Dr. Syed Muhammad Anwer, ACJ.--Through Shariat Petition No. 05-I of 2022, the petitioner invoked the jurisdiction under Article 203-D of the Constitution of the Islamic Republic of Pakistan, 1973 with the following prayers:-- a. To declare that the vires of the Sindh Child Marriage Restraint Act, 2013 are against the injunction of Islam and against the Constitution as such not applicable to the Muslims of Sindh. b. To declare that the definition of Child given in the Sindh Child Marriage Restraining Act, 2013 Section 2(a) would be governed / changed/applied with the sign of puberty for Muslims. c. To declare that the Section 8 of the said Sindh Child Marriage Restraining Act, 2013 is against the injunction of Islam and Sharia. d. To call for the record and proceedings of Family Appeal No. 18/2021 from Respondent No. 3/VIIth ADJ South Karachi and Family Suit No. 2117/2020 from the Court of XXIst Family Judge South at Karachi and after perusal the same set-aside the Orders dated 14-04-2021 & 13.01.2021. e. To pass the Judgment and Decree in favour of Petitioner by directing the Respondent No. 2 to Join the Petitioner as legally wedded wife. f. To declare that the Nikkah and marriage of Petitioner and Respondent No. 2 is legal, Lawful and executable under Muslim Family Law. g. To direct the Respondent No. 1 to handover the physical custody of the Respondent No. 2 and provide safety and security. h. To direct the Respondent No. 5 to observe the all legislation formulated by the Province of Sindh after 18th Amendment should be in conjunction of Islam if any confliction then make necessary amendments on urgent basis. i. To grant costs of the appeal. j. Any other relief(s), which this Honourable Court may deem fit and proper in the circumstances of the case.
2. It is evident from the prayers made by the petitioner in his Shariat Petition that some of the prayers are related to relief in personam. So far as the grant of relief in personam sought by the petitioner is concerned, it is beyond the jurisdiction of this Court and, therefore, cannot be granted.
However, the questions concerning the impugned law raised by the petitioner need consideration.
3. We have heard the petitioner at length as well as the learned Additional Advocate-General, Sindh. The learned counsel for the petitioner contended that setting the age of 18, as mentioned in Section 2(a) of the Sindh Child Marriages Restraint Act, 2013, as the minimum legal age for male and female for the purpose of marriage is against the injunctions of Islam. For reference, the impugned section is reproduced below: "2. In this Act, unless there is anything repugnant in the subject or context--
(a) "child" means a person male or female who is under eighteen years of age"
4. To challenge this Section of law on the basis of Islamic injunctions, the petitioner relied upon the following verses of the Holy Quran:
5. In support of his prayer, the petitioner has also relied upon few Ahadith regarding marriage, which are as follows: 3138 [13]
6. We have gone through the petition and all the references made by the petitioner therein, and we have heard the arguments of the petitioner at length. All the Ahadith and Ayat, the petitioner relied upon in his petition, are more relevant to the importance of marriage contract in Islam and are not directly related to the age at which a male or a female should get married. Whereas, the point in issue in the petition is totally different i.e. it is related to the fixation of a minimum age for contracting a marriage or setting a minimum age for Nikah by the State. There is no doubt that according to the teaching of the Quran and Sunnah the Nikkah and marriage or the importance of marital relations has a significant and pivotal place in human society. This relation is considered as the foundation stone of the human society, which Islam wants to establish and preserve. According to Islam a marriage is not only confined to legitimate sexual relationship between a man and woman but it also establishes the rights and duties of the couple. So far as rights of husband and wife over each other are concerned both husband and wife are equal, however Islam puts husband under obligation and made him duty bound to protect his wife and provide sustenance to her according to his strength and abilities. This aspect of marital relation is mentioned in Verse- 228 of Surah Al-Baqarah in the following manner: And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.
The whole idea of marital life is explained elaborately in many verses of the Holy Quran as well as in a number of Ahadith. However, one Ayat very concisely explains the crux of matrimonial relations in a metaphorical manner i.e. Verse 187 of Surah Al-Baqarah, which states as follows: They (your wives) are a clothing (covering) for you and you too are a clothing (covering) for them.
This Ayat explains the matrimonial relation of the husband and wife in a comprehensive and all- encompassing way. It explains that both the spouses are necessary for each other for their individual and collective sustenance, care, survival and protection of each other, etc. Such a relationship requires mental maturity, psychological stability, economic sustainability, etc. This relation is not restricted and limited to sexual relationship only. Hence, this important relation of a human being does not depend only on the fact that either the parties to a marriage have attained the age of puberty or not, but it requires certain mental maturity also, which is commonly called as Rushd according to the injunctions of the Holy Quran and Sunnah of the Prophet (SAW). The term Rushd in the sense of mental maturity is used in Verse 6 of Surah Al-Nisa as follows: And test the orphans fin their abilities] until they reach marriageable age. Then if you perceive in them sound judgement, release their property to them.
