1. ' ABDUL WAHEED SIDDIQUI, J.---Appellants/respondents had submitted a Criminal Appeal No,42-I of 1998 which impugned a judgment of the Court of Session Judge, Mansehra delivered on 13-3-1998 whereby they have been convicted under section 337-F(i)34, P.P.C. And sentenced to payment of Daman in a sum of Rs,10,000 each to the complainant and each of them have also been sentenced to imprisonment for a period of 6 months R.I. As Tazir. In case of non-payment of Daman of Rs,10,000 each by the appellants and till its recovery in full to the extent of their liability all the three appellants may be kept in Jail and dealt with in the manner as if sentenced to simple imprisonment. Out of the three appellants Zafar Iqbal and Zulfiqar have also been convicted under Article 18, Offence of Zina (Enforcement of Hudood) Ordinance, hereafter to be referred to as the said Ordinance, and each of them is sentenced to R.I. For 6 months and a fine of Rs,10,000 or in default to suffer R.I. For two months further. Both the sentences have been directed to run concurrently. Benefit of section 382-B, Cr.P.C. Has also been extended to them.
2. Story of the prosecution, in brief, is that one Muhammad Anwar (P.W.12) met a police party on patrol on 12-8-1992 and made them to record his complaint Exh.P.A/1. In his complaint the complainant alleged that on the said date in the morning time at about 9-30 a.m. He went towards barn (Bathi) situated in village Tarah Pain within the jurisdiction of Police Station Mansehra which barn was known to be the barn of Chanzeb. The complainant had gone there in connection with the recovery of some loan imposed by Jirga. While he was sitting in the barn of Abdul Manan that the appellants/accused Chanzeb, Zafar, Zulfiqar and Afzal came there alongwith Lathis. As soon as they reached there, accused Afzal and Zafar caught hold of him and accused Chanzeb and Zulfiqar started beating him with Lathis and then they took him towards their own barn and there they made his Shalwar to be opened an took him inside a room in the barn. There he found his brothers namely Sabir Hussain and Muhammad Saddiq also having been confined in the said room. His Shalwar was already opened and was not there on his body. Then accused Zulfiqar and Zafar opened their Azarband and started touching their penis with his rectum and said that they shall commit sodomy upon him so that he shall not come for the demand and recovery of his money. The accused were seen by his brothers committing the offence who were already confined.
2. The reason for the said commission of offence was the amount of loan due towards the accused persons. He remained suffering from the injuries received by him due to the infliction of Lathis on his body as well as upon the upper teeth.
3. ' On the basis of this complaint Exh.P.A./1 an F.I.R. Was lodged at Police Station Mansehra on the same date at 1-00 p.m. Whereas the original Murasila was recorded at 12-00 in the noon. The place of occurrence was shown in the Murasila as well as in the F.I.R. To be 11/12 Kilometers away from the Police Station. All the four accused were challaned. They were charged firstly under Article 12 of the said Ordinance, and Zafar Iqbal and Zulfiqar were also charged under section 377, P.P.C. And all the accused were also charged under section 337-A (4V)/34, P.P.C. To this charge none of the accused pleaded guilty.
3. To prove its case prosecution examined 13 witnesses. Gohar Rehman (P.W.1), LHC deposed that in his presence Constable Amjid Ali brought two bottles containing swabs with regard to complainant obtained by doctor. The bottles were sealed and were taken into possession by A.S.I. Abdul Sattar Khan and again sealed them in parcel vide memo Exh.P.C. He is marginal witness to this memo of recovery. On the next day, A.S.I. Abdul Sattar Khan received another bottle containing tooth of complainant by Dental Surgeon. The Investigating Officer sealed this bottle in his presence vide memo. Exh.P.E. Which correctly bears his signature. A.S.I. Abdul Sattar also received another bottle containing swa bs taken from accused Zulfiqar by doctor and sent through Amjid Ali Constable.
4. This bottle was sealed and the Investigating Officer resealed it in a parcel vide memo. Exh.P.E. In his presence which correctly bears his signature. Khan Bahadur (P.W.2), Constable has deposed that in his presence accused Zulfiqar and Chanzeb led police and pointed out the store of tabacco barn from where three clubs were recovered vide memo. Exh.P.G. And the same were taken into possession by A.S.I. Abdul Sattar Khan. Dr. Khalid Farooq (P.W.3) Dental Surgeon, D.H.Q. Hospital Mansehra has deposed that on 13-8-1992 at 9-45 a.m. He examined Muhammad Anwar brought by police and found the following:--
(1) There is no outside injury on the effected teeth.
