By a short order dated 2-7-1996, the appeal in hand was dismissed by me with the following modifications in the sentences by taking into consideration the observations made in another Jail Criminal Appeal bearing No,94/I of 1996 (Zafar Mahmood v. The State) as well the inquiry report submitted by S.S.P. Special Branch Rawalpindi in compliance of the order of this Court dated 4-6- 1996 besides the peculiar circumstances as would be detailed in the forthcoming paragraphs.
The sentence of six years imprisonment was reduced to one year R.I.; the sentence of stripes was dropped and the sentence of fine of Rs,10,000 was reduced to Rs,500 (in default thereof 2 months S.I.) The reasons for the said modifications are now being given in the coming paragraphs:
2. Facts in brief unfolded by a Murasila dated 29-4-1996 prepared by Nawab Khan A.S.I. of Police Check Post Attock Khurd are that the said A.S.I. alongwith several other police officials including one lady constable namely Zarina Begum was on checking duty at the said check-post. On the same day at about 2015 hours a passenger vehicle bearing No, 9892 MRB reached there from Peshawar.
The lady constable Mst Zarina Begum searched the present appellant and as a result of that search 500 grams of heroin was recovered from her. Out of the recovered material 5 grams of heroin was separated for the purpose of sending the same to the Chemical Examiner. The Murasila was incorporated into an F.I.R. bearing No,534 of 1995 and the appellant was booked under section 3/4 of the Prohibition (E.O.H.) Order 1970. After usual investigation challan was submitted on 3-5- 1995 in the Court of Judicial Magistrate Section 30, Attock where she pleaded not guilty and claimed trial. The learned Magistrate, after concluding the trial, convicted and sentenced her to suffer R.I. for six years, 10 stripes and to pay fine of Rs,10.000 (in default thereof one year R.I) Mr. Arshad Ali Chaudhry, appearing for the appellant on the State expenses, drew my attention to the detailed circumstances and prayed for reduction in the sentences and Mr. Sualehin Mughal, the learned counsel representing the State also conceded to the request made by the learned counsel for the appellant.
3. I have never been inclined to show any leniency to the accused persons involved in the heroin cases but the facts narrated by the learned counsel for the appellant and conceding by the learned counsel for the State forced me to find out the actual facts of the case besides realising something fishy in the R & P of the case. Hence I ordered on 21-4-1996 for the production of the appellant in the Court. It may not be out of place to mention here that such orders may or may not be passed by other appellate Courts on account of technicalities but the Federal Shariat Court has to keep itself attackhed with the actual spirit of Islamic Shriah and therefore it can never tie its hands with the chains of technicalities if justice requires to take any step in the interest of justice. In compliance of the said order the appellant was produced by lady constable Abida Parveen from Adiyala Wala Jail Rawalpindi where she was brought from Central Prison Multan. Nawab Khan A.S.I., who is the Investigating Officer of the case also attended the Court on that day and one Usman Ali Khan, claiming to be Zamindar was also found present in the Court. The appellant who was neither presented by any Advocate in the trial Court nor was supported by any common defence witness before the trial Court was, surprisingly enough, being supported by the said so-called Zamindar at the appellate stage. The said Zamindar stated that the appellant was falsely implicated in the case but he was not in a position to answer other questions put by the Court to him. In the presence of the said Zamindar the appellant stated that actual culprits were not arrested by the police and she was made the accused in that case as an escape goat. However, the appellant was unable to point out the names of those actual culprits on account of some fear in her mind. It is notable that minor innocent children of the appellant had been brought in the Court by the said Zamindar on that day and apparently they had to go back with the said person. These circumstances left me with no other choice but to hold secret inquiry through Special Branch. In compliance of the order of its Court S.S.P. Special Branch Rawalpindi had been good enough to send the most convincing report to this Court which is full of pains and sobs to expose so many faces. The last lines of the said report end with the following alarming sentence:-- "She has already been enriched with male wolvs"
These words of the report asked me on behalf of the appellant to tell her as to where are those so called organisations of Human Rights and where is the Ministry of Human Right to protect the preys of proverty at the cost of their chastity. After going through the report in full I saw around myself to find out the answer of the question in this Islamic State as to but there was none. I would like to reproduce few lines from the said report which read as under:-- "When the source of her income was cut out due to natural clamity no other source of livelihood could be arranged by her. She had a large family of seven to support; with majority of daughters in hot water, she had no other way out but to resort to bad ways of earning and arriange unconventional "male" support....She thought it more appropriate to illicit support from a notorious goonda with good financial status --- to help her out of her troubles consequently (she got) intimacy of one Usman Ali Khan a Usmani stickingly notorious man (who is) involved in many criminal cases as per following details. (This detail mentions the case arising out of F.I.R. No, 158/78 under section 366/376/506/343, P.P.C. of P.S. Khanpur District Abboatbad, F.I.R. No,269 of 1988 under section 324/34, P.P.C. P.S. Waris Khan Rawalpindi and F.I.R. No,142 of 1990 under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 of P.S. Banni Rawalpindi.) when (Usmani) became addict and was unable to live without fast living he started harbouring and patronising drug- traffickers and drugpushers he exploited her and her daughters on the one side and on the other, intended to exploit her doubly by using her as a drug trafficker/carrier upon the assurance that he was an influential man and that law enforcing officers were on his payroll. He intended to kill two birds with one stone. She has fallen victim to the circumstances specially because these were well- nigh beyond human control... "she is a widow, she has got a large family to support single handedly...some of her children are minor in age...her one daughter is sitting at her door involved in divorce case...her another daughter is fastly reaching the age of puberty with no major male/female to look after. She has got no ostensible means of living, she has already been encircled with male wolves..."
