This appeal is directed against judgment, dated 27-7-1991 of Ch. Zafar Hussain, Additional Sessions Judge, Rawalpindi whereby appellants, Mst. Musarat Bibi and Muhammad Sarwar have been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and they have been sentenced to undergo three years' R.I. Each with fine of Rs. Three thousand, in default to suffer S.I. For three months more and ten stripes each. They have been given benefit of section 382-B, Cr.P.C.
2. While admitting appeal, appellants were given notice as to why sentence of stripes may not be enhanced so as to meet the legal requirements.
3. Briefly the facts of prosecution case are that on 9-3-1991 appellants, Muhammad Sarwar and Mst. Musarat Bibi were found in compromising position by Liaqat Ali and Muhammad Yasin in --- Baithak---. Complainant, Liaqat Ali and Muhammad Yasin knocked the door. The door was opened and Muhammad Sarwar ran away. Mst. Musarat Bibi was taken to police station. Liaqat Ali drafted an application and handed over to S.H.O. Who registered the case and after usual investigation case was challaned.
4. Appellants pleaded not guilty to charge. The case proceeded and prosecution examined P.W.1 Gulistan Khan, A.S.I., P.W2 Ayyaz Mahmud, F.C., P.W.3 complainant, Liaqat Ali, P.W.4 Muhammad Yasin, Head Constable, P.W.5 Ghulam Rasool, S.I., P.W.6 Lady Dr. Zubia Akbar and P.W.7 Zulfiqar Ali, A.S.I. The appellants in their statements denied the allegations.
5. P.W.1 Gulistan Khan, has stated that on 9-3-1991 he got Mst. Musarat Bibi medically examined from Tehsil Headquarters Hospital, Kahuta. Thereafter, lady doctor handed over one sealed parcel and one sealed envelope to him which he produced before Investigating Officer and recovery memo. Exh.PA. Was prepared. P.W.2 Ayyaz Mahmud, has stated that on 12-3-1991 Zulfiqar Ali, A.S.I./Moharrir handed over one sealed envelope which he took to the Office of the Chemical Examiner, Rawalpindi and delivered intact on same day. P.W.3 Liaqat Ali, complainant has stated that he rented his ---Baithak--- to appellant, Muhammad Sarwar. On 9-3-1991 at about 6-30 p.m.
He passed through street and heard voice of a lady from ---Baithak--- of Muhammad Sarwar, accused. He went to other ---Baithak--- which is in occupation of Muhammad Yasin, Head Constable on rent. The ---Baithak--- of Muhammad Yasin is adjacent to the ---Baithak--- of accused. He enquired from Muhammad Yasin about the above facts to which he showed his inability. Then he and Muhammad Yasin came and saw through the door of Muhammad Sarwar, that appellant (lady) present in Court and Muhammad Sarwar were in objectionable condition and committing Zina. The door was bolted from inside. They knocked the door. In the meanwhile many people of Mohallah gathered there and Muhammad Sarwar after opening door fled away. He and Muhammad Yasin took appellant, Mst. Musarat Bibi to police station. He made application (Exh.P.B.) to police. In cross-examination he has stated that application (Exh.P.B.) was written by him after handing over Mst. Musarat Bibi to police while sitting outside the police station. The place of occurrence is 300 yards away from the police station. He has stated that ---Baithak--- of Muhammad Sarwar has got one door and one window. There was no hole in the door but hole was in the window. The window was closed. The hole of window was three inches in diameter. He has stated that husband of Mst. Musarat Bibi came there and Masood and Ashiq and many others male and female also gathered at the time of occurrence. The shop of Muhammad Sharif Moulvi is at distance of 100 yards from place of occurrence. He has stated that he, Muhammad Yasin and other persons did not try to apprehend accused Muhammad Sarwar though they were standing outside of door out of which accused came and ran away.
6. P.W.4 Muhammad Yasin has stated that he had taken ---Baithak--- on rent from complainant, Liaqat Ali and residing there. The ---Baithak--- of appellant, Muhammad Sarwar, is adjacent to his ---Baithak---. On 9-3-1991 at 6-30 p.m. He was present in his `Baithak' when complainant, Liaqat Ali came to him and told that voice of a lady was coming from `Baithak' of Muhammad Sarwar.
