PLJ 2005 Cr.C. (
[
Present : Ijaz Ahmad Chaudhary & M.A. Shahid Siddiqui, JJ.
ABDUL KHALIQ and others--Appellants
versus
STATE--Respondent
Crl. As. Nos. 60 to 66 of 2002, heard on 3.3.2005.
(i) Criminal Procedure Code 1898 (V of 1898)--
----S. 173--Copies of document and evidence--Copies of documents and evident collected during investigation have to be supplied to accused and the same can be used for purposes of contradiction/confrontations.
[P. 916] A
(ii) Criminal Jurisprudence--
----Solitary statement of victim--Effect--In Tazir cases, conviction can be heard on sole statement of victim, however, such statement must be of unimpeachable character and corroborated by some independent piece of evidence--Contradictions/Confrontations is statement of prosecution witnesses were very much borne out from evidence on record which were sufficient to create reasonable doubt in prosecution story--Where there was element of doubt as to guilt of accused, benefit of same must be extended to him. [P. 918] D
(iii) Criminal Jurisprudence--
----Criminal administration of justice--In criminal administration of justice, conviction cannot be passed merely on presumption or surmises and conjectures. [P. 923] J
(iv) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(4)--Commission of Zina-bil-Jabr with complainant on order of Punchayat/arbitrators--Quantum of evidence--Delay in registration of F.I.R. inspite of gravity of offence--Case was widely publicized not only in the country but all over the world--High ups of Government had visited Ilaqa and made pronouncements duly published in news papers that death sentence be given to accused/partly--Investigation was not conducted in fair manner as per claim of accused party and complainant party--Claim of complainant party that thereby were not allowed to go to Police Station to report incident of Zina-bil-Jabr was falsified from the fact that one of prosecution witnesses after alleged occurrence had visited Police Station alongwith one of accused person for getting back brother of complainant who was in police custody, thus, occurrence could have been narrated by him/them--F.I.R. was lodged after due deliberations and consultation, therefore, no sanity could be attached to that F.I.R.--Fabrication of story and false implication could not be excluded as the same was got registered in presence of elders of area after delay of about a week--Delay in lodging F.I.R. has assumed great significance in as much as, presentation story was doubtful from outset and prosecution evidence was remarkable in weakness--Contradictory statement made by prosecution witnesses at trial were at variance with statements of such witnesses made during investigation--Testimony of prosecution witnesses neither inspire, confidence nor can be termed as evidence having come from impeachable source. [Pp. 916, 918, 919 & 921] B, C, E, F & G
(v) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(4)--Anti-Terrorism Act, 1997, Section 25--Offence of Zina-bil-Jabr--Conviction and sentence recorded by trial Court assailed--Complainant during cross-examination had stated that she and prosecution witnesses were with Police for ten days before making statement in Court--Prosecution witnesses and complainant were thus, fully tutored before appearing in witnesses box--Testimony of such witnesses neither inspires confidence nor can be termed as evidence having come from unimpeachable source--Prosecution has failed to lead any evidence of unimpeachable character that members of Punchayat had taken decision that rape should be committed with complainant. [P. 921] H
(vi) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(4)--Offence of Zina--Quantum of proof--Victim's version that she was subjected to forcible intercourse does not find corroboration from medical evidence--Doctor did not observe any mark of violence on her body or private parts except two healed injuries on her body but did not give duration thereof to suggest that those were caused during occurrence--Best evidence which could be procured by prosecution to prove case of prosecution was DNA test which was never sought to be conducted--Prosecution story was not worthy of credit in as much as all four accused allegedly committed forcible zina with victim turn by turn without washing her private parts after ejaculation, as also clothes worn by her were not sent to chemical examiner to ascertain whether those were stained with semen or not--Occurrence had not thus, taken place in the manner narrated by her and story that her clothes were torn during occurrence was fabricated to strengthen prosecution version.
[Pp. 921 & 922] I
(vii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(4)--Anti-Terrorism Act, 1997, S. 25--Offence of Zina--Quantum of evidence--Prosecution has failed to bring home guilt to appellants except one of them with whose sister, brother of victim had committed zina--All those appellant except the latter were acquitted of charge of Zina-bil-Jabr and ordered to be released if not required in any other offence. [P. 926] L
(viii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(4)--Offence of Zina-bil-Jabr--Principal accused--Liability--Possibility could not be ruled out that complainant's brother being in Police Custody on allegation of Zina with sister of Principal accused, complainant had agreed to perform marriage with him and was sent with him immediately as per decision of Punchayat, who instead of performing marriage committed zina with her as he wanted to take revenge of "ziadti" committed with his sister--Offence of zina having been proved against principal accused his conviction under Section 10(4) was converted to
S. 10(3), of Offence of Zina (Enforcement of Hudood) Ordinance 1979 and sentenced to 25 years of rigorous imprisonment--Sentence of fine awarded to him was however, maintained. [P. 927] M & N
(ix) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(4)--
Act, 1997, S. 25--Initiation of action against trial Judge proposed--Conviction and sentence passed against 3 accused persons without an iota of evidence against them--Matter was proposed to be referred to competent authority in as much as conviction against those accused persons was made entirely without any evidence, therefore, action should be initiated against trial Judge. [P. 928] O
(x) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129(e)--With holding natural witness of occurrence--Prosecution has option to produce as many witnesses in support of allegations against accused as possible, however from facts and circumstances of case, inferrence can safely be drawn that those not produced were with held due to fear that real facts might have not come on record. [P. 926] K
1989 SCMR 1851 ref.
M/s. Malik Muhammad Saleem and Ch. Pervaiz Aftab, Advocates for Appellants.
Mr. Muhammad Qasim Khan, Asstt. A.G. assisted by M/s. Sheikh Muhammad Rahim, Mehr Muhammad Saleem Akhtar, Muhammad Wasim Khan Babar & Sh. Imtiaz Ahmad, Advocate for the State.
Mr. Muhammad Ramzan Khalid Joyia, Advocate for Complainant.
Dates of hearing: 1.3.2005; 2.3.2005 & 3.3.2005.
judgment
Ijaz Ahmad Chauhdary, J.--Vide judgment dated 31.8.2002
rendered by learned Judge,
U/S. 7(c) read with S. 21(1), A.T.A., 1997 and 149/109 P.P.C.
Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar and Faiz Muhammad alias Faiza were sentenced to imprisonment; for life and fine of Rs. 20,000/-, each. In default thereof to further undergo six months R.I.
U/S. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sec. 149 P.P.C.
Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz were sentenced to imprisonment for life plus 30 stripes each and a fine of Rs. 20,000/- each. In default thereof to undergo six months R.I. each.
U/S. 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 149 P.P.C.
Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz were sentenced to death.
U/S. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 21)(i) and Sections 109/149 P.P.C.
Ramzan Pachar and Fiaz Muhammad alias Faiza were sentenced to imprisonment of life plus 30 stripes, each and a fine of Rs. 20,000/- each. In default thereof to undergo six months R.I.
U/S. 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 21)(1) of the ATA. 1997, read Sections 104/149 P.P.C.
Muhammad Ramzan Pachar and Fiaz Muhammad alias Faiza were sentenced to death.
However, they were acquitted of the charge under Section 354-A Cr.P.C. and all the remaining accused, namely, Muhammad Aslam, Allah Ditta son of Jan Muhammad, Khalil Ahmad, Ghulam Hussain, Hazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were acquitted of the charges.
2. Criminal Appeal No. 60 of 2002 was filed by Abdul Khaliq, Allah Ditta (both) sons of Imam Bakhsh), Muhammad Fayyaz and Ghulam Farid (convicts) and Criminal Appeal No. 61 of 2002 was filed by Faiz Muhammad alias Faiza and Muhammad Ramzan (convicts) against their aforesaid convictions and sentences. Criminal Appeal No. 62 of 2002 and Crl. Appeal No. 65 of 2002 were filed by Mukhtiar Mai (Complainant-victim and the State respectively against acquittal of the accused persons from the charges while Crl. Appeals Nos. 63 and 66 of 2002 were filed by the Complainant/ victim as well as the State respectively against the acquittal of the aforesaid six appellants from the charge under Section 354-A Cr.P.C. Since all these appeals arise out of the same judgment rendered in the criminal case registered against all of them and common questions of law and facts are involved, therefore, we propose to decide the same together.
3. The occurrence took place on 22.6.2002 in the area of Muaza Meerwala District Muzaffargarh, which was at a distance of 13 kilometers from the Police Station Jatoi towards South while the same was reported to the SHO Police Station Jatoi on 30.6.2002 at 7.30 when he while present at Chowk recorded statement of Mst. Mukhtiar Mai under Section 154 Cr.P.C. on the basis of which formal F.I.R. was recorded at the Police Station.
