Shahzado Shaikh, J.--This appeal filed by appellant Qari Abdur Rasheed is directed against judgment dated 30.04.2008 delivered by learned Additional Sessions Judge, Jaranwala, District Faisalabad, whereby he was convicted and sentenced as under:-- Under Section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, VII, 197912 years and 6 months imprisonment for commission of Zina-bil-jabr with Mst. Ishrat Bibi Under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII, 197912 years and 6 months imprisonment for commission of Zina-bil-jabr with Mst. Parveen Bibi alias Fouzia Both the above said sentences of imprisonment were ordered to run consecutively. He was extended benefit of Section 382-B of the Code of Criminal Procedure.
2. The prosecution case in brief is that complainant Tariq Ali son of Ghulam Muhammad PW-7 submitted an application on 20.06.2006 before SHO P.S Khurrianwala District Faisalabad stating therein that he was resident of Chak No. 74/GB Bandala Tehsil Jaranwala and was a labourer and his sister Ishrat Bibi d/o Ghulam Muhammad and one Mst. Parveen Bibi alias Fouzia d/o Nazir Ahmed caste Malik, who was his neighbor, were learning the Holy Quran in the Madarasa of village of accused Qari Abdur Rasheed. He alleged that on 19.04.2006 at 5'O clock in the morning accused Yasmin came to their house and said that they were going to neighbouring village for reciting Holy Quran, so the above said two girls may accompany them there; so he trusted her, permitted his sister to accompany the said lady (accused Yasmin) and on the, same pretext she took Mst.
Parveen Bibi alias Fauzia alongwith her and when her sister did not return for a long time he became worried. He alongwith the said Nazir started searching both the girls and during the search Afzal s/o Anwar, Zulfiqar s/o Liaqat met them and told that they saw both the girls with Qari Abdur Rasheed and Yasmin while they were taking them in a car of silver (slati) colour. He alongwith said Nazir tried to get the said girls returned and went to the accused and demanded for their return but they remained postponing it and later on refused and stated that he is ready to take oath that the said girls returned after Quran Khawani but on 20.06.2006 his sister Ishrat Bibi and Mst. Parveen alias Fauzia managed to return to their houses on their successful escape from the custody of said accused. Both the girls told that they were abducted for the purpose of Zina on the pretext of Quran Khawani and were confined in a house at Lahore where Qari Abdur Rasheed subjected them to Zina-bil-jabr, whereas Mst. Yasmin remained supervising the house. When Qari Abdur Rasheed went away, his wife Mst. Yasmin used to supervise them. When they got the chance they had fled away. Formal FIR was registered against Qari Abdur Rasheed.
3. Investigation ensued as a consequence of registration of the crime report. Muhammad Ashraf Si PW-11 carried out the investigation. He inspected the place of occurrence; prepared rough site- plans Ex.PL; and Ex.PM; recorded statements of PWs under Section 161 of the Code of Criminal Procedure; arrested accused on 27.06.2006; on 23.06.2006 the victims Mst. Ishrat Bibi, Parveen Bibi and the complainant joined him in investigation; he got them medically examined from the hospital through Javed Iqbal constable, who produced MLC of Mst. Parveen Bibi Ex.PC and that of Ishrat Bibi Ex.PF alongwith four sealed phials alongwith two envelops before him and he filed the MLCS alongwith the file whereas the said phials and two envelops were handed over by him to Muharrar for onward transmission to the office of Chemical Examiner at Lahore and he added Section 10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in this case; on 26.06.2006 Mst.
Ishrat Bibi and Mst. Parveen Bibi with complainant Tariq joined investigation and he produced both the victims before the Judicial Magistrate, Jaranwala and got recorded the statements of both the victims under 164, Cr.P.C. where both the said ladies verified their already recorded statements under Section 161, Cr.P.C. and the application submitted by Investigating Officer for recording of the statements under Section 164, Cr.P.C. of the said two ladies are Ex.PN and Ex.PN/1; on 28.6.2006 he got medically examined the accused and obtained MLC Ex.PA; on 1.7.2006 he recorded the statement of Muharrar and on 3.7.2006 he submitted the challan of accused Qari Abdur Rasheed before the Court of competent jurisdiction.
