2017 P Cr (PLP)

ABDUL SAMI KHAN, J.

Naimat Ullah Khan appellant has filed criminal appeal under section 410, Cr.P.C. bearing No.537 of 2015 against his conviction and sentences handed down by learned Additional Sessions Judge Mianwali vide judgment dated 03.03.2015 whereby he was convicted under section 365-B, P.P.C. and was sentenced to undergo imprisonment for life. He was further convicted under section 376(1), P.P.C. and was sentenced to undergo rigorous imprisonment for the period of 25 years. He was also directed to pay Rs.10,000/- as fine under each of the said offences, failing which he shall further undergo simple imprisonment for two months. On the other hand, Parvaiz Akhtar complainant has moved criminal revision under sections 435, 439, Cr.P.C. bearing No.489 of 2015 for enhancement of sentences of Naimat Ullah Khan respondent/convict and he has also filed petition under section 417(2-A), Cr.P.C. against the impugned judgment dated 03.03.2015 to the extent of acquittal of Sultan Sikandar and Muhammad Shakeel accused, which is numbered as Petition for Special Leave to Appeal No.95 of 2015. I intend to decide all these matters together through this single judgment as these matters have arisen out of one and the same judgment of the learned trial court dated 03.03.2015.

2. Brief facts of the case as enumerated in FIR (Exh.PC) as well as private complaint (Exh.PD) are that Parvaiz Akhtar complainant was resident of Chak No.25-DB and was farmer. On 05.04.2011 he along with his son Ghafran went to Wan Bachran in connection with some personal business, while his wife Mst. Salma Bibi and his 17/18 years aged unmarried daughter Mst. Farzana Parveen were present in the house. The complainant returned to his house at 02:00 p.m. and found his daughter Mst. Farzana Parveen absent. He asked his wife about Mst. Farzana Parveen who told him that she was not present in the house for the last one hour. On this, the complainant with his son Ghafran came out in search of Mst. Farzana Parveen. They were informed by Haji Anwar-ul-Haq and Inam-ul-Haq that Naimat Ullah and Sikandar took Mst. Farzana Parveen towards Chak No.24-DB. Subsequently it came to the knowledge of the complainant that accused Naimat Ullah and Sikandar Khan had taken Mst. Farzana Parveen to the "dera" of accused Shakeel. He contacted accused Shakeel to return his daughter, but the accused refused to do so. It was maintained by the complainant that accused Naimat Ullah and Sikandar Khan had abducted his daughter on the abetment of accused Muhammad Shakeel to commit "zina" with her.

3. Initially FIR (Exh.PC) was lodged at Police Station Wan Bachran on the application (Exh.PC/1) of Parvaiz Akhtar complainant and investigation of the case was conducted by Najeeb Ullah Khan S.I. but feeling dissatisfied with the police investigation, Parvaiz Akhtar complainant filed private complaint (Exh.PD) with the same facts and allegations, wherein, after observing legal formalities as provided in the Criminal Procedure Code, 1898, the learned trial court summoned the accused to face trial. At the commencement of trial, learned trial court framed charge against the accused, to which they pleaded not guilty and claimed trial, hence, the prosecution evidence was summoned. The prosecution in order to prove its case examined as many as eight witnesses before the trial court and the trial court also recorded statement of Najeeb Ullah Khan S.I./I.O. as court witness. Ocular account has been furnished by Mst. Farzana Parveen abductee/victim (PW-5), Parvaiz Akhtar complainant (PW-6) and Anwar-ul-Haq (PW-7). Lady Dr. Raheela Iqbal (PW-4) conducted medical examination of Mst. Farzana Parveen abductee/victim (PW-5), while Naimat Ullah Khan appellant was medically examined by Dr. Sheikh Muhammad Ashfaq (PW-8). The remaining prosecution witnesses, more or less, are formal in nature. The statement of Najeeb Ullah Khan S.I./I.O. was recorded by learned trial court as CW-1, wherein he stated about various steps taken by him during the investigation of this case. After completion of prosecution evidence, learned trial court recorded statements of accused under section 342 Cr.P.C. wherein they refuted the allegations leveled by the prosecution against them and professed innocence. They did not opt to get recorded their statements on oath as provided under section 340(2), Cr.P.C. however accused Sultan Sikandar produced Saif Ullah constable and Rafi Ullah S.I. (Retd.) as DW-1 and DW-2 in his defence. It is pertinent to mention here that after recording the defence evidence, the complainant party was allowed to get the petition filed by accused Naimat Ullah under section 491, Cr.P.C. exhibited as Exh.PJ and then the statements of accused were again recorded under section 342, Cr.P.C. This time the accused again refuted the allegations leveled against them, but they did not opt to record their statements on oath as provided under section 340(2), Cr.P.C. however Naimat Ullah Khan appellant after recording his second statement under section 342, Cr.P.C. opted to produce documents Ex.DD, Exh.DD/1, Exh.DD/2 and Ex.DE in his defence. Upon culmination of the trial, learned trial court found the case against Naimat Ullah Khan appellant to have been proved beyond any reasonable doubt, thus, convicted and sentenced him as mentioned above and vide the same judgment, the learned trial court was pleased to acquit Sultan Sikandar and Muhammad Shakeel accused. Hence the criminal appeal, revision and petition for special leave to appeal before this Court.

