P L D 1988 Federal Shariat Court 53 (PLP)

MUFTAKHIRUDDIN, J.‑‑This is an appeal by special leave granted by this Court on 1‑6‑1987 and is directed against the order of acquittal dated 17<2‑1987 passed by Mr. Muhammad Saddique Javaid Chaudhry, Additional Sessions Judge, Toba Tek Singh, on a complaint filed by Muhammad Bashir son of Atta Muhammad, the appellant herein. On or about 7‑12‑1983 Muhammad Bashir son of Atta Muhammad caste Jatt resident of Chak No.301/G.B. Tehsil and District Toba Tek Singh filed a complaint against Muhammad Ashraf (Respondent No.1) Qurban (Respondent No.2) Mst. Khurshid Bibi (Respondent No.3) and Abdul Rehman Dogar A.S.I. (Respondent No.4) and eight others and it was alleged therein that Mst. Faiz Bibi, his wife, had informed him that his daughter Mst. Shamim alias Shammon aged about 13/14 years was missing from the house since the night between 18th/19th July, 1983 (he himself being away from the house that night). On search made in the locality Allah Ditta son of Muhammad Bakhsh and Wazir Ali son of Sharifuddin both residents of the village informed' the complainant that Mst. Shamim was seen by them at 3‑00 a.m. (night) in the company of Muhammad Ashraf, Qurban and Mst. Khurshid Bibi near the Railway Station Dabanwala, On search of the house ornaments (silver and golden) and cash Rs.3,000 were also found stolen. The complainant, therefore, contacted the relations of the respondents for the return of his daughter but in vain. An attempt was made to lodge the report at the police station but on account of the influence of the accused persons he was not attended to. Ultimately, on a writ petition filed in the Lahore High Court the S.H.O. Police Station Chutyana was directed to register the case in October, 1983, since the local police officials had been annoyed the facts narrated by him were not properly recorded, the complainants well‑wishers who had accompanied him to the police station were involved. Hence the private complaint was filed wherein the facts in detail were narrated. The challan case and the private complaint were heard together and the accused persons were acquitted vide order dated 17‑2‑1987.

2. The details are contained in the complaint referred above and besides the respondents herein, one Muhammad Rafiq (since dead) and his son Maqsood Ahmad and Barkat Ali and five police officials named therein were also involved. It is stated in the complaint that on 22‑10‑1983 the complainant was accompanied by his cousin named Muhammad Yousaf, Abdul Razzak his relative, Moulvi Muhammad Sharif Pesh‑Imam of village Mosque and his brother Atta Ullah had gone to the Superintendent of Police Toba Tek Singh who directed the S.H.O. to recover the abductee. But those persons were arrested and in the night at about 11‑00 p.m. were undressed and beaten. The next night the maltreatment was repeated and the persons arrested were asked to confess and compelled to say that in fact they had abducted Mst. Shamim. After 3/4 days at night Abdul Rehman Dogar, A.S.I., took Maulvi Muhammad Sharif and Maqsood in a white car to an unknown place and after 2/3 hours Mst. Shamim was brought to the police station. It is also alleged in the complaint that Abdul Rehman Dogar had ordered Maqsood and Ghulam Hussain a Police Constable to undress the abductee and press her nipples which was resented by Maulvi Muhammad Sharif. She was produced before the Superintendent of Police and it was desired by the police that Mst. Shamim should say that in fact she was abducted by Attaullah the brother of Moulvi Muhammad Sharif but they did not obey the police. She was brought back and kept confined at police post 40000. There also police treated them cruelly. Abdul Rehman Dogar, A.S. I. committed Zina‑bil‑jabr with Mst. Shamim. She was not provided meals even. An application for bail was presented before the Sessions Judge Toba Tek Singh. On 7‑11‑1983 Mst. Shamim was produced before the Court, her statement was recorded and vide order dated 7‑11‑1983 Mst. Shamim was released on bail and was permitted to go with her father (complainant). She was not able to walk even. The complainant got her medically treated. After some time all the persons were let off except (companions of the complainant) those involved in the case. The complaint contained the assertion that Mst. Shamim alias Shammon, Muhammad Sharif, Muhammad Yousaf and Abdul Razzak and Attaullah aforesaid had narrated the incident in detail to the complainant. His daughter had disclosed that Muhammad Ashraf, Qurban had taken her to different places and had been committing Zina with her. She was kept for 3/4 days in the house of Baba Muhammad Rafiq where she was guarded by him and his son Maqsood Ahmad. Muhammad Rafiq had advised the accused to cause abortion and Barkat Ali (one of the accused) had brought one mid‑wife who had, attempted to cause abortion.