(2) The anterior upper teeth are not firmly fixed with the wall of socket.
(3) The overall dental heigen is satisfactory.
(4) The right upper central incisor is painful and shakey.
(5) The X-Ray of effected tooth i,e, right upper central inciser indicates the line of fracture on the crown and next portion.
(6) The broken tooth is extracted and handed over to police for necessary action.
(7) The nature of injury is grievous.
(8) The duration of injury is about 20 to 24 hour's. The dental MLC N..29/92 Exh.P.W.3/1 is in my hand writing and correctly bears my signature."
5. ' During cross-examination he has admitted that injury No,2 indicates that the injured suffered high trauma, which resulted in the dislocation of the teeth. The crown of a tooth is caused only due to high trauma i,e, by a blow with a heavy hard substance. In this case, the duration of the injury was determined on the basis of bleeding from the soft tissue of the injury. Nazakat (P.W.4) is a marginal witness of recovery memo. Exh.P.D. Vide with the Investigating Officer took into possession a shotgun alongwith copy of licence during the house search of the accused. Sajid Hussain (P.W.5) has deposed that on the day of occurrence he went to tobacco kiln at about 9/10 a.m. In the meanwhile complainant Anwar came there and told that he had a dispute over some amount with Haji Abdul Manan. Meanwhile, three persons namely Chanzeb, Zafar and Zulfiqar came there and started giving beating to the complainant and thereafter, they forcibly took him alongwith themselves. Dr. Abid Shirazi (P.W.6), M.O. DHQ Hospital, Mansehra has deposed that on 12-8-1992 at 4-30 p.m. He examined the complainant brought by Police Constable Amjad Ali and found the following:-
(1) "Two bruises 4" long on right shoulder. Two bruises on left back, two on right buttock. Advised X- Ray right shoulder joint. A.P. Lateral view.
(2) Whitish material found on left buttock. Swab taken from that area and sealed in bottle No, 1 .
(3) One swa b taken from inside the anus and sealed in bottle No,2.
6. ' Since he found pain on upper inciser tooth of the examinee so he referred him to the Dental Surgeon. According to him he handed over the sealed bottle containing two swabs collected from the left buttock and similarly in bottle No,2 from inside the anus was sealed and signed by him vide his application Exh.P.W.6/1 and it was handed over for further transmission to the Chemical Examiner. Muhammad Younas Khan (P.W.7) A.S.I., is a marginal witness who registered F.I.R. Exh.P.A.
7. At receipt of Murasila Exh.P.A.1. Muhammad Tariq (P.W.8) has deposed that complainant Muhammad Anwar and P.W. Muhammad Sabir are his real brothers. On the day of occurrence, it was about 10 a.m. That his brother Muhammad Sabir was called by Zafar Iqbal accused from his house. His brother Muhammad Sabir went out and he also followed him. Accused Zafar asked his brother Muhammad Sabir to accompany him to tobacco barn where there Was a Jirga for settlement of loan dispute. His brother started alongwith him and he also followed them. When they reached near the tobacco barn, accused Zulfiqar was sitting with a stick. He suddenly attacked on him and gave him 5/6 stick blows. Then Zafar accused caught his brother Sabir and locked him in the godown of tobacco barn. He was also taken inside the godown. After some time accused Chanzeb and Afzal brought his other brother Anwar in a condition that his shalwar was removed and he was also confined in the godown. This witness was then caught by accused Afzal and his brother Sabir was caught by accused Chanzeb. Thereafter, accused Zafar and Zulfiqar one after another committed sodomy upon his brother Anwar. They were requesting the accused to release them but the reply was that this was the consequences -of their demand to pay them the loan. In fact Rs,10,000 were loaned by his brother Anwar to accused Chanzeb and Zulfiqar and the amount was not being returned in spite of demands. At about 12 noon, the accused released them.
8. They were sent to home but complainant Muhammad Anwar went to lodge the report. Muhammad Sabir (P.W.9) has corroborated the deposition of Muhammad Tariq (P.W.8). Dr. Niaz Muhammad (P.W.10), M.O. D.H.Q., Hospital Mansehra has deposed that during the days of occurrence Dr. Zafar Hayat was posted at Civil Hospital Mansehra and he examined accused Zulfiqar. At the time of deposition that doctor had gone to Saudi Arabia on a Job. He was very well acquainted with his handwriting because he has worked with him for about two years. He has exhibited the report of Dr. Zafar Hayat as Exh.P.J/1 on Exh.P.J. Which is in the handwriting of the said doctor and the correctly recognizes his handwriting and signature. Syed Farman Shah (P.W.11) Retired S.H.O. Has deposed that during the days of occurrence he was posted as S.H.O./Inspector at Police Station. Mansehra.
