' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1053 of 1999 filed by Muhammad Akram and Mst. Parveen appellants who were convicted and sentenced by the Special Court, Lahore-II constituted under the Anti-Terrorism Act, 1997 vide his judgment, dated 23-10-1999 as under:--- ' Muhammad Akram Death. Under section 10(4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979.
' Imprisonment for life with a fine of Rs,20,000 and in default 6 months R.I. And 30 stripes under section 11 of the Ordinance.
' Parveen Imprisonment for life with a fine of Rs,20,000 and in default six months R.I. Murder Reference No,498/T of 1999 for confirmation of the death sentence or otherwise awarded to Muhammad Akram, appellant shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place on 19-5-1998 (while the matter was reported to the Police at 3-45 p.m. On 22-5-1998 by Mst. Shazia P.W.8 vide complaint Exh.P.D. And the formal F.I.R.
Exh.P.A. Was recorded by Khalid Mehmood A.S.I., P.W.2 on the same day.
3. Brief facts of the case were that Mst. Shazia lodged complaint Exh.P.D with the Police stating there in that on 19-5-1998 she along with her two sisters, Mst. Sobia and Mst. Uzma went to Golden Market, Chowk Yateem-Khana for shopping. The complainant got busy in purchasing clothes and when he was free, found Mst. Sobia aged 16/17 missing. She searched for her at her own. On 22-5- 1998, she was told by Falak Sher and Muhammad Yousuf that on 19-5-1998 Mst.Sobia was being taken in a rickshaw along with Perveen and Muhammad Akram, son of Mst. Perveen for the purpose of committing zina.
4. After registration of the formal F.I.R., Anwer Hussain A.S.I., P.W.10, went to the spot, prepared the site plan Exh.P.D., arrested Parveen appellant and got Mst.Sobia, the alleged abductee, medically examined on 30-5-1998. The statement of Mst. Sobia under section 164, Cr.P.C., was also got recorded on 23-5-1998. The Investigating Officer arrested Muhammad Akram appellant on 12-6- 1998. After completion of the investigation both the appellants were challaned to face the trial.
5. Prosecution in order to prove its case produced 10 witnesses in all, thereafter, the learned P.P., by tendering in evidence report of the Chemical Examiner Exh.P.K. And that of the Serologist Exh.P.J., closed the prosecution case, then the statements of the appellants were recorded under section 342, Cr.P.C., in which they pleaded innocence, claimed false implication, and produced four D.Ws. In their defence.
6. After reading the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C., and other relevant material available on record, learned counsel for the appellants submits that occurrence in this case took place on 19-5-1998 while the matter was reported to the police on 22-5-1998 with a delay of three days without any proper explanation. Further submits that although Mst. Sobia the victim was recovered on 22-5-1998 according to prosecution case, but her medical examination was conducted on 30-5-1998 without any reasonable explanation. Learned counsel submits that story narrated by the prosecution is improbable and not convincing one.
Adds, that it is most unnatural that a mother would abduct a girl along with her son and, thereafter, the girl would be subjected to Zina by the son in her house where four young daughters are also living. Further adds, that Muhammad Yousuf was named in the F.I.R., who stated that he had seen the victim in the company of the appellants but he was not produced by the prosecution. Also submits that in fact, it was Anwar Hussain A.S.I., who played all the mischief in connivance with the complainant party and in this regard, he referred to answer of question No,11 given by Muhammad Akram appellant in his statement recorded under section 342, Cr.P.C., before the learned Trial Court. Learned counsel has also referred to Mark-A, the inquiry report conducted by S.P. (Discipline and Inspections) Lahore Range, Lahore. Learned counsel has also referred to Exh.D.A. a letter from Surgeon Medico-legal Punjab, referring Mst. Lubna to M.S., Lady Willingdon, Lahore for her medical examination and report regarding ultra sound and age of gestation. Reference has also been made to Exh.D.B., which is ultra sono graphy report of Mst. Lubna, sister of Muhammad Akram appellant and daughter of Parveen appellant, according to which gestation age was 14 weeks.
Further submits that there is not an iota of evidence to connect the appellants with the commission of offence.
