Syed Afzal Haider, J.--Appellants Muhammad Mohsin, Nazakat Ali, Muhammad Amin, Muhammad Naheed Anwar alias Muhammad Sardar, Rafaqat Ali and Abdul Hameed have filed Jail Criminal Appeal No. 321/I of 2004. Jail Criminal Appeal No. 322/I of 2004, Jail Criminal Appeal No. 323/I of 2004, Jail Criminal Appeal No. 324/I of 2004, Jail Criminal Appeal No. 325/I of 2004 and Jail Criminal Appeal No. 326/I of 2004 respectively against their conviction and sentences awarded by-learned Additional Sessions Judge, Bahawalpur, Camp at Yazman vide his judgment dated 02.11.2004 whereby all of them were convicted under Section 354-A of Pakistan Penal Code and sentenced to life imprisonment each, with a fine of Rs. 5000/- each and in default whereof to further undergo six months rigorous imprisonment. Appellant Rafaqat Ali was further convicted under Section 337-L(ii) of Pakistan Penal Code and sentenced to one year rigorous imprisonment and to pay a sum of Rs.
3000/- as Daman to injured Muhammad Akram, P.W. Benefit of Section 382-B of the Code of Criminal Procedure was granted to all the appellants. The sentences of accused Rafaqat Ali was ordered to run concurrently.
2. Mst. Saima Gulnaz has preferred Criminal Appeal No. 3/L of 2005 against the same judgment to impugn the acquittal of accused Muhammad Mohsin, Nazakat Ali and Rafaqat Ali under Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The State has also filed Criminal Appeal No. 60/L of 2005 against the above mentioned three accused to challenge their acquittal under Section 10(4) of the said Ordinance.
3. The, facts leading upto the crime incident were narrated in the written application Ex.PA, moved by Mst. Saima Gulnaz PW.1 on 07.08.2003 before Mian Noor Muhammad Inspector, PW.10. The complaint was registered by the latter as FIR 372 Police Station Yazman Ex.PA/1 under Section 10(4) of Ordinance, VII of 1979. The story recounted therein, in brief, is that the complainant, married with Shahid Iqbal six months before the unfortunate incident, resided in Chak No.106/DB. During night between 5th and 6th August, 2003, she was in the house of her parents when at about 10.00 p.m.
She went out of her house to throw liquid waste. She saw Nazakat Ali armed with pistol, Rafaqat Ali and Muhammad Mohsin present in the street. lRafaqat Ali and Muhammad Mohsin caught her from arms whereas Nazakat Ali threatened her with dire consequences. They all three took her in a vacant Ihata where all of them committed zina-bil-jabar one after the other. Thereafter Muhammad Sardar, Muhammad Amin and Abdul Hameed also came there. Muhammad Sardar was having camera with him whereas Muhammad Amin was armed with gun. Muhammad Sardar took her nude photographs. She identified all the accused in the light of bulb. In the meanwhile the search party consisting of her father Muhammad Akram, brother Tahir Iqbal and Muhammad Afzal reached at the spot. On their arrival the accused took to their heals. The witnesses attempted to apprehend them and during this pursuit accused Rafaqat Ali pushed her father and the latter received injury on his foot. The motive behind, the occurrence, as stated by the victim, was that her brother Zahid Iqbal had contracted Nikah with Mst. Robina Kousar, cousin of Nazakat etc. without consent of her parents, and thereafter divorced her. In order therefore to take revenge of the said insult the accused abducted and committed zina-bil-jabar with her and took her nude photographs.
4. Investigation ensued as a consequence of registration of said FIR. The probe into the incident was undertaken by Mian Noor Muhammad, Inspector/SHO. On 07.08.2003 he got Mst. Saima Gulnaz, PW.1, medically examined, prepared injury statement Ex.PL/1 of injured Muhammad Akram PW.3 and got him medically examined. He visited the place of occurrence, inspected the same and prepared rough site-plan Ex.PP and recorded statements of witnesses under Section 161 of the Code of Criminal Procedure. On 08.11.2003 he arrested accused Muhammad Mohsin, Nazakat Ali, Rafaqat Ali, Abdul Hameed, Muhammad Amin and Muhammad Naheed Anwar alias Muhammad Sardar. On 14.08.2003 Muhammad Amin accused, in police custody, led to the recovery of a repeater .12 bore Ex.P-2 P/2 alongwith 10 live cartridges Ex.P-9/1-10 from his residential quarter placed in an iron box.
