P L D 2002 Federal Shariat Court 1 (PLP)

Ms. Jehanzeb Rahim, A.‑G., N.‑W.F.P. with Ms. Musarat Hilali, Addl. A.‑G., N.‑W.F.P. for the State. Dates of hearing: 5th and 6th, June, 2002. DR. FIDA MUHAMMAD KHAN, J.‑‑This appeal filed by Mst. Zafran Bibi, wife of Niamat Khan is directed against the judgment dated 17‑4‑2002 passed by the learned Additional Sessions Judge‑II, Kohat whereby he has convicted her under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and awarded her the punishment of stoning to death. A criminal reference for confirmation of the same has been made to this Court, as required under the law. We are disposing of both the matters by this single judgment.

2. Briefly stated, the case of prosecution started on 26‑3‑2001 when Mst. Zafran Bibi made report at Police Station, Gumbat, District Kohat, to the effect that her husband Niamat Khan who bad been convicted about nine years before, in a murder case, was since then confined in Central Jail, Haripur. She alleged that about 11 / 12 days prior to the report, when she had gone to the nearby hill, Kholgai, at "Asr vella", and was busy it cutting fodder over there, Akmal Khan son of Ghuncha Gul, overpowered her and committed "Zina‑bil‑Jabr" with her. Thereafter, she returned to her house and informed‑ her mother‑in‑law Zar Bibi. On that day her father‑in‑law had gone to Haripur to see his son, therefore, her mother‑in‑law advised her to wait for his return and report the matter to police if advised by him to do so. After his return, she lodged the report accordingly. At the time of her report at police station, her father‑in‑law, Zabita Khan son of Khan Muhammad was accompanying her. The said report was thumb‑marked by her as well as by her father‑in‑law as a token of its correctness. Thereafter, Mst. Zafran Bibi was sent for medical examination, alongwith her father‑in‑law, under the custody of I.H.C. Jalal Din. She was medically examined. The Woman Medical Officer found her pregnant for about 7‑8 weeks. Considering the period of her pregnancy vis‑a‑vis the period of her subjection to Zina, as alleged by her in her report before the police, being at variance, the police arraigned her also as accused alongwith accused Akmal Khan and challaned them to face the trial. Both of them were formally charged on 13‑10‑2001 for offence punishable under section 10(2) of the Ordinance. They did not plead guilty to the charge and claimed trial. Therefore, they were tried. On conclusion of the trial while her co‑accused Akmal Khan was acquitted, she was convicted and sentenced as mentioned hereinabove.

3. At the trial prosecution examined in three witnesses. P.W.1 is Muhammad Firdus, S.H.O. He deposed that after lodging report Exh.PA by Mst. Zafran Bibi on 26‑3‑2001 he prepared injury sheet Exh.PM for her medical examination at Female Hospital. He sent the same through Jalal Din, H.C. He received the medical report of Mst. Zafran Bibi wherein it transpired that she was pregnant. On the basis of that report he charged her as well as her co‑accused Akmal Khan under sections 5/10 of the Ordinance and lodged F.I.R. Exh.P.W.I/1 on 27‑3‑2001. He arrested Mst. Zafran Bibi and prepared site plan on her pointation. Her co‑accused Akmal Khan, however, could not be found out. He produced Mst. Zafran Bibi before Illaqa Magistrate where her statement under section 164, Cr.P.C. was recorded. In the meanwhile he arrested co‑accused Akmal Khan after rejection of his pre‑arrest bail and got him medically examined. He also recorded statements of P.Ws. under section 161, Cr.P.C. After completion of investigation he submitted complete challan P.W.2 is Hassan Mahmood, Constable. He is a marginal witness to the recovery memo. Exh.P.W.2/1 whereby the Investigating Officer took into possession one bottle containing swabs Exh.P/1, one "Azarband" (trouser string) belonging to Mst. Zafran Bibi Exh.P/2. P.W.3 is Dr. Robeena Yasmin, Woman Medical Officer. On 26‑3‑2001 she examined Mst. Zafran Bibi and thereafter trade the following observations:‑‑

"A young lady well‑oriented in time and space, secondary sexual character are well‑developed. Bruise mark on left buttock. Per abdomen: No abnormality detected, Per Vagina examination: Hymen not intact O.S. closed U.T bulky F.X, clear. Adv: Pregnancy Test. Result: Positive. Period of pregnancy on examination: 7‑8 week approximately" She also took vaginal swabs and handed over the same to the police. She issued Medico‑Legal Report Exh.P.W.3/1.

