1. This appeal is directed against the judgment dated 17-9-1997 passed by Mr. A.G. Tariq Chaudhry, Judge Anti-Terrorism Court No,II, Multan whereby Maqbool Ahmad, Riaz Ahmad and Sajad Hussain were convicted under section 10(4) Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and were sentenced imprisonment for life with fine of Rs,10,000 each in default of payment of fine to undergo R.I. for one year. Benefit under section 382-B, Cr.P.C. was extended.
2. 2.Out of the three convicts, the appeal has been filed by only two convicts i,e, Maqbool Ahmad and Riaz Ahmad. The third convict Sajad Hussain has not filed any appeal. No appeal has been filed on behalf of the State as well.
3. 3.The prosecution case in brief as disclosed by Muhammad Ramzan (P.W.9) is that his father had died. He alongwith his mother Mst. Noor Sain and his sister Mst. Naseem Begum aged about 16/17 years reside in Street No,7 Mohallah Pir Karrian Police Station Pak Pattan Sharif. Maqbool Ahmad, Riaz Ahmad and Sajad Hussain had previous acquaintance with him. All the three accused visited his house on the preceding evening. They had milk in a shopper bag. They entered into his house and told that they have brought milk from the Bazar and offered the complainant, his mother and sister to drink the same. Resultantly, the three accused made the complainant, his mother and sister Mst. Naseem Begum (victim) to drink the milk. After some time all the three fell sleepy and became almost unconscious. When he woke up at about 8/9 a.m. after gaining senses he witnessed that his mother and sister were still lying unconscious. He tried to wake them up. His sister who had gained some consciousness told the complainant that Riaz Ahmad, Maqbool Ahmad and Sajad Hussain committed Zina-bil-jabr with her one by one. On which the complainant raised alarm which attracted Abdul Khaliq (P.W.7); Muhammad Din and Irshad Ahmed (P.W.8).
4. Various other neighbours from the vicinity also reached the place of occurrence. They also watched the said victims. It was further disclosed that Riaz Ahmad, Maqbool Ahmad and Sajad Hussain had administered some intoxicant in the milk as a result of which they lost their senses thereafter all the three accused committed Zina-bil-Jabr with Mst. Naseem Begum.
5. 4.Statement of Muhammad Ramzan Exh.PA was recorded by Muhammad Aslam Khan A.S.I. (P.W.11) on the basis of which a formal F.I.R. Exh.PA/1 was recorded under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 337-J, P.P.C. After registration of the case Muhammad Aslam A.S.I. (P.W.11) alongwith the complainant reached the place of occurrence. Rough plan of the spot. Exh.PJ was prepared. He recorded the statements of the P.Ws. i,e, Abdul Khaliq and Muhammad Irshad. Three inmates of the house i,e, Mst. Naseem Begum, Mst.
6. Noor Sain and Muhammad Ramzan were sent to the hospital. After obtaining a certificate from the Doctor that Mst. Naseem Begum and Mst. Noor Sain were fit to make statements Muhammad Aslam A.S.I. (P.W.11) recorded their statements. Case property was deposited with the Moharrar of police station for its safe custody and onward transmission to the office of the Chemical Examiner.
7. On transfer of Muhammad Aslam A.S.I. (P.W.11) the investigation was entrusted to Israr Khalid S.H.O. who received three reports of the Chemical Examiner on 3-9-1997. He also recorded the statements of the police witnesses who performed various functions during the investigation. He received the report regarding swa bs obtained from Mst. Naseem Begum. On completion of the investigation the appellants were sent up to face trial in the Court of Mr. A.G. Tariq Chaudhry, Judge Anti-Terrorism Court No,II, Multan.
8. 5.P.W.12 Muhammad Amir Abdullah Inspector arrested all the three accused i,e, Sajad Hussain, Riaz Ahmad and Maqbool Ahmad. They were sent to the hospital for their potency examination. He also made interrogation from the accused persons and as such partly conducted the investigation.