4. After receipt of report under Section 173 of the Code of Criminal Procedure, the learned trial Court framed charges against the accused on 03.11.2006 under Sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance. The accused did not plead guilty and claimed trial.
5. The prosecution produced 11 PWs at the trial to prove its case. The gist of the deposition of the witnesses is as follows:--
(i) PW-1: Dr. Abdul Shakoor Gill medically examined accused Qari Abdur Rasheed on 28.06.2006 and found him fit to perform sexual intercourse. MLC is Ex.PA.
(ii) PW-2: Lady doctor Ghazala Rasheed medically examined both the victims namely Mst. Parveen Bibi and Mst. Ishrat Parveen. In her opinion in the light of physical examination as well as per report of seroiogist sexual intercourse had been done with the both victims.
(iii)PW-3: Muhammad Nawaz posted as Moharrar at P.S. Khurrianwala, on 29.6.2006, handed over four phials and two sealed envelops to Muhammad Amin constable for onward transmission to' the office of chemical examiner Lahore.
(iv) PW-4: Muhammad Amin constable took the said parcel to the office of the Chemical Examiner on 30.6.2006 and deposited the same on same date in the said office.
(v) PW-5: Abdul Khaliq ASI who after receiving application chalked out an FIR No. 603/06 on 20.6.2006.
(vi)PW-6: Javed Iqbal S.I. received written application moved by Tariq Ali complainant and sent it to P.S. Khurrianwala for registration of case.
(vii) P.W-7: Tariq Ali is complainant of this case.
P.W-8: Zulfiqar Ali is the eye-witness regarding abduction of both the victim girls.
(ix)P.W-9: Mst. Ishrat Bibi and P.W-10 Mst. Parveen alias Fouzia, both the victim girls have supported the 'contention of complainant P.W-7 Tariq Ali as he pleaded in his application Ex.Pk/1.
(x) P.W-11: Muhammad Ashraf S.I. is the Investigating Officer of this case, detail of his investigation has been given in Para-3 of this judgment.
6. After closure of the prosecution evidence, the learned trial Court recorded statement of the accused under Section 342 of the Code of Criminal Procedure. The accused denied the charges levelled against him and pleaded innocence and claimed that both the ladies Mst. Ishrat Bibi and Mst. Parveen alias Fouzia had contracted valid marriage with him and as such this case has been got registered to exploit him financially.
The accused did not opt to appear as his own witness under Section 340(2) of the Code of Criminal Procedure.
7. The learned trial Court after concluding the codal formalities of the trial returned a verdict of guilt. Conviction was recorded and sentence awarded as mentioned in the opening paragraph of this judgment. Hence this appeal.
8. We have gone through the evidence of witnesses of the prosecution, statement of the accused and the material available on record. Relevant portions of the impugned judgment have been scanned.
9. During the course of arguments, learned counsel for the appellant in support of his contention formulated the following points:--
(i) That out of 02 persons nominated in the FIR, only one person i.e. the present appellant was charged and tried by the learned trial Court.
(ii) FIR in this case was got registered after un-explained delay of about two months.
(iii)The I.O. had not inspected/pointed out the house of complainant.
(iv)No car was got recovered.
(v) No pistol was got recovered.
(vi)The appellant contracted Nikah with both the victims on 10.10.2005 and 14.2.2006, respectively.
(vii) In the same transaction, and the same set of evidence, Mst. Yasmin Bibi has been declared innocent during the investigation.
(viii) The acquittal of co-accused Yasmin belies the prosecution story.
