1. Dr. Fida Muhammad Khan, J.--Criminal Appeal No. 04/L of 2012 has been filed by appellant/accused Nadeem against the judgment dated 08.02.2012 passed by learned Additional Sessions Judge, Chiniot, whereby he has convicted him under Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter to be referred as the "said Ordinance") and, on account of being juvenile, sentenced him to imprisonment for life in view of Section 12(a) of Juvenile Justice System Ordinance, 2000.
2. Criminal Appeal No. 05/L of 2012, jointly filed by- six appellants/accused namely Anwar, Akbar, Sajid, Liaqat Ali, Muhammad Ali and Ghulam Ali, against a separate judgment of even date whereby all the appellants/accused, mentioned above, have been convicted under Sections 10(4) and 11 of the said Ordinance, 337-L(ii), and 337-H(ii) and 458, PPC and sentenced as mentioned against each hereinunder-- Anwari. U/S.10(4) of the said Ordinance, death sentence ii. U/S. 11 of the said Ordinance, 25 years R.I. with a fine of Rs. 25,000/- to default thereof to further suffer six months iii. U/S. 458, PPC, 14 years R.I. with fine of Rs. 10,000/- and in default six months S.I. iv. U/S.337-L (ii), PPC, two years S.I. and U/S.337-H(ii) three months S.I.
2. Akbari. U/S.10(4) of the said Ordinance, death sentence ii. U/S. 11 of the said Ordinance, 25 years R.I.with a fine of Rs. 25,000/- in default thereof to further suffer six months S.I. iii. U/S. 458, PPC, 14 years R.I. with fine of Rs. 10,000/- and in default six months S.I. iv. U/S.337-L(ii), PPC, two years S.I. and U/S.337-H(ii) three months S.I.
3. Sajidi.U/S. 10(4) of the said Ordinance, death sentence ii. U/S. 11 of the said Ordinance, 25 years R.I.with a fine of Rs. 25,000/- in default thereof to further suffer six months S.I. iii. U/S. 458, PPC, 14 years R.I. with fine of Rs. 10,000/- and in default six months S.I. iv. U/S.337-L(ii), PPC, two years S.I. and U/S.337-H(ii) three months S.I.
4. Liaqati. U/S.10(4) of the said Ordinance, death sentence Muhammad Ali i. U/S.10(4) of the said Ordinance, death sentence Ghulam Ali i. U/S. 11 of the said Ordinance, 25 years R.I.with a fine of Rs. 25,000/- in default thereof to further suffer six months S.I. ii. U/S. 458, PPC, 14 years R.I. with fine of Rs. 10,000/- and in default six months S.I. iii. U/S.337-L(ii), PPC, two years S.I. and U/S.337-H(ii) three months S.I.
5. All the sentences of imprisonment awarded to the appellants/accused were ordered to run concurrently.
6. A co-accused namely Tanveer has also been convicted under Section 10(4) and Section 11 of the said Ordinance and also under Sections 458, 337-L(ii) and 337-H(ii), PPC and sentenced accordingly through the same judgment dated 08.02.2012 but he has not preferred any appeal before this Court as he had slipped away at the time of pronouncement of impugned judgment as mentioned in its Para 56.
3. The learned trial Court has also submitted Criminal Murder Reference which is registered as 1/L of 2012. Since all these matters have arisen out of judgments pronounced in respect of accused of a single crime report i.e. F.I.R. No. 226/2005 Police Station Saddar, Chiniot, hence, these are being decided by this single judgment.
4. Brief facts of the case, as narrated in the FIR (Ex.PV/1) are that complainant Inayat Ali, PW.1, submitted complaint (Ex.PV) before SHO, Police Station, Saddar Chiniot wherein, interalia, he stated that in the night intervening between 30/31.05.2005, he was sleeping alongwith his family members, brother in law, Azhar and Noor in the Courtyard of his house. At about 12.00 a.m. accused Anwar, Akbar, Ghulam Ali, Sajid and six unknown persons, armed with fire-arms, entered his house and made lalkara that they had come to abduct daughter of complainant to take revenge of the abduction of Shabana daughter of Anwar accused. They threatened that if anyone raised alarm, they would kill him. The accused persons caught hold of his daughter, namely Fouzia, whereupon the complainant and PWs tried to rescue her. The accused persons inflicted butt blows on the complainant and other family members and also extended threats to kill them. Thereafter, while making aerial firing, they took along Mst. Fauzia outside his Haveli and thus succeeded in abducting her away. The motive behind this occurrence, as alleged by the complainant, is that Shabana, daughter of the accused Anwar, who had illicit relations with one Mumtaz had been abducted by him a few days before the occurrence and the appellants/accused persons had a suspicion that the complainant had some role in that abduction. Resultantly the appellants/accused abducted his daughter Mst. Fauzia. FIR No. 226, was accordingly registered on 2.6.2005 at Police Station Saddar Chiniot, District Jhang.
