PLJ 2006 SC 830
[Appellate Jurisdiction]

Present: Abdul Hameed Dogar, Chairman; Muhammad Nawaz Abbasi; Mian Shakirullah Jan, Dr. Allama Khalid Mahmood and
Dr. Rashid Ahmad Jullundhari, JJ.

MUHAMMAD ASLAM--Petitioner

versus

STATE and another--Respondents

Crl. P. No. 2(S) of 2005, decided on 22.12.2005.

(On appeal from the judgment of Federal Shariat Court dated 24.11.2004, passed in Criminal Appeal No. 199-L/1996)

(i) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--

----S. 10(3)--Constitution of Pakistan (1973), Art. 203-DD--Offence of Zina--Acquittal of petitioner by Trial Court, converted into conviction and sentence of seven years imprisonment--Legality--Verdict of acquittal although carries double presumption of innocence and unless there are strong reason reversal of finding of acquittal into that of conviction was not justified, yet in present case Federal Shariat Court having made detailed scrutiny of statement of victim and two eye-witnesses have rightly concluded that discrepancies and contradictions in their statement as pointed out by trial Court were not of much significance to draw inference adverse to prosecution and that view of evidence taken by trial Court was not only perverse but was also against principle of criminal administration of Justice--Reasons given by trial Court for acquittal of petitioner were speculative, artificial and conclusions drawn being based on mis-interpretation of evidence, was perverse and wholly un-reasonable therefore, conclusions drawn by Federal Shariat Court were quite in accordance with law--Statement of victim and eye-wintesses coupled with circumstanial evidence of un-impeachable character would suggest that Appellate Court had drawn right conclusion of evidence by converting verdict of acquittal into verdict of conviction--Impugned judgment of Appellate Court would not call for interference. [Pp. 834 & 835] A & B

(ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--

----S. 10(3)--Constitution of Pakistan (1973), Arts. 187 & 203-DD--Offence of Zina with girl of 12/13 years of age--Sentence awarded by Federal Shariat Court being imprisonment of seven years was inadequate--Supreme Court in exercise of powers under Art. 203-DD and 187 of the Constitution in interest of complete justice enhance sentence of petitioner from seven years to fourteen years after giving notice to petitioner. [Pp. 836 & 837] C

Mr. Muhammad Aslam Uns, ASC for Petitioner.

Ch. Munir Sadiq, ASC for Respondents.

Date of hearing : 22.12.2005.

Judgment

Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 14.11.2004 passed by the Federal Shariat Court, Islamabad, in an appeal filed by Mst. Atia, respondent herein, against the acquittal of petitioner from the charge under Section 10 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 452 PPC by a learned Additional Sessions Judge, Mandi Bahauddin.

2. The relevant facts in the background giving rise to this petition are that Mst. Atia (PW1), lodged a report on 23.7.1994 at Police Station Miana Gondal District Mandi Bahauddin to the effect that during the night between 22nd and 23rd of July 1994 she alongwith her father, who had weak eye-sight, was sleeping in the courtyard of her house when Muhammad Aslam, petitioner, and his co-accused Allah Bakhsh, while trespassing into their house and gagging her mouth with a piece of cloth, lifted her to the nearby fruit garden and committed zina-bil-jabr with her turn by turn. She stated that when Muhammad Aslam, petitioner, was busy in evil act, her neighbourer namely Muhammad Sher (PW 6) and Said Ahmed (PW 7) reached at the spot whereupon the accused leaving her in naked position, escaped from the place of occurrence. The witnesses brought her in semi-conscious condition to her house and she on gaining consciousness, narrated the incident to her parents.

3. The petitioner and his co-accused were tried for the charge under Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 458/34 PPC by the learned Additional Sessions Judge, Mandi Bahauddin. The prosecution mainly relied upon the testimony of Mst. Atia, complainant, a minor girl of 12/13 years. Sher Muhammad (PW 6) and Said Ahmed (PW 7) who having reached at the spot, have seen the occurrence and not only supported the prosecution story as contained in the FIR but also corroborated each other as well the statement of victim in each material point. Dr. Fazal Ahmed, (PW.9) Medical Officer, Rural Health Center, Miana Gondal having medically examined the petitioner and his co-accused found them fit to perform the sexual act. Mst. Atia was medically examined by Dr. Mubashara Anwaar, District Headquarters Hospital, Mandi Bahauddin but she having gone abroad, was not available during the trial, therefore, the medical legal report (Ex. "H") of the victim prepared and signed by her was proved by Azhar Javed (PW 10), a Dispenser of DHQ Hospital. The investigating officer of the case, Sub Inspector Nazar Hussain, was examined as PW 8 whereas the police officials, Muhammad Arshad, FC and Muhammad Azam, ASI who remained associated with the investigation, were examined as PW 4 and PW5 respectively.