In this Ayat, Allah (SWT) explains two preconditions namely (1) majority or Bulugh and (2) mental maturity or Rushd/ for the guardian of an orphan to handover the orphan his property or wealth when you observe the orphan reaches puberty and when you find emotional and mental rectitude in him or her. This Ayat of the Holy Quran tells us that the ability to keep property and manage other affairs of life does not automatically come with puberty (Bulugh /only, but mental rectitude or mental maturity (Rushd / is also required. It is something over and above puberty or sexual maturity of a person and is necessary to handle the normal affairs of life. All the classical Muslim Jurists have consensus that sexual maturity (Balugh / is different from mental maturity (Rushd / therefore, they set different age limit for a normal person to attain mental maturity (Rushd /. Time period to attain sexual puberty and mental maturity may and may not be the same but normally mental maturity comes later than sexual puberty due to many external factors associated with the intellectual and emotional development of a person and formal education is the most important one for the mental development of a human being. Due to the existence of such factors, Muslim Jurists have set different ages for appearance of Rushd in a person, hence Imam Abu Hanifa has set an age of twenty-five (25) as a reasonable period for appearance of mental maturity (Rushd / in a person. (Al-Sarakhsi, Al-Mabsoot 23-24, Page-161, Qamoos al-Fiqh Maulana Saifullah Rehman Vol.3 [Page 480], Ahkam Ul Quran Jasas). Regarding sexual puberty (Balugh /and the age of maturity, the scholars have discussed this subject in detail while explaining the Tafseer of Ayat 6 of Surah An-Nisa (Tafseer Ahkam ul Quran by Jasas, Tafseer al-Qurtubi, Tafheem al-Quran, Zia-ul- Quran, etc.). As a reference, we have reproduced the following a few excerpts from the commentary of Ma'ariful Al-Quran and from Tafheem ul-Quran and Zia-ul-Quran.
"The Age of Maturity Along with the injunction of maturity (bulugh) in this verse, the Holy Qur'an has also answered the question as to the 'age' when a child would be taken as mature (baligh) by saying: translated as 'until they reach marriageability'. Here, it has been indicated that real maturity is not tied up with any particular count of years. Rather, it depends on particular indicators and signs experienced by adults entering the threshold of adulthood. When, in terms of these indicators and signs, they would be regarded fit to marry, they would be considered mature, even if their age does not exceed thirteen or fourteen years. But, should it be that such signs of maturity just do not show up in some child, he shall be considered mature in terms of age, a position in which Muslim jurists vary. Some fix eighteen years for boys and seventeen for girls; some others have fixed fifteen years for both. With the Hanafiyyah, the fatwa is on the position that the boy and the girl shall both be considered mature under the Islamic law after they have completed their fifteenth year irrespective of whether or not signs of maturity are found.
The Perception of Proper Understanding: How to find it? An Explanation of The injunction of the Qur'an is: 'then, if you perceive in them proper understanding, hand over to them their property.' Now, what is the time of this 'proper understanding' (rushd)? The Holy Quran has not elaborated on this final limit of time. Therefore, some Muslim jurists leaned towards favouring the view that the properties of children should not be handed over to them until it has been determined that they do have full and proper understanding. Instead, these will stay under the safe custody of the guardian as usual, even if this state of affairs continues for the rest of life.
But, in accordance with the verification of the issue by Imam Abu Hanifah at this point the absence of 'proper understanding' refers to the state affected by childhood. Within ten years after maturity, the effect of childhood is gone. So, there are fifteen years as the age of maturity (bulugh) and ten years as the age of proper under-standing (rushd). Once these 25 years are reached, such proper understanding is most likely to be achieved; something which was not possible due to the barriers of childhood, and later, younger years. Then, it should be noted that the Holy Qur'an uses the word, 'rushdan' in its indefinite form whereby it is suggesting that full understanding and perfect sense are not absolute conditions. A reasonable measure of understanding is also sufficient for this purpose on the basis of which their properties could be given to them. Therefore, even if perfect understanding has not been achieved despite the long wait of twenty five years, even then, their properties will be handed over to them. As far as perfect understanding and wisdom is concerned, there are people who do not get to achieve these throughout their entire lives. They always remain simple, innocent and rather shy and slow in conducting their practical dealings. They will not be deprived of their properties because of this.
However, should there be someone totally insane, he will be governed by a separate rule since such a person always remains in the category of immature children. His property will never be handed over to him until his insanity disappears, even if his entire life were to pass in insanity.
(Ma'ariful Qur'an, Pages-323-324, Volume-2)" [emphases added] Maluana Maududi explains the same verse of Surah An-Nisa in his Tafseer as: Similarly, Pir Muhammad Karam Shah Al-Azhari explains this Verse in his Tafseer Zia-ul-Quran as:
7. Different jurists have mentioned different conditions in the absence of which entering into a marriage contract is not admissible according to the Injunctions of Islam as laid down in the Holy Quran and Sunnah, according to which contracting marriage is not an absolute right, it is a subjective right depending upon number of conditions and physical, mental, economic, etc. status of a person, who wants to marry. The Verse 33 of Surah An-Nur is one relevant verse in this regard, wherein Allah (SWT) says: But let them who find not [the means for] marriage abstain from sexual relations] until Allah enriches them from His bounty.
