1997 P Cr (PLP)

Aggrieved by and dissatisfied with the impugned judgment, dated 23-7-1995 passed by the learned Sessions Judge, Sheikhupura whereby he convicted and sentenced Mst. Zarina and Nazar Masih, the convict Mst. Zarina has preferred this appeal against her conviction under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentence to be suffered by her for 4 years' R.I., whipping 30 stripes in number and fine of Rs.2,000 (in lieu thereof 6 months' R.I.).

2. The prosecution case in brief is that Saif Ullah (complainant) lodged a report under section 154, Cr.P.C. with one Umer Farooq, A.S.-I. on 12-7-1992 at 10-00 a.m., which was incorporated into an F.I.R. No.217/92 registered at Police Station Dogran, District Sheikhupura at 11-15 hours under sections 10 and 7 of the said Ordinance. It was alleged therein that Mst. Zarina Bibi (appellant) and co-accused Nazir Masih (a Christian) were known to the public for having illicit relations and committing Zina with each other. It was 12-7-1979 at about 9-00 a.m. when he alongwith Muhammad Mansha (now the husband of Mst. Zarina Bibi), Muhammad Aslam, Gulzar Ahmad and Muhammad Amir saw both the accused going towards a place known as Ronda Dhengar bath. They chased them secretly. When both the accused reached a place towards south of Bakha Masih (brother of co-accused) they started watching them from behind a wall. Both the accused became naked and started committing Zina which they saw with their own eyes. Hence both of them were apprehended. They were allowed to take on their Shalwars and were brought to A.S.I. Muhammad Umar Farooq the F.I.R. drafted by the A.S.-I. can be termed as hot F. I. R. on account of its words used in it:-- "After usual investigation, both the accused were challaned and tried on account of their pleading not guilty by the learned Sessions Judge, Sheikhupura who then convicted and sentenced them as embodied in para. l above."

3. Prosecution examined 11 witnesses in all out of which five were named in the F.I.R. including the complainant. Except Muhammad Aslam, rest of the four i.e. Muhammad Amin, Gulzar Ahmad, Muhammad Mansha and even the complainant Saifullah were declared hostile. Much more interesting aspect of the case is that Muhammad Mansha married the appellant and is looking after this case while the statement of Muhammad Aslam (P.W.1) has very important pieces of evidence out of which few are reproduced as under:-- "(i)??????? Nazir Masih accused was ahead of Mst. Zarina and went to a house which was in dilapidated condition where Nazir and Zarina were found committing Zina with each other. I, Saif, Gulzar and Mansha P.Ws. caught them red-handed. (Examination-in-Chief)." The learned trial Judge has also observed in para. 19 of the judgment that: "Both accused entered into a house which belongs to Nazir's brother." The statement of the P.W. and this part of the judgment written by the learned Sessions Judge do not support the prosecution story as painted in the F.I.R. with reference to the alleged reputation of the accused, chasing by them, hiding behind a wall etc. besides this reality that the said statement becomes totally unbelievable if judged in the light of site plan prepared by the Investigating Officer. A.S.I. Muhammad Umar Farooq (P.W.11). The place of incident has been shown on the eastern side of a house belonging to Bakhsha Masih brother of co-accused, which contains a window on that side and which is an open plot while the learned Sessions Judge has used the words "entered into a house" as quoted above. The said house has also open plot on the northern side, fields on the western side and graveyard on the southern side. It cannot be believed that the appellant and co-accused would like to commit Zina on an open plot when there are fields available on the eastern side of the said house. (ii) ?????? This P.W. also stated in cross-examination that:-- "The house of brother of the accused is situated in seclusion. We were at a distance of five to seven feet. The accused took half an hour there. We had been watching the accused for a considerable period and we reprimanded them to desist from this act but they did not pay an heed to it" (cross-examination). Can such a statement be believed by any sensible person that five Muslims remained watching the scene of "committing Zina" by a Christian with a Muslim lady for about half an hour from a distance of five to seven feet and accused person did not pay any heed when they were desisted by the eye-witnesses? And then one of the eye-witnesses gets himself married with the said accused lady (i.e. appellant)! (iii) The discredibility of this witness does not end here because he exposed himself in cross-examination which exposure has come to light on account of the following lines:-- "We handed over the accused to the police at 10-00 a.m. Again says that we informed the police that accused were in our custody." This piece of deposition neither corroborates with the contents of F.I.R, nor with the statement of the Investigating Officer. The summary of F.I.R. has been produced in para. 2 while the statement of Investigating Officer with reference to this aspect would be discussed in the forthcoming paragraphs.

