1985 P Cr (PLP)

"She has been subjected to sexual intercourse." The same lady doctor on 21‑4‑1983 medically examined Mst. Gul Bibi prosecutrix to determine her age and found the following observations:‑ (1) Age given in the school-leaving certificate was 1‑4‑1969. (2) Eruption of teeth. 3rd Molar (wizdom teeth) not erupted. (3) X‑Rays elbow joint, head of the radius and olcranon process of the ulna are partially fused with shaft. X‑ray of Wrist joint: lower ends of the radius and ulna were partially fused with shaft. According to the above examination age of the girl was about 14‑15 years." Dr. Shamsuddin (P.W.2) on 15‑3‑1983 at 2.40 p.m. medically examined Sabir Hussain accused and found him fit for sexual act.

3. H. C. Gul Hussain Shah (P.W.4) on 15‑3‑1983 was handed over a sealed parcel of shalwar, an envelope and phial pertaining to this case which he first kept the same in Malkhana and then on the same day handed over the said parcel to F. C. Phool Pir Shah (P.W.3) and delivered the same intact in the office of the chemical examiner, Lahore on 16‑3‑1983.H.C. Muhammad Hanif (P.W.5) on receipt of complaint from S.I. Zaman Shah (P.W.) recorded the formal F.I.R (Exh. P.E). Mahboob Khan (P.W.6) stated that he knew nothing about this occurrence. At the request of A.P.P this witness was declared hostile and was allowed to be cross‑examined by A.P.P. In cross‑examination by A.P.P. he denied the suggestion that on 3‑3‑1983 at about 6.00 p. m. he was present at the Bus Stand and that he had seen Sabir accused alongwith Mst. Gul Bibi (P.W.) while boarding a Bus which was bound for Rawalpindi. The witness did not know if the parties had effected compromise. He denied the suggestion that he was won over by the accused and was concealing the truth.

4. Mst. Gul Bibi (P.W.7) is the abductee in this case. She had deposed that about 9 months back at about 5.00 a.m. she came out of her house to give water to her maternal‑grandfather namely Muhammad Din. Three persons were standing outside her house and they had muffled their faces and they forcibly put her in a car and took her to Lahore. Those persons confined her in a house at Lahore and those three persons committed zina‑bil‑jabr with her. Then one of them took her to Rawalpindi by train. The police then apprehended her and the boy accompanying her was also arrested by the police. She alongwith that boy was brought to the police, station Hasanabdal by the police. She has further stated that she was compelled by the Police to make a statement and she under the compulsion and threats of the police made a statement before the Magistrate at Attock. She was medically examined by the lady doctor and then the police handed over her to her uncle Gohar Rehman (P.W.). At that stage the prosecutor made a request that the witness was concealing the truth and she be declared hostile and accordingly his request was allowed and he was further allowed to cross‑examine her. In cross‑examination by A.P.P. she denied the suggestion that the Magistrate gave her 1/2 hour to ponder. However, the Magistrate recorded her statement which was Exh.P.F. She had stated before the Magistrate that she was making statement before him under the pressure of the police. She was confronted with Exh.P.F. where it was not so recorded. According to her she had not nominated any person in her statement before the Magistrate. She was confronted with Exh.P.F. where the name of Sabir accused was mentioned. According to her she had not stated before the Magistrate that Sabir Hussain accused committed zina‑bil‑jabr with her. She was confronted with Exh.P.F. here it was so recorded. She had further stated before the Magistrate that Sabir accused forcibly abducted her and took her to the Hill known as Sakhi Baba and kept her there for three days. According to her the contents of Exh.P.F. were correct but she made that statement under the threats of police. Sabir accused was also present in the Court of the Magistrate when her statement Exh.P.F. was recorded and he was afforded an opportunity to cross‑examine her but he did not cross‑examine her. She has deposed that she did not know Sabir accused whether he belonged to her Mohallah. She could not say whether Sabir accused was arrested at the Railway Station alongwith her. She denied the suggestion that due to compromise she was concealing the name of Sabir accused who was arrested at the Railway Station, with her. It is further denied by her that in fact Sabir accused abducted her and committed zina‑bil‑jabr with her. In cross‑examination by the defence counsel, she has deposed that she had named Sabir accused on the asking of the police, as the police threatened her to depose against him. According to her she saw Sabir accused for the first time when he was brought before the Magistrate under custody. To a Court question she admitted that at the time of the alleged occurrence she was virgin and was not married to any one.