(ix)In cross-examination both the victims denied their signatures and thumb impressions on the Nikahnama whereas order of learned trial Court dated 21.4.2008 shows that both the alleged abductee have not denied the thumb impressions and signatures present on Nikahnama. .
(x) The medical evidence is of no use for prosecution as the appellant stated in his statement under Section 342, Cr.P.C. that both the victims had willingly contracted marriage with him and performed Nikah with their free will; inter-alia the I.O. produced both the victims before Magistrate for recording their statements under Section 164, Cr.P.C. but same was declined by Judicial Magistrate 1st Class Jaranwala with observation that both the ladies stated that they support their statements recorded u/S. 161 of, Cr.P.C. Therefore, when their statements u/S. 161 of, Cr.P.C. have been recorded, there is no need to record their statements u/S. 164, Cr.P.C. They have been produced by the I.O.; therefore, there is likelihood that they would surely support the police. Hence, this application is rejected.
(xi)That there are material contradictions and discrepancies in the prosecution evidence, therefore, the appellant is entitled for acquittal by extending him benefit of doubt.
The learned counsel has also taken the plea that the consecutive running of the sentences is violation of proviso (a) to sub-section (2) of Section 35, Cr.P.C. as the same section indicates that consecutive sentence in one trial can not be given. He relied upon the following case law in favour of his contention.
1. 2006 P.Cr.LJ 761
2. PLD 1985 SC Pg 11
3. 1985 SCMR 1.53
10. On the other hand, learned Additional Prosecutor General argued:--
(i) That the Nikah as alleged by the appellant was not proved as the suit for jactitation of marriage filed by the victim was decreed and the suit for restitution of conjugal rights filed by the appellant was dismissed by the learned Family Court.
(ii) That the learned trial Court has rightly convicted and sentenced the appellant under Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, therefore, the Judgment of the learned trial Court is liable to be upheld. He further contended that plea taken by learned counsel for the appellant under sub-section (2) of 35 is of no use for the appellant. In his contention he relied upon Paras No. 9 and 13 of reported judgment as. Liaqat Shah and other Vs. The State in PLD 1991 SC pag. 1145; which is reproduced as follows: The exact law invoked in the matters for consideration before us and on the decisions which are required to be reconsidered was limited to the proviso to sub-section (2) of Section 35 of the Criminal Procedure Code. An effort was made by the learned counsel for the petitioners/appellants to contend that this proviso was in fact a proviso to both sub-section (1). and sub-section (2) of Section 35, Cr.P.C. However, the physical placement of the proviso and its contents both relate to and extend over sub-section (2) and not to other sub-section (sub-section (1)). The principles governing the interpretation of a proviso and the serious limitations from which it suffers have been indicated by this Court recently in KE.S.C, Progressive Workers' union through its Chairman v. KE.S.C.
Labour Union through its General Secretary and 7 others (Civil Review Petitions Nos. 64 to 66 and 8 of 1990), decided on 11-2-1991 reported as .1991 SCMR 888 in the following words:-- The accepted principles of interpreting a proviso have been enunciated as hereunder:--
(1) Wilberfore on Statute Law, page 303:-- "A proviso is of great importance when the Court has to consider what cases come within the enacting part of a section and it is always to be construed with reference to the preceding parts of the clause to which it is appended."
(ii)Maxwell on the Interpretation of Statutes, Twelfth Edition by P.St. J, Langan, page 189:-- "It will, however, generally be found that inconsistencies can be avoided by applying the general rule that the words of a proviso are not to be taken `absolutely in their strict literal sense', but that a proviso is "of necessary.. limited in its operation to the ambit of the section which it qualifies.
(iii)The Interpretation of Statutes and General Clauses Acts, Seventh Edition (1984) by N.S. Bindra, page 77:-- "A proviso must be considered with relation to the principal matter to which it stands as a proviso.
To treat the proviso as it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, L.J., in R.v. Dibdin (1910 P. 57,125 affirmed in 1912 A.C. 533). Proviso and sub-clauses should be governed by the operative portion of the section."
