' M. S. H. QURAISHI, J.-This appeal filed under Article 203-F read with Article 185(2)(a) of the Constitution is directed against the judgment of the Federal Shariat Court dated 6-10-1962 whereby the acquittal of Taj Din appellant was set aside and he was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and section 302 of the Pakistan Penal Code and sentenced to R. I. For 25 years plus 30 stripes and to death, respectively.
2. The appellant had been tried under section 10 of the said Ordinance for committing rape on Mst.
Rajan deceased aged 12/13 years and under section 302, P. P. C. For murdering her in the same transaction. According to the prosecution, the appellant was married to Mst. Fazlan, daughter of Mst. Fatima Bibi P. W. And sister of the deceased. The appellant with his wife lived in one of the two rooms of Mst. Ghulam Fatima's house, the other room being occupied by her. Fazal Din son of Mst.
Fatima, who was a married person, lived in a separate house 70/75 karams from there. On the 14th of November, 1980 at about 8/9-00 p.m. He had gone to offer condolence at the house of Ranjha Sheikh, who had died. Mst. Ghulam Fatima also came there. Fazal Din inquired from her as to whom she had left in the house to look after Mst. Rajan. She told him that Mst. Fazlan had gone away that day to Sabiwal and that Mst. Rajan was with the appellant in the house.
' She then asked him to go to the house and himself enquire about her. Fazal Din accordingly went there accompanied by Siraj Din and Sadiq. It was about 9-30 p.m. But on reaching there they found the door bolted from inside and the lights put off. They called out the appellant and Mst. Rajan two or three times but receiving no reply, they pushed the door open. Fazal Din struck a match and Siraj Din lit a diva, in the light of which they saw that Mst. Rajan was lying dead on a cot and the appellant, sitting on the same cot, was putting on his shalwar. The hands of the deceased were tied with a piece of cloth. Blood was oozing from her nose and mouth. There were signs of scratches on her throat. A piece of cloth was stuck in her mouth, her shalwar was .On her knees and her vagina was wet and had signs of semen. They caught hold of the appellant on whose face also they saw signs of scratches. The hue and cry raised by them brought Mst. Ghulam Fatima, Muhammad Shafi and Din Muhammad to the spot. Fazal Din accompanied by Muhammad Shafi proceeded to inform the police but some 2 furlongs from the house, he met Muhammad Ajmal, S. H. O. Badami Bagh P.
S., before whom he made a statement (Exh. P. A) at 10-15 p.m. Which formed the basis of the formal F. I. R. In the case. The S. H. O. Came to the spot from where he recovered cot Exh. P. 3, gadda Exh. P.
4, a piece of cloth Exh. P. 5 and another piece of cloth Exh. P.
7. He took the appellant into custody and recovered from his person shalwar Exh. P. 6 which on chemical analysis was later found to be stained with semen. One of the pieces of cloth recovered from the spot was found by the Serologist to be stained with human blood.
3. The post-mortem examination disclosed the presence of the following external injuries on the person of the deceased : "(1) Depressed contused area of skin, 4 x 2 c.m., over upper left front part of neck extending horizontally oblique.
(2) Depressed contused area of skin 4.5 x 2 c.m. Over upper right front part of neck extending horizontally oblique.
(3) There was congestion over mucosal surface of both lips with multiple scratches over left cheek, maxilla on both oral angles.
(4) Multiple contused abrasions front of both wrists. On dissection, soft tissues of neck was found markedly congested against injuries 1 and 2."
' Membrane surface was congested. Pleura showed pin point bleeding spots. Inner surface of larynx and trachea was congested and showed free blood. Hyoid was intact. Right side of heart contained blood, left was empty. There was venoqs engorgement of blood vessels. Inner surface of mouth and pharynx were congested. Stomach contained 150 c.c. Semi-congested diet. Large intestines and bladder were empty. Hymen showed fresh tears. Area showed congestion and collection of blood. Uterus was empty. Two vaginal swabs sent to the Chemical Examiner for detection of semen brought a positive report.
