This appeal is directed against the judgment dated 09.03.2006 delivered by the learned Additional Sessions Judge, Shakargarh, District Narowal whereby appellant Nadeem Khan has been convicted under Section 457 of the Pakistan Penal Code and sentenced to two years rigorous imprisonment with fine of Rs,5,000/- or in default whereof to further undergo one month simple imprisonment. He has also been convicted under Section 354 of the Pakistan Penal Code and sentenced to two years rigorous imprisonment. Both the sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure.
2. Brief facts of the case as mentioned in the crime report Ex.PA dated 14.09.2004 moved by complainant Manzoor Khan, P.W. 1 are as follows:-- During the night between 8/9.9.2006 at about 12.00 am, he along with his family members was sleeping in the Courtyard of his house. His wife Mst. Saleema Bibi and daughter Ghazala Bibi aged 17/18 years were sleeping in the veranda of the house. At about 12.00 night, he heard an alarm raised by his daughter. He rushed to the veranda and Saw that Nadeem Khan accused was sitting on the cot of Mst. Ghazala Bibi holding her shalwar and had broken the string of her shalwar. On being challenged the accused pointed pistol towards the complainant and managed to escape.
The accused was identified by the complainant and his wife.
3. The crime report Ex.PA moved by Manzoor Khan P.W. 1 was registered as F.I.R 206/2004 on 15.09.2004 under Section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with Police Station Kot Nainan. Investigation ensued as a consequence of registration of F.I.R. After completion of investigation, the SHO submitted report under Section 173 of the Code of Criminal Procedure on 04.11.2004 requiring the accused to face trial. The learned trial Court framed charge against the accused on 28.06.2005 under Section 452 and under Section 10/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The accused persons did not plead guilty and claimed trial.
4. The prosecution in order to prove its case produced seven witnesses at the trial. The gist of evidence of the witnesses for the pros eution is as follows:
(i) PW. 1 Manzoor Khan complainant endorsed the contents of the crime report Ex.PA/1.
(ii) PW.2 Mst. Ghazala Bibi victim supported the prosecution version.
(iii) PW.3 Dilawar Hussain Head Constable had drafted formal FIR EXPA/1 on receipt of application Ex.PA.
(iv) PW.4 Muhammad Arshad SI stated that on 15.09.2004 he alongwith other police officials was present at Rattanpur Chowk on patrol duty when Muhammad Riaz Constable produced file of this case before him whereafter he proceeded to the place of occurrence. He recorded statements of Saleeman Bibi and Ghazala Bibi victim at the spot. He drafted rough site plan of the place of occurrence Ex.PB. He searched for the accused who could not be arrested.
(v) PW.5 Javed Hussain, SI/Station House Officer, stated that on 20.09.2004 the case file was handed over to him for investigation after the transfer of Muhammad Arshad ASI. He raided at the residence of Nadeem Khan accused, who after securing ad-interim pre-arrest bail from the Court joined investigation on 20.10.2004. On 27.10.2004 Nadeem Khan accused had withdrawn his bail petition from the Court and he was formally arrested in this case and sent to judicial lock up.
(vi) PW.6 Tassadaq Hussain Inspector/SHO had submitted report under Section 173 of the Code of Criminal Procedure in the Court.
(vii) PW.7 Pervaiz Ahmad Butt, DSP stated that on 25.10.2004 the investigation of this case was entrusted to him by the order of D.P.O. Narowal. He called both the parties for investigation. He found accused Nadeem Khan guilty and directed the SHO to prepare report against the accused.
5. The prosecution closed its case on 23.02.2006. Thereafter statement of accused under Section 342 of the Code of Criminal Procedure was recorded on 28.02.2006. The appellant denied the allegations levelled against him and stated in his defence as under: The complainant has grudge against me as I purchased land near his house. The complainant was himself interested for purchasing said land. The complainant pressurized me for alienating said land to him but I refused. Prior to it, the complainant filed a false application regarding theft of ornaments against me at P.S. Kot Nainan which was found to be false. The complainant has lodged this false case against me due to enmity. The alleged victim Ghazala Bibi is married at village Baisu Kothay. PWs have deposed against me due to enmity."