4. Mst. Zafran Bibi was examined under the provisions of section 342, Cr.P.C. wherein she stated that she was innocent and falsely charged. In response to question No.1 she stated that accused Akmal Khan repeatedly committed Zina with her without her consent. She stated that she was ready" to take oath on the Holy Qur'an that no one except Akmal Khan, accused committed Zina with her. She admitted that she had given birth to a daughter who was still alive and in her custody. She added that she was an illiterate lady and may have given wrong statement to police on account of that reason. She also made statement on oath in the following words:‑

"I am the wife of Niamat Gul. He was in the Central Jail, Haripur as was imprisoned/convicted in some criminal case. Zabta Khan is my father‑in‑law. I was residing in the house of my husband alongwith his father. One day he took me to the Police Station, Gumbat, where he lodged the report. I have not given any statement in police station nor lodged any report to the police. What has been done in the police station was done by the police at the instance of my father‑in‑law. In fact Jamal son of Zabta Khan has committed Zina forcibly with me and my father‑in‑law to save his son Jamal involved accused in the case in hand. Accused Akmal has not committed Zina with me. He is innocent. Sher Haider, Advocate was engaged by my husband for the prosecution of the case on my behalf. The said Advocate have acted and prosecuted the case at the direction of my husband. I am totally unaware about the proceeding and my statement under section 342, Cr.P.C."

5. We have heard learned counsel for the parties and have perused the record with their assistance. Learned counsel Syed Iftikhar Hussain Gilani appeared on behalf of appellant Mst. Zafran Bibi and made detailed submissions. He was assisted by learned counsel Fakhre Azam Khan, Advocate. Learned Advocate‑General, N.‑W.F.P. Mr. Jehanzeb Rahim argued the case on behalf of the State.

6. Syed Iftikhar Hussain Gilani, learned counsel for appellant/accused, contended that conviction of the appellant/accused is illegal because proof for the same, as envisaged under section 8 of the Ordinance, is not available on record. Elaborating his point, the learned counsel submitted that neither the appellant/accused has made any confession of the commission of offence before a Court of competent jurisdiction nor the required testimony of four Muslim adult male witnesses; is available anywhere on record. He submitted that in fact there is absolutely no evidence worth the name to be sufficient for implication of the appellant/accused. He vehemently contended that mere pregnancy or birth of a child by a lady was not sufficient for her conviction under the heinous charge of Hadd. Referring to the affidavit Exh.D/1, submitted by the husband of Mst. Zafran Bibi he maintained that the same was self‑speaking of the innocence of the appellant/accused. Learned Advocate Mr. Fakhre Azam Khan, Advocate who was available to assist the senior counsel for the appellant also made submissions. He assailed the impugned judgment on the legal grounds and submitted that the appellant/accused was charged for commission of offence punishable under section 10(2) of the Ordinance. Therefore her subsequent conviction for a graver offence under section 5 of the Ordinance was illegal. He also reiterated that pregnancy alone was not sufficient for conviction under such a heinous charge. Learned Advocate‑General, N.‑W.F.P. Mr. Jehanzeb Rahim submitted that the appellant/accused Mst. Zafran Bibi has made different statements under sections 164,, 342 and 340(2), Cr.P.C. and has, also submitted affidavit. During the course of arguments, he vehemently contended that for ascertaining the truth and arriving at correct conclusion, the case should be remanded to the learned trial Court for recording statement of the husband of appellant Mst. Zafran Bibi, as he has already submitted affidavit, so that legitimacy of the child of the appellant/accused, born during the trial, could also be determined.