9. After completion of investigation by the Investigating Officer Abdul Sattar Khan A.S.I. He submitted complete challan against the accused. Muhammad Anwar (P.W.12) the complainant has deposed in conformity with his complaint Exh.P.A./1. He has further deposed that accused Zulfiqar and Zafar had rubbed their penis on his anus after taking off his shalwar and told him that (URDU TEXT) so that he should not demand the loan amount. He has proved his complaint Exh.P.A. And according to him the site plan was prepared on his pointation as well as on the pointation of his brother.
10. Abdul Sattar Khan (P.W.13) Investigating Officer has deposed that during the days of occurrence he was posted as A.S.I. At Police Station Saddar Mansehra. On 12-8-1992 he was on patrol duty alongwith Amjid Ali P.C. No,639 and was present at Tarha Pain where at about 9-30 a.m. The complainant met him and lodged his complaint which was taken down in the shape of murasila as Exh.P.A./1 in the contents of the murasila were read over who admitted the same as correct. He sent the murasila to the Police Station for registration of the case. He prepared the injury sheet, Exh.P.H.
11. Of the complainant and sent him for medical examination under the escort of Amjid Ali P.C. During the course of investigation, he prepared the site plan Exh.P.B. At the pointation of complainant and P.Ws. He arrested the accused Chanzeb, Zulfiqar and Afzal and prepared the recovery memo.
12. Exh.P.C. Whereby he took into possession two sealed phials containing swabs of complainant sent by the doctor after medical examination. He drafted an application Exh.P.L., whereby the swabs were sent to the chemical examiner and received whereof as Exh.P.M. Which is in positive. He also prepared the recovery memo. Exh.P.E. Whereby he took into possession one sealed phial containing broken tooth of complainant sent by the doctor. The same was again sealed into parcels in the presence of marginal witnesses. Accused Chanzeb and Zulfiqar pointed out the place of occurrence and also pointed out the various scenes of occurrence. On the pointation of the accused Zulfiqar and Chanzeb he recovered lathis under recovery memo. Exh.P.G. Similarly he prepared the recovery memo. Exh.P.B. Whereby during the house search of accused Chanzeb of and Zulfiqar, he took into possession one shotgun in the presence of marginal witnesses. He recorded the statement of P.Ws. He also prepared the injury sheet Exh.P.J. Of accused Zulfiqar for medical examination. After completion of investigation he produced the case file before S.H.O. For submission of complete challan. He also prepared recovery memo. Exh.P.F. Whereby he took into possession one phial containing swabs of accused Zulfiqar sent by the doctor after medical examination. The same were again sealed into a parcel in the presence of marginal witnesses.
13. ' In his statement under section 342, Cr.P.C. Appellant Chanzeb has admitted that his co-accused Zafar and Zulfiqar are his real sons while another co-accused Afzal is his son-in-law. The remaining question have been denied. About the question as to why the P.Ws. Has deposed against him, he has replied that they are interested and inimical towards him. To another question as to what is his statement, he has replied that actually the complainant wants to swallow the loan outstanding against the complainant. He has declined to be examined on oath and has not produced any witness in his defence.
14. ' Appellant Zulfiqar, in his statement under section 342, Cr.P.C. Has also denied all the specific questions and to question No,4 that the Chemical report Exh.P.M. Is positive, he has replied that he did not confirm that the semen belonged to whom and that no comparison test had taken place.
15. About the deposition of P.Ws. He has replied that they are interested and inimical. He has declined to be examined on oath and had not produced any defence.
16. ' In his statement under section 342, Cr.P.C. Appellant Zafar Iqbal has denied all the specific questions. About the positive report of the FSL he has replied that he did not confirm that the semen belonged to whom and no comparison had taken place. About the P.Ws. He has replied that they are interested and inimical towards him. He has declined to be examined on oath and has not produced any witness in his defence.
4. While, I had heard the learned counsel for the appellants and the State and had reserved the judgment, I came across para. No,15 of the impugned judgment which made me to take judicial notice of certain facts which were, prima facie, clear from the record I passed the following order on 12-5-1998.