On 17.08.2003 Muhammad Mohsin accused led to the recovery of a negative film P-8, one nude snap P-7 of victim and three other nude snaps P-4/1-3 showing him along with Mst. Saima Gulnaz.
These nude pictures were also taken into possession vide recovery memo. Ex.PB. He also took into possession other articles through various recovery memos. He also got accused Nazakat Ali, Rafaqat Ali and Muhammad Mohson medically examined for their sexual potency. After completion of investigation he found all the accused guilty and submitted report under Section 173 of the Code of Criminal Procedure before the trial Court requiring the accused to face trial.
5. The learned trial Court thereafter framed charge against the accused Muhammad Mohsin, Nazakat Ali, Rafaqat Ali, Muhammad Amin, Abdul Hameed and Muhammad Naheed Anwar alias Muhammad Sardar under Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under Section 354-A of the Pakistan Penal Code while Rafaqat accused was charged additionally under Section 337-L(ii) of Pakistan Penal Code for causing injury to Muhammad Akram PW.3. The accused did not plead guilty and claimed trial.
6. The prosecution in order to prove its case produced ten witnesses at the trial. The gist of deposition of these witnesses is as under:--
(i) Mst. Saima Gulnaz, complainant/victim appeared as P.W. 1 to endorse the facts recorded in the FIR.
(ii) Muhammad Afzal is an eye-witness of the occurrence. He appeared as P.W.2 and corroborated the statement made by Mst. Saima Gulnaz complainant; (iii)Muhammad Akram father of Mst. Saima Gulnaz, victim is an eye-witness of the occurrence sustained foot injury during the incident. He appeared as P.W.3 and corroborated the version stated by the victim; (iv)Zahid Iqbal brother of Mst. Saima Gulnaz, another eye-witness of the incident, appeared at the trial as P.W.4 and corroborated the statements made by the victim, his father Muhammad Akram and Muhammad Afzal, P.W.2; (v)Lady Dr. Bushra Tariq, Senior Women Medical Officer, Tehsil Headquarter Hospital-Yazman appeared. as P.W.5 and deposed that on 07.08.2003 she medically examined Mst. Saima Gulnaz and found bruises below left eye and hemorrhage in the left eye and a bruise on outer aspect of right thigh. She also took vaginal swabs of the victim for analysis of the Chemical Examiner, Multan for final opinion;
(vi) Dr. Mazhar Mushtaq as P.W.6 deposed that on 07.08.2003 he medically examined Muhammad Akram injured. He also medically examined Muhammad Mohsin, Nazakat Ali and Rafaqat Ali on 18.08.2003 and found them fit to perform sexual act.
(vii) Ghulam Murtaza, ASI appeared as P.W.7 and stated that on 07.08.2003 he got Mst. Saima Gulnaz medically examined and received two sealed phials and one sealed envelope from the lady doctor which were duly handed over to the Investigating Officer on the same day;
(viii) Zulqarnain, Head Constable No. 466 appeared as P.W.8 to state that on 07.08.2003 he received two sealed parcels containing swa bs and, one sealed envelope for keeping the same in safe custody in the Malkhana which were later on handed over to Nadeem Azam Constable No. 1353 on 27.08.2003 for onward transmission to the Office of Chemical Examiner, Multan.
(ix)Nadeem Azam, constable as P.W.9 stated that after receiving the sealed phials and the sealed envelope from Zulqarnain Head Constable, he deposited the said articles intact in the Office of the Chemical Examiner, Multan on the same day;
(x) Mian Noor Muhammad, Inspector/SHO appeared as P.W.10 and deposed about the various stages investigation conducted by him in the case. The detail of his investigation has been mentioned in an earlier paragraph of this Judgment.
7. The learned trial Court after close of the prosecution evidence examined all the accused under Section 342 of the Code of Criminal Procedure wherein all of them took the plea that they have been falsely involved in this case due to enmity otherwise they were innocent. They did not make statement on oath under Section 340(2) of the Code of Criminal Procedure but relied upon the love letters written by Mst. Saima Gulnaz to Muhammad Mohsin accused in their defence. The learned trial Court after completing all legal formalities concluded the trial. Verdict of guilt was returned against the accused. Conviction and sentences were pronounced as noted in the opening paragraph of this judgment. Hence the present appeals against conviction.