The appellant appeared as his own witness under Section 340(2) of the Code of Criminal Procedure and also produced two witnesses in support of his defence. The gist of the deposition of witnesses for defence is as follows:
(i) Asghar Khan, D.W.1, stated that Manzoor Khan lodged a false case for the reason that the accused purchased land near his house. The complainant was himself interested in its purchase as he was its cultivator as well. Hot words had also been exchanged between them. Manzoor complainant had, before the present crime report lodged, with Police Station Nainan, another spurious F.I.R alleging theft of ornaments against the accused which complaint was found false.
(ii) Anwar Khan appeared at the trial as D.W.2. He stated the same facts which were narrated by D.W.1. He had also appeared before the police during investigation. He did not see the accused at the place of occurrence.
(iii) Nadeem Khan, appellant appeared at the trial as his own witness under Section 340(2) of the Code of Criminal Procedure and made a statement on oath that he had purchased land which the complainant cultivated. The latter challenged the appellant. The complainant, it was alleged, tried to falsely involve the appellant for snatching ornaments from the daughter of the complainant. The complaint against the appellant was found false. The accused was not challenged on this point by the complainant in the cross-examination. Appellant also produced copy of mutation Ex.DB to establish that he had infarct purchased land measuring 39 kanals 2 marla in October 2003 i,e, a year before the present incident. From the defence evidence it was made to appear that the complainant attempted to involve the appellant twice and that too in the name of his daughter.
6. The learned trial Court at the end of the trial proceedings returned a verdict of guilt against the appellant who was convicted as mentioned above in the opening paragraph of this Judgment.
7. I have gone through the file. The evidence of the witnesses for prosecution, statement of the accused under Section 342 of the Code of Criminal Procedure as well as his statement on oath under Section 340(2) of the Code of Criminal Procedure and deposition of the witnesses for defence have been perused. The relevant portions of the judgment have been scanned.
8. The complainant, P.W. 1 moved an application Ex.PA dated 14.09.2004, addressed to the Station House Officer, Police Station Kot Nainan, which was formally registered on 15.09.2004 at 9.00. a.m.
This report pertained to an incident occurring during night between 8 and 9 September, 2004. The complainant however, appearing at the trial as P.W. 1 stated that he filed application before police on 09.09.2004. Case was not registered according to P.W. 1 hereafter he filed application Ex.PA before Deputy Superintendent of Police Narowal. This is an improvement of substantial nature. The complainant is falsified by his own conduct. The complaint Ex.PA is neither addressed to Deputy Superintendent of Police Narowal now does it contain any direction of Deputy Superintendent of Police requiring the Station House Officer to register a case. The application dated 14.092004 is addressed to the Station House Officer Police Station Kot Nainan. The complainant also. alleged that fires were shot at the time of occurrence but no person from the vicinity was attracted at the place of occurrence. Nobody even appeared before police officers to support this aspect of the case. No pistol was recovered from the appellant nor was any empty found at the spot.
9. Mst. Ghazala Bibi, P.W.2 is the alleged victim. She stated that the accused fired 5/6 shots at the time of occurrence but no one was attracted to the scene. She also stated that no person from the village joined police investigation. She denied the suggestion that a false case was instituted because accused had purchased the piece of land which her father wanted to acquire. The prosecutrix stated that she produced the broken string of shalwar to the police but no police officer endorsed having either received broken string not is there any memo to that effect available on record. The absence of broken string casts doubt on the veracity of allegation of attempt of Zina.
10. Muhammad Ashraf, Sub Inspector appeared at the trial as P.W.4. He had initiated investigation.
In response to various questions, this witness in the cross-examination stated as follows:-- "The place of occurrence is about 8/9 k.m. from Rattanpur Chowk. No private person apart from the complainant, his wife and Ghazala Bibi victim was present at the place of occurrence on my arrival. I did not call Lumbardar, Chowkidar or any respectable person from the locality. Saleeman Bibi and Ghazala Bibi told me that they were sleeping in the veranda, whereas male members of their family were sleeping in the Courtyard. I have not mentioned the respective positions of all the inmates in the site plan. I also have not shown the doors of the rooms in the site plan. I visited the house of accused to arrest him on the plantation of complainant party. The house of accused was locked. Some people of locality were present in the street. I asked them about the whereabouts of accused but I did not record their statements".
