' ROOH-UL-AMIN KHAN, J.---Through the instant writ petition the petitioners have called in question the validity of the impugned order dated 14-12-2009 with the prayer that the same may to declared as illegal, without jurisdiction and without lawful authority.
2. Brief, but relevant facts of the case are that on 9-12-2006 the respondent No,1 had filed a complaint under section 3 of the Illegal Dispossession Act, 2005 before the Sessions Judge Peshawar, wherein he claimed himself as owner on the basis of Mutation bearing No,6970 dated 14-4-2003 and in possession of a house measuring 6 Marlas, situated at Sultan Colony Dalazak Road Peshawar. He alleged in the complainant that a few days before he abandoned his accommodation in the disputed house and shifted to another house. In the meanwhile respondents (hereinafter referred to as the petitioners), entered and forcibly occupied the house and illegally dispossessed him. The complaint was dismissed for non-prosecution, thus after a few days he filed another complaint, wherein he claimed forcible dispossession from a house measuring 12 Marlas, despite the fact that in previous complaint he had alleged his dispossession from a house measuring 6 Marlas. The petitioners were summoned by the Additional Sessions Judge-V, Peshawar and during the course of proceedings and trial of the case, the parties arrived at settlement and consequently the petitioners were acquitted of the charge vide order dated 18- 7-2009 in the following manner:-- "Complainant Abdul Rahid son of Haji Qalandar Khan present with counsel Mr. Ghani-ur-Rehman, Advocate. All the respondents present in person with counsel Mr. Abdul Aziz Kundi Advocate.
' The parties stated at the bar to have settled the matter outside the court by way of compromise.
The respondent agreed to pay Rs,13,50,000 to the complainant who will transfer the remaining Six Marlas of disputed house in the name of respondents No,2 to 5 from his name or the name of his wife whosoever amongst them is recorded owner of the said area of the house. Accordingly, the respondents paid Rs, 13,50,000 in court to the complainant who received the same in presence of counsel and agreed to transfer the remaining six marlas within 10 days to the respondent. In this respect the statement of complainant was recorded and after admitting the same was signed by him duly countersigned by his counsel. The compromise statement was also signed by respondent and their counsel Mr. Abdul Aziz Kundi, which was placed on file Exh. PA.
' Since the parties have compromised the matter and today the complainant received cash amount of Rs,13,50,000 from respondent who admits possession of respondents of the house already taken by them and also admits to transfer the remaining Six Marlas from his name/name of his wife and also bound to attend the office of Tehsildar/Registrar in case of mutation registered in the name of respondents Nos.2 to 5, failing which he would face the consequences of law whereafter, the complainant did not press to proceed with the. Complaint.
' Accordingly, in these circumstances, the accused/respondents are acquitted on the basis of compromise, they are on bail, their bail is cancelled whereafter the sureties are also relieved from the liability of bonds".
3. As mentioned, in the above said judgment the, respondent No,1 received sale consideration in lieu of 6 Marlas house and made undertaking and promised before the Court for transfer of the disputed house in the name of the petitioners. The respondents failed to fulfil the promise and undertaking within the stipulated time, therefore, the petitioners filed an application before the learned Additional Sessions Judge-V Peshawar, (Trial Court) for summoning the complainant and directing him to implement the compromise statement dated 12-7-2009, recorded before the Court, or to take appropriate legal action against the complainant/respondent No,1 and to punish him in accordance with law. The petitioner also prayed for issuance of direction to the respondent` for return of the sale consideration i.e, 13,50,000, which he has received in the Court for transfer of 6 Marlas house in the name of the petitioner. On 14-11-2009 the complainant-respondent No,1 namely Abdur Rashid Arif along with his counsel appeared before the Additional Sessions Judge and agreed to honour the order dated 18-7-2009, but on the next date i.e, 23-11-2009 the counsel for the petitioners produced photocopies of certain mutations, whereby it transpired that the respondent.
No, 1 had already alienated his entire holding and was thus left with no property, which he could be transferred to the petitioners. The case ultimately came up for hearing on 14-12-2009 and on the date fixed the learned Additional Sessions Judge dismissed the application of the petitioners with observation that the petitioners would be at liberty to seek their remedy in Civil Court, if they so desire. Hence this' petition.
' Having heard the learned counsel for the parties and perusal of the record reveals that respondent No,1 had filed the complaint under section 3 of Illegal Dispossession Act, 2005 before the Sessions Judge Peshawar, which was marked to Additional Sessions Judge Peshawar for trial.
During pendency of trial the parties patched up the matter and effected compromise, thus the petitioners were acquitted of the charges on the basis of compromise. Since at the time of acquittal, the petitioners were in possession' of the disputed house, therefore, the learned Additional Sessions Judge did not pass any order for delivery of possession under section 8 of the illegal Dispossession Act.