5. Hap Gohar Rahman (P.W.8) is the uncle of the abductee Mst. Gul Bibi. He is the complainant in this case. At the relevant time she was living with him in hirp house. He has deposed that months back he had gone to offer his morning prayers. On his return to his house, he found Mst. Gul Bibi missing. He searched for her but in vain. He then drafted an application Exh.P.G. and presented the same before the S.H.O. He has further deposed that Mst. Gul Bibi was recovered after 8‑10 days by the police and she was apprehended at Railway Station, Rawalpindi. At that time, he was present with the police. S.I. Zaman Shah (P.W.9) is the Investigating Officer in this case. On 4‑3‑1983 Gohar Rahman (P.W.) submitted a written application Exh.P.G. before him and after making an endorsement, he sent the same to the Police Station for registration of the case. He visited the spot, prepared the site plan Exh.P.H. and recorded the statements of the P.Ws. He received secret information that Mst. Gul Bibi abductee and Sabir accused were coming to Rawalpindi by Tazgam train on 14‑3‑1983. He arranged a raiding party including Gohar Rahman P.W. and reached Railway Station, Rawalpindi. Tazgam train reached Rawalpindi Railway Station at about 7.00 p.m. Sabir accused and Mst. Gul Bibi P.W. came out of the train and he apprehended them and on their personal search two railway tickets (P.1' and P.2) were recovered and Identity Card of Sabir accused (P.3) and currency notes worth Rs.25 (P.4/1‑7) were seized vide memo. Exh.P.J. He brought Sabir accused from Rawalpindi to Attock and got him medically examined. He also got Mst. Gul Bibi P.W. medically examined at Hasanabdal. After medical examination the lady doctor handed over to him shalwar of Mst. Gul Bibi, a phial and an envelope which he handed over to Moharrar Muhammad Hanif. He also ascertained the age of Mst. Gul Bibi P.W. from the same lady doctor. He got recorded her statement under section 164, Cr.P.C. from the Magistrate on 16‑3‑1983. On the completion of the investigation, he challaned the accused. In cross examination he has admitted that he did not make any employee of the Railway at Rawalpindi to join the investigation and did not cite any witness of Exh.P.J. It is admitted by him that before the statement of Mst. Gul Bibi was recorded under section 164, Cr.P.C. by the Magistrate, she remained at the police post alongwith her uncle Gohar Rahman (P.W.). He‑has denied the defence suggestion that Mst. Gul Bibi made her statement before the Magistrate at his instance and that he tutored her to depose against the accused. It is further denied by him that he thereatened her to depose against the accused and that he did not arrest Sabir accused from Rawalpindi Railway Station but he was subsequently arrested after 14‑3‑1983 and took his identity card after 14‑3‑1983.

6. Malik Abdur Rahim (P.W.10) was at the relevant time Magistrate 1st class at Attock. According to him on 16‑3‑1983 he recorded the statement of Mst. Gul Bibi P.W. under section 164, Cr.P.C. (Exh.P.F.) After recording her statement, Sabir accused was also called in Court and he remained present there. Her statement was read over to him and he was given an opportunity to cross‑examine her but he declined. In cross‑examination by defence this witness has denied the suggestion that Zaman Shah S.I. (P.W.) was present inside the Court when he recorded the statement of Mst. Gul Bibi. It is further denied by him that before recording her statement, Mst. Gul Bibi told him that she was deposing under the pressure of said S.I. It is further denied by him that Mst. Gul Bibi disclosed before him that in case she did not state in favour of the prosecution, she would also be arraigned as an accused person.