8. The record of this case has been seen. The evidence including statements of accused available on the judicial file has been, perused. Relevant portions of the impugned judgment have been scanned. Arguments of the contending parties have also been heard.
9. The learned trial Court did not record conviction under Section 10(4) of Ordinance, VII of 1979.
However the reasons that prevailed upon him to record convictions against all the accused under Section 354-A of Pakistan Penal Code and find accused Rifaqat Ali guilty under Section 337-L(ii) ibid for causing injury to Muhammad Akram PW may be summed up as under:--
(i) The charge under Section 354A Pakistan Penal Code against the accused persons stood proved by prosecution evidence as the nude photographs and crime camera were, recr'vered from the accused and the statement of victim was duly corroborated;
(ii) The nude photographs, as viewed from different angles, do not support the defence version that the victim was photographed nude in a crowd. The photographs corroborate the prosecution version; (iii)The medical report of injured witness corroborated the version of prosecution; (iv)The allegation of gang rape was not believed by the Jearned trial Court as the allegation was not corroborated by attending circumstances, and (v)The accused except Muhammad Mohsin had a motive to commit this offence as the brother of victim had abducted cousin of all the other accused.
10. In order to appreciate the defence version we have gone through the statements of all the accused recorded under Section 342 of the Code of Criminal Procedure. Muhammad Mohsin appears to be the principle accused as he claimed that the victim loved him and used to write love letters to him on which the victim was cross-examined. The accused asserted that Mst. Saima Gulnaz wanted to marry him which was not liked by her family. He further claims that he was invited by the family of victim in their house where he was photographed and then some expert prepared the photograph while Mst. Saima Gulzar in naked position. Accused Nazakat Ali however stated that Mohsin accused had illicit connection with victim Mst. Saima Gulnaz which fact was known to every-body. Both of them used to meet in the newly constructed Ihata of accused. One night they were apprehended by family members of accused while Mst. Saima Gulnaz was naked.
A scuffle ensued and many people were attracted at the spot and someone from the crowd took the crime photographs. Father of the victim was injured there. It is also stated that Mst. Robina, cousin of accused was abducted by brother of victim Mst. Saima and a case was registered against the complainant party. It is because of this enmity that the present false case was conducted by the complainant against accused party. Needless to say that all the accused except Mohsin are related inter-se. It is worth mentioning that the victim had to stand a lengthy and probing cross-examination spread over eleven fools cap typed pages. Suggestions on behalf of accused were made by learned defence counsel to the victim to the following effect:--
(i) That she was in love with Mohsin accused;
(ii) That she was married with Shahid Iqbal against her wishes;
(iii) That she was having carnal relations with Mohsin accused;
(iv) That she used to meet Mohsin accused i n the same Ihata;
(v) That Nizakat accused had seen both of them in (his) Ihata and he wanted to catch both of them; -
(vi) That on the fateful evening she was enjoying the company of Mohsin accused;
(vii) That both of them were caught red handed by members of the family of other accused;
(viii) That both of them were over powered and brought naked in the street for being produced before the Lambardar and Councilor;
(ix) That parents of the victim arrived there and beseeched the accused party not to dishonor them in this manner;
(x) That a scuffle ensued because the accused party did not respond positively to the entreaties of the family of naked woman; (xi)That the complainant and her father got injured during the affray; and
(xii) That a number of persons saw her in naked condition due to which the complainant and her family members felt humiliated and in, order, to take revenge a false story was built up against the accused party.
11. Learned counsel for the appellants have raised the following points for our consider action:--
(i) That there was inordinate delay in providing information to the police;
(ii) That on the facts and circumstances of the case the aggravated offence under Section 354-A of Pakistan Penal Code is not made out as the place where he stripping the victim of her clothes was undertaken was a private place and at best provision of Section 354 ibid are attracted. The sentence under Section 354 has already been suffered; (iii)That the allegation of gang rape during the same occurrence has not been believed by the learned trial Court; (iv)That the case initiated against the accused is concocted because the complainant party had a motive to falsely implicate them due to the previous abduction case registered against them; and (v)That the victim was in love with appellant Mohsin which fact was resented by her parents who ultimately, through a conspiracy, invited Muhammad Mohsin accused and took his photographs which were later on manipulated.