4. Briefly the prosecution story narrated in the complaint (Ex. P.I) is that Mukhtiar Mai was a divorcee. On 22.6.2002, her brother Abdul Shakoor was suspected of having illicit liaison with Mst. Naseem daughter of Imam Bakhsh Caste Mastoi, resident of Meerwala. To resolve the dispute, a meeting (Akath) was convened on 22.6.2002. Besides other residents of the village, Ghulam Nabi son of Bahar Khan, Altaf Hussain son of Bahadar Ali, both Jatoi by caste, were also present in the Punchayat. Muhammad Ramzan son of Karim Bakhsh, Caste Pachar, Ghulam Farid son of Mahmood, Caste Mastoi, Faiz Bakhsh Khan son of Sher Muhammad, Caste Mastoi were appointed as arbitrators for Abdul Khaliq while, Maulvi Abdul Razzaq (PW-11) son of Bahadur, Manzoor Hussain son of Noor Muhammad, both Jatoi by caste, residents of Meerwala, were appointed as arbitrators on behalf of Ghulam Farid (father of complainant). The arbitrators proposed that the hand of Mst. Naseem be given to Abdul Shakoor son of Ghulam Farid and likewise the hand of Mukhtiar Mai be given to the son of Imam Bakhsh However, Abdul Khaliq, Muhammad Ramzan and Ghulam Farid disagreed to it and demanded that Ghulam Farid should give his daughter to them with whom they would commit Zina, which would equalize the incident and then they would compromise. This was opposed by the other members of the meeting (Akath). Maulvi Abdul Razzaq and Manzoor Hussain left the Punchayat. Thereafter, on the coercion and pressure of the accused-party, she was brought to the Punchayat by her maternal uncle Sabir Hussain (PW.12) son of Ghulam Qadir for forgiveness according to the custom of Baloch. She was caught hold by Abdul Khalid son of Imam Bakhsh, Caste Mastoi from her right hand, which she got released by force. Faiz Bakhsh Mastoi also sought forgiveness of Ghulam Farid, but she was forcibly taken into a Kotha by the four appellants, namely, Abdul Khaliq, who was armed with .30 bore pistol, Allah Ditta (both sons of Imam Bakhsh), Fayyaz Hussain son of Karim Bakhsh and Ghulam Farid son of Mahmood, all Mastoi by Caste and she was subjected to Zina-bil-Jabr by all of them turn by turn during the course of which she remained crying. Thereafter, she came out nude and called her father Ghulam Farid. The occurrence was stated to have been witnessed by Ghulam Nabi son of Bahar Khan and Altaf Hussain son of Bahadur Ali, Jatoi by Caste, resident of Meerwala as well besides her father and all the accused/appellants were previously known to her.
5. After recording
the statement of Mukhtiar Mai (complainant) which was got attested by Nazir
Ahmad, Inspector/SHO (PW-16), formal FIR (Ex. PI/1) was recorded at 8.00 a.m.
at Police Station Jatoi on 30.6.2002 by Azhar Abbas, Moharror/Head Constable
(P.W. 6). Then, Nazir Ahmad, Inspector/SHO sent the complainant with Muhammad
Yar, Constable, to the hospital for medical examination alongwith an
application (Ex. P.C.) He, himself, inspected the spot and prepared visual
site-plan (Ex.PV). On the same day, three sealed phials, one sealed envelope and
one unsealed envelope were produced before him by said Muhammad Yar Constable,
which were taken into possession vide recovery memo. (Ex.PW). On 1.7.2002, he
collected the clothes of Mst. Mukhtiar Mai from Abdul Razzaq and Manzoor Ahmad
at the Police Station, which he took into possession vide recovery memo. (Ex.
PU). He also recorded the statements of the witnesses u/S. 161, Cr.P.C. On
2.7.2002, accused Qasim etc. were arrested by him and he also got recorded
their statements. On 3.7.2002, the investigation and entrusted to Muhammad
Saeed Awan, D.S.P. Jatoi, (PW. 15, by the
6. After the
submission of the Challan, the learned Judge,
PW-1 Dr. Fazal Hussain, SMO, Rural Health Center, Jatoi had verified MLRs (Ex. PB/1, Ex. PB/2 Ex.PB/3 & Ex.PB/4) regarding potency tests of Abdul Khaliq, Fiaz, Ghulam Farid and Allah Ditta (accused) respectively, which were conducted by him on the applications (Ex.PA/1-4) moved by the Police. On the application of the Police (Ex.PX), he also conducted medical examination of Abdul Shakoor and verified copy of MLR (Ex. P.X/1).
PW-2 Dr. Shahida Safdar WMO, RHC Jatoi, on 30.6.2002 at 10.30 a.m. had conducted medical examination of Mukhtiar Mai (complainant) on the application of the Police (Ex. PC). Ex. P.D. is the MLC. The opinion of the lady-doctor is in the form of a report Ex.P.E. According to the lady doctor, she medically examined Mst. Mukhtiar Mai for rape who was previously married/divorced woman with history of rape one week back. On general physical examination she was found conscious and well orientated in time and space. The lady doctor recorded the following findings:--
(1) A healed abrasion 3 cm x 1 cm on the right buttock.
(2) A healed abrasion 1 cm x cm on the perienal area.
According to her 9 swabs (three each from posterior fornix, vaginal canal and external vaginal area) were also taken for its chemical analyses. The report of the Chemical Examiner is Ex. PF according to which the swabs were found stained with semen and on the basis of the same the lady doctor formed the opinion through Ex. P-E that rape was committed with Mst. Mukhtiar Mai.
PW-3 Rafique Ahmad, FC, Security Branch, SSP Office, Muzzafargarh, stated that he produced the press-clippings of different newspapers (Ex. PG/1-6) to Shaukat Murtaza Malik, D.S.P. (PW-8) which were taken into possession vide recovery memo Ex. PH.
PW-4 Ali Muhammad, FC, was handed over three sealed
phials and two sealed envelops on 4.7.2002 by the Moharror of the Police
Station Jatoi for its delivery in the office of Chemical Examiner, Laboratory
of Government at
PW-5 Muhammad Yar, Head Constable, got conducted the medical examination of Mukhtiar Mai from the lady-doctor and handed over the report of MLC alongwith two sealed envelopes and three sealed phials to the SHO at Meerwala.
PW-6 Azhar Abbas, Head Constable, deposed that on 22.6.2002 at 5/6 p.m. two persons came to him. They asekd about Iqbal, ASI. later on, the said ASI accompanied by two Constables went away alongwith them and returned at about 9.00 p.m. with Abdul Shakoor, who was in injured condition. Till 12.0. midnight he remained in his room and then slept. In the morning, he was told that Abdul Shakoor was taken from the Police Station by two persons at about 2.00 a.m. He also deposed that on 30.6.2002 at about 8.00 a.m. Ali Muhammad Constable brought the complaint (Ex.PI) to him and on the basis of the same he recorded the formal FIR (Ex.PI/1). In the evening, he was handed over three sealed phials, one sealed envelopes and one unsealed envelope by the SHO for keeping the same in safe custody in Malkhana. On 1.7.2002. he was handed over Kamiz (P/1), Shalwar (P/2) and Dopatta (P/3) by Nazir Ahmad, Inspector/SHO for safe custody in the Malkhana.
PW-7 Rana Muhammad Ishfaq, Civil Judge/Magistrate, Ist Class, Alipur stated that on 9.7.2002, he was posted as Civil Judge. On the same day at about 5/6 p.m. Ghulam Fareed, S.I. moved an application (Ex. P.J.) for recording the statement of the PWs under Section 164, Cr.P.C., who recorded the statements of Mukhtiar Mai (Ex-PK), Ghulam Fareed (Ex-PL), Ghulam Nabi (Ex. PM), Abdul Razzaq Ex-P.N.), Sabir (Ex-PO) and that of Abdul Shakoor (Ex.PP).
PW-8 Shaukat Murtaza, D.S.P. City Muzaffargarh, had conducted the investigation w.e.f. 12.7.2002.
PW-9 Abdul Latif Khan, Inspector/SHO. Police Station Jatoi on 9.7.2002 got recorded the statements of the witnesses under Section 164. Cr.P.C. On 12.7.2002, Abdul Khaliq (accused led him to the recovery of pistol (P/4) and two live cartridges (P/5 and P/6) from his house situated in Mauza Meerwala, which were taken into possession vide recovery memo. Ex. PR. He also prepared the visual site-plan of the place of recovery of pistol Ex.PT. On 15.7.2002, he prepared challan and sent it to the Court on 18.7.2002.
PW-10 Abdul Shakoor (brother of complainant) deposed about the factum of sodomy committed with him by Manzoor, Punno and Jamil in the sugarcane field.
PW-11 Abdul Razzaq has deposed about the background and the facts leading to the occurrence.
PW-12 Altaf Hussain, PW-13 Sabir Hussian and PW-14 Mukhtiar Mai (complainant-victim) have given the ocular account of the occurrence.
PW-15 Muhammad Saeed Awan, D.S.P. Jatoi District Muzaffargarh and PW. 16 Nazir Ahmad, Inspector, deposed about the different steps taken by them during the course of investigation of this case.
PW-17 Dr. Fazal Hussain was re-examined, who deposed about the medical examination of Abdul Shakoor conducted by him.
Prosecution tended in evidence the news clipping of Daily Khabrain dated 23.7.2002 (Ex. PY) and closed the same.
CW-1 is Malik Sultan Mahmood Hinjra, Zilla Nazim, who deposed about the hearing of the occurrence through newspapers.
CW-2 Muhammad Amjad, CW-3 Abdul Wahid who are Councilors and CW-4 Maulvi Faiz Muhammad deposed that a heinous offences was committed by the accused party.
CW-5 Abdul Majeed Constable deposed that on 22.6.2002, he went in the company of Iqbal ASI to the house of Abdul Khaliq and brought Abdul Shakoor to the Police Station where he was confined.
CW-6 Abdul Latif Khan, Inspector was only deputed of service of summons Mark-A & B.
CW-7 Ghulam Shabbir SI, Police Station Jatoi deposed about the service of summons upon Fayyaz Hussain.
Abdul Latif Khan, Inspector/SHO Police Station Jatoi, was examined as CW-8, CW-9, and CW-10, who deposed' about the service of the summons and warrants.
