' MUHAMMAD JEHANGIR ARSHAD, J.---This appeal filed by Mst. Sonia Naz is directed against the judgment dated 12-4-2007, handed down by the learned Additional Sessions Judge, Lahore, whereby the learned trial Court acquitted respondents Abdullah Khalid (S.P) son of Muhammad Saeed and Jamshed Iqbal Chishti (Inspector of Police) son of Ghulam Akbar Chishti in case F.I.R.
No,650 of 2005 dated 12-10-2005, P.S. Sattokatla, District Lahore from the charge under sections 10/11 and 16/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 344/506 and 354/355, P.P.C. And Article 155 of Police Order, 2002, while exercising the powers under section 265-K, Cr. P. C .
2. Brief facts of the case as set out in the F.I.R. No,650 of 2005 dated 12-10-2005, P.S. Sattokatla, District Lahore, upon the complaint/report (Exh.PC) of Mst. Sonia Naz, wherein she stated that on 3- 5-2005, she came out of her residence in H-2, Block Johar Town at 5/6 P.M. When four persons boarding on a car forcibly put her into their vehicle and one of them put a revolver near her chest and brought her to an unpopulated place where they put black colour cloth around and also black spectacles on her eyes and they remained roaming her in the said car and thereafter took her into a house where about 10 persons were already present and there she was confined. It was further alleged that the persons present there also made her to talk with S.P. Abdullah Khalid accused on a mobile phone and that she made a request for her release but of no vain. It is further alleged that during the night time S.P Abdullah Khalid got her awakened and expressed his anger on filing of her writ petition and that he tried to commit zina with her and also torn out her clothes and when he failed his two other accomplices opened her mouth wherein Abdullah Khalid urinated and then he summoned Jamshed Iqbal Chishti who was wearing a T.Shirt of Hangtang who committed zina- bil-jabr with her for seven minutes and thereafter she was confined in the room for 10/12 days and was ultimately left at Thokhar Niaz Baig. The motive behind the occurrence is stated to be filing of writ petition by the complainant against the accused.
3. The case was duly investigated; the respondents were arrested and statements of the P.Ws.
Were recorded under section 161, Cr.P.C. After completion of investigation, challan was submitted in the trial Court against the accused/respondents, under section 173 of the Code of Criminal Procedure.
4. The learned trial Court on receipt of challan framed the following charge against all the accused on 11-3-2006:--
(1) Abdullah Khalid (S.P) son of Muhammad Saeed, caste at Warraich, resident of 93-Ext, Cavalry Ground Lahore Cantt., Lahore.
(2) Janzshed Iqbal Chishti (Inspector of Police) son of Ghulam Akbar Chishti resident of Machhiwal Tehsil and District Jhang.
' As follows:- "First that on 12-10-2005 in the area of Block-H-II, Jaunar Town, Lahore, within the jurisdiction of Police Station, Sattokatla, Lahore, at about 05.00/06.00 p.m. You the above named accused got abducted Mst. Sonia Naz through four unknown persons through Cuore car for the purpose of commission of zina which is an offence punishable under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 and which is within the cognizance of this Court.
' Second, that after 5/6 days subsequent to the date of abduction of Mst. Sonia Naz you Abdullah Khalid accused attempted to commit zina with Mst. Sonia Naz in the night time at the place of her illegal confinement and thus committed the offence punishable under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 and thereafter you Jamshed Iqbal Chishti accused at the said time and place committed zina-bil-jabr with Mst. Sonia Naz and thus committed the offence, which is punishable under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979, which is within the cognizance of this Court.
' Third, that you the accused named above at the above said place of illegal confinement of Mst.
Sonia Naz outraged her modesty by making water into her mouth by accused Abdullah Khalid 5/6 days later to her alleged abduction and thus committed the offence punishable under sections 354/355 of P.P.C., which is within the cognizance of this Court.
' Fourth, that you the accused named above also extended threats to Mst. Sonia Naz during her illegal confinement and thus committed the offence punishable under section 506 of P.P.C. And due to the alleged commission of offences being police officers, you also misconducted during active police service and committed offence punishable under Article 155 of Police Order 2002, which is within the cognizance of this Court.
' And I hereby direct you all the above named accused persons to be tried by me for the aforesaid charges".
' The accused persons did not plead guilty and claimed trial.