3. The trial Court charged Muhammad Ashraf with offences punishable under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and also under section 313/511, P.P.C. and under section 221, P.P.C. Qurban was charged under sections 11 and 10(3) of the above‑said Ordinance and also under section 313/511, P.P.C. Mst. Khurshid was charged under section 11 read with section 10(3) of the said Ordinance while Abdul Rehman Dogar was charged for offence under section 10(3) of the said Ordinance and also under sections 342/354 and 506, P.P. C.

4. At the trial the complainant/appellant produced only nine witnesses. They are P.W.1. Muhammad Bashir the complainant, P.W.2 Faiz Bibi wife of the complainant, P.W.3 Allah Ditty, P.W.4 Mst. Shamim Bibi the prosecutrix, P.W.5 Maulvi Muhammad Sharif, P.W.6 Attaullah, P.W.7 Abdul Razzak, P.W.8 Muhammad Anwar and P.W.9 Lady Doctor Mrs. Atyia Sultana and produced the copies of the statement of Wali Muhammad Exh.P.B. and that of Nasrullah S.I. Exh. P. C. and the order dated 7‑11‑1983 Exh. P. D. passed by Sessions Judge and closed the prosecution case.

5. The accused/respondents denied the accusations and pleaded innocence. Abdul, Rehman A.S.I. took the stand that he was not concerned as he did not conduct the investigation at all. In fact Mst. Shamim and Attaullah had been challaned by that police station and he had been involved falsely. Nazar Muhammad resident of Chak No.301/G.B. D.W.1 Chiragh Muhammad son of Amir Ahmad a local Councillor of the village Chak No.301/GB were produced in defence. Nazar Muhammad D.W.1 deposed that he knew the‑ complainant and his daughter Mst. Shamim Bibi. She was abducted by Attaullah, the brother of Muhammad Sharif, Pesh‑Imam of the Mosque in Chak No.301/GB. A Punchayat was convened in the village and Muhammad Sharif had confessed that his brother Attaullah had abducted Mst. Shamim alias Shammon and had taken her to his residence at Dera Din Panah. Maulvi Muhammad Sharif led the police to that house wherefrom Mst. Shamim Bibi was recovered. Attaullah was outside the house but seeing the police party made good his escape. Mst. Shamim was brought to the police station Chutyana. No. body had outraged the modesty of Mst. Shamim or committed Zina upon her. Chiragh Muhammad D.W. 2 local Councillor stated before the Court that Maulvi Muhammad Sharif P.W. was Imam. Masjid in his village. His brother Attaullah used to visit the village. Sharif was turned out from the village as he was found not of good character. The witness deposed that Mst. Shamim was recovered from Attaullah at Dera Din Panah. The witness remained with the police during the investigation and refuted the allegation of zina as alleged by Mst. Shamim Bibi. The trial Court has disbelieved the version set up in the complaint filed by the father of the prosecutrix and expressed in the judgment that The complainant had built up the case just because his daughter had been challaned by the police for having suffered Zina and elopement with her co‑accused Attaullah and the prosecution witnesses produced at the trial are highly interested and have strong motive to implicate the accused particularly the police officials. " In the opinion of the trial Court Moulvi Muhammad Sharif P.W.5 has supported the complainant because brother' Attaullah P.W.6 was involved in the case.

6. We have examined the record and the evidence in this case and have endeavoured to form our opinion as to facts relevant to the acceptance or otherwise of that evidence ‑not for purpose of substituting our conclusions for those of the trial Court but because it was contended by the learned counsel for the appellant that the evidence has not been properly appreciated rather 'it is misread.