This verse gives us clear guidance that sexual maturity is only one aspect necessary for marriage under Islamic law. There are other requirements also which are considered necessary and appropriate to enter into a marriage contract, which may include financial condition, health and mental maturity, etc. The fact that the legality of marriage is subject to the ability of the person from different aspects, this act is at the same time considered as Fard, Wajib, Mustahib, Makruh and even Haram depending on the physical and economic and mental condition of a person who wants to marry. The above mentioned verse gives us the guideline that one who does not have the means to have a healthy marital life must wait for having better economic and other conditions necessary to lead a healthy marital life, otherwise one must avoid to enter into a marriage contract. This interpretation of Verse-33 of Surah An-Nur is clearly elaborated in the Hadith narrated by Hazrat Abdullah bin Omer (R.A), which is as follows: [emphases added] In another verse of Surah An-Nisa (Verse 25), the Holy Quran advises us that in situation where one cannot afford to have a marriage in normal manner with a matchable and suitable girl then one can marry a slave girl but patience and wait is better. The Verse 25 of Surah an-Nisa states that: And whoever among you cannot [find' the means to many free, believing women, then [he may marry] from those whom your right hands possess of believing slave girls. And Allah is most knowing about your faith. You [believers] are of one another. So, marry them with the permission of their people and give them their due compensation according to what is acceptable. (They should be] chaste, neither [of] those who commit unlawful intercourse randomly nor those who take [secret] lovers. But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you and Allah is Forgiving and Merciful.
8. In addition to that, according to Sunnah there are certain conditions which do not allow a person to solemnize marriage even after attaining the age of maturity. This concept becomes clear from the following Hadith, for which Imam Bukhari established a whole chapter in his books in the following manner: The original copy shall be preserved in the Police Station for a period of sixty years. The other three copies shall be submitted as follows:-
(a) One to the Superintendent of Police or other gazetted officer nominated by him.
(b) One to the Magistrate empowered to take cognizance of the offence as is required by Section 157, Criminal Procedure Code.
(c) One to the complainant unless a written report in Form 24.2(1) has been received in which case the check receipt prescribed will be sent.
(3) In the case of the railway police, the copy intended for the magistrate empowered to take cognizance of the offence shall be submitted through the Superintendent of the district police; Provided that at railway police station, other than district headquarter stations, where there is a Magistrate having jurisdiction, one copy shall be sent to such magistrate direct, one to the Deputy Superintendent of the Railway Police and another to the Superintendent of District Police. The extra copy required in such cases will be made by inserting an extra sheet of paper and carbon paper and afterwards filling the printed headings, etc., by hand.
(4) All information required by the form shall be filled in, and thereafter the serial number of each case diary submitted shall be noted on the reverse of the original copy which is to remain at the police station.
(5) On the conclusion of the case the particulars contained in the charge sheet slip shall be filled in on the reverse of the original copy and the slip returned to the Superintendent's office."
According to Article 112 of the Police Order, 2002 (22 of 2002), the Provincial Police Officer/Inspector General of Police, Punjab, with the approval of the Government of Punjab, made amendments in Rules 22.3 and 22.4 of Police Rules, 1934 and notified through Notification No. 43604/DIG/I.T. dated 15.12.2017 which are as under: "In the Police Rule, 1934, in Chapter XXII:
(1) for Rule 22.3, the following shall be substituted: "22.3. Station Clerk:-(1) A Station clerk shall:
(a) be a literate head constable or IT literate officer;
(b) work under the supervision of the officer incharge of the police station;
(c) act as a clerk, accountant and record keeper; and
(d) be the custodian of the property at the police station.
(2) A station clerk may be assisted by one or more assistant clerks.
(3) The Provincial Police Officer may, by general or special order, assign any one or more tasks to any officer mentioned above."; and
(2) in Rule 22.4, for clause (a), the following shall be substituted: "(a) He shall:
(i) maintain hard as well as soft copy (electronic copy) of the registers as per orders of the Provincial Police Officer;
(ii) dispose of and be responsible for early disposal of all the correspondence as per instructions of the officer incharge of the police station; and
(iii) write all reports and returns called for by the competent authority."
A bare perusal of the above amendment would show no reference to Rule 24.5 to be amended. The fact that lodging FIR was made on the computer due to the above amendment cannot justify that FIR was legaly lodged. No amendment to Rule 24.5 was made. The act of Muhammad Yaqoob S.I.
(CW-2) does not align with the law and, thereby, is in absolute violation and non-compliance with Section 154 Criminal Procedure Code and Rule 24.5 of Police Rules, 1934. The FIR is the document entered into a book/register maintained at the police station under Rule 24.5 of Police Rules, 1934.
The statement of complainant is entered therein under Section 154 Criminal Procedure Code.
Based on this, the law is set into motion. The mandatory provisions of the law were departed, which creates doubt about the truthfulness of the allegation leveled in the FIR and that when the incident was reported to the police and left unexplained holes in the prosecution story, the benefit of which must accrue to the accused.
