' Mst. Sajida alias Shazia and Mst. Sarwar alias Sarwari have filed this joint Criminal Appeal No,39/I of 2004 against the judgment, dated 24-1-2004 of the Additional Sessions Judge, Layyah.
2. Mst. Sajida has been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance to two years' R.I. With a fine of Rs,1,000 and in default to further suffer imprisonment for one week. Mst. Sarwari has been convicted under section 10(2) of the said Ordinance to three years' R.I. With a fine of Rs,2,000 and in default to further suffer imprisonment for fifteen days. Benefit of section 382-B, Cr.P.C. Was given to both the appellants.
3. The case of the prosecution is that Mst. Sarwar alias Sarwari was running a brothel house and hires women for illicit intercourse.
4. F.I.R. No,94, dated 1-4-2003 at about 12-55 p.m. Police Station Chowk Azam, District Layyah was registered at the instance of one Najaf Hussain, S.-I. Under sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance.
5. Both the appellants were granted bail by the Honourable Chief Justice by order, dated 27-2- 2004 on the ground that the sentence was short and the medical evidence was negative.
6. The information regarding brothel house was furnished by P.W.4 Munawar Hussain who deposed that on 1-4-2003 he and Ashraf, P.W. Were told by some persons of locality that Zina was being committed in the house of Mst. Sarwari accused. Then they went to the house of Jumma Gul who joined them. All the persons reached the house of Mst. Sarwari and knocked the door and entered her house and they saw that Zina was being committed in the house.
7. Jumma Gui, P.W.3 corroborated the statement of P.W.4 Munawar Hussain.
8. The most important statement is that of P.W.1, Rizwana Rafique, W.M.O. Who medically examined both the appellants and she sent three vaginal swabs to the Chemical Examiner through the police.
' According to her statement the report of the Chemical Examiner was negative to the effect that the swa bs were found not stained with semen. The reports of the Chemical Examiner are Exh.P.B.
And Exh.P.D. Of 15-4-2003.
9. After prosecution evidence Mst. Sarwari appellant was examined under section 342, Cr.P.C. On 15-1-2004 and she pleaded innocence on the basis of report of the Chemical Examiner. She deposed about herself as a pious house-hold lady, denied the running of the brothel house or hiring of any woman for the purpose stating that all the P.Ws. Are a_gang at Chowk Azam and stock witnesses of the police and Najaf Hussain, S.-I. Is member of them and they involve innocent people in the false cases and extort money and fulfil their immoral demand, Jumma Gul does not reside in Ward No,4 and himself had bad eye on Mst. Sajida (one of the appellants) and tried to develop illicit relations with her and for this she and Sajida have insulted Jumma Gul time and again, P.Ws. And the I.O. In utter disregard of Injunctions of Qur'an and Sunnah falsely deposed against me in totally false case, none of the accused has committed the sin of Zina and none of the P.Ws. Saw my co-accused committing Zina with Mst. Sajida, due to innocence none of the residents of my Mohallah and contiguous house has supported the prosecution version, no case stands registered against her earlier, TV, VCP and Cassettes belonging to her were illegally planted and these are not the case property and were brought to the police station without any case, whole of the prosecution story is false, Mst. Sajida had also insulted Munawar Hussain, P.W. And had abused him as he had a bad eye on her. She finally deposed that the prosecution witnesses are inimical to her and deposed falsely and none of the co-accused paid any money to her nor any amount was produced before the 1.0.
10. Same is the reply_ of Mst. Sajida under section 342, Cr.P.C. On 15-1-2004.
11. It is clearly stated in the F.I.R. That Munawar Hussain and Jumma Gul entered into the house of Mst. Sarwari an aged lady without any authority and the entire case has been made at the instance of Jumma Gul with the aid of Munawar Hussain.
12. At the time of arguments it was felt necessary that both Jumma Gul and Munawar Hussain should be summoned in the Court to explain B under what-law they have trespassed into the house of Mst. Sarwari and why they have violated the home privacy of this old lady.
13. In response to the notice they entered appearance and could not offer sufficient explanation. On the contrary the learned counsel for the appellants pointed out certain copies of the F.I.R s. On the record showing that Jumma Gul was complainant in all these cases and they relate to Hudood offences. According to the learned counsel Jumma Gul would implicate innocent persons and then would disappear resulting in the dismissal of the cases, this action of Jumma Gul was to extort money from the innocent people. These cases were confronted and Jumma Gul admitted that he was complainant in the criminal cases.