5. While passing the order of acquittal the learned Additional Sessions Judge finally decided the case and nothing was left to be taken at a future date. The above said order of acquittal falls within the meaning of "judgment" as envisaged in the provision of section 367 of Criminal Procedure Code. The word "judgment" is not defined in the Criminal Procedure Code, but in general words it means a final judicial determination of a case by a competent Court of law. In legal parlance it A would mean, "judicial verdict of a Court, deciding a case finally". With pronouncement of a judgment all the proceedings pending before the Court would stand terminated, leaving nothing for future to be considered or re-considered. No doubt in the instant case the judgment has been passed by the Additional Sessions Judge under Illegal Dispossession Act, 2005, but section 9 of the Act ibid provides that unless otherwise provided in the Illegal Dispossession Act, the provisions of the Criminal Procedure Code 1898 shall be applicable to all the proceedings under the Act ibid. In the instant case after announcement of judgment and acquitting the petitioners of the charge, the trial Court has conclusively decided the matter and the adjudication has attained finality, thus the trial Court has become functus officio and in no manner was competent to alter, change or review the judgment. There is no cavil that there is no specific provision for review in Criminal Procedure Code, rather section 369, Cr.P.C. Provides specific bar on the review of final judgment passed in a criminal case. The power of review may only be exercised in exceptional 'cases, where any arithmetical error appears on the surface of the record.
6. The petitioners filed the application before the trial Court for summoning respondent No,1 and directing him to implement the compromise statement dated 18-7-2009 made before the Court.
He also requested for taking legal action against the respondent No,1 and to punish him in accordance with law, besides, directing him to refund the amount of Rs,13,50,000 to the petitioners.
The above said application C has no legal footing and violative of section 369, Cr.P.C. If any action on the above mentioned application of the petitioners is taken, it would amount to review of the previous order of acquittal, which is not provided under the law and the Criminal Courts are not vested with the power to alter, modify, re-open or review the case after final decision. Besides, the petitioners have more than one alternate remedies to avail before Civil as well Criminal Courts. A similar proposition came before the August Supreme Court of Pakistan in Dr. A. Basit, Advocate v.
Deputy Registrar (Judicial) and others (PLD 2001 SC 1028), wherein law was laid down in the following terms:- ' we hold that while exercising jurisdiction under Article 184(3) of the Constitution the findings recorded by this Court in aforesaid Criminal Appeals cannot be set aside/modified, nor any portion of it can be expunged or substituted".
7. Article 199 of the Constitution of Islamic Republic of Pakistan 1973 provides that the same may not be invoked if alternate remedy is available to the aggrieved party. In one of the case, it was observed by the honourable Supreme Court of Pakistan that jurisdiction under Article 199 could be exercised only on proof of non-availability of adequate remedy. In support of the above observations, reliance may be placed on Human Rights Case (Environment Pollution in Balochistan) (PLD 1994 SC 102) and Muhammad Yusuf and another v. Muhammad Sarfaraz Cheema, Additional District Judge and others (PLD 1987 SC 21).
In the light of the above discussion and circumstances of the case this writ petition being devoid of any merit is hereby dismissed with no order as to costs.
Petition dismissed.
2013 P Cr, L J 772 [Federal Shariat Court] Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ Mst. ZOHRA BIBI-- -Appellant versus The STATE and 2 others---Respondents Criminal Appeal No, 37-I of 2011, decided on 15th February, 2013.
(a) Offence of Zina (Enforcement of. Hudood) Ordinance (VII of 1979)- ----Ss.10(4) & 16---Criminal Procedure Code (V of 1898), S.417(2-A)--Federal Shariat Court (Procedure) Rules, 1981, R.18(a)---Constitution of Pakistan, Arts.203-DD(2), proviso & 203-J--- Appeal against acquittal---Limitation-Plea raised by accused was that appeal against his acquittal filed by complainant was barred by limitation as provided iit S.417(2-A), Cr.P.C.--- Validity---Federal Shariat Court was empowered under proviso to Art.203-DD(2) of the Constitution to convert finding of acquittal into one of conviction, subject to providing opportunity to acquitted accused of being heard in his own defence---Appeal against acquittal order was to be governed by Art.203-DD of the Constitution---Provision of S.417(2-A), Cr.P.C. Was not applicable to appeal against acquittal, as the same was being heard and decided in accordance with jurisdiction vested in Federal Shariat Court as provided under Art.203-DD of the Constitution--- Federal Shariat Court (Procedure) Rules, 1981, were framed in exercise of powers conferred by Art. 203-J of the Constitution and would have precedence over procedural law including Criminal Procedure Code, 1898---Appeal by complainant was filed within the period of limitation as provided in Rule 18(a) of Federal Shariat Court (Procedure) Rules, 1981. [p. 7791 A & B
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),-- ----Ss. 10(4), 11 & 16---Criminal Procedure Code (V of 1898), S.417(2-A)---Federal Shariat Court (Procedure) Rules, 1981, R.18(a)--- Constitution of Pakistan, Art.203-DD(2), proviso---Gang rape--- Appeal against acquittal---Appreciation of evidence---Benefit of doubt--- Accused was acquitted by Trial Court on the ground that charge against him was not proved---Validity--- Victim was not recovered from Dera' of accused rather she was produced before police by a political person---According to recovery memo, recovery of victim was shown in another case registered under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereas the acquittal order was passed in other case---Swabs which were taken from vagina of victim were sent to the office of Chemical Examiner, who found the same to be stained with semen but Chemical Examiner sent one swa b to Serologist for semen grouping---According to report of Serologist, one vaginal swa b was insufficient for grouping---Victim according to her own 'statement was subjected to sexual intercourse by three accused during a period spreading over two months and eleven days of her illegal detention in 'Dera' of accused---In absence of semen grouping as well as DNA test, no accused could be held guilty of commission of offence of Zina with victim---Prosecution failed to prove charges against acquitted accused beyond reasonable shadow of doubt-- Judgment of acquittal passed by Trial Court, extending benefit of doubt to accused was un-exceptionable---Appeal was dismissed in circumstances. [pp. 780, 7821 C & G
(c) Criminal trial-- --Opinion of police---Scope---Ipse dixit of police is not binding on Court. [p. 781] D
(d) Criminal trial--- ----Benefit of doubt must accrue in favour of accused as matter of right and not of grace. [p. 781] E Tariq Pervez v. The State 1995 SCM R 1345 rd.