5. After completion of investigation, challan was submitted to Anti-Terrorist Court, Faisalabad on 13.08.2005. However, later on Section 7 of Anti-Terrorism Act, 1997 was deleted and the case was transferred to Additional Sessions Judge, Chiniot for trial.
6. The said trial Court, on 18.01.2012, framed charge. under Sections 458, PPC, 337-L(ii) and 337-H(ii), PPC as well as under Sections 10(4)/11 of the said Ordinance, against all the accused.
7. However, the case of Nadeem accused, was separated for trial under Juvenile Justice System Ordinance, 2000, and charge was accordingly framed against nim also.
7. All the accused did not plead guilty and claimed trial. At the trial, the prosecution produced 11 witnesses to prove its case. A gist of their depositions is mentioned hereinunder:-- PW. 1 is Dr. Zaid Hussain Bukhari, MO RHC, Ahmad Nagar. He stated that on 13.6.2005 he medically examined accused Ghulam Ali. On 29.06.2005 he medically examined Muhammad Anwar and Tanveer Ahmed regarding potency. He opined that all were fit to perform sexual act; Inayat, complainant is PW.2. He reiterated the same facts as he had got recorded in complaint (Ex.PV); Mst. Fouzia, victim is PW.3. She made statement before the trial Court in the following words: "At the time of occurrence I resided near Adda Burjian. On the intervening night of 30/31.5.2005 I was sleeping alongwith my children Noor, my father Inayat, Altaf my uncle Wallayat and Nawaz at my house. At about 12 of the night I heard noise and we all awoke up. I saw Anwar, Akbar, Ghulam Ali, Sajid, Tanveer and five unknown persons whom I can identify them on their appearance, entered into our house while making fire with fire-arm weapons while mounting on the horses. The afore said persons namely Anwar, Akbar, Ghulam Ali, Sajid, Tanveer are now present in the Court but unknown persons are not present today. They raised Lalkara that they had come to take revenge of abduction of Shabana and started to beat my maternal uncle Nawaz as well as ourselves. They forcibly dragged me towards the gate and got mounted me on a mare. At some distance, there was parked a car near Dera and they also put me in the car and the mare riders accused went towards river. The accused took me to a Dera situated near Bailla of river. Afterwards they took me out from the car and took me in a room. The accused Anwar, Muhammad Ali, Liaqat, Sajid and Akbar committed Zina with me turn by turn on the whole night. On the morning, they took me into maize crop and tied me with a chain on the cot On the whole day Liaqat accused guarded me. On the next night they again took me in the same room of the Dera and detained me there. All the said persons again committed Zina Bil Jabr with me. They also brought a VCR and naked English film and liquor. After drinking liquor, they forcibly put liquor into my mouth and also forced me to remove my clothes and dance there. Then I said that I do not know dance. They tortured me on my refusal. I gave them WASTA of God and the Holy Prophet and requested them that I was like your daughters and sisters. They arrogantly took milk, from my breast and stated that they had brought me here as buffalo. On the next morning they again took me into field crop of maize, again tied me on the cot with chain. Nadeem and Tanveer committed Zina with me. I asked them for water. They got milk from my breast and put it into my mouth. All the accused again gathered there. There was a small tank of water near maize crop. They removed my clothes and forced me to jump into the water. They also forced me to take both there. After that I came out from the said tank and wore my clothes. They asked me about the amount regarding sale of wheat. I said that we had not sold the wheat but only some quantity of what was available in our house for our use. I again made WASTA that my little girl was left behind me. They said that they would bring my maternal aunt Shahnaz and my daughter here. Akbar brought a car and they took me in the house of Ghulam Ali and made preparation to take me for some unknown destination. In the meanwhile the police launched a raid at the house of Ghulam Ali alongwith my father and also recovered me from there. I identify the driver of car who is now present in the Court and also pointed the accused Mumtaz. The police also got recorded my statement. The police also produced me before the Magistrate. The Magistrate did not record my statement. I was medically examined through the police."
8. Wallyat is PW.4. He is brother of complainant Inayat. He is an eye-witness of the occurrence. He corroborated the statement made by the complainant; Khan Muhammad, Constable is PW.5. On 22.6.2005 he received two scaled parcels containing envelope and sealed phial from the Moharrar of the Police Station. He deposited the same articles in the office of Chemical Examiner, Lahore on 30.6.2005; Azhar (PW.6) made statement at the trial which by and large is in line with the statement made by Inayat complainant; Muhammad Nawaz, who was injured during the occurrence is PW.7. He also made similar statement in support of the prosecution. He corroborated the statement of complainant; Mushtaq Jillani, Constable is PW.8. He deposed that on 06.07.2005 he alongwith Muhammad Sharif, SI, Muhammad Saeed, Constable and others police officials, was present at Adda Rao Abad when Muhammad Saeed, SI arrested Muhammad Ali accused and on his personal search recovered .12 bore gun. He secured that vide memo (Ex.PF); Dr. Mumtaz Hussain Sajid is PW.9. On 31.05.2005 he medically examined Muhammad Nawaz, injured PW and observed as under: On 31.05.2005 Muhammad Nawaz son of Shera aged 35 years caste Kora, Labourer, resident of Dauluwala, PS Saddar Chiniot appeared himself at 12:45 p.m. for his medical examination. I conducted his medico legal examination and my observations are as under:--