7. On the other hand, learned counsel for the State half-heartedly supported the judgment of learned Trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, occurrence took place on 19-5-1998, the Police Station is at a distance of two furlongs from the place of occurrence, the' matter was never reported to police till 22-5-1998, the reasons given by complainant Mst. Shazia P.W.8, that she at her own was searching her abducted sister, does not appeal to reason. It is also important to note here, that although the victim in this case was recovered by Anwar Hussain A.S.I., on 22-5-1998 but she was got medically examined on 30-5-1998 and the reasons given by the Investigating Officer in this regard is not believable because he stated that the complainant party had shifted their residence. When Anwar Hussain A.S.I., apprehended the appellants along with Mst. Sobia victim in this case there was no hurdle in his way to get Mst. Sobia medically examined. According to prosecution case, the appellants were not known to Mst. Sobia, but she accompanied the appellants on their asking that her sisters had gone to their house and then she sat in a Rickshaw, and went to the house of appellants. The victim has also stated that she was raped in the house of appellants by Akram appellant and one unknown person, who was never traced by the Investigating Officer Anwar Hussain A.S.I. It is also impossible that Muhammad Akram appellant would commit Zina-bil-Jabar with Mst. Sobia in his house in the presence of his mother and for young sisters which is situated in a thickly populated area. The victim has further stated that she showed resistance to unknown person, who committed zina with her in the house of the appellants but according to her medical examination there was no mark of violence on her body. The hymen was old torn and vagina admitted two fingers easily. It shows that he though unmarried was habitual to sexual intercourse. No male member of the complainant party either brother, husband, or father came forward to join the investigation. At this juncture, we would like to refer to the statement of Mazhar Iqbal D.W.1, wherein he stated that he was married to Shazia, P.W.1 he divorced her because she was a woman of bad character, Mst. Sobia the victim and her sister Uzma were also of bad character, their father and brother were jobless, Shazia complainant P.W. Was living in Lahore along with her two sisters namely Sobia and Uzma.
9. The statement of Mazhar Iqbal proves that in fact the complainant party was of a bad character.
During the whole period, Mst. Sobia remained with the appellants till the day when she was recovered from the custody of the appellants, and during that period Mst. Sobia never raised any hue and cry, so that people might be attracted to her and she could have told the story of her abduction, to them. In our estimation no such occurrence has taken place.
10. The role of Anwar Hussain A.S.I., Investigating Officer in this case is depreciable and has attracted our attention confirming the suspicion in our minds into belief what public talks about Police. In this regard, we would like to mention the statement of Mst. Lubna D.W.3, real daughter of Mst. Parveen appellant and sister of Muhammad Akram appellant; "Mst. Sobia was friend of mine who was also my street fellow, and got visiting terms with me at my house. The people of locality told my mother that Mst. Sobia is a girl of bad character and as such we stopped her to visit our house. Mst. Sobia intimated me that Muhammad Anwar A.S.I., want to have relation with me but I refused to do so and also asked Mst. Sobia not to visit my house. Later on,. Mst. Sobia inclusion with Mst. Anwar A.S.I., got case registered against my mother and brother, who were sent up to judicial lock-up. Muhammad Yousaf and Shera who were our street fellows visited our house and told me that I can have meeting with my mother. Accordingly I accompanied above named persons who brought me at a point where white car was parked and Mian Anwar'
A.S.I., Ahsraf and Sabir were sitting in it. They forcibly got me seated in the car. When car passed in front of Police Station,- Nawan Kot I made noise and Muhammad Anwar A.S.I., and others gave me beating in addition to extension of threats. I was brought in a house near Scheme Morr where all the above named persons committed Zina-bil-Jabar with me turn by turn., It was 7-10-1998. False case has been registered against my mother and brother."
11. The above statement would show that in fact Anwar Hussain A.S.I. Wanted to have illicit relations with Mst. Lubna, the daughter of Parveen appellant and sister of Akram appellant through Mst.