9. 6.The prosecution in order to prove the guilt of the accused persons examined thirteen witnesses in all. P.W.1 is Muhammad Razzaq Muharrar/Head Constable who received the case property on various dates from the Investigating Officer and retained the same in the Malkhana. On 27-7-1997 six sealed phials were transmitted to the office of the Chemical Examiner, Lahore P.W.2 is Lady Doctor Shamim Akhtar who examined Mst. Naseem Begum victim aged about 16 years on 5-6-1997 and made the following observations:-- "A young girl looking normal with average weight and height. No marks of violence on the body on private parts. Vulva and vagina healthy. Hymen torned with healed margines. Vagina admits one finger easily and two fingers with difficulty. No bleeding per vagina on touch. Cervic and uteres normal. Three vaginal swa bs were taken and sent to the Chemical Examiner for the detection of semen. Exact result about the sexual interecourse will be on the receipt of result of Chemical Examiner."
10. "Exh.PB is the correct carbon copy of my medico-legal report which is in my hand and bear my signatures. I have seen the report of the Chemical Examiner. According to this report the above swa bs were stained with semen. Now I am of the opinion that sexual intercourse has been committed with her. Exh.PC is the report of the Chemical Examiner, Multan."
11. P.W.3 is Dr. Muhammad Akram C.M.O., D.H.Q. Hospital Pakpatan. He examined all the three accused persons on 15-6-1997 and found that they were capable of performing sexual intercourse. P.W.4 Dr. Muhammad Younis Rana who examined the complainant Muhammad Ramzan (P.W.9), Mst. Noor Sain her mother and Mst. Naseem Begum victim (P.W.10). He obtained blood and urine specimen.
12. After examining the report of the Chemical Examiner regarding the result of the chemical examination of the specimen, he declared that they contained tranquiliser and the aforesaid three persons were under effect of tranquiliser. P.W.5 Muhammad Saleem and P.W.6 Riaz constables are formal witnesses. P.W.7 Abdul Khaliq is the witness who was attracted to the house of the complainant on hearing some noise emanating from his house. He saw Mst. Noor Sam lying unconscious. He also saw Mst. Naseem Begum victim lying naked on a cot inside the room. She was semi-conscious and could not speak properly. She was made to dress up. On his asking the complainant told that three accused persons had visited his house. They administered some intoxicant or tranquilising drug in the milk which was taken by them. P.W.8 Irshad Ahmad is second witness from the public. He too heard the noise from the house of the complainant and when he entered his house he saw Mst. Naseem Begum lying naked on a cot inside the room. He as well as some others attracted from the nearby neighbourhood. On enquiry from Mst. Naseem Begum as to what happened she told that three accused persons who were present in Court had committed Zina-bil-Jabr with her during the preceding night. P.W.9 is Muhammad Ramzan. He is the complainant on whose complaint the F.I.R. Exh.PA/1 was recorded. He reiterated the same statement what had been made by him in his statement Exh.PA. P.W.10 Mst. Naseem Begum is the victim. Before making her statement she complained that about six days prior to her statement the parents of the accused persons went to their house and extended threats that in case she made statement against the accused she will be killed. Thereafter, she proceeded to make her statement which is in line with the statement made by the complainant, that all the three accused came to her house in the evening, they had milk in a shopping bag; the same was offered to them which was taken by her, on which she became senseless. Maqbool Ahmad accused took her inside the room, put of her clothes and thereafter, committed Zina-bil-Jabr with her. Thereafter, Sajad Hussain accused and the Riaz Ahmad accused committed Zina-bil-Jabr with her. She could not raise alarm because she was not in a position to do the same. In the morning when her brother raised alarm, all the accused persons absconded from the place of occurrence. On noise the witnesses came to their house. They called woman from the adjoining house who dressed her up.
