By this single judgment, twa criminal appeals, Cr. Appeal No, 45/L/2005 filed by Muhammad Sarfraz and Cr. Appeal No, 14/L/2005 moved by Muhammad Farooq, are being disposed of as both these matters have arisen out of the same judgment dated 15.12.2004 passed by learned Additional Sessions Judge, Bahawalnagar camp at Minchinabad, in case F.I.R No, 40/2004, dated 15.02.2004, in Hudood Case No, 36/2004, Hudood Trial No, 25/2004, under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, whereby both the appellants have been convicted and sentenced as under:-- Sarfraz alias Shafoo Under Section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 for 7 years rigorous imprison ment with fine of Rs, 50,000/-or to undergo 2 years' rigorous imprisonment in case of default of payment of fine.
Out of fine if recovered, Rs, 40,000/- would be paid to the complainant. However, he was granted benefit of Section 382-B of the Code of Criminal Procedure.
Muhammad Farooq Under Section 10(3)' of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 read with Section 109 of the Pakistan Penal Code 2 years' rigorous imprisonment with fine of Rs,5000/- or to undergo 3 months' simple imprisonment in case of default of payment of fine.
2. Brief facts of the prosecution case as disclosed in the Crime Report are that on the night between 12/13.02.2004 in the area of Mauza Lkaal Garh, Tehsil Minchinabad, Muhammad Sarfraz appellant committed Zina-bil-Jabr 'with Mst. Yasmeen, PW-3, daughter of Khurshid Ahmad complainant at the tubewell of Muhammad Balal while Muhammad Farooq appellant was keeping a watch. The victim, PW-3, alongwith her brother Zulfiqar, went to the Police Station on the third day of the occurrence to lay information and it was on her oral complaint Crime Report, F.I.R No, 40/2004, Ex.P- D, was registered by Mehboob Alam Assistant Sub Inspector, PW-8.
3. As a consequence of the registration of the Crime Report investigation was taken up by Mehboob Alam Assistant Sub Inspector, PW-8. After taking necessary steps he arrested Shafoo accused on 27.02.2004.
4. After completing investigation of the crime report, the Police submitted report under Section 173 of the Code of Criminal Procedure against the accused requiring their to appear in Court and face trial. The accused Muhammad Sarfraz was charged on 02.06.2004 under Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and accused Muhammad Farooq was charged on 22.07.2004 for abetting the offence of Zina. Both of them pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced nine witnesses in addition to the documentary evidence:--
(i) P.W-1 Lady Doctor Nasim Aziz, THQ Hospital, Minchinabad stated that on 15.02.2004, she examined the victim Mst.Yasmeen. On P/V examination, she observed that two fingers could be admitted into vagina. Hymen torn freshly on left laterally. Margins were red and swollen. Multiple lacerations were present around the introitus. Vagina was also red and examinee was tender on touch. Two vaginal swa bs were taken and sent to the Chemical Examiner. On the basis of report of Chemical Examiner, the lady doctor opined that the victim had been subjected to sexual intercourse.
(ii) PW-2 Dr.Riaz Ahmad Shah, Medical Officer, Tehsil Headquarters Hospital, Minchinabad medically examined the appellant Sarfraz alias Shafoo on 24.02.2004 and found him potent.
(iii) Mst. Yasmeen Bibi, the victim, appeared as PW-3. She supported the story of the F.I.R. During cross-examination, she stated that she had no knowledge of any dispute between her brother and Sarfraz appellant. She further stated that at the time of occurrence, she was unmarried and her marriage took place (1/2) months after the occurrence. She denied the suggestion that during investigation, the appellant Farooq took oath and the case was dropped against him. She denied the suggestion that she got married on the next day of the occurrence and that the instant case was registered against the accused after consummation of marriage due to enmity.
(iv)Mst. Shukran Bibi, mother of the victim appeared as PW-4. She also supported the prosecution story as narrated in the Crime Report. During cross-examination, she stated that there was no dispute between her son Zulfiqar and appellant Sarfraz alias Shafoo. She too denied the . suggestion that Farooq appellant gave oath about his innocence. She also denied the suggestion that Farooq appellant was innocent. She further stated that she married the victim after 1 months of the occurrence. She denied the suggestion that Sarfraz appellant had not committed Zina with the victim nor Farooq appellant had watched the occurrence.
(v) Muhammad Hanif son of Sultan, appearing as PW-5, supported the prosecution version contained in the Crime Report. During cross-examination, he stated that the victim Mst. Yasmeen (PW-3), PW-4 Mst. Sukran (mother of the victim) and her husband Khursheed Ahmad (not produced) were not his relatives. He further stated that he had no dispute with the appellants. He denied the suggestion that there was some quarrel with Sarfraz appellant on the dispute of water.