The deposition of this Investigating Officer shows that he did not have the opportunity to join the accused in the investigation. He also did not enquire into the matter on his first visit to the place of occurrence. Statement of any independent witness was not recorded. The site plan Ex.PB prepared by him on 15.09.2004 did not indicate as to what had happened to whom and by whom. No proper demarcation of rooms or verandah is visible on the site plan. There is no mention of any witness having seen the occurrence from any particular point. Even the place where the victim was supposedly sleeping on the cot has not been indicated. It was alleged by the complainant that the accused fired two pistol shots. Not only no empties were recovered from the spot but the site plan does not support the prosecution version on this aspect of the case. This site plan shows very clearly that the first information disclosed by eye witnesses to the Investigating Officer did not disclose commission of any offence by the accused.
11.Javed Hussain S.I/S.H.O appeared at the trial as P.W.5. He had undertaken investigation of the case on 20.09.2004. He formally arrested the appellant on 27.10.2004. This witness, during cross- examination, stated as follows:-- "It is correct to suggest that the accused stated before me on 20.10.2004 that at first the complainant filed an application against him leveling false allegation of theft which could not be proved by the complainant and thereafter he lodged false case of attempt to Zina against him. It is correct to suggest that the complainant did not join investigation before me on 20.10.2004 inspite of the fact that he was summoned for the said date. It is correct to suggest that 16 persons joined investigation on behalf of accused who supported his version".
This part of the statement also indicates that the accused had adopted the same plea before this witness when the investigation of this case was handed over to him after the transfer of Muhammad Ashraf, Assistant Sub Inspector.
12. Pervaiz Ahmad Butt Deputy Superintendent of Police appeared at the trial as P.W.7. He had also investigated the case partly as the matter was entrusted to him on 25.10.2004. He had found the accused "guilty on the basis of evidence of eye-witnesses. Apart from the complainant thirteen other persons joined the investigation before me on behalf of the complainant, who supported his version". But has ' a different version to offer. According to him the complainant there was no other eye-witness of the occurrence from outside the family. Then how could thirteen persons support the version of the complainant before the Deputy Superintendent of Police? Moreover the Deputy Superintendent of Police admitted that (i) he did not visit the place of occurrence, (ii) he did net associate the appellant in the investigation, (iii) that the father of appellant joined the investigation and told him that the complainant on a previous occasion had "filed an application against the accused leveling false allegation of theft of ornaments which was found to be false and for this reason the complainant lodged false case of attempt to commit Zina against him". The Deputy Superintendent of Police also conceded that it was urged before him that the complainant wanted to purchase land near his house and he compelled the accused to sell this land to him. All these things establish the consistency of the statement point of accused.
13. The learned trial Court in paragraph 21 of the impugned judgment while considering the reasons for holding the accused guilty found:--
(i) that the DWs were not present at the place of occurrence. The fact of the matter is that D.W.2 in very clear terms stated that he was present at the place of occurrence and he had not seen the accused there nor was the accused nominated by any one at that time. He had also appeared before the police and stated about the land dispute between the complainant and the appellant; (ii) the learned trial Court also observed that the accused was found guilty during investigation by a Deputy Superintendent of Police who is a responsible police officer.