12. Another aspect of the case makes the prosecution case doubtful. Zafar Fareed (CW-7)-the investigating officer deposed that on receiving of FIR (Exh.CW-2/A), he immediately rushed to the place of occurrence, where Adnan Abdullah Khan (PW-1), Saif Ullah Khan (PW-2), Qaisar Rasheed Khan (PW-3), Ijaz Ahmad Khan (PW given up), and Aamir (PW given up) were present, and he (CW- 7) prepared the inquest report by the law with due care. Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that: "Police arrived at the place of occurrence after about one and half/two hours after the occurrence. The witness volunteered that upon arrival of the police I got written the application for registration of case and went to police station and then police came at the spot and then after police brought the dead body."
Saif Ullah (PW-2) deposed during cross-examination that: "I do not know that upon arrival of police, what document was prepared first by them. Police remained at the place of occurrence for about 1 or 3/4 hour."
Zafar Fareed S.I. (CW-7)-the investigating officer admitted during cross-examination that: "I noted the names in Column No. 4 of inquest report the names who were present at the place of occurrence. The witness volunteered that they were also relatives of the complainant. The complainant being brother of deceased is closer relative. than the persons stated in Column No. 4 of inquest report. The name of complainant and alleged PWs is not stated in column No. 4 of inquest report. The two persons Aamir Khan and Raiser Rasheed Khan were present at the time of preparation of inquest report so I noted the names of these two persons in Column No. 4 of the inquest report."
Zafar Fareed S.I. (CW-7)-the investigating officer prepared an inquest report (Ex.CW-5/C), wherein the names of Adnan Abdullah Khan (PW-1)-the complainant, and Saif Ullah (PW-2) have not been mentioned in Column No. 4, and the inquest report (Ex.CW-51C) was not signed by any of the eye- witnesses or the complainant. Although Zafar Fareed S.I. (CW-7) the investigating officer, has categorically asserted that he recorded the statements of the witnesses under Section 161 of Cr.P.C. and also made the investigation, which shows that the witnesses were not present at the place of occurrence. The inquest report (Ex. CW-5/C) was signed by Aamir Khan (given up PW) and Qaisar Rasheed Khan (PW-3). Adnan Abdullah Khan (PW-1)-the complainant deposed during cross- examination that: "Aamir Pw belongs to Faisalabad, whereas the Pw Qaisar Rasheed belongs to Kot Sondha. I did not informed Aamir through Telephone regarding the occurrence. The witness volunteered that he had already come in the house of Qaisar Rasheed......called Qaisar Rasheed through telephone and informed him about the occurrence. On the day of occurrence my cell phone was active. I did not call the police through telephonically."
The complainant, after half an hour after the incident, went to the market and got drafted a complaint (Ex. PA), and after that, he went to the police station to report the incident. The above deposition of Adnan Abdullah Khan (PW-1)-the complainant, reveals that before reporting the incident to the police, he (PW-1) managed witnesses, i.e., Aamir Khan (given up PW) and Qaisar Rasheed Khan (PW-3). Admittedly, Aamir Khan belongs to Faisalabad, whereas Qaisar Rasheed Khan (PW-3) belongs to Kot Sondha. During cross-examination, Adnan Abdullah Khan (PW-1)-the complainant, admitted that Amir Khan PW is his maternal cousin and brother-in-law. The distance between the place of occurrence and Faisalabad is about 70/80 kilometers. Qaisar Rasheed-PW is his maternal cousin, and he was a resident of Kot Sondha. Kot Sondha is about 5/7 kilometers away from the place of occurrence. The presence of both these witnesses, i.e., Aamir Khan (given up PW) and Qaisar Rasheed Khan (PW-3), at the tithe of preparation of the inquest report (Ex. CW-5/C) at 07:15 p.m. on 28.06.2017, suggests that the FIR had been registered after due consultation and deliberation by the complainant and also creates doubt regarding the actual time of proceedings of inquest taken by Zafar Pureed S.I. (CW-7)-the investigating officer, as they were called by the complainant through a telephone call from their respective places, i.e., Faisalabad and Kot Sondha.
It also suggests that the complainant (PW-1) and Saif Ullah (PW-2) were not present when the inquest occurred. Saif Ullah (PW-2) is a resident of Dera Malla Singh, and he (PW-2) admitted during cross-examination that: "The distance between Farooaabad and Dera Malla Singh is about 7/8 kilometers........... When police arrived at the place of occurrence Qaiser Khan and Aamir Khan had already arrived: Qaiser Rahseed is our relative who resides at Kot Sondha. Amir Khan is also our relative. The distance between Kot Sondha and place of occurrence is about 6/7 km."
Qaisar Rasheed Khan (PW-3) deposed that he reached the place of occurrence, where the dead body of Shahzad Abdullah was lying in Mirza Gafoor Chowk. He identified the dead body before the investigating officer during the post-mortem examination. He (PW-3 deposed during cross- examination that: "I recorded in my statement WS. 161, Cr.P.C. to the effect that I reached at the place of occurrence where dead body of Shahzad Abdulla laying in the Chowk Mirza Gafoor. Confronted with Ex. DB where it is no recorded."
