P L D 2008 Supreme Court 343 (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.

Through this appeal the appellant has assailed the judgment dated 14-5-2003 of learned Division Bench of Peshawar High Court, whereby Jail Criminal Appeal No.174 of 2003 filed by the appellant was dismissed and Murder Reference No.4 of 2003 answered in the affirmative thereby confirming death sentence awarded to him by the Anti-Terrorism Court, Mardan, vide its judgment dated 6-2-2003 holding him guilty of an offence under section 10(4) of Ordinance VII of 1979, read with section 6 (b) of Anti-Terrorism Act, 1997.

2. The fact of the case, in brief as emanating from the F.I.R. Crime No.753 dated 16-9-2002 registered on the complaint of Mst. Zubeda, are, that she was working as mid-wife in Dr. Asad Zia Clinic at Mardan. In the evening of I1-9-2002 while she was returning home to Khair Abad, Rusfam, the appellant Nisar along with his-co-accused Arif met her in the way and took her along to his `bhaitak' adjacent to his house on the pretext that she should give injection to his ailing daughter. On reaching the `bhaitak' of Nisar, her clothes were stripped off at gunpoint and her nude photographs were taken. Both the accused persons attempted to commit Zina upon her. However, she succeeded in saving her honour and chastity.

3. The appellant was sent up to face trial after investigation. As he pleaded not guilty, the prosecution proceeded to record the evidence. During trial, the prosecution examined as many as six P. Ws including the complainant lady. On the basis of evidence adduced the appellant was convicted and sentenced in the terms mentioned as above.

4. Leave was granted to reappraise the evidence in view of certain infirmities appearing on the record as indicated in the leave granting order dated 17-2-2005.

5. It is contended on behalf of the appellant that there is no reliable evidence to connect the appellant with the commission of crime. It is argued that neither the appellant nor the prosecutrix was medically examined notwithstanding the fact that the complainant is a married lady of 52 years age. There is no positive evidence to believe that Zina was committed upon the complainant. Recovery of certain articles from the 'bhaitak' of the appellant would not strengthen the case of the prosecution. It is lastly argued that in any case the offence alleged would not fall within the definition of "terrorism" to attract the jurisdiction of Anti-Terrorism Court. On the above premises it is contended that the conviction recorded against the appellant is not lawful.

6. Learned counsel appearing on behalf of State was unable to support the impugned judgment and conceded that there was no evidence to conclude that the appellant was guilty of the alleged offence.

7. We have carefully considered the arguments and have reappraised the evidence. In the first instance it will be beneficial to reproduce hereunder relevant paragraph of order dated 17-2-2005, whereby leave was granted:-- "We have gone through the record with the assistance of Mr. M. Saleem Sheikh, learned Advocate Supreme Court and have observed that the FIR. is lodged with a delay of five days with the explanation that her husband had gone to Rawalpindi and hence she awaited his return. But despite that the husband is never shown to have accompanied her to the police station for lodging F.I.R. A lot of contradiction is pointed out between the F.I.R., the subsequent statement of Mst. Zubaida and the confessional statement of the accused. Nisar was not known to the complainant prior to the occurrence and Arif was known only to the extent of his being wagon driver yet the names thereof are appearing in F.I.R. along with parentage. It does not exclude the possibility that the F.I.R. was lodged after preliminary investigation but in spite thereof no commission of `Zina' is alleged therein. Rather, she categorically stated that she succeeded in saving her honour. The so-called confession of the appellant was not relied upon even by both the Courts. The nude photographs in question were produced before the Investigating Officer by the daughter of Nisar. It remains yet to be explained as well as accepted as to how the nude photographs were allowed to be possessed or spotted, of all the people, by the daughter of a person. It was also pointed out that the occurrence is alleged to have taken place in a `Baithak' which was a part of a family house inhabitated by women-folk of the family as well. All the aforesaid material questions emanating from the record closely require reappraisal of evidence and hence leave to appeal is granted accordingly. Notice to the State, complainant and original record."

