' SHEIKH AHMAD FAROOQ, J.---Appellant/Nadia through Criminal Appeal No,110-L of 2010 and appellant/Rehmat Ali through Criminal Appeal No,113-L of 2010 have challenged the judgment dated 23-9-2010 delivered by the learned Additional Sessions Judge, Lahore whereby they were convicted and sentenced as under:-- Mst. Nadia/appellant: Conviction Sentence
(i) Under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979Life imprisonment with fine of Rs.10,000 or in default thereof to further undergo one month's simple imprisonment.
(ii) Under section 11 of the Ordinance ibid No sentence Rehmat Ali/appellant: Conviction Sentence Under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 197925 years' imprisonment with fine of Rs.25,000 or in default thereof to further undergo two months' simple imprisonment.
' Benefit of section 382-B, Cr.P.C. Was extended to both the appellants. Both the above-mentioned criminal appeals are being disposed of by this single judgment as these have arisen out of one judgment and crime report.
2. It is pertinent to mention here that Jehangir/a co-accused was also convicted under section 10 of the Ordinance VII of 1979 and sentenced to 25 years' imprisonment with fine of Rs,25,000 or in default thereof to further undergo two months' simple imprisonment with benefit of section 382-B, Cr.P.C. However, at the time of announcement of judgment by the learned trial Court convicted/ accused Jahangir slipped away from the cow./ and as such, his non-bailable warrants of arrest were issued by the learned trial Court with direction to the SHO to arrest him.
3. The prosecution case in brief is that complainant/Abdul Waheed (P.W.5) submitted a written application/Exh.PA before the District Police Officer, Lahore wherein it was stated that on 7-6-2005, he along with his sister Mst. Sumera, aged about 13/14 years went to Data Darbar for offering `salam', where Mst. Sumera was lost. On 28-6-2005, Mst. Sumera sent a message to the complainant/her brother through an unknown person that accused namely Nadia Begum, Robina alias Billo Butt, Aashi, Sabir, Rehmat alias Fayyaz, Shahida, Zahida, Jahangir and Maryam had abducted her and detained in a house at Lahore. The accused allegedly tortured her and forced her for prostitution. On the said information, the complainant along with his relatives contacted the accused and booked Mst. Sumera for a night and in this way, Mst. Sumera joined her brother/complainant, whereupon she narrated the story of her abduction. According to her, a rickshaw driver enticed her and took her to the house of accused/Robina alias Billo Butt situated near Awan Bakery Rustam Chowk Samanabad Morr, Lahore where Mst.Robina detained her. Soni Butt, Hakeem, Amir, Agha and some other persons forcibly committed `zina' with her. Then Robina/accused sent her to the house of her sister Ashi at Jafria Colony, Nawan Kot where Mubarak, Shah Jee etc., and some other persons forcibly committed `zina' with her. Ashi/accused took her to the house of her neighbourer Rehmat alias Fiaz where Rehmat alias Fiaz and Papu Prince forcibly administered her liquor and committed `zina' with her. She further stated that accused Robina alias Billo. Butt, Ashi and other accused used to forcibly administer her liquor and charas' filled cigarettes and also forced her for commission of zina. On her refusal, she was severely beaten and burning cigarettes were thrown or ner body. This application Exh.PA was marked by the Deputy Inspector-General to Superintendent of Police for legal action on 29-6-2005. Hence, F.I.R.
No,772/05/Exh.PA/1 was registered at Police Station Lower Mall, Lahore on 30-6-2005 under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
4. Investigation ensued as a consequence of registration of crime report. Muhammad Ramzan/Sub-Inspector (P.W.6) undertook the investigation. He inspected the place of occurrence and prepared site plan Exh.PE. On 1-7-2005 the complainant along with Mst. Sumera Bibi/victim appeared before him at police station and he recorded statement of Mst. Sumera under section 161, Cr.P.C. He arrested accused/Rehmat Ali, Mst. Asifa, Mst. Robina alias Billo and Mst. Nadia and sent them to judicial lock up on 2-7-2005. He got Mst. Sumera Bibi/victim medically examined on 4-7-2005. On 7-7-2005 Special Judicial Magistrate recorded statement of Mst. Sumera Bibi under section 164, Cr.P.C. After completion of the investigation, the S.H.O submitted report under section 173, Cr.P.C. Before the Court on 24-7-2005 requiring the accused to face trial.
5. The learned trial Court framed charges against the accused on 9-9-2006 under sections 11, 13 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The, accused did not plead guilty and claimed trial.
