PLJ 2011 SC 1
[Appellate Jurisdiction]
Present:
Javed Iqbal, Sayed Zahid Hussain
& Muhammad Sair Ali, JJ.
SHAKEEL
& others--Appellants
versus
STATE--Respondent
Crl. Appeal No. 412 of 2002, decided on 17.9.2009.
(On
appeal from the judgment dated 13.5.2002 passed by Lahore High Court, Lahore,
in Crl. Appeal No. 1989/2000 & M.R. No.
4-T/2001).
Offence
of Zina (Enforcement of Hudood)
Ordinance, 1979 (VII of 1979)--
----Ss.
10(4) & 11--Zina-bil-jabr--Proof of--Swabs were
found stained with semen--Contention of--Since the vagina of prosecutrix admitted two fingers easily hence being a lady
of an easy virtue her statement would have been discarded, for the simple
reason that even if it is admitted that she was a girl of an easy virtue, no
blanket authority can be given to rape her by any one who wishes to do
so--Question of--Held: Swabs were found stained with semen which is a solid
proof that she was subjected to rape. [Pp.
8 & 9] A & B
Corroboration--
----Scope--Corroboration
is not a rule of law but that of prudence--There is no denying the fact that
acid test of the veracity of the prosecutrix's
statement is the inherent merit of her statement because corroborative evidence
alone could not be made a base to award conviction--Extent and the nature of
corroboration required may, no doubt, vary from witness to witness and from
case to case, but as a rule it is not necessary that there should be corroboration
in every particular, all that is necessary is that the corroboration must be
such as to effect the accused by connecting or tending to connect him with the
crime--Corroborative evidence should at least tend to show that the evidence of
the witnesses when they name the accused as taking part in the crime is
true--Corroboration of the interested testimony should be such as would remove
the doubt that the accused have been falsely implicated"--If statement of prosecutrix is considered trustworthy, no corroboration
would be needed and such need would only arise in the circumstances indicating
the possibility of her being consenting party to sexual intercourse which is a
rare phenomena in case of zina-bil-jabr. [Pp. 9 & 10] C, D, E & F
PLD 1984 SC 218, 1975 SCMR 69 & 1984 SCMR 908, ref.
Zina-bil-Jabr--
----No
semen grouping was made--Not essential--Validity--At the best it can be
considered as lapse on the part of investigating officer and prosecutrix cannot be held responsible for it--Omission of
scientific test of semen status and grouping of sperms is neglect on the part
of prosecution which cannot materially affect the other evidence. [P. 10] G
Leave
to Appeal--
----Jurisdiction--Leave
to appeal may be granted on a question of jurisdiction even where the point had
not been raised during trial. [P.
11] H
----S.
34--Common intention--To have some intention independently of each other is not
to have common intention--Held: Common intention requires a pre-arranged plan--There
must be a prior meeting of a minds. [P. 11] I
Common
Intention--
----"Common
intention" with in the meaning of the section implies a pre-arranged plan,
and to convict the accused of an offence applying the section it should be
proved that the criminal act was done in concert pursuant to the pre-arranged
plan. [P. 12] J
ILR (1945) 26 (Lah.) 267 (PC).
Mr.
Munir Ahmad Bhatti, ASC for
Appellants.
Mian Asif Mumtaz,
DPG for State.
Mr.
Dil Muhammad Alizai, DAG on
Court Call.
Date
of hearing: 28.4.2009.
Judgment
Javed Iqbal, J.--This appeal with leave
of the Court is directed against judgment dated 13.05.2002 passed by the
learned Division Bench of Lahore High Court, Lahore whereby the criminal appeal
preferred on behalf of appellants has been dismissed and the judgment dated
8.12.2000 passed by learned Judge Special Court, Sargodha
constituted under the Anti-Terrorism Act, 1997 whereby Israr
Ahmed, Shakeel, Arshad and
Ali Asghar, appellants were convicted under Section
11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (herein after referred to as the
said Ordinance) and sentenced to imprisonment for life and to pay Rs.20,000/-
each as fine and in default to suffer further SI for two years each with
benefit of Section 382-B Cr.P.C. whereas Shakeel, Arshad, Muhammad Ramzan, Ali Asghar and Javed, appellants were also sentenced to death under
Section 10(4) of the said Ordinance, has been kept intact. However, on appeal,
learned High Court acquitted Tariq Mehmood (co-accused) by giving him the benefit of doubt.