14. I am afraid, if the trial Court was to accept the ipse dixit of police officers, then there is no need of any trial in a Court of law. Better say goodbye to the Qanun-e-Shahadat and the Code of Criminal Procedure. The matter will be simplified, if according to the reasoning adopted by learned trial Court, the decision announced by a gazetted police officer at the conclusion of investigation should clinch the issue. This idea never struck the British rulers otherwise the Police Act alone would have catered to the administration of justice throughout British India. It must be borne in mind that Courts, constituted under law, are called upon to assess the evidence not because a senior officer is saying this or that or he holds a certain opinion but the deposition of a witness has to be judged in the light of all the attending circumstances. The investigator, is usually an interested party. The law does not leave the decision with the investigator. The Courts have been established to determine the question of culpability of accused on the basis of legal and cogent evidence. The basic principle of administration of justice is the existence of independent tribunals. The Court is never a party in any way. Both the parties entrust the decision to the Courts which are acknowledged independent organs of the administration of justice.
15.Inspite of his fondness for the opinion of investigating officer, the learned Court did not agree with the finding of guilt recorded by senior police officer in the report dated 04.11.2004 submitted in Court under Section 173 of the Code of Criminal Procedure. The learned trial Court was not persuaded to convict the appellant for attempt to commit Zina but convicted him for committing lurking house trespass and outraging the modesty of Ghazala Bibi.
16. The learned trial Court in Paragraph No," 22 of the impugned judgment came to the following conclusion:-- "The complainant has not stated in his deposition that the accused attempted to commit zina with Ghazala Bibi. The victim has also not stated that the accused attempted. to commit zina with her; rather she has stated that the accused came to their house and sat on her cot and broke down string of her shalwar whereby she raised hue and cry and her father and mother woke up. The accused neither put off shalwar of the victim nor he removed his own shalwar and he did not take some practical steps for the act of penetration and, as such, his act falls short of attempt to commit zina, however, the accused has outraged the modesty of victim by sitting on her cot and breaking string of her shalwar".
17.The question that the learned trial Court did not consider was the allegation of breaking the string of the shaiwar. It was easy for the learned trial Court to have given a normal string of shalwar to complainant and asked him to break it with bare hands in the open Court. The entire story appears to be result of fabrication on account of consultation. The motive for falsely implicating the accused has been brought on record by the appellant.
18. The learned trial Court in para 21 of impugned judgment stated that the accused did not take the plea of land dispute before Javed Hussain Sub Inspector or Parvaiz Ahmad Deputy Superintendent of Police. Both the police officers admit that the plea was taken by accused that the present false case had been lodged because on an earlier occasion the complainant had also made an, unsuccessful attempt to entangle him in case of theft of ornaments. The accused, during his statement on oath repeated the same plea which he and his father had taken before the police at the initial stage during the investigation. The suggestion had also been brought on record that the complainant made two attempts to involve the accused in false cases. Both the accusations were subsequent to the date of purchase of land by the appellant. It is therefore clear that the accused had taken up the plea of previous enmity and a falsely instituted criminal case at the earliest possible occasion which fact although it was never denied yet the same has not been appreciated by the learned trial Court. It is enough if the accused were to establish lack of bona- fides on the part of complainant in the matter of initiating crime reports against him. Such an eventuality can create reasonable doubts in the given circumstances of the case. The learned trial Court has erroneously put the onus of proof on the accused as regards the defence plea taken by him. The prosecution has to stand on its own legs and the accused is free to take any plea. Even one plea is sufficient to entitle him to benefit of doubt if the circumstances so permit. The accused is under no legal obligation to establish a particular plea for the simple reason that the prosecution has to stand on its own legs. The prosecution is under a legal obligation to prove, beyond reasonable doubt, all the ingredients of the offence with which the Accused is charged. But once he takes up a plea then it is the obligation of the trial Court to consider it in proper perspective.
Criminal jurisprudence guides us as to the mode and manner in which the satetment of an accused has to be appreciated. It is, however, unfortunate that though the accused had taken a consistent plea before and during, the trial yet his defense has not been considered in the legal the timer.