7. Mst. Shamim P. W.4 the prosecutrix deposed at the trial that Mst. Khurshid Bibi (Respondent No.3) had come at mid‑night to her house and had called her to hear the message (what was the message which persuaded Mst. Shamim to accompany Mst. Khurshid Bibi is not disclosed). Then she accompanied Mst. Khurshid and went out of the house and on their way Ashraf and Qurban met. Then they reached Railway Station Dubanwala. There met Allah Ditta P.W.3 and Nazir Ali (not produced). It was about 3‑00 a.m. In the cross- examination Mst. Shamim stated that from the Railway Station Ali Sher of Chutiana she was taken on a Scooter to Chak No.316 by Ashraf and Qurban and Mst. Khurshid was with them on the same Scooter. What is the relationship, and mental nexus between Mst. Khurshid and Ashraf and Qurban which could pursued Mst. Khurshid Bibi to join hands with them or be instrumental in the enticement is not brought on record. The story set up by the prosecutrix about the role of Mst. Khurshid Bibi in the so‑called enticement does not appeal to reason. Had Mst. Shamim been taken against her wishes there was nothing to prevent her to say so when she came across Allah Ditta and Nazir Ahmad (neighbours‑people of her brotherhood (ﻯﺭﺩﺍﺭﺑ) and who were known to her). Allah Ditta P.W.3 has stated at the trial that he had seen Qurban and Ashraf and Mst. Khurshid Bibi and Mst. Shamim together and they had told him (witness) that they were going to join some marriage (where and whose marriage not disclosed nor enquired about by the witness). P.W.3 has been confronted with his previous statement Exh.P.B. where there is no mention that the accused were seen with Mst. Shamim. The trial Court has not believed Allah Ditta nor the story of abduction/ enticement set up by the prosecutrix. The complaint lodged by the father of the prosecutrix contains the allegation that ornaments and cash worth Rs.3,000 (Rupees three thousand only) were also taken away from the house but at the trial this part has been disowned by the complainant for the obvious reason that it exposes his own daughter and does not reflect well on her character.

8. Mst. Shamim has alleged that she was mercilessly beaten by the police at the instance of Abdul Rehman Dogar A.S.I. and has been raped at Police Station Chhutiana where Moulvi Sharif P.W.5 was present at the police station and thereafter at Chauki 40000 where too Abdul Rehman Dogar, A.S.I. committed Zina with her and Zina was committed within a constructed building at Phatak No.12 and she was kept in confinement for two days. P.W.5 Moulvi Muhammad Sharif did not corroborate Mst. Shamim about the commission of Zina at the Police Station Chtiana though he had stated that Mst. Shamim was beaten by the police officials at Thana. This witness also does not support the prosecutrix that she was undressed by the police officials or that Abdul Rehman Dogar, A.S.I. committed Zina. Mst. Shamim has alleged that the accused Abdul Rehman Dogar has committed Zina with her in a constructed building at crossing Phatak No.12. Moulvi Muhammad Sharif admitted that there is no building at crossing Phatak No.12 and said that a tent was raised and installed there. Attaullah P.W.6 and Abdul Razzak P.W.7 have attempted to exaggerate the incident and have gone to the limit that Mst. Shamim was taken in a sugarcane field where Zina was committed by Abdul Rehman Dogar. Both these two witnesses have thus said what even Mst. Shamim did not allege about Abdul Rehman Dogar. Mst. Shamim has alleged that Zina was committed at the house of Baba Rafiq where she was kept for 3/4 days and thereafter was taken to an unknown place where from she was taken and brought to the police station in a car. At the house of Baba Rafiq an attempt to cause abortion was made but at the trial her father showed ignorance about any conception carried by Mst. Shamim though he has appeared in Court on 30‑3‑1986 and Mst. Shamim was allowed to go with him by the order dated 7‑11‑1983 by the Sessions Judge. Mst. Shamim did not complain about the commission of Zina by Abdul Rehman Dogar when she appeared before the Superintendent of Police nor thereafter before the Sessions Judge. We are of the considered view that Mst. Shamim (the prosecutrix) is not a truthful witness. The testimony of the prosecution witnesses suffers from commissions and improvements and is not uniform and the exaggerations as demonstrated above have rendered the prosecution case highly doubtful. The trial Court has rightly concluded that it is not safe to convict the accused/appellants. The principles governing the question and scope of interference with the order of acquittal are now well‑settled. They seem to indicate that unless it is possible to demonstrate with certainty that none of the grounds upon which the learned trial Judge has purported to acquit is at all supportable the appellate Court would be reluctant to interfere. In our opinion the learned Additional Sessions Judge has based his findings on the evidence on record. He had taken a possible view of the evidence on record and it cannot be held that the finding of acquittal recorded by him in favour of the respondents was arbitrary or capricious. We do not find any error of law or serious error of fact having been committed at the trial in appreciating the ocular testimony. No exception, therefore, can be taken to the finding of acquittal recorded by the Additional Sessions Judge. This appeal has no force and is accordingly dismissed. The bail bonds of the respondents are discharged. M.Y.H./403/F.Sh. Appeal dismissed.