(e) Criminal Procedure Code (V of 1898)--- ----S. 417---Appeal against acquittal---Appreciation of evidence--Principles---Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction---Appraisal of evidence in appeal against conviction is done strictly, whereas in appeal against acquittal, such rigid method of appraisement is not to be applied---Appellate Court should not interfere in acquittal judgment unless the same is found to be perverse, arbitrary, capricious, result of gross misreading or non-reading of evidence, resulting in miscarriage of justice---Presumption of innocence of accused is multiplied after his acquittal from a court of competent jurisdiction. [p. 7811 F Muhammad Aslam v. Sabir Hussain and others 2009 SCM R 985 rel.
Muhammad Yousaf Zia and Saifullah Khan for Appellant. Ch. Abdul Ghaffar for Respondents.
Ch. Muhammad Sarwar Sidhu, Additional P.-G. Punjab for the State.
Date of hearing: 7th February, 2013.
' SH. AHMAD FAROOQ, J.---Through the instant criminal appeal, the appellant/Mst. Zohra Bibi has challenged the judgment dated 16-6-2011, whereby the learned Additional Sessions Judge, Gujrat has acquitted respondents Nos.2 and 3/Muhammad Sharif and Zafar Shah of the charges under sections 16 and 10(4) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section.
109, P.P.C. By extending them benefit of doubt.
2. The prosecution story as narrated in the F.I.R. Which was lodged by Mst. Zohra Bibi is that on 22- 8-2005, her daughter namely Saiqa Rashid was taken from her house by Mst. Zubaida Bibi and Mst.
Sumaira Bibi in her absence on the pretext of visiting the shrine of Baba Hanju Sarkar for lighting agarbatties. The youngest daughter of the complainant namely Mst. Asia Rashid also informed the complainant that the said accused/Mst. Zubaida and Sumaira along with two unknown male accused boarded Mst. Saiqa Rashid in a white coloured car and went towards Zaman Hotel. The complainant alleged that the accused have abducted her daughter on the abetment of Zafar Ali Shah, Zulfiqar Ali Shah, Ahmad Ali Shah and Javed alias Mitho Butt with an intention to kill her. The motive for the occurrence is stated to be the registration of a case earlier by the complainant against the accused regarding the murder of her other daughter namely Mst. Asifa Rashid.
3. After completion of usual investigation, a report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences.
4. The learned trial Court framed the charge against the accused on 19-3-2011 under sections 16 and 10(4) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 109, P.P.C.
The accused did not plead guilty and claimed to be tried.
5. The prosecution in order to substantiate the charges against the accused produced nine witnesses. However, the learned Prosecutor gave up Malik Liaqat Ali, DSP and. Mukhtar Ahmed, S.I and closed the prosecution evidence after tendering the reports of Serologist/Exh.PK and Chemical Examiner/Exh.PL. The learned trial Court also examined Mst. Asia Rashid as C.W.1. There is no need to reproduce the gist of the statements of the witnesses of the prosecution in this judgment as the same has been done by the learned trial Court in the impugned judgment dated 16-6-2011.
However, the relevant portions of the statements of the witnesses of the prosecution would be discussed and examined in the subsequent paragraphs of this judgment.
6. After the completion of the evidence of the prosecution, the learned trial Court examined the acquitted-accused/Muhammad Sharif and Zafar Ali Shah as envisaged under section 342, Cr.P.C.