7. Sabir Hussain accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations. He stated that he was not arrested alongwith Mst. Gul Bibi at Railway Station, Rawlapindi nor was any ticket recovered from him. The Investigating Officer, however took into possession his identity card. About the statement of Mst. Gul Bibi recorded under section 164, Cr.P.C. before Malik Abdur Rahim, MIC (P.W.10), he stated that the statement was not recorded in his presence. According to him only the identity card Exh.P.3 belonged to him and rest of the articles did not belong to him. The SHO summoned him from his house and he was arrested and his identity card was seized. The accused produced no evidence in defence.

8. The trial court vide impugned judgment convicted and sentenced Sabir Hussain accused as mentioned above.

9. I have heard at length the counsel for the parties and have also perused the entire material available on the record.

10. It is contended by the learned defence counsel that this is a case of no evidene because Mst. Gul Bibi prosecutrix and Mahbub Khan P.Ws. who were the main witnesses of the prosecution on merits, have not supported the prosecution but were declared hostile and A.P.P. was also allowed to cross‑examine them. Other witnesses of the prosecu tion ‑are only formal and Government officials. In reply, the learned State counsel has argued that the statement of Mst. Gul Bibi recorded earlier under section 164, Cr. P. C. by the Magistrate (Exh. P. F.) corrobo rated by medical evidence, the report of the Chemical Examiner Exh.P.K and apprehension of the accused and the abductee together from Rawalpindi Railway Station is sufficient to maintain the conviction of the appellant. In other words, the foundation of the prosecution case is the statement of prosecutrix Mst. Gul Bibi recorded under section 164, Cr.P.C. by the Magistrate (Exh.P.F.). She was duly confronted by A.P.P. in cross‑examination with the said statement. She has admitted the contents of that statement but has alleged that she made that statement under the pressure of the police. This allegation of pressure and threats of the police at the time of recording her said statement Exh. P.F. has acquired rather significance. Thus we have to see whether the said statement was voluntary in nature or made under pressure and threats of the police. I have minutely perused the said statement Exh. P.F. The last portion of this statement reads as under:‑ After the said statement there is the following note by the Magistrate:‑ It is alleged by the defence that the following signs and words support the allegation of the prosecutrix that she might have made the said statement under the pressure of the police otherwise there was no justification for the absence of the accused during the period when her statement was actually recorded:‑ Summoning of the accused to the court after the completion of the said statement and then reading over that statement to him and then to ask him to cross‑examine the prosecutrix creates some element of doubt in the prosecution version. No reason has been assigned for the absence of the accused during the recording of her statement. The note of the Magistrate after her statement clearly shows that the appellant was absent during the recording of her statement. Admittedly, the accused was absent during the period when the statement of the prosecutrix was recorded, there was no justification for showing the above‑mentioned signs of cross‑examination and writing that opportunity of cross examination given but not availed off. When he accused was absent from the Court, the question of cross‑examining the prosecutrix by him would not arise. It is nobody's case that the accused was represented by the counsel or somebody else at that time he allegation of the defence is that the above‑mentioned signs of cross‑examination (x x x) and the words were added subsequently because the space between two lines is not the same as the space in the remaining statement. The learned State counsel has not been able to explain this addition of the said signs and words in that manner at that stage. Further an opportunity to cross‑examine her at that stage is belied by the subsequent note of the learned Magistrate when he accused was summoned in the court later on. It was at that later stage when the accused was called before the Magistrate and the statement of the prosecutrix was read over to him that the said signs of the cross examination and the words reproduced above, might have been added. The said note further shows that the accused, at that stage, was afforded an opportunity to cross‑examine the prosecutrix. If the accused was given an opportunity at that later stage, there was no justification of showing that an opportunity of cross‑examination was earlier given to the accused but was not availed of. There is no explanation why the accused was not present in the court when the statement of Mst. Gul Bibi prosecutrix was recorded under section 164, Cr.P.C. by the Magistrate. According to the defence the only possible explanation in this regard is that the police wanted her statement in a particular manner and perhaps in the presence of the accused, she could not depose according to the wishes of the police. It is further alleged that the investigating officer might have been present in the court during her examination and if the accused had been present in the court at that time, he would have objected to the same and in the absence of the police officer, perhaps she could not give the required statement. I have given my anxious consideration to the said statement of Mst. Gul Bibi prosecutrix (Exh. P.F.) and the manner in which it was recorded and entertain serious doubts regarding bona fides of the prosecution. In the circumstances, the possibility that Mst. Gul Bibi gave that statement Exh. P.F. under the pressure of the police cannot be ruled out. This inference is further supported by the fact that although she was recovered on 14‑3‑1983, yet her statement under section 164, Cr.P.C. was recorded on 16‑3‑1983 and till then she remained with the police. As mentioned above her medical examination was conducted earlier on 15‑3‑1983. It is not denied even by the learned State counsel that the investigating officer should have given preference to her statement under section 164, Cr.P.C. over her medical examination and her said statement should have been recorded at the earliest after her recovery. The delay in this behalf also creates some doubt against the prosecution. In the circumstances, it can reasonably be inferred that the statement of Mst. Gul Bibi prosecutrix recorded under section 164, Cr.P.C. was not voluntary but was made under the police pressure.