Considering all these facts, we have no hesitation in concluding that the prosecution has not been able to prove on the record that the incident was reported at the time it was claimed to have been recorded and the presence of the witnesses at the place of occurrence.
13. On perusal of complaint (Ex. PA), FIR (Ex. CW-21A), it reveals that the same was lodged at 07:15 p.m. on 28.06.2017, and post-mortem was conducted by Dr. Rao Taimoor Hameed Khan (CW-5) on 29.06.2017 at 06:00 a.m., with a delay of about 10 hours and 45 minutes from the time of registration of FIR. The fact, however, remains that the post-mortem examination was delayed for ten hours and forty-five minutes. The prosecution did not explain the delay in conducting the post-mortem examination. Dr. Rao Taimoor Hameed Khan (CW-5) deposed during examination-in-chief that: "On the same day at 08:00 p.m, a dead body of Shahzad Abdullah s/o Abdullah Khan age about 50-52 years, male, caste Pathan, was brought by Shakeel Ahmed 1777/C and Muhammad Asif 1697/C from the police station of city Farooqabad, District Sheikhupura, for the purpose of autopsy.......Complete documents from police received at 05:30 a.m. on 29.06.2017 and autopsy conducted at 06:00 a.m. on 29.06.2017. The death according to police papers was occurred on the 28.06.2017 at 07:15 P.M."
During cross-examination, Dr. Rao Taimoor Hameed Khan (CW-5) deposed that: "There is no delay on my part for conducting of post-mortem. As soon as I received police paper I started examination.......In autopsy report Ex.CW-5/A, the column of Book Number and Serial Number has been crossed. No number has been mentioned. I did not initial upon the alphabets of L and R in Ex.CW-5/A/1."
As per the post-mortem report (Ex. CW-5/A), the time of death was mentioned as 07:15 p.m. on 28.06.2017. Dr. Rao Taimoor Hameed Khan (CW-5) deposed during cross-examination that: "I signed over the application for conducting autopsy/iniury sheet Ex. CW-5/B, inquest report Ex.
CW-5/C, application for conducting of post-mortem examination Ex.CW-5/D."
The absence of signatures of Dr. Rao Taimoor Hameed Khan (CW-5) in the complaint (Ex. PA) and F.I.R (Ex. CW-2/A) led to the conclusion that the FIR was recorded with the delay, and the FIR has not been registered at the time at which it is claimed to have been recorded. It also gets support from the inquest report (Ex. CW-5/C), wherein the reference to the documents is not given in the brief history. The Court observed that even though the inquest report prepared under Section 174 of Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of the statement recorded dung inquest proceedings get reflected in the report. The deposition of Dr. Rao Taimoor Hameed Khan (CW-5) reveals that the documents were received at 05:30 a.m., and till that time, the complaint (Ex. PA) and F.I.R. (Ex. CW-2/A) were not existing. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the first information report came to be recorded later on after due deliberation and consultation and was then ante-timed to provide it with the color of the promptly lodged first information report. The Hon'ble Supreme Court of Pakistan, in the case of "Irshad Ahmed v. The State" (2011 SCMR 1193), held that: "We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye- witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted."
Admittedly, the incident occurred at Chowk Mirza Ghafoor at 06:00 p.m. on 28.06.2017. As per the prosecution case and deposed by the prosecution witnesses, i.e., Adnan Abdullah Khan (PW-1)-the complainant, and Saif Ullah (PW-2), on 28.06.2017 at about 06:00 p.m., they along with Shehzad Abdullah Khan (the deceased) and Ejaz Ahmad Khan were proceeding towards chowk of Mirza Ghafoor to offer to swing their children and when they reached in chowk of Mirza Ghafoor, where the appellant along with other accused was present and the incident took place. The reason for the presence of prosecution witnesses at the place of occurrence was taking their children to offer them swings. Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that: "I, Saif Ullah pw. Ijaz pw and Shahzad deceased have no residence or any place of business at the Chowk of Mirza Ghaffor." He (PW-1) further deposed during cross-examination, "We did not produce the two children before the police. The witness volunteered they were minors. The name of such children Ibraheem Shahzad aged about 5/6 years and second was Mariam Bibi aged about 8/10 years. I did not bring my children for swings. I did not produce the operator of swings before the police to prove the fact of existence of swings."
Whereas, Saif Ullah (PW-2) deposed during cross-examination that: "I have wife and children. My brother Ijaz also has wife and children. My children and the children of Ijaz were not with us on the day of the occurrence when we were allegedly going to swing the children. We did not produce any of my family member i.e wife and children before the police during investigation to prove the fact that on the day of occurrence we really came to Farooaabad."
The investigating officer (CW-7) deposed during cross-examination that: "There is no mention of the swings and the minor children playing in it in my unsealed site-plan Ex.CW-7/H............. .I reached at the place of occurrence the persons who were present there to whom I mentioned in my record were majors. I did not refer the children to whom the complainant party had brought for swings in my entire investigation."