4. The result of this painful report is before me. A time may come when her minor children after becoming majors, would take revenge from this cruel society for the miseries of their mother. But the question before me is whether these circumstances warrant me to decide the appeal on merits or to show leniency to the appellant involved in the case of heroin. So far circumstances of any case involving violations of human-rights are concerned it is the duty of the State or those Human-Rights Organistions or the Ministry established for this purpose by the Government of Prime Minister Mohtarma Benazir Bhutto for the first time in the history of Pakistan to lookafter the innocent minors by putting their burden on those N.G.Os. who get substantial amount from the Government for the said purpose. But for the purpose of doing justice by the Courts in Pakistan, particularly by the Courts dealing in the cases attracted by Shariat laws, all the Courts in Pakistan are expected to keep the principles of Islamic Justice always before them at every stage i,e, the trial stage or the appellate stage, instead of following any un-Islamic principle of technicalities. If any support is required to strengthen this proposition I would like to refer the conduct of Qazi Shurahih and Hazrat Ali (R.A) in which a case was decided by Qazi shuraih on the bases of "oath" but Hazrat Ali (R.A.) did not uphold the said decision. The brief summary of the said case was as follows. One person put a complaint before Qazi Shuraib against four persons stating therein that his father had left with them on business tour. On their return they told him that his father had died.
When he asked the accused persons about the movable properties and other articles possessed by his father they told him that his father had nothing with him at the time of his death. Qazi Shuraih called those persons. As there was no eye-witness in the said case, hence, the Qazi decided the case on "oath" and acquitted the accused persons. The complainant, being aggrieved by and dissatisfied with the said decision approached Hazrat Ali (R.A.) Hazrat Ali (R.A.) called those persons and made each of them to sit at different places. He then called them one by one and recorded their statements by cross-examining them in such manners as the witnesses are usually crossed examined to find out the truth. Their statements were totally found conflicting from each other and it exposed them that they were telling lies. Ultimately they confessed their guilt that they had murdered the father of the complainant. The details of this case are mentioned in the famous book of Imam-ibne-Qayyum Ali- Jozi which is known as Al-Turqul-Hikmia-fil-Siyasatul-Shariah. It would not be out of place to mention another famous decision which is mentioned in different books of Ahadith of the Holy Prophet (p.b.u.h.) the facts of the case in brief were as follows. Two women claimed to be the mother of a child. The matter came before Holy Prophet Hazrat Daud (peace be upon him) who decided the case in favour of the woman who was older than the other.
The matter was then brought before Holy Prophet Hazrat Suleman (p.b.u.h.) who is the son of Hazrat Daud. (p.b.u.h.). It was ordered by Hazarat Suleman (p.b.u.h.) that a knife be brought so that the child be cut into two. The elder woman agreed to that proposal but the younger woman cried and prayed that the child be not cut into two and be handed over to the other claimant because the child belonged to her. Such admission can be used by our British originated Courts to decide cases in favour of false claimants but the Islamic Principles of Justice forces the Courts to decide cases on the bases of realities. The motherly love of the younger woman had exposed the elder woman and her falsehood. The decision given by father (the Holy Prophet Hazrat Daud) (p.b.u.h.) was changed by his son. (the Holy Prophet Hazrat Suleman) (p.b.u.h.). What I want to say is that in our judicial system if any third class Judge or subordinate Court finds anything wrong on the face of facts or in the light of circumstances, then the said court must not hesitate to refer the said case to the concerned court by pointing out the said mistake to the Court who committed that mistake.