Then he and Liaqat Ali went there and saw through the v'vindow that accused present in Court were committing Zina with each other. Liaqat Ali, knocked the door and Muhammad Sarwar after opening the door fled away from there. Thereafter he and Liaqat Ali took Mst. Musarat Bibi to police station and produced her before Ghulam Rasool, S.I. And he took the S.I. To site. In cross-- examination he has stated that when door was knocked many ladies and children of Mohallah came there but he was not able to give their names. He has stated that when Muhammad Sarwar came out of the door he and Liaqat Ali were standing in front of door and they tried to apprehend Muhammad Sarwar and chased him upto 2/4 paces. They did not raise any noise at that time. He has stated that gap from which he saw incident was half an inch. He has stated that they reached at police station within half an hour and investigating Officer came at the spot and recorded his statement. He has stated that complainant, Liaqat Ali, appeared before the Investigating Officer at police station and made application before Investigating Officer. He has also stated that Liaqat Ali produced application at the place of occurrence before Investigating Officer after 5/7 minutes from arrival of Investigating Officer at place of occurrence. He has stated that he did not remember whether on return to Police Station, Investigating Officer handed over application to Moharrir for registration of case and that Investigating Officer had sent any person with application of Liaqat Ali to police station. He admitted that accused, Mst. Musarat Bibi made application to the D.I.-G.
Through the Superintendent Jail where she levelled allegation that he (Muhammad Yasin), Ishaq and Munawar Masih committed Zina with her forcibly.
7. P.W.5 Ghulam Rasool has stated that on 9-3-1991 he was posted as S.I., Police Station, Kahuta. On same day, Liaqat Ali, Lumberdar produced accused, Mst. Musarat Bibi alongwith written application (Exh.P.B.) at police station. He recorded formal F.I.R. (Exh.P.B./1) and sent Mst. Musarat Bibi for medical examination. He inspected the site and prepared plan (Exh.P.C.) P.W. Gulistan Khan, A.S.I.
Handed over one sealed envelope which he secured vide recovery memo. (Exh.PA.). He arrested Mst. Musarat Bibi, accused and recorded statements of prosecution witnesses. On 7-4-1991 he arrested Muhammad Sarwar and got him medically examined. After completing investigation he challaned the accused. He handed over parcels to Moharrir for safe custody. In cross-examination he has stated that he reached the place of occurrence at 8-30 or 8-45 p.m. When Liaqat Ali and Muhammad Yasin accompanied him from police station to the place of occurrence. He has stated that it is correct that `he did not mention the window and door of the said room in his site plan. It is also correct that he did not mention the place from where P.Ws. Allegedly saw the occurrence in his site plan'. He has admitted that application of Mst. Musarat Bibi against Muhammad Yasin, Head Constable and others came to his knowledge when photostat (of application) was handed over to him while appearing in High Court in this case. P.W.6 Lady Dr. Zubia Akbar, has stated that on 9-3- 1991 she examined Mst. Musarat Bibi wife of Muhammad Rafique, aged 20/25 years, resident of Ward No.1, Kahuta and her observations are as follows:-- "She was a young girl, well-oriented in time and space. Her secondary sexual character were well- developed. Her hymen was not intact. Her vagina admitted two fingers easily. Two vaginal swabs upper and lower were taken and sent to Chemical Examiner for detection of semen. A piece of cloth from Shalwar was also taken and sent to the Chemical Examiner for the detection of semen.
No marks of violence were present on her body."
She has stated that according to Chemical Examiner's report No.52/2132, dated 14-3-1991, the above swa bs and piece of Shalwar were stained with semen and in view of report of Chemical Examiner she was of the opinion that Mst. Musarat Bibi had been subjected to sexual intercourse.
She produced photo copy of original medico-legal report as Exh.P.D. P.W.7 Zulfiqar Ali, has stated that he kept the parcel in safe custody and on 12-3-1991 sent this parcel through Muhammad Ejaz, Constable for onward transmission in the office of the Chemical Examiner, Lahore in tact.
