2005 PLP 1936 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Listed petitions for leave to appeal have been filed against the judgment of Lahore High Court Multan Bench, Multan, dated 3-3-2005 passed in Criminal Appeals Nos.60 to 63, 65 and 66 of 2002.

2. Precisely stating facts of the case are that an occurrence took place on 22nd June, 2002 in the area of Mauza Meerwala District Muzaffargarh, situated at a distance of 13 kilometers from the Police Station Jatoi towards South. Matter was reported to the S.H.O. Police Station Jatoi on 30th June, 2002 at 7-30 a.m. He recorded statement of Mst. Mukhtiar Mai on the basis of which formal F.I.R. was recorded. Prosecution story as narrated by petitioner Mst. Mukhtar Mai in the complaint (Exh.P.1) is that on 22nd June, 2002 her brother Abdul Shakoor was suspected of having illicit liaison with Mst. Naseem daughter of Imam Bakhsh resident of the same village. To resolve the dispute a Punchayat (meeting) was convened on that very day. Muhammad Ramzan son of Karim Bakhsh, Ghulam Farid son of Mahmood, Faiz Bakhsh Khan son of Sher Muhammad were appointed as Arbitrators on behalf of Abdul Khaliq (accused) whereas Maulvi Abdul Razzaq son of Bahadur, Manzoor Hussain son of Noor Muhammad were appointed as Arbitrator on behalf of Ghulam Farid-father of complainant. The Arbitrators of both the sides proposed that Mst. Naseem should be wedded to Abdul Shakoor son of Ghulam Farid and likewise Mukhtar Mai be married to the son of Imam Bakhsh. But Abdul Khaliq, Muhammad Ramzan and Ghulam Farid opposed the proposal and allegedly demanded that they would commit Zina with Mukhtar Mai with a view to equalize the incident and then they would compromise the matter. The demand was opposed by the members of the Punchayat. On this some of the respectable persons namely Maulvi Abdul Razzaq and Manzoor Hussain left the Punchayat. Thereafter on coercion and pressure of accused party complainant-Mukhtar Mai was brought to the Punchayat by her maternal-uncle Sabir Hussain to pray for forgiveness according to the customs of Baloch. Later on she was caught hold by Abdul Khaliq from her right hand which she got released by force. Faiz Bakhsh also sought forgiveness for Ghulam Farid, but she was taken into a nearby Kotha forcibly by the accused persons namely Abdul Khaliq, being armed with .30 bore pistol, Allah Ditta (both sons of Imam Bakhsh), Fayyaz Hussain son of Karim Bakhsh and Ghulam Farid son of Mahmood and was subjected to Zina-bil-Jabr by all the four persons turn by turn during course of which complainant-Mukhtar Mai remained crying. Later on she came out of the said Kotha in a nude condition and called her father Ghulam Farid. Statedly the incident was witnessed by Ghulam Nabi son of Bahar Khan and Altaf Hussain son of Bahadur Ali as well as her father. After recording of statement of complainant-Mukhtar Mai, F.I.R. was recorded at 8-00 a.m. on 30th June, 2002 at Police Station Jatoi. On completion of investigations accused were arrested and sent up to face trial. As they did not plead guilty to the charge, thus, prosecution led evidence to substantiate accusation by producing as many as 17 P.Ws. On completion of trial learned Judge, Anti-Terrorism Court, Dera Ghazi Khan convicted/sentenced them as follows:-- Under section 7(c) Abdul Khaliq, Allah Ditta, Life imprisonment with read with section Muhammad Fiaz, Ghulam fine of Rs.20,000 each and 21(1) A.T.A., 1997 Farid, Ramzan Pachar and in default whereof to and 149/109, P.P.C. Faiz Muhammad further undergo six months' R.I. each. Under section 11 of Abdul Khaliq, Allah Ditta, Life imprisonment plus 30 Offence of Zina Ghulam Farid and Muhammad stripes each with fine of (Enforcement of Faiz Rs.20,000 each and in Hudood) Ordinance, default whereof to further 1979 read with undergo six months' R.I. section 149, P.P.C. each. Under section 10(4) Abdul Khaliq, Allah Ditta, Sentence of death. of Zina (Enforcement Ghulam Farid and Muhammad of Hudood) Faiz Ordinance, 1979 read With section 149, P.P.C. Under section 11 of Ramzan Pachar and Faiz Life imprisonment plus 30 Zina (Enforcement of Muhammad stripes each with fine of Hudood) Ordinance, Rs.20,000 each and in 1979 read with default whereof to further section 21(1) of undergo six months' R.I. A.T.A. and sections each. 109/149, P.P.C. Under section 10(4) Muhammad Ramzan Pachar Sentence of death. of Zina (Enforcement and Faiz Muhammad of Hudood) Ordinance, 1979 read with section 21(1) of A.T.A. and sections 109/149, P.P.C. Above convicts, however, were acquitted from the charge under section 354-A, Cr.P.C., whereas, remaining accused namely Muhammad Aslam Allah Ditta son of Jan Muhammad, Khalil Ahmad, Ghulam Hussain, Nazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were found not guilty for all the charges.

