidence is available on record to connect them with the alleged offence. Even otherwise it is unnatural and improbable that in a school where other teachers, students and Chowkidar are present the appellants would administer intoxicated liquid to the victim and then took her out of the school in unconscious condition. Our this view is further supported by the fact that the prosecution has failed to examine Chowkidar, Head Mistress or other students who were taking practical along with Miss Nargis Palvisha at the time of incident which was necessary to substantiate the above mentioned facts alleged by Nargis Palvisha against these two appellants.
By not examining the best evidence available at the relevant time inference can be drawn against 'the prosecution as envisaged under Article 129(g) of the Qanun-e-Shahadat Order; had they been produced, they would have not supported the prosecution evidence. Moreover, the story narrated by P.W.1 and P.W.6 is also contradicted by P.W.5 Rafaqat Mashi. According to whom Salim Salvister, Jarvaiz. Along with a Pathan girl went to Karachi on.a taxi and he had seen Salim Salvister in Kabeer building in the evening of 6-4-2002, which shows that in fact Nargis Palvisha was not abducted from school.
8. We are not convinced with the conclusion drawn by the learned trial court that the improvements made by P. W.1 and P.W.6 in their statements by involving appellants Miss Fouzia Petrak and Farah Hameed can be ignored by dynamic approach. Case-law relied by the learned trial court was not at all applicable in the present case because the improvement made by the witnesses were not technical one but an intentional act on their part in order to involve these two appellants because after excluding these improvements no other evidence was available on record to connect these two appellants with the alleged offence. In number of cases the Hon'ble Supreme Court of Pakistan has held that the statements of witnesses in which improvements have been made to strengthen the case of prosecution are not worthy of reliance and should be excluded from consideration. In this behalf reliance is placed on a case reported in 1993 SCMR page 550.
9. The documentary evidence Exh.D/27 and Exh.D/48 produced by these appellants in their defence also shows that on 6-4-2002, there was, holiday in the school due to HOLY FEAST and none of the teachers of Montessori Classes were present on that day in the school. The learned trial court has rejected the evidence of D. W.1 on the ground that he had no authority letter issued from the concerned school in his favour and ignored the fact that he has produced the original Attendance Register from the school which was exhibited without any objection and was not controverted by the prosecution in cross-examination. In our humble view the record produced by the D.W.1 and exhibited without objection is admissible in evidence and cannot be ruled out from consideration only on the ground that the person who has produced it had no authority letter in his favour. The perusal of these documents also proves that both the appellants were not present at the time of incident in the school and D the story introduced by P.W.6 is worthy of no credence.
' For the foregoing reasons we are of the considered view that the prosecution has failed to prove guilt beyond any reasonable doubt against the appellants Fouzia Petrak and Farah Harneed, as such, they are entitled to acquittal. It may be observed that conviction should rest surely and firmly on evidence and clear inference that may be drawn therefrom which is lacking in respect of these appellants. Guilt cannot be based merely on high probabilities that may be inferred from evidence in the case.
10. So far the case of appellant Salim Salvister is concerned, he has not denied the recovery of Nargis Palvisha from his possession and taking away her to Multan but according to him she had gone with her own free consent with him being a sui juris and they married to each other in accordance with injunction of Islam, therefore, he has committed no offence. It may be noted that the age of Nargis Palvisha according to medical certificate based on Radiological test is 15 years.