Sobia, and on her refusal Anwar Hussain A.S.I., in connivance with Sobia, the alleged victim and Shazia complainant got this false case registered against the appellants. It is important to note here that in this regard an inquiry was conducted by S.P. Discipline and Inspection which is Mark-A, the same is reproduced hereunder; "Qne Mst. Parveen daughter of Imam Din caste Arain, residence of 103/LDA, Kachi Abadi, Sikanderia Colony Band Road, Nawankot Lahore submitted an application against S.-I., Farrakh, Anwar Ali and A.S.I., Shabbir Ahmad etc. Of Polkce Station, Nawankot Lahore alleging therein that they arrested her in case F.I.R. 119/17 under section 10/11/7/79, S.H.O., Police Station, Nawankot, Lahore. They gave her severe beating and disgraced her and made her sit in a natural dress. The above mentioned case after thorough investigation was found false.
(2) She further alleged that another case F.I.R., No,263 of 1998 under section 13/14/10/11/79, H.O.
Police Station, Nawankot Lahore was also registered against her in which she was arrested. An amount of Rs,8045/along with some other Golden articles were also snatched from her and she was again tortured severely resultantly some of her hidden parts of body were harmed badly. They along with other police officials of Police Station, Nawankot forced her to fulfill their evil designs and when she was sent to Jail, her daughter was raped in her absence.
(3) An inquiry into the allegations was carried out in this office. The application was found correct and based on facts. The delinquent police officials are being dealt with departmentally.
12. We are sorry to note here that although the allegation leveled by Mst. Parveen, the appellant, were found to be correct but no severe legal action as required was taken but only departmental action was treated to be sufficient. During the course of arguments before us, it was brought to our notice, that Mst. Parveen appellant filed a writ petition for registration of a criminal case against Anwar Ali A.S.I., and others but the police refused to register a case unless Parveen agreed that the name of Anwar Ali A.S.-I., would not be mentioned in the F.I.R. We are also told that a complaint is pending against Anwar Ali A.S.-I.; and others in Sessions Court, Lahore. At this stage, we would not direct the Inspector-General of Police, that a case should be registered against Anwar Ali A.S.I., because it would amount to double jeopardy but we would suggest that the D.I.-G., Lahore should take necessary severe legal action against Anwar Ali A.S.-I., because such type of police officials are black sheep in the society and are bringing bad name to whole police and it is like a known saying (URDU TEXT). The allegation of Zina has been leveled by Mst. Lubna in her statement while appearing as D.W. And this allegation is proved on the record from the documents Exh.D.A. And Exh.D.B. Which are reference by the doctor for ultra-sonographer and the age of gestation. These documents show that after the rape committed by Anwar Ali A.S.-I., and his co-follow she became pregnant of 14 weeks.
13. The result is, thus, obvious that the case was fabricated by Anwar Ali A.S.-I., in connivance with Mst. Shazia, the complainant and Mst. Sobia the victim against the present appellants. Resultantly, we by accepting the appeal, set aside the conviction and sentence recorded by the learned Trial Court against the appellants and acquit them from the charge. Muhammad Akram, appellant, is in jail. He shall be released forthwith, if not required to be detained in any other case. Mst. Perveen, appellant, is on bail, so her sureties shall stand discharged. Death sentence of Muhammad.Akram appellant is not confirmed and the murder reference is answered in the negative.
14. Before parting with this judgment we would like to direct the M.I.T. That a copy of this judgment be sent to Inspector-General of Police and the D.I.-G., Lahore Range, Lahore who, we expect, shall take severe and exemplary action against Anwar Ali A.S.I. Who dishonestly investigated the case resulting in death sentence to one person who remained in death cell from 23-10-1999 up to this date and life imprisonment to his mother. The earlier inquiry against Anwar Ali, A.S.I., which stood proved was for indecent behavior, including rape as alleged by sister of Muhammad Akram, namely, Lubna. However, for such a serious charge, the .Offender was let off by stoppage of two increments, we were told. Probably this is the reason why people have and are losing faith in the Police force instead of being the helper and protector of common man, one black sheep played havoc with the dignity of a female and then adding fuel to the fire foisted a case involving capital punishment against brother and mother of Lubna. The instant departmental proceedings which we have ordered would proceed on the premises that Anwar A.S.I., misdirected investigation resulting in agony, loss of liberty and honour of respectable citizen. By doing so the upper echelon in the Police hierarchy have a best chance to show to the people that the already tarnished image of police can be retrieved and all and sundry should start believing that Police force is still the friend of the people as depicted in the text books meant to be read by school children.
' Death sentence awarded to Muhammad Akram, appellant is not confirmed.