In our judicial system the subordinate Courts are not supposed to correct the mistakes of their superior Courts but there is no bar upon the subordinate Court to point out such things.
5. These were the examples of Islamic justice before my eyes which forced me to order for holding secret inquiry. After receiving the said inquiry and going through the same in detail I am unable to disbelieve the statement of the appellant that actual culprits were let to go and this appellant was made an escape goat in the case so that no one could say that all the accused were let to go by the police. If the so-called Zamindar namely Usman could attend this appellate Court alongwith the children of the appellant without being called to attend this Court on the day when only the I.O. of this Court had been asked to attend the Corut so that his conduct could be ascertained in the light of the inquiry then it cannot be believed that the said Zamindar might not have attended the trial Court during the proceedings before that Court. Similarly it is unbelievable in the light of the inquiry report that the I.O. of the case would be unaware of the back-ground of all those persons and the gangs who were working behind this game and were using or blackmailing the appellant.
All these persons could be rounded up if the I.O. of the case had so wished. It may be important to point out that when this Court was passing an order for holding secret inquiry the I.O. of the case disclosed that the people living in the area known as Ghari-Afghanan are mostly involved is smuggling of heroin and he also prayed that this fact be also ordered to be verified by the Inquiry Officer who would be appointed in compliance of the order of this Court. This discloure also confirmed that the I.O. of the case was fully aware of the people of that area. However, I need not to comment upon this important fact. Another shocking factor is revealed by the seizer memo which is signed by Fateh Khan (male police official) and Mst. Zarina Begum female police official). All the prosecution witnesses including the I.O. have deposed that 500 grams of heroin was recovered from the appellant but none of them have disclosed how they had come to know that weight of the heroin was 500 grams. It means if the witnesses had stated that 5000 kilos of heroin had been recovered the Court would have believed the same without ascertaining the fact of weight. The Court in this case has done the samething. There is nothing on the record to show that weight of the heroin alleged to have been seized from the appellant had been verified by the witnesses by weighing the same in a balance at the time of recovery or by the Court to satisfy itself about the weight of the heroin if the remaining seized material had been produced before the trial Court. The Courts are not supposed merely to depend upon the statements of police witnesses when the Investigating Officers avoid to bring private witnesses in support of their cases. Several I.Os. usually take a stand that private persons do not appear in heroin cases on account of fear of the accused persons. May it be true but is cannot be believed that private witnesses were afraid of such ladies as in the present case. Similarly I am unable to understand that the lady constable had been carrying on the personal search of lady in presence of a male police-official who had signed the seizer memo in this case. The present Government has established Women-Police Stations and there is no difficulty for the I. Os., to get help from those police-stations to investigate the cases where lady accused are found involved in such offences. I am, therefore, of the view that weight of the alleged seized material has become doubtful and the only weight of heroin which can be believed to have stood proved by the prosecution is the weight of that sample which had been sent to the chemical examiner. In the circumstances of the case particularly in the light of the inquiry report I do not consider the appellant to be innocent too because she appears to be serving as tool of criminals, may be under duress. Therefore, I dismissed this appeal but modified the sentences as stated in the beginning of this Judgment and these are the reasons for passing the short order on 2-7-1996 with benefit of section 382-B, Cr.P.C.
6.Before parting with this judgment I considered it necessary to issue the following instructions to be complied by this Court as well as by the trial Court when the copy of this judgment reaches the said Court.
(i)The S.H.O. of the area of Ghari Afghan be directed to keep an open eye upon all those culprits who are issuing the poor ladies as their tools for their husts as well as upon the appellant so that she be not made an escape goat by those male wolves culprits in future.
(ii)The copy of this judgment be sent by the trial Court to The Human-Rights Commission of Pakistan for their information through Mrs. Asma Jehangir, Advocate at Lahore (iii)The copy of this judgment be also sent by the learned Court to the Ministry which is dealing with the cases involving violations of the Human Rights; and
(iv) Office of this Court is required to send a letter of appreciation to the concerned S.S.P. who had taken pain to provide all the required informations in compliance of the order of this Court by holding secret inquiry in convincing manners.