' JUSTICE NAIMUDDIN (CHAIRMAN)---These three appeals are by Kamal Athar alias Kaka son of Khalil-ur-Rehman, Pervez son of Abdul Ghafoor and Amir Rasool against the common judgment and order dated 16th September, 1991 passed by Mr. Justice (Retd.) Malik Gulbaz Khan, Judge, Special Court for Speedy Trial No,II, Lahore. By the judgment the learned Judge has convicted the appellants as follows. A. Pervez, under section 10(3) of the Offence of Zina (Enforecement of Hudood) Ordinance, 1979 (Ordinance VII of 1979) for the Offence of Zina-bilJabr liable to Tazir and sentenced him to undergo R.I. For 25 years. In addition, he has been awarded punishment of whipping of 30 stripes. He was however, not convicted for the offence of Zina-bil-Jabr liable to Hadd for good reasons. He has also been convicted under section 11 of the said Ordinance read with section 34, P.P.C. And sentenced to imprisonment for life with whipping of 30 stripes. He was also ordered to pay a fine of Rs,10,000 or, in default of payment of fine, to undergo imprisonment for one year. However, sentences under both sections 10(3) and 11 of the Ordinance were ordered to run concurrently. B. Amar Rasool, under section 10(3) read with section 18 of the said Ordinance and sentenced to undergo R.I. For 7 years as he is found to have abetted the offence of Zina-bil-Jabr, under section 11 of the said Ordinance read with section 34, P.P.C. And sentenced to imprisonment for life with whipping of 30 stripes. He was also ordered to pay fine of Rs,10,000 or, in default of payment of fine, to undergo imprisonment for one year. The sentences under both sections 10(3) and 11 have been ordered to run concurrently. He was, however, acquitted of the charge under section 364-A/34, P.P.C.
C. Kamal Athar: He has been convicted under section 11 of the said Ordinance lead with section 34, P.P.C. And sentenced to undergo R.I. For 5 years with whipping of 5 stripes. He was ordered to pay fine of Rs,1,000 or, in default of payment of fine, to undergo imprisonment for one month. He was also convicted under section 10(3) read with section 18 of the said Ordinance and sentenced to undergo R.I. For three years. Both the sentences were ordered to run concurrently. He was, however, acquitted of the charge under section 364-A read with section 34, P.P.C.
' There are, however, so far, no appeals by the State against the acquittal of Amar Rasool and Kamal Athar alias Kaka under section 364-A read with section 34, P.P.C.
2. The prosecution case is that Shazia, a girl aged about 9 or 10 years, Muslim, Shaikh by caste, resident of Mohalla Faizabad, Street No,4, Okara, on 1-6-1991 at about shamvella (6/7 p.m.) left her house and was going towards the house of her cousin Shahnaz situated at Mohallah Azimabad, Okara for borrowing money at the instance of her mother Bashiran. When she reached Street No,4, Mohallah Azimabad, the three appellants asked Shazia to accompany them. On her refusal the three appellants got hold of her and forcibly took her to the `Baithak' of the appellant Kaka.