5. It would not be out of place to mention here that when 11 (eleven) prosecution witnesses had been examined and document Exh.PC to PZ were also produced in evidence and only the statement of complainant/appellant Mst. Sonia Naz was to be recorded, the respondents/accused filed an application under section 265-K, Cr.P.C. For their acquittal and the learned trial Court while accepting the said application acquitted both the accused/respondents Nos.1-2 vide judgment dated 12-4-2007. Hence this appeal.
6. Mr. Zulfiqar Ahmed Bhutta, learned counsel for the appellant Sonia Naz appearing for the appellant has formulated the following points in support of this appeal:--
(i) The accused persons are police officers, who used their influence in such a manner that the appearance of the complainant/appellant before the learned trial Court for recording her statement became impossible.
(ii) Para 17 of impugned judgment of learned trial Court clearly reflects that the case has been decided on presumption and not on merits causing miscarriage of justice to the appellant.
(iii) Learned counsel for appellant/Mst. Sonia Naz further argued that there was misreading and non-reading of evidence and the accused were acquitted without recording the statement of victim/appellant without any reason.
(iv) The Court did not record a final verdict that even if she had appeared, the same would not have affected the findings of acquittal.
7. Mr. Ahmed Awais, Advocate for respondent Jamshed Iqbal Chishti and Ch. Riyasat Ali, Advocate for respondent Abdullah Khalid raised the following points:--
(i) The delay in filing the appeal was condoned without Notice or hearing the respondents which was against the principles of natural justice.
(ii) Non-appearance of the victim Mst. Sonia Naz before the learned trial Court was deliberate to defeat the process of justice and to delay the final decision.
(iii) The Court cannot be made captive by the complainant.
(iv) So far as the Shalwar of Mst. Sonia Naz is concerned, it was washed out, when sent to Chemical Examiner, hence, the same was without legal significance.
(v) P.W.7 Tariq Saleem Dogar, DIG, P.W.9 Zafar Ahmed Qureshi, DIG and P.W.10 Muhammad Aslam Tareen, DIG has conducted investigation and their findings regarding guilt of respondents were vague and not clear.
(vi) The learned trial Court was justified to make the observation that even if the victim appeared before the Court there was no probability of conviction of the accused.
(vii) Father-in-law of victim Mst. Sonia Naz has appeared as P.W.11 and his mother-in-law was given up and this fact also shows that she had intentionally and deliberately not appeared before the Court on her own choice.
(viii) There is no incriminating evidence against the accused and there is no probability of conviction.
(ix) The judgment passed by the learned trial Court is based on material record and well- reasoning.
(x) There is no question of misreading and non-reading of evidence.
(xi) Since she has not appeared of her own choice and further the appeal was filed after a lot of delay, the remanding of the case will give her a premium for the intentional delay by defeating the justice.
8. On the other hand, Additional Prosecutor-General for State comes out with the following submissions:--
(i) The judgment of the learned trial Court is based on surmises and conjectures.
(ii) The statement of the victim Mst. Sonia Naz was not recorded without any justification, so the probability of acquittal of respondents could not be inferred in the absence of her statement.
(iii) There is misreading of evidence regarding delay in F.I.R. And Medico-legal Report.
(iv) This case has peculiar circumstances and it should have been decided in its peculiar circumstances.
(v) The shalwar of victim was stained with semen as per report of Chemical Examiner, there was much probability of corroboration of the statement of the victim with this incriminating evidence, if her statement had been recorded.
(vi) The impugned judgment has been passed in haste.
9. We have considered the above noted arguments of the learned Counsel for the parties at length and have also perused the record as well as the impugned judgment.
10. Before proceeding further, we deem it appropriate to reproduce below para 17 of the impugned judgment for facility of reference:- "17. For all above reasons the prosecution cannot improve the fate of case for the conviction of these accused for the offences charged against them on 11-3-2006, even if Sonia Naz complainant is produced by the prosecution and her statement is accepted by the Court, as the same would not be corroborated by any other prosecution evidence which is already on record.