2. Leave to appeal was granted by this Court
vide order dated 12.11.2002 which is reproduced herein below to appreciate the
legal and factual aspects of the controversy:--
"This
petition has been filed for leave to appeal against the judgment dated
2. Precisely stating the facts of the case are
that PW-Mst. Asia Bibi
daughter of Muhammad Khan lodged FIR at Police Station Pul-11, District Sargodha on
(i) Shakeel, Arshad, Ali Asghar, Israr Ahmad u/S. 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 sentenced to imprisonment for life each with fine of
Rs.20,000/- each, or in default whereof to further undergo two years R.I. each.
(ii)
Shakeel, Arshad, Javed, Muhammad Ramzan and Ali Asghar u/S. 10(4)
of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 sentenced to death.
(iii)
Tariq Mehmood
Life
imprisonment u/S. 10(4) of the Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 and 7 years
R.I. u/S. 337-J, PPC.
4. On appeal, learned High Court acquitted Tariq Mehmood. However, sentenced
awarded to rest of the accused were maintained.
5. Learned counsel for the petitioners contended
that prosecution's case is based upon the statement of complainant Mst. Asia Bibi, photographs
(Ex.P-1 to P-12), video cassette (Exb.P-13 & P-14) as well as statement of
PW-Ansar Ali and Asif Ali
(not produced). As far as her own statement is concerned, it suffers from
material contradiction, improbabilities and untrustworthy. No independent
evidence has been produced to corroborate her version because as far as the
photographs (Exb.P-1, P-6 and P-10 to P-12) are concerned they indicate
presence of one of the petitioner Shakeel with the prosecutrix. But the scene shown therein is also not
sufficient to prove the offence of Zina-bil-Jabr
according to law. As far as video cassette is concerned, so far other
petitioners are concerned they have not been shown in the photographs engaged
in any indecent act except that they are sitting separately without the company
of the prosecutrix. The complainant lodged report
after three days from the happening of alleged incident for which no
explanation has been offered. Inasmuch as Mst.
Nasim Akhtar with whom she
had gone to Adda Chak No.
46 was not produced to substantiate that she was picked up by Shakeel and others with the pretext to take her to her
village. As far as PW-Ansar Ali is concerned
his statement is also not trustworthy, firstly for the reason that he is cousin
of the prosecutrix and secondly he is resident of Sialkot and he has failed to explain his presence in the
village where the incident took place, therefore, he had no occasion to witness
that after the commission of offence prosecutrix was
being taken by Shakeel and others in their vehicle.
Learned counsel also contended that ocular testimony and medical evidence
furnished by the Doctor suffers from contradiction.
6. Notice was issued to State on the last date
of hearing through Advocate General but no one has appeared.
After
hearing learned counsel for the petitioners and having gone through the
material available on record in the file of the trial Court, we are of the
opinion that for safe administration of criminal justice, reappraisal of total
evidence available on record is called for, therefore, leave to appeal is
granted."
3. Mr. Munir Ahmad Bhatti,
learned ASC entered appearance on behalf of appellants and contended vehemently
that the prosecution has failed miserably to establish the guilt to the hilt as
no reliable evidence could be produced. It is next contended that the evidence
which has come on record has not been appreciated in its true perspective by
the learned
(P.W. 1/prosecutrix) had mentioned the name of one Mst.
Naseem Akhtar who was alongwith her but she could not be produced hence the story
as concocted by Mst. Asia Bibi
(P.W. 1/prosecutrix) could not be substantiated and being illogical and
unreliable it should have been discarded. It is also pointed out that video
film and photographs cannot be taken into consideration as the same were not
got exhibited and proved in accordance with law and besides that the copy of
video film was never handed over to the appellants. It is contended that
keeping in view the over all scenario and backdrop of the case the sentence of
death should be set aside on the basis of extenuating and mitigating
circumstances and specially the fact that Shakeel
(appellant) was also having sexual relations with Mst.