4. Learned counsel for Naimat Ullah Khan appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt, hence, he deserves clean acquittal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the prosecution has amply proved its case against the appellant beyond any reasonable doubt, so his appeal be dismissed. Learned counsel for the complainant further added that the learned trial court has taken a lenient view while awarding lesser sentence to Naimat Ullah Khan appellant/respondent without any lawful justification and has acquitted Sultan Sikandar and Muhammad Shakeel accused/respondents only on the basis of surmises and conjectures, hence, prayed for enhancement of sentences of Naimat Ullah Khan appellant/respondent and also for conviction of Sultan Sikandar and Muhammad Shakeel accused/respondents on the charges leveled against them.

5. I have heard the learned counsel for the parties and have perused the record of this case with their able assistance. A careful perusal of FIR (Exh.PC) shows that the occurrence took place on 05.04.2011 at about 01:30 p.m. when Mst. Farzana Parveen went missing and thereafter Parvaiz Akhtar complainant along with his son Ghafran started searching her. The matter was reported to the police on the next day i.e. 06.04.2016 at 08:25 a.m. through written application (Exh.PC/1) as a result whereof FIR (Exh.PC) was chalked out at Police Station Wan Bachran District Mianwali. Although there is a delay of nineteen hours in reporting the matter to the police, yet I am of the considered opinion that delay in such like cases where dignity and honour of a family is involved, alone, does not matter much so as to shatter the whole prosecution case against the appellant.