4. The medical examination of the appellant held on 15-11-1980 at 3 p.m. Revealed the presence of multiple scratches over his left cheek in an area of 8 x 6 c.m. Caused by finger nails within 12/24 hours and simple in nature. The Medical Officer also found nothing to suggest that he was not capable of performing sexual intercourse,
5. The ocular evidence was furnished by Siraj Dia (P. W. 8) and Fazal Din (P. W. 9) who were fully corroborated by Mst. Ghulam Fatima (P. W. 4) and Muhammad Shafi (P. W. 7). The appellant denied the allegations as also the recovery of the shalwar from him. His explanation was that he had been involved falsely on account of estranged relations with the complainant party wbo, on account of his being blind of one eye, black in colour, and of short stature and ugly face, disliked him and wanted him to divorce Mst. Fazan for which the appellant was not willing. It is to be noted that suggestions put to the prosecution witnesses in this regard had been denied by them. In defence, he examined Sher Muhammad, A. S. I. Badami Bagh P. S., who produced certain cases to show that innocent persons had been involved in some cases registered by Muhammad Ajmal, S. H.
0., and that he had been suspended from the service on the 27th of December, 1980.
6. The Additional Sessions Judge, who tried the case, held that the witnesses were interested persons ; that no independent witnesses from the neighbourhood had been examined ; that Muhammad Shafi P. W. Had been involved in an abduction case in which he had been arrested and later bailed out (the trial Court failed to notice that the witness had also stated that he had been acquitted in that case) ; that the admission made by Fazal Din that he had affixed his thumb- impression on his statement the next day of the occurrence showed that his statement had not been recorded on the day of the occurrence ; and that the S. H.
0. Had nowhere stated the time and place of the appellant's arrest and the presence of scratches on his face. He also found certain contradictions in the evidence in that while Siraj Din P. W. Stated that the appellant had been caught hold of by Fazal Din, the latter stated that both he and Siraj Din had apprehended the appellant, that according to Siraj Din, he had lit a diya on entering the room while Fazal Din stated that he had lit a matchstick, whereas according to the S. H.
0. The house was fitted with electricity and that Siraj Din had stated that he had remained at the spot for the whole night but had again stated that he did not remember whose statements were recorded by the police as he had left the spot after making his statement. He further observed that the S. H.
0. Was shown to be "in the habit of involving innocent persons in cases by making collusion with the parties and for that reason he was suspended", that the scratches could have been made on the face of the appellant who was medically examined the next day at 3-00 p.m. And that "for the same reason his shalwar could have been easily stained with semen". He thus concluded that the prosecution had not established the case beyond reasonable doubt and accordingly acquitted the appellant of the charges.
7. The acquittal was challenged by Fazal Din complainant who filed Criminal Appeal No, 67/L of 1981 before the Federal Shariat Court. The State also appealed first before the High Court (Criminal Appeal No, 182 of 1982) in which notice was issued to the appellant, and, later before the Federal Shariat Court (Criminal Appeal No, 24/L of 1982). Although no formal order admitting this later appeal was passed by the Federal Shariat Court, but as the parties were duly represented by counsel, both the appeals before that Court were heard.
8. The Federal Shariat Court felt that the examination of the appellant under section 342, Cr. P. C.
Recorded by the trial Court had not been complete. It accordingly, in the interest of justice, recorded his further statement on 18-7-1982 in regard to the presence of injuries on his face, his having been found sitting and wearing his shalwar when the witnesses entered the room and his having been apprehended by them at the spot.
9. After a careful scrutiny of the evidence, the Federal Shariat Court came to the view that the acquittal was partly based upon misreading of the evidence, that Muhammad Shafi P. W. 7, an Imam of mosque, was an independent witness not related to the parties, that there was nothing in the statement of the defence witness to show that the S. H.
0. Had been suspended because of his being in the habit of involving innocent persons in criminal cases, that his omission to notice the scratches on the face of the appellant in the documents prepared by him was absolutely irrelevant, that the finding that the appellant's shalwar might have been stained with semen later is conjectural, that Fazal Din's statement even if recorded the next day was not fatal to the prosecution case and that the lighting of diya by Siraj Din or match-stick by Fazal Din in a house fitted with electric light was no ground for disbelieving the witnesses, particularly when no question had been put to either of them. The Federal Shariat Court rejected the contention raised on behalf of the appellant that the two offences could not be tried together or that in any case, the appeal from acquittal under section 302, P. P. C. Could be filed only before the High Court and not before the Federal Shariat Court. According to the Federal Shariat Court the appeals were competent in respect of both offences and the jurisdiction of that Court could not be taken away merely because an appeal had also been filed in the High Court by way of abundant caution. The submission made that there was no reason for Fazal Din to have taken two persons with him when going simply to inquire about Mst. Rajan, was held to be of no avail as Fazal Din had explained that the appellant was not a person to be relied upon for looking after a girl left alone in the house. The discrepancy as to whether the door had been pushed open or had been broken by the witnesses was found to be immaterial as according to Siraj Din P. W. The door had been bolted from inside and when pushed by force the bolt had been broken. Finally, the Federal Shariat Court felt satisfied that the case had been proved to the hilt against the appellant and accordingly set aside the order of his acquittal and convicted and sentenced him as aforesaid.