1. A contusion 7 cm x 3. cm on lateral side of left upper arm.
9. 2.An abrasion measuring 12 cm x 1/2 cm on back of left arm and fore-arm.
10. 3.A contusion measuring 6 cm x 4 cm on back of left shoulder.
11. 4.An abrasion measuring 4 cm x 2 cm on back of left lower chest.
12. 5.A contusion measuring 4 cm x 2 cm on back right lower chest.
13. 6.Multiple abrasions in area of 12 cm x 6 cm on front of left chest with swelling 18 cm x 8 cm (advised X-ray)
14. 7.A swelling 6 cm x 3 cm on dorsal surface of left big toe (advised X-ray)
15. 8.A swelling measuring 6 cm x 3 cm on front of right knee joint.
16. 9.An abrasion '4 cm x 1 cm with swelling of 6 cm, x 4 cm on front of right leg middle part.
17. Probable duration of injuries was within 12 to, 24 hours and were caused by blunt weapon. EX.PM is the correct carbon copy of Medico Legal Examination which is in my hand and bears my signatures. Ex.PM/1 is the pictorial diagram of injuries which is also in my hand and bears my signature."
18. He also medically examined accused Akbar, Muhammad Ali, Sajid and Nadeem qua their potency and opined that all of them were fit to perform sexual act.
19. P.W.10 is Lady Dr. Miftah Shaukat who on 4.6.2005 medically examined Mst. Fauzia Bibi, victim and made statement'in the following words: On 4.6.2005, I was posted as WMO THQ Hospital Chiniot. On the same day, Mst. Fauzia Bibi wife of Altaf aged 20 years, caste Mochi household lady resident of Chak No. 10 GB was produced before me by Bibi Rani lady Constable No. 1041 tor her medical examination. On the same day at 5:30 P.M. I conducted medical examination of Mst. Fauzia Bibi and my observations were as under:- History kidnapping on Monday.
20. On external examination the following injuries were found on her person.
21. Contusion with abrasion measuring 1 cm x 1 cm on right knee joint.
22. Abrasion measuring 2.5cm .x 1 cm on Right foot. P/V Examination On P/V examination hymen was old ruptured and hailed. Vagina admits two fingers easily. Six high vaginal swa bs were taken and sent to the chemical examiner for detection of semen and grouping opinion.
23. OPINION In my opinion, the examinee was used to regular sexual inter-course. Final opinion was kept pending till the receipt of report of Chemical Examiner and report of Serologist. Injury Nos. 1 and 2 were declared as 337 L2, PPC caused by blunt weapon. Probable duration of injuries could not be determined. After completion of the examination carbon copy of medico-legal certificate, one sealed vial and one envelope were handed over to Bibi Rani, Constable. Ex.PS is the correct carbon copy of medico-legal examination which is in my hand and bears my signature. I also endorsed application for medical examination of .Mst. Fauzia (Ex.PT) under my signatures and seal. I have seen (Ex.PV) report of Chemical Examiner, according to which the swabs procured by me, were found stained with semen. In view of the report of chemical examiner (Ex.PV) 1 am, of the opinion that sexual intercourse was committed with the victim."
24. PW.11 Mazhar Hussain, ASI who on 02.06.2005, drafted formal FIR (Ex.PV/1) without addition or omission as per complaint (Ex.PV) submitted by Inayat Ali; Complainant. On 04.06.2005 he was handed over one sealed enveloped and one scaled phial by Muhammad Sharif, SI/IO for keeping in safe custody in the malkhana and later on delivered the said articles by him to Khan Muhammad, Constable for depositing the same in the office of Chemical Examiner.
8. After closure of prospection evidence, the learned trial Court recorded statements of all the accused under Section 342, Cr.P.C. The appellants/accused Anwar, in answer to question, "why this case against you and why the PWs have deposed against you?" made statement in the following words:-- "It is a false case; I have been involved in this case due to previous enmity as I and my brother purchased 14 Acres land adjacent to the land of one Arif Badrana who wants to dispossesses me and my family members from our agricultural land by all the means whether legal or illegal. In this respect he also requested to his friend Abdul Qayyum, one of the PW in this case. Complainant Muhammad Inayat and Mst. Fauzia have been residing at Agriculture Farm of Arif Badrana for the last so many years. Arif Badrana, hired Mst. Fauzia to implicate all the accused in this case. She is of a bad character woman, greedy and mostly take illegal money from the people, so she resiled before this Court from her statement and made different statements at different stages during the course of trial. She is absolutely not reliable, so an application is pending against the false deposition made by her and other PWs before this Court. This case was highlighted by the electronic media and actually the local police was reluctant to register such like false case. She also contacted Mukhtaran Mai and dreamed for gold gardens but in vain. I am innocence.'