7. The accused/appellants when examined under Section 342; Cr.P.C. refuted the allegations and pleaded innocence. They also produced the following witnesses in their defence:--
DW-1. Muhammad Younas, Manager National Bank of
DW-2 Nadeem Saeed, Correspondent Daily DAWN Lahore produced the news clipping dated 12.7.2002 of Daily DAWN (Exh. DK).
DW-3 Akbar Ali, Head Constable produced Rapt No. 6 dated 26.3.2002 (Ex. DL).
DW-4 Muhammad Ashraf, SI,
DW-5 is Ghulam Hussain who deposed that it was informed to him by Abdul Khaliq that Abdul Shakoor brother of the complainant was nabbed with Salma sister of Abdul Khaliq. Thereafter as a compromise Nikah of the complainant was performed with Abdul Khaliq and it was also agreed that Nikah of Mst. Salma would be performed with Abdul Shakoor, but thereafter the complainant backed out from their promise and on 27.6.2002 performed Nikah of Salma with Khalil which led to the registration of the present case.
DW-6 is Mirza Muhammad Abbas, S.P. Range Crimes, Dera Ghazi Khan, who conducted fact finding inquiry against the local Police and recorded the statements of witnesses.
8. The learned trial Court, after taking into consideration the entire material brought on record, convicted and sentenced the six convict-appellants, as detailed above and acquitted rest of the accused.
9. Learned counsel for Abdul Kahliq (appellant) has contended that solitary statement of Mukhtiar Mai, which is full of contradictions and not corroborated by any independent piece of evidence is not sufficient to prove the commission of gang rape committed with her by the four accused. The first argument for disbelieving her statement is that the FIR, in the present case, has not been lodged immediately after the incident as the occurrence allegedly took place on 22.6.2002 but the FIR was lodged on 30.6.2002 without any reasonable explanation. It is further contended that the manner in which the statement of the complainant under Section 154 Cr.P.C. was recorded is doubtful, as according to the Police the statement of the complainant was recorded at Chowk Jhuggiwala on 30.6.2002 at 7.45 a.m. when the complainant and other witnesses came and met Nazir Ahmed. Inspector/SHO but on the other hand, PW-14 Mukhtiar Mai made a statement before the Magistrate, which is Ex. P.K., in which she had stated that she was taken to Police Station where the case was already registered and she thumb marked the same. It is also contended that Maulvi Abdul Razzaq, in his statement under Section 164, Cr.P.C. stated that he had gone to the Police where representative of the Press also came and complaint was prepared on 29.6.2002 but the case was registered on 30.6.2002, which was thumb marked on the said date by the complainant. According to the learned counsel Maulvi Abdul Razzaq also made a statement before the S.P. Range Crime to the effect that father of the complainant was noe ready to get lodged the FIR and he told him that his statement was already recorded in the tape-recorder and if he failed to lodge the complaint, he would take action against the complainant. He and Mureed Abbas, News Reporter, informed the Police about the incident. Abdul Ghaffar, ASI, went to the house of Ghulam Fareed wherefrom he brought Mukhtar Mai and Abdul Shakoor to the Police Station and legal proceedings were initiated. Ghulam Fareed was not ready to get recorded the statement and he talked to Mukhtiar Mai in privacy and on the asking of Abdul Razzaq the case was registered. It is also contended that Ghulam Fareed was not produced in the Court and was given up, who was the main witness of the alleged occurrence and his non-production creates sufficient doubt in the prosecution story. However, in his statement under Section 164, Cr.P.C. he stated that for four days they were not allowed to come out of their house and he asked Abdul Razzaq and Mureed Abbas for their support and on 30.6.2002, they informed the Police who took them in the van to the Police Station, where the case was registered. He also stated before the S.P. Range Crime that Maulvi Abdul Razzaq, who is his foster brother, came to him alongwith Mureed Abbas Baloch, Press-Reporter, and on their asking, the case was registered at Police Station Jatoi, where SHO was also present. It is also contended that in the above circumstances the registration of the FIR as claimed by the Police has been falsified. It is also contended that the FIR has no authenticity and cannot be given any weight. The names of the accused and the story of the FIR is not believable. The learned counsel has argued that if the occurrence had taken place in the night in such a matter, why Sabir Hussain (PW-12), maternal uncle of the complainant, who had gone to the Police Station to get released Abdul Shakoor, brother of the complainant, informed the Police about the incident and according to the complainant, he was present in the Punchayat at the time when she came out of the room after she was subjected to Zina-bil-Jabr by the convicts. It is further contended that the complainant stated in the FIR that Ghulam Nabi and Altaf Hussain were also present outside the room, when she came out after commission of Zina by the convicts with her whereas Ghulam Nabi, in his statement (Ex. P.M.) before the Magistrate denied that he had witnessed the occurrence and this was the reason that he was not produced to trial. It is also a fact that Altaf Hussain is the brother of Maulvi Abdul Razzaq, who is the chief architect of the present case. It is also contended that the mentioning of the witnesses by the Police and the Police KARWAI is in complete contradiction with each other. It is further contended that the prosecution story itself is doubtful as there was no reason to call the complainant specifically in the Punchayat, when she had other sisters, who were virgin and she was not at fault. It is also contended that if the convicts had decided to commit Zina with her and said so in the Punchayat then why Sabir Hussain, the maternal uncle of the complainant, had taken her to the Punchayat without disclosing this fact to her and why the honour of the complainant was not tried to be saved. It is further contended that the story of the prosecution is further belied by the contradictions made in the statement of the complainant and the statement which she made before the S.P. Range Crime. In her complaint she stated that Abdul Khaliq armed with pistol, Allah Ditta, Fayyaz Hussain and Ghulam Farid had taken her into the room. But in her statement, which she made with S.P. Range Crime, she stated that Abdul Khaliq (convict) had caught hold of her by her arm and taken her to his house, which is situated at a distance of two Kanals. Ghulam Farid (convict) also followed them. Abdul Khaliq had taken her into the room, where Allah Ditta and Fayyaz were already present. But in her statement under Section 164, Cr.P.C. before the Magistrate, she stated that Abdul Kahliq (convict) while armed with pistol caught hold of her by the wrist and she was taken into the room by Abdul Khaliq, Allah Ditta, Fayyaz and Ghulam Farid while dragging. It is also contended that Allah Ditta is brother of Abdul Khaliq, who is the main accused, and that both brothers allegedly committed Zina with her at the same incident in the manner narrated by the complainant. It is also contended that it was omitted by the complainant to mention that the children and other persons were present in the house or not, as Allah Ditta (convict) was married person and had four children and her wife and children also resided in the same house. It is also contended that Abdul Khaliq had five brothers as well and it was not possible for the two brothers to commit Zina with the complainant in the same room in presence of their female family members present in the house. It is also contended that she had also made contradictory statements regarding coming out of her from the room after commission of Zina, as in the FIR she had stated that she came out in nude position but in her statement with the SP Range Crime, she sated that she was wearing the shirt while Shalwar was in her hand and she put Dopata around her body. In another statement before the Magistrate under Section 164, Cr.P.C. she had stated that her shirt was torn from the front, while her Dopata and Shalwar were in the hands of Fayyaz, which he threw upon her. She stated that when they went to their house Ghulam Nabi and Haji Altaf were a ready present there. However, in the complaint she stated that Altaf Hussain was eye-witnesses of the occurrence while Ghulam Farid in his statement under Section 164, Cr.P.C. stated that he was alone and had mentioned the names of other witnesses. It is further contended that in the Court the complainant deposed that besides her father, Ghulam Nabi and Haji Altaf were also present, who witnessed her in nude position. It is contended that these contradictions in her statements made at different forums are on material points and are sufficient to prove that she was not a truthful witness. It is also contended that there the ocular account was also in contradiction with the medical evidence, as it was claimed by the complainant that she was dragged upto a considerable distance and she also received bruises but the doctor had not found any mark of violence on her body. It is also contended that the external and internal swabs were also taken by PW 2 Dr. Shahida Safdar, WMO, RHC, Jatoi after seven days of the incident, which were found stained with semen in spite of the fact that the lady doctor stated that she did not see semen present on the external part during examination. The WMO, in her cross-examination, also stated that the complainant had appeared before her and on her asking, Mukhtiar Mai told that she had washed the clothes, she was wearing at the time of occurrence. The WMO explained that sperms remained motile in the uterine cavity for three to five days and even non-motile sperms could be found in the genital tract upto weeks but according to the learned counsel no evidence has been produced by the prosecution that swabs were stained with non-motile sperms. It is contended that the report of the Chemical Examiner was fabricated one and it alone is not sufficient to corroborate the prosecution version. It is contended that whey the Langout, Shalwar and shirt were not sent to the office of Chemical Examiner and what was the need of washing the torn cloths, when the complainant did not take bath for nine days, which is sufficient to prove that the story of torn clothes were introduced later on and no such occurrence had taken place. It is further contended that the extreme penalty cannot be awarded on the statement of the complainant as she is not proved to be truthfulness witness and was playing in the hards of the enemies of the accused party. It is further contended that the vast publicity was given to this case in the daily newspapers and in the international press and