10. Sb. Shaukat Ali, appearing for the appellant, raised a number of legal pleas before us. He urged that the Court trying a case under the special law, i,e,, Ordinance WI of 1979, could not try a case under the general law and, therefore, there ought to have been two trials, one for the offence under the Ordinance and the other for the offence under the Penal Code. He further urged that there should have been two appeals also, that is, one before the Federal Shariat Court against the judgment in the case under the Ordinance and the other before the High Court in the case under the Penal Code. These contentions had been raised before the Federal Shariat Court but repelled.
This Court, too, had rejected a similar contention raised in Muhammad Abbas v. The State Cr. P. S. L.
A. No, 38-R (S) of 1983 (I), decided on 15-10-1983) with the observation that "the Court of Session could, alongwith an offence under the Ordinance, also try offences under any other law committed in the same transaction in view of section 235, Cr. P. C. And the first proviso to section 20(t) of the Ordinance". The plea, therefore, fails.
11. Another plea raised was that the State appeal before the Federal Shariat Court not having been admitted and no notice in that appeal having been issued to the appellant, the only appeal which was before that Court was the one filed by the complainant, but such appeal in a challan case was not competent as held by this Court in Muhammad Riaz Ahmad v. Ajmal Hussain (2). In this connection it was also submitted that the procedure laid down by section 427, Cr. P. C. Had not been followed by the Federal Shariat {{FOOT NOTE}}
(I) 1984 SCM R 120 (2) PLD 1983 SC 233 {{FOOT NOTE}} ' Court inasmuch as no warrant for the arrest and production of the appellant had been issued by that Court. It is to be noted that such objections had not been raised before the Federal Shariat Court. A bailable warrant of arrest had already been issued by that Court on 19-1-1982 in the complainant's appeal and the appellant was duly present in person as well as through counsel before that Court and as such there was no occasion for issuing another warant for his arrest in the State appeal. In any case, it is clear from the very first paragraph of the impugned judgment that though the State appeal had not been formally admitted, the Federal Shariat Court was hearing both the appeals before it.
12. Learned counsel for the appellant also questioned the legality of the further examination of the appellant under section 342, Cr. P. C. By the Federal Shariat Court, though be was unable to show that the appellate Court lacked the power to do so. Under section 423, Cr. P. C., which relates to the power of the appellate Court, it is one of the duties of that Court in an appeal under section 417, Cr.
P. C. To hear the accused. Since certain circumstances of the case had not been put to the appellant by the trial Court. C under section 342, Cr. P. C., it was just and proper for the appellate Court to have put those circumstances to him and no illegality can be said to have been committed on that account. In any case, no objection had been taken to the recording of the statement by the appellate Court.
13. Lastly, it was urged that the rule of re-appraisement of evidence in an appeal against acquittal was not the same as in appeals from conviction and that if on the facts of the case the view taken by the trial Court was possible, the appellate Court would not be justified in setting aside the acquittal merely because in its own opinion the case was for conviction. Reliance was placed on Bakhat Baidar v. State (1), in which after noticing the judgments in Sheo Swarup and others v. King- Emperor (2) and Billu alias lnayatullah v. The State (3), it was observed : "It has been laid down that although the High Court in such appeals has full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed but it has also been observed that in exercising the power conferred by the Code in such cases and before reaching its conclusions upon facts, the High Court should give proper weight and consideration to the view of the learned trial Judge in inter alia, disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses and we might add of hearing the accused."