6. The main points agitated by learned counsel for the appellant during arguments are that Parvaiz Akhtar complainant (PW-6) is not an eye-witness of the occurrence while the conduct shown by Anwar-ul-Haq (PW-7) at the time of abduction of Mst. Farzana Parveen abductee/victim (PW-5) shows that he was also not present at the spot at the time of occurrence. He next argued that conviction and sentences of the appellant cannot be maintained only on the solitary statement of Mst. Farzana Parveen abductee/victim (PW-5) especially when two co-accused of the appellant have already been acquitted by the learned trial court on the basis of same evidence. In this regard there is no doubt that the complainant (PW-6) is not an eye-witness of the occurrence and I fully agree with learned counsel for the appellant to this extent and it may be the case that Anwar-ul-Haq (PW-7) had also not seen the incident as Mst. Farzana Parveen abductee/victim (PW-5) has categorically stated in her examination in chief that she made hue and cry at the time of occurrence but nobody was there to rescue her, but I am not inclined to agree with learned counsel for the appellant that solitary statement of the abductee/ victim is insufficient to base conviction and sentence of the appellant. The Hon'ble Supreme Court of Pakistan while answering to a question of similar nature in case of Shakeel and others v. The State (PLD 2010 Supreme Court 47) was pleased to observe as under:- "When various searching questions could not extract anything beneficial to accused, that there was no reason to disbelieve prosecutrix and conviction could be awarded only on her solitary statement." In this regard, reliance can also be placed on the cases of "Sabz Ali v. The State" (1980 SCMR 309) and "Muhammad Ahmad and another v. The State and others" (1997 SCMR 89). So taking guidance from the above pronouncements of Hon'ble Supreme Court of Pakistan, I would like to evaluate the statement of Mst. Farzana Parveen abductee/victim. It has been observed by me that the abductee/victim got recorded her statement before learned trial court as PW-5, wherein she categorically stated that on 05.04.2011 at about 01/01:30 p.m. Naimat Ullah Khan appellant abducted her on gun point and took her to the "dera", which was owned by his father Sultan Sikandar accused and was under the use of Muhammad Shakeel accused. She further maintained that Naimat Ullah Khan appellant subjected her to "zina" and ultimately on 07.04.2011 the police came at the said "dera" and rescued her. On the same day at 02:15 p.m. she was medically examined by lady Dr. Raheela Iqbal (PW-4). The medico legal certificate issued by PW-4 is available on the file as Exh.PB and the report of Chemical Examiner bearing No.C.E-52/3663 dated 14.04.2011 is also placed on the file, according to which commission of "zina" with Mst.Farzana Parveen abductee/ victim (PW-5) was proved. In these eventualities, it is established beyond any imagination that Mst. Farzana Parveen abductee/victim stood firm to the extent of Naimat Ullah Khan appellant so as to prove the allegations of abduction and committing "zina" with her. It is quite relevant to mention here that the appellant was also medically examined by Dr. Sheikh Muhammad Ashfaq (PW-7) and was found fully fit to perform sexual act, but he declined to provide semen for the purpose of grouping.

7. Coming to the defence version, the appellant took the version that he and his co-accused were involved in this case, because, the police of Wan Bachran Police Station particularly Najeeb Ullah Khan S.I./I.O. (CW-1) and the then Station House Officer namely Mahr Khan Inspector were inimical towards his father Sultan Sikandar accused who was moving applications against them before different forums, but this plea falls apart when the same is confronted with the fact that Sultan Sikandar accused was opined to be not involved in this case by Najeeb Ullah Khan S.I./I.O. (CW-1) during the course of investigation. In this way, the defence version was nothing more than an after-thought story. During arguments, learned counsel for the complainant has invited my attention to Exh.PJ which is copy of the petition under section 491, Cr.P.C. filed by Naimat Ullah Khan appellant on 23.04.2011 for the recovery of Mst. Farzana Parveen abductee/victim (PW-5). In Exh.PJ, the appellant claimed that he had solemnized marriage with the abductee/victim on 25.03.2011, but the family of the bride/abductee/victim was not happy on this marriage, so the complainant/father of the bride lodged false FIR against him as well as his father. This document was put to the appellant during his second statement under section 342, Cr.P.C. and then he took altogether a different defence and stated that his marriage with the abductee/victim was solemnized by Maulvi Muhammad Ejaz in the presence of Abdul Jabbar Khan and Abdul Ghaffar Khan, but neither he produced any of these witnesses nor did he bother to make statement on oath under section 340(2), Cr.P.C. to establish the factum of his alleged marriage with Mst. Farzana Parveen abductee/victim. After scrutinizing the material available on the record with utmost care and caution and putting the defence version in juxtaposition with the prosecution case, I found that the prosecution version to the extent of Naimat Ullah Khan appellant is more natural and acceptable to any prudent mind and divergent versions taken by the appellant in fact supported the case of the prosecution against him.