Asia Bibi (P.W. 1/prosecutrix) prior to the alleged
occurrence and for the sake of argument even if it is admitted that any offence
had been committed, the factor of consent and willingness cannot be ignored.
The learned ASC has also raised the question of jurisdiction as according to
him learned Special Court had no jurisdiction on the date when the alleged
offence was committed hence the entire proceedings being unlawful may be
declared as null and void. In order to substantiate his version reference has
been made to the following authorities:
Muhammad
Arshad alias Achhi v. State
(PLJ 1996 SC 453), Abdul Khaliq v. State (PLJ 1996 SC
464), Ensan Begum v. State (PLD 1983 FSC 204), Habibullah v. State (PLD 1983 FSC 251), Muhammad Zafar v. Zahoor (PLD 1983 FSC
480), Sohail Iqbal v. State
(PLD 1983 FSC 514) and Mst. Nargas
v. Rustam Ali (2001 PSC [Crl.]
568)
4. Mian Asif Mumtaz, learned Deputy
Prosecutor General entered appearance on behalf of the State and vehemently controverted the view point as canvassed at bar by Mr. Munir Ahmad Bhatti, learned ASC
for the appellants and supported the judgment impugned for the reasons
enumerated therein with the further submission that the statement of Mst. Asia Bibi (P.W.
1/prosecutrix) has rightly been taken into consideration by the learned trial
and appellate Courts who stood firm to the test of cross-examination and in
spite of various searching questions nothing beneficial could be extracted
rendering any help to the case of appellants. It is also pointed out that
conviction and sentence could have been awarded on the solitary statement of Mst. Asia Bibi (P.W. 1/prosecutrix)
which by now has become a well entrenched admitted proposition of law. It is
also pointed out that minor contradictions do creep in with the passage of time
and the slightest exaggeration if any can be ignored and on this score alone
the statement of Mst. Asia Bibi
(P.W. 1/prosecutrix) cannot be discarded especially when it was fully
corroborated by the medical evidence, video-film and naked photographs, The
learned Deputy Prosecution General is of the view that in view of the naked
photographs and video film coupled with the medical evidence and statement of Mst. Asia Bibi (P.W.
1/prosecutrix), no other evidence was required to substantiate the accusation
which has been proved to the hilt. It is also mentioned that the factum of delay has been explained in a plausible manner
and no adverse inference could be drawn merely on the basis of delay which do
occur in such like cases as usually efforts are made to negotiate and
compromise the issue.
5. We have carefully examined the respective
contentions as agitated on behalf of the appellants and for the State. We have
given our anxious consideration to the arguments propounded by the learned
counsel for the parties and have also examined the record. The pivotal question
which needs determination is as to whether the prosecution has established the
guilt to the hilt? To answer the said question, we propose to examine the
prosecution evidence by keeping the defence version
in juxtaposition, A careful scrutiny of the statement
of Mst. Asia Bibi (P.W.
1/prosecutrix) would reveal that zina-bil-jabr was
committed by the appellants. It reveals from her statement that she was
accompanying Mst. Naseem Akhtar when Shakeel Ahmad who was
earlier known to her being co-villager asked her to sit in their car and she
would be dropped to her house. The car was being driven by Israr
Ahmad while Arshad, Ali Asghar
and Shakeel were sitting in the same car. Mst. Asia Bibi (P.W.
