1993SCMR1822 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.‑‑‑The above appeal with leave of this Court is filed on behalf of the State to call in question the order of Federal Shariat Court, dated 27‑4‑1988, whereby the conviction and sentence awarded to respondent by the Additional Sessions Judge, Gujranwala, under section 6 (3) (b) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be called as "the Ordinance" only) was set aside and respondent was acquitted in the case. The leave granting order, in the case, is as follows:‑‑ "This is a very unusual case. The respondent Muhammad Naseer, it is alleged, was deeply in love with a young lady Mst. Farhat but was unable to come close to her before she died on 11‑2‑1987. She was buried on the same day at about 11 p.m. in Pir Mitha Graveyard at Wazirabad. On the night between 11/12 February 1987, the respondent allegedly took out the dead body of Mst. Farhat from her grave and committed Zina upon her. Next day at about 10 a.m. the father of Mst. Farhat, one Muhammad Hussain received information that the corpse of his daughter was not in her grave. Consequently, he went to the graveyard and found the naked dead body of his daughter lying at a distance from her grave under the cover of wall. It was also discovered that the dead body of the deceased had been disgraced by some persons by taking her out of the grave and leaving her naked in the open. The dead body was thereupon reburied. Sometime later the respondent was arrested and was found on arrest in possession of unlicensed arm i.e. Carbine and some Charas. He also disclosed that he had committed Zina on Mst. Farhat. Whereupon the dead body was exhumed under the orders of the District Magistrate and medical examination of the same conducted. Swabs taken from the private parts of the dead body were found to be stained with semen. The accused was also medically examined and swabs taken; 3 from his penus and glans and 3 from perineal. These were also stained with semen. The accused was, accordingly, challaned under section 8 (3) (b) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for the offence of Zina‑bil‑Jabr upon the dead body of the deceased. On conclusion of his trial he was sentenced to death, subject to the confirmation of the Federal Shariat Court and also imposed the punishment of 100 stripes to be inflicted at a public place. On appeal and reference, the Federal Shariat Court came to the conclusion that although Zina could be committed against the dead body of a female as the definition of Zina as given in section 4 of the Ordinance VII of 1979 and the provision of section 6 thereof did cover the offence committed against the dead body but, in the circumstances of this case, since the conviction was based on the confession of the respondent which was later retracted, the same could not be sustained. According to the learned Judges of the Fedeal Shariat Court, the confession on which reliance can be placed for the purpose of Hadd sentence must be made four times in four different meetings. In this case, the confession was made in the statement under section 164, Cr.P.C. and this was made before a Magistrate, who, according to the learned Federal Shariat Court, was not the competent Court. Moreover, this was made only once and not four times. Furthermore, instead sending the accused to the judicial lock‑up after he had made the confession, he was returned to the custody of the police. The Court further held that no sentence of Hadd in a Zina case could be imposed without the requirement of four eye‑witnesses whereas in this case the conviction was based on the circumstantial evidence. Admittedly, there were no eye‑witnesses of the occurrence and there was no direct evidence of any sort of record. The circumstantial evidence moreover also did not connect the accused with the crime. The Federal Shariat Court also considered the recoveries as doubtful. In the result, the respondent was acquitted and ordered to be released. In this petition for leave, some important questions of law arise for consideration, inter alia, whether Zina can be committed against the A deadly body; which is the competent court before whom a valid confession can be made and what is the value of a retracted confession under Islamic Law etc. Leave is, accordingly, granted. The appeal shall be heard on the present record at an early date." The prosecution story is that Mst. Farhat, an unmarried girl aged about 21 years died after prolonged illness on 11‑2‑1987. She was buried same night in Pir Mitha Shah Graveyard at about 11 p.m. Her dead body was taken out from the grave between the night of 11th and 12th February, 1987 by some unknown persons and was left naked after committing rape with it, by the side of a wall at a short distance from her grave. The