2019 PLP 29 (YLRN)

M. TABBASUM AFTAB ALVI, J.

The captioned Appeals have been directed against the same impugned judgment of Additional District Court of Criminal Jurisdiction, Rawalakot, dated 19th January, 2018, therefore, these are being clubbed and decided through the instant judgment.

2. The facts precisely stated are that Abdul Jalil, complainant, submitted a written report to S.H.O. Police Station, Rawalakot, against Tahir Maqbool, accused, on 3rd May, 2010, alleging therein that he was residing with his sister Mst. Ulfat Jan, in village Namnota, who was getting education in a school over there in 4th class, and after school timing, he used to go to the house of Raja Irshad, for tuition. On 27th April, 2010, he, after attending tuition class, was going back towards the house of his sister, when Tahir Maqbool, accused, met him on the way and asked him to come near. When he went near to accused, he caught hold and took him in the brook, where he unfastened his string and attempted to commit sodomy. On making hue and cry, accused fled away. The report is delayed because legal heirs of accused wanted to compromise the matter and he admitted his guilt in a meeting of elderly people of vicinity.

3. As per report supra, a case in offences under Sections 12/18,ZHA, was registered against accused at Police Station, Rawalakot, on 3rd May, 2010. After investigation, initially accused was proceeded under section 512, Cr.P.C. and a challan, in offences under sections 12/18, ZHA, was submitted against him before District Court of Criminal Jurisdiction, Rawalakot, on 18th August, 2010. However, later on, he was apprehended and a supplementary challan in the aforesaid offences, was submitted before the concerned Court on 22nd September, 2010. The trial Court examined accused under Section 265-D, Cr.P.C, on 4th December, 2010, who denied the guilt. Thereafter, prosecution produced evidence in support of its case. After recording evidence, accused was examined under Section 342, Cr.P.C, on 17th April, 2017, who again denied the guilt and claimed trial.

4. The learned Additional District Court of Criminal Jurisdiction, Rawalakot, after conclusion of trial, awarded 10 years' rigorous imprisonment under section 12, ZHA, along with fine Rs.50,000/-, and in case of non-payment of fine, appellant-convict shall have to undergo 15 days simple imprisonment, whereas, he was acquitted of the charges under section 18, ZHA, and benefit of section 382-B, Cr.P.C. was also extended in his favour, vide the impugned judgment dated 19th January, 2018. Now Appeal No.08/2018, has been filed by appellant-convict, for acquittal, whereas Appeal No.20/2018, has been filed by Complainant for enhancement of sentences, which are the subject matter of the instant consolidated judgment.

5. Barrister Adnan Nawaz Khan, the learned Counsel for appellant-convict, contended that Court below awarded rigorous imprisonment for a term of 10 years' as well as fine Rs.50,000/- under section 12, ZHA, whereas, he was acquitted under section 18, ZHA. He pointed out that trial Court failed to consider the relevant law because taking a few paces away does not constitute an offence under section l2, ZHA, whereas, main ingredient for attraction of the said section, is abduction or kidnapping of victim and the instant case does not come in the definition of kidnapping or abduction; therefore, Court below committed grave illegality while awarding appellant-convict sentences under section l2, ZHA. The learned Counsel contended that medical report of victim was proved fictitious and doctor P.W. was also not produced. He maintained that site-plan was not prepared, which was necessary because place of occurrence was allegedly shown a brook, whereas there was no brook between the houses of complainant's sister and Raja Irshad. He further contended that the story narrated by prosecution about confession of accused in a Jirga, was not proved, as evidence of prosecution witnesses in this regard, is hearsay. The learned Counsel maintained that even otherwise as per settled law, an extra-judicial confession is the weakest type of evidence on the basis of which, accused cannot be convicted. He agitated that P.Ws. made improvements in their Court statements as compared to their statements recorded under section 161, Cr.P.C, but the Court below failed to consider this aspect of the case and wrongly awarded sentences to his client. He further pointed out that there was no eye-witness in the instant case. The learned Counsel finally submitted that prosecution could not prove its case beyond reasonable doubt against accused; therefore, by accepting the appeal of appellant-convict, he may be acquitted of the charges and counter appeal may be dismissed. He, in support of his arguments, cited the following case law:- i. Habibullah v. Ghulam Rasool (2011 SCR 501). ii. Al-Ameer v. The State (2011 PCr.LJ (FSC) 583].