13. She become semi-conscious and was not in a position even to get up. Police officials came to the place of occurrence and escorted her as well as her mother to the hospital where she was medically examined. Muhammad Aslam ASI (P.W.11), Muhammad Amir Abdullah, Inspector (P.W.12) and Israr Khalid Sub-Inspector S.H.O. (P.W.13) were examined in Court. They deposed with regard to various steps taken by them during the investigation. The functions performed by them during the investigation have been noted above in the preceding paras. On close of the prosecution evidence the learned public prosecutor tendered in evidence Exh.PK, Exh.PL and Exh.PM reports of the Chemical Examiner pertaining to Mst. Naseem Begum, Mst. Noor Sain and Muhammad Ramzan respectitively, and with that he closed the case of the prosecution.
7. All the three accused were examined under section 342, Cr.P.C. and all the incriminating evidence was put to them. They denied the allegations levelled against them and made almost similar statements. They stated that report of the Chemical Examiner as well as with regard to swa bs and medical report were in fact fabricated and were procured by the prosecution. They further stated in answer to question "as to why the witnesses deposed against them and whether they wanted to say something else" they repled that witnesses have made false statements as Riaz Ahmad accused had lodged a report against the complainant and his brother about their dealings in narcotics. They were innocent and in fact no eye-witness has seen the occurrence. Mst. Naseem Begum was not in a position to make any statement, therefore, a false case has been fabricated by the police to exhibit their efficiency. They, however, did not adduce any evidence in defence and also did not appear as their own witnesses as envisaged under section 340(2), Cr.P.C.
14. The learned trial Judge framed charge under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and section 337-J, P.P.C. They pleaded not guilty and claimed to be tried. Therefore, during the trial aforesaid witnesses were examined by the prosecution. On conclusion of the trial the learned trial Judge acquitted all the three accused persons of the charge under section 337-J, P.P.C. on the ground that intoxicated milk did not cause any hurt to any of the P.Ws., therefore, no sentence could be awarded under section 337J P.P.C. However, all the three accused persons including the two appellants were convicted and sentenced under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 as detailed above. The learned trial Judge however observed that since the accused persons were young, therefore, a lenient view was taken and they were sentenced to imprisonment for life with a fine of Rs,10.000 each. It may be noted that under section 10(4) of the Offence of Zina (Enforcement of Hudood)
15. Ordinance VII of 1979 only sentence of death has been prescribed.
16. 9.The learned counsel for the appellants Ch. Pervaiz Aftab, Advocate has argued that there are material discrepancies in the statements made by the prosecution witnesses; that the P.Ws., 9 and 10 especially P.W.10 Mst. Naseem Begum who is victim was not in position to make any statement or even could not identify the offenders; that considering the various dates on which the vaginal swa bs were taken and deposited in the Malkhana and were ultimately transmitted to the office of the Chemical Examiner, it cannot be held that they remained in the safe custody and were not tampered with; that except the victim all the three P.Ws., were declared hostile by the prosecutor himself, therefore, no safe reliance can be placed on their testimony; that the medical evidence does not support the prosecution and it cannot be conclusively determined that all the three accused persons committed Zina-bil-Jabr with the victim and as such the prosecution has failed to discharge its onus. The appellants are, therefore, entitled to be acquitted.
17. 10.Mr. Hussain Aziz Bhatti, learned Additional Attorney-General appearing on behalf of the state has however controverted the submissions made by the appellants and submitted that the prosecution has proved its case against the accused persons beyond any shadow of doubt. The conviction has, therefore been rightly recorded. He has, however, disputed the quantum of sentences awarded by the learned trial Judge. According to him only sentence prescribed under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is death and, therefore, lesser penalty by way of imprisonment for life cannot be imposed. He, however, has not been able to explain as to why the State did not file appeal if it was considered that the quantum of sentence was illegal or improper.