Appellants Pervez and Amir Rasool felled her on the cot while appellant Kaka chained the `Baithak' from outside. Amir Rasool held Shazia by her arms and head. Appellant Pervez removed her shalwar and committed Zina-bil-Jabr with her. On the noise raised by Shazia, Ashraf and Ramzan, P.Ws.4 and 5 respectively, were attracted to the spot and when they reached close to the `Baithak' of Kaka he fled away. Both these witnesses unchained the door from outside and entered the `Baithak' and saw the occurrence. Appellants Pervez and Amar Rasool fled away from the other door which was towards the dheuri. Shazia was bleeding. She put on her blood-stained shalwar at the instance of the two witnesses. Both these witnesses carried her to her house where she narrated the occurrence to her mother. Thereafter, the two witnesses returned. Father of Shazia was not present in the house as he had gone to Murree some days before the incident. The case was not registered on the day of occurrence but it was registered the next day for the reason that the father of the victim was away from his house. And the appellants approached the mother and uncle of Shazia, namely, Zafar, not to report the matter to the police. Zafar did not agree to this request. He took along Shazia and left for the Police Station. On the way he met Manzoor Hussain, S.I. At Bus-Stand, Okara, where Shazia made her statement, Exh.PA. Which was sent to the Police Station A-Division, for registration of the case. Formal F.I.R., Exh. PA-1 was recorded the same day at 3-45 p.m. By Subhan Ajaz, A.S.I. Manzoor Hussain, S.I., reached the spot and after inspecting the spot, prepared a rough plan Exh.P.E. He recorded the statements of Ashraf, P.W.4 and Ramzan, P.W.S. He took along Shazia to the hospital and made a request vide Exh.P.F. For the examination of Shazia for Zina-bil-Jabr. Dr. Hassan Bano Jaffari examined Shazia on 2-6-1991 at 6-15 p.m. She gave the age of the girl as 10 years. She found red bruises on the left arm and lower part of the left abdomen. She found hymen of Shazia freshly ruptured which was tender and bleeding to touch.
There was bleeding from vagina. The lady doctor obtained three vaginal swabs. She sealed the swa bs and the blood-stained Shalwar in two parcels and sent these to the Chemical Examiner. In the opinion of the lady doctor rape has been committed on Shazia. She, however,stated that the final result would be given after the receipt of the report of Chemical Examiner. The report, Exh.P.C., when received, showed that the vaginal swabs and the Shalwar were stained with semen and blood. The lady doctor, when examined in the Court after seeing the report, stated that she was positive that rape had been committed on Shazia.
3. The appellants were tried for the charges mentioned as aforesaid, in para.1 by Mr. Justice (Retd.)
Malik Gulbaz Khan, Judge, Special Court for Speedy Trial No,II, Lahore.
4. The prosecution examined a number of witnesses, including the victim Shazia who narrated the occurrence, as stated before, the lady doctor who examined her, the two eye-witnesses Ashraf, P.W.4 and Ramzan P.W.5. The prosecution also examined Dr. Abid Hussain who medically examined Pervez appellant to find out if he was capable of committing sexual intercourse and he stated that there was nothing to suggest that Pervez was impotent. Manzoor Hussain, S.I. Was also examined.
He recorded the statement of Shazia and sent it to the police station for registration of the case. It was he who partly conducted the investigation and also raided the houses of the appellants on 2- 6-1991 but the appellants were not available. He, however, arrested Pervez appellant on 3-6-1991.
Abdul Aziz, Inspector, P.W.9 was also examined. It was he who arrested Amir Rasool on 12-6-1991 and Kamal Athar alias Kaka on 25-6-1991 and submitted the Challan. The other two witnesses examined were Subhan Ajaz, A.S.I., who recorded the formal F.I.R., Exh.P.A./1 and who received the two parcels on 2-6-1991 and Mukhtar Ahmad, who delivered the two sealed parcels to the Chemical Examiner.
5. The appellants pleaded not guilty to all the charges. They, however, did not examine themselves on oath or produce any witness in their defence. In their statements under section 342, Cr.P.C. They barely denied prosecution case. However, Kamal Athar alias Kaka in answer to the question, 'Why this case against you?' stated as follows:- "As according to Shazia and complainant party, Zina had been committed in my Baithak I have been involved."
6. We have heard the learned counsel for the appellants at length to their full satisfaction. We have been taken through the entire evidence on record by the learned counsel for the appellants.
7. The learned counsel for Pervez raised two legal objections which, according to him, were fatal to the prosecution case. The first objection is that the Special Court for Speedy Trial had no jurisdiction to entertain the case as it was not properly entrusted to it after due application of mind to the conditions on which it could be entrusted to a Special Court. i.e, offences being gruesome, brutal and sensational in character or shocking to public morality. The second objection is that no prosecutor was present throughout the trial and the witnesses were examined by the Court itself.