father of the deceased, Muhammad Hussain (P.W. 4) was informed by some person on the next day that the dead body of his daughter Mst. Farhat, was not in her grave. He, therefore, accompanied by his two brothers, Muhammad Naeem Chughtai (not produced) and Muhammad Naseem Chughtai (not produced) went to the graveyard and found the dead body of Mst. Farhat in naked condition at some distance from her grave by the side of a wall. Muhammad Hussain (P.W.4) leaving behind his brothers, Muhammad Naseem and Muhammad Naeem, with the dead body of Mst. Fathat went to Police Station City, Wazirabad to lodge the report. Rana Meharban Khan, S.H.O./S.I (P.W. 14) after registration of F.I.R. visited the scene of offence and prepared the sketch of the site (Exh. PO) showing the place where the dead body of Mst. Farhat was found. The dead body of Mst. Farhat was buried on the same day after providing a new shroud. The respondent was arrested by SHO/SI Rana Meharban Khan on 13‑2‑1987 near Palku Nala, Wazirahad, on suspicion. On his personal search, a Carbine and "Bhang" were allegedly recovered from his possession. According to statement of Rana Meharhan Khan before the trial Court, the respondent admitted before him that he had committed `Zinc' with the dead body of Mst. Farhat. Rana Meharban Khan, accordingly, submitted an application (Exh. PQ) on 14‑2‑1987 before the S.D.M., Wazirabad, for permission to exhume the body of Mst. Farhat from her grave for medical examination which was granted on 15‑2‑1987. Rana Meharban Khan (P.W.14) accompanied by Magistrate Sh. Salim Iqbal (P.W.12), Dr. Arshad Chaudhry (not produced), Dr. Shughufta Shaheen (P.W.1) proceeded to the graveyard. The grave of Mst. Farhat was pointed out by his father Muhammad Hussain, which was dug open by Muhammad Rafique (P.W.10). The dead body of Mst. Farhat was identified by her father which was handed over to Dr. Shughufta Shaheen for examination. Dr. Shughufta medically examined it and took two swabs from the vagina for detection of semen. The body of Mst. Farhat was reburied in her grave after completion of medical examination. The same day respondent also allegedly led to the recovery of a `Kassi' (Exh. P.1), from the graveyard which was witnessed by Parvez Shoukat (P.W. 9) vide recovery memo. (Exh.PG.) The same day, S.I. Rana Meharban Khan took the accused before Malik Muhammad Bux, Magistrate Ist Class (P.W. 13) for recording his confessional statement which was recorded at 4 p.m. On 16‑2‑1987 the accused was medically examined to test his potency by Dr. Manzoor Hussain (P.W.2) Medical Officer, District Headquarters Hospital, Gujranwala, After completion of usual investigation, police challaned the accused before the Additional Sessions Judge,. Gujranwala. The respondent denied the charges and claimed trial. The prosecution examined 14 witnesses, besides producing in evidence the chemical examiner's report regarding two swabs taken from the vagina of the dead body of Mst. Farhat (Exh. P.B), chemical examiner's report regaling swabs from prepuce and glans perineal area of the accused/respondent (Exh.PC) and retracted confession of the accused/respondent recorded under section 164, Cr.P.C. (Exhs.P.W.l, P.W.2 and P.W.3), in support of the charge. The trial Court found the respondent/accused guilty of offence under section 6 (3) (b) of the Ordinance and sentenced him to death and 100 stripes in public. On appeal the learned Federal Shariat Court found that the prosecution failed to prove the charge against respondent beyond reasonable doubt and consequently acquitted him in the case giving rise to the present appeal. The learned Advocate‑General, Punjab very vehemently argued that the learned Federal Shariat Court having reached the conclusion that sexual intercourse with a dead body amounted to offence of `Zina' should have punished the respondent for the offence by way of `Tazir' if no case for imposition of `Hadd' was made out. The learned Advocate‑General contended that commission of offence of `Zinc' was proved by the voluntary confession of the respondent duly recorded before a Magistrate, which was corroborated by the medical evidence in the case. The learned counsel for the respondent, on the other hand, supported the judgment of Federal Shariat Court acquitting the respondent on the ground that the prosecution failed to establish the case against him beyond reasonable doubts. We have heard the learned counsel for the parties at length and are of the view that it is not necessary in this case to decide various legal points noted in the leave granting order as we are not inclined to interfere with the acquittal of the respondent on merits. The learned Advocate‑General, Punjab very candidly stated before us that the conviction of respondent by the trial Court under section 6 (3) of the Ordinance was not sustainable in law as the offence of `Zina' liable to Hadd could not be proved against the respondent, as required under section 8 of the Ordinance. The learned Advocate‑General, however, contended with vehemence that the prosecution succeeded in proving the offence of `Zina' liable to `Tazir' against the respondent and as such the learned Federal Shariat Court should have convicted the respondent under section to of the Ordinance. The only evidence directly connecting the respondent with the offence of zina, in this case, is his confessional statement which he allegedly recorded before the Magistrate on 15‑2‑1987, after his arrest by the police. The respondent, however, retracted from his confession at the trial and denied even having made any such confessional statement. It is true that the conviction of an accused could be based on his retracted confession if the Court finds that it was made voluntarily and was true. However, the superior Courts have consistently held, and it has now become almost a well settled rule of prudence in criminal cases, that the Courts before convicting an accused for a criminal offence on the basis of his retracted confession must look for its corroboration in material particulars from other independent pieces of evidence in the case. If any authority is needed for the above proposition, reference may be made to the cases of Nadir Hussain v. The Crown (1969 SCMR 442), Muhammad Amin v. The State (PLD 1990 SC 484) and Muhammad Yaqoob v. The State (1992 SCMR 1983). We will, therefore, now proceed to examine in the present case, whether the confessional statement of respondent relied by the learned Advocate‑General, Punjab, was true and voluntary and that it found corroboration in material particulars from other independent pieces of evidence in the case. Rana Meharban Khan (P.W.14) in his evidence before the trial Court stated that he arrested the respondent on 13‑2‑1987 and on the same day, on interrogation, the respondent admitted before him that he had committed `Zinc' with the dead body of Mst. Farhat. The respondent was kept in custody by the Police for two more days before producing him before the Magistrate for recording his confession. Rana Meharban Khan, in his evidence before the Court (examination‑in‑chief) made the following statement in connection with the recording of confessional statement of respondent before the Magistrate:‑‑ "On 15‑2‑1987, 1 submitted an application Exh.PJ to the D.M., Gujranwala, for recording the statements of Jafar and Parvez Shaukat P.W.s. and their statements were recorded. During investigation the accused admitted before me that he had committed Zina with the dead body of Mst. Farhat. Accordingly I submitted an application to the D.M., Gujranwala which was sent to Malik Muhammad Bux MIC (P.W.) who recorded the confessional statement of the accused. At the time of recording of confessional statement of the accused, the Magistrate sent me out from the Court room and after recording the statement he sent the accused to the judicial lock‑up." There is nothing in the above statement of P.W.14 to show that the respondent while in Police custody had volunteered to make a confessional statement before the Magistrate. Further the statement of P.W.14 that the respondent was sent to judicial lock‑up after recording his confessional statement was also incorrect as he made the following admission in his cross- examination: "I took the accused before the Magistrate at 4‑00 p.m. for recording his statement. The Magistrate also recorded his statement at the same time. The accused was not sent to judicial lock‑up after recording his confessional statement under section 164, Cr.P.C. but he was sent to judicial lock‑up next day, after his medical examination." According to the material on record the respondent was taken to the Magistrate for recording his confession, by P.W.14, at 4 p.m. and his custom was handed back at 4‑30 p.m. This would show that respondent hardly had any reasonable time at his disposal to think over, before recording his confession. The above‑stated circumstances cast doubt as to the voluntary nature of the confession of respondent. The learned Advocate‑General, Punjab, tried to show that the accused was not sent to judicial lock‑up after recording his confession for security reasons. The learned Advocate General relied on the following answer given by P.W.14 in reply to a Court question put to him by the Presiding Officer after his cross‑examination was over:‑‑ "Court question, Q. Why did you not send the accused to the judicial lock‑up after his confessional statement? A, Since the law and order situation had arisen and there was an angry crowd in search of the present accused and the police force was not sufficient, therefore, the accused was taken to the P.S. instead of sending him judicial lock‑up to save his life, though the Magistrate passed an order for taking the accused to judicial lock up. R.O. & A.C. Dated. 