It is admitted that the prosecution witnesses are interested and inimical towards the accused. The appellant is the son of co-accused Tariq Saif-ul-Rehman and the brother of Qudrat Ullah Shahab and Junaid Ahmad Khan (since acquitted). Adnan Abdullah Khan (PW-1) the complainant deposed during cross-examination that: "About 6 months earlier to the occurrence I lodged an FIR 449 dated 17.12.2016 u/S. 364. PPC regarding the abduction of Saif Ullah PW of this case, against Tariq accused and his sons."
Similarly, Saif Ullah (PW-2) deposed during cross-examination that: "A criminal case was registered against Taha accused and his father etc. regarding my abduction. The said case was registered by the complainant of this case. The said case was cancelled. The witness volunteered that a compromise effected in that case....... cannot produce any document regarding compromise today. I did not produce any document of that compromise during the investigation of this case."
So, all these facts suggest that both the prosecution witnesses, i.e., Adnan Abdullah Khan (PW-1)- the complainant, and Saif Ullah (PW-2), failed to establish their presence at the place of occurrence. The prosecution witnesses were not only inimical towards the accused persons but were also closely related to the deceased, and they had reasons to implicate the accused persons falsely. During cross-examination, Zafar Fareed S.I. (CW-7)-the investigating officer deposed that:- "I did not the record the statement of minor injured Muhammad Ahmad...........The witness volunteered that the father of injured minor child appeared before the Court of learned Area Magistrate and recorded his statement that they did not want to pursue the case. During my investigation on 22.07.2017, it was not came before me the complainant party was harassing the minor child and his father. The witness volunteered that might be due to clerical mistake it was stated in my case diaries however the father of the minor injured appeared before the learned Area Magistrate and recorded his statement. The investigation remained with me from 22.07.2017 to 10.09.2017. Police file also remained with me during the above said period. During this period, I have been writing and reading the police file. I did not correct my any clerical mistake."
There is no independent evidence to corroborate the evidence of the I F interested witnesses in this case.
14. Per the prosecution case, Zafar Fareed S.I. (CW-7)-the investigating officer, deposed that on 28.06.2017, he (CW-7) collected 13 crimes empties P-1/1-13 of 9MM pistol which were secured from the place of occurrence vide recovery memo (Ex. PE) and on the same day he (CW-7) handed over a sealed parcel of the 13 crimes empties P-1/1-13 to Nazim Hussain 1313/HC (CW-4) for onward transmission to the office of Punjab Forensic Science Agency. Nazim Hussain 1313/HC (CW-4) deposed that he handed over a sealed parcel of the 13 crimes empties P-1/1-13 to Zafar Fareed S.I.
(CW-7)-the investigating officer, on 03.07.2017. Zafar Fareed S.I. (CW-7)-the investigating officer deposed that on 03.07.2017, he received a sealed parcel of the 13 crimes empties 2-1/1-13 from Nazim Hussain 1313/HC (CW-4) and deposited the same on the same day with the office of Punjab Forensic Science Agency.
Zafar Fareed S.I. (CW-7)-the investigating officer deposed that he arrested Taha Azam Ullah- accused on 14.08.2017. On 24.08.2017, Taha Azam Ullah-accused got recovered a pistol 9-MM (P-4) along with two magazines P-5/1-2 and two live bullets P-611-2 and on the same day, Zafar Fareed S.I. (CW-7)-the investigating officer handed over a sealed parcel of the pistol 9-MM (P-4) to Nazim Hussain 1313/HC (CW-4) for onward transmission to the office of Punjab Forensic Science Agency.
Nazim Hussain 1313/HC (CW-4) deposed that he handed over a sealed parcel of the pistol 9-MM (P-4) to Zafar Fareed S.I. (CW-7)-the investigating officer on 29.08.2017, the office of Punjab Forensic Science Agency. Zafar Fareed S.I. (CW-7)-the investigating officer deposed that on 29.08.2017, he received a sealed parcel of pistol 9-MM (P-4) from Nazim Hussain 1313/HC (CW-4) and deposited the same on the same day with the office of Punjab Forensic Science Agency. The sealed parcel of case property was handed over to Zafar Fareed S.I. (CW-7)-the investigating officer, but he (CW-7) had not stated that he received back pistol 9-MM (P-4) and the 13 crimes empties P-1/1-13 from the office of Punjab Forensic Science Agency, Lahore. The entire prosecution evidence is silent on this aspect of the case. The whole prosecution evidence is silent on this aspect of the case. Thus, there was no link evidence to prove that the pistol 9-MM (P-4) recovered from the accused and 13 crime empties P-1/1-13 secured from the place of occurrence were again received back from Zafar Fareed S.I. (CW-7)-investigating officer or any other police officer by the moharrar Malkhana, and the same were re-deposited in the Malkhana or handed over to the Moharrar. It is necessary that as and when the case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when the case property is re-deposited in Malkhana. Case property in murder cases must be kept in safe custody from the date of seizure till its production in the Court. On 01.09.2018, 13 crime empties P- 1/1-13 and on 15.11.2018, the pistol 9-MM (P-4) were produced in the testimony of Saif Ullah (PW-2) and Ibrar Ahmad (PW-4) respectively Nazim Hussain 1313/HC (CW-4) or any other prosecution witness had not stated that they collected 13 crime empties P-1/1-1.3 and pistol (P-4) from the office of Punjab Forensic Science Laboratory and re-deposited the same with the malkhana. Thus, it casts doubt whether it is the same case properties i.e. pistol (P-4) and crime empties P-1/1-13 respectively, that were recovered from the accused and secured from the place of occurrence, and, after that sent to Punjab Forensic Science Laboratory or whether it was case property of some other case. Pointing out towards above deposition of prosecution witnesses, it reveals that the prosecution did not prove that case property 13 crime empties P-1/1-13 and pistol (P-4) were kept in safe custody. Due to the lack of this evidence, it cannot be held that the alleged recovered 13 crime empties P-1/1-13 and pistol (P-4) were re-deposited in Malkhana, and its benefit will go to the accused. Given prosecution evidence, it would be taken that there was enough chance of the said contraband being tampered with Zafer Fareed S.I. (CW-7)-investigating officer admitted during cross-examination that: "I prepared inquest report in accordance with law with due care...........I collected crime empties/cases from the place of occurrence. I took into custody the dead body from the place of occurrence. I could not enter the detail of recoveries made at the snot in Column No. 22 and 23 of inquest report due to inadvertence........ ............I did not inform my superior police officer regarding the mistake committed in column No. 22 and 23."