4. The excesses observed in this case do not end here because the police has tried to prove that these areas alongwith the poor families and members of minorities are their fief. The occurrence is stated to have taken place at 9-00 hours on 12-11-1992. The appellant is kept in the police station till next day and is sent for medical examination on 13-7-1992 at 13-30 hours i.e. after about 26 hours. Why the appellant was not sent for immediate medical examination? What had been with her during these 26 hours by the officials? At least, it can be said with certainty that she must not have been provided bed of roses to have a sound sleep with co-accused. She must have gone for her ease due to call of nature. This important aspect appears to have been realised by the Chemical Examiner as can be guessed from the following words:-- "The above swabs are stained with semen. One swab is being sent to Serologist to Government of the Punjab for semen grouping." (Underlining is my own). The result of the Serologist was never produced in the evidence in spite of the reality that the Chemical Examiner had sent the swab to him as per report dated 4-8-1992. Admittedly, the Investigating Officer was examined on 12-7-1995. Every sensible person can realize that these three years were more than sufficient to get that report. Similarly it is surprising for me to note that neither the police nor the witness took the Shalwars or any other cloth of the accused which could not be free from the stains of semen of the accused if they had taken half an hour, to complete that offence and they were asked to put on those Shalwars at the spot without giving them any chance to go anywhere else and particularly in the circumstances as narrated in the Murasala incorporated into an F.I.R. Rest of the witnesses namely Dr. Basharat (P.W.6). Dr. Khalid Mahmood (P.W.7), Abdul Munaf H.C. 609 (P.W.8). Mushtaq Abid, Constable No.672 (P.W.9) and Irshad Ali, Constable No.970 (P.W.10) need not to be discussed as most of them are formal and thus they were not cross-examined by the defence.

5. Come to the deposition of Investigating Officer. It is very important deposition because it exposes the Investigating Officer of the case as well as the witnesses. The Investigating Officer stated in his cross-examination as under:-- "I was on Moharram duty and watching the Moharram procession. It was 10th of Moharram. Saifullah complainant came to me. Saifullah produced Mst. Zarina Bibi and Nazir Masih before me who are present in the Court today." If the said Investigating Officer was on Moharram Duty on 10th of Moharram and the accused had been produced there with this story, the people would have killed them on account of their religious feelings on that day after hearing the story notwithstanding that the story was concocted or full of truth because, although every sensible person hates this attitude of the society, yet it was never stopped by our religious divines. Moreover there is no mention of any name of any other witness in examination-in-chief of the Investigating Officer. This story also does not corroborate with the contents of the Murasala, which is claimed to have been drafted at the spot. In cross-examination the Investigating Officer stated as under "The accused were produced before me at the road where I was present on Moharram duty at 10-00 a. m. I recorded the statement of Saifullah at the road

Saifullah, Gulzar, Aslam, Amir and Muhammad Mansha produced the accused before me. I recorded the statement of P. Ws. on the road. I immediately rushed to the spot and inspected it ... It is correct that the accused remained in my custody for one night .. " (Underlining is my own.). Although the Investigating Officer had filled the gap of left over witnesses, which were not named during his examination-in-chief, by improving his statement during the cross-examination on account of one question asked by the defence, which he was not expected to ask as an advocate on criminal side, yet it appears that the Investigating Officer was not speaking the truth because the Murasala recorded by him does not contain the mention of Moharram procession, recording of statements of P.Ws. on the record, leaving for the spot for inspection. Even otherwise it cannot be believable that a responsible Police Officer on Moharram Duty, particularly in 10th Moharram, at 10-00 a.m. would leave the Moharram procession only to inspect the site. From all these aspects it can easily be deduced that the Investigating Officer did everything in the police station and not on the road where he claimed to be accompanying with the procession of Moharram.

6. Now come to the conduct of trial Court. This was a case where the learned trial Judge was duty bound, if he had been aware of the Islamic Laws, to hold secret inquiry (Tazkiyah-al-Shahood) because more than four witnesses had claimed to have seen the commission of offence with their eyes. Instead of performing this duty the Court lingered on the case of July, 1992 till July, 1995. I have examined the record of the case in original. It shows that statements of P. Ws. were recorded in Urdu by someone and the learned Sessions Judge signed the same in English with different ink. But the depositions of all these witnesses brought on the record of appeal in hand are in English and they are also signed by the learned Sessions Judge. I need not to burden this judgment to show as to whether these are the true translations because there is no mention anywhere to show as to when these depositions in Urdu were translated into English. However, I would be having least hesitation to observe that the learned Sessions Judge did not perform his duty in accordance to law with reference to Tazkiyah-al-Shahood. I consider it necessary to point out that Islam does not permit the Courts to ignore this duty of holding secret inquiry with an intention to punish accused persons under Tazir. Punishment under Tazir would be justified only when punishment under Hadd is not possible on account of its requirements. Therefore, it is noticeable that punishment under. Tazir or Hadd is not a discretion of the Court. It is not permitted in Islam that the Court should ignore its duties, as was done in the present case, to create a chance for conviction IF under Tazir particularly in the doubtful cases of acquittal.

