1. This judgment shall dispose of 7 connected matters, namely, Criminal Appeals Nos, 3/1970, 6/1970, 16/1970, 19/1970, 20/1970 and 23/1970 filed by appellants Aftab Anwar Jaleel, Humayoon Ashraf, Altaf Ahmed, Akhtar Ali Bawla, Mst. Sohni Sakina and Mujibur Rehman respectively as well as Criminal Misc. Application No, 109/1970 filed by Mst. Rahim-un-nisa Aziz, a Defence Witness in the case for expunction of certain remarks against her. All these matters arise out of the judgment dated 30-12- 1969 of Mr. Muhammad Amir Ansari, Additional City Magistrate, Court No, 28, Karachi; whereby the learned Magistrate acquitted 8 out of 14 accused tried by `him on various charges relating to kidnapping and subsequent 'wrongful confinement as well as committing rape upon one Mst.
2. Saeeda Karim, but convicted and sentenced the appellants as -follows:
1. Aftab Anwar Jaleel.- (a)Under section 376, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000.00 or in default further 2 years' R.
3. I.
4. (b)Under section 366, P. P. C. to 5 years' R. I. and a fine of Rs, 5,000.00 or in default further 1I years' R.
5. I.
6. (c)Under section 366-A, P. P. C. to 5 years' R. I. and a fine of Rs, 4,000.00 or in default 1 year R. I.
2. Hamayun Ashraf.-- (a)Under section 368, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I.
7. (b)Under section 376/109, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I.
3. Altaf Ahmed.--
(a) Under section 366/109, P. P. C. to 2 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I.
4. Akhtar Ali Bawla.--
(a) Under section 366, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I.
5. Mst. Sohni Sakina.-- (a)Under section 366-A, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000 or in default one year R. 1.
8. (b)Under section 376/109, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000 or in default one year R. I.
9. (c)Under section 368, P. P. C. to 3 years' R. I. and a fine of Rs, 1,000 or in default 6 months' R. I.
6. Mujibur Rehman.-
(a) Under section 376/114, P. P. C. to 7 years' R. I. and a fine of Rs, 5,000 or in default 2 years' R. I.
2. The prosecution case briefly stated was as follows:- Mst. Saeeda Karim P. W. 2 was a 18 years old College student and resided with her father P. W. 1 Hifazat Karim. Appellant Mujibur Rehman, who is a pilot was their neighbour. It is alleged that women of bad repute were often found visiting his house and this fact came to the knowledge of the residents of the locality, who made an application against his conduct to East Pakistan Association. Appellant Mujibur Rehman met P. W. Hifazat Karim to seek his assistance in the matter but the latter refused to do so on which he was threatened. It is alleged that In order to take revenge from P. W. Hifazat Karim, Mujibur Rehman sought the assistance of his friends, namely, appellants Akhtar Ali, Altaf Ahmed and others and they started teasing Mst. Saeeda Karim who complained to her father about it. Two of the class-mates of the girl, namely, Nighat Gul and Ferhat Najma, who were both tried in this case alongwith the appellants but were acquitted, were said to be friendly with the appellants and they were persistently asking Mst. Saeeda Karim as well to develop friendship with them. This, however, was resisted by Mst. Saeeda Karim. In November 1965, Mst. Saeeda Karim was called from her class to the Principal's room where she found appellant Mujibur Rehman and Altaf Ahmed having tea with the Vice-Principal of the College, namely, Mst.
10. Rahim-un-Nisa Aziz petitioner in Criminal Misc. Appeal No, 109/1970. Mrs. Aziz wanted the girl to get friendly with the appellants but the latter refused. Thereafter, efforts were made through Mst.
11. Nighat Gul to bring the girl round. Not being successful in wooing Mst. Saeeda Karim the appellants used coercive methods to achieve their object in this connection. It is alleged that messages were sent to Mst. Saeeda Karim through Nighat Gul that unless she came round she would be scandalized at the College. On 14-3-1966 at about 7-40 a.m. Mst. Saeeda Karim was waiting as usual at Gru Mandir Bus-stop for getting into a bus for the College. Appellants Aftab Anwar Jaleel and Akhtar Ali appeared there in a car and the latter asked her to meet Aftab, but the girl refused and in confusion she started to return home. She had, however, hardly reached Bus-stop No, 1 of Jehangir Road when the two appellants again accosted her from the opposite direction. Appellant Aftab Anwer brought the car to a halt close to her, pretended to be her well-wisher and advised her to receive a piece of paper from Nighat Gul and read its contents. The girl got confused and asked for that piece of paper from Aftab, who asked her to get into the car. The girl obliged and took her seat in the car. Appellant Aftab, however, did not deliver the promised piece of paper but started the car. The girl raised alarm as a result of which she was threatened that in the event of doing so she would come to grief. This frightened her. Appellant Aftab thereafter took her to the house of his friend appellant Hymayun Ashraf situated at Shaheed-e-Millat Road where appellant Mujibur Rehman also reached shortly thereafter. Appellant Aftab Anwar took her forcibly to another room and committed rape upon her. During this time appellant Mujibur Rehman who was present there took several photographs of the girl and Aftab Anwar in this position. Appellant Aftab Anwar thereafter rang up Nighat Gul and Ferhat Najma as well as appellant Aftab Ahmed, who all came there and congratulated Aftab on his achievement. Mst. Saeeda Karim was threatened that as her photographs in that naked condition were now available of the appellants she had to obey their dictates. Being thus rendered helpless Saeeda Karim was taken to Malir where appellant Aftab again committed rape upon her. At 9-30 p.m. the same evening appellant Aftab took her in a car to the Grand Hotel where Nighat Gul, appellant Humayun Ashraf and two absconders, namely, Raj and Fozia were also present. The entire party thereafter came to house No, 16-H, Federal Area where Mst. Saeeda Karim was handed over to Raj and Fozia and confined in the said house for about 10 days. During this time Fozia brought newspapers which had published the news about the abduction of Saeeda Karim and showing the same to Raj asked her to arrange for the removal of the girl to another place as the police was looking for her. At this stage appellant Mst. Sohni Sakina came to the place of Raj and took the girl to her house in Paposhnagar. There she was used as a prostitute, and through Mst. Sohni several persons committed rape upon her. It is alleged that the girl implored everyone visiting her in this manner to provide help to her but her entreaties fell on deaf ears. Instead, she was threatened and beaten by Mst. Sohni Sakina as the latter felt that she was spoiling her business. Mst. Sohni Sakina also told the girl that the police was under her influence and that if she misbehaved she would be killed. After about a month's stay at Mst. Sohni Sakina's place, Saeeda Karim was taken in a car to Hyderabad in the company of Raj, Fozia, Mir Zaman and Shahenshah Hussain. The acquitted accused Chooto alias Ghulamali had made arrangements for them at Hyderabad. The party stayed at Hyderabad for 3 days where, it is alleged, this Chooto also raped Mst. Saeeda Karim and as compensation paid Rs, 500.00 to Mst.
12. Sohni Sakina. The party thereafter returned to Karachi. About 3-4 days thereafter S. H. 0., Nazimabad raided the house of Mst. Sohni Sakina, and arrested her alongwith her husband and Saeeda Karim, presumably on charges of prostitution and of running a brothel but later all of them were bailed out. It is alleged that after the initial act of abduction and rape on the 14th of March 1966, appellant Aftab Anwar Jaleel kept in touch with Saeeda Karim as he was visiting Mst. Sohni off and on and even tried to arrange another house for them through an Estate Broker Khalil P. W. 6.