(iv)Craies on Statue Law, Seventh Edition by S.G.G. Edgar, page 219:-- "The Courts, as, for instance, in Ex.P. Partington, (1844) 6 QB649, 653, Re-Brocklebank, (1889) 23 QBD 461, and Hill v. East and West India Dock Co. (1884)
9. App. Cas. 448, have frequently pointed out this fallacy, and have refused to be led astray by arguments such as these which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in the proviso."
(v)The Construction of Statutes by Earal T. Crwford page 605:-- "As a general rule, however, the operation of a proviso should by confined to that clause or portion of the statute which directly precedes it in the statute."
(vi) Bennion on Statutory Interpretation, page 572:-- "In the case of precision drafting, the proviso is to be taken as limited in its operation to the section or other proviso on it qualifies."
Some of the illustrative cases in which, this statement of law has found clear expression are; Leach v. Two Words Publishing Co. Ltd. (1951) 1 Ch. 393, Lloyds and Scottish Finance Ltd. V. Modern Cars and Caravans (Kingston) Ltd, (1966) 1 Q.B. 764 and Messrs East & West Steamship Company v.
Pakistan PLD 1958 SC (Pak)
41. In the case of Leah, at page 398 it was held as hereunder:-- ".. indeed it cannot be disputed, that a proviso must be construed and treated as if it were, not a parallel proviso enactment, but a limitation on proposition which is direct and objective."
In the second case i.e., Lloyds and Scottish Finance Ltd., it was held by Queen's Bench Division at page 780 that the proviso must of necessity be limited its operation to the ambit of the section which it qualifies."
In the third case i.e., East & West Steamship Co., at page 72, the following observations were made by the Supreme Court-- "One of the plainest rules of statutory interpretation is that a proviso it to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it." '
Section 13. In the cases before us, we are not dealing with the cases of sentencing by Magistrates or Courts having hi-limited power of sentence. It is the sentence passed by the trial Court i.e. Sessions Judge who, as pointed out under Section 31 of the Criminal Procedure Code, has no limitations on his powers except to pass a sentence authorized by law. There is no higher Court for a Sessions Judge within the meaning of sub-section (2) of Section 35, Cr.P.C. In the circumstances, this section has no application to the trial by the Sessions Judge and to the conviction and sentence imposed by that Court and for that reason the decisions on which reliance has been placed and which have come up specifically for reconsideration and review, cannot be sustained. The legal question raised is answered accordingly."
11.We have considered the arguments of the learned Counsel for the parties, scanned relevant portions of the judgment, and also perused the record with their assistance.
12.Appellant Qari Abdur Rasheed was nominated in the FIR as per statement of complainant Tariq Ali that Mst. Ishrat Bibi and Mst. Fouzia Bibi were taken away in deceitful manner, as Afzal s/o Anwar and Zulfiqar s/o Liaqat informed the complainant Tariq Ali and Nazir P.W.that they had seen Qari Abdul Rasheed taking away both the said girls namely Mst. Ishrat Bibi and Mst. Fouzia Bibi. After two months both the girls came to their houses and stated that Qari Abdur Rasheed had abducted them and committed zina-bil-jabr with them. MLR, Chemical Examiner's Reports Ex.PD and Ex.PG respectively and Lady Doctor's deposition before the learned trial Court, support the prosecution that intercourse was committed with the said two girls namely Mst. Ishrat Bibi and Parveen Bibi alias Fouzia Bibi which is not denied by the Appellant Qari Abdul Rasheed, as the victim girls were in his possession. Both the victims were medically examined by PW.2 Lady Doctor on 23.06.2006 and the doctor observed that the victims were subjected to sexual intercourse. The reports of Chemical Examiner were also positive as the swabs were found stained with semen, which corroborates the opinion of doctor regarding sexual intercourse with both the victims.