6. The prosecution produced seven witnesses to prove its case. The gist of the deposition of the witnesses is as follows:--
(i) P.W.1/Sajjad Hussain, ASI had formally recorded F.I.R. /Exh . PA/1 on receipt of application/Exh. P.A.
(ii) P.W.2/Dr. Sameera Alam had medically examined Mst. Sumaira Bibi/vietim on 4-7-2005 and observed as follows: "Hymen was torn and old healed tears were present. Vagina admitted two fingers. Three vaginal swa bs were taken and sent to the office of the Chemical Examiner. Urine of the examinee was also taken for pregnancy test. Ultrasound was also advised for pregnancy test. Result of tests revealed that pregnancy was negative. MLC/Exh.PC is in my hand and bear my signatures."
(iii) Mst. Sumera/victim appeared at the trial as P.W.3 and stated that on 7-6-2005 she along with her brother Abdul Waheed came to Data Darbar, Lahore for offering `salam'. When she returned after offering `salam', she did not find her brother outside Darbar. She started search of her brother.
In the meanwhile, a man with rickshaw cam there and asked where she wanted to go. She told him that she was searching her brother. Rickshaw driver informed her that some time earlier, an accident has taken place there and his brother might have been shifted to the hospital. The rickshaw driver boarded her in the rickshaw and took her to the house of Nadia/accused, who took her to the house of Robina alias Billo. In the evening, Billo forced her for prostitution but she refused.
Hakeem and Soni Butt came there in the evening and forcibly committed zina-bil-jabr with her.
Several other persons including Amer, Agha, Mubarak and Shah Jee visited the house of Robina alias Billo accused and committed zina with her. Accused Billo and Nadia forcibly administered liquor to her. Robina/accused took her to the house of her sister/Asifa alias Ashi where Rehmat alias Fiaz neighbourer of Ashi accused booked her for a night, for prostitution. Rehmat, Jahangir, Pappu Prince and Zahid committed zina-bil-jabr with her in the house of Rehmat. She returned to the house of Ashi where Shahid son of Ashi accused also committed zina with her. Robina again took her to her house where a person came and she asked him for help but he refused to do so, however he informed her family members. She was again booked for a night where her brother Abdul Waheed met her and she along with her brother went to police station and her brother got registered rapt.
(iv) P.W.4/Muhammad Iqbal Mazhar stated that he was posted as Special Judicial Magistrate, Data Gunj Bakhsh Town, Lahore. On 5-7-2005 Muhammad Ramzan/S.I submitted an application/Exh.PD/1 for recording statement of Mst. Sumera Bibi under section 164, Cr.P.C. He adjourned the proceedings for 7-7-2005 for, appearance of the accused Mst. Nadia, Mst. Robina, Mst. Asifa alias Ashi and Rehmat Ali alias Fiaz. On. 7-7-2005 Muhammad Rasheed/ASI produced Mst. Sumera Bibi as well as the accused persons. The brother of Mst. Sumera Bibi was also present. The witness after observing legal formalities recorded statement/Exh.PD of Mst. Sumera Bibi under section 164, Cr.P.C.
(v) Abdul Waheed/complainant appeared as P.W.5 and reiterated version as contained in his complaint/Exh.PA.
(vi) P.W.6/Muhammad Ramzan/S.I had undertaken the investigation, the details of which have already been mentioned in paragraph-4 of this judgment.
(vii) P.W.7/Dr. Muhammad Amin had medically examined accused Jahangir and found him sexually potent.
7. The prosecution closed its evidence on 16-7-2010 whereafter the learned trial Court recorded statement of Mukhtar Husciin/S.I as C.W.1 who stated that he received robkar of the Court regaraing submission of report of Chemical Examiner. He perused the record including F.1.R. Annexed and found that the envelope of swa bs was not forwarded to the office of the Chemical Examiner. He inquired from the Investigating Officer, who told him that he did not know whether he forwarded the above said envelope or not. He submitted report/Exh.CW.1/A in this regard which was verified by the S.H.O.
8. The learned trial Court recorded the statements of the accused under section 342, Cr.P.C. On 19- 7-2010. The accused denied the allegations levelled against them. In reply to a crucial question "why this case against you and why the P.Ws. Deposed against you?" the accused stated as under:-- ' Mst. Nadia/accused: "Behaviour of witnesses and delay in trial also manifest this fact independently. I was in jail when this occurrence took place. I was beautician and I was delivering "Deg' of rice at Data Darbar when the Police arrested me with my all family members and released my family members after taking heavy bribe, demanded more money which I could not pay them. Resultantly, the police illegally detained me and challaned me in this case. So, this is case of the police victimization. I am innocent in present case".