the Supreme Court of Pakistan has held that in such like cases the evidence has to be looked into with due care and caution. Reliance has been placed on AIR 1952 Supreme Court 169 and 1985 MLD 604. It is further contended that the appellant was a divorcee woman and it was not a case of fresh rape and hymen was old torn but no effort was made for DNA test, which could have been effective to defect the real culprit and could support the evidence of the prosecution regarding the commission of Zina. It is further contended as for as Faiz Muhammad Mastoi (appellant) is concerned, he had only uttered that Ghulam Fareed might be forgiven and on this single sentence, he has been convicted and sentenced to death. It is further contended that Muhammad Ramzan has been convicted only due to the allegation that he had gone to the house of the complainant and asked to bring her to the Panchayat for seeking forgiveness. It is also contended that in the FIR, complainant had not named Muhammad Ramzan, the person, who accompanied her maternal uncle Sabir at the time of taking her from the house to the place of occurrence. It is further contended that during the cross-examination the complainant also admitted that Ramzan was friend of Hazoor Bakhsh, her brother, and in order to get released Abdul Shakoor, brother of the complainant, he had taken Rs. 10,000/- from them. It is also contended that no allegation of commission of Zina was leveled against him. It is further contended that Fayyaz (appellant) was not related to the other accused and on the other hand, the name of Fayyaz has been mentioned in the FIR with parentage of Karim Bakhsh and resident of Meerwala but he is resident of Raampur. It is also contended that in the complainant, Fayyaz is not mentioned, and he is the person who has been wrongly arrested and has been convicted as the Governor of Punjab met the complainant and it was published in the newspaper Daily Nawa-i-Waqt dated 14.7.2002 (Ex. DZ) that wrong person by the name of Muhammad Fayyaz has been arrested while the real culprit was set at liberty by the complainant, it is contended that in the daily DAWN, the same news was flashed. It is further contended that DW-2 Nadeem Saeed, Reporter, also appeared and he claimed that he met the brother of the complainant, who had told him the wrong person was arrested by the Police with the name of Fayyaz. It is contended that since the Governor had directed for completion of the investigation within shortest time. Muhammad Ashraf, SI, (DW-4) took out Fayyaz on physical remand in an untracked case and address of Fayyaz was mentioned as Meerwala. It is contended that according to the documents Ex.DX. Ex. V (identity-card) the address of Fayyaz has been shown as resident of Raampur instead of Meerwala, as claimed by the complainant. It is contended that the complainant claimed that she was observing Burqa for the last 15/20 years but on the day of occurrence, she was having a Doppata around her. It is also contended that in the above circumstances, the occurrence had taken place in the room in the night and it was a case of misidentity of the accused. As far as Ghulam Fareed is concerned, his percentage is mentioned as Mahmood but in the supplementary statement his parentage was changed as son of Allah Bakhsh. It is contended that the father of the complainant and other witnesses were also present at the time of the registration of the FIR and the FIR was read over to her but no correction was made by the complainant at that time. She also did not mention the parentage of Ghulam Fareed. It is also contended that the supplementary statement was not recorded on the side date. Her statements before the SP Range Crime and the Magistrate also did not find mention Ghulam Fareed and only Fareed was written. It is also contended that one Karam Hussain filed a Writ Petition No. 2949/1995 titled Haji Karam Hussain v. Maulvi Abdul Razzaq regarding the allotment of State land in the High Court. Karam Hussain is the father-in-law of Ghulam Farid (convict), who died before the occurrence. It is also contended that Ghulam Farid, father of the complainant, in his statement (Ex. PD) stated that Ghulam Farid remained present at the time of occurrence but he did not commit Zina with his daughter. It is contended that PW-8 Shaukat Murtaza, D.S.P. City Muzaffargarh, in his cross-examination, stated that Allah Ditta (convict) admitted that only Abdul Khaliq (convict) put off the Shalwar of Mst. Mukhtiar Mai and kissed her. He also stated that no body committed Zina with the complainant and that it was Ghulam Farid (convict), who rescued her. It is contended that the complainant herself deposed in her statement as PW-14 that Allah Ditta is elder brother of Abdul Khaliq (convict), who is a married man having four children and his family as well as their mother, sisters and five other brother were living in the same house where the occurrence allegedly had taken place and it does not seem probable that such an incident could be committed by two brothers jointly. Learned counsel for the appellants has also relied upon 1989 SCMR 1851 to contend that in that case, there were three bothers and cousin who were convicted and sentenced under Section 354-A, P.P.C. for the abduction and commission of Zina-bil-Jabr, but the Federal Shariat Court accepted the appeal of the convicts and convicted them under Section 354, P.P.C. which sentence was upheld by the apex Court. It is further contended that the complainant in her examination-in-chief deposed that when she came to know that her brother Abdul Shakoor had been confined by Abdul Kahliq (convict) in room alongwith his sister Mst. Salma alias Naseem, she alongwith her mother went there to rescue his brother with Holy Quran in her hand, where Abdul Kahliq and his other relatives were also present then why he did not commit this heinous offence with the complainant and why the accused-party chose the subsequent event to do so, when a sufficient period was already elapsed and elders of both the parties were also involved in the matter. It is contended that Sabir Hussain (PW-13) stated before the S.P. Range Crime that Mukhtiar Mai narrated the commission of Zina by the four persons after reaching home. It is also contended that it is in the cross-examination of Sabir Hussain (PW-13) that he did not go to the house to Ghulam Farid (father of the complainant) after Mukhtiar Mai was taken there, and reached the Police Station at 2.00 a.m. on the same night but did not lodge any report with the Police that Mukhtiar Mai was subjected to Zina; and that the occurrence was not disclosed to any body till 30.6.2002. It is contended that Maulvi Abdul Razzaq (PW-11) stated before the S.P. Range Crime that he was not aware of the commission of Zina by the accused-party and it was on 28.6.2002 when he come to know of the occurrence from some other person. It was Friday and he gave sermon on the occurrence at Jumma Prayers, upon which the Tatia Brotheri showed their annoyance and on the same day after Asar prayers he met Ghulam Farid, father of the complainant, who refused to admit the occurrence. He also stated that on 29.6.2002 Mureed Abbas, News Reporter, approached him and enquired about the occurrence whereupon they both went to Ghulam Farid, who denied the occurrence and said that one mishap was happened and it should not be repeated, but Ghulam Farid was promised to be helped whereupon he admitted the occurrence, and this talk was recorded by the News Reporter in his tape-recorder, hence it is sufficient to prove that Ghulam Fareed was terrified to get registered the case, otherwise he was not willing to initiate legal action and they, both, pressurized Ghulam Farid while stating that his talk had been so recorded in the tape recorder and pressurized him that if he still insisted on not to lodge any report, they would initiate legal action against him whereafter Mureed Abbas News Reporter reported the matter at the Police Station and Abdul Ghaffar ASI, accompanied by other Police Officials brought Ghulam Farid, Mukhtiar Mai and Abdul Shakoor to the Police Station. Ghulam Farid also refused to admit the occurrence at the Police Station whereupon Abdul Razzaq (PW-11) talked to Mukhtiar Mai in seclusion and she conceded to lodge the report. It is further contended that Abdul Razzaq has enmity with the Mastoi tribe and there was a motive behind this bitterness which he had narrated in his statement with the SP Range Crime in the manner that he obtained two square of land on lease falling in Lot No. 189 of Sardar Kouray Khan from the District Council Muzaffargarh, but in spite of the decision in his favour by the High Court, the Mastoies did not give him the possession of the said land and subsequently, this land was obtained by the Mastoies for a sum of Rs. 100,000/-. He also stated that the Mastoi tribe belonged to Qabza group who had illegally occupied the different Lots. It is also contended that Abdul Khaliq (convict) is Kharadia by profession, whereas Allah Ditta is a mechanic of tube-well. It is also contended that it is in the evidence of PW-16 Nazir Ahmad, Inspector, that the complainant party was financially sound than the accused-party. He also stated that when the complainant came out of the room after the commission of Zina, her father was standing at a distance of two Kanals and it was night time and that the facility of electricity was also not available in the village of the complainant. It is contended that Abdul Razzaq (PW-11) admitted during cross-examination that Altaf is his real brother who lives with him at the same place but it is strange that the latter did not disclose him about the occurrence even up to 30.6.2002. It is further contended that if such a heinous offence had been committed, Altaf would have narrated it to his brother, who was an arbitrator on behalf of the complainant party and had left the Panchayat/meeting as the accused party had not acceded to his proposal of exchange marriages between the parties. It is also contended that the appellants could not be convicted for the abduction of Mukhtiar Mai, as there is nothing on the record to suggest so. It is further contended that Mukhtiar Mai herself stated that it was only Abdul Khaliq (convict) who caught hold of her from the arm and taken her into the room and Fareed (convict) followed them. It is further contended that the punishment for whipping of stripes in Ta'zir has been omitted under the Abolition of Whipping Act, 2000, although it is provided in Hadd, therefore, the sentence of stripes to convicts is unwarranted by law. It is further contended that the alleged occurrence had never happened and it was the local Pressman who alongwith PW-11 first of all concocted a false story and then flashed it sensationally. In the end, learned counsel for the appellant has contended that the prosecution has miserably failed to establish its case, therefore, the appellant be acquitted.
