P L D 2007 Supreme Court 467 (PLP)

JAVED IQBAL (CHAIRMAN).

This petition for leave to appeal is directed against the judgment dated 1-2-2005 whereby the criminal appeal preferred on behalf of Abdul Ghaffar has been dismissed, however his conviction and sentence of 25 years' R.I. was reduced to that of 15 years' R.I. with benefit of section 382-B, Cr.P.C.

2. Precisely stated facts of the case according to the prosecution are that "victim Maryam Ashraf moved an application on 15-7-2002 that Mst. Gul Zareen, appellant is her step-mother and Abdul Ghaffar alias Kashi is her, i.e. Mst. Gul Zareen's brother. Father of Mst. Maryam Ashraf contracted a second marriage after death of Mst. Maryam's mother. She i.e. Mst. Maryam was living with her maternal grand-father but his father forcibly took her to his house where Mst. Gul Zareen was living with him as his wife. It was alleged that Mst. Gul Zareen got Maryam subjected to Zina-bil-Jabr by her brother Abdul Ghaffar alias Kashi. The victim was obviously under shock and distress but her step-mother, i.e. Mst. Gul Zareen warned and threatened her that in case she disclosed this fact to anyone, she may be stoned to death. Mst. Maryam was not permitted to visit the house of her maternal grandmother whose residence was in the same street. In the month of July, 2002 Mst. Maryam's father left her in the house of her grandmother. Mst. Maryam's Phoophi (paternal aunt) cautioned Mst. Maryam that she should not disclose about the incident accord to her, to her maternal grandfather and left her in the house of her grandmother and took an oath on Holi Qur'an. Mst. Maryam was under tremendous shock and fear, therefore, she remained silent for about 3/4 days. However, after 3/4 days she narrated the whole incident to her grand parents. On 13-7-2002 she was got medically examined and on 15-7-2002 an application was moved to the D.P.O. Sheikhupura which was marked to S.H.O. and formal F.I.R. No.258 of 2002 was registered with Police Station Bhikhi, District Sheikhupura under section 10 of the Ordinance. After completion of investigation the petitioner was sent up for trial and on conclusion whereof he was convicted and sentenced as mentioned hereinabove.

3. Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court entered appearance on behalf of petitioner and mainly contended that factum of enmity and rancour existing between the parties due to the second marriage of Muhammad Ashraf with Mst. Gul Zareen has been ignored altogether which resulted in serious miscarriage of justice. It is also contended that on the basis of interested, partisan and contradictory evidence no conviction could have been awarded to the petitioner. It is argued that the statement of Mst. Maryam Ashraf (victim) should have been discarded being tutored one besides that no independent corroboration was available in support of her version. It is also contended that a very harash punishment has been awarded to the petitioner which does not commensurate with the gravity of offence.

4. We have carefully examined the above mentioned contention in the light of evidence which has come on record and perused the judgment impugned carefully. After having gone through the entire evidence by keeping the defence version in juxtaposition we are of the considered view that prosecution has established the accusation beyond shadow of doubt. The case of prosecution hinges on the oral version of Mst. Maryam Ashraf (victim) duly supported by medical evidence. We have carefully scrutinized her statement wherein she has narrated the details of unfortunate episode and mentioned without any ambiguity and in a unequivocal manner that the petitioner had committed Zina-bil Jabr with her on different occasions. She was subjected to an exhaustive cross-examination but nothing beneficial could be extracted. The learned Advocate Supreme Court was asked pointedly that as to why the statement of Mst. Maryam Ashraf (victim) should be disbelieved but no satisfactory answer could be given. The minor contradictions pointed out by the learned Advocate Supreme Court have rightly been ignored by the learned trial and appellate Courts being immaterial. The medical evidence furnished by Dr. Farida Shahbaz lends full corroboration to the statement of Maryam Ashraf (victim). Besides that the vaginal swabs were found to be stained with semen. In this regard report of Chemical Examiner (Exh.P/G) can be referred. We are not persuaded to agree with the contention of learned Advocate Supreme Court on behalf of petitioner that no conviction and sentence can be awarded on the statement of an interested witness for the simple reason that "An interested witness is undoubtedly competent witness under the Evidence Act. The proposition that his testimony should be corroborated by independent evidence is however not of universal application. The question of his reliability must depend upon the circumstances of each case and the quality of his evidence. If his testimony is found reliable the Court may accept it without any corroboration. But as a matter of prudence, the Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will, therefore, be unsafe to base a conviction on his testimony alone. Sohni v. Bahaduri PLD 1965 SC

111. As mentioned hereinabove the statement of Mst. Maryam Ashraf has fully been corroborated by the medical evidence which went un-rebutted. No irregularity or infirmity can be pointed out in the appreciation of evidence. It is well-settled by now that "ordinarily the Supreme Court would refuse to reappraise evidence because the Court does not undertake this task unless a substantial departure from some rule or principle relating to the appreciation of evidence has occurred. When the Court of first instance and the Court of appeal arrives at concurrent findings of fact after believing the evidence of a witness, the Supreme Court as the final Court does not disturb such findings save in most exceptional cases. In the absence of a statutory bar this practice could have been and was occasionally relaxed or deviated from in special cases which were found to have been of a very unusual nature and of public and general importance; but never, unless justice was found to have miscarried as a result of either there not being a proper trial at all or on account of admission or reception of evidence which was not legally admissible or for something so shocking, so outrageous, or so gross as to shock the very basis of justice. This will be the case where there is such a disregard of the forms of legal process, or such a violation of principles as amounts to a denial or perversion of justice. The disregard or violation should not be merely technical in character, it should be both grievous as well as substantial. Abdul Majid v. State 1971 SCMR 31; British India N. Co. v. Abdur Razzak 19 DLR (SC) 177; Shamshad Ali Shah v. Hassan Shah 16 DLR (SC) 330; PLD 1961 SC 609; Bashir Ahmad v. Yaqub Shah 1962(1) PSCR 243; Muhammad Bachhal v. Crown PLD 1951 FC 140; Badri Rai v. State of Bihar AIR 1958 SC 953; Mathew v. T.C. State AIR 1956 SC 241; Ram Narain v. State of Punjab AIR 1955 SC 322, Sarfaraz Ali Khan v. Crown PLD 1951 FC 41; Sarfaraz Ali v. Crown 1951 FCR 78; Muhammad Sarfraz Khan v. Crown PLD 1953 FC 317; Khuda Bakhsh v. Crown PLD 1955 FC 378; Gul Amir Khan v. Crown PLD 1951 FC I. The case in hand does not fall within the ambit of above mentioned criterion. It may not be out of place to mention here that a lenient view has already been taken by the learned Federal Shariat Court and conviction and sentence of 25 years has been reduced to that of 15 years and no more indulgence is required on humanitarian grounds as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner. In sequel to above mentioned discussion the above petition being meritless is dismissed and leave refused. N.H.Q./A-25/S Leave refused.