7. After hearing the arguments of all learned counsel for the parties and taking into account different aspects of the matter, we also deemed it necessary to bring on record the statement of Niamat Khan, husband of Mst. Zafran Bibi. However, instead of remanding the case to the trial Court which could have further prolonged the agony of the poor family, we adjourned the case to the next day and, exercising our powers under the provisions of section 428, Cr.P.C. for the sake of speedy disposal of the case, made order for production of Mst. Zafran Bibi and her husband Niamat Khan (who had earlier submitted affidavits Exh.DC and Exh.D/2) for recording their statements. Accordingly, they were produced on the next day and their statements on oath under section 340(2), Cr.P.C. were recorded according to law.

8. Niamat Khan, husband of the appellant/accused, made statement on oath in the following words:‑‑

"Mst. Zafran Bibi is my wife. She was on visiting term with me while I was serving imprisonment in jail at Haripur. Mst. Zafran Bibi has given birth to Mst. Shabnam Bibi from our wedlock. I have seen my affidavit, Exh.D‑1, which was drafted at my instance and read over to me. After admitting it correct I have thumb‑impressed the same. The application is Exh.D‑2, Mst. Shabnam Bibi is my legitimate child. " Thereafter, the appellant/accused Mst. Zafran Bib made deposition in the following words:‑‑ "I have seen the affidavit, Exh.DC, which was drafted at my instance and read over to me. After admitting it correct I have thumb‑impressed the same. I have given birth to a child namely Shabnam Bibi, from the wedlock of my husband. " After recording their depositions, we proceeded with the appeal.

9. We anxiously examined the evidence on record in the light of submissions made by learned counsel for the parties, This is an unfortunate case, which received much publicity in the National/International Press. It also gave rise to several controversies. On account of disinformation, mis understanding, lack of knowledge of the facts and circumstances of the case, some organizations resorted even to take out processions and demand repeal of the Hudood Laws itself without realizing that it was not the laws of Hudood (i.e. fixed sentence prescribed by Holy Qur'an and Sunnah) but its misapplication that resulted in miscarriage of justice. So far as the Islamic criminal law, including the Hudood laws, are concerned they are designed, prescribed and promulgated on the basis of clear injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him). These time tested laws mainly aim at preservation and protection of life, honour and property of the citizens of an Islamic State and dispensation of justice without any discrimination. Irrespective of the consideration for sex, wealth, religion, creed, colour, language or any other factor, these laws provide safeguards to enable the citizens enjoy peaceful environment, free from any encroachment on their fundamental human rights. Like other laws, the prosecuting or other components of law‑enforcing machinery may err in its application in respect to various facts and circumstances, however, the ideal nature of these laws in ensuring maintenance of public law and order, besides its other deterrent and reformative aspects, is admittedly far‑superior to the man‑made laws on account of its highly balanced approach to individual and public interest. In fact the depth of wisdom of these laws is unfathomable. Unfortunately some misinformed or dis-informed individuals, while looking at the severity and gravity of some of the punishments raise objections; but then they fail to appreciate the strict standard of evidence required to prove the offences. They probably also fail to judge the extent of damage being caused by the offenders to the aggrieved families. They also overlook the fact that the criminals by their nefarious acts disturb the tranquility of the society, by and large, cause error and spread insecurity all around. The brutal offenders who commit murder, rape or dacoity, therefore, need to be dealt with iron hand otherwise their unbridled activities open floodgate of innumerable crimes at the cost of lives, honour and property of innocent people. One can only well‑realise the far‑reaching effects of the wisdom contained in these laws if one could only visualise oneself stepping in the shoes of the aggrieved individuals and families subject to the heinous offences. It is well put by one of the best teachers of history (namely i.e. Sheikh Saddi) in the following couplet: (Showing mercy to a wolf in fact amounts to inflicting cruelty on the sheep).