1/prosecutrix) was never brought to her house but on the contrary they drove
her to the house of Muhammad Ramzan where Tariq Mehmood and Javed were present. It is further stated by Mst. Asia (PW-1/Prosecutrix) that Shakeel
caught hold of her and Tariq Mehmood
injected some intoxication and also gave some sedative pills in tea which made
her semi unconscious. By taking advantage of the situation, Shakeel,
Arshad, Ali Asghar,
Muhammad Ramzan, Tariq Mehmood and Javed committed zina-bil-jabr with her. It is further stated that a video
film was also made and on the next morning when she was being driven to her
house, on reaching the vicinity, she made hue and cry on seeing Ansar Ali and Asif Ali,
(prosecution witnesses), the appellants pushed her out from the car and managed
their escape good. It further reveals from her statement that she was in
precarious condition and remained confined in the house. She has also mentioned
in her statement that the appellants especially Shakeel
had been requesting Qaiser Abbas
(brother of Mst. Asia Bibi)
and Muhammad Khan (father of Mst. Asia Bibi) for a compromise and therefore, matter could not be
reported to the police but subsequently got reported by means of FIR. Insofar
as the statement of Mst. Asia Bibi
(P.W.1/prosecutrix) is concerned that has rightly been taken into consideration
by the learned trial and appellate Courts being free from any serious
contradiction or dishonest exaggeration. It is worth mentioning that she was
subjected to a lengthy cross-examination but in spite of various searching
questions nothing beneficial could be extracted. There is no reason to disbelieve
Mst. Asia (PW-1/Prosecutrix) and conviction could
have awarded on her solitary statement. In this regard we are fortified by the
dictum laid down in Shahzad alias Shaddu
and others v. State 2002 SCMR 1009; Ramzan Ali v.
State PLD 1967 SC 545; Ashraf v. Crown PLD 1956 FC
86; Ghulam Sarwar v. State
PLD 1984 SC 218; Haji Ahmed v. State 1975 SCMR 69; Shahid Malik v. State 1984 SCMR
908; Ehsan Begum v. State PLD 1983 FSC 204 and M. Akram v. State PLD 1989 SC 742.
6. It reveals from the scrutiny of record that
she was medically examined on 18.2.2000 by lady Doctor namely Musarrat Parveen (P.W.2) and the
swabs were found stained with semen as per the report of Serologist (Ex.PW). We have not been persuaded to agree with the prime
contention of learned ASC that since the vagina of Mst.
Asia Bibi (P.W. 1/prosecutrix) admitted two fingers
easily hence being a lady of an easy virtue her statement should have been
discarded for the simple reason that even if it is admitted that she was a girl
of an easy virtue, no blanket
authority can be given to rape her by any one who wishes to
do so. The only question which needs determination on the basis of medical
evidence would be as to whether she was subjected to zina-bil-jabr
The answer would be in affirmative in view of the
statement of Dr. Musarrat Parveen
(P.W.2) as well as the report of Serologist (Ex.PW).
It is worth mentioning that the swabs were found stained with semen which is a
solid proof that she was subjected to rape. The argument of Mr. Munir Ahmad Bhatti, learned ASC
for the appellants that no corroboration is available to the statement of Mst. Asia Bibi (P.W.
1/prosecutrix) seems to be devoid of merits for the reason that
"corroboration is not a rule of law but that of prudence, There is no
denying the fact that acid test of the veracity of the prosecutrix's
statement is the inherent merit of her statement because corroborative evidence
alone could not be made a base to award conviction. It is well settled by now
that `the extent and the nature of corroboration required may, no doubt, vary
from witness to witness and from case to case, but as a rule it is not
necessary that there show be corroboration in every particular, all that is
necessary is that the corroboration must be such as to effect the accused by
connecting or tending to connect him with the crime. The corroborative evidence
should tend to show that the witness or witnesses' evidence that the accused
took part in the crime is true. To say that certain witnesses required
corroboration and then to lay down that the corroborative evidence must show
that the accused did not do the precise act attributed to him by the witnesses
is tantamount to doing away with the evidence of those witnesses. And the same
would be the result of the corroborative evidence required as such is
incompatible with the innocence of the accused. The true rule governing such
situation is that the corroborative evidence should at least tend to show that
the evidence of the witnesses when they name the accused as taking part in the
crime is true. Corroboration of the interested testimony should be such as
would remove the doubt that the accused have been falsely implicated." (Ramzan Ali v. State PLD 1967 SC 545, Ashraf v. Crown PLD 1956 FC 86, Shahzad
v. State 2002 SCMR 1009).
7. The appeal has been examined on the
touchstone of the criterion as mentioned herein above. By now it has been well
settled that if the statement of prosecutrix is
considered trustworthy, no corroboration would be needed and such need would
only arise in the circumstances indicating the possibility of her being
consenting party to sexual intercourse which is a rare phenomena in cases of zina-bil-jabr. In such like cases the corroboration of
evidence needs not be the direct evidence but it may be independent evidence of
such a character which could connect the accused directly or indirectly with
the alleged offence. Be as it may the statement of Mst.