11. Another legal infirmity found in the prosecution case is that according to subsection (1‑A) of section 164, Cr.P.C., any such statement may be recorded by such Magistrate in the presence of the accused who is also given any opportunity of cross‑examining the witness making the statement. In other words, the statement of such a witness under section 164, Cr.P.C. is to be recorded in the presence of the accused. Reason for the presence of the accused is obvious that he is given an opportunity of cross‑examining that witness and to see whether the witness is making statement voluntarily or not. In the instant case, it is an admitted fact that the statement of Mst. Gul Bibi prosecutrix was not recorded in the presence of Sabir accused but he was called in the court of the Magistrate subsequently and then her statement was read over to him and then was given opportunity to cross‑examine her but he did not avail the same. According to the learned State counsel, the words "in the presence of the accused" are not mandatory and if immediately thereafter the accused was produced before the Magistrate who had recorded the said statement and the same was duly read over to him, the spirit of law has been complied with and no prejudice has been caused to the accused because opportunity of crossexamining the prosecutrix was given to him. According to the State counsel, the word "presence" also means "constructive presence". I do not agree with him. The word "presence" in section 164(1‑A), Cr.P.C.1 implies actual physical presence and not mere constructive presence. The word "presence" means the physical existence of a person in a particular place at a given time with reference to a particular act or happening. "Presence" is opposite of "absence" which connotes non- existence. In the instant case, admittedly Sabir accused was not present during the period when the statement of Mst. Gul Bibi prosecutrix (Exh.P.F.) was actually recorded under section 164, Cr. P.C. and therefore, provisions of subsection (1‑A) of section 164, Cr.P.C. have not been legally complied with. The accused, in the circumstances, has been materially prejudiced due to his absence during the actual recording of her statement under section 164, Cr. P.C. because he could neither see her demeanour nor could judge whether she was making the statement voluntarily or under the pressure of the police. He could also not see whether the police officer was present in the court room at the relevant time or not. It is not denied that in the presence of the accused the police could not exert any influence over the prosecutrix and she could also feel more independent and free in the presence of the accused. Since the said statement of Mst. Gul Bibi prosecutrix Exh.P.F. was neither voluntary nor made in the presence of Sabir accused, it is not safe to make such statement as the basis for the conviction of the accused. The other corroborative pieces of the evidence alone would not be sufficient to justify the conviction of the appellant. On this short ground alone, this appeal is liable to be accepted. The learned defence counsel has tried to raise some other technical objections but in view of my above finding, it is not necessary to discuss such technical pleas.

12. For the foregoing reasons, this appeal is accepted, the conviction and sentences of Sabir Hussain, appellant are set aside and he is acquitted of the charge. He is already on bail and his bail bond shall stand discharged. M.Y.H Appeal accepted.