8. Now, taking up the first objection, it may be stated that an objection to the jurisdiction dependent on facts must be raised before the Court itself. It is conceded that no such objection was raised.
However, we find that the case was withdrawn from the Court of Sessions Judge Okara and was transferred under section 5(2) of Ordinance No,XXV of 1991 to the Special Court for Speedy Trial No,II, Lahore. If the point was raised before the trial Court, the Court would have directed the prosecution to produce the order of transfer. Even otherwise, there is presumption under Article 129 of Qanoon- e-Shahadat, 1984 that judicial and official acts have been regularly performed. Further, we are of the view that the case fulfils the criteria provided in Article 212-B of the Constitution as the offences for which the appellants have been convicted are gruesome, brutal and sensational in character or shocking to the public morality. Therefore, we find no substance in this objection and accordingly reject it.
9. Taking up the second objection, we may state that Mr. Naveed Shaharyar, Advocate, appearing for the State denied that the prosecutor on behalf of the State was not present throughout the trial.
He submitted that the learned trial Judge, in the penultimate paragraph of the impugned judgment, has stated that "The copy shall be supplied to the prosecutor tomorrow as he did not attend the Court today due to the demise of his father. The accused have been informed that they can file appeal within seven days." This implies that the prosecutor was present on all other dates.
The learned counsel, however, relied on section 265-A of the Code of Criminal Procedure, 1898 which provides that in every trial before a Court of Session initiated upon a police report the prosecution shall be conducted by a public prosecutor. We are satisfied from the record that the prosecution was conducted by the prosecutor. However, Mr. Zafar Pasha Chaudhry relied on a judgment of the Lahore High Court, namely, Darghahi and others v. The State (PLD 1958 Lah. 300) and a decision of the Federal Court reported as Qadar Dad and others v. Sultan Bibi and another (PLD 1956 FC 129). In the first named case the prosecution before the Court of Session was in fact conducted by an Additional Public Prosecutor, but in carrying out the provisions of sections 270 and 287, Criminal P.C., it was the investigating officer, deposing as a witness in the case, who was allowed to say that he gave up certain witnesses of the prosecution and that he tendered in evidence the statements of the accused recorded in the Committing Magistrate's Court, which, in accordance with law, was the job of the Public Prosecutor. On these facts it was held that though the procedure adopted was not warranted by law, it had not occasioned any failure of justice and was at the most a mere irregularity which was curable under section 537, Cr.P.C. In the second case relied upon by the learned counsel for the appellant, there was misjoinder of charges and it was held that it was not curable under section 537, Cr.P.C. With the following observations at page 132 of the report:-- "....Where the trial is found to have been conducted in a way not anthorised by law and the rules of procedure relating to the matters of fundamental character, the decision in such a trial whether of conviction or of acquittal is of little consequence and the entire proceeding must be set aside irrespective of any question of prejudice to any one. The disregard of an express provision as to the mode of trial concerning a vital matter cannot be treated as an irregularity curable under section 537, Criminal P.C."
There can be no cavil with the rule laid down in this case. However, because of the absence of the prosecutor on the date when the judgment was announced could not be termed in disregard of any express provision as to mode of the trial concerning a vital matter.
10. On merits it is not in dispute that Zina-bil-Jabr was committed with Shazia. We have no doubt that Zina-bil-Jabr was committed in the `13aithak' of Kamal Athar alias Kaka as impliedly admitted by him in his statement under section 342, Cr.P.C., quoted hereinbefore. This statement cannot be termed as exculpatory so as to exclude it from consideration.