(vi)PW-6, Muhammad Aslam Moharrir/Head Constable No, 348/HC, Police Station Saddar, Haroonabad stated that on 15.02.2004, the Investigating Officer deposited with him two sealed phials and one sealed envelope, said to contain swabs, which he kept in the Malkhana. On 08.03.2004, he handed over the sealed parcels to Muhammad Rafique Constable for onward transmission to the office 'of Chemical Examiner, Multan. So long as it remained in his custody, no body had tampered with it.
(vii) PW-7 Muhammad Rafique Constable No, 735, stated that he received sealed parcels from Muhammad Aslam Moharrir PW-6 and deposited the same intact in the office of Chemical Examiner, Multan on 09.03.2008.
(viii) PW-8, Mehboob Alam Assistant Sub-Inspector, Police Station Minchinabad, the Investigating Officer of the case, stated that on 15.02.2004, Mst. Yasmeen victim appeared before him along with her brother Zulfiqar at the Police Station and got recorded her statement, whereupon the Crime Report was registered. Then he completed the initial formalities of the investigation. On 27.02.2004 the bail before arrest of appellant Sarfraz alias Shafoo was cancelled and he arrested him. On 11.03.2004, he got non-bailable warrants of Muhammad Farooq appellant from the Court of Illaqa Magistrate. On 21.13.2004, both the parties convened a `Punchayat' to establish innocence of Muhammad Farooq appellant. On 23.03.2004, Muhammad Farooq appellant was declared innocent. He denied the suggestion that Sarfraz appellant was found innocent. He further stated that during investigation it had not come to his knowledge that there was any enmity between the parties.
(ix) PW-9 Obaidullah Sub-Inspector stated that on 23.03.2004 during his posting. as Sub Inspector/Station House Officer, Police Station Minchinabad, Mehboob Alam Assistant Sub Inspector after conducting the investigation of the instant case put up the file before him and he prepared incomplete. challan. On 08.05.2004, on the receipt of report of Chemical Examiner, Multan regarding swa bs, he recorded the statements of Muhammad Aslam Head Constable and Muhammad Rafique Constable and prepared complete challan against the appellant Sarfraz.
6. The statements of both the accused under Section 342 of the Code of Criminal Procedure were recorded on 27.10.2004 after the prosecution evidence had been closed, wherein they denied the allegations levelled against them and claimed innocence. In reply to the question as to "Why this case against them and why the PWs had deposed against them", both the appellants stated that "PWs are closely related to the complainant and due to enmity with the accused". Both the appellants did not appear under Section 340(2) of the Code of Criminal Procedure as their own witnesses to disprove the allegations but opted to produce defence evidence.
7. Allah Bakhsh son of Muhammad Ramzan appeared as DW-1 to state that Farooq appellant was son of his daughter. He further averred that he had joined the investigation and during investigation, Zulfiqar brother of Mst.Yasmeen victim had agreed that Allah Bakhsh would give oath/defence on Holy Quran which was accepted by the complainant party and due to this oath, Police declared Muhammad Farooq appellant as innocent. Muhammad Farooq appellant according to the witnesses, was not involved in the instant case. During cross examination, he denied the suggestion that being maternal grandfather of Farooq appellant, he had deposed falsely to save his skin.
8. The evidence of witnesses has been perused and the record of the case also seen, with the assistance of learned counsel for the appellants as well as learned Deputy Prosecutor General for the State.
9. Learned counsel for the appellant Farooq vehemently stressed that the appellant had been found innocent during Police investigation as no evidence was available to charge him for the offence of aiding the offence of Zina. It was further urged that it was impossible for the appellant to stand as guard during cold night in open field and that no independent witness has supported the version either of abduction or of rape.
10. It has, however, been objected that Farooq was declared innocent as a result of the oath taken by him which procedure is not contemplated by the law relating to Evidence in criminal trials. It is worth while examining this aspect of the argument.