25. All the other appellants/accused relied upon the statement of Muhammad Anwar as mentioned above. Neither anyone of them made statement on oath nor produced any evidence in his defence. The learned trial Court, after examining the evidence brought on record and considering other incriminating material and completing all codal formalities, convicted and sentenced all the appellants/accused as mentioned hereinabove.
9. We have heard learned counsel for the appellants, complainant as well as the DDPP for the State and have also perused the record with their assistance. The learned counsel for appellants/convicted accused made the following submissions:-- There is an un-explained delay in the registration of FIR, lodged on a written application which after legal advice was submitted before the DPO who was under pressure because of the alarming intervention of the electronic and print media. Even the said application was referred to the SHO after three days of occurrence.
26. Accused Anwar, Akbar and Ghulam Ali are real brothers inter-se and Sajjid is the nephew of the said three accused. Thus implicating them with the charge of gang rape is not only unnatural but also improbable.
27. Liaqat Ali and Muhammad Ali/appellants are also real brotheRs.
28. The motive as indicated in the prosecution has not been proved by the prosecution through any reliable evidence and it is mere assertion.
29. The alleged supplementary statement pertaining to Nadeem accused is also not available on the record, therefore, the implication of the Nadeem as accused in the case is unbelievable.
30. The PWs including the victim appeared in the ATA Court, alongwith their counsel as well as the prosecutor and made statements in favour of the appellants/accused to the effect that they did not recognize the accused person because of their muffled faces. (Their stateme ts are Ex.DA to Ex.DE).
31. For convicting a person on a capital charge the evidence must be of a high quality, coming from the mouth of PWs of unimpeachable character but in this case the conduct, character and the style of the PWs clearly indicate that they have taken somersault, and thus their evidence is not reliable.
32. The alleged fact of coercion while making the first statement was required to be proved. The PWs never made any application to the law - enforcing agencies complaining against the alleged threats extended to the complainant or any other PW.
33. The accused remained in custody, therefore, the allegation of threats allegedly extended is not conceivable.
34. PW Willayat has not been mentioned in the FIR as PW nor he appeared before the ATA Court as witness but, during the third trial, he appeared in the proceedings as PW.4. His testimony is absolutely un-reliable as he was previously given up by the prosecution.
35. Initially, the police was reluctant to register the case arid, the learned Magistrate also refused to record the statement of abductee under Section 164, Cr.P.C. This shows that the police and the local administration did not believe the veracity of the alleged occurrence.
36. The conviction and sentences awarded to the appellants are neither justified nor permissible under the law as the basis of evidence brought on record by the prosecution is not trustworthy.
37. The learned trial Court has failed to comprehend the true perspective of the case and has convicted the appellants on the basis of subjective and unreasonable analysis of the evidence.
38. The evidence of prosecutrix i.e. alleged victim has wrongly been relied upon for the purpose of conviction under a capital charge. Her inconsistent and contradictory versions are not worthy of reliance in view of the principle of safe administration of criminal justice.
39. The allegation of gang rape by the old, mid age and young members of one family is imaginary, fanciful and maliciously motivated, but unfortunately, this-significant aspect of the case has not been taken into consideration while rendering the impugned judgment.
40. The version advanced by the prosecution against the appellant Nadeem highly improbable and a wide net has been thrown to falsely implicate the entire family.
41. The appellant Nadeem has been convicted despite his juvenility and without evidence, therefore, the impugned judgment is not sustainable under the law and is liable to be set aside.
42. Even otherwise, he submitted that the sentences awarded to the appellants are very harsh, oppressive and disproportionate and, therefore, impugned judgment is liable to be set aside and the appellants are entitled to be acquitted of the charge.
10. Learned counsel for the complainant made the following submissions:-- The case of the prosecution is based on the ocular evidence, medical report, motive and recoveries.
43. The evidence of the complainant, eye-witnesses and more particularly, the statement of the victim which is supported by the evidence of injured PW namely Nawaz are fully corroborated by the medical evidence and for all practical purposes, the prosecution case is fully established.
44. The motive part as explained in die prosecution case is fully established as the defence has miserably failed to put any solid question regarding the motive of the occurrence during the cross- examination.
45. The defence plea taken by the appellant/accused persons under Section 342, Cr.P.C. is not supported by the defence evidence. Even as much the defence plea taken by the appellants were for the first time during the trial and they did not even took this plea at the time of the investigation of the case.