14. Munawar Hussain when confronted as to under what authority he and others had trespassed into the house and violated the home privacy, he. Kept mum with observation that he acted in response to the call of some Mohallandars. At this stage it is absolutely essential to state that no inhabitants of the locality came forward as P.W. To support the prosecution story and the entire evidence of the case mostly consists of Munawar Hussain P.W.4 and Jumma Gul P.W.3 with Najaf Abbas, S.-I. As P.W.9 who was the complainant in this case.
15. On the question of home privacy it has been held in Abdul Qayyum v. The State 1991 PCr.LJ 568 that, "house of a person under Islamic Law is a fortress. Sanctity of privacy of its inmates must be ensured at all costs". The basic law is ensured in Article 14 of the Constitution of Islamic Republic of Pakistan to the following effect:- "The dignity of man and, subject to law, the privacy of home, shall be inviolable."
16. There is a host of law that the home privacy is inviolable. Reliance is placed on Riaz v. S.H.O.
Police Station Jhang City and 2 others PLD 1988 Lah. Page 35, Khawaja Ahmad Tariq Rahim v.
Federation of Pakistan and another PLD 1991 Lah. Page 78 regarding taping of telephones and it is held that Article 14 guarantees that the dignity of a man and subject to law the privacy of home shall be inviolable.
17. It is absolutely unnecessary to refer to other P.Ws.
18. Both Jumma Gul and Munawar Hussain were asked to produce their identity cards as well as intimate the number of the respective house .Where they were living in Wards No,4 Chowk Azam.
They failed to do so stating that identity cards have not been issued to them nor they were able to give their respective residence house No, which is a clearly presumption that they were not living in Ward No,4 Chowk Azam where the occurrence had taken place. This proves that they were outsiders.
19. Both the aforementioned persons were arrested on 29-4-2004 to ensure their presence the case was adjourned to 19-5-2004 for further proceeding. Brig. (Retd.) Ali Ahmad a registered Advocate with this Court was asked to assist in this case.
20. Najaf Hussain, S.-I. P.W.9 frankly conceded in the cross-examination denying any permission to Jumma Gul and Munawar Hussain to trespass into the house of Mst. Sarwari. He deposed that, "It is correct that to enter in the house of a person is an offence. It is correct that where accused were produced before me, there are houses and shops. I have not cited any witness in challan from the place where the accused were produced before me".
21. When the case came up for final hearing on 19-5-2004, Mr. Saeed Yousaf Khan, Advocate appeared on behalf of Jumma Gul and Munawar Hussain, Mr. Shafqat Munir, Assistant Advocate- General with Mr. Rafaqat Ali, Advocate for State and Brig. (Retd.) Ali Ahmad, Advocate was asked to assist in this case.
22. A short order was passed on 29-4-2004 where the learned Assistant Advocate-General did not support the conviction order, dated 24-1-2004 of the learned Additional Sessions Judge, Layyah and the same was set aside and the appellants in this case were acquitted, even otherwise the impugned order was bad in law. It is for this reason that the appellants and their counsel are not present on the final hearing.
23. Brig. (Retd.) Ali Ahmad, learned Advocate took lot of pain and argued that the two informers, namely Jumma Gul and Munawar Hussain may be convicted as they are guilty of house trespass and thereby violated the home privacy which cannot be allowed at any cost under Injunctions of Qur'an and Sunnah. In this view, he has also recited certain Verses of Holy Qur'an. He was further of the view that the conduct of the foregoing two persons is such that they are perpetrators to cause harassm ent to innocent people fraudulently. He stated that the present case is one where the old lady has been subject to considerable mental agony and torture. According to him "imagine the situation where a house lady is in her house and all of a sudden the intruders namely Jumma Gul and Munawar Hussain trespassed into her house for inventing a false case".
24. Mst. Sarwari aged 50/60 was also present in the Court with a great mental tension and tears in her eyes.
25. Corning to the merits of the appeal it is not necessary to go deeper except to read the statement of the Lady Dr. And also the negative reports of the Chemical Examiner, dated 15-4-2003 proving unmistakably that offence of Zina has not been committed and the appellants have falsely implicated. It is for this reason that the Assistant Advocate-General did not support the impugned order and finally the same was the view of Brig. (Retd.) Ali Ahmad, Advocate.
26. After going through the evidence and the, record, I am of the view that the two innocent ladies' alongwith others have been falsely roped in and the trial Court shut his eyes to the most vital issues otherwise the impugned order could not have been passed.