Wherein they categorically denied the occurrence and claimed innocence. In response to a crucial question during the course of their examination, the accused/present respondents Nos.2 and 3 replied as follows:-- "We are innocent and were also declared innocent in all the successive investigation of police department including RIB, Gujranwala which remained unchallenged and even case was also recommended to be cancelled. Complainant and her other family members are having bad repute and are habitual blackmailer and there are many criminal cases registered against complainant, P.Ws. And her other family members i.e, F.I.R. No,62/93 under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979, P.S Civil Line, Gujrat Exh.DA, F.I.Rs, Nos.383/92, 250/2001, 251/2001, 734/86, 450/89, 435/89 under Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979 at P.S. Sadar Gujrat Exh.DB, Exh.DC, Exh.DD, Exh.DE, Exh.DF and Exh.DG respectively. F.I.R. Nos.249/01, 191/96, 192/96, 269/89, 263/89, 735/86 under section 13-20 Arms Ordinance police station Sadar Gujrat i.e, Exh. DH, Exh.DJ, Exh.DK, Exh.DL, Exh.DM and Exh.DN, F.I.R. No,434/89 under section 353/322/307, P.P.C., 13 20-65, A.O. At P.S. Sadar Gujrat i.e, Exh.DP.
' However, both the respondents neither opted to make statements on oath in disproof of the charges as provided under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
7. Upon conclusion of the trial, the learned trial Court vide judgment dated 16-6-2011 has acquitted the accused/present respondents Nos.2 and 3 of the charges by extending them benefit of doubt.
8. Before proceeding further in the matter, we would like to point out that non-bailable warrant of arrest of Zafar Shah/accused/respondent No,3 were issued by this Court on 19-11-2012 and 3-12- 2012 and according to the report of Bashir Ahmad, ASI, P.S Saddar Gujrat dated 26-1-2013 forwarded by the S.H.O. Police Station Saddar Gujrat, the said Zafar Shah had gone abroad. Hence, perpetual non-bailable warrants of arrest of Zafar Shah/respondent No,3 are ordered to be issued and the instant appeal to the extent of Zafar Shah is consigned to the Record Room. However, the appellant can get the instant appeal resurrected after the arrest of Zafar Shah/respondent No,3.
Now, we proceed to adjudicate the instant appeal only to the extent of respondent No,2/Muhammad Sharif.
9. Learned counsel for the appellant submitted that the impugned judgment is the result of misreading and non-reading of evidence available on record. He further submitted that the sufficient incriminating evidence was produced by the prosecution which proved that the present respondents had committed Gang Rape and the learned trial Court has wrongly acquitted them.
He further submitted that the learned trial Court totally ignored the legal value of the statement of the victim which was duly supported by medical evidence and the report of the Chemical Examiner. He maintained that the respondents remained absconder for a long period which proved their involvement in the case. He contended that the learned trial Court while acquitting the respondents did not take into consideration the findings recorded by his predecessor in the judgment dated 15-5-2010 whereby a coaccused/Mirza Aftab Ahmad of the same F.1.R. Was convicted on the basis of similar evidence. He claimed that the Investigating Officer did not investigate the case fairly in order to protect his colleague namely Mirza Aftab Ahmad who is Sub- Inspector in the Police Department. Finally, he pleaded that the respondents No,2 may be convicted for commission of the offence of "zina" and sentenced accordingly in accordance with law.
10. Conversely, the learned counsel for respondent No,2/ Muhammad Sharif raised a preliminary objection to the effect that the instant appeal is barred by time. He submitted that the instant appeal has been filed by a person aggrieved by the order of acquittal passed in a case arising out of F.I.R. No,449 of 2005, dated 22-5-2005 and as such, according to section 417(2-A), Cr.P.C., the period of limitation for filing of such an appeal, is only thirty days. He explained that the impugned judgment was passed on 16-6-2011, whereas the instant appeal has been filed on 16-8-2011 i.e, after a period of sixty days. On merits, he submitted that acquitted accused/Muhammad Sharif was not named in the F.I.R. He, further submitted that initially, not only the first Investigating Officer but also Malik Liaqat Ali DSP/RIB Gujranwala found the accused nominated in the F.I.R. Innocent and came to the conclusion that Mst. Saiqa Rashid was neither abducted nor subjected to "zina". The police also recommended the case for cancellation vide daily diary No,47, dated 21-4-2007. However, a report was submitted under section 173, Cr.P.C. In the learned trial Court while placing the name of the accused persons in Column No,2. He contended that neither the victim was recovered from the custody of acquitted accused/Muhammad Sharif nor the grouping of the semen could be done by the Serologist as evident from the report Exh.PK. He further contended that the dera' of Muhammad Sharif where the victim.Was allegedly confined and subjected to gang rape was neither pointed out by the victim nor the Investigating Officer could locate the same. Lastly, he argued that the prosecution could not prove the case against acquitted accused/Muhammad Sharif beyond reasonable shadow of doubt and he was rightly acquitted by the learned trial Court vide impugned judgment dated 16-6-2011.
11. However, the learned Additional Prosecutor-General Punjab, while supporting the instant appeal, submitted that the solitary statement of the victim namely Mst. Saiqa Rashid wherein she stated that Muhammad Sharif had been committing sexual intercourse with her during her illegal detention, is sufficient to convict the said accused.
12. We have heard the learned counsel for the appellant as well as the learned counsel for the respondent No,2/Muhammad Sharif and the learned Additional Prosecutor-General Punjab. We have also carefully examined the record and the impugned judgment dated 16-6-2011.