Therefore, when all the prosecution evidence available on record is not likely to prove the charges against the accused and the solitary statement of the complainant is absolutely insufficient for recording the conviction of the accused, the application moved on behalf of the complainant for sina die adjournment of this case cannot be accepted as there is no likelihood of conviction of both these accused for all the offences under sections 10, 16 and 18 of the Offence of Zina (Enforcement of Hudood) Ord. VII of 1979 and sections 354, 355 and 506 of P.P.C. And Article 155 of Police Order 2002, The applications moved by the accused Abdullah Khalid and Jamshed Iqbal Chishti are accepted and they are acquitted of the charge for the above said offences and the applications moved by Mr. Naveed Inayat Malik, Adv. Learned counsel for the complainant for sine die adjournment of the case is hereby dismissed. The accused are on bail. Their sureties are hereby relived from their liabilities. The case properly be destroyed after the period of appeal or revision, if any. File be consigned to the record room after completion."
11. It is settled principle of law that trial Court has ample power to acquit the accused to prevent the rigours of a prolonged trial when it is apparent from the record that there is no probability of the accused being convicted of the charge levelled against them. But the complainant equally deserves justice and fair treatment in this regard. In this case the investigation officer gave his clear finding during the course of his investigation "there was some probability that accused had committed the crime" Shalwar of victim Mst. Sonia Naz was found stained with semen as per report of Chemical Examiner. In such situation, the statement of victim was necessary as it is well-settled, principle of law that even the sole testimony of the victim was enough for conviction, if it was corroborated, truthful and confidence-inspiring, as also held in PLD 2012 FSC P.1. However, in this case the learned trial Court before examining the victim acquitted the respondents on the basis of application submitted' under section 265-K of Code of Criminal Procedure which cannot be approved with legal sanctity.
12. It was also contended that appeal was filed with inordinate delay, and the delay in filing the appeal was condoned without Notice or hearing the respondents which was against the principles of natural justice. No doubt, there is, 1058 days delay in filing the appeal but the same is properly explained by the appellant/complainant in her application submitted before this Court. i.e, Criminal Miscellaneous Application No,66/L of 2010.
13. According to the contents of the said application "as the appellant apprehended danger to her life at the hands of accused/respondents who were police officers, therefore she had no alternate but to go in hide and in this way she had lost her contact with her family and it was just about 21- 4-2010 when she got the knowledge of impugned judgment and on getting knowledge she immediately filed appeal without any delay". We have gone through the contents of the above noted application and also the order of this Court dated 5-6-2012 by which the delay in filing the appeal was condoned. No doubt the said order was passed in the absence and of the respondents, yet the fact remained that the respondents despite their appearance in the Court on 4-7-2012, 6-11-2012 and 21-11-2012 did not challenge the said order and thus impliedly accepted the order dated 5-6-2012 condoning the delay; even otherwise we are satisfied that as the learned trial court acted in unnecessary haste while deciding the matter in the absence and without recording the statement of the appellant/complainant and the appellant having satisfactorily explained her absence as well as non-availability before the learned trial Court for non-recording of her statement, therefore, the delay in filing the appeal by the appellant was justified and the same was rightly condoned by this Court on 5-6-2012.
14. While proceeding under section 265-K of Code of Criminal Procedure, the learned trial Court was under obligations to record reason, that in all probability the verdict of guilt would not be returned and further that it should not be done by depriving either the prosecution or the defence of its right to produce necessary evidence". It is also settled principle of law that neither the prosecution nor the defence should be deprived of producing its evidence merely because according to the. Court either the said evidence was not necessary/sufficient or not required by the Court for recording the verdict of acquittal. In this respect 2005 SCM R 1544 and 1998 PCr.LJ 1563
(FSC) may be referred to with advantage.
15. We have gone through the entire record of the learned trial Court and we feel that in view of the allegation of the appellant that she was subjected to zina by the respondents and further the availability of her shalwar stained with semen as verified by the office of Chemical Examiner, the recording of statement of appellant was not only essential but also expedient in the interest of justice and the learned trial Court acted in unnecessary haste as well as with material irregularity by acquitting the accused/respondents, simply on the basis of contents of application submitted by them under section 265-K of Code of Criminal Procedure.
16. It is, further observed that in view of the proposed judgment, we have intentionally avoided dilating upon the above noted respective contention of learned counsel for the parties on merits lest it may prejudice the case of any party before the learned trial Court, however, the above noted contention of the learned counsel for the parties shall remain open and the parties would be at liberty to re-agitate the same before the learned trial Court at an appropriate stage.