27. Considering all the circumstances of the case, I have no discretion but to accept the joint appeal. The impugned judgment dated 24-1-2004 is set aside. Both the appellants are on bail and their surety bonds are discharged.
28. These are my reasoning in support of short order, dated 29-4-2004.
29. As far as Suo Motu Revision No,6/I of 2004 against the two persons namely Jumma Gul and Munawar Hussain is concerned, their counsel did not appear in the morning but after some time he submitted two applications, one on behalf of Jumma Gul and the other on behalf of Munawar Hussain admitting their guilt and at the same time tendered unqualified apology that in future they will not repeat such-like offence as has happened in the present case. These applications are on record marked as "A" and "B" and also signed by the learned counsel Mr. M. Saeed Yousaf Khan, Advocate who orally undertook to prevail upon his clients not to enter into such-like illegality as has committed by them. The applicants have further undertaken to furnish sureties in this regard.
30. I have considered the matter and am of the opinion that Jumma Gul and Munawar Hussain should furnish surety bonds for good behaviour in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. They shall also file surety bonds before the Illaqa Magistrate as well as before the S.H.O. Police Station Chowk Azam.
31. Jumma Gul states that he has 9 children and if convicted, his whole family will be subjected to starvation. Similar plea is advanced by Munawar Hussain.
32. In view of the above undertaking I am inclined to discharge suolJ motu notice against Jumma Gul and Munawar Hussain.
33. The. S.H.O. Police Station Chowk Azam will approach the aforementioned two ladies to console them with an assurance that they will not be subjected to any harassment in future and intimation to this effect shall be filed in writing in this learned Court.
Appeal accepted.
2004 P Cr. L J 1385 [Karachi] before Zahid Kurban Alvi, J SAJJAN---Applicant versus THE STATE---Respondent Crl. Bail Application No,507 of,2003, decided on 20th October, 2003.
Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Penal Code (XLV of 1860), Ss.324/34---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Further inquiry---Names of accused were not mentioned in F.I.R. Nor description of their features or their stature was given---Accused had not been identified and their identification test took place two months after incident---Alleged identification of accused was based on flashing of torch light which was a weak form of identification---Co-accused had been granted bail---Case against accused being of further inquiry, they were admitted to bail. [pp. 1387, 1388] A & B Muhammad Akbar v. The State 1983 PCr.LJ 1677; Ayoob v. The State 1994 PCr.LJ 1057; Hussain Ahmed v. The State 1996 PCr.LJ 130; Gulab v. The State 1974 PCr.LJ 74; Liaquat Ali v. The State 1986 PCr.LJ 2317; Shafique Ahmed v. The State 2002 PCr.LJ 518; Riaz v. The State 1998 PCr.LJ 1613 and Abdul Khalique v.
The State 1996 SCM R 1553 ref. Assardass D. Hemnane for Applicant. Ubedullah Malano for the Complainant. Mumtaz Ali Siddiqui for the State. Date of hearing: 20th October, 2003:
' This is a bail application in connection with Crime No,23 of 2002 registered at Police Station, Mirpur Mathelo for offence under sections 302, 324, 34, P.P.C. And 7 A.T.A. The incident seems to have occurred on 22-2-2002 at 0300 hours. The F.I.R. Was registered at 8-15 hours. It seems that the complainant with his sons and brother live in one house. At about 3 O'Clock late night and early morning there was a sound at the door and they saw thieves. In the commotion that took place the thieves ran. The complainant flashed his torch and in the light of the torch he saw that there were three thieves. One had K.K. And the other had hatchet and the third had Lathi. In the commotion the neighbour also came. They followed the thieves and when they got close enough, one person fired from K.K. It hit Arab and Manzoor. The complainant took Arab and Manzoor to the hospital thereafter the F.I.R. Was registered that three people who were seen on the torch light had committed the offence.
2. The accused were arrested and I.D. Test took place. Thereafter the challan was submitted. The bail application was moved before the Sessions Court, Ghotki who dismissed the same.
3. This bail application has been preferred on several grounds including the existing of enmity between two tribes. It has further been stated that the co-accused Saodoro and Abdul Hameed have been granted bail by the Sessions Court on 26-2-2003. It has also been urged that there is no mention of the names of the persons in the F.I.R. And no description (physical) has been given about the three accused. The I.D. Test took place two months after the incident. Furthermore the Magistrate conducting the I.D. Has not attested the certificate of I.D. Memo. As contemplated in the High Court Rules. Furthermore the I.D. Memo. Does not show. That the dummies were of the same structure, social status and similar dress. The applicant was seen on torch light and it is a weak form of identification. 161, Cr.P.C. Statements have been recorded after five weeks of the incident even though one witness is the brother of complainant and the other witness is a neighbour.