13. First of all, we would like to decide the question of limitation for filing of the instant appeal which has been raised by the learned counsel for respondent No,2/Muhammad Sharif. Admittedly, the instant appeal has been filed by a lady/Mst. Zohra Bibi, who is aggrieved of the order dated 16-6- 2011 whereby respondent No,2/Muhammad Sharif has been acquitted by the learned Additional Sessions Judge Gujrat in a case arising out of F.I.R. No,449 of 2005 dated 22-8-2005. Ordinarily, against an order of acquittal passed by a trial Court, an appeal is filed in the High Court in the light of section 417, Cr.P.C. There is no cavil to the legal proposition that the period of limitation for filing an appeal in the High Court, by an aggrieved person against an order of acquittal passed by the trial Court is thirty days. According to section 417(2-A), Cr.P.C, which is being reproduced hereunder for ready reference and proper appreciation:- ' Sec.417. Appeal in case of acquittal.---(1) Subject to the provisions of sub-section (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court ,from an original or appellate order of acquittal passed by Court other than a High Court. -(2) ...................
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.
14. The impugned order of acquittal was passed on 16-6-2011 whereas the instant appeal was filed on 16-8-2011 i.e, after more than thirty days. Here, we would like to point out that the learned counsel for respondent No,2/Muhammad Sharif has totally ignored the fact that the instant appeal was entertained and being adjudicated upon under Article 203DD of the Constitution of Islamic Republic of Pakistan, which defines the revisional and other jurisdiction of the Federal Shariat Court of Pakistan. Article 203DD of the Constitution of Islamic Republic of Pakistan is being reproduced hereunder for ready reference:-- ' Art-203DD. (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence. (underlining is for emphasis)
The proviso of clause (2) of Article 203DD empowers this Court to convert a finding of acquittal into one of conviction, subject to providing an opportunity to an acquitted accused of being heard in his own defence. Hence, it is clear that the instant appeal against the acquittal order is to be governed by Article 203DD of the Constitution of Islamic Republic of Pakistan.
15. The Federal Shariat Court has made Rules for carrying out the purposes of chapter 3-A of the Constitution of Islamic Republic of Pakistan, which are called as Federal Shariat Court (Procedure)
Rules, 1981. According to Rule-18(a) of Rules ibid, an appeal shall be presented to the Court within sixty days from the date of the order or decision appealed from.
' Provided the Court may for sufficient cause extend the period. (Emphasis supplied)
16. It is worth-consideration that the instant appeal was entertained by the office of the Federal Shariat Court of Pakistan under Rule 18(a) of the Federal Shariat Court (Procedure) Rules, 1981 which provides a period of sixty days for filing an appeal. There is also no denying of the fact that according to the office of the Federal Shariat Court of Pakistan, the instant appeal was filed within the period of limitation i.e, sixty days. Hence, it is held that the provision of section 417(2-A), Cr.P.C.
Would not be applicable to the instant appeal, which is being heard and decided in accordance with the jurisdiction vested in the Federal Shariat Court as provided under Article 203DD of the Constitution of Islamic Republic of Pakistan.
17. Needless to mention here that the Federal Shariat Court (Procedure) Rules, 1981 which have been framed in exercise of the powers conferred by Article 203J of the Constitution of Islamic Republic of Pakistan, would have precedence over any other procedural law including Cr.P.C. Consequently, the objection of the learned counsel for respondent No,2/Muhammad. Sharif regarding the filing of the instant appeal after the period of limitation is overruled and the instant appeal is held to be within the period of limitation as provided under Rule 18(a) of the Federal Shariat Court (Procedure)
Rules, 1981.
18. Now, we advert to the merits of the instant appeal qua the acquitted accused namely Muhammad Sharif. From the bare perusal of the F.I.R. No,449 of 2005, dated 22-8-2005 lodged by Mst. Zohra Bibi/complainant/present appellant, it is revealed that neither Muhammad Sharif was implicated as an accused in the said F.I.R. Nor any allegation was leveled against him by the complainant. Surprisingly, the complainant/present appellant Mst. Zohra Bibi while making her statement as P.W.2 in the learned trial Court did not utter a single sentence regarding the involvement of Muhammad Sharif/respondent No,2. The only evidence available on the record of the learned trial Court against the acquitted accused/Muhammad Sharif is the sole statement of Mst. Saiqa Rashid (victim), who while appearing as P.W.3 stated that accused namely Mst. Sumaira, Mst. Zubaida (since tried and convicted) along with Shoukat and Ali Gujjar (since killed in police encounter) forcibly took her to a `dera' situated at unknown place, which belonged to Muhammad Sharif. P.W.3 further stated that she was kept in illegal detention at the aforesaid `dera' for about two months and eleven days and during the said period, Muhammad Sharif along with Mirza Aftab Baig and Shaukat (co-accused) used to commit sexual intercourse with her. However, in her cross- examination Mst. Saiqa Rashid/P.W.3 explained that the Investigating Officer never took her to the `dera' of Muhammad Sharif wherein she was subjected to zina'.