10. Learned counsel for rest of the appellants has contended that the initiative taken by Mukhtiar Mai (complainant) is doubtful; that the occurrence was false, so it was unreported but it was the Press which flashed it and gave international coverage; that there was two separate meetings (Akath) and 200/250 persons were gathered there, but it is strange that no one from the Panchayat took courage to intervene the occurrence; that Maulvi Abdul Razzaq (PW) belonged to a sectarian group, who is in the habit to create sensation and he did so in this case due to his personal grudge against Mastoi tribe; that the medical evidence did not corroborate the ocular account as PW-2 Dr. Shahida Safdar WMO, did not clinically observe the commission of rape with the complainant but she formulated her opinion keeping in view the report of Chemical Examiner; that Mukhtiar Mai (complainant) stated in her evidence that she was laid rest on Kachcha floor and was allegedly subjected to Zina-bil-Jabr by the four adult persons and it is in the evidence of the complainant that she was dragged by Abdul Khaliq (convict) in side the room but it is strange that the WMO did not observe any scratch or bruise on the person of Mukhtiar Mai (complainant), or marks of violence of her private parts, which, itself falsified the story of commission of Zina; that Mukhtiar Mai (complainant) was married 10 years ago and now she was living without husband for the last seven years and there is no medical evidence on record that whether any damage was occurred to the private parts of the complainant; that if the clothes, which the complainant wore at the time of occurrence, were torn then those were not required to be washed; that the Police took into possession the Doppata, Shalwar and shirt of the complainant but these articles were not sealed or sent to the Chemical Examination; that there was complete silence uptill 29.6.2002 but subsequently there opens a Pandora box and that speaks the volume of the innocence of the convicts.
11. Learned counsel for the complainant contended that all the contradictions pointed out above had occurred only with the statements recorded during the fact finding inquiry by S.P. Range Crime who visited the spot under the directions of DIG, Dera Ghazi Khan; that Nazir Ahmad Inspector/SHO did not conduct the investigation of the case properly and for this reason he was suspended; that the SP Range Crime was not assigned with the task of investigation, so his fact finding inquiry could not be made part of the investigation of this case; that these statements were recorded by the Reader/Inspector, which were disowned by the witnesses and the S.P. Range Crime had specifically given a certificate with every statement that those were disowned by the witnesses; therefore, these were inadmissible in evidence; that the defence has produced DW-6 Mirza Muhammad Abbas, SP, who was later on declared hostile; that the copies, of these statements were not required to be supplied to the accused party but those were made available to them on their application; that the incident of the commission of Zina by Abdul Shakoor with Salma alias Nasim never occurred, and had any such incident happened, it would have been reported to the Police; that it was Abdul Shakoor with whom sodomy was committed and it was for this reason that the Akath/Panchayat was convened; that the Mastoi tribe is dominant in the area whereas the complainant-party are living with few families hence financial position of the parties did not matter, but in fact the whole Mastoi bratheri had gathered against the complainant party; that the place of occurrence, time of occurrence and the mode of occurrence were proved on the record and the delay in lodging the FIR was sufficiently explained, which even otherwise is not sufficient is discard the prosecution version in such like cases; that the prosecution evidence was consisted of independent, trust-worthy and natural witnesses and sufficient to bring home guilt to the appellants; that presence of the witnesses at the place of occurrence was not doubtful; that the prosecution witnesses were independent and not interested having no enmity to depose against the convicts falsely, and that there was ample corroboration to the statements of Mukhtiar Mai (complainant). Also contends that offence under Section
354-A PPC was also proved against the appellants as Mst. Mukhtiar Mai complainant/victim had come out of the room after commission of zina-bil-jabr with her in a naked condition and all the eight acquitted accused had also shared common intention in the commission of the crime, but they have been acquitted on surmises and conjectures.
12. Learned Assistant Advocate-General has argued that the prosecution has successfully proved its case beyond any shadow of doubt; that there is independent and natural evidence with regard to the occurrence; that PW 13 never said that he did not know Fayyaz; that the conviction and sentence of both Faiz and Ramzan is sustainable and is based on cogent evidence; that motive of the occurrence was proved through the statement of PW-10 Abdul Shakoor as Dr. Fazal Hussain conducted the medical examination of Abdul Shakoor and according to his opinion he was subjected to sodomy that the statement of Abdul Shakoor was corroborated by the statements of PW-11, PW-12, PW-13 and PW-14; that the Punchayat was convened as Abdul Shakoor (PW), who was subjected to sodomy had refused to promise the accused of the said sodomy not to disclose the factum of commission of sodomy with him any body and the sister of the accused was intentionally kept in confinement with said Abdul Shakoor in order to make a defence version; that the Mastoi tribe demanded Badla and they did so; that the medical evidence has fully corroborated the ocular account that there was no contradiction on the material points and the complainant and the other witnesses remained consistent and could not be shattered in spite of lengthy cross-examination; that though Maulvi Abdul Razzaq (PW-11) was in litigation with Karam Hussain, father in-law of Ghulam Fareed (convict), but he died two years before the occurrence and the dispute regarding the land was also decided five years ago and had there been any enmity with him then why the son of Karam Hussain was not involved in this case; that the statement of DW-2 Nadeem Saeed, Reporter, cannot be believed as he is friend to Muhammad Yaqoob, Advocate, who appeared on behalf of the accused on 19.7.2002 at trial.
13. We have heard the learned counsel for the parties and have perused the record with due care and caution.
14. First of all
we have considered that it was Hadood case and whether appeal was maintainable
before this Court in view of bar contained in Article 203-DD of the
Constitution of Islamic Republic of Pakistan, 1973 and 2nd proviso to Section
20 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which provide
appeal in such like cases to the Federal Shariat Court, although no objection
was taken from either side. In the present case trial was conducted by an
"The Anti-Terrorism Act, 1997 was assented to by the President and was published in the Gazette on 20.8.1997. It is thus clear that if the offence was committed after the said date, jurisdiction to try the offence exclusively vested in the Court constituted under the Anti-Terrorism Act, 1997 and no other Court can take the cognizance of the offence. In this case the offence was committed during the night between 21st and 22nd of December, 1999, therefore, the Court constituted under the Terrorism Act, 1997 had the jurisdiction to try the offence obviously and the appeal was maintainable before the High Court on a Reference to be made under Section 374, Criminal Procedure Code which is applicable to the proceedings by virtue of Section 30 of the Anti-Terrorism Act."
As such all these appeals before this Court filed by both the parties are held to maintainable.
15. Learned counsel for the complainant and learned Assistant Advocate-General have argued that certain contradictions pointed out by the defence in the statements of the witnesses were with the statements recorded before the SP Range Crime, which cannot be considered as these statements were not part of the investigation and the copies of the same were not given to the accused, but were supplied to the accused on their application during the trial. The accused also produced DW-6 Mirza Muhammad Abbas, SP, Range Crime, who did not support the defence and categorically stated that the said statements were recorded by the Reader/Inspector and that these statements were not verified by the witnesses and he had given a separate note on the said statements. The argument of the learned counsel for the complainant and learned AAG is not acceptable that no weight can be given to the said statements as admittedly an inquiry was conducted by Mirza Muhammad Abbas, SP, Range Crime (DW-6) during the investigation of the case and all the witnesses of the prosecution including the complainant, Abdul Razzaq, Ghulam Farid, Sabir and Abdul Shakoor, etc., had made their statements and they affixed their signatures/thumb impressions on every page and SP, Range Crimes had also attested them. However, on a separate page he has given the certificate that the witnesses had not verified these statements and were discarded it is strange that there was sufficient space left on the bottom of every statement for putting the aforesaid note that the statements were discarded but the separate sheets were used, which shows that in order to fill up the locunas as these statements made by the witnesses during the course of investigation were in contradiction with the prosecution story, the said certificates were appended later on as the prosecution case was already got publicized not only in the national but also in the international press. The high-ups of the Punjab Government and other dignitaries also visited the spot, who made statements for the arrest of the accused persons and for awarding severe punishments to them. In such circumstances how the Investigation Officer could dare to write the statements of the witnesses of his own. On the other hand it is inferred that one sided investigation was conducted to favour the complainant party. The PWs have claimed that their signatures were obtained on blank papers and afterwards their statements were recorded, then why they did not challenge the same in the Court of law. It has come only in the statements of the PWs during the trial that these statements were obtained through fraud and the signatures were obtained on the blank papers. We have failed to understand as to how the benefit of the same should be given to the prosecution itself because there is nothing on the record that such statements were procured/prepared to give benefit to the appellants. If it was so, then why the SP, Range Crimes had later on come to say that these were discarded as those were not owned by the makers thereof, when these were duly thumb marked/signed by them. Even otherwise the possibility cannot be ruled out that such statements were made by the PWs during the course of investigation as well, which are borne out from the record because on each occasion of their examination under Sections 154, 161 and 164 Cr.P.C. and in the learned trial Court they made contradictory statements, which improvements were duly confronted to them during the course of arguments. It is settled principle of law that copies of each and every documents and evidence collected during the investigation have to be supplied to the accused and those can be used for the purposes of contradictions/confrontations.
16. This is a case of unique nature wherein four appellants were alleged to have committed forcible sexual intercourse with Mst. Mukhtiar Mai victim on the orders of the Panchayat/arbitrators. The said occurrence allegedly took place on 22.6.2002, but it was not reported to the police till 30.6.2002. Earlier thereto on 28.6.2002 Maulvi Abdul Razzaq (PW-11) made a sermon in Jumma prayer that it was learnt by him through conversation of some bad character persons of Mastoi bratheri communicated to him by someone else that Badla had been taken from the Gujjars. He pronounced that legal action be taken and the victim be helped. He then contacted Ghulam Fareed but, according to him, due to fear he did not disclose anything about "ziadti". Thereafter on 29.6.2002 PW-11 alongwith pressmen again contacted Ghulam Farid father of the victim, but he again sought some time to ponder over. One thing is clear that in spite of gravity of the alleged offence, if the prosecution story is believed, the complainant party was not ready to report the matter to the police and the matter was reported to the police on the instigation of PW-11 accompanied by the Pressmen. As such PW-11 is the mastermind, who got this case registered. He appears to have involved them by influencing and pressurizing the complainant and her father Ghulam Farid who were playing in his hands, according to his own statement. The case widely publicized not in the country but all over the world. Due to that reasons the high-ups of the Punjab Government as well as other dignitaries had visited the Illaqa and made pronouncements duly published in the newspapers that the death sentenced would be given to the accused party. Both the accused as well as the complainant party claimed that the investigation was not conducted in a fair manner. The worldwide organizations and the NGOs started taking keen interest in the case. In such circumstances the whole evidence on the record has to be considered with great care and caution.