13. Mst. Sohni thereafter shifted to a house in Nazimabad where also the same activities continued until the girl was recovered on 23rd of May 1966. She was taken to Jamshed Quarters Police Station and from there handed over to Mirza Islam Baig, S. I. P. Crime Branch, Karachi. As the report regarding Saeeda Karim's kidnapping had already been lodged with the Jamshed Quarters Police Station on 21-3-1966 by her father P. W. Hifazat Karim, the police started the investigation after her recovery and they arrested the appellants on 8-6-1966 onwards. Appellant Aftab Anwar Jaleel was already on bail which was granted to him in anticipation of his arrest. As some of the accused wanted to the crime were absconding, they were shown as such while the appellants and their co- accused who were acquitted were challaned by P. W. 14, Shabirul Hassan, Police Inspector, Special Branch, Karachi on 24-9-1966.
3. Mst. Saeeda Karim was examined by Dr. Nuzhat Ara Aziz, C. M. 0., Civil Hospital, Karachi on 28-6- 1966. The doctor found that her secondary sexual characters were well developed. There was, however, no external mark of injury on her body or on her perivate part. On local examination her hymen was found torn at 6 o'clock position and was old and healed. Her vegina admitted two fingers easily and was spacious. In the opinion of the doctor the girl was used to sexual intercourse.
4. The defence of the appellants was one of denial.
14. Appellant Aftab Anwar Jaleel denied each and every allegation against him. He stated that long before 14th March 1966, he had "romantic attachment" with Saeeda Karim; and the courtship with her started in the house of D. W. Wahid Shibli, who is son-in-law of Saeeda Karim's uncle Mohammad Akbar. The appellant stated that Saeeda Karim even proposed that he should marry her but this was declined by him because by that time he had discovered that she was a girl of easy virtues. On this refusal Saeeda Karim threatened him that as her heart was broken, she would either commit suicide or would make his life miserable by involving the appellant in a false case.
15. The appellant stated that about 4 months before 14-3-1966 his romance with Saeeda Karim came to an end and thereafter he had not contacted her at all. The appellant stated that the case against him was the outcome of revenge and as a result of this false case his career as a student as well as future citizen of the State had been completely ruined.
16. Appellant Humayoon Ashraf stated that he was asked by P. W. Hifazat Karim as well as by P. I.
17. Shabirul Hasan that he should become approver in this case against other accused and on his refusal to do so he was falsely involved in this case. He pleaded alibi by stating that on the alleged date of offence he was playing an Inter-Collegiate Match for Urdu College against S. M. College from 8-30 a.m. onwards.
18. Appellant Altaf Ahmad's defence was also one of denial. He stated that P. W. Hifazat Karim had contacted and asked him to depose against appellant Mujibur Rehman and on the appellant's refusal to comply with this request he had been falsely involved.
19. Appellant Akhtar Bawala, however, stated that he could not say as to why Saeeda Karim had deposed against him, he asserted that he had been made an scapegoat by the Police because he had refused to be tutored as a witness against appellant Mujibur Rehman. The appellant stated that P. Ws. Yasin and Usman were stock witnesses of the Police and had deposed against him at their instance.
20. The defence of appellant Sohni Sakina was that on 13-3-1966 she was confined in Yahya Clinic, Ferere Road, Karachi as she was operated upon on account of miscarriage; and she had to remain for over 7 days in the clinic after which she shifted to the upper storey of a house at Paposhnagar belonging to one Dr. Mukhtar Ahmad which was taken on rent by her husband, who had sub-let one room thereof to Mst. Saeeda Karim, Raj and Fozia. These three girls were accordingly, living independently. After the appellant and her husband left this house and shifted to house No, 186/A in North Nazimabad, Mst. Saeeda Karim who had given the name of her father as one Abid of Lahore told them that she could not go to her father's house on account of her step-mother and as she was trying to get some job at Karachi, she should be allowed to stay with them. Taking pity on her she was allowed to do so. The appellant, however, denied that she took Saeeda Karim to Hyderabad or that she asked her to lead a life of sin. The appeallant stated that she had been involved in this case as, after the raid on her premises she shifted to another house, where she did not take Mst. Saeeda Karim with herself. The girl felt offended also because the appellant had "quarrelled with her for having fallen on evil ways", and she suspected the appellant of revealing her misdeeds to her parents. According to the appellant, it was on this account that Mst. Saeeda Karim had implicated her in this case.
21. Appellant Mujibur Rehman admitted that he was a neighbour of P. W. Hifazat Karim but denied that there was any complaint against his conduct or that he had any reason to molest Mst. Saeeda Karim. He also denied that he had ever gone to Women's College or met Mst. Rahim-un-Nisa Aziz.
22. In other words, this appellant denied each and every allegation against him and pleaded alibi by stating that on the alleged day of kidnapping he was at Pakistan Air Force Hospital, Mauripur from 8-00 a. m. to 3 p. m. in connection with his physical fitness examination for Commercial Pilot's Licence and Radio Flight Licence. This test, according to him was being conducted by a Medical Board consisting of two officers each from Navy and Air Force. The appellant alleged that P. W.
23. Hifazat Karim and his family were inimical towards him because they wanted him to marry Mst.
24. Saeeda Karim. The girl, according to the appellant used to throw letters addressed to him through the partition wall in between the two quarters, and a number of such letters were delivered by him to Hifazat Karim to advise Mst. Saeeda Karim to behave properly. The appellant stated that he refused to marry Saeeda Karim as she was a girl of easy virtues and had on that account been expelled from New Girls School. Her father was, however, so keen to have him as his son-in-law that he persuaded one Dr. M. M. Ahmed, father-in-law of the appellant to get divorce from the appellant for his daughter Mst. Jamila. The appellant stated that as he used to remain absent from his quarter, in his absence Mst. Saeeda Karim and her sister Farida used to call their girl friends as well as boy friends without his consent and when he came to know about it he complained to Hifazat Karim but the latter did not take any action. Mst. Saeeda Karim was frequently taken by different people and she returned late in night in different cars which the appellant used to see in front of his quarter. In other words, the contention of the appellant was that the girl was virtually a prostitute and he had been falsely involved by her as he had refused to marry her on that account.
5. As many as 17 witnesses were examined in defence by the various accused persons who were put on trial in this case. It is not, however, necessary to deal with their evidence at this stage as I propose to refer only to the material passages thereof at appropriate stages while discussing the evidence against each appellant separately.
6. The most important evidence in the case on which the conviction of the appellants is based is the testimony of Mst. Saeeda Karim herself who claims to be the victim of this outrage. Her evidence is substantially in accordance with the prosecution case as stated in paragraph 2 above and, therefore, need not be repeated.
7. As pointed out by their Lordships of the Supreme Court in the case of Muhammad Abdul Khaleque and others v. The State in a case of this kind where the evidence and condition of the prosecutrix form the only evidence which the Court has to go upon it is necessary in order to sustain a conviction, that it should at least be found that the woman's statement is in accordance with all the probabilities and has all the appearances of having been honestly made. It has accordingly to be seen if this test is satisfied in respect of the testimony of Saeeda Karim which is admittedly the only evidence against some of the appellants and the main plank of the prosecution case against the remaining as well.