10. Before proceeding with the consideration of the grounds taken in appeal it seems more appropriate to refer to section 8 of the Ordinance which provides the standard of proof required for Zina liable to Hadd. The same reads as under:‑‑ "Proof of Zina or Zina‑bil‑Jabr liable to Hadd.‑‑Proof of Zina or Zina‑bil‑Jabr liable to Hadd shall be in one of the following forms, namely:‑‑ (a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or (b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of Tazkiyah‑al- Shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye‑witnesses of the act of penetration necessary to the offence: Provided that, if the accused is a non‑Muslim, the eye‑witnesses may be non‑Muslims. Explanation.‑‑In this section "Tazkiyah‑al‑Shuhood" means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness. Confession recorded by a Court other than the one competent to try the case not a confession. An accused has to make a confession of the commission of the offence before a Court of competent jurisdiction i.e the trial Court." As is evident from the above, there must be either a confession of the accused of the commission of offence of Zina, before a Court of competent jurisdiction, or, in the alternative, ocular evidence of at least four Muslim adult male witnesses whose veracity conforms to the standard of Tazkiyah‑al- Shuhood (i.e. purgation).

11. Admittedly, not speak of four witnesses, as required under the law, there is no testimony of even one eye‑witness in this case. The whole case is based on circumstantial evidence, coupled with the statements made by the appellant/accused, at different stages of the case. The trial Court considered these statements as confession and, taking into account the factum bf pregnancy and subsequent delivery of a child, perhaps as corroboration, the learned Judge deemed it a sufficient ground for culpability of the appellant. However, thorough scrutiny reveals that neither the statements of appellants come under the ambit of confession, as envisaged by section 8 of the Ordinance, nor the pregnancy/delivery of child, could, in circumstances, be construed as sufficient basis for award of Hadd punishment. The reasons for holding this are summed up in the subsequent paras.

12. So far as the statements of the appellant/accused are concerned these are made before the police, which formed basis for formal F.I.R. on 27‑3‑2001, secondly before the Magistrate, recorded under section 164, Cr.P.C. on 28‑3‑2001 and thereafter before the trial Court under the provision of sections 342 and 340(2), Cr.P.C. It is highly pertinent to observe that all these statements could by no stretch of imagination be called confession of the guilt. It may be noted that confession in context of the Ordinance means inter alia. statement of an adult and sane person, regarding commission of offence of Zina with consent, for which the charge is founded before the Court of competent jurisdiction. It does not include commission of offence of Zina under duress. There is difference between wilful commission of offence of Zina and subjection to the same under coercion. The statement made by appellant contains the word "forcible" everywhere. Her stand, right from recording of the F.I.R. till final stage of the trial, is that of her subjection to "forcible Zina". Thus, no statement made by her at all stages could be considered an acknowledgement of her guilt. The complaint made by her before the police was rather expression of a grievance to seek its remedy. The nature of other statements is also exculpatory. It is pertinent to mention that the confession to be effective in the context of the Ordinance, firstly must be voluntary, with free consent without any coercion or inducement, secondly must be explicit as to the commission of the actual offence of Zina with free‑will, thirdly must be four times in four different meetings as held in a number of cases by Federal Shariat Court and Shariah Appellate Bench' and, fourthly, must be recorded by the Court who has competent jurisdiction to try the offence under the law. Needless to say that the prosecution is always loaded with the responsibility to produce its own evidence to establish guilt of an accused beyond reasonable doubt. In the instant case there is nothing on record to dislodge the exculpatory portion of her statements maintained by her throughout the trial. There is nothing on record to even presume that she was a woman of easy virtue. There is also no iota of evidence to show even that she was having any illicit liaison with any male person. The available record is also completely silent about her having been seen in the company of any accused, nominated by her in her statements. No complaint about her conduct was ever made by anyone of the locality. Therefore, her statement is to be accepted as a whole: The prosecution cannot make pick and choose exercise to formulate its case against the appellant. Unless there is anything cogent on record to contradict her self‑exculpation, her statement according to the established principles of criminal law is to be accepted in its entirety. We may also add that she has nominated two different accused for commission of Zina‑bil‑Jabr with her but the prosecution cannot get benefit from the same, because defence of an accused, whatever absurdity it might contain, cannot take the place of evidence against him/her. However, the contradiction found in the statements created doubt about the actual male accused and thus the co‑accused nominated by her got the benefit thereof and was acquitted. Here we may make it clear that Hudood do not discriminate.