17. The upshot of above discussion is that the impugned judgment of the learned Additional Sessions Judge, Lahore passed in Hudood Case No,1 of 2006, whereby the respondents were acquitted, under section 265-K, Cr.P.C. Is hereby set aside and the Criminal Appeal No,59/L of 2005 filed by the appellant/complainant is accepted. Consequently, the matter is sent back to the learned trial Court in terms of section 428, Cr.P.C. With the direction to decide the same afresh after recording statement of appellant/complainant Mst. Sonia Naz and the other necessary evidence which the prosecution deems necessary to produce, however, after affording ample opportunity of defence to the accused/respondents.
18. The parties are directed to appear before the learned District and Sessions Judge, Lahore on 10- 12-2012 and the learned District and Sessions Judge would be at liberty either to retain the case on his own file or entrust the same to some other Court of competent jurisdiction. It is further directed that the learned trial Court shall ensure the expeditious disposal of case within four months from the date of receipt of this order with compliance report to Registrar of this Court.
Case remanded.
2013 CLD 1273 [Sindh] Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ Syed MUHAMMAD FURQAN---Applicant versus The STATE---Respondent Criminal Bail Application No, 380 of 2012, decided on 18th April, 2012.
Criminal Procedure Code (V of 1898)------S. 497(2)--- Penal Code (XLV of 1860), Ss.409, 420, 109, 34 & 477-A---Central Depositories Act (XIX of 1997), S.24---Securities and Exchange Ordinance (XVII of 1969), S. 16(c)---Criminal breach of trust by banker, merchant or agent, cheating and dishonestly inducing delivery of property, abetment, common intention, falsification of accounts, handling book-entry securities without authority, prohibition and restriction on pledging customers' securities-Bail, grant of-- Further inquiry--- Allegation against the accused [alleged director of a company (brokerage house) dealing in securities] was that he, in connivance with the co-accused and different banks, unauthorizedly and illegally, pledged shares of various clients, including those of the complainant, with the banks to secure finances for the company, and as a consequence of default committed by the company, the banks sold the pledged shares causing colossal losses to the complainant and other clients of the company-Prosecution contended that in terms of S.24 of the Central Depositories Act, 1997, a stock broker was not authorized to pledge shares with any bank/financial institution and/or Stock Exchange without authorization from the sub-account holder, and that such restriction was also imposed by S.16(c) of Securities and Exchange Ordinance, 1969---Contentions of the accused were that he was a paid employee of the company and was working for the company as a General Manager and that he had resigned from his job with the company-Validity---Investigation officer had admitted that none of the witnesses, whose statements were recorded under S.161, Cr.P.C., had alleged any personal involvement of the accused in the entire transaction; that he had not been able to lay hands on any document which might implicate the accused directly, and that all relevant documents pertaining to the transactions/scam in question had been signed and executed by the two absconding co-accused---Neither the complainant had made any allegation against the accused nor he nominated the accused in the F.I.R., but the accused had been nominated as a co-accused in the challan---Accused held merely 0.02% shares in the capital of the company, therefore, it seemed that he was merely a paid employee---Accused remained on physical custody of the Federal Investigation Agency (FIA) for about 11 days, but nothing incriminating could be procured and/or discovered against him-None of the documents pertaining to the transaction in question had been executed and/or signed by the accused--- Holding further inquiry into the guilt of the accused was essential---Accused was admitted to bail, in circumstances. [p. 1276] A, B & C Shahab Sarki and Zulfiqar Ali Langah for Applicant.
Syed Ashikue Raza, D:A.-G. Along I/O Sub-Inspector Mansoor Ali Khan, FIA, Corporate Crime Circle for the State.
' MAQBOOL BAQAR, J.---Applicant/accused, Syed Muhammad Furqan son of Syed Nasir Hussain, has through this application prayed for his enlargement on bail in Crime No,5 of 2012, registered at P.S. FIA, Corporate Crime Circle, Karachi, on 9-2-2012 for offences under sections 409, 420, 477-A, 109, 34, P.P.C.