46. All the eye-witnesses were inmates of that Haveli and their presence therein was natural.. They have given most credible evidence which provides trustworthy ocular accounts of the occurrence which finds further corroboration by the medical evidence as well.
47. It is fully established that the appellants were actual assailants who abducted the victim and then subjected her to the gang rape.
48. The complainant, eye-witnesses and victim had no motive against the appellants to falsely implicate them.
49. No suggestion or particular question has ever been put to the victim PW.3 as to the series of the events which starts from her abduction to her gangrape.
50. Recoveries from the accused persons fully corroborate the case of the prosecution.
51. There is no delay in recording the FIR and even if it was, it is fully explained at the time of occurrence.
52. The victim PW.3 in her statement had categorically unfolded this barbaric act of the accused persons.
53. The prosecution has established its case to the hilt and the learned trial Court's reliance on the evidence is correct and he has awarded proper punishment which was deserved by all of them.
54. The learned DDPP also vehemently supported the impugned judgment.
55. 11.Before discussing the evidence in the instant case, we would like to refer to the main principles, consistently followed in criminal cases by the Superior Judiciary for safe administration of justice.
56. By now, it is well-settled that the prosecution is duty bound to prove its case on the strength of its own evidence and an accused is presumed to be innocent till he is proved guilty. Accused is considered a favourite child of law and he may take any plea, however absurd or false it may be, but he can not be punished for his flaws or falsity in his plea or his failure to prove the plea taken by him. Moreover, in case of any doubt, not being artificial, the accused shall be entitled to its benefit as a matter of right. The appreciation of evidence in a criminal case is, however, never governed by a mathematical formula and no hard and fast rule can be laid down for accepting or rejecting an evidence because in each case the circumstances vary and the Court has to consider the evidence upon its intrinsic value Deposition made by a witness is always scrutinized in the light of attending circumstances. Moreover, it is not the quantity of the evidence that is necessary to establish the charge but the quality with which the Court is satisfied as regard to its truthfulness and reliability. The witnesses as a rule are weighed not counted, and in each case, the Court has to confirm the presence of the witnesses at the time of occurrence and get satisfied that statement of a PW is consistent, the version of incident given by him is confidence inspiring, his character is above suspicion, he has stood the test of cross-examination and his testimony is unimpeachable.
57. Thus if the testimony of even a single witness is unbiased, consistent, reliable, trustworthy and un- impeached, it can legitimately form basis for conviction of the accused. Moreover, such an evidence should not be considered in isolation but the whole of it should be considered together and its accumulative effect must be weighed and given effect.
58. 12.It transpires that challan in the instant case was initially submitted in the Anti-Terrorist Court and all the private PWs, including the complainant Inayat Ali, the victim Mst. Fauzia and the injured witness, who appeared on 27.09.2005, exonerated all the appellants/ accused by stating that the appellants/accused, who were unknown, had muffled their faces and that the accused, present in Court, were not those who had assaulted the complainant party, abducted Mst. Fauzia Bibi and subjected her to Zina-bil-Jabr thereafter. Later on, however, an application was moved under Section 540, Cr.P.C. seeking permission to re-examine the PWs on the ground that they had given their earlier statement under threat. The same was allowed by trial Court on 03.10.2005. However, it was challenged before High Court in a writ petition which was disposed of with the observation that the trial Court shall decide the case strictly on merits. It is really strange to observe that after making the first statement in the ATC, the victim Fauzia Bibi took a somersault and made an application to Anti-Terrorist Court for making another statement. The reasons given by her for making that request was that after making that statement in the Court, the accused had extended threats to her.
13. It is unbelievable that, being inside a Terrorist Court, while she was also accompanied by a counsel and she had exonerated the accused already, how and why the accused party threatened her. Had the threats been given before making statement in favour of the accused, that could have been understandable. That statement was not only made inside the Court room where high security is maintained but her counsel, who was accompanying her, also attested the same. For the sake of convenience, her statement is reproduced herein-under:-- "On the night between 30/31.5.2005 I alongwith my parents, sisters and brothers were sleeping at the house of my father. All of sudden, at about 12.00 mid night, some unknown persons who had muffled their faces while riding on the mares arrived at our house. They forcibly abducted me on gun point. On resistance my material uncle Anwar was injured by the above mentioned unknown persons. They took me to nearby Dera wherefrom I was made to sit in the car and then taken toward the bed of the river. I was kept confined at a Dera where I was subjected to rape by the various persons. I was humiliated and mal-treated by the accused persons. On the 3rd day I was released in the area of Chak No, 10/JB by the said unknown Persons. I could not identify them as they kept on putting scarf on their faces during the night and day time. However, after my arrival at my house I was produced before the police and my Medico-Legal examination was got conducted.