6. Conversely, Sardar M.R. Khan, the learned Counsel for complainant, controverted arguments advanced by the learned Counsel for appellant-convict and submitted that prosecution proved its case through cogent and convincing evidence. He pointed out that accused was sentenced to 10 years' rigorous imprisonment along with fine Rs.50,000/-, whereas according to law he was liable to be awarded death penalty; therefore, impugned judgment is liable to be modified to this extent. He contended that contents of FIR clearly indicate that victim was taken towards brook with the intention to subject him to unnatural lust; therefore, section 12, ZHA attracts in the instant case and Court below correctly convicted accused under the said section. The learned Counsel stressed that statements of Abdul Jalil, victim, and Sakhawat P.W, are very important to prove prosecution case, on the basis of which accused can be awarded death penalty. He also submitted that after occurrence a Jirga was convened between parties in which accused confessed his guilt. He contended that medical report was not important because unnatural lust was not committed rather an attempt was made. The learned Counsel finally submitted that by accepting appeal filed by complainant, the impugned judgment may be modified, accused may be awarded death penalty under section 12, ZHA, and counter appeal filed by appellant-convict may be dismissed.

7. Raja Zubair Ahmad, the learned Additional Advocate General, appearing on behalf of the State, fully owned and supported arguments advanced by the learned Counsel for complainant.

8. I have heard arguments of the learned Advocates for parties and perused record with utmost care.

9. The prosecution case is that, Abdul Jalil, complainant, was residing with his sister Mst. Ulfat Jan, in village Namnota and was getting education in a school over there in 4th class and after school timing, he used to go to the house of Raja Irshad, for tuition. On 27th April, 2010, he, after attending tuition class, was going back towards the house of his sister, when Tahir Magbool, accused, met him on the way and asked him to come near. When he went near to accused, he caught hold and took him in the brook, where he forcibly unfastened his string and attempted to commit sodomy; however, on making hue and cry, accused fled away. The report was delayed because legal heirs of accused wanted to compromise the matter and he admitted his guilt in meeting of elderly people of vicinity.

10. Now, it is to be determined whether prosecution story in light of evidence on record rings true or false? A contemplate perusal of record reveals that, as per contents of FIR, accused and victim have been shown together at the spot and nobody was incorporated in FIR, as eye-witness of the occurrence; however, after investigation, Muhammad Sakhawat (P.W.2), was mentioned as eye-witness, in the calendar of challan. The learned Counsel for complainant stressed on evidence of the aforesaid P.W., therefore, in light of evidence of the said P.W., it is important to sift the grain of truth from the chaff of falsehood. Muhammad Sakhawat P.W., deposed in his Court statement recorded on 25th April, 2013, that on 27th April, 2010, he was grazing his goats in the land, meanwhile, he heard hue and cry, thereupon, he went towards that side and saw from the little distance that Tahir Iqbal, accused, was attempting to commit offence with Abdul Jalil, who, on seeing him, fled away. However, in his statement recorded by police under section 161, Cr.P.C. on 22nd July, 2010, he did not depose that he was grazing goats in the land, rather he deposed that on 27th April, 2010, he was present at his home. According to the Court statement of the said P.W., victim's mother was told about the occurrence by wife of P.W. on the day of occurrence; however, it is important to observe here that if Muhammad Sakhawat, P.W., who is brother-in-law of victim, witnessed the occurrence and it was in the knowledge of complainant and his mother then why his name, as a witness, was not incorporated in FIR and why his statement under section 161, Cr.P.C. was got recorded before police, with delay of 02 months and 25 days. Moreover, a perusal of the statement of victim also reveals that he did not mention about the factum that occurrence was witnessed by Muhammad Sakhawat P.W., rather in cross-examination he deposed that nobody came at the spot when accused fled away. A perusal of the statement of Muhammad Fayyaz P.W., recorded by police under section 161, Cr.P.C. on 21st July, 2010, reveals that he mentioned name of one Muhammad Siddique, instead of Muhammad Sakhawat P.W., and deposed that after hearing noise, Muhammad Siddique, went towards the place of occurrence, whereas according to other P.Ws., Muhammad Sakhawat P.W., witnessed occurrence; thus, a major contradiction appears in prosecution evidence. Therefore, in view of above mentioned contradictions, prosecution evidence is not trustworthy, which cannot be made basis for awarding sentences to convict-appellant.