17. Admittedly only Mst. Mukhtiar Mai (PW-14) appeared to state that the four appellants had committed forcible sexual intercourse with her and none else had seen the said occurrence. Altaf Hussain (PW-12) and Sabir Hussain (PW-13) maternal uncle of the victim appeared to corroborate the statement of Mst. Mukhtiar Mai that after she was brought before the Panchayat for seeking pardon over the offence committed by her brother Abdul Shakoor with the sister of Abdul Khaliq appellant she was taken to a room by the four appellants and after one hour she came out in torn clothes. Abdul Shakoor brother of the victim appeared as PW-10 and stated about the motive. Abdul Razzaq (PW-11) claimed that he was one of the arbitrators appointed from the side of the complainant party to settle the dispute and there was proposal of exchange marriages between the parties, but the said offence was not agreed to by the appellants party and they demanded zina for zina and thereupon he went away saying to them to resort to the process of law. It is against the human conduct that PW-11 was an active member of the Panchayat on behalf of the complainant party, but in spite of the utterances of the appellants party in the manner stated above he did not come to the complainant party to know as to how the Panchayat was ended and came to know about commission of the occurrence six days thereafter through someone else whose name was also not disclosed during the trial when he once again started struggle and succeeded in getting registered the case on 30.6.2002. It is strange that Abdul Razzaq (PW-11) admitted during cross-examination that Altaf is his real brother who lives with him at the same place but the latter did not disclose him about the occurrence even up to 30.6.2002. It is also borne out from the evidence on record that immediately after the alleged occurrence the complainant did not state to the other PWs that the four appellants had committed rape with her and it has also not come on the record that as to when and where she had disclosed this fact to the other PWs. The claim of the complainant party that they were not allowed to get registered the case upto 30.6.2002 and the accused party had been uttering threats to them is falsified from the fact that Sabir Hussain (PW-13) after the alleged occurrence at 2.00 a.m. (night) had visited the Police Station alongwith Ramzan Pachar appellant for getting back Abdul Shakoor brother of the complainant who was confined there for the allegation that he had committed ziyadti with sister of Abdul Khaliq appellant and he could have narrated this occurrence to the police at that time.
18. The contention of the learned counsel for the appellants that extreme penalty could not be passed on the sole statement of the complainant is repelled as it is settled principle of law that in Tazir cases conviction can be based on sole statement of the victim, but it should be of unimpeachable character and corroborated by some independent piece of evidence. The contradictions/confrontations pointed out by the learned counsel for the appellants in the statements of the aforesaid PWs during the course of arguments noted in the proceeding paragraphs are very much borne out from the evidence on record, which are sufficient to create a reasonable doubt in the prosecution story. It is settled principle of law that if there is an element of doubt as to the guilt of the accused, the benefit of the same must be extended to him. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." In simple words it means that utmost care should be taken by the Court in convicting an accused. This rule is antithesis of haphazard approach for reaching a fitful decision in a case. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) "the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing innocent."
19. The mode of reporting the occurrence to the police is a clear indicative that the F.I.R. was not lodged with promptitude, but due deliberations and consultations were made between the PWs before registration of the case and as such no sanctity is attached to the first information report made under Section 154 Cr.P.C. It is also strange that the complainant-party or any body else allegedly present in the Panchayat had not reported the matter to the police for eight days, but on 30.6.2002 the complainant party consisting of Ghulam Farid, Sabir Hussain and Mst. Mukhtiar Mai victim contacted Maulvi Abdul Razzaq (PW-11) early in the morning after Fajjar prayer and while calling upon Altaf Hussain and Ghulam Nabi, who were disclosed to be witnesses of the occurrence, all of them went to Police Station Jatoi on bus, but statement of Mst. Mukhtiar Mai under Section 154 Cr.P.C. was recorded by the SHO being present at Jhugi Wala Chowk on a police van at 7.30 a.m. and not at the Police Station. In his statement made under Section 164 Cr.P.C. before the learned Ilaqa Magistrate during the investigation PW-11 specifically stated that the complaint was prepared on 29.6.2002 and the case was registered on 30.6.2002 which falsified his version that the complainant party had contacted him early in the morning on 30.6.2002 after Fajjar prayer for getting registered the case and also the statement of the complainant that her statement under Section 154 Cr.P.C. was recorded by the SHO while present at Chowk Jhuggi Wala in the morning. Even Mst. Mukhtiar Mai complainant in her statement under Section 164 Cr.P.C. specifically stated that the occurrence took place on 22.6.2002 while the police had taken them to the Police Station on 30.6.2002 on the information of Maulvi Razzaq and on the same night the case was registered. Abdul Razzaq (PW-11) also made a statement before the SP Range Crime that father of the complainant was not ready to get lodge the FIR and it was told to him that his statement was already recorded in the tape-recorder and if he resiled from it, legal action would be initiated against him. Even at the Police Station, according to Abdul Razzaq (PW-11) in his statement before the SP Range Crime, Ghulam Farid (father of the complainant) was not ready and willing to lodge the FIR and the former took the complainant to privacy and on his asking she greed to thumb mark the complaint at the Police Station. Moreover, Abdul Razzaq (PW-11) had stated in his statement (Ex-DQ) before the S.P. Range Crime that he had obtained land on lease from the District Council and he had been in litigation with Karam Hussain up to the High Court which was decided in his favour but the possession of the land was not delivered to him by the Mastoies. Karam Hussain is father in-law of Ghulam Fareed (convict) and it was also stated in his statement before the S.P. Range Crime that Mastoies had purchased the same and they belonged to the Qabza group and in this way he had shown the enmity between him and the Mastoi tribe. The unexplained delay in lodging the F.I.R. coupled with the presence of the elders of the area at the time of recording thereof leads to inescapable conclusion that the F.I.R. was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the F.I.R. is an intriguing circumstance which tarnishes the authenticity of the F.I.R., caste a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the F.I.R. is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused. In the present case the delay in lodging the F.I.R. has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable in weakness only.
20. The manner in which Mst. Mukhtiar Mai was brought to the Panchayat was also deplorable. If according to the PWs it was decided in the Panchayat that zina would be committed with the girl of the complainant party, why she was taken there from home by the PWs themselves for subjecting as such. We have observed that all the three PWs 12 to 14 have contradicted each other regarding taking of Mst. Mukhtiar Mai (PW-14) to the room for committing sexual intercourse. According to her on reaching there (Panchayat), Abdul Khaliq appellant held her by the arm which she got released and thereafter Faizan appellant stated politically and worldly (Dunavi/Syasi Taur per) that the girl had come and be forgiven. Then Abdul Khaliq who was armed with pistol held her by the arm and the other three appellants, namely Fayyaz, Ghulam Fareed and Allah Ditta while pushing and dragging took her to the room of Abdul Kahliq appellant where all the four committed ziadity with her turn by turn, but in spite of that she made hue and cry none-else came over there for her rescue. It took about one hour. On the other hand PWs 12 and 13 did not state that on reaching in the Panchayat Abdul Khaliq appellant had caught hold of Mst. Mukhtiar Mai from her arm which she got released. They also did not corroborate the statement of the victim (PW-14) that Faiza appellant stated politically and worldly (Dunavi/Syasi Taur per) that the girl had come and be forgiven, PW-12 only stated that "****As she (victim) reached there, Abdul Kahliq accused (armed with pistol), held Mst. Mukhtiar Mai by the arm and Ghulam Fareed, Allah Ditta and Fayyaz accused persons took her in the room with pushes. Mst. Mukhtiar Mai continued raising alarm `whether there was any Muslim who could save her respect'. The accused persons hurried threats that anybody following them, would be murdered**** while Sabir Hussain (PW-13) stated that after Mst. Mukhtiar Mai was taken to the Panchayat by them "****Faizan and Ghulam Farid Mastoi commanded that Muthtiar Mai had reached, Ziadti be committed with her by taking her by the arm. Thereupon, Abdul Khaliq, Allah Ditta, Fayyaz and Ghulam Fareed took along Mst. Mukhtiar Mai in the room, Mst. Mukhtiar Mai raised alarm and wept and cried out `if there was any body to save her honour.' The accused hurried threats that if anybody followed them, would be dealt with (Hashar Kareingey).***" It is strange that the accused took about one hour to complete their nefarious design and close relatives of the girl including father and maternal uncle were present there besides 15/20 persons in the Panchayat of the complainant party convened in the mosque, but none of them made any struggle or called any body else from the Ilaqa to save the honour of the girl.