17. "ABDUL WAHEED SIDDIQUI, J.---While, I was writing judgment in this case, I came across para. No,15 of the impugned judgment which reads:-- ' For having attempted to commit sodomy on the person of Muhammad Anwar complainant, accused Zafar Iqbal and Zulfiqar are convicted under section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and each of them is sentenced to six months R.I. And a fine of Rs,10,000 or in default to suffer two months R.I."
18. ' Section 18 supra reads as under:- "Punishment for attempting to commit an offence.---Wfioever attempts to commit an offence punishable under this Ordinance with imprisonment of whipping, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a terms which may extend to one-half or the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence or with any two of, or all the punishments."
19. ' The maximum punishment for attempting to commit sodomy, as in the present case, can extend to one-half of the longest term provided for that offence. The longest term for the offence for which appellants were charged is imprisonment for life i,e, R.I. For 25 years. The relevant section is 377, P.P.C. Which reads:-- "Unnatural Offences;---Whoever, voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine."
20. ' Consequently, the punishment under section 18 of Offence of Zina (Enforcement of Hudood)
21. Ordinance, 1979 could extend up to 12-1/2 years, whereas the punishment awarded in the impugned judgment is only R.I. For six months. Again the evidence on the record is indicating that Muhammad Anwar (P.W.12), the victim for the attempt of sodomy and his two brothers Sabir Hussain and Muhammad Tariq were confined in a room of tobacco barn. This act constitutes a distinct offence under section 342, P.P.C. For which appellants/accused have not been charged.
22. ' Through the impugned judgment, the appellants have also been convicted under section 337- F(i)/34, P.P.C. And have been sentenced to R.I. For six months. In fact this is a punishment for the type of Jurh known as Ghayr-Jaifah Damiyah. Dr. Abid Shirazi (P.W.6) who examined victim Muhammad Anwar on the date of occurrence has referred to many injuries which include pain on upper inciser tooth and then the victim was referred to dental surgeon. Dr. Khalid Farooq (P.W.3), Dental surgeon, examined the victim on the next day i,e, 13-8-1992 and has deposed that on the one hand anterior upper teeth are not firmly fixed with the wall of scoket, and on the other hand X- Ray of effected tooth i,e, right upper central inciser indicates the line of fracture on the crown and neck portion. The nature of injury to the tooth has been declared to be grievous. During cross- examination this very Dental Surgeon has deposed that crown of a tooth is the hardest tissue in the human body and this fracture has been caused only due to high trauma i,e, by a blow with a heavy hard substance. This evidence of two expert doctors leads to the commission of an offence in the nature of Shajjah-iMunaqillah for which the punishment is prescribed under section 337-A(iv) which is imprisonment of either description for a term which may extend to ten years as Ta'zir plus arsh which shall be fifteen percent of the diyat. Appellants have not even been charged for the commission of this offence.
23. ' In view of this position issue suo motu notices under Article 203-DD(2) in the name of the appellants to produce their defence and explain as to why their sentences may not be enhanced as explained above. The case may be fixed on 25-5-1998. In case of failure of production of defence, the case shall be decided ex parte".
24. ' Once a suo motu notice was taken by this Court, the State also awakened from its condition of hibernation and filed its Cr.Rev. No,3-P of 1998. After having given the suo motu notice and also notice under the Cr.Rev.3-P of 1998, the matter got turned into a matter of D.B. Hence a D.B. Was constituted and I alongwith may senior brother Mr. Justice Dr. Fida Muhammad Khan, Judge-I of this Court heard this case in details and again reserved the judgment. Now we propose to dispose all the three matters namely Cr.Rev.No,3-P/98, Cr.S.M. 3-I of 1998 and Cr.A.No,42-I of 1998 together.
5. We have heard the learned counsel for the apellants/respondents and the State. The learned counsel for appellants/respondents has contended that this case was originally registered in 1992 and the trial prolonged upto 13-31998 on which date the impugned judgment was passed and the appellants who were on bail were taken into custody and, therefore, this prolonged trial has created hardships for the appellants. According to him the appellants have completed their sentences and have also paid the amount of Daman and therefore, they have been set at liberty.
25. Consequently, it shall be a double Jeopardy--for the appellants in case the Cr.Suo Motu and the Cr. Revision are carried forward and the appellants are once again sentenced to enhanced sentences from the sentence they have already undergone. In this context the learned counsel for appellants/respondents has relied upon Article 13 of the Constitution of Pakistan, section 403, Cr.P.C. And section 26 of the General Clauses Act, of 1897. Another limb of his arguments is that sentence of Daman has been accepted by the complainant/victim. Therefore, the provisions of Chapter. VIII of the Qanun--e-Shahadat Order, 1984 concerning estoppel are going to come into operation. Consequently, further proceedings may be estopped. The learned counsel for the State on the other hand has contended that neither Article 13(a) of the Constitution of Pakistan nor section 403, Cr.P.C. Is attracted in the present case. Article 13(a) of the Constitution of Pakistan reads as under:-- "No person shall be persecuted or punished for the same offence more than once."