The case property, i.e., 13 crime empties P-1/1-13 and pistol (p-4) produced in the Court, could not be related to the case property seized from the place of occurrence. Therefore, 13 crime empties P- 1/1-13 and pistol (P-4) might have been tampered with while in the custody of the police cannot be ruled out. Thus, there is no evidence to connect the Fire-arms & Toolmarks Examination Report (Ex.PJ) with the 13 crime empties P-1/1-13, seized from the place of occurrence and pistol (P-4) secured from the possession of the accused. That being the position, it would not be safe to rely upon the positive report of the forensic science laboratory (Exh.PJ). These combined circumstances only deepen the shadow of doubt cast upon the prosecution's case.
15. Moreover, we have noted that Dr. Rao Taimoor Khan (CW-5), who conducted the post-mortem of the dead body of the deceased-Shahzad Abdullah, recovered one metallic Bullet from the left lung and handed it over to the police. Muhammad Asif 1697/C (CW-3) deposed that: "After conducting the post-mortem doctor handed over to me post-mortem report, last worn clothes comprising Shalwar. Qameez, Banyan coloured white blood stained and sealed box containing metallic bullet which I handed over to the I.O of the case."
We have noted that the said metallic body was neither sent to the Forensic Science Laboratory for its comparison with the pistol 9-MM (P-4) recovered at the pointing of the appellant nor the same was exhibited in evidence of the prosecution. Thus, it was established from the evidence of Muhammad Asif 1697/C (CW-3) and post-mortem report (Ex. CW-5/A) that Dr. Rao Taimoor Khan (CW-5) recovered the metallic body from the left lung of the deceased and handed over to the police, therefore, an adverse inference is to be drawn that had the metallic body, been sent to Forensic Science Laboratory for its comparison then the said report would have been unfavorable to the prosecution.
16. The motive set up by the prosecution in the private complaint (Exh.PC) and F.I.R. (Exh.PB) and deposed about it by Adnan Abdullah (PW-1)-the complainant and Saif Ullah (PW-2) have been found by us to have remained un-proved. The prosecution case in this regard was vague and could hardly inspire confidence. Adnan Abdullah (PW-1)-the complainant deposed during cross- examination that: "I did not state the detail of said property in my private complaint. I did not submit any copy of ownership alongwith private complaint. We did not file any complaint for retrieving possession under illegal dispossession Act. The witness volunteer some other litigation was pending before the Court. We did not submit any copy of such pending cases alongwith this private case. It is incorrect to suggest that my stance of pendency of such cases is false. About 15/20 days earlier to the murder of Shahzad, a compromise was effected before District Collector regarding agricultural land left between the accused and us...........The litigation regarding the case property left by Tahir Ishfaa-Ur-Rehman remained vending for about 2 years before the Court.
During such pendency no one from accused side shot fire. struck danda or hatchet to any member of my family. The witness volunteer that Shahzad deceased was received threats. I did not report the matter of threats to the police."
Saif Ullah (PW-2) deposed during cross-examination that:- "The two wives and children of Tahir Ishfaq Ur Rehman are alive. None of two wives and children of Tahir Ishfaq Ur Rehman witnesses in this case to prove the motive of the instant case. It is incorrect to suggest that we introduce false motive."