59. The accused Persons present in the Court are not the same who had abducted me and committed rape with me. (At this stage the learned Public Prosecutor for the State states that the witness is suppressing the truth, she may be declared hostile and he be allowed to cross examine this witness. The request of the learned Public Prosecutor for the State seems to be genuine and the same is accordingly allowed."
60. 14.It is amazing that during her second statement recorded by the same Court, she implicated the appellants/accused for abducting and subjecting her to Zina-bil-Jabr. Her father, the complainant himself also appeared for the second time on 05.10.2005 and he again exonerated the accused by making the following statement:-- "States that my previous statement recorded in this Court is correct. We were made afraid of by the people but now I feel no such apprehension of any threat at the hands of the accused persons are their families. I have entered into a compromise from the core of my heart. My stand is still now that the accused persons facing trial, present in the Court are not the real culprits. The culprits who had forcibly entered in my Haveli on 30/31.5.2005 were some other persons who could not be identified by me. At this stage, I have not to say-anything else."
61. 15.It is also note-worthy that the injured PW.7 Muhammad Nawaz also made statement in the following words:-- "On the fateful night I was sleeping at the roof top of the Haveli of Inayat PW who is my brother-in- law. That at about 12.00 night I woke up on hearing the noise one person who was armed brought me in the compound of the Haveli and threatened me to remain quite. In the Courtyard of the Haveli 10/11 unknown persons who were armed with fire-arms and had reached there on mares, were present there. They forcibly abducted Mst. Fouzia my niece on gun point and after raising lalkara. I tried. to resist upon which I was belabored by the said unknown persons. They abducted away my niece toward the river bed. It was dark night. The accused persons had muffled their faces as a result thereof I was unable to identify them. My Medico-Legal examination was got conducted on the next morning. At this stage the learned Public Prosecutor for the State requests that the witness is suppressing the truth, he may be declared hostile and he be allowed to cross examine this witness. The request of the learned Public Prosecutor for the State seems to be genuine and the same is accordingly allowed."
62. 16.As stated above, the PWs Inayat and Mst. Fouzia were called for the third time and Muhammad Nawaz called for the second time. The case of one juvenile Nadeem was separated for trial. Then all, the prosecution witnesses supported the prosecution version in their statements recorded on 15.11.2005, 12.12.2005 and 15.5.2005 respectively. Statements of the accused were also recorded.
63. Thereafter, on conclusion, the Anti-Terrorist Court after carefully going through the prosecution evidence recorded on two/three occasions came to the conclusion that since the PWs had not stated anything about the insecurity and harassment having been created in the vicinity due to the occurrence, the offence under Section 7 of Anti-Terrorist Act was not attracted in the case and subsequently, deleting the said section, the Anti-Terrorist Court transferred the case to District & Sessions Judge, Jhang for its entrustrnent to a Court of competent jurisdiction. Accordingly the case was decided by the learned Additional Sessions Judge, Chiniot who convicted and sentenced the appellants/accused as mentioned in the first para of this Judgment.
64. 17.It is evident from the above that initially, the appellants/ accused faced trial before Anti- Terrorist Court for charge framed under Sections 10(4)/11 of the said Ordinance as well as under Sections 337-H(2)/337-A(2)/148-149, PPC and under Section 7 of ATA 1997 on 12.9.2005. They did not plead guilty and claimed trial.
65. 18.Therefore, the prosecution produced 12 PWs including Inayat complainant (PW.7), Mst. Fouzia Bibi, victim (PW.8) eye-witness Abdul Qayyum (PW.9), Muhammad Nawaz (PW.10), Azhar (PW.11) and Noor (PW.12). However, all these PWs deposed in favour of the appellants, exonerated them and attributed the whole occurrence - from beginning to end - to some unknown accused who had muffled their faces and therefore, could not be recognized. They were declared hostile. These statements were recorded on 27.09.2005.
66. 19.The PWs were thereafter recalled and re-examined. PW.8 Fouzia. Bibi and PW.11 Azhar resiled from their previous statements. However, PW.7 Inayat Ali and PW.9 Abdul Qayyum remained stuck to their earlier statement and did not support the prosecution.
67. 20.For the third time all the PWs were examined on the occasion of separation of the case of Juvenile accused Nadeem for trial, and all supported the prosecution version.
68. 21.For the fourth time also, the PWs Inayat, complainant and Mst. Fouzia, victim supported the prosecution version wherein they implicated all the appellants/accused in the commission of offences for which they were charged.
69. 22.Thus it is clear from the above that there are two versions made by the PWs themselves and both these versions are self-contradictory. Obviously two contradictory statements about the same occurrence cannot be considered truthful. Therefore, a genuine doubt has arisen about these PWs, who blew hot and cold in the same breath and showed least respect for telling the truth and, by being capable of changing their versions as and when it suited them, proved that they are worthy of no credence even if they are natural witnesses of the occurrence. If a witness deposes falsely under threat and that too on oath inside a Court, on one occasion, how can he or she be relied upon and believed as truthful on another occasion. This mercurial behavior reflected from their conflicting depositions lends, in a way, support to the defence plea that Inayat complainant and Mst. Fouzia who had been residing at Agriculture Farm of Arif Badrana for the last so many years had implicated all the accused at his instance.