Asia Bibi (P.W. 1/prosecutrix) has been corroborated
by medical evidence, Chemical Examiner's report and the recovery of naked
photographs, video film and movie camera which was got
recovered at the pointation of Arshad. The naked photographs and video film were watched
by the trial Court and hence we have no hesitation in our mind to hold that the
recovery of naked photographs and video film and medical evidence lends full
corroboration to the statement of Mst. Asia Eibi (P.W.1/prosecutrix). The contention of learned ASC
that in the absence of visible marks of violence it cannot be inferred that the
prosecutrix was subjected to zina-bil-jabr
is devoid of merit for the simple reason that medical evidence has confirmed it
that sexual intercourse had taken place and even otherwise the marks of
violence were not necessary to prove the factum of zina-bil-jabr. In this regard we are fortified by the
dictum laid down by this Court in case titled Ghulam Sarwar v. State (PLD 1984 SC 218) and Haji
Ahmad v. State (1975 SCMR 69).
8. We have also examined the defence
plea that the appellants have been falsely involved at the behest of some
ex-MNA which seems to be absurd and has rightly been discarded as Mst. Asia Bibi (P.W.
1/prosecutrix) has no concern whatsoever with the political rivalry and enmity
and no such suggestion was ever made that she had got some links with ex-MNA.
9. We have also adverted to the question that no
semen grouping was made and therefore, it is difficult to prove that by whom zina-bil-jabr was committed. It is worth mentioning that
semen grouping is not essential in such like cases and at the best it can be
considered as lapse on the part of Investigating Officer and the prosecutrix cannot be held responsible for it. It is well
established by now that "omission of scientific test of semen status and
grouping of sperms is neglect on the part of prosecution which cannot
materially affect the other evidence," In this regard we are fortified by
the dictum as laid down in case titled Haji Ahmad v.
State (1975 SCMR 69) and Shahid Malik
v. State (1984 SCMR 908).
10. In the light of what has been discussed
herein above, we have no hesitation in our mind that zina-bil-jabr
has been committed.
11. We have also adverted to the question of
jurisdiction as according to Mr. Munir Ahmed Bhatti, learned ASC for appellants, the alleged offences
were not incorporated in the schedule of Anti-Terrorism Act, 1997 on the date
of occurrence i.e 12.02.2002, as such, the learned
Special Court constituted under Anti Terrorism Act, 1997 had no jurisdiction to
proceed with the matter and this trial was abinito
void and illegal. It is an admitted feature of the case that this objection was
never raised-at opportune moment before the learned trial Court. The objection
qua jurisdiction was also not raised before the learned High Court and even
this point was never incorporated in criminal petition for leave to appeal
preferred under Article 185(2) of the Constitution of Islamic Republic of
Pakistan nor argued at the time when leave was granted by this Court on
12.11.2002. After lapse of about 6 years on 11.02.2008 an application under
Order V, Rule 1(19) of Supreme Court Rules, 1980 was moved with the following
prayer:
"It
is, therefore, respectfully prayed that this
No
prejudice whatsoever was caused and every fair opportunity was afforded to the
appellants except that the trial was somewhat expeditious which by no stretch
of imagination can be equated to that of "prejudice". We are
conscious of the fact that leave to appeal, may be granted on a question of
jurisdiction even where the point have not been raised during trial (1985 SCMR
1054 + PLD 1965 SC 179) but in this case leave was not granted to consider the
question of jurisdiction, hence, we are not going to address the issue qua
jurisdiction, being an exercise in futility.