12. Learned counsel representing the victim urged as follows:--
(i) That the allegation of gang rape has been proved on record and the learned trial Court erred in law by acquitting the appellants Muhammad Mohsin, Nazakat Ali and Rafaqat Ali under Section 10(4) of Ordinance, VII of 1979;
(ii) That the learned trial Court believed that the accused had a motive to commit the offence.
13. Learned counsel also represented the complainant in Criminal Appeal No.3/L of 2005 wherein acquittal of three accused under Section 10(4) Ordinance, VII of 1979 was impugned. Learned counsel was confronted with the following facts :--
(i) That the original positive report of the Chemical Examiner was not proved by the prosecution at the trial. In other words the solitary piece of corroboration was withheld by prosecution itself;
(ii) That the learned trial Court has given reasons in Paragraph 20 of the impugned judgment for recording acquittal of three respondents under Section 10(4) of Ordinance, VII of 1979. Unless it is shown that the reasoning was capricious or arbitrary the double presumption of innocence cannot be set aside merely because in the opinion of learned counsel conviction could have been recorded. It is therefore not safe to award capital punishment.
14. Learned Additional Prosecutor General supported the impugned judgment to the extent of conviction recorded under Section 354-A of Pakistan Penal Code and submitted that conviction for gang rape should also be awarded. On Court question he was unable to point out corroboration for the allegation of rape. It was pointed out to the, learned Additional Prosecutor General that Ex.PK, the report of Chemical Examiner stating that the swabs were stained with semen, is photocopy and the original was not produced at the time of trial. The learned counsel agreed that photocopy cannot be relied upon. Learned Additional Prosecutor General appeared in Criminal Appeal No. 60/L of 2005 whereby acquittal of three accused under Section 10(4) Ordinance, VII of 1979 was challenged on behalf of State.
15. We have given serious thought to the facts of this case not only because the victim has demanded death penalty for the transgressors but also because it is an extremely unfortunate trend to preserve nude photographs of young girls who are either lured or get involved in extra marital sex. In any case the law does not demand undiluted chastity but it does guard jealously the modesty of women. A specific provision, Section 354-A, was incorporated in Pakistan Penal Code by Code of Criminal Procedure (Amendment) Ordinance XXIV of 1984 in order to suppress the growing trend of exploiting female victims.
16. The case of the prosecution rested on-- (a)statement of victim; (b)statements of witnesses who saw the victim in naked condition and the accused making good their escape; (c)injury caused to father of the victim who attempted to catch the culprits; (d)medical evidence of the victim as well as the injured witness; (e)recoveries of nude pictures of the victim as well the crime camera and (f)the motive alleged by the prosecution.
17.We have considered the arguments that Section 354-A of Pakistan Penal Code is not applicable in this case. A perusal of Section 354-A ibid indicates three ingredients of the offence: (i) use of criminal force to a woman; (ii) stripping of her clothes; and (iii) exposing her to the public view. We are conscious that in order to maintain a conviction the ingredients of the offence must be established. In this case the element of criminal force against a woman has been established beyond doubt. The recovery of the naked photographs corroborate the allegation of the victim that her clothes were removed. It is also established that when the search party arrived at the spot the victim was lying naked. Apart from Mohsin appellant the other accused saw her in naked condition.
The act of taking the photographs of the victim in naked condition was fraught with nefarious designs. It was not a case of momentary exposure before a few persons but the purpose was to keep the naked victim exposed to ridicule and vicious pleasure at the nefarious discretion of accused party. This is certainly an aggravated form of violating the modesty of a woman by keeping her under the threat of being exposed perpetually to public view. The purpose of incorporating of Section 354-A in the Pakistan Penal Code was to protect the modesty and honour of women and to treat the transgressors with iron hand. Exposure of the private parts of a woman by force with a view to humiliating and exploiting her and exposing the body to any person who happens to be present at that place at a particular time is one offence but the act of preserving photographs along with negatives for exposure to public in future adds to the mischief of the offence because it gives a licence to Devil to play havoc with family life. The believers are ordained to eschew Indecency and Manifest Evil (Ayat 90 Sura 16 Al Nahl Holy Quran).