11. The learned Counsel for complainant also stressed on the point that statement of victim is sufficient to award penalty to accused. The statement of complainant, Abdul Jalil, dated 7th August, 2012, when compared to the contents of FIR, it was found that according to contents of FIR, he took stance that on 27th April, 2010, he, after attending tuition class, was going back towards the house of his sister, when Tahir Maqbool, accused, met him on the way and asked him to come near. When he went near to accused, he caught hold and took him in the brook, where he forcibly unfastened his string and attempted to commit sodomy; however, on making hue and cry, he fled away, whereas, according to his statement dated 7th August, 2012, accused caught hold of his hand and took him in the brook. So it appears from his statement that he was caught hold of accused and took him in the brook, but astonishingly he did not make hue and cry until he was taken in the brook. For the sake of argument, if it is assumed true that victim was taken to the brook, even then it does not appear that any force was alleged in taking the victim for the offence of unnatural lust; hence, evidence of kidnapping or abduction is lacking in the instant case and in such a situation, offence under section 12, ZHA, would not be covered when kidnapping or abduction is not satisfied. The aforesaid view finds support from a case reported as Al-Ameer v. The State (2011 PCr.LJ (FSC) 583), wherein, at page 588, it was observed as under:- "However, as far as section 12 of the Offence of 'Zina' (Enforcement of 'Hudood') Ordinance, 1979 is concerned, it comprises of two parts, first part pertains to kidnapping or abduction for commission of offence of unnatural lust. Offence under section 12 of the Offence of 'Zina' (Enforcement of 'Hudood') Ordinance, 1979 would not be covered when the first part, i.e. kidnapping or abduction is not satisfied. User of force has not been alleged in taking the victim for the offence of unnatural lust. There is no evidence at all as far as the alleged kidnapping or abduction is concerned." It was further observed in paragraph 12 of the afore-quoted judgment as under:- "In this view of the matter, it was not safe to convict the appellant under section 12 of the Offence of 'Zina' (Enforcement of 'Hudood') Ordinance, 1979 in absence of direct and concrete evidence qua kidnapping and abduction. Conviction/sentence under this section of law recorded by trial Court against the appellant, without satisfying as to the proof beyond any shadow of doubt about kidnapping or abduction, is not sustainable in law. Charge under section 12 of the Offence of 'Zina' (Enforcement of 'Hudood') Ordinance, 1979 is not proved. Therefore, conviction and sentence recorded by trial Court under this section of law is set-aside." The Apex Court in a case titled Habibullah v. Ghulam Rasool (2011 SCR 501), observed that main ingredient for constitution of the offence under section 12, ZHA, is abduction or kidnapping of the victim. The ratio decidendi of the aforesaid precedent is reproduced as under:- "We have heard the arguments of the learned Counsel for the parties and also perused the record. So far the merits of the case are concerned, we are in full agreement with the conclusion drawn by the subordinate Courts for acquitting the accused appellant from the charge under section 12, ZHA. It is suffice to say that for constitution of the offence under section 12,ZHA the main ingredient is abduction or kidnapping of the victim, whereas in the instant case the bare reading of the prosecution story and appreciation of evidence clearly speaks that the victim has not been abducted or kidnapped by the accused, therefore, the trial Court as well as the Shariat Court rightly acquitted the accused from the charge of the offence under section 12, ZHA." Therefore, in the instant case, statement of complainant as well as other evidence, does not show that any force was alleged to accused in taking the victim for the offence of unnatural lust; hence, kidnapping or abduction is not satisfied, especially in the circumstances when unnatural offence was not committed rather an allegation of attempt to commit unnatural offence was levelled only, which even could not be proved through evidence of eye-witness, Muhammad Sakhawat P.W.2. Thus, I am convinced that allegation of kidnapping or abduction, levelled against convict-appellant, could not be proved through evidence; therefore, trial Court failed to consider the relevant law because taking a few paces away without force does not constitute an offence under section 12, ZHA, and the instant case does not come in the definition of kidnapping or abduction; hence, Court below committed grave illegality while awarding appellant-convict sentences under section 12, ZHA.

12. The contention of the learned Counsel for complainant that after occurrence a Jirga was convened between parties in which accused confessed his guilt, has also been taken into consideration. Suffice to observe here that although prosecution witnesses, Muhammad Fayyaz, Ramzan, Asif and Sakhawat, deposed about convening of Jirga on 29th April, 2010; however, it reveals from record that their statements under section 161, Cr.P.C, were recorded at belated stage, after 02 months and 25 days of the occurrence, on 22nd July, 2010, whereas, it also reveals that statement of Abdul Jalil, victim, was recorded under section 161, Cr.P.C. on 3rd May, 2010, however, he did not mention therein that any Jirga was held between parties. It is important to observe that P.Ws deposed about an oral confession of accused before Jirga and there is no document on record in this regard. Therefore, in presence of belated statements of P.Ws of Jirga, their statements about confession of guilt, cannot be held worthy of credence. Thus, the aforesaid argument is overruled.

13. The crux of above discussion is that prosecution could not succeed to establish its case against appellant-convict without shadow of doubt; therefore, by accepting Appeal No.08/2018, filed by Tahir Maqbool appellant-convict, the conviction and sentences awarded to him vide the impugned judgment dated 19th January, 2018, are hereby set-aside and he is acquitted of the charges. The counter appeal, filed by complainant, stands dismissed. A copy of the instant judgment shall be annexed with other relevant file. JK/13/Sh.C.(AJ&K) Appeal accepted.