She may have attained puberty but she was minor within the meaning of section 361, P.P.C. Under the said section if any female under the age of 16 years is taken away from the lawful guardian without consent of such guardian amounts to kidnapping of said minor, no matter whether she has consented to such kidnapping or not. It has come on record through the evidence of P.W.2 and P.W.8 Muhammad Nadeem that the appellant Salim Salvister was arrested from Multan from a house situated at Zaid Town wherein Nargis Palvisha was also present at the time of arrest. It proves that appellant Salim Salvister has taken away Nargis Palvisha from Quetta to Multan without consent of her guardian; therefore, offence of kidnapping is proved against him. The plea of the appellant that she has gone with her own consent with him is of no consequence in view of minority of the Nargis Palvisha and definition of section 361, P.P.C. Similarly offence of Zina is also proved against the appellant Salim Salvister by the statement of P.W.6 Nargis Palvisha coupled, with medical certificate and recovery of Nargis Palvisha from the house found in possession of the appellant. P.W.6 Nargis Palvisha has stated in her statement that whenever she regained her senses, she felt pain in lower abdomen part of her body which in our view coupled with medical evidence is sufficient to prove that Zina has been committed with her without her consent. We are conscious of the fact that we have not believed the statement of P.W.6 in respect of appellants Fouzia Petrak and Farah Hameed. But the principle "Falsus in uno falsus in omnibus" is not applicable in this sub-continent and courts are bound to sift grain from the chaff. The statement of P.W.6 that she was kept un-conscious by the appellant Salim Salvister is corroborated by the statement of P.W.8 Muhammad Nadeem who stated that at the time of recovery Nargis Palvisha was unconscious and regained senses during journey to Quetta. Even otherwise the appellant has not denied the allegations of Zina but has stated that Mst. Nargis Palvisha was living with him as his legally wedded wife. It is a settled principle of law that when an accused takes plea of Nikah or valid marriage then it is for him to prove the existence of such fact. As in the present case appellant has taken the plea that Nargis Palvisha was his legally wedded wife and they married to each other in accordance with injunction of the Islam, it was duty of the appellant to have proved the said fact but he did not produce any evidence to this effect. Neither Nikah Khawan was produced nor any other witness was produced before the Court, which could prove that in fact the appellant has married to Nargis Palvisha. In absence of such evidence it cannot be safely concluded that the appellant was living with Nargis Palvisha as husband and have not committed Zina with her, therefore, we find no force in the appeal filed by appellant Salim Salvister and agreed with the conclusion drawn by the learned trial court that he had committed an offence punishable under section 365, P.P.0 as well as section 10(3) Offence of Zina (Enforcement of Hudood)
Ordinance, 1979.
11. So far alternate plea about reduction of sentence is concerned, it may be observed that the appellant was teacher of the victim girl who is regarded like father in our society and is trusted by the parents of the students. The appellant has betrayed the trust of the society and brought a bad name to the profession of teaching by inducing an immature girl to go with him and thereafter committing Zina with her, thereby spoiling her whole life, therefore, in our opinion the appellant deserves exemplary punishment and same has accordingly been imposed by the trial Court which need no interference.
12. So for the case of the appellant Jarvaiz Mashi is concerned it is alleged that he had aided and helped the appellant Salim Salvister in abduction/kidnapping of Nargis Palvisha and has been convicted under section 365 P.P.0 read with section 7-B of Anti-Terrorism Act, 1997. The perusal of evidence shows that the appellant Jarvaiz Mashi made extra judicial confession before P.W.5 Rafaqat Ali about the kidnapping of Nargis Palvisha from Quetta to Multan. We have already observed that consent of Nargis Palvisha was immaterial in the present case being less then 16 years and her case falls within the definition of kidnapping because she was taken away without consent of her legal guardian i,e, father. The extra judicial confession of the appellant Jarvaiz Mashi before P.W.5 Rafaqat corroborated by the statement of Mst. Nargis Palvisha that she had seen appellant Jarvaiz along with Salim Salvister when she was kept in a house at Multan and Mian Channu which in our considered view is sufficient to bring charge home against appellant Jarvaiz Mashi under section 365, P.P.C.
13. However, we may observe that the learned trial court has also convicted the appellants Salim Salvister, Jarvaiz Mashi, Fouzia Petrak and Farah Hameed under section 7-B of the Anti-Terrorism Act, 1997 as amended without realizing the fact that section 7-B Anti-Terrorism Act has been omitted from statute since long, therefore, conviction of the appellants Salim. Salvister and Jarvaiz Mashi under section 7-B of the Anti Terrorism Act is illegal and same is set aside to that extent and is converted to that of section 365, P.P.C.
' For the foregoing reasons we find no merit in Criminal Jail (ATA) Appeal No,92 of 2002 and 106 of 2002 and the same are accordingly dismissed. However, Criminal Appeal (ATA) No, 64 of 2002 is allowed. The appellants Fouzia Petrak and Farah Hameed are acquitted. They be set at liberty forthwith, if not required in any other case.