3. The petitioner and Allah Bakhsh, his co-accused, who is also his brother-in-law, in their statement under Section 342 Cr.P.C. denied the charge and pleaded false implication. Allah Bakhsh also made a statement on oath under Section 340(2) Cr.P.C. wherein he stated that during the nigh of occurrence, he was present at his house in village Sandha at a distance of about 10 kilometers from the house of victim situated in village Head Faqiran and having strained relation with his in-laws, could not possibly commit such an offence jointly with his brother-in-law.

The learned trial Judge on conclusion of the trial, having formed an opinion that the prosecution has failed to prove the case against the accused beyond reasonable doubt, acquitted them from the charge. However, Mst. Atia, victim girl, being aggrieved of the acquittal of the accused, filed an appeal before the Federal Shariat Court under Section 20 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and learned Judges in the Federal Shariat Court after detailed scrutiny of the evidence having found the opinion that the conclusion of the evidence drawn by the trial Court was perverse being the result of misreading and misappreciation of evidence and after setting aside the acquittal of accused, convicted them under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and awarded both of them a sentence of R.I. for 7 years with each benefit of Section 382-B, Cr.P.C.

4. Learned counsel for the petitioner has contended that Federal Shariat Court in utter disregard to the principles governing the appeal against acquittal and in departure to the rule of criminal administration of justice that acquittal carries double presumption of innocence, reversed verdict of acquittal given by the trial Court in favour of accused without any justification. Learned counsel while pointing out the contradiction and discrepancies in the prosecution evidence, has argued that the conclusion drawn by the trial Court was neither perverse nor un-reasonable as the circumstances leading to the happening of the alleged occurrence, would not support the claim of eye witnesses of suddenly reaching at the spot without any alarm of the victim and identified the assailants in the dark. The learned counsel argued that the factual situation of the case would suggest that it was an unseen occurrence and even victim was not in a position to identify the culprits in the dark, consequently in view of the doubtful character of evidence of identification of the assailants, the involvement of the accused in the occurrence was not proved beyond doubt. Lastly, he submitted that the victim was admittedly unconscious when she was brought to her house therefore, her claim of narrating the occurrence to her father in such condition, would not be accpetable and taking into consideration the above circumstances in totality it would be evident on record that the prosecution has failed to prove the charge against the petitioner and his co-accused beyond reasonable doubt.

5. Learned counsel for the State while supporting the judgment of the Federal Shariat Court has contended that the victim has clearly stated that the accused having forcibly taken her to the fruit garden, committed zina-bil-jabr with her and she was brought back to her house in semi-conscious condition and that after some time, she on gaining the consciousness, narrated the incident to her parents. The learned counsel submitted that neither the victims nor the witnesses had any malice or enmity against the accused or any other consideration to substitute them for the unknown culprits and that the direct evidence of the victim, coupled with the evidence of the two witnesses who having reached at the spot brought her to the dera of her father in naked condition, the medical evidence as well as the attending circumstances would strongly exclude even a remote possibility of the innocence of the accused or a slight doubt regarding their guilt.

6. There is no cavil to the proposition that the verdict of acquittal carries double presumption of innocence and unless there are strong reason, the reversal of finding of acquittal into that of conviction is not justified. However, in the present case, we find that the learned Judges in the Federal Shariat Court having made detail scrutiny of the statement of victim and the two eye witnesses have come to the conclusion that the discrepancies and contradictions in their statement as pointed out by the learned trial Judge were not of much significance to draw an inference adverse to the prosecution and that the view of the evidence taken by the trial Court was not only perverse but was also against the principle of criminal administration of justice. We having examined the record would take no exception to the view of the evidence taken by the Federal Shariat Court as the reasons given by the trial Judge for the acquittal of the accused were speculative, artificial and the conclusion drawn being based on misinterpretation of evidence, was perverse and wholly unreasonable, therefore, the appraisal of evidence by the Federal Shariat Court to draw its own conclusion in appeal against acquittal was quite in accordance with law. This is correct that weight is to be given to the finding of the trial Court if the conclusion drawn is based on fair reading of evidence and is not perverse or wholly unreasonable and thus interference in the acquittal for mere reason that another view of the evidence is possible, is not proper but if the appreciation of evidence has caused failure of justice, the order of acquittal must be set aside. In the present case, the victim girl was examined by a lady doctor on the day of occurrence and her medico legal report revealed as under:--

"1. A young girl brought to me via police for the examination of rape.

Date of examination 23-7-1994 at 11.20 p.m.

Age: 14/15 years.

2. Marks of violence--(1) Contused bruise area 7 cm x 6 cm around left eye. There is redness of the left eye also (ii) Red bruised area 7 cm x 6 cm around the R.T. eye redness in the right eye present. (conjectival haemorrhage (iii) Contusion 18 cm x 2 cm around and in front of neck (from left to right ear lobile) Admitted for---------of injuries.