8. It is an admitted position that till 1962 Saeeda Karim was a student in New Town Secondary School under a different name of Aisha Karim. In July 1962, however, she joined Government Girls Secondary School on Clayton Road and her name was for the first time shown as Saeeda Karim.
25. The explanation given by P. W. Hifazat Karim for this change (which appears on page 108 of the paper book) is hardly convincing, and there appears force in the contention of the defence that the school was changed not because of the girl's illness but even her name was changed because she would not have been acceptable in the new school. For the same purpose it appears that P. W.
26. Hifazat Karim did net obtain any School Leaving Certificate from the New Town School; nor did he mention in the Admission Form of Clayton Road School (Exh. 11/A) about her studies in the former school as clearly admitted by him. It is significant that against column 8 of the Application Form relating to "last recognized College/School or class attended" the name of the New Town School had been concealed and it has been shown that the girl was studying at home. Surely, there was some purpose behind it and it is not difficult to see as to what it could have been.
9. Mst. Saeeda Karim left this College when she joined the Karachi College for Women on 7th September 1965. Her subjects were English, Urdu Compulsory, Urdu Advanced, Economics and Civics. There also she was very irregular in attendance and by no means devoted to her studies.
27. The evidence of Ayub Ahmed D.W. an Accounts Clerk in the College who appeared as a witness under a letter of authority, Exh. D-6/A issued to him by the Principal shows that the girl attended Economics Classes for only 4 periods in November and one period in December. In the register for the months of September and October her name did not figure at all because she had not attended any period of Economics. In December, she attended only one lecture out of 13 while in November her attendance related to four periods out of 20. The position in other subjects was no better. In Urdu Advanced she attended 4 lectures during November and December. In September her attendance was nil while in October she attended only one lecture. In the English Classes she attended 8 lectures out of 22 in October, 3 out of 21 in November and 2 out of 20 in December. In Civics her attendance was nil because she did not attend a single period. All this is based on the documentary evidence of the Attendance Register Exh. D-6/C produced by this witness. This register is duly signed by the Principal of the College and the correctness thereof is not open to1 question, as I shall point out while considering Miscellaneous Application No, 109/1970, on 24-12- 1965, the name of Saeeda Karim was struck off from the rolls for irregular attendance and non- payment of tuition fees. It was, however, re-entered in January next year, only to be removed again in March 1966. Intimation to this effect was conveyed to her father on 15th March 1966 vide letter Exh. D-6/D: but he denied to have received the same.
28. 10.With this background let me consider as to whether the story of the girl as to what happened on 14-3-1966 is natural or probable. It is stated by Saeedl. Karim several times in her evidence that she used to observe pardah and wear burqa while going to College. To quote her own words : "I used to observe pardah and wear burqa while going to College. I did not use to unveil my face.
29. Before 14th March 1966 accused Aftab had never spoken to me nor I spoke to him."
30. A little later in her deposition she stated as follows:-- "At first instance when accused Aftab conversed with me I was under veil. I had not unveiled myself at any other juncture.
31. It is correct to suggest that before 14th March 1966 I did not unveil my face."
32. In view of this consistent stand taken by Saeeda Karim it is difficult to see as to how Aftab Anwar Jaleel could spot her at Gru Mandir Bus Stop when her face was admittedly covered with burqa and he had never seen her before. When confronted with this situation, Mr. Manzoor Hussain, the learned counsel for the State had to admit that the girl had "spoken a lie in this respect;" and that the appellants must have seen her on several occasions before this incident. I am also not impressed by the girl's assertion that she was induced to sit in the car of Aftab Anwar Jaleel as she wanted to see what was contained in the roll of paper offered to her if she was so keen about it she could have seen the same when it was offered to her by her friend Neghat Gul the previous evening. Having, however, refused to see it then, there was hardly any need for her to walk in the car of Aftab Anwar Jaleel specially when she was, on her own showing, fully aware of the designs of the appellants.
33. 11.It is admitted by the girl that while she was being taken to Malir she noticed a number of passerby but raised no alarm on the road. Nor did she protest or raise any alarm at the time of getting down from the car. This is, however, not all. On 8-5-1966 the girl had her first contact with the police when she was arrested from the house of appellant Sohni Sakina on a charge of prostitution. Although she claims to have given out her entire story to S. I. P. Moinuddin and A. S. I.
34. P. Abdul Hamid, this assertion on her part is obviously false. Neither of these two police officers has been examined although S. I. P. Moinuddin was shown as a witness at Serial No, 8 in the charge- sheet. It is on the other hand an admitted position that Saeeda Karim gave her name as Samina daughter of Abid. She was produced before the Court in the prostitution case twice but did not allege rape or abduction before the Magistrate. On the other hand, she contacted at least two Advocates, namely Messsrs Abdul Karim Lakhan and Hassan A. Shaikh, for her defence in the prostitution case. She signed her vakalatnama (Exh. D/A) in favour of Mr. Lakhan as Samina Abdi and also filed her bail bond Exh. D/AA in the same name. She was obviously keen to suppress her identity all the time as she was admittedly leading the life of a prostitute. It is on the testimony of such a girl that the conviction of all the appellants has been based.
35. 12.As pointed out by Beaumont, C. J. in the Full Bench case of Emperor v. Mahadeo Tatya :-- "It is a very well-settled rule of practice in India following the English rule, that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the Courts insist on corroboration of the complainant's story. The nature of the corroboration must necessarily depend on the facts of each particular case."
36. 13.In Muhammad Abdul Khaleque and others v. The State which has already been referred to above their Lordships of the Supreme Court emphasised the principle that in a case relating to a2 charge of rape where evidence and condition of the prosecutrix form the only evidence which the Court has to go upon, it is necessary in order to sustain a conviction, that it should at least be found that the woman's statement is in accordance with all the probabilities and has all the appearances of having been honestly made. In the words of Cornelius, C. J.: "In a case of this kind, it is very necessary that before finding the accused persons guilty of rape, i,e, of sexual intercourse without the consent of the woman, the Court should be satisfied that the woman's story is corroborated either by circumstantial evidence connecting the accused persons with the crime, or at least by some circumstances connected with the woman which would serve by itself to show that her story of forcible inter-course is true. The mere fact of the story having been told to a number of relations shortly after the occurrence is insufficient corroboration. Equally, the fact of the story having been communicated by the relations to other neighbours and later to the authorities is by no means sufficient corroboration."
37. The same principles were reiterated in a later authority of the Supreme Court reported as Mumtaz Ahmad Khan v. The State .
38. 14.The authorities cited above clearly lay down that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe, to dispense with it, must be present to the mind of the Judge. The main evidence in all cases of rape is that of the victim herself and except in cases where the victim is a minor, the consent of the prosecutrix is often a fact in issue. That the character of the girl is very material in such cases has been clearly recognized under section 155 of the Evidence Act itself; clause (4) whereof provides that the evidence as to immoral character of the prosecutrix is receivable in evidence. This is based on the principle that the fact that the prosecutrix is of generally immoral character raises an inference of concent.