11. The conviction of all the three appellants is based on the evidence of Shazia, the victim, and two eye-witnesses, namely, Ashraf and Ramzan, P.Ws. 4 and 5 respectively, corroborated by medical evidence and report of the Chemical Examiner. No enmity or motive is alleged, much less proved, between the appellants and Shazia or the two eye-witnesses. They had no reason to leave the real culprits and substitute them by the appellants and falsely implicate them. Shazia, the victim, while being cross-examined by one of the advocates for the appellants, in answer to the question, "What happens if a person tells a lie?", stated "I am making correct statement. I am a child." In answer to the next question "What happen if I (you) tell lie?", said she " God will punish me." This is nothing but truth. The answers have such a force in support of her statement on solemn affirmation that it is impossible to entertain any doubt as to her veracity.
12. Now, considering the case of individual appellants, we would take up the case of Kamal Athar alias Kaka first. His learned counsel, Dr. Farooq A. Chaudhry, submitted that the role attributed to his client is that he accompanied the two other appellants and Shazia to his `13aithak' which is about 200 feet away. In such a case, relying on (1) Zulfiqar v. The State (PLD 1985 Federal Shariat Court 404), (2) Ibrahim and another v. The State (1987 P. Cr. LJ 284) and (3) Shams Saeed Ahmad Khan v.
The State (1985 SCMR 1522), he submitted that even if it is held that this appellant dragged away prosecutrix to his Taithak' at a distance of 200 feet it would not constitute the offence of kidnapping. The first case relied upon by the learned counsel does not support this submission.
However, the second case does support the learned counsel. In this case the appellants had taken away Mst. Sultan Bibi from road side to a place about 40 Karams to the sand dunes. This distance could be about 200 feet or 100 paces. It was held that removal of the child to such a short place would not constitute kidnapping because there was no intention to remove the child from the custody of her legal guardian. The intention of the appellant, at the most, was to outrage the modesty of the child. In such circumstances the offence of kidnapping cannot be said to have been made out. It may be convenient if the relevant paragraph is reproduced here which appears at page 287 of the Report and in which reference has been made to the third case relied upon by the learned counsel. The paragraph reads as follows:-- "11. The question, however, is as to what offence is made out by the evidence of Mst. Sultan Bibi and Muhammad Bilal. The appellants had taken away Mst. Sultan Bibi from the road to a place about 40 Karams to the sand dunes. This distance might be about 200 feet or 100 paces. The removal of the child to such a short place would not constitute kidnapping, because there was no intention to remove the child from the custody of her legal guardian. The intention of the appellants at the most was to outrage the modesty of the child. In such circumstances the offence of kidnapping cannot be said to have been made out. Reference in this connection may be made to the case of Shams Saeed Ahmad Khan v. The State 1985 SCMR 1522, 1986 SCMR 533; PLD 1984 FSC 23 and PLD 1985 FSC 404, in which it has been held that removal of a child for a few paces with the intent to subject him/her to sexual lust would not constitute kidnapping is not made out. We, therefore, set aside the conviction and sentence awarded by the trial Court to the appellants on the charge of section 11 of the said Ordinance.
13. We agree that the offence of kidnapping, as described in sections 359, 360 and 361, P.P.C. Is not made out but the case of abduction, as described in section 362, P.P.C. Read with section 11 of the Ordinance, is made out against the appellant for, Shazia, in her statement on solemn affirmation has stated that "Amar, Pervez and Kaka came there, they caught .Hold of me. They told me to go along with them but I declined. They pulled me to the Baithak of Kaka which (is) at the distance about one Killa from the accused house. Therefore, the cases relied upon by the learned counsel for Kaka are of no help to him. It is almost an admitted position that the offence of Zina-bil-Jabr was committed in the `Baithak' of this appellant and he was guarding the `Baithak' by chaining it from the outside. His counsel in cross-examination of Shazia, put several questions to her. The answers which she gave fully established involvement of Kaka in the incident. We may reproduce the answers in cross-examination. These read: "It is incorrect that Pervaiz and Amar Rasool accused told Kaka accused to open his Baithak as it was clean and that some guests from Karachi had come. It is incorrect that after opening the Baithak Kaka accused went. It is incorrect that Kaka accused did not commit offence. It is incorrect that Kaka has been involved falsely as the occurrence took place in his absence. Therefore, we hold that he has been rightly convicted under section 11 of the Ordinance which not only speaks of kidnapping but also of abduction.