26. We are of the considered opinion that a Cr,S,M, Notice taken by the appellate Court or a Criminal Revision Petition filed by any litigant--for the enhancement of sentence in the same offence cannot be termed as prosecution for the same offence more than once. In fact the proceedings at the appellate/revisional stage are the continuation of the proceedings at the trial stage and, therefore, this line of arguments by the counsel of the appellants is repelled as misconceived. So far as the application of section 403, Cr.P.C. Is concerned, we agree with the contention of the learned counsel for the State that its provisions are not attracted in the present case. Section 403(1) of Cr.P.C. Reads as under:-- "Person once convicted or acquitted not to be tried for same offence.---(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence and shall, while such conviction or acquittal remains in force, not to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237."
27. Now, it is clear that the present proceedings are not the re-trial of the appellants but rather these are continuation of the original trial for the same offence. Consequently, this line of argument is rejected as misconceived. So far as reliance on section 26 of General Clauses Act of 1897 is concerned, in fact this section is the basis of the introduction of section 403 in Cr.P.C. It reads as under:-- "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
28. ' The learned counsel for State's arguments concerned 403, Cr.P.C. And section 26 of the General Clauses Act, 1897 are considered to be properly conceived and the line of argument of the learned counsel for appellants is again found to be misconceived and is rejected accordingly. So far as another limb of arguments concerning estoppel is concerned where Chapter VIII of Qanun-e- Shahadat Order, 1984 is involved, the relevant Article in the said Chapter is 114 which read as under:- "Estoppel.--When one person has by his declaration, act or -omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be representative, to deny the truth of that thing."
29. ' When confronted with this limb of arguments, the learned counsel for the State/petitioner has argued that the sentence of Daman was awarded while convicting the appellants under section 337-F(i)/34, P.P.C. Now the acceptance of Daman by the victims shall be considered as an act intentionally caused or permitted to the appellants/respondents to believe that their sentences under section 337F(i)/34, P.P.C. Have been consumed and such consumption being a thing to be true and therefore, the State in its capacity as a representative of the victims shall not be allowed to deny the truth of the existence of such a belief after the payment of Daman and after having undergone the sentence of imprisonment for a period of 6 months R.I. As Tazir. We are of the considered view ourselves that the issue of Jarah cannot be proceeded further under the provisions of Article 114 of the Qanun-e-Shahadat Order, 1984 and hereby stop the proceedings only to the extent of Jarah.
6. So far as the evidence about the confinement of the victims is concerned, since they are not charged by the, trial Court for that offence, therefore, we do n& find it fit to continue with this portion of evidence in view of the principle of aude alteram partem (none should be condemned without hearing).
7. So far as the sentence awarded under Article 18 of the Offence of Zina (Enforcement of Hudood)
30. Ordinance, 1979, is concerned, we do not find it adequate for such a heinous crime by only imprisonment for 6 months. For this offence only appellants Zafar Iqbal and Zulfiqar stand convicted on the basis of the proved offence against them. Article 18 has already been reproduced in the earlier part of this judgment. As discussed above the maximum sentence for this offence can extend up to 12-1/2 years. Consequently, we do not find it in the fitness of the things and in the circumstances of the present case that a sentence of 6 months and a fine of Rs,10,000 is enough to meet the requirements of justice. Consequently, we hereby enhance the sentence under Article 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the case of Zafar Iqbal son of Chanzeb and Zulfiqar son of Chanzeb to R.I. For 3 years and enhance the fine from Rs,10,000 to Rs,20,000 each or in default to suffer 4 months R.I. Further. So far as suo motu notice about Chanzeb son of Dadu Khan is concerned, it is withdrawn. Since the convicts Zafar Iqbal and Zulfiqar as mentioned above have already completed their original punishment of 6 months and have also paid the Daman and have already been released from the Jail, they shall be taken into custody to complete their enhanced sentence. Benefit of section 382-B, Cr.P.C. Is extended to them. With these modifications the appeal is dismissed and the Criminal Revision No,3-P of 1998 as well as Criminal Suo Motu No,3-I of 1998 are allowed only to the extent which has been discussed as above.