23. In the instant case, there is delay in lodging of FIR which is unexplained and improbable. The police post was at a distance of 4/5 furlongs but none was attracted to the spot. Even the Magistrate refused to record statement of victim under Section 164 Cr.P.C. We agree with the learned counsel for the appellants that on account of alarming intervention of electronic and print media, the written application was submitted before the DPO who, being under pressure, referred that to SHO and after taking three days, he incorporated its contents into the FIR and the case was submitted for trial before the Anti-Terrorist Court. All the PWs inspite of all support from electronic and print media deposed in favour of the accused and exonerated them. This is a very significant aspect of the case and cannot be ignored easily. All the PWs had not made statements before the police but had deposed before the Court of competent jurisdiction where they were not only represented by a counsel but were placed in a highly protected atmosphere. These statements are 'admitted by the complainant party with the explanation that after making the statements they were threatened by the accused party. However, there seems no reason why were they threatened when they had already favoured the accused in their statements. At the time of making statements also they were absolutely free and under no duress or coercion as the accused were behind the bar. The PWs have neither proved nor explained even about the alleged threat, extended by whom, when the accused had already been arrested and all the PWs had also exonerated them and given them a clean chit.
24. It is well settled that the evidence of hostile witnesses cannot be brushed aside merely on the ground that they were declared hostile inasmuch as the. portion of evidence advantageous to the parties may be taken into consideration but at the same time, the Court should be extremely cautious to consider veracity of the evidence on the basis of its entrance worth. At is not unusual that some time, few witnesses do turn hostile but it is not so in the instant case. Here, all PWs were declared hostile . They were allowed to reappear but again a conflicting conversion was advanced by the most important witnesses. Had they actually been under threat for the first 'time, why the complainant and one other PW adhered to their version when they had all the protection and security provided order of the high Court.
70. 25.We deem it appropriate here to mention that law does not make any distinction in the matter of appreciation of evidence in a case under Anti-Terrorist Act or under normal Criminal Law. It is always the credibility of witnesses which has to be measured with the same yardstick whether it is an ordinary crime or a crime striking terror in society. Law does not make any distinction either in leading of evidence or in its assessment. Rule is one and the same and that is, intrinsic worth of testimony and the fact, that it withstand the test of cross-examination. The contradictory versions of the PWs made before Anti-Terrorist Court and then before Additional Sessions Judge shake the entire foundation of the prosecution case. By no stretch of imagination, it is possible to reconcile the conflicting statements of same PWs regarding the same event. These contradictions sufficiently furnish a clue to the veracity of the testimony of these witnesses and shake their trustworthiness. The variant ocular account furnished by them is also belied by the attending circumstances.
71. 26.Even otherwise, the story of prosecution is improbable on the face of it. The three appellants namely Anwar, Akbar and Ghulam Ali are real brothers and Sajid is nephew of the remaining three accused. Implicating them all with the charge of gang-rape seems ridiculous and apparently seems a great exaggeration on the part of prosecution. By throwing a wider net to implicate all the elders, whose ages range between 50 to 54 years raises a very serious doubt about veracity of the prosecution version. Liaqat Ali and Muhammad Ali are also real brothers, and circumstances of the case as narrated by the victim Fouzia do not appeal to any prudent mind.
72. 27.We may add that the probabilities of a case are a material test in judging of the credibility of a witness. The concept of probability and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such unit constitute proof beyond reasonable doubt. There is, however, an unmistakable subjective clement in the evaluation of the degrees of probability and the quantum of proof. While uniformed legitimization of trivialities would make a mockery of administration of criminal justice, the protection given by the criminal process to the innocent persons is not to be eroded at the same time.
73. 28.The motive mentioned by the prosecution has also not been established by any evidence worth the name. Otherwise also, the motive, even if proved, by the prosecution, was not sufficient as Mst. Asia and Mumtaz had no concern or relation with the complainant party. There is not a single word on record to show proceedings or ultimate result of the earlier occurrence which is alleged as motive for this occurrence. This shatters foundation of the case of prosecution. The alleged supplementary statement pertaining to Nadeem accused is also not available on record, therefore, his implication as an accused in this case is not believable. P.W.4 Walayat, who was produced by the prosecution was not mentioned in the FIR as PW nor did he appear before the Anti-Terrorist Court as a witness. His testimony is absolutely unreliable as he had-been previously given up by the prosecution.