8. Appellant, Mst. Musarat Bibi in her statements under section 340(2), Cr.P.C. On oath has given detailed statement as under:-- "On 9-3-1991 at about 4-00 p.m. I was going to the shop of Moulvi Muhammad Sharif in order to purchase household articles. When I reached near the `Baithak' of Raja Liaqat, Munawar Masih and Ishaq were standing there. They caught hold of me and took me into the room. They also called Yasin, H.C. Who used to reside in the adjacent `Baithak' there. First of all Yasin, H.C. Committed Zina with me and thereafter the other two persons Ishaq and Munawar committed Zina with me without my consent. I told them that I will lodge the report against them. Thereupon they issued me the threats that if I will tell any body about the occurrence they will kill me. Thereafter, they took me to the police station and involved me in this case. They did not allow me to see my husband or the other relative at the police station and sent me in the judicial lock-up. From jail I made the application mark `A' through Superintendent Jail who forwarded the same through letter mark B'. I had not committed Zina with my consent with my co-accused. We have been falsely involved in the present case."
She also gave same statement under section 342, Cr.P.C. Appellant, Muhammad Sarwar in his statement under section 342, Cr.P.C. Has stated as under:-- "I have been falsely involved in this case by the police in collusion with Yasin, H.C., Liaqat Ali, complainant alongwith Muhammad Ishaq and Munawar Masih. As per my information, which I came to know later on, after my involvement, are that on 9-3-1991 at about 4-00 p.m. Mst. Musarat Bibi was going to the shop of Moulvi Sharif in order to purchase articles and when she reached near the `Baithak' of Muhammad Ishaq who is the tenant under Liaqat Ali, complainant, caught hold of her and took hei inside the `Baithak' by Muhammad Ishaq and Munawar Masih who called Muhammad Yasin H.C. Also there and thereafter committed Zina-bil-Jabr with her forcibly. Then all the said three committed Zina with her against her will forcibly and on her protest they took her to the police station and got this case registered against me and Mst. Musarat Bibi through Liaqat Ali, complainant who being the Lumberdar of the village, is under the influence of the police and as the occurrence had taken place inside the `Baithak' owned by him and occupied by Muhammad Ishaq tenant and one police H.C. Was involved in committing the excess with Mst. Musarat Bibi, so he was made to report against me and my co-accused under the influence and pressure of the police. I had not committed Zina with Mst. Musarat Bibi with her consent. I am a poor boy of the locality and was not in a position to protest the excess of the police. So I was invited un the present case just to save the skin of Muhammad Yasin, H.C. And his two other men, namely, Muhammad Ishaq and Munawar Masih. I was not arrested from the spot in spite of the fact that many people had gathered there which speaks about my innocence."
Appellant Sarwar has not given statement on oath as required under section 340(2), Cr.P.C. They have not examined any person in their defence.
9. I have heard Sardar Muhammad Aslam, counsel for the appellants and Mr. Javed Aziz Sindhu, counsel for the State.
10. Sardar Muhammad Aslam, counsel for the appellants argued that case is false and story is improbable. It is argued that appellants have been falsely invovled by Muhammad Yasin, Head Constable and appellant, Mst. Musarat Bibi submitted application against Muhammad Yasin and others to D.I.-G. From Jail. Mr. Javed Aziz Sindhu, counsel for the State argued that case is not free from doubt.
11. There are two eye-witnesses in this case. They are complainant, Liaqat Ali and P.W. Muhammad Yasin, Head Constable. They have stated that they saw appellants in objectionable position in a --- Baithak--- and took Mst. Musarat Bibi to police station and their evidence is that appellant Muhammad Sarwar ran away. Complainant, Liaqat Ali has stated that they did not try to apprehend Muhammad Sarwar but Muhammad Yasin has stated that Muhammad Sarwar was chased at some distance but he ran away. The police station admittedly is at a distance of 300 yards from place of occurrence. The evidence of these both witnesses in examination-in-chief is that they took Mst. Musarat Bibi to police station and Liaqat Ali gave application to S.H.O. Thereafter the case was registered. This creates doubt in my mind that when they had taken Mst. Musarat Bibi to police station there was no reason for Liaqat Ali to draft application outside the police station and case was registered. I cannot understand for what reasons the case was not immediately registered and containts recorded in 154, Cr.P.C. Book but application was taken from Liaqat Ali.