14. Now, taking up the case of Pervez, we may state that legal objections raised by the learned counsel appearing for this appellant have already been dealt with by us. The learned counsel for this appellant also raised the point of delay in lodging the First Information Report, as the same was lodged on the next day of the incident. But the delay has been adequately explained by the prosecution and the explanation has been duly accepted by the trial Court. We find nothing improper in accepting the explanation of delay. On merits he submitted that Pervez has been falsely named. But as we have already said, there was no good reason for Shazia, the victim, or the two eye-witnesses to substitute the real culprits with Pervez. It was, however, submitted by the learned counsel that the offence might have been committed by the child husband of Shazia, to whom her Nikah was already performed. But, if it were so, it would have been committed in her own house where the child husband was living, being the son of her uncle. But, as we have already held, that the offence of Zina-bil-Jabr was committed in the `Baithak' of the house of Kaka, the possibility of her child husband committing the offence has to be completely ruled out. It was then urged that age of Shazia was not established, if, she was below 10. The finding of the trial Court is that the prosecution failed to estalish that Shazia was below 10 years and, therefore, the two appellants were acquitted of the charge under section 364-A, P.P.C. Even otherwise, the lady doctor, Hassan Bano Jaffari contradicted the suggestion that Shazia was about 15 years. Even if it is so, the nature of offence under section 10(3) or under section 11 of the Ordinance would, not change. Then it was pointed out that the time of occurrence does not tally with the prosecution version as according to the medical report of lady doctor Hassan Bano Jaffari the injuries on the person of Shazia were fresh of about 12 hours duration although she was examined after about 23 hours. The lady doctor in her cross-examination however, has explained the duration of the injuries as follows:-- "I had given the duration of 12 hours that is suggestable that rape had been committed a day earlier. The duration given by me was probable.
' The finding of the trial Judge on this point is as follows:- "Lady doctor gave the duration of injuries as 12 hours. During cross-examination she stated that the margin of duration could be 24 hours. She was a Government servant and an independent witness.
The duration given by the lady doctor fitted with the prosecution version.
' In case Zina-bil-Jabr had been committed within twelve hours there was no point for the prosecution to state that Zina-bil-Jabr had been committed on the evening of 1-6-1991."
' This finding is therefore, unexceptionable.
' Certain discrepancies were also pointed out in the deposition of witnesses but on scrutiny of the statements of eye-witnesses, specially that of the victim, we are convinced that the prosecution has established the charges against the appellants beyond any shadow of doubt. As already mentioned the eye-witnesses had no enmity or motive to falsely implicate the appellants.
15. We, therefore, uphold the conviction of this appellant.
16. Now, taking up the case of third appellant, Amar Rasool, his learned counsel, Mr. M.D. Tahir, vehemently argued that his client was not given any opportunity to examine witnesses in defence as he was busy in the High Court in a Constitutional Petition filed on behalf of his client. The Court should have waited for him and should have allowed his client opportunity to produce defence witnesses. However, on scrutiny of the record, we find that the learned trial Judge has recorded that Amar Rasool does not want to examine any witness in defence. We also find that below the aforesaid statement, Amar Rasool has signed. Moreover, the learned counsel has failed to point out any such ground taken in the memo. Of appeal. However, the learned trial Judge in the impugned judgment has stated as following:-- "The accused denied the prosecution allegations. The accused could put in written statements but they did not file any written statement. They could do so under section 265-F(5), Cr.P.C. The accused did not give evidence on oath in disproof of the charges or allegations made against them as incorporated in section 340(2), Cr.P.C. The accused did not lead any evidence in their defence. The three accused had engaged three separate counsel and the counsel were afforded full opportunity of cross-examination and arguments."