8. So far as the acquittal of co-accused Sultan Sikandar and Muhammad Shakeel accused/respondents by the learned trial court is concerned, it has been observed that the judgment of the learned trial court to this extent has been challenged by Parvaiz Akhtar complainant (PW-6) through petition for special leave to appeal. In this regard I have given anxious consideration to the arguments advanced by learned counsel for the complainant and found that Sultan Sikandar accused was burdened with the role of abducting Mst. Farzana Parveen abductee/ victim (PW-5) along with his son Naimat Ullah Khan appellant while the allegation against Muhammad Shakeel accused was that he had abetted Naimat Ullah Khan and Sultan Sikandar co-accused to commit the alleged offence. There is no denial of the fact that Sultan Sikandar accused was found innocent during the course of investigation and the opinion rendered by Najeeb Ullah Khan S.I./I.O. (CW-1) regarding innocence of Sultan Sikandar accused appears to be genuine as in our society it is next to impossible that a father along with his real son would abduct a teenager girl in order to commit "zina" with her. Similarly, involvement of Muhammad Shakeel accused in the present case also could not be proved through any reliable evidence and mere saying that he had abetted the alleged offence without any connecting substance is absolutely insufficient to hold him guilty. Thus I am quite satisfied that the learned trial court has arrived at a just and proper conclusion while announcing acquittal of Sultan Sikandar and Muhammad Shakeel accused and their acquittal does not call for any interference by this Court as the same is based on cogent and convincing reasons. On the contrary, learned counsel for the appellant has tried to press in service the old doctrine of "falsus in uno falsus in omnibus" (false in one thing, false in all) which is admittedly not applicable in our society, where people do try to entangle maximum persons from their opponent side. In this regard Hon'ble Supreme Court of Pakistan in its various judgments has also held that the doctrine of "falsus in uno falsus in omnibus", is not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused were not found guilty, the other accused would ipso facto stand acquitted and it is the primary duty of the Court to sift the grain from chaff. Reliance can be placed on the case titled "Samano v. State" (1973 SCMR 162). Similarly there is no cavil to the proposition that the grain has to be sifted from the chaff in each case, in the light of its own peculiar circumstances. In this regard, guidance is sought from the case titled "Riaz Hussain v. The State" (2001 SCMR 177). I would also like to refer to the case of "Ghulam Husain Soomro v. The State (PLD 2007 SC 71), wherein Hon'ble Supreme Court of Pakistan was pleased to hold as under:- "We may not be misunderstood to mean that an innocent person wrongly roped by prosecution or falsely involved by an unscrupulous investigating officer should be unreasonably dealt with or made escape goat but the Courts must maintain balance while arriving at the truth or falsehood of the matter by sifting the grain from the chaff. This may be treated as a rule of caution and circumspection." So by applying the principles laid down by Hon'ble Supreme Court of Pakistan in supra judgments and sifting grain from the chaff, I have observed that the case of the appellant is entirely on different footings as compared to his acquitted co-accused.

9. The above discussion emphatically leads this Court to the conclusion that the prosecution has successfully brought the guilt of the appellant to the hilt and there is no iota of doubt in the prosecution case to his extent, hence for the foregoing reasons, the judgment of the learned trial court qua conviction and sentence of the appellant on the charge under section 365-B, P.P.C. is maintained and upheld. It has been observed that while convicting the appellant on the charge of offence under section 376(1), P.P.C., the learned trial court has sentenced him to undergo rigorous imprisonment for 25 years, in spite of the fact that no such sentence is available in the statute. This is minor discrepancy and this Court has ample power to cure the same. Thus while rectifying this minor discrepancy and maintaining conviction of the appellant under section 376(1), P.P.C., his sentence of 25 years R.I. is converted into imprisonment for life. The sentence of fine i.e. Rs.10,000/- on each charge and simple imprisonment of two months in default thereof are also upheld and the benefit of section 382-B, Cr.P.C. is extended in favour of the appellant.

10. With the above modification in the sentence of Naimat Ullah Khan appellant Criminal Appeal No.537 of 2015 stands dismissed.

11. In view of discussion made in preceding paragraphs, no case for enhancement of sentences of Naimat Ullah Khan convict/respondent is made out, hence, Criminal Revision No. 489 of 2015 filed by Parvaiz Akhtar complainant/petitioner is dismissed.

12. For the reasons mentioned in Paragraph No.8 above, the Petition for Special Leave to Appeal No.95 of 2015 does not bear any force and the same is also dismissed. JK/N-32/L Order accordingly.