' Rehmat Ali/accused: "I was involved by Mr. Abid resident of Nawan Kot, Lahore with whom I had business relation of property matters, and I had to receive big amount from him and instead of giving money back to me, got involved me in this case since he was the police tout along with the complainant. Earlier to this I never know the complainant or his sister Mst. Sumera the alleged abductee. I am totally innocent in present case."
' The accused persons neither opted to make their statements on oath under section 340(2), Cr.P.C.
Nor produced any witness in their defence.
9. Upon the conclusion of the trial, the learned trial Court vide judgment dated 23-9-2010 has convicted accused/ present appellants as mentioned herein before in para-1 of this judgment.
Hence, these two appeals.
10. Learned counsel for the appellants namely Mst. Nadia and Rehmat Ali submitted that there is an unexplained delay of 23 days in the registration of the case as the occurrence took place on 7-6- 2005 whereas the F.I.R. Was lodged on 30-6-2005. They further submitted that despite the recovery of the victim on 28-6-2005, she was got medically examined on 4-7-2005 i.e, after a delay of six days. They contended that the appellant/Nadia neither kidnapped nor abducted Mst. Sumera Bibi from outside Data Darbar and as such, she could not have been convicted for an offence falling under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned counsel for Mst. Nadia/appellant highlighted that the learned trial Court did not award any sentence to the accused/Mst. Nadia despite recording her conviction under section 11 of the Ordinance ibid. The learned counsel for Nadia/appellant pointed out that through the impugned judgment dated 23-9-2010, Mst. Nadia has been convicted and sentenced to life imprisonment under section 10 of the Ordinance ibid and she, being a female, could not possibly be held guilty for commission of "zina" with the alleged abductee namely Mst. Sumera. They claimed that no witness of the occurrence except the victim/Mst. Sumera(P.W.3) and the complainant/Abdul Waheed/P.W.5 have been produced by the prosecution in support of their allegations. They maintained that there is no report of Chemical Examiner on the record regarding the swabs which were taken from the vagina of Mst. Sumera by Lady Dr. Sumera Alam/P.W.2. They claimed that the statement of the victim/Mst. Sumera/P.W.3 is neither trustworthy nor supported by the medical evidence. They asserted that the impugned judgment is the result of misreading and non-reading of evidence available on record in addition to have been passed on presumptions.
11. Conversely, the learned counsel for the complainant submitted that the complainant/P.W.5 as well as the victim/P.W.3 had no mala fide intention to falsely implicate the present appellants in this case. He further submitted that victim/Sumera, who was unmarried at the time of occurrence, was not only abducted by the accused but also used for the purpose of prostitution with many persons. Regarding the absence of, the report of the Chemical Examiner, he submitted that the complainant could not suffer due to the lapse of the Investigating Officer. However, he maintained that the commission of the offence of zina by accused/Rehmat is proved from the statement of the victim/Mst. Sumera(P.W.3) as well as the report of Lady Dr. Sumera Alam who appeared as P.W.2.
' In support ,of his arguments, the learned counsel for the complainant/Abdul Waheed relied upon the following case-law:--
(i) 2007 SCM R 473
(ii) 2002 SCM R 303
(iii) 2002 SCM R 1009
(iv) 2005 SCM R 284
(v) 2006 SCM R 360
12. Learned Deputy District Public Prosecutor, while supporting the impugned judgment, adopted the arguments advanced by the learned counsel for the complainant. However, the learned D.D.P.P admitted that Mst. Nadia could not have been convicted for commission of an offence falling under section 10 of the Ordinance No,VII of 1979. He also could not controvert the fact that the learned trial Court despite convicting Mst. Nadia under section 11 of Ordinance No,VII of 1979, did not award any sentence to her, which is illegal.
13. We have heard the learned counsel for the appellants as well as the learned D.D.P.P for the State and the learned counsel for the complainant at length. We have also evaluated the evidence produced by the prosecution during the trial in addition to carefully examining the impugned judgment dated 23-9-2010.