19. In this case, the only incriminating evidence against the acquitted accused/Muhammad Sharif is the solitary statement of the victim namely Mst. Saiqa Rashid. No doubt, the Superior Courts in a number of cases have held that the single testimony of the prosecutrix in the cases of rape is sufficient to record conviction, if the same is confidence-inspiring. However, in this case the statement of victim/Mst. Saiqa Rashid is neither confidence inspiring nor could be believed as there are many contradictions, discrepancies and dishonest improvements in her statement.
20. Undeniably, Mst. Saiqa Rashid was not recovered from the `dera' of Muhammad Sharif. She was produced by Mst. Zubaida lhsan, Nazim Union Council Gujranwala before the police on 3-11-2005.
However, according to the recovery memo Exh.PJ, the recovery of Mst. Saiqa Rashid has been shown in F.I.R. No,531 dated 29-10-2005 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered in Police Station Saddar Gujrat whereas, the impugned judgment was passed in.a case arising out of F.I.R. No,449 of 2005 dated 22-8-2005 registered in Police Station Saddar Gujrat. The swa bs, which were taken from the vagina of Mst. Saiqa Rashid by lady Dr. Anjum Ara/P.W.1 on 3-11-2005,were sent to the office of the Chemical Examiner on 10-11- 2005, who found the same to be stained with semen but the Chemical Examiner sent one swab to Serologist for semen grouping. According to the report of the Serologist/Exh.PK, the one vaginal swa b, which was sent to him, was insufficient for grouping. The victim/Mst. Saiqa Rashid according to her own statement (P.W.3) was subjected to sexual intercourse by three accused namely Mirza Aftab Baig, Shaukat and Muhammad Sharif during a period spreading over two months and eleven days of her illegal detention in 'clera' of Muhammad Sharif. In the absence of semen grouping as well as DNA test, no accused could be held guilty of commission of the offence of- "zina" with Mst.
Saiqa Rashid.
21. Secondly, neither any site plan of `dera' of acquitted accused/Muhammad Sharif was available on record nor the victim specifically stated that how many times, she was subjected to 'zina' by Muhammad Sharif during a long period of more than two months. The statements of the complainant/P.W.2 as well as Mst. Saiqa Rashid/victim(P.W.3) are replete with contradictions and inconsistencies, particularly with regard to the statement of victim under section 161, Cr.P.C. As well as on many other material points. Furthermore, the animosity of the complainant with the present acquitted accused is fully established from the fact that he was involved in the murder case of another daughter of the complainant namely Mst. Asifa Rashid, wherein he was acquitted by the learned trial Court and a revision petition is still sub judice in the Hon'ble Lahore High Court Lahore.
It is also pertinent to mention here that the acquitted accused/Muhammad Sharif was found to be innocent by two successive Investigating Officers and the case was recommended for cancellation vide daily diary No,47/07, dated 21-4-2007. There is no cavil to the legal proposition that the ipse dixit of the police is not binding on the court but in the peculiar D circumstances of this case and in view of the contradictory evidence of the prosecution coupled with the antecedent of the complainant's family, the chances of the false implication of the respondent No,2/Muhammad Sharif cannot be ruled out.
22. From the above evaluation of the evidence on record, it is established that the prosecution case is full of doubts. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind, about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.
23. There is another very important aspect of this case, which cannot be brushed aside i.e, the instant appeal is against an order of acquittal. The standard of assessing of evidence in appeal against acquittal are quite different from those laid down for an appeal against conviction. In an appeal against conviction, the appraisal of evidence is done strictly whereas in an appeal against acquittal, such rigid method of appraisement is not to be applied. The appellate court would not interfere in an acquittal judgment unless the same is found to be perverse, arbitrary, capricious, result of gross misreading or non-reading of evidence, resulting in miscarriage of justice. It is a well-settled principle of law that presumption of innocence of an accused is multiplied after his acquittal from a court of competent jurisdiction. In this respect, we would like to refer to the case of Muhammad Aslam v. Sabir Hussain and others reported in 2009 SCMR 983 wherein it has been held that a finding of acquittal recorded by the trial court cannot be reversed or upset except when the judgment is found to be perverse, shocking and suffering from error of jurisdiction or misreading or non-reading of evidence. A judgment of acquittal cannot be reversed even though second opinion may be reasonably possible.
24. In the end, it is also extremely relevant to mention here that during an earlier trial of the co- accused of the present respondent No,2/Muhammad Sharif arising out of the same F.I.R. No,449 of 2005 dated 22-8-2005 under section 10(4) Offence of Zina (Enforcement of Hudood (Enforcement of Hudood) Ordinance, 1979 registered with Police Station Saddar Gujrat, the learned trial Court vide judgment dated 15-5-2010 has convicted a co-accused namely Mirza Aftab Ahmad for commission of an offence falling under section 10(3) Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced him to ten years' R.I. However, this Court after hearing the appeal of the said Mirza Aftab Ahmad, bearing Criminal Appeal No,72-I of 2010 has acquitted him of the charges vide judgment dated 15-2-2013.