' In any case nothing prevented the learned counsel of this appellant from submitting a written application for summoning witnesses, if any. He further submitted that a large number of people of the locality had approached the investigating officer to plead that his client was innocent. But he failed to examine a single witness out of such a large number of witnesses in rebuttal or to disprove the prosecution case. Then the learned counsel attacked the investigation. Even if the investigation was partly faulty, the case against the three appellants stands fully proved by the prosecution beyond any shadow of doubt. Another grievance made was that the learned trial judge did not comply with the provisions of section 353, Cr.P.C. Which provides that except as otherwise expressly provided all evidence taken under Chapters XX, XXI, XXII and XXII-A shall be taken in the presence of accused or when his presence is dispensed with, in the presence of his pleader. Firstly, the learned counsel had misapprehended the provisions of this section. It is not his case that any part of the evidence was recorded in the absence of the appellant. Secondly, the learned counsel failed to point out any such ground being taken in the memo. Of appeal. Even otherwise it has no substance.
16. Therefore, the involvement of this appellant in the incident is fully corroborated by the medical evidence as he is said to have held the arms and the head of the victim and the victim has bruises on her arms.
17. In conclusion, we hold that all the three appellants have been rightly and justifiably convicted for the offence mentioned hereinbefore in this judgment.
18. This brings us to the question of sentences awarded to the three appellants. We find that under section 10(3) of the Ordinance the maximum sentence is 25 years and minimum 4 years besides whipping and under section 11 of the Ordinance it is imprisonment for life and under section 18 of the Ordinance the punishment is imprisonment for a term which may extend to one-half of the longest term provided for that offence with whipping not exceeding 30 stripes. We find that the appellants' case does not call for the awarding of maximum sentence. Accordingly, we will reduce the sentence of Pervez under section 10(3) of the Ordinance from 25 years to 15 years' R.I.
Maintaining all other sentences including whipping and fine. The senteces shall run concurrently as ordered by the trial Judge. So far as Amir Rasool is concerned, his sentence under section 10(3) read with section 18 of the Ordinance is reduced from 7 years' R.I. To 5 years' R.I. Maintaining all other sentences including whipping and fine. The sentences shall run concurrently as ordered by the trial Judge. As regards Kamal Athar alias Kaka, his sentence under section 10(3) read with section 18 of the Ordinance is reduced from 3 years to 2 years R.I. His other sentences including whipping and fine under section 11 of th? Ordinance read with section 34, P.P.C. Shall remain unaltered. The sentences shall run concurrently as ordered by the trial Judge. All the appellants shall have the benefit of the provisions of section 382-B, Cr.P.C.
19. We may add that we have maintained the order of the trial Court as to the sentences awarded to Amar Rasool and Pervez under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 as these were the legal and only sentences that could be awarded to them but we feel that it will perhaps not help them to become good citizens because of the conditions and the environment in which the inmates of jails live, which one of us had occasion to visit. When they serve out their sentences, they would be most probably lost to the society and will continue to suffer thereafter because of society's attitute towards such persons.
20. This invites us to draw the attention of all those who are responsible for maintaining jails to look into the question of jail reforms so that those who are punished for violation of law, when come out after serving out their sentences they become good citizens and not hardened cirminals. We also invite the attention of those on whom the responsibility for building character and moral of the people lies to look into the causes: Why crime is on the increase? What are the causes and how they could be prevented, for prevention is better than cure. One cause which we can easily and readily point out is crime, action and sexy films. It is high time that the Film Censor Boards in the country seriously censor those films which are affecting moral of people and tender minds who are more prone to action than realization of the consequences thereof. This is imperative and urgent because it is said that a country or a nation can easily be destroyed from within if the character of its people is destroyed.
21. In the result, subject to the above stated modifications in the sentences, all the three appeals are dismissed.
Sentences reduced.