13. We may also observe that at the time of making report the appellant was accompanied by her father‑in‑law. At that time she was living in his house. Keeping in view the cultural and traditional background of the area her father‑in‑law had not the slightest suspicion about her guilt or consent for the alleged sexual intercourse or illegality of her pregnancy otherwise he would have acted differently by either resorting to "honour killing" or at least to the expulsion of appellant from his house.

14. Regarding her pregnancy and subsequent birth of child, which is a significant circumstance against her we may mention that mere pregnancy in itself it is not a conclusive proof of her commission of Zina. She was a married lady whose husband was still alive. Although he was imprisoned in Central Jail, Haripur but there was absolutely no embargo on any one of his visitors to meet him, as he was not undergoing solitary confinement. It is on record that at the time of occurrence her father‑in‑law had gone to visit him in the jail and, on account of this reason, report of the matter to police was delayed. His affidavit shows that like other family members, the appellant was visiting him off and on and had also occasions for privacy with him as he was, allegedly, detailed to perform duty with one of the Jail Wardens and had probably enjoying more freedom than the other prisoners. Her husband who submitted affidavit also subsequently made statement on oath, reproduced hereinabove, wherein, inter alia, he owned legitimacy of the child born during the trial. This is a highly pertinent aspect of the whole case and it is certainly noticeable to mention that who else can better testify and be a better judge of the pregnancy/legitimacy of child of a married lady other than that of her husband. Therefore, mere pregnancy of appellant Mst. Zafran Bibi, in circumstances, was no ground for her conviction.

15. For the sake of further elucidation, we may also mention that, even otherwise, mere pregnancy, by itself when there is no other evidence at all, of a married lady, having no access to her husband, or even of an unmarried girl is no ground for imposition of Hadd punishment if she comes out with the defence that that was the result of commission of rape with her. Eminent Jurists like Hanafis and Shafis hold this view. Imam Malik also agrees with the same with a provision that the burden of proving want of consent on her part by raising alarm or making complaint against the, same would lie, on her. (Badaius Sanai), Vol. II, Al‑Mughni (Ibn Qudama), Vol. VIII, Bidayatul Mujtahid, Vo1.II) This view finds full support from an incident that was reported to the Holy Prophet (peace be upon him) that a woman was raped and he (peace be upon him) acquitted her of the charge punishable with Hadd (Al- Mughni).

16. In the instant case presumption against the appellant was drawn on the basis of delay in her reporting the matter to police on 26‑3‑2001. Since after medical examination on the same date she was found pregnant of 7/8 weeks and the date of occurrence of commission of Zina‑bil‑Jabr as alleged by her was 11/12 days prior to the report it was conjectured that she was a consenting party to the commission of Zina but she disclosed the matter only when she became pregnant and got apprehended of its disclosure. In this respect we would like to mention that although promptness in lodging of F.I.R. in ordinary criminal cases has always been considered necessary to exclude the possibility of deliberation and fabrication, no hard and fast rule can be laid down to precisely prescribe time limit of this purpose. Nevertheless the Court can better evaluate the weight to be attached to delay that occurs in this connection, on the basis of overall evidence on record in a given case. Despite this, as held by superior Courts including Federal Shairat Court, in number of cases, mere delay per se is no ground for drawing adverse inference in such‑like cases because they involve family honour. Members of the family are normally hesitant to promptly make report to police and, therefore, they wait for getting approval of male/elder members of the family to do so. In the instant case the delay has been plausibly explained in the F.I.R. itself. The appellant who is also the complainant waited for return of her father‑in‑law to lodge the report, as advised by her mother‑in‑law. Therefore, there was no reason to conclude that her delay in reporting the matter was on account of her long silence and consent to the sexual act and she only disclosed the occurrence when she came to know that she was pregnant. Nevertheless the very fact that she was found pregnant of 7/8 weeks could also have been considered a proof of her innocence, otherwise she could have easily advanced the date of occurrence to bring it in line with the period of her pregnancy. In this context it is also pertinent to observe that in her initial report she made no reference to her pregnancy have been resulted from Zina‑bil‑Jabr. There was no reason with the Investigating Officer to conclude that she was telling lie about the date of occurrence. Her pregnancy and subjection to Zina‑bil‑Jabr were two different matters and were not inter‑connected so as to provide basis for conjecture for her culpability. For the first time the factum of pregnancy having been caused by Zina‑bil‑Jabr finds mention on 28‑3‑2001, in her statement under section 164, Cr.P.C. but that statement is not proved on record. The Magistrate who recorded the statement has not appeared as a witness. At that time she had also no legal assistance. Besides this we have also observed that the words: I am pregnant due to Zina‑bil‑Jabr of the criminal.(28-3-2001) most visibly appear to have been manipulated and subsequently inserted in between the lines. In her statement under section 342, Cr.P.C. the words "illegitimate child" has been used in a complex question but the poor lady was not asked about the source of her pregnancy anywhere. Thus, she could' not get an opportunity of explaining the incriminating circumstance appearing or finding basis do evidence against her. Although she had the assistance of a counsel at that stage but the least that could be said in this respect is that the case has not been properly conducted.