3. Learned High Court in appeal, vide impugned judgment dated 3rd March, 2005 concluded as under: (i) Sentence of Abdul Khaliq appellant is covered by section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to "Ordinance, 1979), as gang rape is not proved under section 10(4) of the Ordinance, 1979. He is sentenced to 25 years' R.I. The sentence of fine awarded by the learned trial Court is maintained. Benefit of section 382-B, Cr.P.C. was also extended to him. However, he was acquitted of the charge under section 11 of the Ordinance, 1979 and 7(c) read with section 21(1) of the Anti-Terrorism Act, 1997 and 149/109, P.P.C. (ii) All other convicts were acquitted on setting aside the sentences awarded to them by the trial Court. (iii) Appeal filed by the complainant and the State to challenge the acquittal of some of the accused mentioned above was also dismissed.

4. Learned Attorney-General who was asked to assist the Court, hearing of the petitions, particularly in view of question, which has arisen relating to jurisdiction of the High Court and Federal Shariat as appeals have arisen out of the judgment passed by the Anti-Terrorism Court during Court under section 10(4) of the Ordinance, 1979. It may be noted that State as well as complainant in memo. Of their respective petitions for leave to appeal had also highlighted the jurisdictional question of the learned High Court as well as learned Shariat Court.

5. Learned Attorney-General categorically contended that as the original judgment was passed by the Anti-Terrorism Court, therefore, appeal under section 27-A of the Anti-Terrorism Act, 1997 was competent before the High Court.

6. From the arguments so raised by him, following questions emerge for consideration: (i) Was the case competently brought before the Anti-Terrorism Court? (ii) Could Anti-Terrorism Court try offences other than the A E scheduled offences, which may otherwise fall exclusively in the domain of other Courts? (iii) Were the appeals of the convicts before the High Court competent? (iv) Could the Federal Shariat Court under Article 203-DD of the Constitution interfere in the appellate order of the High Court?

7. When called upon to address arguments on merits he stated that impugned judgment is indefensible for the following reasons:-- (a) Delay in lodging F.I.R. constitute no ground for acquittal of accused particularly in the cases pertaining to rape/gang rape, in view of the social conditions of society. (Harpal Singh v. State of Himachal Pradesh AIR 1981 SC 361, Mst. Nasreen v. Fayya7 Khan PLD 1991 SC 412, Muhammad Abbas v. State PLD 2003 SC 863). (b) Sole testimony of a victim in rape/gang rape cases is sufficient for the purposes of conviction. Mst. Nasreen (ibid), Shahzad alias Shaddu v. State 2002 SCMR 1009, Muhammad Abbas (ibid). (c) Marks of injuries on the person of prosecutrix are not necessary to secure conviction of an accused, where there is allegation of gange rape. Shahzad alias Shaddu (ibid). (d) Expert evidence is of confirmatory nature, therefore, non-obtaining report of expert, to ascertain as to whether clothes of the victim were stained with semen, is not fatal to the prosecution's case. Muhammad Abbas (ibid). (c) Impugned judgment has proceeded mainly on conjectural consideration as is evident from perusal of the impugned judgment.

8. He also pointed out that there are so many other questions, which are required to be examined in depth if leave is granted to the State. It was also prayed by him that in presence of overwhelming, direct and indirect incriminating evidence, the respondents have been acquitted of the charge, therefore, he prayed for suspension of their acquittal, in exercise of powers under Order XXXIII, Rule 9 of the Supreme Court Rules, 1980.

9. Learned Advocate-General (Punjab) adopted the arguments advanced by the Attorney-General for Pakistan. However, he added that considerations prevailed upon the learned High Court are not sufficient to sustain the judgment.

10. Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court also appeared on behalf of the State and contended that: (i) Learned High Court had no jurisdiction to accept the appeal filed by respondents under section 27-A of the Anti-Terrorism Act, 1997, in view of the provisions of Article 203-DD of the Constitution read with section 20 of the Ordinance, 1979. (ii) The evidence produced by the prosecution has not been appraised by the learned High Court, at the touchstone of the principles pronounced by this Court, from time to time, for the safe administration of justice in criminal cases, as the evidence of prosecutrix and other witnesses has been disbelieved on the basis of technicalities, rendering the impugned judgment not tenable in the eye of law.

11. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court for the complainant argued that: (i) The evidence produced by the prosecution to establish guilt had not been appreciated by the learned High Court in its real perspective due to which serious injustice has been caused to the complainant, who was not only gang raped by four persons but she was also forced to parade without clothes in presence of her close relatives i.e. father, uncles and the members of the Punchayat. On the role of Punchayat, he stated that they had also facilitated the commission of the offence. (ii) The conclusion drawn by the learned High Court is not tenable, thus, cannot sustain in the eye of law. (iii) The prosecution had proved the act of terrorism/gang rape by the respondents i.e. Abdul Khaliq, etc. with the assistance of others, therefore, following observation from the judgment goes to show that the appeal has not been disposed of according to facts on record:-- "Hence we are satisfied that the allegation of committing sexual intercourse with the complainant (P.W.14) is only proved against Abdul Khaliq appellant, which is covered by section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Since the allegation of gang rape is not proved, his conviction under section 10(4) is converted to 10(3) of the Offence of Zina (Enforcement of 'Hudood) Ordinance, 1979 and he is sentenced to 25 years' R.I. However, the sentence of fine awarded by the learned trial Court is maintained and he shall be given the benefit of section 382-B, Cr.P.C. So far as his conviction under sections. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 7(c) read with section 21(1), A.T.A., 1997 and 149/109, P.P.C. is concerned, it is admitted fact that there was no purpose of the said appellant to abduct the complainant, who according to the allegation itself, was taken to a few paces and then returned immediately after commission of sexual intercourse. Moreover, the act of Abdul Khaliq appellant was not to intimidate and overawe the community and to create a sense of fear and insecurity in society as in spite of commission of the said occurrence none had reported the matter to the police for about nine days. Therefore, Abdul Khaliq appellant is acquitted of the charges under sections 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 7(c) read with section 21(1), A.T.A., 1997 and 149/109, P.P.C. Criminal Appeal No.60 of 2002 to his extent stands disposed of and impugned judgment of conviction and sentence is set aside."

12. Learned counsel appearing for accused contended that: (i) Learned High Court had jurisdiction to dispose of appeal as the respondents were allegedly charged for the gang rape as well as for the offence under section 7(c) read with 21(1) of the Anti-Terrorism Act, 1997 and the Federal Shariat Court had no jurisdiction to entertain the appeals filed by the convicts. (ii) The petitioner Abdul Khaliq has been convicted contrary to evidence available on record. Story put forward by the prosecutrix Mst. Mukhtar Mai is full of improbabilities, therefore, he was entitled for the acquittal from the charge under section 10(3) of the Ordinance, 1979 as well. (iii) Learned High Court had not believed the same set of evidence against the remaining accused persons but without seeking any corroboration, it has been believed against the petitioner, contrary to the principles of consistency. Similarly, against the remaining respondents, no evidence is available, therefore, High Court on having evaluated the same rightly acquitted them of the charge. (iv) As now there is double presumption of innocence in their favour, as such acquittal order may not be interfered with, unless the case is made out in view of the principle laid down in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11.

13. We have heard learned counsel for the parties and have also gone through the relevant record carefully. Leave to appeal is granted in B all the petitions, inter alia, to examine contentions of parties' counsel noted above. Keeping in view the facts and circumstances of the case, operation of the impugned judgment of Lahore High Court, Multan Bench dated 3rd March, 2005 is suspended. Non-bailable warrants of arrest of the respondents in Criminal Petitions Nos.96 to 99, 114 to 116 and 161 of 2005, except Abdul Khaliq, who is already in custody, be issued. Inspector-General Police, Punjab is directed to cause their arrest and keep them in judicial custody pending final disposal of the appeals. They shall be treated as under-trial prisoners. N.H.Q./S-130/S Leave to appeal granted.