4‑3‑1987." The above statement of P.W. 14 is hardly of any help to the prosecution in the case. Firstly, P.W.14 gave no such explanation that it was not safe to take the respondent to judicial lock‑up after his confessional statement was recorded, either in his examination‑in‑chief or in his cross‑examination. Secondly, if the respondent could be taken safely by the police to the police lock‑up after his confession, it is not understood what risk was involved in sending him to judicial lock‑up. We are, therefore, of the view that the prosecution failed to show that the respondent made the confession voluntarily. The learned Advocate‑General, Punjab contended that the retracted confession of the respondent found corroboration from the medical evidence in the case and the recovery of `Kassi' at the pointation of accused. The corroboration of material particulars of the retracted confession with other pieces of independent evidence in the case would mean corroboration of those parts of retracted confession with other pieces of evidence in the case which would establish the link of accused with the commission of the offence with which he is charged. In his retracted confession the respondent allegedly admitted that he committed `Zina' with the dead body of Mst. Farhat.' Therefore, in order to make the retracted confession of respondent, a valid basis for his conviction for the offence of `Zinc', corroboration of two material facts; namely, that the offence of `Zina' was committed with the dead body of Mst. Farhat and that it was the respondent who committed this act, was needed in the case. The medical evidence in the case referred by the learned Advocate General, Punjab, only proved the commission of `Zina' with the dead body of Mst. Farhat. This evidence hardly provides any corroboration to the most important part of the retracted confession of respondent, namely, that the accused/respondent was responsible for committing the act of `Zina' with the dead body of Mst. Farhat. We are, therefore, of the view that a very material part of the retracted confession of the respondent that he committed the act of `Zana' with the dead body of Mst. Farhat remained uncorroborated by any other evidence in the case. The next piece of corroborative evidence, relied by the learned Advocate‑General, is the recovery of `Kassi' at the pointation of respondent. The learned Federal Shariat Court did not believe this piece of prosecution evidence and commented on it as follows, in the impugned judgment:‑‑ "

41. Next is the evidence of recovery of `Kassi' and pointation by the accused of the gave and the place where he committed the offence. This was done in the presence of Pervez Shaukat P.W.9 who was joined in the investigation after he went to Rana Meharban Khan, S.H.O. P.W.14 to inquire about the progress of this case. This witness, however, did not disclose his interest in the case. The occurrence took place on the night between 11th and 12th. The accused was arrested on the 13th. He pointed out and got recovered `Kassi' on 15th from an open space in the graveyard. The `Kassi' did not belong to the accused and he had picked up the same from the graveyard. It is thus strange that it kept lying there for 4 days." The principles governing the appraisal of evidence in an acquittal appeal before the Supreme Court were succinctly stated in the case of. Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) as follows:‑‑ "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other case‑law on the question of setting aside an acquittal by this Court. They are as follows:‑‑ (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re‑appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well‑accepted presumptions: One initial, that till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquitted will not only carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) In either case the well‑known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the, foregoing searching light, should be found wholly as artificial, shocking and ridiculous:' The learned Federal Shariat Court while acquitting the respondent in the case neither misread any evidence nor disregarded any material evidence on record. The reasoning of the Federal Shariat Court acquitting the respondent on merit are based on a possible view of the evidence on record which could not be interfered with by this Court, in an acquittal appeal on the above‑stated principles. No case for interference is made out. The appeal is, accordingly, dismissed. In view of the majority opinion, the appeal is dismissed. M.BA./S‑761/S Appeal dismissed,