Sic

(iv) Bite on the tip of tongue 2 cm x 2 cm area. (3) Cloths Shalwar is stained with blood discharge and soaked which is sealed into parcel and sent to chemical examiner.

(4) Examination private parts:--Thick black abundant hairs on vulva.

Hymen. Fresh tear present 2 cm x 1 cm with blood and pus on it. External and internal vaginal swabs taken, secured and sent to the chemical examiner Punjab for detection of semen. Vagina 2 F passed difficulty, blood came on p/v into R/v R/F size-------

FX clear.

Menstruation: Age of ------------- 12-13 years M/c 4-5 days and M.D two weeks back according to her statement.

Breasts: Nipple pink colour.

Final opinion will be given after the receipt of report of chemical examiner.

K.U.O.

Weapon Strangulation."

The report of the chemical examiner, Punjab, Lahore, was to the following effect:

"I hereby certify that I received by C. Muhammad Arshad No: 445 a packet of the WMO DHQH of Mandi Bahauddin alleged to have been dispatched by him on the 23rd day of July, 1994 referred to in his office MLR No. 24-F/94 dated 23.7.1994 and received by me on the 2nd day of the August, 1994.

2. The packet consisted of a one sealed vial and one sealed shalwar bearing the impression of the invoice hereunt attached and reached me with a. 3 seals intact.

The contents of the packet were as follows:--

Shalwar.

Vaginal Swabs......Two.

3. The above seals were opened in my presence and the contents of the packet were duly examined by me, remaining under my immediate custody until the examination was completed.

4. The stains/material I was led to examine for were: semen and Blood."

8. The examination of the statement of victim and the eye witnesses in the light of above pieces of circumstantial evidence of unimpeachable character, would suggest no other conclusion of the evidence except the one drawn by the Federal Shariat Court in appeal. This may be noticed that the finding of acquittal arrived at by the trial Court was based on minor contradiction and discrepancies, therefore, the conclusion drawn was certainly result of misinterpretation of evidence and against the principles of appraisal of evidence in criminal cases. It is evident from the record that the finding of acquittal being wholly unreasonable and perverse, have rightly been set aside by the Federal Shariat Court in appeal by reappraising the evidence and consequently, the judgment under challenge would not call for interference of this Court.

The Federal Shariat Court having found the accused guilty of committing an offence under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 awarded them a sentence of 7 years R.I. each without giving any reason as to how in the given facts and circumstances, the sentence was justified to meet the ends of justice. The quantum of sentence is certainly determined by the trial Court or the appellate Court as the case may be in consideration of (a) the nature of offence (b) the circumstances in which the offence was committed, (c) the gravity and degree of deliberation shown by the offender and such other factors appearing in the evidence but in the present case, the Federal Shariat Court without taking into consideration the above factors, has taken an extreme lenient view in the matter of sentence in such a serious case. This may be pointed out that the victim, a minor girl of 12/13 years was forcibly taken to the fruit garden adjacent to her house and was subjected to zina bil jabr by the accused who with a view to fulfil their sexual lust, raptured the virginity of an innocent girl therefore, they would not deserve any leniency in the matter of sentence. We may point out that the purpose of sentence is prevention of crime and to discourage the others to turn to crime. It is generally agreed that leniency in the matter of sentence in serious offences is against the object and wisdom of law whereas the rationale behind the deterrent punishment is to eliminate the crime or at least to reduce and discourage the crime in the interest of peaceful atmosphere in the Society. The ultimate purpose of deterrence or the lenient view in the matter of sentence directly or indirectly is the reformation of an individual as well as the Society. The concept of lenient view in the punishment is to bring down an offender to reform himself and restrain from repeating the crime whereas the goal of deterrence in the sentence is reduction in crime in the Society due to fear of law.

9. This Court in the light of facts and circumstances of the present case and the nature and gravity of offence, being of the view that sentence awarded to the petitioner and his co-accused in appeal by the Federal Shariat Court under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was inadequate, issued notice to the accused as to why their sentence be not enhanced. The learned counsel has not been able to satisfy us that in the circumstances of the present case, the sentence of seven years R.I. was sufficient to meet the ends of justice and consequently we in exercise of the powers under Article 203-DD read with Article 187 of the Constitution in the interest of complete justice, enhance the sentence of petitioner from seven years R.I. to 14 years and grant him benefit of Section 382-B, Cr.P.C. This petition with enhancement of sentence in the above manner in dismissed. Leave is refused.

10. Notice was also required to be issued to Allah Bakhsh, co-convict of the petitioner who has not filed any petition before this Court but the office has omitted to issue notice to him in terms of order dated 7.12.2005. The notice be also issued to Allah Bakhsh convict and case for enhancement of sentence against him shall be taken up separately in the next session after he is served and meanwhile he shall not be released from jail.

(Aziz Ahmad Tarar) Order accordingly.