' Brief facts of the prosecution case are that the applicant, who is a Director of Eastern Capital Limited, a brokerage house dealing in securities, ("The Company"), in connivance with the co- accused, namely, Munir Muhammad Ladha, Executive Chairman of the said company, Abdul Samad Ladha, Chief Executive Officer of the company, one Mudasir Iftikhar, the Karachi Stock Exchange Limited and four different banks as nominated in the F.I.R., have pledged the various shares of their various clients including the complainant, Aman 4ziz Siddiqui, with the nominated banks, to secure certain finances obtained by the company, unauthorisedly and illegally. It is further alleged that the accused persons having defaulted in the repayment of such finances. The creditors nominated banks sold the said pledged shares in open market towards recovery of the amounts outstanding in respect of such finances. As per the ledger account of the complainant, Aman Aziz Siddiqui, maintained by the company various shares were purchased during the period from 1-7-2008 to 13-9-2009 but the same were not reflected in the CDC Sub-Account of Aman Aziz Siddiqui, most of the said shares were transferred to CDC Sub-Account No, 504, in the name of Abu Baker Siddique, one of the shareholders of the company- and a brother of accused Munir Muhammad Ladha and Abdul Samad Ladha. It is further alleged that 50,000 shares, held by the complainant in "TRG", as reflected from CDC Sub-Account of the complainant, have been pledged with the banks directly from the said account which shares on account of default in the repayment of financial facilities obtained against such pledged were on 19-12-2008 sold by the creditor banks.
As per Securities and Exchange Commission of Pakistan, the company has been declared a defaulter. It is stated that in terms of section 24 of the Central Depositories Act, 1997 a stock broker is not authorized to pledge shares with any bank/financial institution and/or Stock Exchange without authorization from the sub-account holder. Such restriction is also imposed by section 16(c) of Securities and Exchange Ordinance, 1969. It is further stated that- the sub-account in the name of the complainant was opened by the company on 30-2-2000 who is the registered member of Karachi Stock Exchange and also a registered broker of SECP.
' The learned counsel for the applicant submits that the applicant was a paid employee of the company and was working for the company as General Manager, Human Resources and Administration and has through letter dated 15-12-2008 resigned from his job with the company.
The learned counsel submits a photocopy of such letter with acknowledgement of receipt bearing a seal of company. He also submits before us a photocopy of Interoffice Memo dated 2-1-2009 from ECL, purportedly signed by accused Munir Muhammad Ladha. The learned counsel also submits a print out, downloaded from the site of Securities and Exchange Commission of Pakistan, (Securities Market Division), showing the shareholding of the applicant in the company as 0.02% with 650 shares, out of total shares of 4,030,000. The learned counsel submits that presently the applicant is serving with National Logistics Cell as Senior Manager (HR) on a fixed salary of Rs,65,000 per month and submits a photocopy of a certificate issued by National Logistics Cell and the relevant salary slip in support of his claim.
According to the Investigating Officer, the applicant was arrested on 31-3-2012 and has remained in the custody of FIA upto 11-4-2012 whereafter he is in judicial custody. The I.O. Candidly admits that none of the witnesses, whose statements have been recorded by him under section 161, Cr.P.C., have alleged any personal involvement of the present accused in the entire transaction. He submits that he has not been able to lay hands on any document which may implicate the applicant directly. He, however, submits that as per the list of Directors, obtained by him from the record of the company the applicant is one of the Directors out of its five Directors. He further submits that the co-accused Munir Muhammad Ladha, Chairman/ Director and Abdul. Samad Ladha, CEO/Director of the company are absconding. He further admits that all the relevant documents pertaining to the transaction/ scam in question have been signed and executed by the said two absconding accused only.
' It is also pertinent to note that neither the complainant has made any allegation against the accused nor the accused has been nominated by him in the F.I.R. However, in the challan the applicant has been nominated as a co-accused. Such, according to the I.O. Has been done for the reason that the accused is a Director of the company.
' Syed Ashikue Raza, the learned Deputy. Attorney-General opposes the request for grant of bail. He submits that a huge amount of more than Rs,5 million is involved in the present case. He submits that the company has in violation of legal prohibition pledged the shares of the complainant and their various other clients and that three of the accused are still absconding.
As noted above, the applicant admittedly held merely 0.02% shares in the capital of the company, it seems that the applicant was merely a paid employee of the company. Though he has remained in the physical custody of FIA for about 11 days, nothing incriminating could be procured and/or discovered against the applicant. Admittedly, none of the documents pertaining to the case transaction have been executed and/or signed by the applicant. In the circumstances, it is essential to hold further inquiry into the guilt of the applicant, if any, in this case. We would, therefore, admit the applicant to bail, subject to his furnishing surety in the sum of Rs,10,00,000 (Rupees One Million only) and a surety bond in the like amount to the satisfaction of the Nazir of this Court.