7. Notwithstanding that the absence of this important aspect of Tazkiyah?-al-Shahood (secret inquiry) with regard to the credibility of witness has shaken the foundation of conviction. I consider it necessary to highlight the impugned judgment, too, "With reference to the facts which inspired confidence of the learned Sessions Judge for convicting a poor young girl on this presumption that she was a consenting party more particularly that alleged paramour belonged to minority. The operative part of the judgment reads as under: "If in fact Muhammad Mansha wanted to marry her why he would involve Mst. Zarina Bibi in this heinous offence in which the honour of the family is involved. When Mst. Zarina was caught red-handed with her paramour an inference can be easily drawn that her parents refused to take her back so Muhammad Mansha took a chance and married her. So the plea of both the accused is without any substance." (Underlining is my own). I was surprised, rather shocked, to read these sentences. The learned Sessions Judge relied upon the statement of a witness recorded under section 161, Cr.P.C. when the said witness has resiled and was declared hostile. Even otherwise I am of the view that criminology in Islam favours to draw inferences to acquit an accused person in Hudood cases and not to convict them. The underlined portion fully radiates that inference was negatively drawn by the learned Sessions Judge on the bases `of presumptions in the air. The learned Sessions Judge could easily draw inference that the appellant was innocent otherwise a Muslim would not have got himself married with such a lady, who was particularly and allegedly seen by him committing Zina with a non-Muslim and more particularly when the said act, as alleged, had been witnessed by several other persons. In spite of my microscopic study of the impugned judgment I failed to find out anything to draw an inference as was drawn by the learned Sessions Judge that "her parents refused to take her back so Muhammad Mansha took a chance and married her". These words are the creation of imagination possessed by the learned Sessions Judge, which can never be appreciated because the source of such imagination is totally missing from the record.

8. In this connection I would like to draw the attention of every Court to the difference of punishment between an offence punishable under sections 354 and 354-A, P.P.C. to explain my point of view. The punishment under section 354, P.P.C. may extend only to two years or with fine or with both: The use of word "or" is of great importance. While the punishment under section 354-A, P.P.C. is death or imprisonment of life and the offender shall also be liable to fine. Here the word "and" has been used for imposing "fine", The difference between these sections is unambiguously evident and needs no comments but to point out that the spirit embodied in section 354-A, P.P.C. is to protect the sanctity of women from being exposed to public by use of criminal force. From the defence of these sections, the learned Sessions Judges can easily draw the real spirit of Islam to proceed with the cases against women.

9. In my view P.W.1 namely Muhammad Aslam has committed an offence attracted by the definition of Qazf defined in section 3 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the Qazf Ordinance) and he could be convicted under section 10 of the Qazf Ordinance because the remaining eye-witnesses had falsified his version regarding allegation of Zina against the accused persons besides its being falsified on the face of record. But unfortunately section 8 of Qazf Ordinance put a bar that "no proceeding, under the Qazf Ordinance shall be initiated except on a report made to the police or complaint lodged in a Court by a person who has been authorised to do so by the party in respect of whom the Qazf had been committed or by the descendant if the said person had died. I am of the opinion that such bar is not in accordance to the teachings of Islam when the case of this nature, as in hand, fully exposes the culprits. Therefore, it would be proper if the legislation amends the said provision of law to give suo motu powers to the competent Courts to start proceeding against such culprits if the case of Qazf is made out against them during the proceedings. On account of this bar it cannot be expected that the persons belonging to minorities living in villages and the poors, as the present case, would dare to lodge any report or to' succeed in getting the case registered against the influentials on account of their crime of poverty.

10. The upshot of the above discussion leaves no doubt about the result of this appeal which is, resultantly allowed because I am unable to embrace the conclusion drawn by the learned Sessions Judge while passing the impugned judgment. The conviction and sentence of the appellant is set aside. She is honourably acquitted from the allegation she was charged with and convicted for. She is on bail. Her bail bond is discharged. This judgment shall have the same effect on the case of co-accused Nazir Masih even if he has not filed any appeal. I have exercised these powers under Article 203-DD of the Constitution of Islamic Republic of Pakistan which gives powers to the Federal Shariat Court to call for and examine the record of any case decided by any Criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying 'itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by and as to the regularity of any proceedings. He shall, therefore, be released forthwith if not required in any other case. In case the said convict is not released the jail authorities shall send the details of all cases pending against him for perusal of this Court and for its satisfaction that a member of minorities in Pakistan is not being detained on account of his innocent crimes. N.H.Q./1071/FSC?????????????????????????????????????????????????????????????????????????????? Appeal accepted