21. Then there is second part of the occurrence of her coming out of the room after commission of sexual inter-course with her. According to
PW-14 "***After about one hour, I was turned out. Abdul Khaliq accused gave me pushes. My shirt was on my body, which was torn from the front and the sides. Fayyaz threw clothes on me. May father Ghulam Farid, Ghulam Nabi and Haji Altaf were present there and saw me in nude condition.***" However PW-12 stated that "**** She was turned out after about one hour. Fayyaz accused threw out clothes at her. Her shirt stood torn out from the front side, as also from the sides. The Shalwar and Dopatta were thrown by Fayyaz and was in the hand of Mst. Mukhtiar Mai. I, Ghulam Fareed, her father, Sabir Hussain and Ghulam Nabi witnessed the occurrence. Ghulam Fareed put on the clothes to Mst. Mukhtiar Mai and took her along to his house.***" while PW-13 stated that "***After about one hour, Mukhtiar Mai was turned out of the room; Fayyaz accused threw here clothes; Mst. Mukhtari Mai's shirt stood torn from the sides and front, as she came out, and she called out her father Ghulam Fareed. Ghulam Fareed caught hold of the clothes and put on the same to Mst. Mukhtiar Mai Haji Altaf, Ghulam Nabi, Ghulam Fareed (father Mst. Mukhtiar Mai) and myself saw her without clothes.***"
22. The above quoted portions from the examination-in-chief of the three main witnesses of the prosecution show that contradictory statements were made by them. All the PWs were also duly confronted with their previous statements recorded during the course of investigation and they made certain improvements/omissions, which are on material points. It is significant to note here that none of PWs 12 to 14 and mentioned the time of the occurrence either in the statements recorded under Sections 154, 161 or 164 Cr.P.C. or during the inquiry conducted by the SP Range Crimes and at the trial in their examination-in-chief. The complainant (PW-14) only stated before the learned trial Court that the occurrence took place in the moonlight.
G
23. Mst. Mukhtiar Mai (PW-14) during cross-examination frankly stated that they (PWs) were with the police for the last ten days and had been kept in a house at Muzaffargarh before making statements in the Court. It clearly suggests that the PWs were fully tutored before appearing in the witness box and their statements cannot be treated as a gospel truth made by independent witnesses. The testimony of the prosecution witnesses neither inspires confidence nor can be termed as evidence having come from an unimpeachable source. It has already been held that the prosecution story does not ring true and possibility of fabrication and false implication cannot be ruled out as the F.I.R. was lodged after consultation and deliberation and the delay of at least 9 days in lodging the same had not been explained. After perusal of the whole evidence on the record we are of the considered view that the occurrence had not taken place in the manner narrated by the PWs. The statement of the complainant regarding convening of Panchayat and the decisions taken therein was all based on hearsay and thus was inadmissible in evidence. The prosecution also failed to lead any independent evidence that the members of the Panchayat and taken the decision that rape should be committed with the complainant. The four appellants who allegedly committed the occurrence was party to the Panchayat and not members thereof and their so-called act, which even otherwise is not borne out from the record, could not be considered as decision of the Panchayat.
24. The version of the complainant (PW-14) that she was subjected to forcible intercourse also does not find corroboration from the medical evidence. According to her Abdul Khaliq appellant held her from arm and the other appellants gave pushes to her and all of them dragged her to the room, which according to the PWs was at a considerable distance. Then four adult male persons allegedly committed forcible zina with her turn by turn while she was laid on the Katchha floor and during the struggle her shirt was also torn, but it is strange that the doctor (PW-2) did not observe any marks of violence on her body or private parts. No doubt the doctor observed two healed injuries (reproduced above) on her body, but did not give the duration thereof to suggest that those were caused during the occurrence. Moreover, such type of injuries were not sufficient to hold that she was subjected to forcible intercourse and even the doctor herself at the time of medical examination of Mst. Mukhtiar Mai despite the said injuries on her body did not form any opinion regarding commission of rape with the victim but opined so only after receipt of positive result of the vaginal swabs which were reported to be stained with semen. In the present case of gang rape entailing capital punishment of death positive report of the Chemical Examiner alone cannot be considered as a corroborative piece of evidence. The best evidence which could be procured by the prosecution to prove the case of the prosecution beyond any shadow of doubt was DNA test, but the same was never sought to be conducted in spite of the fact that the Government was taking keen interest in the prosecution of the present case and vast publicity was being given to the case in the local as well as international Press. It seems that the Police was also under pressure and intentionally the DNA test was avoided as the prosecution itself was not satisfied with the prosecution story. Even otherwise, the prosecution story is not worthy of reliance as according to PW-14 all the four accused committed forcible zina with her turn by turn without washing her private parts after ejaculation, but the clothes worn by her at the time of the alleged occurrence were not sent to the Chemical Examiner to ascertain whether those were stained with semen or not. The reason given by her was that those were washed by her younger sister. It is very strange the according to her own version she did not take bath for nine days after the occurrence which resulted into receipt of positive result of swabs even taken from posterior fornix and external vaginal area in spite of the fact that the doctor (PW-2) explained that semen was not seen on the external part during the medical examination, but she allowed her sister to wash up those torn clothes resulting into wastage of corroborative piece of evidence. From the above it can safely be inferred that the occurrence had not taken place in the manner narrated by her and the story that her clothes were torn during the occurrence was fabricated to strengthen the prosecution version, which also were produced before the I/O on the second day of registration of the case.
25. Allah Ditta and Abdul Kahliq appellants are real brothers. It was admitted by the complainant (PW-14) that Allah Ditta was married and his four children, wife, mother and five other brothers were living in the same house and they were at home as it was night. The commission of Zina in the same house by the two real brothers alongwith two others with a woman is not plausible story, which cannot be accepted without any independent corroborative piece of evidence having un-impeachable character, which is lacking in the present case. Due to the delay in the lodging of the FIR and the making of contradictory statements by the complainant, the prosecution story does not inspire confidence to the extent that the four appellants had committed gang rape with the complainant on the direction of the Panchayat. We are unable to understand that on what evidence Faiz Muhammad alias Faiza appellant was convicted when the complainant while appearing as PW-14 herself stated that on reaching there (Panchayat). Abdul Khaliq appellant held her by the arm which she got released and thereafter Faizan appellant stated that the girl had come and be forgiven. Whether her statement alone that the had stated to politically and worldly (Dunavi/syasi Taur per) when no witness was produced that he had conspired with the co-convicts that the complainant should be raped was sufficient to convict him and sentenced to capital punishment. Moreover, on this point too the PWs were duly contradicted with their previous statements. It is settled principle of law that in criminal administration of justice conviction cannot be passed merely on presumptions or surmises and conjectures. Similar is the case of Ramzan Parchar appellant who had only conveyed message to the complainant party that their girl should come in the Panchayat to seek pardon. This piece of evidence which even otherwise improved later on being in contradiction with her statement recorded under Section 154 Cr.P.C. was not sufficient to bring home guilt to him because if he was guilty of the offence, then what was with Ghulam Farid and Sabir Hussain (PW-13), father and maternal uncle of the complainant, who had brought her to the Panchayat allegedly fully knowing that the appellants party had refused to accept proposal of the exchange marriages and wanted badla of zina with zina (tit for tat). Then they were also equally accused in the present case alongwith Ramzan Parchar appellant and should be convicted and sentenced in the same manner. Moreoever, in her statement recorded under Section 164 Cr.P.C. it was stated that said Ramzan Parchar alongwith Sabir had gone to the Police Station at about 2.00 a.m. in the night and taken back Abdul Shakoor to home. If he had any intention for committing the occurrence with the other accused, why he had went to the Police Station for rescuing Abdul Shakoor. The reason for his false implication in the present case appears to be that according to the complainant he had demanded Rs. 10,000/- for giving to Muhammad Iqbal ASI, which was provided to him after selling cow amounting to Rs. 8,000/- and borrowing Rs. 2,000/-, but they did not know that the said amount was actually given to the police or not.
26. From the perusal of the statement of all the witnesses an impression has been gathered that the prosecution witnesses have minimized the role played by Abdul Shakoor who was allegedly caught red handed according to the defence version with Mst. Salma sister of Abdul Khaliq appellant. The complainant party gave his age to be 11/12 years whereas according to the doctor who conducted his medical examination regarding sodomy he was aged about 14/15 years and in spite of that there was also allegation against him for committing zine with the Mst. Salam sister of Abdul Khaliq, his potency test was not conducted. It also shows that how the investigation of the present case was conducted. Admittedly, Abdul Khaliq was present in his house at the time when the complainant alongwith her mother came there to seek pardon and get released Abdul Shakoor. Abdul Kahliq etc. did not release Abdul Shakoor, but also made no attempt for the commission of Zina with the complainant. Then she took Holy Quran in her hands and visited the said place but again on this occasion, there was no attempt for the commission of Zina. It seems to be improbable that when the dispute was likely to be settled in the Panchayat, all the four appellants had committed Zina with her in the presence of the Panchayat where close relatives of the both the parties were present which is not believable. We have also noticed that if the dispute was not resolved amicably and the four appellants had committed forcible intercourse with Mst. Mukhtiar Mai complainant on the direction of the Faiz Muhammad alias Faiza and with the abetment of Ramzan Parchar, how the latter had accompanied Sabir Hussain (PW-13) maternal uncle of the complainant to get released Abdul Shakoor confined there at 2.00 a.m. in the night and why Sabir Hussain had not reported such a heinous offence then and there. It clearly suggests that the facts were otherwise and later on false story was concocted as the accused party had married Mst. Salma with Khalil co-accused and it appears that for the same reason he as well as his close relatives i.e. father and uncle, namely, Hafiz Rasool Bakhsh, Qasim Hussain and Hazoor Bakhsh (acquitted accused) out of alleged participants of 200/250 of the Panchayat were nominated as accused in the present case.