14. At the very outset, we would like to observe that the impugned judgment dated 23-9-2010 is not in accordance with subsections (2) and (3) of section 367, Cr.P.C. As the learned trial Court in para No,19 of the said judgment why convicting Mst. Nadia for an offence under section 11 (wrongly mentioned as Article) of Ordinance No,VII of 1979 as "tazir" did not pass/award any punishment/sentence. Similarly the learned trial Court vide para-20 of the impugned judgment dated 23-9-2010 has not only convicted Mst. Nadia under section 10 of Ordinance No,VII of 1979 without specifying any subsection i.e, 2, 3 and 4 but also sentenced her to life imprisonment as well as imposed a fine of Rs,10,000 which is not provided in subsection (3) of section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. For the sake of ready reference, section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is being reproduced hereunder:- ' Sec.
10. Zina or zina-bil-jabr liable to tazir.---(1) Subject to the provisions of section 7, whoever commits zina or zina-biljabr which is not liable to hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of qazf liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, shall be liable to tazir.
(2) Whoever commits zina liable to tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
(3) Whoever commits zina-bil-jabr liable to tazir shall be punished with imprisonment for a term which shall not be less than four years not more than twenty-five years.
(4) When zina-bil-jabr liable to tazir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death.
' A plain reading of the above provision of law would reveal that the punishment of "life imprisonment" is nowhere provided in any subsection of section 10 of the Ordinance ibid. However, according to subsection (3) of section 10 of the Ordinance ibid, an accused who had committed zina-bil-jabr liable to "tazir" shall be punished with imprisonment for a term which shall not be less than four years not more than 25 years. It is also worth-consideration that no fine could be imposed upon an accused while convicting him under subsection (3) of section 10 of the Ordinance ibid. No doubt, according to section 57, P.P.C. The imprisonment for life shall be reckoned as equivalent to imprisonment for 25 years but the punishment of life imprisonment is obviously beyond the express provision of section 10(3) of the Ordinance ibid.
15. Above all convicted accused /Mst. Nadia/present appellant is a female and she cannot possibly be held guilty of committing zina-bil-jabr or sexual intercourse with Mst. Sumera, who is also a woman. In view of above, not only the impugned judgment has been written in a perfunctory and slipshod manner but also suffers from omissions which are not curable at this stage. The Hon'ble Supreme Court of Pakistan in the judgment reported in 1996 SCM R 3 has laid down that it is the bounden duty of the court to specify the relevant section or subsection in which the accused is being sentenced and nothing should be left for presumption. Similarly, in a judgment reported in 2002 PCr.LJ 1478, it has been held that court while convicting accused is under legal obligation to specify offences for which accused is being convicted and would also cite relevant section of law under which he is sentenced. Failure of trial Court to pass sentence under appropriate section of Penal Code and to specify the same in its judgment, would render judgment unsustainable.
Compliance with section 367, Cr.P.C. Was essential, as the word 'shall' implies, that provision in question was not permissive but imperative. Hence, for the above legal and other grounds/reasons being recorded in the subsequent paras, the impugned judgment is not sustainable and nullity in the eyes of law to the extent of appellant/Mst. Nadia.
16. Now adverting to the merits of the case, it has transpired from the record that the occurrence took place on 7-6-2005 and the complainant/Abdul Waheed, who is real brother of the victim Mst.
Sumera Bibi did not report the matter to the police till 28-6-2005. Even when a person (whose name is neither mentioned in the complaint nor in the evidence produced by the prosecution in the trial Court) informed the complainant about the whereabouts of Mst. Sumera Bibi, he did not report the matter or sought the help of the police. Rather, the complainant through unknown persons adopted a highly detestable method of recovering her sister/Mst. Sumera Bibi from the clutches of the accused i.e,' he hired/booked her real sister/Mst. Sumera Bibi for a night ostensibly for prostitution/immoral purposes. Therefore, not only there is unexplained delay in the registration of the case by the complainant but also the conduct of the complainant, who is the real brother of the victim, is quite unnatural and not believable.
17. ' Secondly, the alleged victim/Mst. Sumera Bibi was recovered on B 28-6-2005 whereas her medical examination was conducted by P.W.2/Dr. Sameera Alam on 4-7-2005 and she did not find any marks of injury or violence on the body of the victim, despite her allegations that she was subjected to torture, physical beating in addition to zina-biljabr by many persons during her abduction starting from 7-6-2005 to 28-6-2005. Admittedly, there is no eye-witness of the commission of zina-bil-jabr by any person with Mst. Sumera Bibi. Even the swabs which were taken from the vagina of Mst. Sumera Bibi at the time of her medical examination by P.W.2 were not sent to the Chemical Examiner as admitted by C.W.1. Hence, we are left with the solitary statement of Mst. Sumera Bibi for determining whether she was subjected to zina-biljabr by convicted accused/Rehmat Ali alias Fayyaz/present appellant. No doubt, the Apex Court of Pakistan in number of judgments e.g. 2002 SCM R 1009 (Shahzad alias Shaddu and others v. The State) 2002 SCM R 303 (Rana Shahbaz Ahmad and two others v. The State) and 2007 SCM R 473 (Mushtaq Ahmed and another v. The State) has laid down that mere statement of the victim in a rape case was sufficient to connect accused with the commission of the offence, if the same is confidence inspiring, trustworthy and natural. However, in the present case neither the statement of victim/Mst.