11. I am conscious of the fact that Article 163 of Qanun-e-Shahadat, 1984 does not apply in Hudood or other criminal cases. This Article states that when the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff call upon the defendent to deny the claim on oath. However, this bar is applicable only during trial or in appellate proceedings; but if a party voluntarily during investigation or an inquiry accepts the offer of the party to settle the controversy on oath out of Court instead of producing evidence in a Court of law for the settlement of the issue, then such a deviation from the normal course of proving the case during trial may be looked into by the Court. In certain cases, direct evidence is not available and Crime Reports are registered on account of suspicion alone. In such a situation when the complainant is not under oath before Police while making an attempt to set the criminal law into motion against the suspected accused, it is. often seen that padding is resorted to by complainant or Police agency in cases based upon dubious merit. In such circumstances, when even after consultation and wide deliberation, clue is not forthcoming or the occurrence is witnessed, there is no legal bar for the complainant at the investigation stage to resort to alternate dispute resolution and thereby accept the version of accused if the latter undertakes, directly or indirectly, to purge himself by taking oath on Holy Quran or invoke the wrath of Almighty Allah in case he hides the truth. If it comes in evidence that the accused was found innocent by a "Panchayat", as a consequence of the complainant having freely consented to this course of action, then the trial Court or the appellate Court may in appropriate cases consider this aspect of the case in order to arrive at some conclusion. Neither a party should be allowed to resile from what he has stated nor should he be allowed to challenge the decision arrived at as a consequence of his own conduct. Such a procedure is time honoured and an accepted norm in our society being an effective measure of resolution of conflict between parties without judicial intervention even in criminal matters. The principle of "Lian" as mentioned in Sura Nur, Chapter 24 of the Holy Quran illustrates resolution of conflict outside the Court in Hudood cases.
12. In this view of the matter, I take judicial notice of the decision of the Panchayat in declaring Farooq appellant as innocent as a consequence of his taking oath with the concurrence of the complainant. However, this is not the only reason to acquit Farooq. This factor supports the conclusion based upon appreciation of prosecution and defence evidence.
13. In this case, we are left with the solitary statement of PW.3. Her medical test is a pointer towards fresh sexual intercourse but case history, particularly her medical examination, did not suggest rape. No marks of violence were.noticed by PW.1. The lady doctor had examined PW-3 Yasmeen on 15.02.2004 i.e on the third day of the alleged occurrence.
14. The victim kept mum and the crime report was registered only on the third day. PW-3 herself states that her cousin Mustafa saw her being dragged by accused persons at the time of her abduction but the cousin neither came to her rescue nor informed her parents nor F opted to support prosecution version. Under the circumstances, the case is not covered by the mischief of sub-section (3) of Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
15. It is in evidence that the witnesses made no effort to catch Farooq and Sarfraz appellants. PW-5, whom the prosecution portrays as an independent witness of the occurrence, does neither attribute abduction to appellants nor Zina to Sarfraz appellant. PW-4 Mst. Shukran, the alleged eye- witness of Zina, in her examination-in-chief stated that she enquired from her daughter Yasmin who told her the whole story after which they returned home meaning thereby that she was not an eye-witness of the occurrence. PW-8 Mahboob Alam, Assistant Sub Inspector, stated that there was "Parali" at the place of occurrence but even Yasmeen, the victim does not mention presence of heap of "Parali" at the place where Zina was committed. Moreover, Ex. P-E, the site-plan, prepared by PW-8 does neither indicate the position of witnesses when they saw the occurrence nor does the site-plan show the presence of Farooq appellant at the place of occurrence. The place of occurrence is quite near the village Abadi to admit force having been employed. Moreover, there was unexplained delay of three days in reporting the matter. It may also be mentioned that PW-8 stated that during investigation he found Muhammad Farooq innocent.
16. Learned counsel for the State, however, supported the impugned judgment and urged that the appellants were nominated in the FIR and that the occurrence was seen by the witnesses. The element of Zina-bil-Jabr it was stated, finds corroboration from medical evidence and further that the swa bs were also contaminated with semen. The objection regarding deciding criminal cases on oath has already been adverted above.
17. As a result of the discussion, the appeal of Muhammd Farooq is accepted and he is acquitted.
His conviction and sentence as recorded in the impugned Judgment dated 15.12.2004 passed by learned Additional Sessions Judge, Bahawalnagar Camp at Minchinabad in Hudood Case No, 36/2004, Hudood Trial No, 25/2004 pertaining to case FIR No, 40/2004, P.S. Minchin Abad, is set aside. The conviction recorded in the same judgment against appellant Muhammad Sarfraz under Section 10(3) is converted to one under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 but the sentence of seven years' rigorous imprisonment with a fine of Rs,50,000/- is reduced to a term of four years and a fine of Rs,20,000/- and in case of non- payment of fine, he shall undergo additional sentence of three months' simple imprisonment. The benefit of Section 382-B of the Code of Criminal Procedure already granted to the appellant is being maintained. In this way, Criminal Appeal No, 14-L of 2005 filed by Muhammad Sarfraz is dismissed with the above mentioned modification. The surety of Muhammad Farooq appellant is relieved from the liability of bail bonds.