18. 11.As regards discrepancies in between the statements of P.Ws., the learned counsel has gone through the statements made by all the four witnesses relating to incident produced by the prosecution. He has pointed out variations and discrepancies in their statements with regard to their coming to the place of occurrence, the way in which Mst. Naseem Begum was raped and the description given by the witnesses with regard to offering of the milk to the victim. It is true that there are some variations in the statements made by the P.Ws., but none of them can be considered or treated as a material variation from the prosecution version. The prosecution version that all the three accused came to the house of the complainant, they had brought milk and the same was offered for consumption to the inmates of the house i,e, the complainant, his mother and sister Mst Naseem Begum, also that the accused persons stayed on for a night and Mst.
19. Naseem Begum stated about commission of Zina-bil-Jabr by all the accused persons one after the other with her on the preceding night. The difference in the description of some details is not of much significance and does not in any manner damage the prosecution version. The prosecution version is consistent and all the witnesses have supported the same. It is even otherwise a known principle of criminal administration of justice that the main facts in issue are only relevant to determine the guilt or innocence of an accused. Unnecessary details or other extraneous circumstances are not very relevant for the determination of guilt or innocence. The witnesses when examined after a lapse of time are bound to differ on the details but if they are consistent on the main ingredient which constitute offence then their statements cannot be discarded. Mere variations in the details or discrepancies in the narration does not in any manner cast doubt on the prosecution story.
20. 12.The learned counsel has been laying much emphasis on the point that the main corroborative evidence is furnished by the reports submitted by the Chemical Examiner regarding vaginal swabs.
21. He is, therefore, of the view that if there is any discrepancy with regard to taking into possession of the swa bs their deposition in the Malkhana or transmission to the office of the Chemical Examiner, the whole evidence would be rendered useless and cannot be used against the accused persons.
22. He has pointed out some dates to show that the prosecution has not explained as in between those dates in whose custody the parcels remained and no evidence has been produced to testify that the parcels were not tampered with and they remained intact. The contention has not much force. The best evidence is the report of the Chemical Examiner itself. In case the parcels had been tampered with or the seals affixed on them were not intact, it is invariably pointed by the examiner that the sealers were not intact, therefore, authenticity or genuineness of the contents is disputed.
23. No such remark or observation has been made by the Chemical Examiner. It means that they were received in the office with the sealers affixed thereon and were intact. Even otherwise if this view is considered, logically if the prosecution had tampered with the parcels or got fictitious swabs prepared then every care and caution would have been taken that no discrepancy is created with regard to their possession or transmission to the office of the Chemical Examiner. It appears almost impossible that the Doctor, the victim, the police and other witnesses may be from the police would have joined hands to prepare fake swabs not obtained from the victim and then result is obtained favourable to the prosecution. The Doctor has said that swabs were taken and according to the Chemical Examiner's Report they were found to be semen-stained. An objection has been raised by the learned counsel that the Chemical Examiner Report was not appended with the Challan rather the same was produced in Court by the prosecution. Any document can be produced or exhibited in the Court during the trial and its non-submission alongwith the Challan does not affect its genuineness. The original swa bs, therefore, provide reliable corroboration to the statement made by the victim.
13. It has been next argued that the P.Ws., including the complainant except Mst. Naseem Begum victim were declared hostile, therefore, no safe reliance can be placed on their testimony. It is true that the complainant (P.W.9) and Abdul Khaliq (PM.) were subjected to cross-examination by the Prosecutor with the permission of the Court but the law is not inflexible on the point. Appellants contention that credibility of a hostile witness is always doubtful is not of universal application.
24. There are number of authorities that a hostile witness being discarded by the prosecution itself has to be relied upon with care and caution but it does not mean that his statement cannot be considered in evidence at all. In this behalf the guidance can be taken from the principle laid down by the Hon'ble Supreme Court in case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 469). It was held that "primary question is not whether witness is hostile or disinterested but whether the witness is honest or dishonest. A hostile witness may be a truthful witness. The court should look to the quality of the evidence whether probable or consistent". Following the same principle there are number of judgments such as Abdul Razak Rathore's case (PLD 1992 Kar. 39).