39. 15.As pointed out by Beaumont, C. J. in the Full Bench case of Emperor v. Mahadeo Tatya referred to above, a charge of rape is a very easy charge to make and a very difficult one to refute. It is, therefore, all the more necessary that while dealing with the evidence of a prosecutrix of the type of Mst. Saeeda Karim, who was admittedly leading the life of a prostitute, it must be remembered that by trying to pretend as an innocent victim of an outrage she was also absolving herself of all the disgrace which she had brought not only to herself but to her, entire family. If the case against the accused were to succeed Saeeda Karim would receive sympathy rather than condemnation from the society; and for that reason she would have no hesitation in deposing falsely against the accused persons. It is therefore, absolutely necessary that in cases like the present one, the Court must insist on some independent and material corroboration such as might serve to remove the inherent doubt by which the evidence of such a prosecutrix is necessarily affected.
40. 16.As I have already pointed out above, the story of Saeeda Karim is far from convincing. It is no doubt correct that her father P. W. Hifazat Karim has repeated the story as having been narrated to him but this by itself would not improve the prosecution case; as tainted evidence does not lose its taint by mere repetition. This has also been pointed out by their Lordships of the Supreme Court in the case of Muhammad Abdul Khaleque and others v. The State referred to above.
41. 17.Apart from repeating the story of the girl, P. W. Hifazat Karim had deposed to the conduct of appellant Mujibur Rehman after the incident. It is alleged by the witness that this appellant used to contact him frequently and assured him that he was himself making efforts to trace out the girl but even his friends did not know anything about her whereabouts. This part of the witness's evidence is, however, an afterthought as it is conspicuous by its absence in his police statement. These omissions were duly proved through the Investigating Officer P. W. 13 Mirza Islam Beg.
42. 18.At this stage it will be convenient to point out that even the alleged part played by appellant Mujibur Rehman on 14-3-1966 was not mentioned in the police statement of P. W. Hifazat Karim or even in the similar statement of Saeeda Karim herself. Inspector Fazalur Rehman who is said to have recorded her statement on 23-5-1966 has not been examined. The said omission was,3 however, proved through P. W. Mirza Islam Beg, who recorded her statement on 25-5-1965. This witness admitted as follows:- "Saeeda Karim had not stated to me that accused Mujibur Rehman had tried to give her lift in his car on several past occasions. Prosecutrix Saeeda had not stated to me that accused Mujibur Rehman had given her kick on her back at house of Humayun Ashraf and slapped on her face that she fell down on the ground in dizzy manner. Similarly it was not stated to me by Hifazat Karim that accused Mujibur Rehman, Mr. Ansari, Comptroller of State Guest House had visited P. S. Nazimabad, and went away with S. I. P. Moinuddin. Saeeda Karim had not stated to me that S. I. P. Ghulam Rabbani had obtained her signature on blank paper by force."
43. 19.Mst. Saeeda Karim's statement under section 164, Cr. P. C. was also recorded by a First Class \1agistrate on 5-7-1966, but she admits that she had not mentioned therein regarding the part played by Mujibur Rehman on 14-3-1966. Similarly, the note of the trial Magistrate shows that she had not said anything therein regarding this appellant following her in his car or kicking or slapping her. This would clearly show that the case against Mvjibur Rehman as set up in Court had been built up at a much later stage because of the suspicion mentioned in the First Information Report (Exh. P-1) itself.
44. 20.Against appellants Aftab Anwar Jaleel, Mujibur Rehman and Akhtar Ali Bawala there is also evidence of Mohammad Yasin (P. W. 3) and Mohammad Usman (P. W. 4), who both stated that they had seen Saeeda Karim going in the car of Aftab Anwar Jaleel,accompanied by Akhtar Ali Bawala and followed by another car of Mujibur Rehman. Both these witnesses have, however, admitted that Saeeda Karim observed pardah from them and that she always came out from the house "clad in burga with her face veiled". Besides Mohammad Yasin could not identify Aftab Anwar Jaleel at all in Court in spite of repeated efforts; while Mohammad Usman also could not say whether appellant Akhtar Ali Bawala was the same person, whom he had seen in the car.
45. According to their evidence Mst. Saeeda Karim herself had veiled her face in burp. I am, therefore, not impressed by the evidence of these witnesses; and do not have the least hesitation in rejecting the same. One car following another is not such an uncommon phenomenon on the busy streets of Karachi that this fact should have attracted attention of these witnesses.
46. 21.The prosecution has also examined Mufidul Haq (P. W. 5) on the question of motive. He stated that he was a Member of the East Pakistan Association, Karachi and in that position he had received a complaint alleging that appellant Mujibur Rehman "was not a good man and that he peeps to women folks". In connection with this enquiry he visited P. W. Hifazat Karim, who told him that the appellant was "making himself nuisance to the locality". This was, however, in the year 1962.
47. It is not understandable as to why Mujibur Rehman had to wait for 4 long years before he decided to retaliate in this manner in the year 1966. Appellant Mujibur Rehman is not alleged to have raped the girl or misbehaved with her in any manner except giving her a kick and slapping her. Although it would appear that the allegations against him were that the whole incident of the alleged kidnapping and rape was a part of a conspiracy on his part to take revenge from P. W. Hifazat Karim and his family; it is significant to note that no charge of conspiracy was framed in this case.
48. 22.The most important evidence, however, which conclusively establishes that Mujibur Rehman could not have followed the girl on 14-3-1966 early in the morning or played any part in the alleged kidnapping is furnished by D. W. 12, namely, Wing Commander Bashir Ahmed of the Pakistan Air Force. He stated that appellant Mujibur Rehman, who was a Commercial Pilot appeared before him on 14-3-1966 in connection with his medical examination, as the witness was incharge of the Medical Board. He produced the form Exh. D-12, which was duly filed in by this appellant in his own handwriting. The appellant was brought to him by D. W. 11 Mohammad Yousuf between 8-00 and 8-30 a. m. and he directed him to report for X-Ray and E. C. G. examination. The appellant again returned between 10-00 or 10-30 a. m. alongwith the results of the said examination. He was, thereafter, examined physically by the witness for half an hour and he was directed to go for eye, ear, nose and throat examination, the results whereof were brought by the appellant himself at 1- 30 p. m. in a sealed cover and handed over to the witness. The appellant was, thereafter presented before the President of the Board Yousuf Khan at 2-30 p. m. on the same day and a certificate was issued to him at about 4-00 p. m. The witness stated that whatever statement he had given before the Court was based on the record of the medical examination. Although no specific timings were mentioned therein the witness had given these timings from his diary as he had to go to the operation theatre by about 7-30 and start by 8 o'clock. This witness was fully corroborated by Muhammad Yousuf Khan D. W. 11, according to whose evidence appellant Mujibur Rehman reported to him at 8-00 o'clock in the morning when he was asked to fill the form. Thereafter, D. W.
49. Muhammad Yousuf took him to Bashir Ahmed D. W. 12 at about 9 o'clock and the latter directed him to take him for X-Ray and E. C. G. examinations. The witness also supported D. W. Bashir Ahmed and stated that the appellant was sent for ear, nose and throat examination at 10.30 a. m. from where he returned at 1-30 p. m. This witness also stated on oath that the appellant remained with the Board of Doctors on 14-3-1965 from 8-00 a. m. to 3-00 p. m. in connection with the various examinations mentioned above, This testimony is further strengthened by the evidence of Farmanuddin D. W. 4 and the documentary evidence in the shape of Exh. 14/C, 14/D and 14/E. Exh.
