S B L R 2007 FSC 7

[Federal Shariat Court]
(Appellate Jurisdiction)

Present: Haziqul Khairi, CJ. & Dr. Fida Muhammad Khan, J.

Ali Ahmed & another---Appellants

versus

The State---Respondent

Criminal Appeal No.274/4 of 2005, decided on 6th October, 2006.

A) Criminal Procedure Code, 1998 Section---342---Joint Examination, effect of---eight accused were recorded their statement jointly where they denied the allegations against them---held that Session court had acted with gross illegality, Judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C. which requires examination of an accused person separately and independent.[P-10]A.

B) The offence of Zina (Enforcement of Hudood) Ordinance, 1979---Section---11---10(3)---Conviction, set aside---observed that court below committed gross illegality---there are number of loopholes in the prosecution case---medical report shows that victims were habitual to sexual intercourse---held in these circumstances conviction can not be maintained---conviction set aside---appeal allowed.[P-12]B.

Mr. C.M. Sarwar, Advocate for the Appellants.

Mr. Muhammad Shaair Janjua, Advocate for the State.

Date of Hearing: 26th September 2006.

JUDGMENT

HAZIQUL KHAIRI, CHIEF JUSTICE.- This appeal is directed against the judgment dated 30.7.2005, passed by the learned Additional Sessions Judge, Burewala whereby appellants Ali Ahmed and Ali Sher, sons of Lal Din were convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as “the said Ordinance”) and sentenced to undergo imprisonment for life R.I. each Both the appellants were also convicted under section 10(3) of “ the said Ordinance” and sentenced to undergo ten years R.I.. each. Both the appellants were also extended benefit under section 382-B Cr.P.C.

2. Briefly, facts of the case are that on 26.5.2001 complainant Sajjad Hussain Shah lodged written complaint, Ex.PA, at Police Station Gago and in consequence whereof FIR No.200/2001, Exh.PA/1, was registered on 6.7.2001 which states as under:-

“I am Clerk Advocate My father is residing in Chak No.361/EB since long and he is a labourer. In the intervening night 24/4/2001, accused persons namely Ghulam Rasul, Muhammad Aslam alias Gogi, Muhammad Rafique, Ali Ahmed Sher Muhammad with each other, at about 10.00 came to village Boota who are relatives to each other in connivance/of my father. At that time Muhammad Rafique was armed with rifle G-3, Ali Ahmed with Kalashinkov, Ali Sher Muhammad Boota, Muhammad Aslam alias Gogi alongwith two other persons and Ghulam Rasul were armed with rifle 222-bore. Ali sher and Muhammad Boota were armed with guns double barrel. In the same night, bulb of mosque was broken and at about 2 ½ a.m. (night) after trespassing the house of him, entered in the house and they forcibly abducted my two daughters namely Mst. Saima and Mst. Sumera. When I came back from Lahore then I started their search. On 4.5.2001, my daughters came to me who narrated about the occurrence and told about the aforementioned accused persons. I moved a writ petition No.4175 before Hon’ble High Court, wherein it was directed that the SSP would make the inquiry. SSP made the inquiry on my application on 21.5.2001. I am a respectable citizen. My daughters are virgins and no body has seen them till today, Accused be dealt with in accordance with law”.

3. After completion of investigation challan was submitted in the Court where after charge against all the accused persons was framed on 8.1.2003 to which they pleaded not guilty and claimed trial.

4. The prosecution examined eight witnesses. PW.1 Dr. Atta Muhammad Zafar conducted potency test of appellant Ali Ahmed and found him fit to perform sexual intercourse. PW.2 Muhammad Rafie, Head Constable No.109 on receipt of two sealed parcels from S.H.O Kept in the Malkhana and on 27.11.2001 handed over the same to Parvez Akhtar, Constable NO.792 for onward transmission to the Office of the Chemical Examiner, Multan PW.3 Pervez Akhtar, Constable No.792 delivered two sealed parcels in the Office of the Chemical Examiner , Multan. PW.4 Mst. Sumera Bibi reiterated contents of her father’s complaint, Ex.PA. She further deposed that the accused persons forcibly boarded them in a car in which appellants Ali Sher and Ali Ahmed, were boarded with them. They took them to Misri Shah, Lahore where they confined them in a room all and the accused persons turn-by-turn committed zina-bil-jabr with them. They were confined for eight days and they were subjected to zina bil-jabr during night whereas they (victims) were being intoxicated during day time so that they may sleep the whole day. She stated that one day the door was opened, they fled away from Lahore and came to their parents house at Chak No.361/EB. PW.5 Mst. Saima Bibi supported her sister’s deposition. PW.6 Sajjad Hussain Shah, complainant reiterated the contents of his written complaint, Ex.PA. PW.7 Dr. Afia Naz Alam conducted medical examination of Mst. Sumera and Mst. Saima. According to her opinion both (victims) were habitual to sexual intercourse. PW.8 Ghulam Mustafa, Inspector/SHO, I.O. of the case stated that on 6.7.2001 he received report from S.P, Vehari alongwith the statement of Sajjad Hussain, complainant. According to inquiry report, only Ali Ahmed, appellant was found guilty for the abduction of Mst. Sumera and Saima. He recorded the formal FIR, Ex.PA/1 and inspected the place of occurrence and prepared rough site plan, Ex.PJ. He recorded statements of PWs. under section 161 Cr.P.C. and on 22.7.2001 arrested appellant Ali Ahmed. The prosecution also examined CW.1 Akbar Ali, DSP who deposed that on 14.11.2001, S.P, Vehari entrusted investigation of this case to him. After his investigation, he opined Ali Ahmed, appellant guilty and others accused innocent.