13.Appellant Qari Abdur Rasheed took plea in his statement under Section 342, Cr.P.C. that Mst.
Ishrat Parveen and Mst. Parveen' Bibi with their own free consent entered into a valid Nikah with him and later, on the pressure of their parents and other relatives they resiled from the Nikah. It transpires from the record that appellant had filed a suit for restitution of conjugal rights while both Mst. Ishrat Bibi and Parveen Bibi alias Fouzia Bibi the victims had filed a suit for jactitation of marriage. The suits of both Mst. Ishrat Bibi and Parveen Sibi alias Fouzia Bibi, the victims, were decreed in their favour, while suits of the appellant Qari Abdur, Rasheed were dismissed vide consolidated judgments passed by the learned Judge, Family Court Jaranwala vide both the judgments dated 10.04.2008 in Family Suits No. 165-FC and 166-FC respectively.
14.The appellant produced. Nikahnamas regarding his Nikah with both the victims, on 10.10.2005 and 14.2.2006, i.e., both the alleged Nikahs within a surprisingly short period Of only 4 months, with two girls, bordering on minority, both of 17-18years of age, who were his students for learning Holy Quran. On bot'h the alleged occasions of Nikah with the victim girls, no one from their parents or Wali was present and the alleged Nikahs had taken place in mysterious circumstances; surrounded by strangers, where the victim girls could not have the required/necesaary advantage of advice and parental/relational protection. This in no way constitutes valid consent on the part of the victim girls bordering minority. This apparently points towards sheer coercion. Any sexual act, under such circumstances, would obviously be the act of zina-bil-jabr.
15. In the circumstances of this case, it is important to note that pious relationship of a female student in pursuit of learning Holy Quran, at a place of reverence from a Qari, is involved. By, losing trust in such a sacred relationship, certain segments of the society may proclaim aversion even more noisily for female education, particularly in other non-religious institutions and areas also.
16. Teacher in relation to a student, particularly a minor, and that also a girl, commands authority in terms of his person, position and psychic circumstances, e.g., in this case. Consent of a person, as an object to a subject, who enjoys such a position of authority, as in these circumstances, would not constitute a valid consent exercised freely on equal and equitable terms in one's own considered interest, as a preferred choice or option.
17. Consent given under fraud, fear, misconception of fact, or injury, is not such a consent as would be intended by a victim, particularly the one unable to understand nature and consequence of that to which a consent is given. In this case besides circumstances of fear, fraud and misconception of fact, which are quite obvious, as the adolescent or minor victim girls were not given to understand on the Nikahnama, that the Offender/Appellant was already married, and he was seeking second and then third Nikah within a very short period of four months, and whether he had got permission under the law from the previous wife/wives, still claiming to be in his Nikah.
18.In this connection, following may provide some more insight into the concept of consent of a victim claimed by a person having authority over him/her: "Justice Cardozo offered what has become perhaps the best known statement on the principle of "informed consent" in the 1914 New York case of Schloendorff v New York Hospital. He held: 'Every human being of adult years and sound mind has a right to determine what shall be done with his own body... (Modi's Medical Jurisprudence and Toxicology, p. 109 Although above statement has been made in a medical case, but holds a principle of general nature.
"When two or more persons agree upon the same thing in the same sense; they are said to consent " (Modi's Medical Jurisprudence and Toxicology, p.109)
19.The learned counsel for the Appellant argued that the medical evidence that sexual intercourse was done with the victims is of no use for prosecution. In this connection, it may be relevant to point out that Zina bil Jabr is a Hudood offence/crime and not merely a medical diagnosis to be made by the medical officer. It is a charge made by investigation, on a complaint by the victim, and framed by the trial Court in due process. The medical officer has made the statement that there is evidence of recent sexual activity. In this case, the Zina bil Jabr has occurred is a legal conclusion, based on totality of the evidence, not merely medical one.