Sumera Bibi/P.W.3 seems to be truthful or reliable as she neither raised any hue and cry despite being shifted from one place to another nor tried to run away or contact her brother or the police (during a long period starting from 7-6-2005 to 28-6-2005). In the F.I.R. Dated 30-6-2005 the complainant mentioned the age of Mst. Sumera Bibi about 13/14 years whereas in the Medico-legal Certificate/Exh.PC, dated 4-7-2005, Dr. Sameera Alam/P.W.2 had written the age of the victim as 16 years and the learned trial Court while recording the statement of victim/Mst. Sumera Bibi/P.W.3 on 12-12-2006 has mentioned her age 15-1/2 years.
18. Furthermore, according to the statement of victim/P.W.3, she was subjected to zina-bil-jabr by several persons on different occasions during her abduction but neither there is any report of the Chemical Examiner nor grouping of blood/semen or DNA test of any accused, particularly, Rehmat Ali/accused was got conducted.
19. Consequently, we are of the considered opinion that the sole testimony of the victim/Mst.
Sumera Bibi is neither trust worthy or confidence-inspiring nor corroborated by any medical evidence. Needless to mention here, that in rape cases particularly in cases of zina-bil-jabr allegedly committed by many persons (i.e, Gang Rape) the medical examination of the victim alone is not sufficient to conclusively determine as to who has committed rape with the victim.
Whenever there is an uncertainty in any case regarding the commission of an offence the benefit of doubt is always given to an accused not as a matter of grace or concession but as a matter of right. (Reliance 1995 SCM R 1345).
20. As far as the conviction of Mst. Nadia by the learned trial Court ID under section 11 of the Ordinance ibid is concerned, the same is also not sustainable as no sentence/punishment has been awarded to her for the commission of the said offence by the learned trial Court while passing D the impugned judgment dated 23-9-2010. Even otherwise, according to the F.I.R. As well as the statements of the victim/P.W.3 and complainant/P.W.5, one rickshaw driver abducted/took Mst. Sumera Bibi from the Data Darbar to the house of Mst. Nadia/present appellant. There is also contradiction in the statements of P.W.3 and P.W.5 as to whether the unknown rickshaw driver. Took Mst. Sumera Bibi to the house of Mst. Nadia/present appellant or Robina alias Billo Butt. It would not be out of place to mention here that Mst. Robina alias Billo Butt had died during the trial. It is also significant that neither the name of the said rickshaw driver has been mentioned in the F.I.R. Or in the statements of the witnesses of the prosecution nor he was implicated as an accused in this case. Muhammad Ramzan/P.W.6, who is the I.O. Of this case, admitted in his cross-examination that he did not associate any witness from the place from where Mst. Sumera Bibi was abducted or recovered. P.W.6 further admitted that there is no evidence against accused/Mst. Nadia regarding the abduction of Mst. Sumera Bibi. Additionally, there are material contradictions and discrepancies in the statements of the witnesses of the prosecution. P.W.5 during the course of his cross-examination stated that he was residing at Lahore whereas her sister/victim i.e, P.W.3 was residing at Gujranwala at the time of occurrence. Similarly, neither the name of person, who informed the complainant about the illegal confinement after abduction of Mst. Sumera Bibi has been disclosed during the evidence of the prosecution nor his telephone No, has been mentioned anywhere.
21. The upshot of the above discussion and observations is that the impugned judgment dated 23- 9-2010 is not only unsustainable, being violative of section 367, Cr.P.C. As well as section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but also the prosecution miserably failed to prove the guilt of the convicted accused present appellants beyond reasonable shadow of doubt. Resultantly, both the appeals filed by Mst. Nadia and Rehmat Ali are accepted, and the impugned judgment dated 23-9-2010 is set aside. Consequently, the convicted accused/present appellants are acquitted of the charges. They are behind the bars and ordered to be released forthwith, if not required in any other case.
' These are the reasons for our short order dated 15-5-2013.