29. Besides the above discussion, we have also observed that there are material discrepancies in the case of prosecution. For example, the complainant, who resides near a Police Check Post Burjian, never went there after the occurrence and the record is silent about anyone of the police official having been attracted to the spot inspite of the alleged aerial firing made by the accused.
74. Though recoveries of empties from the spot and .12 bore shot gun from accused were effected but Kalashnikov and rifle .7 mm have not been recovered despite recoveries of its empties from the spot. The medical examination report regarding the injured PW Nawaz is there but nothing on record to show as to who caused that injury. The prosecutrix Fauzia was also medically examined but the positive chemical report on swabs in her case is not conclusive as she was a married lady and had remained with her husband before her medical examination. No DNA test was conducted.
75. The alleged places where zina was committed are also not specifically located in the site plan. The room in a Baila (hideout) and the maize crop are not explained in the site plan, as required, to determine the ownership or their distance from Haveli/road. Though TV and VCD were recovered from Liaqat Ali but there is no proof to show that electricity was available in the area or that any electric connection was provided therein so as to ascertain whether, as alleged, playing any film on a VCD in that room was possible. No bottle of liquor was recovered from that room. The proof that any threat was extended to the complainant party is also lacking on record as no report/complaint was lodged by them to this effect. Refusal of the Magistrate to record statement of Mst. Fauzia Bibi under Section 164 and silence of the complainant party to challenge the same thereafter is worth consideration. Admission of the complainant that he had effected compromise and patched up the matter with accused is also worth noticing. The suggestion put to the PWs regarding Rs, 12 Lacks may also be very relevant to be taken into consideration. All these material infirmities and discrepancies further weaken the case of prosecution and make it highly doubtful. When the evidence adduced against the appellants/accused is wholly unsatisfactory, the presumption of innocence which js the basis of criminal jurisprudence assists the appellants/accused persons and compels this Court to render the verdict that the charge is not proved against them, beyond any reasonable doubt and so, they are entitled to the benefit thereof. Consequently, we extend the benefit of doubt to all the appellants and acquit them of the charges.
76. 30.Before parting with the judgment, we deem it necessary to place on record our deep appreciation for the learned counsel for appellants, the DDPP and learned counsel for the complainant for their able assistance in this very complicated case. We appreciate the conduct of Ch. Waseem A. Bhaddur, learned counsel for complainant, who after vehemently arguing the case at great length, gracefully conceded in the end and also got recorded the following statement on 31.05.2013:-- "During the course of arguments, I am convinced that sufficient incriminating evidence could not be brought on the record of the learned trial Court to prove the guilt of the accused/present appellants beyond reasonable shadow of doubt and as such, I am unable to oppose the instant appeals. However, the relatives of the convicted accused/present appellants have offered to pay Rs, 15,00,000/- (Fifteen Lacs) as compensation to the complainant as well as the victim for the psychological damage, mental anguish and the agony of trial faced by them. The real brother of Appellants No, 1 namely Rehmat has paid Rs, 6;00,000/- (Six Lacs) in hard cash to the complainant in the Court today. The remaining amount of Rs, 900,000/- (Nine Lacs) would be paid by the learned counsel for the appellants to me today through a cheque which I hereby undertake to pass on the amount in hard cash to the complainant.
77. In view of above, I have got no objection, in case the appeals filed by the convicted accused/present appellants, are accepted and they are acquitted of the charges and ordered to be released."
78. We would also like to recognize the sincere efforts made by Mr. Abid Saqi, learned counsel for the appellants, who very sensibly prevailed upon an elder of the appellants, who was present in the Court, and convinced him to offer an amount of Rs, 15,00,000/- to the complainant party for amicable settlement of an old case.
79. 31.Keeping in view the poverty stricken appearance of the shabbily dressed complainant, his daughter and family members, who were also in regular attendance on each date, and considering the story of starvation and deprivation apparently written on their faces, we considered the above offer as a very good humanitarian gesture made on behalf of the learned counsel for appellants and allowed him to pay the said amount to the complainant party, in the larger interest of the society, to enable the parties to bury their hatchet and set a good example of peace-loving citizens.
32. Consequently for the reasons stated above, these appeals are allowed. Conviction and sentences awarded to the appellants namely Nadeem, Anwar, Akbar, Sajid, Liaqat Ali, Muhammad Ali and Ghulam Ali vide impugned judgments dated 08.02.2012 are set aside and they are acquitted of the charges. They shall be released forthwith, if not, required in any other case.
80. 33.Criminal Murder Reference No, 1/L of 2012 is not confirmed and answered in negative.
81. 34.However, as far as the case of Tanveer/convicted accused is concerned, he slipped away at the time of announcement of judgment by the learned trial Court and he, being fugitive of law, who has not even filed any appeal, therefore, Murder Reference sent by the learned trial Court to his extent shall remain pending and shall be resurrected a and decided as and when he is arrested 35.These are the reasons for our short Order passed on 31.05.2013.