8. It will be noted that there is no eye-witness of the incident. The case of the prosecution is based on the evidence of the prosecutrix, circumstantial evidence of recoveries and confessional statement recorded by the appellant. So far as the testimony of complainant Mst. Zubeda is concerned, it could not be trusted with truth. She stated in the F.I.R. in clearly unambiguous terms that the accused persons intended to forcibly commit Zina upon her but she saved her honour and chastity. Though in a futile attempt to improve her case, the complainant deposed before the Trial Court that both the accused forcibly committed Zina with her turn by turn on gunpoint but in a suggestion in the cross-examination she admitted that it was correct that she mentioned in her report that she saved her honour and chastity. 'Evidently the attempted improvement was an extended afterthought. More particularly when the F.I.R. itself was belatedly lodged with an element of considerable diligence it was impossible for any victim to omit such primary accusation. The explanation for delay in registration of the F.I.R. as given by the complainant was that she was waiting for her husband to come back. However, neither the husband of the lady was tendered in evidence nor it transpires from the contents of F.I.R. that he accompanied the complainant to the Police Station for recording the F.I.R. The complainant admitted in her cross-examination that the appellant was not known to her, yet while recording the F.I.R. she gave full name of the appellant along with parentage, which is enough circumstance to take a view 'that necessary consultations and deliberations were made before lodging the report. In such circumstances, the statement of the complainant does not deserve credence. Reference can be made to the law laid down in Muhammad Shafique Ahmed's case (PLD 1986 SC 471), and Ibrar Hussain's case (2007 SCMR 605). Admittedly the appellant was not medically examined to prove the factum about his potency and capability to perform sexual intercourse resultantly an important piece of evidence was conspicuously missing. Even the complainant lady was neither got medically examined to observe the marks of violence on her body to prove the element of force, nor the steps were taken to detect availability or visibility of stains of semen anywhere by conducting chemical examination. Obvious reason for lack of collecting medical evidence could be that there was no allegation of rape in the F.I.R. So for as allegation of taking of nude photographs of complainant is concerned, no tangible evidence was brought on record to conclusively prove that those were factually taken and were genuine. The reasons recorded by the two Courts below on this aspect are conjectural and hypothetical thus could not be appreciated and approved, in the present age of advanced technology. According to P.W.1 Abdul Salam, nude photographs of the lady were produced by Mst. Shagufta the daughter of accused which fact by itself does not apparently appeal to common sense for the reason that a person being father having committed such an obnoxious act depicting himself in a disgraceful manner and position would in no circumstances hand over such photographs to his own daughter. Regarding the confessional statement recorded by the appellant, suffice it to say that it could neither be termed to be voluntary nor admissible, as such out rightly beyond consideration. It was for this reason that the same was neither believed by the Trial Court nor relied upon by the High Court. It may not be out of place to mention that in common parlance `baithak' is a room just adjacent to the residential house. Nothing is available on record to form a view that the `baithak' of the appellant, where the offence was allegedly committed, was a secluded place. On the contrary, the circumstances available on record suggest otherwise.

9. Indeed the objection with regard to jurisdiction of Anti-Terrorism Court to try the case raised by learned Advocate Supreme Court for the appellant also does not seem to be without force, but since we have decided the appeal on merit, it does not appear necessary to advert to the said objection.

10. For all the above circumstances the case of the prosecution is marred by inherent infirmities, rendering the impugned judgment utterly unsustainable. Learned counsel appearing for the State was therefore, at pains to support the conviction and sentence handed down to the appellant.

11. On perusal of the impugned judgment it was noticed with dismay that sentence of death was confirmed by learned High Court by delivering an infirm and erroneous judgment by ignoring the well-recognized principles of appreciation of evidence in criminal cases, which resulted in miscarriage of justice. It was simply saddening, as the Courts of law are expected and required to decide the cases on the basis of evidence adduced, without being overawed by emotions and sentiments. Nevertheless, extraordinary care and caution is to be taken while dealing with the offences of grave nature, attracting capital punishment, which could not be awarded unless charge against the accused is proved by leading absolutely credible, trustworthy and unimpeachable evidence.

12. For the foregoing reasons, the appeal is allowed. Consequently, the judgment passed by the Trial Court, affirmed by the High Court through impugned judgment are set aside. The appellant is acquitted, and shall be released forthwith if not required in any other case. S.A.K./N-16/S Appeal accepted.