50. 14/C is a certificate issued to the appellant and is to the effect that he remained in the Pakistan Air Force Mauripur Hospital on 14th March 1966 between 8-00 hours to 15-00 hours. This is signed by Bashir Ahmed. All these witnesses are completely disinterested and respectable witnesses and they have no reasons to give false evidence. Nor can it be alleged that this evidence was fabricated subsequently, for the simple reason that the Police was admittedly in its possession a few days after the arrest of Mst. Saeeda Karim and in fact Exh. 14/D was produced by the investigating officer. It was admitted by P. I. Shabirul Hassan P. W. 14 that when Mirza Islam Beg handed over the investigation to him he gave him certain papers concerning this case on 20th March 1966 and this included amongst others the Certificate Exh. 14/C.
51. The learned Magistrate dealt with this plea of alibi in the following words :- "The only material before me is the statement of Saeeda Karim and her father vis-a-vis the statement of Rehman and his defence witnesses. Rehman has taken the plea that he was being medically checked up for the day long and has produced Captain Farman Ali. Flight Seargent Muhammad Yousuf and Wing Commander Bashir Ahmed who have supported his plea of being in the P. A. F. Hospital Mauripur from 8-00 a. m. to 3-30 p. m. I would have gladly accepted this defence in view of the status of these defence witnesses but what prevents me from accepting the defence in two is that the record produced before me does not bear the time of his appearance in the hospital. The defence witnesses have given this statement on the memory after 3 years but when put to the test of their memory by the A. P. P. they refused to stand the test.
52. The fact cannot be ignored that every offender tries to prepare an alibi and makes his best efforts to wipe out the traces which may connect him with the offence. An educated criminal becomes a terror for the society and makes the truth stranger than fiction. The accused Rehman has produced the letter by which his annual test was requested but has not been able to produce the letter by which he was required to attend the Medical Board to prove what time was fixed for his appearance. The prosecutrix has alleged that the accused remained in the house of Humayoon till the rape had been committed and the photographs taken, which hardly took an hour or two. It was not very difficult for the accused to run to Mauripur after the offence and get his presence marked at the P. A. F. Hospital soon after the occurrence."
53. It would appear that the main reason given by the learned Magistrate for discarding this plea of alibi was none other than the fact that he considered everything stated by Mst. Saeed Karim and her father to be nothing short of gospel truth. It is also difficult to see as to why the appellant would run from Mauripur . Hospital and undertake such a difficult task of kidnapping the girl on the day when he had to appear for his fitness test before the Medical Board at Mauripur and to remain there for various tests throughout the day. The grievance if any against the girl or his father was 4 years old and he could have surely waited another day before retaliating in this manner. It is extremely hard to believe that the appellant could leave the Pakistan Air Force Hospital while his medical test was going on. The reasons given by the learned trial Magistrate, therefore, for discarding this plea of alibi are hardly cogent or convincing and I have not the slightest hesitation in accepting this plea of the appellant supported as it is by good evidence.
23. Great stress was led by Mr. Zia G. Shaikh on the alibi of appellant Humayoon Ashraf as well. In this connection the learned counsel relied on the evidence of Jacob Harris D. W. 17, who stated that on 14-3.1966 there was a final cricket match between Urdu College and S. M. College for which he was one of the Umpires. He produced a list of participants, namely, Exh. D-17/A, which showed that appellant Humayoon Ashraf was one of the players who played on behalf of Urdu College. A photostat copy of the score board, Exh. 17-B was also produced to show that Humayoon Ashraf was present throughout the day and had bowled 31 overs. It is significant to note that this witness was not cross-examined at all by the prosecution and consequently his evidence has gone totally unchallenged. I also cannot conceive of any reason as to why the evidence of this respectable witness should be discarded. The learned Magistrate himself could not possibly reject the testimony of this witness as can be seen from the following passage from his judgment :-- "It may be true but the accused was seen in the house where Saeeda was first lodged at 8-30 a. m. and then at 3-30 p. m. In between this period he could go to play the Match. He has given no reason why Saeeda Karim has involved him in such a serious offence."
54. This reasoning again would show that the learned Magistrate was prepared to disbelieve every other witness howsoever reliable he may be, simply because his evidence was against the word of Mst. Saeeda Karim. It is difficult to see as to how a player playing a cricket match for his side and bowling as many as 31 overs would leave the field in between without the consent of his Captain under such circumstances and participate in an offence of this nature. Moreover, the evidence of Mst. Saeeda Karim herself shows that he came sometime after rape was committed upon her ; that he was all along present with Altai', Rehman, Neghat Gul and Farhat Najma and in fact at 3-30 p.m. when they left Aftab Anwar Jaleel took her and Humayoon in a car when he was dropped at the petrol pump on their way to Malir. Later in her deposition she stated as follows :-- " Accused Aftab and Humayoon were present in my company for two or three hours after the alleged incident."
55. It was, therefore, not correct as observed by the learned Magistrate that he could leave the cricket match and yet participate in this incident.
56. 24.It was pointed out by their Lordships of the Supreme Court in Usman Khan and others v. The State that even if the defence evidence in support of a plea of alibi is not strong, benefit of doubt has to be given to the accused if it is not challenged. In this case the evidence of D. W. Jacob Haris who, as I have already stated was not cross-examined at all, conclusively establishes appellant Humayoon Ashraf's alibi and consequently leaves no room for doubt that the part assigned to him was false. I have already discussed the evidence of alibi produced by appellant Mujibur Rehman which also clearly falsifies the girl. Moreover, one of the acquitted accused namely, Farhat Najma likewise produced evidence of alibi which seems to have been accepted by the trial Magistrate himself who acquitted her.
57. 25.The circumstance that Mst. Saeeda Karim had implicated these three persons who had successfully established that they could not have participated in the occurrence, is bound to affect the evidentiary value of her testimony as against the remaining appellants as well. In Ghulam Muhammad and others v. The Crown it was pointed out that generally "when it is proved that4 5 some innocent persons have been dishonestly implicated in a crime, the Court is entitled, and it is safer, to acquit even those who have not been able to prove that they were falsely implicated." This principle has been consistently followed by this Court and reference in this connection may be made to the cases reported as Bacho and others v. The State and Khurshid Ahmad v. Kabool Ahmad and others .
58. 26.It is conceded by Mr. Manzoor Hussain, the learned counsel for the State that apart from the testimony of Mst. Saeeda Karim herself there is no evidence at all against appellant Altaf Ahmad.
59. As already discussed above, I have not been impressed by the evidence of Mst. Saeeda Karim and, therefore, I am not prepared to rely on her un-corroborated word against this appellant as well. He is, therefore, entitled to the benefit of doubt.
60. 27.As against appellant Aftab Anwar Jaleel in addition to the evidence discussed above there is also the testimony of P. W. 6 Khalil, who stated that appellant Aftab and Mst. Sohni Sakina used to visit his office in connection with getting a house on rent as he was an Estate Agent. The witness recalled that on one evening he went to the house of Mst. Sohni Sakina and there found appellant Aftab along-with several females, that he asked for water on which appellant Sohni called out one Samina and asked her to give him water. The witness identified Mst. Saeeda Karim to be that girl and who was called as Samina. This evidence, however, on the contrary shows that Saeeda Karim was staying in the house of Mst. Sohni Sakina willingly and without any compulsion. To that extent this witness even supports the defence of appellant Sohni Sakina.