17. It may also be pertinent to mention that if a person is coerced to commit Zina, that person after subjection of Zina, shall not be liable to any punishment whether Hadd or Ta'zir. The other party who causes coercion shall, however, be liable for punishment either of Hadd or of Ta'zir on the basis of evidence, as the case may be. A number of incidents are reported during the period of Holy Prophet (peace be upon him), as stated above, and in the period of Orthodox Caliphate as well where the women coerced to commit Zina were let of free and acquitted but the co‑accused were convicted and sentenced. (Tirmizi, Bukhari, Abu Daud, Al‑Tashri‑al‑Janai‑al‑Islami by Abdul Qadir Auda, Volume II). It has also been held that in case of pregnancy of woman, either unmarried or, in case of being married, having no access to her husband, conceives but pleads that that was the result of commission of offence of rape on her, she cannot be awarded punishment of Hadd. Imam Malik, however, adds, as mentioned above, that the burden of proving her lack of consent shifts to her and the truth of her statement could be ascertained from the attending circumstances at the time and after the occurrence.

18. In fact this concept is based on the cardinal principle of Islamic Criminal Law that conviction of someone for commission of unlawful sexual intercourse, it is not only necessary to make certain that he/she committed that act, but it is also to be ensured that he/she committed that of his/her own free‑will. In case someone performs that act under compulsion by someone, he/she is neither guilty nor liable to conviction. This position is summed up in the general principle of the Shariah which holds that a man is acquitted of responsibility for acts to which he, has been compelled.

19. The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is ordained to be adopted so that no innocent person gets punishes The point of view prescribed by Islamic Criminal Laws in this connection is evident from the rules based on the following sayings of the Holy Prophet (peace be upon him): (a) "Avoid enforcing Hudood as much as you can". (Ibn Majah). (c) "Keep Hudood away from Muslims as much as possible. If there is any way to spare people from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting someone rather than he should err in punishing someone (who is not guilty)." (Tirmidhi).

20. We may also add that, as pointed out by one of learned counsel of the appellant, an illegality in the conviction has also been committed by the learned trial Court in the instant case. The appellant was charged for commission of offence under section 10(2) of the Ordinance, which falls under the category of Ta'zir (penal punishment) and carries less sentence, however, the appellant has been convicted for 'Rajm', a Hadd punishment, without changing the charge. It is a basic principle of our procedural law that while the charge can be altered at the time of recording conviction from a greater offence to that of lesser offence, in circumstances the vice versa position is not permissible. Hence, on this score also Hadd sentence awarded to the appellant is not maintainable and has to be set aside.

21. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt and consequently, for the reasons stated above, we allow this appeal, set aside conviction and sentences of Mst. Zafran Bibi wife of Niamat Khan and acquit her of the charge. She shall be released forthwith if not required in any other case. Resultantly the criminal reference made for confirmation of the award of Hadd sentence is not confirmed and is answered in negative. M.B.A./76/FSC Appeal allowed.