27. There is yet
another aspect of the case. According to the complainant's own statement
recorded under Section 154, Cr.P.C. one of the accused was Ghulam Farid son of
Mahmood and in the FIR twice his parentage Mahmood was recorded. The
complainant also admitted that said statement was read over to her at
Jhuggiwala and she was accompanied by Maulvi Abdul Razzaq, her father and Sabir
but none of them pointed out that she had mentioned the wrong parentage of
Fareed. According to the complainant she made a supplementary statement at the
same time in which she got corrected the parentage of Fareed as Allah Bakhsh. PW-16
Nazir Ahmad, Inspector/Investigating Officer, who recorded statement under
Section 154 Cr.P.C. during cross-examination admitted that parentage of Fareed
son of Mahmood was written and that the statement was read over to her with
wrong parentage. However, he stated the supplementary statement was recorded to
correct the same but admitted that they did not mention this fact in the
Karwai. It is unbelievable that if an error was committed in the complaint
unintentionally why the complainant in her statement before the Magistrate did not mention the
parentage of Fareed and she in her statement before the S.P. Range Crime had
not given the parentage of Fareed as Allah Bakhsh. The father of complainant
Ghulam Fareed in his statement before the S.P. Range Crime had specifically
stated that Ghulam Fareed had not committed Zina with the complainant although
he remained present there. Hence, the chances of his false implication in the
present case cannot be ruled out and it also appears to be a reason for non-production
of father of the complainant during the trial. Similarly, the complainant had
nominated Fayyaz son of Karim Bakhsh resident of Meerwala as one of the accused
who allegedly committed Zina with her but Muhammad Fayyaz appellant is actually
resident of Rampur, who has placed on record his identity-card issued in the
year 1978, according to which he was resident of Rampur and not village
Meer-wala. Moreover, according to the learned defence counsel he was arrested
wrongly under misconception and this point was also raised before the Governor,
28. According to the evidence on record there was a proposal that Mst. Salma sister of Abdul Khaliq be married with Abdul Shakoor brother of the complainant and in exchange thereof the Nikah of the complainant be performed with Abdul Khaliq. It has come on the record that on 27th June, 2002 said Mst. Salma alias Nasim was married with Khalil co-accused instead of Abdul Shakoor according to the compromise arrived at between the parties. Then the sermon was delivered by Abdul Razzaq (PW-11) on 28.6.2002 and the case was got registered on 30.6.2002. The possibility cannot be ruled out that since the appellant party had backed out from the compromise while marrying Mst. Salma with other person instead of Abdul Shakoor, this case was got registered on concocted story due to the fear that said Abdul Shakoor might not be prosecuted by the complainant party for the offence committed by him. Moreover, according to the prosecution version Ghulam Nabi was cited as a witness who was allegedly present in the Panchayat at the time of the alleged occurrence, but when examined under Section 164 Cr.P.C. he denied to have seen the occurrence alleging that on the day of occurrence he had gone to Dera Ghazi Khan to see his relatives and when returned after two days came to known about the occurrence. He was withhold by the prosecution that the trial. Similarly, Ghulam Farid, father of the complainant, in his statement before the SP Range Crimes specifically stated that Ghulam Fareed had not committed intercourse with the complainant and he could be a natural witness of the occurrence, but was also not produced in the witness box to face the test of cross-examination. No doubt under the law it is upto the prosecution to produce as many witnesses in support of the allegations levelled against the accused, but from the facts and circumstances of the case an inferrence can safely be drawn that they were withheld due to the fear that real facts might have not come on the record.
29. For the foregoing reasons, we are satisfied that the prosecution has miserably failed to bring home guilt to the appellants, namely, Allah Ditta, Muhammad Faiz, Ghulam Farid, Ramzan Parchar and Faiz Muhammad alias Faiza beyond any shadow of doubt. Hence to their extent the impugned judgment of conviction and sentence is set aside and they are acquitted of the charge by extending them the benefit of doubt. Both Crl. Appeals Nos. 60 and 61 of 2002 are partly accepted. They shall be released from jail, if are not required in any other criminal case.
30. Now we take up the case of Abdul Khaliq appellant. Both the parties have admitted that on the matter of catching hold of Abdul Shakoor brother of the complainant with Mst. Salma sister of Abdul Khaliq appellant a Panchayat was convened to resolve the controversy. When examined under Section 342 Cr.P.C. Abdul Khaliq appellant stated that his defence was the same put in cross-examination by his learned counsel. During the course of cross-examination a specific defence was taken that Maulvi Abdul Razzaq had performed Sharai Nikah of the complainant with Abdul Khaliq and that only Abdul Khaliq had proclaimed to take revenge for disrespect of his sister with zina. Moreover, in her statement before the S.P. Range Crime, she stated that only Abdul Khaliq had taken her to the room and Abdul Khaliq, while putting his defence to the PWs remotely admitted that he had committed sexual intercourse with the complainant as she was given in marriage to him on the same night. Although PW-14 denied her marriage with Abdul Khaliq, but made the following statement during her cross-examination:--
"***My maternal uncle Sabir Hussain did not state to me while taking me to the Panchayat of the Mastois that in case the latter agreed, my hand would be given to Abdul Khaliq accused. Probably I would have agreed to marriage with Abdul Khaliq accused, in case the offer of our Panchayat re-marriages of Salma with Shakoor and in Badla my marriage Abdul Khaliq had been accepted. I would have sacrificed not only for my brother but for whole of my family. While proceeding with Sabir Hussain to the Panchayat of Mastois, I did not wear Burqa but had taken Bocha (Big Dopatta). My maternal uncle Sabir Hussain did not say to me that Abdul Khaliq proclaimed to take revenge for disrespect of his sister with zina."
The possibility cannot be ruled out that since Abdul Shakoor brother of the complainant was in police custody on the allegation of committing ziyadti with Salma sister of Abdul Khaliq, to save him from the legal action she had agreed to perform marriage with Abdul Khaliq and was sent with him immediately as was suggested to the PWs during cross-examination, who performed sexual intercourse with her and at about 2.00 a.m. the same night Abdul Shakoor was taken back from the Police Station. But the intention of Abdul Khaliq is borne out from the record that he only wanted to take revenge of ziyadti committed with his sister Salma and, therefor, on 27.6.2002 the marriage of Salma sister of Abdul Khaliq appellant was preformed with Khalil co-accused thereby backing out from their commitment of marrying Salma with Abdul Shakoor. The complainant was also taken back to the house of her parents, but no case was got registered till 30.6.2002. An inference can be drawn that if marriage of Salma was performed with Abdul Shakoor, then this case might have not been got registered, in such circumstances, Abdul Khaliq in so many words has admitted the commission of sexual intercourse with the complainant and even otherwise to the extent of Abdul Khaliq there is consistent stand of the PWs that he was active to take revenge for the disrespect of his sister Salma. In Section 6 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Zina-bil-Jabr has been defined as under:--
(1) a person is said commit zina-bil-Jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:--
(a) _________________________
(b) _________________________
(c) _________________________
(d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself be validly married."
Hence we are satisfied that the allegation of committing sexual intercourse with the complainant (PW-14) is only proved against Abdul Khaliq appellant which is covered by Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Since the allegation of gang rape is not proved, his conviction under Section 10(4) is converted to 10(3) of the Offence and he is sentenced to 25 years RI. However, the sentence of fine awarded by the learned trial Court is maintained and he shall be given the benefit of Section 382-B Cr.P.C. So far as his conviction under Sections 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 7(c) read with Section 21(1), ATA, 1997 and 149/109 PPC is concerned, it is admitted fact that there was no purpose of the said appellant to abduct the complainant, who according to the allegation itself, was taken to a few paces and then returned immediately after commission of sexual intercourse. Moreover, the act of Abdul Khaliq appellant was not to intimidate and overawe the community and to create a sense of fear and insecurity in society as in spite of commission of the said occurrence none had reported the matter to the police for about nine days. Therefore, Abdul Kahliq appellant is acquitted of the charges under Sections 11 of the Offence of Zina Enforcement of Hudood) Ordinance, 1979 and 7(c) read with Section 21(1), ATA, 1997 and 149/109 PPC. Crl. Appeal No. 60/2002 to his extent stands disposed of and impugned judgment of conviction and sentence is modified in the above manner.
31. So far as, Criminal Appeals Nos. 62 and 63 of 2002 and 65 and 66 of 2002 filed by the complainant as well as the state against the six appellants for their conviction under Section 354-A, read with Section 109, PPC and against acquittal of the eight respondents are concerned, we find that the acquittal of the appellants under Section 354-A, P.P.C. is based on sound reasoning as when the complainant came out of the room, she was wearing Langout and shirt. Moreover, the occurrence had taken place at night time and according to PW-14, there was no electricity in the village or other source of light. Even otherwise, there is no evidence on the record that the accused party had intended to strip off clothes of the complainant for exposing her to public view or that it was settled during the Panchayat that the co-accused would commit Zina-bil-Jabr on gang-rape with Mukhtiar Mai. Not even a single word was uttered in this regard. Moreover, we have felt it strange that how the learned trial Court in spite of not an iota of evidence on record had convicted and sentenced appellants, namely, Ramzan Parchar and Faiz Muhammad alias Faiza under Sections 10(4), of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with 109, P.P.C. We are, therefore, of the view that the matter should be referred to the competent authority as the conviction was made entirely without any evidence and the action should be initiated against the learned trial Judge, if it deems fit as they were bound to suffer the agony by remaining in the death call of the jail for a long period. We have also acquitted the two appellants with the same role and as such the acquittal of the 8 respondents from the alleged charges by the learned trial Court was not result of any miscarriage of justice because there was no evidence on the record to connect them with the commission of the crime. Hence Criminal Appeals Nos. 62 and 63 of 2002 and 65 and 66 of 2002 filed by the complainant as well as the state are dismissed.
(A.A.) Order accordingly.