25. For the foregoing reasons, we have come to the conclusion that the prosecution has failed to prove the charges against acquitted accused/present respondent No,2 (Muhammad Shareef) beyond reasonable shadow of doubt. Resultantly, the impugned judgment dated 16-6-2011 whereby the learned Additional Sessions Judge Gujrat has acquitted respondent No,2/Muhammad Shareef of the charges by extending him benefit of doubt, is unexceptionable. Consequently, the instant appeal filed by Mst. Zohra Bibi against the acquittal of Muhammad Shareef/respondent No,2 is dismissed.
' These are the reasons for our short order dated 7-2-2013.
Appeal dismissed.
2013 P Cr: L 1783 [Sindhi Before Farooq Ali Channa, J AMMAR YASIR ALI---Appellant Venus The STATE---Respondent Criminal Appeal No,474 of 2010, decided on 11th February, 2013.
(a) Penal Code (XLV of 1860)--- ----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 164---Qatl-e-amd--- Appreciation of evidence- --Modern devices or techniques---Scope--Court is authorized Under Art. 164 of Qanun-e- Shahadat, 1984, to allow to produce evidence that may have become available because of modern devices or techniques. In such cases as it may consider appropriate. [p. 786] A
(b) Penal Code (XLV of 1860)- ----S. 302(6)- Qanun-e-Shahadat (10 of 1984), Art. 164---Qatl-eamd--- Appreciation of evidence- - Video film--- Proof-- Belated recovery---Effect---Trial Court relied upon Close Circuit Television
(CCTV) film and recovery of weapon and sentenced the accused to imprisonment for life--- Validity---Mere producing of CCTV video as piece of evidence and its watching in Open court was not sufficient to be relied upon unless and until corroborated and proved to be genuine---As a proof of genuineness of such CCTV video, it was incumbent upon prosecution to examine the person' who recorded the video to testify the same, which requirement, prosecution failed to fulfil-- -Prosecution even failed to point out the source of providing CCTV video---Investigating officer who received CCTV video stated in his evidence that he received 'it from a person who did not want to disclose his name or identity being a man of some surveillance--- Investigating officer admitted that nothing was visible, and identifiable in the video as such the CCTV was not reliable piece of evidence--- Recovery of weapon was effected after 6 months of the incident and 4 days after arrest of accused---Weapon along with empties recovered from place of scene was sent after 4 months and 10 months of respective recoveries to forensic .Division for examination and no explanation was forthcoming from prosecution as to where the empties and crime weapon remained lying for such a long period---Such evidence had no sanctity and no reliance could be placed on such recovery---Mere recovery of crime weapon was not enough proof to connect accused with commission of offence, when there was no ocular as well as circumstantial evidence-Prosecution failed to establish charge of murder of deceased against accused without any shadow of reasonable doubt---Conviction and sentence awarded to accused by Trial Court was set aside and he was acquitted of the charge---Appeal was allowed in circumstances. [pp. 786, 7871 B & C Umer Farooq Khan and I.A. Hashmi for Appellant.
Imtiaz Ali Jalbani, A.P.-G. For the State. Date of hearing: 31st January, 2013.
' FAROOQ ALI CHANNA , J.---The appellant has filed this criminal appeal against the judgment dated 27-10-2010, passed in Sessions Case No,799 of 2009, outcome of F.I.R. No,52 of 2009, Police Station Malir Cantt., Karachi under section 302, P.P.C., whereby the learned Sessions Judge, Malir convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life with fine of Rs,50,000, in default thereof to suffer R.I for two years more. The benefit under section 382-B, Cr.P.C.
Was extended in favour of the appellant.
2. Precisely the facts giving rise to file the present appeal are that on 12-5-2009 Complainant Syed Shabir, Hussain Rizvi lodged F.I.R., alleging therein inter alia that his daughter Sadaf Rizvi along with her husband Ammar Yasir Ali and 3 children was residing with him. On 11-5-2009 at 9-45 p.m. His daughter took his Car No,AEW-147, left the house to meet her in-laws. After some time appellant Ammar Yasir Ali came at house and informed complainant that he has received a telephonic message that dead body of Sadaf Rizvi is lying in car. Thereafter the appellant Ammar Yasir Ali proceeded towards the place of incident, whereas the complainant went to Jinnah Hospital, identified dead body of his daughter having fire shot injury on her forehead. The complainant therefore, lodged F.I.R. Without expressing suspicion against any person. During investigation, the Investigating Officer recorded further statement of complainant, wherein he showed suspicion of committing murder of his daughter against his son-in-law Ammar Yasir Ali, therefore, the Investigating Officer arrested Ammar Yasir Ali recovered pistol used in the murder on his pointation, after completing the investigation, investigation officer submitted the challan. The trial Court after 'recording evidence of prosecution witnesses, statement of appellant under section 342, Cr.P.C. And affording an opportunity of hearing to the counsel of both the sides, came to conclusion that he appellant was guilty of murder of deceased Sadaf Rizvi, therefore convicted and sentenced the appellant as stated hereinabove.