25. Holding that a hostile witness does not lose credibility just because he has been permitted to be cross-examined. Similarly in a D.B. judgment of Kaloo's case (1973 PCr.LJ. 334) it has been held that evidence of a hostile witness cannot be discarded wholly because of being declared hoslite. The learned counsel for the appellants further has cited judgments against the hostile witness i,e, Habib-ur-Rehman v. Mustafa Abbas (PLD 1989 SC 20), laying down that a hostile witness who resiled from his earlier statement no importance should be attached to his evidence. On the same point in Munawar Khan's case (SC 1975 SCM R 119), it has been laid down that evidence of a witness resiling from his statement made before committing Court can be accepted only when corroborated by reliable evidence. There are number of authorities and pronouncements given by the Hon'ble Supreme Court and the High Court. They net result of the various authoritative pronouncements is that evidence of hositle witness can be taken into account and its intrinsic value should be considered but with care and caution.
26. 'Applying the same principle to the statements in the instant case it is found that all the three witnesses supported the prosecution version on all material points. They were declared hostile and subjected to cross-examination appears to be on account of some inexperience on the part of the prosecutor. A witness is not to be declared hostile merely because he made a statement slightly different. from the statement made during the investigation.. If the witness has supported and substantiated the prosecution case there remains no justification to get him declared hositle. The witnesses in the present case supported the prosecution on all the material points. Their evidence cannot be excluded merely for the reason that they were subjected to cross-examination by the Prosecutor. The statements made by all the three witnesses are consistent and nothing damaging to the prosecution could be elicited from any one of them. Their statements are supported by Mst.
27. Naseem Begum, medical evidence, the report of the Chemical Examiner and above all with the circumstances of the case.
14. The learned counsel has discussed the medical evidence in details. According to him the medico-legal report given by Dr. Shamim Akhtar (P.W.2) does not prove that Mst. Naseem Begum was subjected to Zina-bil-Jabr by the three accused persons. The fact that vagina only admit one finger and second finger could be inserted only with force and that bear no marks of violence or that the examination did not reveal that she felt pain during the examination or some bleeding occurred during the intercourse or during examination negates and contradicts the prosecution version. The argument suffers from fallacy both on factual as well as on legal point. The physical condition varies and differs from person to person. There have been cases that a girl or woman was subjected to sexual intercourse but even hymen was not torn. It is not always necessary that in all individuals the consequences of sexual intercourse would be similar and identical. It merely depends on one's biological condition. A bare perusal of the report reveals that Mst. Naseem Begum was definitely subjected to sexual intercourse. It is not possible for any Doctor to conclusively determine as to how many people or as to how many times the sexual act was performed. Considering the statement of the victim alongwith medical report the prosecution version that all the three accused persons committed rape cannot be held to be not true. Even if presuming that all the three persons did not commit the sexual act but only one or two committed the same, section 10(4) of the Ordinance has taken care of this situation. If more than one person commits Zina-bil-Jabr and they have all participated in the commission of the Zina-bil-Jabr then it will be treated as Zina-bil-jabr committed by all of them in furtherance of their common intention.
28. 15.Eye-witness account of the P.Ws., is further supported by one very strong circumstances that the victim was found naked and she was wrapped and was thereafter dressed by the women-folk from the neighbourhood. Had Mst. Naseem Begum not been subjected to Zina-bil-Jabr she could not have been found naked in the morning. All the three accused persons came in the evening, they pre-planned and pre-meditated the scheme and they- brought milk with intoxicant. It clearly shows that Mst. Naseem Begum was not consenting party. She was rendered almost senseless so that she may not be able to make any resistance. She saw the accused persons coming to her house, administering milk and thereafter, taking her to the room. It was not impossible for her to see or realise that she was being subjected to sexual intercourse. The act or the offence is of the nature that victim may not be fully conscious yet could not be rendered incapable of seeing or feeling that she was subjected to such an act. While keeping within the limits of decency, statement of Mst. Naseem Begum, who has no reason to falsely implicate the accused persons has to be accepted.