Learned counsel for the applicant has relied on the following case-law:--
4. In the case of Muhammad Akbar v. The State 1983 PCr.LJ 1677, it was held that reliance on circumstantial evidence so as to connect the offence with the accused and there being no direct evidence available the case would fall under further enquiry. It is a well-settled principle that if there is no direct evidence then bail has to be granted.
5. In the case of Ayoob v. The State 1994 PCr.LJ 1057, it was observed that identification by torch light was not a sufficient piece of evidence. It was also observed that identification by voice was also doubtful.
6. In the case of Hussain Ahmed v. The State 1996 PCr.LJ 130, it was observed that statement recorded under section 161, Cr.P.C. In fvaor of prosecution with the delay of 48 hours after the occurrence becomes doubtful and -is out of consideration being the outcome of deliberations.
7. In the case of Gulab v. The State 1974 PCr.LJ 74, it was held, that there was no description of the accused in the F.I.R. And I.D. Test held 14 days after arrest of the accused. It was not good enough to establish I.D. Of accused.
8. In the case of Liaquat Ali v. The State 1986 PCr.LJ 2317, it was held that name of accused did not appear in F.I.R. And the only evidence available against accused was I.D. Test which was occurred 34 days after occurrence and witnesses claimed to have seen culprits in moon-light. It was a case for further enquiry and bail was granted..
9 . In the case of Shafique Ahmed v. The State 2002 PCr.LJ 518, it was observed that accused as not nominated in the F.I.R. And nothing incriminating was recovered. I.D. Test was therefore, a hollow formality devoid of any legal sanctity being in violation of prescribed rules and procedure. The I.D.
Test was held one month after the occurrence and third day of the arrest. In this the Single Judge has dwelt at length on Qanun-e-Shahadat Article 22, High Court Rules and Orders Volume III, Chapter II-C Police Rules, 1934, R.26.32.
10. In the case of Riaz v. The State 1998 PCr.LJ 1613, the I.D. Was done on the basis of an alleged eye- witness to the incident. However, the witness was closely related to deceased, hence the evidence of the witness could be said to be interested and therefore, could not be relied upon. The alleged eye-witness neither could establish their presence at the scene occurrence nor could give description of features, age or Stature of accused in their statement before police as well as before Magistrate, despite the fact they claimed that they had actually seen the offence.
11. In the case of Abdul Khalique v. The State 1996 SCM R 1553, it was held that late recording of statement under section 161, Cr.P.C. Reduces its value to nil unless delay is plausibly explained.
12. I have heard both the learned counsel' for the applicant and the State. I have gone through the facts of the case and I have also reproduced above the various case-laws relied upon by the counsel for the applicant. It is an admitted fact as per the plain reading of the F.1.R. That the thieves have not been identified. There is no description of their features or their stature. It is an admitted position that the alleged identification, is based on the flashing of the torch-light and it is a night time incident.
13. The accused was arrested from his Otaq at 10-00 a.m. And was put before an I.D. Parade at 1-00 p.m. The distance between the Otaq and the P.S. Is said to be about 14/15 Kms. Thereafter, the accused must have been brought before the necessary competent authority so that the formalities of I.D. Parade could be done. The entire exercise seems a little difficult to have been conducted and finished within a span of three hours. Furthermore, the entire evidence is based on the flashing of a torch-light. It would be interesting to note that the F.I.R. Talks of a commotion with the result that the thieves started running. When thieves run and people are chasing them in the pitch dark of the night and those who are chasing the persons use a flash light logically that flash light would move with the rhythm of the person who is running and since the person who is being chased is also running then his back would be towards the persons who are chasing rather than his front side. To use the word commotion again it would be difficult to appreciate that in the high speed activity that resulted in the thieves running and the complainant party chasing them and thereafter one person using his K.K. To shoot at those people, who are chasing him, it would a little difficult to take the word of the complainant that he had seen the faces of the thieves and would be able to identify them on seeing them again. The commotion that is created through the process of running by itself makes the light move in all different directions and therefore, reliance on this type of identification would be fool hardy.
14. Under the circumstances, as it is a clear-cut case of further enquiry, bail is granted in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.