5. On 29.6.2005, statements of accused persons were recorded under section 342 Cr.P.C wherein they denied the allegations leveled against them. Before I take up their statements it would be advantageous to refer to its significance under section 342 Cr.P.C. The Supreme Court of Pakistan in the case of S.A.K. Rehmani Vs. The State reported in 2005 SCMR 364 has observed:-

“There is no cavil with the proposition that “Section 342 Cr.P.C. can be bifurcated into to parts. Subsection (1) of Section 342 Cr.P.C. confers discretion to the Court while its second part is mandatory and besides that the section revolves around the maxim audi alteram partem i.e. that no one should be condemned unheard.” AIR 1940 Nag. 283, 41 Cri.LJour 585, AIR 1957 Mys.9 ILR 1956 Mys. 114, 1957 Cri.LJour 208, AIR 1936 Pesh. 211, AIR 1937 Pesh. 20, 38 Cri. Jour 387, AIR 1935 Cal. 605, AIR 1936 Oudh 16,36 Cri.L Jour 1303, AIR 1934 Oudh 457. “The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth and it constantly happens that the accused’s explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no explanation or a false or unsatisfactory explanation is given”.

6. Now all the eight accused persons namely Ali Ahmed (appellant), Ali Sher (appellant), Muhammad Suleman, Muhammad Riaz, Muhammad Rafique, Muhammad Boota, Muhammad Aslam and Ghulam Rasul in reply to questions asked by the learned Sessions Judge came out with exactly the same reply alongwith the contentions raised by them against the prosecution. In short the questions asked by him and reply given by all the accused persons were verbatim the same leading to irrebutable conclusion that the trial Court had acted with gross illegality, judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C, which requires examination of an accused person separately and independently. I am fortified in my view by the case of Muhammad Aslam Vs. The Crown reported in 1969 P.Cr.L.J. 1178 wherein it was held that “if there are more than one accused each and every accused shall be examined separately. Short cut procedure would amount to flagrant violation of the provision of law”. In the case of Afzal Khan and 4 others Vs. The State reported in 1997 P.Cr.L.J. 1416 “Joint examination of several accused under section 342 Cr.P.C. is allegal and vitiates the whole trial .” In the case of A.M. Nur Main Vs. Mokhlesur Rehman Almansuri reported in PLD 1967 Dacca 503 it was held that a written statement by the accused cannot anticipate the requirement of the Court, and therefore, cannot be deemed to be a substitute for examination under section 342 Cr.P.C.

7. We have heard Mr. C.M. Sarwar, learned counsel for the appellants, Mr. Muhammad Sharif Janjua, learned Counsel for the State and have also perused record minutely with their assistance.

8. Learned counsel for the appellants brought to our notice a number of grounds on which conviction and sentence the appellant may be set aside. It was urged by him that there was delay of three months in lodging F.I.R., for which there is no explanation on record. According to CW.1 Akbar Ali, DSP Headquarters, Lodhran he was entrusted the investigation of the case and he found only Ali Ahmed, appellant, guilty and other innocent. In cross-examination he stated that Mst. Sumera Bibi had illicit relations with Moulvi Ghulam Farid, the Imam of the Mosque of the village. There was no abduction as alleged in F.I.R. Both Mst. Sumera and Mst. Samina went to Lahore at their own with Ali Ahmed appellant. The matter was reported to Punchayat’. Its members Muhammad Akram, an Ex. Counciler and Muhammad Riaz Mohl took Mst. Sumera from Lahore and dropped her to Chak No. 361/EB and later on handed over to her grand-father Babar Hissain Shah. Neither of the alleged abductees ever reached Chak No.361/EB at their own and ever visited Pakpattan. It also came to his Knowledge that the grand-father of the girls Babar Hussain Shah refused to register the case against any person because he believed that his grand-daughters were at fault. Accorfing to PW.7 Dr. Afia Alam, WHO, who conducted medical examination of Mst.Sumera Bibi and Mst. Samina in her report had stated that there were no mark of violence or injustice on their external examination. There were no strains on vulva, their hymens were torn and healed and their vagina admitted two fingers easily. The swabs were stained with semen. They were habitual to sexual intercourse. It was stated by the learned counsel for the appellants that swabs were sent to Chemical Examiner after six months, which could only remain intact for 17 days only. Neither the grand-father nor ‘Khala’ of the alleged victims nor independent witnesses were produced by prosecution. Except Ali Ahmed, appellant all the others seven accused were seclared innocent by the police.

9. Thus gross illegality was committed by the learned trial court while proceeding under section 342 Cr.P.C. There are a number of loopholes in the prosecution case as well which leave us with no option but to set aside the conviction passed and sentences given to the appellants by the learned Additional Sessions Judge, Burewala. Resultantly the appeal is accepted with the direction to jail authorities to forthwith release both the appellant, namely Ali Sher and Ali Ahmed unless they are required in some others criminal case.

Order accordingly.