61. 28.There is also evidence that from the house of appellant Sohni Sakina police recovered one dupata, one shirt, one exercise book and some college books of Saeeda Karim. This also is not inconsistent with the defence of Mst. Sohni Sakina that the girl was staying with her on her own accord. Mst. Sohni Sakina's statement is further supported by the evidence that when Saeeda Karim was secured by the police on 8-3-1966, she herself gave her name as Samina daughter of Abid, and executed her bail bond also in that name. She also went about looking for Advocates to defend her and in fact gave a power of attorney to Mr. Abdul Karim Lakhan for her defence. In these circumstances it is difficult to accept her uncorroborated word as against the word of Mst. Sohni Sakina, which to say the least, appears to be reasonably possible in the circumstances of this case. In such a case it is not necessary that an accused person should establish his plea beyond a reasonable doubt but it is sufficient only if there is a reasonable possibility that his defence might be true. This was pointed out by their Lordships of the Supreme Court in Mir Ahmad v The State which is based on the principles laid down in the well-known case of Safdar Ali v. The Crown .
62. 29.The learned counsel for the State emphasised that the Defence Witnesses produced by this appellant had not given true evidence. There is, however, a presumption of innocence in favour of the accused which is not lost or rebutted merely because the accused makes use of false testimony. The prosecution has to stand on its own legs ; and mere weakness or even falsity of the defence evidence, cannot prove the truth of the prosecution case..
63. 30.It may be mentioned that the learned Magistrate himself while dealing with the case of the acquitted accused observed as follows : "Tahir Ali, Muhammad Saleem Bhawani, Ghulam Ali, Nooruddin, Saifuddin, Tayyab and Muhammad Zaki are those persons who had sexual intercourse with Saeeda Karim by making cash payment to Sohni who was running the den. There is nothing to establish that they used any force to commit intercourse. Admittedly they were customers and at the time they appeared at the scene the girl was apparently leading the life of a prostitute. They are hardly liable for abduction or rape. The prosecution has not established that they had the knowledge. This is common complaint that the prostitutes clad in burp stand on bus stand with college books in their hands to give a show that they belong to good families and they attract customers at a higher rate by presenting their higher6 7 8 9 status in the society. It is urged that the girl had informed them before they started committing sexual intercourse. This does not find support from the statement of the girl recorded under section 164, Cr. P. C."
64. 31.These observations would show that the learned Magistrate himself was not prepared to place implicit reliance on the uncorroborated testimony of the girl on account of omission in her statement under section 164, Cr. P. C. The learned Magistrate, however, approached the case differently in case of the appellants. His judgment read as a whole clearly shows that in their case he assumed every word of what Saeeda Karim had said against them to be gospel truth and on the basis thereof he either rejected any evidence to the contrary or explained such evidence on the basis of the girl's testimony itself. Such an approach in a criminal case is obviously erroneous and is bound to lead to a miscarriage of justice as in the present case.
65. 32.While dealing with the question of corroboration of the testimony of Mst. Saeeda Karim the learned trial Magis-trate observed as follows :- " As to the arguments that convincing corroboration is lacking in this case, one has to keep in mind the circum-stances in this case. As to what happened in the house of Humayoon Ashraf there could be no other evidence. The accused were linked in the bond of friendship. They could not depose against their own party. The conduct of the complainant soon after she was free, the statement of Sohni accused that the girl was with her and which was raided by the police under Supersession of Prostitution Act and the corroboration of Hifazat Karim P. W. provides strong circumstantial evidence which corroborates the story of the girl. In fact all the acts relating to the offence charged against the accused persons constitute same transaction. This is an outcome of a conspiracy between Mujib, Humayoon, Aftab, Altaf, Akhtar etc. that they committed the offence. It was in pursuance of this conspi-racy that different accused committed different offences at different times."
66. It is admitted by Mr. Manzoor Hussain, the learned counsel for the State that the appellants or for that matter even the other accused were not charged for the offence of criminal conspiracy. The findings of the learned Magistrate, therefore, have no relevancy to the charges on which the accused persons were tried. 1 also cannot understand as to how the "conduct of the complainant soon after she was free" was consistent with the case of the prosecution. The learned Magistrate perhaps forgot that the complainant in this case was Hifazat Karim and not Mst. Saeeda Karim.
67. Assuming, however, that by the complainant he meant really the prosecutrix then also, as I have shown above, her conduct in assuming a false name, signing bail bonds and vakalatnama in that name and going to various Advocates for her defence in prostitution case clearly make out that she was a free agent and was not under anyone's compulsion. These circumstances throw a considerable amount of doubt on the case of the prosecution. On a consideration of the evidence as a whole there is a strong probability, indeed, more than a reasonable possibility, that the girl had gone away with some friend willingly, and was leading life of a prostitute thereafter, with her free consent, it was only after her arrest and under the influence of her relations that this case appears to have been filed to save the family from disgrace and humiliation.
68. 33.For the reasons given above I find that the prose-cution has not succeeded in establishing the guilt of any of the appellants ; as they are, accordingly, entitled to the benefit of doubt.
69. 34.I shall now consider the application under sections 561-A and 439, Cr. P. C. filed by Mrs. Rahimunnissa Aziz (hereinafter referred to as the applicant), who has prayed that this Court may expunge certain remarks made by the trial Magistrate in the judgment concerning the applicant and her institution, namely, the Government College for Women, Karachi (hereinafter referred to as the college) ; on the grounds that the said remarks are irrelevant, unjustified, libellous, not warranted by the evidence on record and otherwise not forming part of the judgment. The remarks against which the complaint is made are as follows:-- "(a) The defence has argued that the police officer and the college staff has not been produced to bear out the allegations. The question is, would any college dare to bring disrepute to the institution by admitting the allegations against their own staff. None of them would come forward to say that in the garb of teachers the members of staff have indulged in seducing the honest girls.
70. (b)As regards the record of college produced by Ayub Ahmed D. W. 6 I am reluctant to believe that the record has been produced honestly. The A. P. P. has brought it on record through the mouth of Ayub Ahmed that the record produced before the Court was a jumble of corrections and erasions. They have shown the removal of the name of Saeeda Karim from the month of December. A note exists that Saeeda Karim has been struck off from the college but the roll number for her appearance in the annual examination was received by her father from the Board after her abduction and this has been produced before the Court. If Saeeda was not on the roll then how her name was sent up for examination and roll number obtained. No body has been able to explain it. The attendance register is lying blank for day and days and in certain cases only a dot has been given against the names of student to mark her presence or absence afterwards. Such a record cannot be given credence.
71. (c)The other D. W. Ayub produced the record of School to show the absence of Saeeda Karim from college from September to December. This record is a very poor picture of the affairs at college. Many girls are either not marked or are marked with a dot to change it to P or A afterwards.
72. There was nothing to satisfy me that this was the original record. I do not give any credence to this record.
(d) Altaf accused has produced Mrs. A. Aziz to state that Aftab and Mujib were not known to her and that she had not introduced Saeeda to them in College. This statement does not impress me at all. Evidently Mrs. A. Aziz could not tell the Court that she had friendly relations with Mujib and Aftab and she is working as their pimp in the garb of a College Lecturer. It is through the good offices of police that Mrs A. Aziz has not been included as an abettor. This is a gloomy picture of any educational institution where most honest girls are sent for getting education."