It is, no doubt, true, as held in Mairaj Begum v, Ejaz Anwar (4), that a mere difference of opinion on appreciation of evidence is not considered enough for setting aside a judgment of acquittal but where the acquittal takes place on appraisal of evidence in a manner not permissible D under the law, such as by misreading or ignoring of relevant evidence, the appellate Court would have the power and the duty to interfere. It is not always necessary that the judgment of acquittal be manifestly perverse before the appellate Court could interfere, but, as held by this Court in Faizul/ah Khan v. State (5), "if the reasons given by the trial Judge in rejecting the {{FOOT NOTE}}
(1) 1982 SCM R 420 (2) AIR 1934 P C 227
(3) P L, D 1979 SC 934 (4) PLD 1982 SC 294
(5) 1972 SCM R 672 {{FOOT NOTE}} ' prosecution evidence are of a speculative and artificial nature, or the findings recorded are based on no evidence or misinterpretation of evidence, thus resulting in miscarriage of justice, it becomes necessary for the appellate Court to re-examine the whole evidence and to draw its own conclusions therefrom". The reasons given by the Federal Shariat Court in the present case for setting aside the acquittal, are indeed in accord with the established principles in this regard. There was no proper basis for the trial Court to disbelieve Muhammad Shafiq Imam of the mosque (P. W.
7), who was an independent witness, or to reject the evidence of the ocular witnesses and Mst.
Ghulam Fatima on account of so-called discrepancies which as we shall presently see have no material bearing.
14. It was argued that there was no apparent reason for Fazal Din to have taken two others with him when going to enquire about Mst. Rajan, that this conduct could only show that he had gone there on hearing of the murder and that, therefore, the crime was unwitnessed. This, according to learned counsel, was supported by the fact that the F. I. R. Had been recorded the next day of the occurrence and that the arrest of the appellant from the spot is not noted in any of the documents prepared by the S. H.
0. Nor does the presence of scratches on the face of the appellant find mention in the F. I. R. Or in the relevant documents prepared by him. It was pointed out that even the Magistrate while granting remand on 15.11-1980 had neither enquired about injuries if any on the person of the appellant nor noted the presence of scratches on his face. We find no substance in these contentions. Had Fazal Din gone to the spot on hearing of the murder, there was no reason why Mst.
Ghulam Fatima, mother of deceased, would also not go alongwith him. She had gone to the spot only on hearing alarm raised by Fazal Din and others. It is to be noted that the house of Ranjha Sheikh, where she was present at the relevant time, was only about 50/60 karams from the spot.
Even otherwise, there was no enmity against the appellant for which the witnesses would falsely involve him. All the witnesses are unanimous that the appellant had been apprehended at the spot and the documents of arrest and recovery of his shalwar, though silent on this point, do not show that he had been arrested from somewhere else. Both Mst. Ghulam Fatima and Fazal Din had mentioned of the presence of scratches on the face of the appellant. The S. H.
0. Also said that "Mst. Fatima stated that there were scratches on the face of Taj Din accused". He had denied the suggestion that the appellant when brought to the police station had no marks of scratches on his face. It is significant that the S. H.
0. Had in his application made to the Police Surgeon on 15-11-1980 for the appellant's medical examination, mentioned that there was scratches on his face. A specific question in this regard had been put to the appellant by the appellate Court in his further examination under section 342, Cr. P. C. But he had contented himself with a bare denial without explaining as to how, if not as alleged by the prosecution, he had received the scratches.
15. Stress was laid by learned counsel on the non-production of persons from the adjoining houses.
In this connection he referred to the statement of Muhammad Shafi that "if there is any conversation or noise inside the room of the house of the accused, then it can be heard in the room of Muhammad Rafiq" and urged that the girl must have struggled and as such Muhammad Rafiq at least who lived in the adjoining house could have been attracted. He also pointed out that there was no occasion for lighting a match-stick or diya in a house fitted with electricity and that there was no evidence that the door had been broken. We feel that nothing turns on these submissions. There is no evidence that the girl had before being gagged raised noise such as to attract the immediate neighbours. There is also nothing strange in the conduct of the witnesses to have in their anxiety and hurry, lit a match-stick or diya instead of fumbling for the electric-light switch. As regards the door, it was explained by Siraj Din P. W. That "the door which was bolted from inside and was pushed aside by us is made of wood. Chain (kundi) of the door was broken when we pushed the door" We are satisfied that on proper appraisal of the evidence, the Federal Shariat Court was justified in holding the appellant guilty of both the offences.
16. The appeal, therefore, fails and is accordingly dismissed.