19.A pertinent question needs resolution. What is defence plea? is different from the statement recorded under Section ,340(2) or 342 the Code Criminal Procedure? How is it dissimilar from the examination of the accused under Section 242 of the Code of Criminal Procedure when he is formally charged by the trial Court? The defence plea is not to be found in one or the other provision alone. The various provisions of the Code of Criminal Procedure enable the accused to get his defence plea or explanation recorded not only as the trial proceeds but even at the preliminary investigation stage before the trial is held. These provisions provide an opportunity to an accused to admit or deny the charge at the initial stage or give an explanation, at the conclusion of the trial, of all those incriminating oral statements or documentary evidence which have been produced by the prosecution in support of the charge. The defence of the accused or the defence plea consists of the oral statement, written material or concrete suggestions put forward by the accused to demolish or substantially diminish the effect of the allegation of the prosecution and instead establish on alternate explanation to the alleged incident. The defence plea may be a flat denial or it may involve absolutely new factual allegations. It may be even a justification or an alibi, or it may fall within the ambit of exceptions eg: self defence, insanity. In order therefore to determine as to what is the defence plea in a given trial it has to be seen what measures the accused had adopted to establish his explanation which in its own right, should be considered judiciously.
20. It is the legally acknowledged right of an accused to defend himself against the accusations, allegations and charges levelled against him by the prosecution and in so doing he may come forward with an explanation unless he opts to remain silent and see whether the prosecution has failed to establish the case against him.
21.The defence plea of the accused during the trial consists of what he has said at five successive stages of the trial Firstly: at the time of framing charge as contemplated by Section 265E, entitled PLEA, of the Code of Criminal Procedure. The law requires that the charge shall be read and explained to the accused, alleged he shall be asked whether he is guilty or has any defence to make. This the first stage when, during the trial, the Code recognizes the right of the accused to make a defence at the outset because the accused is aware that framing of the charge is the necessary corollary of the report submitted by police under Section 173 of the Code of Criminal Procedure requiring him to face trial on a particular accusation. This is the stage when evidence has not been recorded. The purpose of framing the charge is to formally inform the accused that he would be tried for a given offence. The prosecution evidence would follow if he does not plead guilty. The Second: the trend of cross-examination has to be seen wherein the accused suggests his defence to witnesses who may or may not admit the same . The Third the second stage is the time when statement of accused is recorded whether without oath or under oath as prescribed by the Code of Criminal Procedure. This is an additional opportunity that an accused gets under the law to put forward his defence, view point or explanation before the trial Court with regard to the incriminating material which has been brought on record by the prosecution. The purpose of this provision is to afford an opportunity to the accused to help and assess the Court in weighing and assessing the various possibilities before arriving at some conclusion. The Fourth: the third stage is the additional opportunity afforded to the accused to produce defence evidence, oral or documentary, in support of his contentions raised at the two earlier stages; and Fifth and the final stage of making his plea manifest is the stage when he argues his case at the conclusion of the trial. If, the accused, succeeds in putting forward his plea in all these stages, he can say it confidently that his defence has been very clearly made at every possible step during the trial and such a plea merits consideration by the trial Court. Such a plea cannot be ignored by the trial Court. It has to be considered on its own worth keeping in view, of course, the attending circumstances of the case. However, it does not mean that if a certain plea is taken up by the accused at all the stages it has to be accepted as the gospel truth.
22. In the instant case, the accused at all the six stages i,e, the five stages during the trial and the initial stage of police investigation before the trial had taken up the plea of false involvement by complainant even on previous occasion when, after he had purchased land near the house of complainant, the latter had initiated a false case of theft. This is incidentally, one of those rare cases where a consistent plea is visible from beginning to the end. The appellant, under the circumstances, has succeeded in establishing his defence which has cast serious doubts on the trustfulness of the prosecution story.
23. In view of what has been stated above it is not safe to maintain conviction and sentence under Section 457 and Section 354 of the Pakistan Penal Code recorded by the learned trial Court.
Consequently the impugned judgment dated 09.03.2006 delivered by learned Additional Sessions Judge, Shakargarh, District Narowal in Hudood Case No, 15/05, Hudood Trial No, 09/05 emanating from Crime Report No, 206/2004 dated 15.09.2004 Police Station Kot Nainan is hereby set aside.
Criminal Appeal No, 56/L of 2006 succeeds. The accused is set at liberty. The appellant is on bail.
His bail bonds are discharged.