73. 35.The applicant who is a Lecturer in the College appeared as a Defence Witness (D. W. 10) for the acquitted accused Farhat Najma. She stated that she was employed in the College since January 1960 but had at no time acted as the Vice-Principal thereof. She further stated that she did not know appellants Aftab Ahmed and Mujibur Rehman and that she had never called Saeeda Karim to meet them in the Vice-Principal's room..
74. 36.It may be recalled that Mst. Saeed Karim had stated in her evidence that in the third week of November 1965 i,e, some four months before her alleged kidnapping she was attending her Civics class in the college when she was called by the applicant, who according to her was the Vice- Principal of the College, in the room of the Principal, where she went and found appellants Mujibur Rehman and Altaf sitting with the applicant and having tea with her. It was further alleged by the girl that when she entered the room and found Mujibur Rehman and Altaf there, she hesitated but the Vice-Principal asked her to enter the room and after she had done so, the Vice-Principal addressed the Science Teacher sitting there and said that Saeeda Karim had come. This was resented to by the girl on which the applicant ordered her in angry tone to leave the room. It was further alleged by Saeeda Karim that she reported about this incident immediately to her father.
75. 37.From the evidence of Saeeda Karim as well as that of her father it would appear, that this incident of alleged introduction of Saeeda to the appellants in the Vice-Principal's room was within the knowledge of P. W. Hifazat Karim. But he did not mention anything about it in his first information report ; nor did he mention it in any of his statements to the police. Saeeda Karim herself did not mention this in any of her statements recorded by various police officers. This allegation against the applicant is also conspicuous by its absence in the statement of the girl recorded under section 164, Cr. P. C. This was admitted by her and the note of the trial Magistrate also confirms this omission. While considering the case of accused Tahir Ali, Muhammad Salim Bhawani, Ghulam Ali, Nooruddin, Saifuddin, Tayyab and Muhammad Zaki, the learned trial Magistrate acquitted them all only on the ground that Saeeda Karim's allegations against them were not supported by her statement under section 164, Cr. P. C. In other words, the learned Magistrate considered this omission to be of considerable significance. Strangely enough the same consideration was completely disregarded by the Magistrate when he condemned the applicant and her institution merely on the belated word of Saeed Karim alleged to have been repeated by her to her father. This evidence as I have already pointed out, is far from convincing. It is strange as to how Saeeda Karim claims to have been called from her Civics class in the third week of November 1965 when the extract from the Attendance Register Exh. D-6/G showed that she had not attended any Civics classes at all.
76. 38.The learned Magistrate has doubted the correctness and authenticity of this Attendance Register on the grounds that Saeeda Karim was a candidate for the examination and she was even given a roll number for the same. All this, according to the learned Magistrate, was not possible if her name had been removed from the College Roll. Another reason which appealed to the learned Magistrate was that in the Attendance Register at several places "only a dot has been given against the name of student to mark her presence or absence afterwards".
77. 39.Mr. Abdus Sattar Pirzada, the learned counsel for the applicant has contended that the learned Magistrate while observing that no explanation of all this had been given to him has not realized that he had neither called the Principal of the College nor summoned any other authority to come and explain the register and that he has made all these observations ex parte against the College.
78. Mr. Abdus Sattar Pirzada asserted that while marking the presence of a student a straight vertical line is drawn to mark a student as present while only a dot is put if a student is absent. In very rare cases letters "A" and are put. The reasoning of the learned Magistrate that a dot given against the name of the student can subsequently be converted into presence or absence is erroneous because if presence is to be converted into absence, it will be the vertical line which will have to be changed to a dot and this is impossible to do. It is, accordingly, clear that there can be no question of Saeeda Karim or for that matter any other girl having been shown as absent if she was really present in the College.
79. 40.As regards the receipt of Roll Number for the appearance of Saeeda Karim in the examination by her father the learned trial Magistrate's reasoning and the conclusion reached by him appeared to be the result of non-consideration of the admission made by Saeeda Karim herself that the said examination form was filed in and signed by her in November 1965, which was admittedly before her expulsion which finally took place in March 1966. To quote her own words :- "So far as I can recollect forms for First Year Intermediate Part I examination have to be filed by end of November 1965.
80. It is not correct to suggest that my form was not transmitted to college for women in 1965. I had filled up entries of that form by myself. It is not correct to suggest that I had done so otherwise. It is correct to suggest that I had signed the form but entries were made by my sister Farida. It is not correct to suggest that examination form and examination fees were filed by me in January 1966, after payment of late fee. Since I had filed my examination form in time, therefore, question of paying late fees for it does not arise."
81. If the form were already sent to the concerned authorities Mst. Saeeda Karim would of course get a roll number for the examination irrespective of the fact that her name was in the meantime removed from the College Rolls. This removal only deprived her of the right to attend classes and did not affect her appearance in the examination once the forms had been forwarded to the Board holding the examination. This position is conceded even by the learned counsel for the State. The learned Magistrate has, accordingly given undue importance to the circumstance which was capable of a very simple explanation ; and his reasoning is also based on a misreading and/or non-consideration of material evidence on the point. In all fairness, before drawing such an adverse inference against the Institution he should have given an opportunity to the College Staff to explain the circumstances which led to his surmises.
82. 41.The learned Magistrate also did not attach any evidentiary value to the Attendance Register as according to him there was nothing to satisfy him that "this was the original record". The College Authorities had produced the Attendance Register through one of their staff members who was authorised in this respect by the Head of the Institution, namely, the Principal. It is not understandable as to why if evidence of this nature had to be fabricated it was done in such a manner that the learned Magistrate considered it to be haphazard. Moreover, under section 79 of the Evidence Act, there was a presumption as to the genuineness of this Register as it was certified by the Principal of a Government College. This presumption was not rebutted by any evidence to the contrary led by the prosecution apart from the oral word of Saeeda Karim herself.
83. 42.In addition to the applicant and D. W. Muhammad Ayub, who produced the attendance Register, one Nusrat daughter of Ahmed Hussain who also examined as D. W.
9. She stated that she was Vice-Principal of the College since the year 1964 and continued to work as such but she was not acquainted with appellant Mujibur Rehman or Altaf. She stated that the applicant had never held the post of the Vice-Principal and that there was no separate room for the office of the Vice- Principal in the College. She produced the list of Staff of the College during the year 1965-66 as Exh.
84. D-9/A. This part of her testimony was not at all challenged in her cross-examination ; and it is indeed impossible to conceive that a witness of her position would give false evidence on a point which is matter of record and could be easily verified. It follows that the evidence of this witness also falsifies the testimony of Saeeda Karim as to the allegations levelled by her against the applicant.
85. 43.After a careful consideration of the entire evidence on record of this case, I have no hesitation in holding that there was not the slightest justification for disbelieving the testimony of the applicant or the two other defence witnesses from the same Institution. The disparaging remarks by the learned Magistrate reproduced in paragraph 34 above are, to say the least, unjustified and uncalled for and should not have found a place in the judgment.