29. 16.The learned trial Judge has rightly found the accused persons guilty under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. Although the prosecution has successfully brought home the guilt of the accused persons yet a difficult was confronted with the learned trial Judge on legal plaint pertaining to quantum of sentences. By virtue of offence of Zina (Enforcement of Hudood) Ordinance 1979 subsection (4) has been added to section 10 to the following effect:-- "When Zina-bil-Jabr to Tazir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death."
30. The learned trial Judge on conclusion of the procedure and power of the Special Court. After going through whole of the section which contains fourteen sub-sections, it transpires that Code of Criminal Procedure subject to some variations and adaptaion has been made applicable. Similarly under section 25(7) it has been laid down that an Appellate Tribunal shall, in exercise of its appellants jurisdiction, subject to the provisions of this Act, have all the powers conferred on an Appellate Court under Chapter XXXI of the Cr.P.C. It clearly means that whenever some ambiguity has to be resolved we have to fall back upon the Code of Criminal Procedure. Under aforesaid two sections various provisions of that Code have been made applicable and the Code as defined under section 2(c) of the Act means the Code of Criminal Procedure. Chapter XXXI of the Code deals with the powers and functions of the Appellate Court. In particular under section 423 (1)-B it is laid down that:-- "in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accued, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or send for trial, or (2), alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without the finding, alter the nature of the sentence but, subject to the provisions of the section 106, subsection (3) not so as to enhance the same;"
31. It clearly implies that the Appellate Court firstly has the same power as that of trial Court and can later, reduce or reverse any of the sentences imposed. The question for determination is that in case an offence is exclusively punishable with death lesser punishment can be awarded or not.
32. The guide line can be taken from the principle incorporated in subsection (5) of section 367, Cr.P.C.
33. It reads:-- "If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed."
34. It is, therefore, inferred that even in cases where death is the only sentence and the circumstances of the case do not warrant imposition of extreme penalty of death then lesser sentence by way of imprisonment for life can be imposed. This view is fortified by section 20 of the Anti-Terrorism Act, 1997 which is in the following terms:-- "A person convicted for an offence by the Special Court shall be awarded the maximum punishment prescribed by law for the offence unless for reasons to be recorded the Court decides to award a lesser punishment."
35. It means that if in the interest of justice lesser penalty has to be imposed then the principle laid down in section 367(5), Cr.P.C. has not been deviated from. In the present case under section 10(4) of the Offence of Zina (Enforcement of Hundood) Ordinance VII of 1979, sentence of death has been described but nonetheless if the Trial Court or the Appellate Court feels that the same is not warranted in the circumstances of the case lesser punishment can be awarded. Whenever any provision of law has to be interpreted it should be interpreted in a manner that interest of justice is not defeated and the interpretation advances the cause of justice. If it is held that any person who is found guilty can be awarded the sentence of death alone then it is apprehended that number of acquittals would be increased because for awarding the sentence of death extreme care and caution up to the level of abundant pre-caution has to be taken. In the present case the accused persons have committed the offence and it cannot be conclusively held with certainty that all the three accused committed the offence one after the other but the fact remains that they have committed the offence of Zina-bil-Jabr in furtherance of common intention of all of them. As such each of them would be liable to imposition of extreme penalty of death which under the circumstances of the case may be too excessive and unjust.
17. The upshot of above discussion is that conviction and sentence as recorded and imposed by the learned Special Judge Anti-Terrorism Court No,II, Multan is upheld and maintained. The appeal, therefore, fails and is dismissed.