3. Learned counsel for the appellant has contended that absolutely there was no iota of evidence against the appellant. Admittedly it was an unwitnessed incident and the complainant has involved the appellant suspiciously on the basis of a footage seen by him after six months of incident. Learned counsel has further contended that video cassette received by the Investigating Officer was viewed in open Court and after watching the video cassette the Investigating Officer during cross-examination has admitted that nothing was visible and identifiable in the video.
Learned counsel has further contended that other evidence was the alleged recovery of crime weapon on the pointation of appellant, the same is unbelievable as the alleged recovery was effected after six months after the incident, which does not appeal to a prudent person that a guilty person will keep the crime weapon safely in his house, despite having ample opportunities to destroy strong piece of evidence against him. Learned counsel has further contended that the Investigating Officer also registered. Separate F.I.R. Under section 13-E of the Arms Ordinance, however, the trial Court has acquitted the appellant from the said charge. Learned counsel has further contended that although the findings of trial Court acquitting the appellant of charge under section 13-E of Arms Ordinance are not binding upon another trial Court however conflicting findings of two competent trial Courts regarding the recovery of pistol under same mashirnama creates a doubt, as such the prosecution has failed to establish the case against the appellant without any shadow of reasonable doubt rendering the appellant liable to be acquitted.
4. Conversely the learned A.P.-G. Has argued that the prosecution story is believeable, the appellant has alleged no enmity with the complainant resulting his false involvement in the heinous case of murder. Learned A.P.-G. Has further contended that the pistol recovered on the pointation of appellant and empties recovered from the place of incident were sent to Forensic Expert, who has sent his report in positive, which is strong piece of evidence connecting the appellant with the murder of deceased Sadaf. Rizvi. Learned A.P.-G. Has further contended that the prosecution beside the above evidence has also succeeded to establish the case against the appellant on the basis of circumstantial evidence without any shadow of reasonable doubt, hence the appeal is liable to be dismissed.
5. The learned trial Court has recorded the conviction forming the base of evidence of complainant, recovery of pistol used in crime on the pointation of appellant matching the empty bullets recovered from the place of incident, the message and telephonic calls made by appellant to deceased one hour prior to the incident and C.D of C.C.T.V. Per prosecution the further statement of the complainant was recorded about 6 months after the incident, wherein the complainant has shown suspicion on the basis of footage seen by him, however the complainant in his evidence before the Investigating Officer or in court has not disclosed the source of providing the said footage to him. During cross-examination the complainant has admitted that the said footage was not recovered in his presence. The complainant in his evidence has also admitted that in the footage no person was seen causing the murder of deceased however, he identified the person seen in footage standing closed to car and then ran away to be his son-in-law Ammar Yasir Ali.
The other prosecution witness is S.I. Muhammad Amir Gondal, the Investigating Officer who in his examination-in-chief has stated that he received CCTV movie, but did not disclose the source from whom he received CCTV movie viewed in open court as part of evidence. Article 164 of Qanun-e- Shahadat expressly authorizes court to allow to produce evidence that may have become available because of modern devices or techniques in such cases as it may consider appropriate.
Article 164, Qanun-e-Shahadat reads as under:-- "In such cases as the court may consider appropriate, the court may allow to be produced any evidence that may have become available because of modern devices or techniques."
However, mere producing CCTV video as piece of evidence and its watching in open court is not sufficient to be relied upon unless and until corroborated and proved to be genuine. As a proof of genuineness of such CCTV video, it was incumbent upon the prosecution to examine the person who recorded the video to testify the same, which requirement the prosecution has failed to fulfil even failed to point out the source of providing the CCTV video, the Investigating Officer who received the CCTV video in his evidence has categorically stated that during investigation he received CCTV movie from a person who did not want to disclose his name or identity being a man of some surveillance. During cross-examination he has further admitted that nothing was visible and identifiable in the video as such the CCTV is not reliable piece of evidence.
6. The further statement of complainant, recorded by Investigating Officer about 6 months after the incident, disclosing the facts discussed in the preceding paras is unreliable piece of evidence. Such further statement is not substantive evidence, it cannot be acted upon legally particularly to base a conviction of the accused person and sentencing him unless corroborated by independent evidence, which evidence in this case is missing.
7. The other evidence relied upon by the trial Court while recording the conviction was the recovery of crime weapon i.e,, .9MM pistol on the pointation of appellant. Per prosecution, the said recovery was effected after 6 months of the incident and 4 days after the arrest of appellant the same along with empties recovered from the place of scene was sent after 4 months and 10 months of respective recoveries to forensic division for examination and no explanation was forthcoming from the prosecution as to where the said empties and crime weapon remained lying for such a long period, hence the said evidence has no sanctity, thus no reliance can be placed on the said recovery nor mere recovery of crime weapon is enough proof to connect the appellant with the commission of offence, when there was no ocular as well as circumstantial evidence.
8. For the reasons discussed above, I have come to the conclusion that the prosecution has failed to establish the charge of murder of deceased Sadaf Rizvi against appellant without any shadow of reasonable doubt, therefore conviction and sentence awarded to the appellant through impugned judgment was set aside and he was acquitted from the charge of murder vide short order dated 31-1-2013.
' Above are the reasons of short order dated 31-1-2013.