86. 44.The question that would next arise is whether in view of these findings the said remarks should be expunged. It is well settled that the High Court has inherent jurisdiction to expunge irrelevant, objectionable and scandalous remarks or passages from the judgment of the subordinate Courts on the application of the persons aggrieved, even though the matter might not have come in appeal or by way of revision. But it is equally well established that this power should be exercised with great caution and only in exceptional circumstances as the High Court is very jealous in guarding the independence of Magistrates and Judges subordinate to it and encourages them to feel that they can fearlessly give expression to their opinion in the judgments which they deliver.
87. There are, however, three necessary limitations : first, no person should be condemned unheard, second, in making his criticism the Magistrate or Judge should not travel outside the record ; and third, the criticism should be made with sobriety and a due sense of responsibility. That caution and care should attend the observations of the Judges and Magistrates while passing remarks on the witnesses and parties or other persons has been the trend of decision of all the High Courts in the sub-continent. As pointed out by Muhammad Munir, C. J., in the matter of expunging certain remarks made by a Magistrate against Additional District and Sessions Judge, Lyallpur (PLD 1950 Lah. 34) : "Disparaging remarks in a judgment, whether they amount to a verdict or not, imputing crime, moral delinquency or improper conduct of a person are a constant source of uneasiness and irritation to him. They lower him in the public estimation and haunt him like a spectra for life invariably visiting him whenever he enters the precincts of a Court of Justice as a witness or a party. Being fraught with such serious consequences they should only be made where any hesitation or reluctance in making them would impede the ends of justice unless Judges had the power to make bold and fearless comments on the evidence before them they would not be able effectively to discharge their functions. These two conflicting considerations must always be present to the mind of a Judge whenever he is called upon to criticise the character and conduct of a person. On the one hand, he should weigh the gravity of the damage that his remarks would cause to the person concerned and on the other he must realise that he owes a duty to the parties, the public and the Appellate Court of stating in full his reasons for the view he tikes of the evidence.
88. It is again a rule, as ancient as the law itself and based on common sense and fairplay, that when a Judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the Judge's suspicion about his conduct. A Judge who condemns a man unheard acts as unfairly as if he were to convict a man without hearing him in his defence."
89. 45.It has been repeatedly held that Courts are at full liberty to discuss the conduct of the persons before them either as parties or as witnesses but they should neither make any sweeping assertions as are not borne out by the evidence before them nor should they use language which is unduly harsh. The remarks must be justified by the conduct of the witnesses and necessitated for the purpose of the case. Otherwise the High Court has inherent powers to expunge objectionable remarks. But expunction of remarks in some cases may not be feasible at all without affecting the judgment which has become conclusive. As a rule it is necessary therefore that the objectionable matter sought to be expunged should be separable and irrelevant. If they are inseparable or when expunging of remarks would mutilate the judgment, it may then be sufficient to express the opinion that the remarks should not have been passed.
90. This view has been consistently followed by this Court ; and before that by the Chief Court of Sind. I may only refer to some of such cases.
91. 46.In Kartarchand Shankerdas and others v. Emperor , a Division Bench consisting of Davis, J. C. and Lobo, J. observed as follows :- "It is a serious matter for the High Court to expunge remarks from a Magistrate's judgment or order.
92. High Court will interfere to expunge remarks which are libellous and irrelevant. But, if they form an integral part of the judgment or its argument, and if they are inseparable, this Court will not interfere and mutilate a judgment so that it reads disjointedly or incoherently, nor will it interfere merely because the Court may have passed remarks adverse to a witness provided the judgment shows there is some basis for them, however inadequate may appear this basis to the higher Court."
93. 47.This view was affirmed in Ghumanmal Godhumal v. Crown in the following words :- "Acting under section 561-A, Criminal Procedure Code, alone, the Court should keep to the limits defined in Muhammad Hussain v. Crown (1929) 23 S L R 432 that is, the higher Court will not, acting under section 561-A alone, expunge passages from the judgment of the lower Court when, by so doing, it is necessary to mutilate the judgment or to touch the fabric of the judgment itself."
94. 48.The same view was also reiterated in the well-known case of Muhammad Ayub Khuro v.
95. Crown , where the Court, after examining whether the passage which ought not to have found place in the judgment should or should not be expunged, came to the conclusion that it was not necessary to expunge the same as mere expression of opinion that these were not proper and should not have found a place in the judgment was sufficient relief to the petitioner. In the words of Davis, C. J. :-- "It appears to me to matter little whether certain sentences in a judgment are expunged or whether10 11 12 we give our opinion that certain sentences in a judgment are not proper and should not have been written."
96. 49.Similarly in Abdullah Khan v. The State , application for expunction of certain remarks against a defence witness was considered to have become infructuous as the judgment containing the disparaging remarks was set aside by this Court.
97. 50.Mr. Abdus Sattar Pirzada has relied on the case of Malik Firoz Khan Noon v. The State . This authority is, however, distinguishable as it related to a judgment where the objectionable remarks had been made against an aggrieved person who was neither a party nor a witness in the case.
98. The presiding Judge had sought to judicially determine the qualifications of Prime Minister of the country which was outside the scope of his duty, namely, "to adjudicate on the right or liability, the question of the existence or non-existence of which is raised before him." The offending remarks formed an independent portion of the judgment and did not affect the findings in the operative part thereof ; nor did these remarks have to do anything with the reasoning involved in the facts in issue.
99. 51.In the instant case, if the remarks sought to be expunged are excluded from the judgment of the Magistrate, it would obviously mutilate the judgment and give a false impression that the learned Magistrate did not at all, consider some of the material evidence led by the defence.
100. Moreover, the learned Magistrate was within his rights to accept the testimony of Saeeda Karim and to disbelieve that of the defence witnesses including the applicant. The remarks reproduced in paragraph 34 amount to no more than his reasons for doing so ; and they form an integral part of his judgment. Merely because I disagee with the Magistrate's reasoning would not be sufficient for expunging these passages from his judgment. As an order expunging the remarks would mutilate the judgment it is sufficient to confine myself to an expression of my opinion that the remarks reproduced in paragraph 34 above were unjustified and uncalled for and should not have found a place in the judgment.
52. In the result Criminal Miscellaneous Application No, 109/1970 is disposed of with the observations contained in paragraph 43 of this judgment. Criminal Appeals Nos, 3/1970, 6/1970, 16/1970, 19/1970, 20/1970 and 23/1970 are accepted ; and convictions and sentences of all the appellants are set aside. Appellants Humayoon Ashraf, Altaf Ahmed, Akhtar Ali Bawala and Mujibur Rehman are on bail. They need not surrender. Their bail bonds stand cancelled. Appellants Aftab Anwar Jaleel and Mst. Sohni Sakina were in jail and, accordingly short orders for their release were issued on 4-5-1970 at the conclusion of the arguments in these appeals. This judgment contains the reasons for those orders. PLD 1960 SC 325 AIR 1942 Bom. 121 PLD 1967 SC 326 PLD 1969 SC 293 PLD 1951 Lah. 66 PLD 1963 Kar. 891 PLD 1964 Kar. 356 PLD 1962 SC 489 PLD 1953 FC 93 AIR 1938 Sind 103 I L R 1944 Kar. 252 I L R 1946 Kar. 268 PLD 1963 Kar. 508 PLD 1958 SC 33313 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14