In a famous case, Mathura, a young girl, was alleged to have been raped at the police station, in India. The doctor estimated the age of Mathura between 15 to 16 years. The Supreme. Court of India held that sexual intercourse in circumstances was not proved to amount to rape. Unprecedented protests erupted, leading to a change in the law of rape and recognition that custodial rape by people in authority, was a special species of rape. In such a case, if sexual intercourse was proved and the victim stated that she did not consent, it would be presumed that he did not consent. (See Modi's Medical Jurisprudence and Toxicology, p.709)"
20. From the fact of filing suit for restitution of conjugal rights by the appellant and the opinion of the lady doctor, it is clear that appellant committed sexual intercourse with both the victims and their statements are sufficient to prove the allegation against the appellant. Such an intercourse in the absence of valid Nikah, as disproved through the litigation in the Family Court, amounts to Zina.
21. The assertion of the accused/appellant about Nikah with the victims, which could not be proved before Family Court, the statements of the victims, duly supported by documentary evidence of decree of Family Court and MLR corroborated by Report of Chemical Examiner, are sufficient to lead to believe that the commission of the offence was that of zina-bil-jabr, in these circumstances.
22. Although, besides Appellant Qari Abdul Rasheed, Mst. Yasmin was also nominated in the FIR, but only the appellant was charged and tried by the learned trial Court, as during the course of investigation and before the trial Court, allegations under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance; 1979, could not be proved.
23.The contention of the learned counsel for the appellant that alleged weapon of offence and the car used in the occurrence were not recovered, are not relevant to the ingredients of the offence and the relevant section under, which the appellant has been convicted and sentenced for the remaining allegation of zina-bil-jabr, in the circumstances, under Section 10(3) of the Offence of Zina (Enforcement I of Hudood) Ordinance, 1979.
24.The point raised by the learned counsel for the appellant that the victims in their cross- examination stated that they had not put their thumb impressions on the Nikahnamas, but later on they did not deny the same is redundant, after the decree of the learned Family Court in favour of the victim girls namely Mst. Ishrat Bibi and Mst. Parveen Bibi.
25.Delay in lodging the FIR in this case has been fully explained, as the complainant, as soon as he came to know about Qari Abdul Rasheed, having taken away both the victim girls, started efforts for return of the victim girls, through efforts of relatives, etc., which is also usually adopted, first, in such cases involving honour of the family and life/person of the victim being in the possession of the offender. On failing to get the victim girls, back, the FIR was lodged.
26.Furthermore, regarding learned counsel for the Appellant's argument that in cross- examination both the alleged abductees have not denied the thumb impressions and signatures on Nikahnama, it is noted that the Application of the defence, in this connection, was dismissed by the learned trial Court, vide its Order dated 21.04.2008.
27. The learned counsel has also taken the plea that the consecutive running of the sentences is against the proviso (a) to sub-section (2) of Section 35, Cr.P.C. In this connection, learned counsel D.P.G.'s reliance on Paras No. 9 and 13 of reported judgment as Liaqat Shah and others Vs. The State in PLD 1991 SC pag.1145, reproduced above, is quite clear and convincing that the trial Court has rightly, under the law awarded the sentences, on two counts 12 years and 06 months imprisonment, each, under Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for the commission of zinabil-jabr with the victims Mst. Ishrat Bibi and Mst. Parveen Bibi alias Fouzia, to run consecutively.
28. In view of above, the convictions of appellant Qari Abdur Rasheed Under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance WI of 1979 is upheld and his sentence is maintained as awarded by the learned trial Court and Cr. Appeal No. 35/L of 2008 (Appeal against conviction) filed by appellant Qari Abdur Rasheed son of Sufi Muhammad Saeed against the judgment dated 30-04-2008 passed by Learned Additional Sessions Judge; Jaranwala Faisalabad in Hudood case No. 24-7A of 2007 is dismissed. His conviction and sentences are maintained.
29. The above are the reasons for our short order passed on 19.04.2012 in the open Court.