18.The records preserves in all nine nude photographs along with its negatives. The nude victim was snapped along with Sardar accused (Ex.P3 and P3/1), with accused Mohsin P4, 1-3 and P4/1), with Abdul Hameed accused (Ext. 5 and P5/1), with Muhammad Amin accused. (Ext. 6 and P6/1). Ex.
PTis a nude photograph of the female victim, its negative is P8. Camera P1, used for taking nude snaps, was also recovered from Sardar accused. This evidence has been brought on record. The suggestion that nude pictures were manipulated has not only been refuted but no satisfactory explanation has been given as to why these persons were snapped with a nude female. This fact alone not only is a strong corroboration of the allegation made by the female victim but it is highly disturbing for even these who hear about such an ugly episode. It has to be condemned as loudly as is possible.
19.In the case of Zulfiqar and two others Versus the State 1996 P.Cr.LJ. page 620 this Court held as under: It was also contended by the learned counsel for the appellants that the prosecutiop evidence which was brought on the record showed that the clothes of Mst. Jindo were torn as a result of which she became naked and none of the appellants had deliberately removed her clothes or had made her naked or had stripped her of her clothes and as such the matter was not covered by the provisions of Section 354-A, PPC. We have considered this contention of the learned counsel very seriously. The wording of Section 354-A, of the Pakistan Penal Code shows that whoever assaults or uses criminal force to any woman and strips her of her clothes and in that condition, exposes her to the public view, is stated to have committed the offence thereunder. We have come to the conclusion that the process of dragging of Mst. Jindo by the appellants was a deliberate action whereby her clothes would have naturally torn during the process of her being dragged and so it was a voluntary action of the appellants to strip her of her clothes. As such the offence was fully covered by the provisions of Section 354-A, of the Pakistan Penal Code."
20.We are conscious of the fact that the parties had been entangled in criminal litigation and this is precisely the reason, as alleged and believed by the learned trial Court, why the accused took the, extreme step of dishonouring a female from the opposite camp. Conceding for the sake of argument that the victim was having extramarital sex with Mohsin accused, but it did not mean that she should be exploited in such a manner. There is no dearth of honourable methods to face a foe. Law does not permit such a transgression even in the Lice of admitted rivalry.
21. Before we consider the defence of appellants in this case it is appropriate to define the scope of defence of accused in criminal cases. The defence of an accused consists of three steps. The first step is the trend of cross-examination undertaken by accused; the second stage is the content of the statement, of accused along with any evidence that is produced in support of its plea and the third ingredient of defence is the mode and manner of arguments presented in Court on behalf of the accused at the conclusion of the trial. In this case all the said three stages indicate that the woman was denuded and exposed to public view. This is further supported by the nude photographs. Not just one snap but nine snaps along with negatives were recovered from the accused party along with camera. Preserving nude photographs after exposing even an erring female to public ridicule is certainly hit by the mischief of newly added Section 354-A of Pakistan Penal Code.
22. In view of what has been stated above Criminal Appeal Nos. J. Cr. Appeal No. 321/I of 2004, J. Cr.
Appeal No. 322/I of 2004, J. Cr. Appeal No. 323/I of 2004, J. Cr. Appeal No. 324/I of 2004, J. Cr. Appeal No. 325/I of 2004, J. Cr. Appeal No. 326/I of 2004 filed by Muhamm'ad Mohsin, Nazakat Ali, Muhammad Amin, Muhammad Naheed Anwar alias Muhammad Sardar, Rafaqat Ali and Abdul Hameed appellants are dismissed. Cr. A.No. 3/L of 2005 filed by complainant as well as Cr. Appeal No. 60/L of 2005 moved by State is also dismissed for the reasons that it has not been shown that the reasoning adopted by the learned trial Court were capricious or arbitrary. The principles governing appeal against acquittal are different from the principles which govern appeal against conviction. In latter categories the benefit of reasonable doubt goes to the accused but in appeal against acquittal presumption of double innocence has to be demolished by complainant party if they want the acquittal to be converted into conviction. The impugned judgment is well reasoned and all the aspects of the case were considered. Learned trial Court exercised his discretion judiciously.