Adnan Abdullah (PW-1)-the complainant deposed that after 15/20 days of the occurrence, a compromise was effected between the parties. Per the prosecution case, the occurrence occurred on 28.06.2017. The defence relied upon an appeal filed by one Tariq Saif before District Collector, Sheikhupura (Ex.DC), partition deed (Ex.DD), wandajat (Ex.DE), order dated 1I.O1.2017 (Ex.DF) passed by District Collector, Sheikhupura and order dated 15.02.2017 (Ex.DJ) passed by District Collector, Sheikhupura reveals that compromise was effected between the parties on 11.01.2017 and application for correction of wandajat (Ex.DG) was submitted on 17.01.2017, vide order dated 15.02.2017 (Ex.PJ) passed by District Collector, Sheikhupura amended compromise was replaced with compromise deed 11.01.2017. Rashida Tahir, the widow of Tahir Ishfaq-ur-Rehman, signed the amended compromise deed and order dated 15.02.2017 (Ex.PJ). The documentary evidence on the record reveals that no litigation was pending between the accused persons and the widow of Tahir Ishfaq-ur-Rehman. Zafer Fareed S.I. (CW-7)-the investigating officer admitted during cross- examination that he had not interrogated Rashida Tahir, widow of Tahir Ishfaq-ur-Rehman. Zafer Fareed S.I. (CW-7)-the investigating officer deposed during cross-examination that:- "The motive was stated to be the property of Rashida Bibi wife of deceased. I did not record the statement off Rashida Bibi in support of motive part."
Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that: "Both wives of Tahir Ishfaq-Ur-Rehman and his children are alive. We did not state any of them as my PW. We produced Rashida Bibi my sister one of the wife of Tahir Ishfaq Ur Rehman during the proceedings before the police."
Therefore, an adverse inference is to be drawn within the meaning of Article 129(g) of Qanun-e- Shahadat Order, 1984 that had Rashida Tahir, widow of Tahir Ishfaq-ur-Rehman, appeared in the witness box would have been unfavorable to the prosecution. Reliance is placed on cases reported as "Lal Khan vs. The State" (2006 SCMR 1846) and "The State and others v. Abdul Khaliq and others" (PLD 2011 SC 554). In the circumstances, we cannot avoid the conclusion that the alleged motive was an afterthought and has not been proved by any credible evidence.
17. Taking the cumulative effect of the circumstances and the testimony of the witnesses into consideration, we believe that the prosecution has failed to bring true facts before the Court. The prosecution could not lead incriminating, corroborative/independent evidence to bring home the accused's guilt in the case of a capital charge. The learned trial Court was not justified in convicting the appellant while basing upon such un-trustworthy, un-corroborated evidence, and the conviction passed by the learned trial Court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of the law, the benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v. The State"
(2009 SCMR 230), it has been held as under: "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
It is a golden principle of law that the Court should let off 100 guilty but not convict one innocent person. In the case of "Ayub Masih v. The State" (PLD 2002 SC 1048), it has been held by the Hon'ble Supreme Court of Pakistan that:- "----It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in "The State v. Mushtaq Ahmed" (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".
18. The upshot of the above discussion is that the prosecution had badly failed to bring home a charge against the appellant beyond any reasonable doubt; therefore, in the interest of the safe administration of Criminal Justice, Crl. Appeal No. 27767 of 2019 filed by Taha Azaam Ullah, the appellant is accepted in toto. The sentance awarded by the learned Additional Sessions Judge, Sheikhupura vide, judgment dated 30.04.2019, is set aside., and the appellant is acquitted of the charge in private complaint filed under Sections 302, 324, 34, PPC, P.S. City Farooqabad, District Sheikhupura titled "Adrian Abdullah vs. Taha Azaam Ullah, etc." in the case of F.I.R. No. 129 of 2017 dated 28.06.2017, offence under Sections 302, 324, 34, PPC registered at Police Station, City Farooq Abad District, Sheikhupura. The appellant-Taha Azaam Ullah is ordered to be released forthwith if not required in any other case.
19. Murder Reference No. 241 of 2019 is answered in the negative, and the sentence of death awarded to Taha Azaam Ullah son of Tariq Saif-ur-Rehman, Caste Pathan, resident of Street Store Wali near Ali Baba Centre, Farooqabad Tehsil and District, Sheikhupura (convict) is Not Confirmed.
20. As far as P.S.L.A No. 41181/2019 seeking the conviction of Respondents Nos. 1 to 3, namely Junaid Ahmad Khan, Qudrat Ullah Shahab and Tariq Saif-ur-Rehman is concerned, for what has been discussed above in the light of prosecution evidence, medical evidence and documentary evidence, the acquittal of Respondents Nos. 1 to 3 does not suffer from any illegality to call for interference of this Court with the impugned judgment. This Court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the lower Court's judgment is perverse or that it is entirely illegal. No other conclusion can be drawn except the guilt of the accused or misreading or non-reading of evidence resulting in a miscarriage of justice. Even otherwise, when a Court of competent jurisdiction acquits the accused, the double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v.
Muhammad Ashgar and others (2003 SCMR 477). In this case, the prosecution has not been able to bring on record adequate incriminating evidence against Respondents Nos. 1 to 3, which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favor of Respondents Nos. 1 to 3. The judgment of acquittal does not call for any interference. Consequently, we find no merit in this P.S.L.A No. 41181 of 2019, which is hereby dismissed as being without merits.