There are material contradictions in evidence of Muhammad Yasin who categorically stated that Liaqat Ali gave application to S.I. At the place of occurrence. The Sub-Inspector has stated that Liaqat Ali gave application to S.I. At the place of occurrence. The Sub-Inspector has stated that he reached the place of occurrence with Liaqat Ali and Muhammad Yasin at 8-30 or 8-45 p.m. From this it is clear that story advanced by Liaqat Ali was doubtful. The possibility that Ghulam Rasool S.I.
Had gone at the spot before registration of case and was reluctant to record F.I.R. Cannot be overruled but under the influence of Liaqat Ali Lumberdar who gave him application therefor he had no option but to register the case. There are material contradictions about witnessing the incident from the hole, as Investigating Officer has not made note of any hole in site plan nor he prepared memo of ---Baithak--- about articles lying thereon. The story of prosecution is that appellants were found in objectionable position but from the place of ---Wardat--- Investigating Officer has not cared to secure any ---Charpai--- or cloth or any article of ---Baithak---. It is alleged that these witnesses found appellants busy in committing Zina in these circumstances availability of semen in vagina and Shalwar makes the case doubtful. In case of Zina penetration is sufficient to prove the case but when specific plea is advanced by prosecution that appellants were found in objectionable position and report of Chemical Examiner is in positive the allegation is to be substantiated. It is an admitted position that so many persons appeared at the time of occurrence but not a single person has been examined by prosecution or Investigating Officer to corroborate the version as given in first information report when there is specific allegation against Head Constable of Police of that Thana who is star witness in this case.
12. The case of prosecution is that Liaqat Ali heard noise from ---Baithak---. He could have knocked the door as he is landlord of premises. He had no reason to make enquiry from Head Constable. Moreover, when the appellants were busy in Zina by consent there could hardly be any noise. This could only be done if some force is used. Appellant Musarat Bibi, is married woman. She has given detailed statement stating that she had been victim of circumstances. She made application from jail to D.I.-G. The copy of application has been produced and in cross it is admitted by Muhammad Yasin and Investigating Officer that such application was made but result of enquiry is not known.
For the reasons stated above the case is not free from doubt and from circumstances it is clear that the case was registered after deliberation and consultation and investigation has not been done honestly. 1, accept the appeal and acquit the appellants. They are in custody. They shall be released forthwith if not required in any other case. In, view of acquittal the notice for enhancement of sentence stands vacated.
14. Before parting with this judgment, it is regretted to observe that in Punjab Province mostly the cases are being registered on Murassala and story goes that complainant meet's S.H.O. Or Assistant Sub-Inspector at Chowk or on the way and Police Officer records Murassala, thereafter the formal case is registered. This practice is against the fundamental principles of justice. This ~i, gives a licence to Police Officer to manoeuvre the F.I.R. In any manner. This', Murassala in fact is a First Information Report. It can hardly be believed that; in number of cases the complainant is met by police and Murassala is drafted. I have come across so many cases that S.H.O./A.S.I. Meets complainant near police station and Murassala is drafted. Then formal case is registered. This is very dangerous practice. It is clear that First Information Reports are not being registered at the first instance and investigation starts before registration of case. The possibility that complainant is made to sit at police station and negotiations and consultations start, thereafter the Murassala is prepared and case is registered. This is being done with mala fides. If case is registered the Investigating Officer has no say to fabricate the F.I.R. As according to law the copy of F.I.R. Is sent to Magistrate having jurisdiction and higher authorities in serious cases. I have taken serious note of this practice.
15. A copy of this judgment be sent to Secretary, Home Department, Government of Punjab. He should constitute an enquiry committee in this serious matter and action so taken be reported to this Court within two months. A copy may also be sent to Secretary, Ministry of Interior, Government of Pakistan and Advocate-General, Punjab.