12. In the light of what has been discussed
hereinabove in our view Zina-bil-Jabr has been
committed as provided under Section 10(3) of Offence of Zina
(Enforcement of Hudood) Ordinance, 1979. It has,
however, been observed after having gone through entire evidence and an
in-depth scrutiny of statement of Mst. Asia
(PW-1/prosecutrix) and keeping in view the over all scenario of the case that
the provisions as enumerated in Section 10(4) of the said Ordinance cannot be
made applicable for the simple reason that no evidence whatsoever has come on
record that Zina-bil-Jabr was committed in
furtherance of common intention of all. It is worth mentioning that "To
have some intention independently of each other is not to have common
intention. Common intention requires a pre-arranged plan. There must be a prior
meeting of minds. (Emphasis provided). Several persons can simultaneously
attack a man and may have the same intention, namely the intention to kill and
each can individually inflict a separate fatal blow and yet none would have the
common intention as there was no prior meeting of mind to form a pre-arranged
plan. In a case like that each would be individually liable for whatever injury
be caused but none could be convicted for the act of the other vicariously. (PLD 1956 SC (Ind.) 176)."
It
may not be out of place to mention here that a line of distinction is to be
drawn between "Same or similar intention and common intention, care must be
taken not to confuse same or similar intention with common intention; the
partition which divides their bounds is often very thin; nevertheless, the
distinction is real and substantial, and if overlooked will result in
miscarriage of justice. (Emphasis provided). In their Lordship's view, the
inference of common intention within the meaning of the term in Section 34
should never be reached unless it
is a necessary
inference deducible from
the circumstances of the case. It must be shown that the criminal act
was done by one of the accused persons in furtherance of the common intention
of all. "Common intention" within the meaning of the section implies
a pre-arranged plan, and to convict the accused of an offence applying the
section it should be proved that the criminal act was done in concert pursuant
to the prearranged plan (ILR (1945) 26 (Lah.)
267(PC)." There is no cavil to the proposition that inference of common
intention should not be reached unless it is necessary inference deducible from
the circumstances of the case (PLD 2001 SC 378).
13. A careful perusal of entire evidence would
reveal that factum of common intention is lacking as Zina-bil-Jabr was not committed by all. Israr
Ahmed has not committed Zina-bil-Jabr and had performed
the duties of a driver by whom Mst. Asia
(PW-1/prosecutrix) was taken to the house of Ramzan
where Zina-bil-Jabr was committed and later on
dropped her near her house. The second feature of the case is that Mst. Asia (PW-1/prosecutrix) was known to appellant Shakeel and had shown no reluctance or hesitation while
boarding the car. No evidence has come on record showing that there was a prior
concert of mind or common object or intention of committing Zina-bil-Jabr
by all. It is to be noted at this juncture that Zina-bil-Jabr
was not committed by Israr Ahmed and more so besides
the acquittal of Tariq (co-accused) by the High Court
it was also admitted by Mst. Asia (PW-1/prosecutrix)
that no Zina was committed by Tariq.
It is also an admitted feature of the case that Shakeel
had pointed out in his statement as got recorded under Section 342 Cr.P.C that he was having sexual relation with Mst. Asia (PW-1/prosecutrix) prior to the occurrence, which
fact must have been disclosed or known to co-accused namely Shakeel,
Arshad, Javed, Muhammad Ramzan and Ali Asghar, which
prompted them to commit Zina, presuming that being a
girl of an easy virtue haying committed sex with Shakeel
Mst. Asia (PW-1/prosecutrix) would have no objection,
which subsequently proved "a conjectural presumption" and incident
was reported to police which indicates that she was not a consenting party. It
is worth mentioning that naked photograph and in the video all the appellants
were not together meaning thereby that they had no common intention on all
points.
14. In the light of what has been discussed
hereinabove the conviction and sentence of death awarded to Shakeel,
Arshad, Javed, Muhammad Ramzan and Ali Asghar vide
judgment impugned is altered and they are convicted under Section 10(3) of
Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced to 25 years Rigorous Imprisonment. The conviction
and sentence awarded to appellants Shakeel, Arshad, Ali Asghar and Israr Ahmed for life imprisonment under Section 11 of
Offence of Zina (Enforcement of Hudood) Ordinance, 1979
each with fine of Rs.20,000/- each is reduced to that of 10 years R.I
each with fine of Rs.10,000/- each and in case of default to further undergo
one year R.I each. All the sentences shall run concurrently. It hardly needs
any elaboration that Zina with a woman in our society
is a stigma which remains for ever and have drastic impact being a deathless
shame on the honour and dignity of the generations
and as such no more leniency can be shown as pressed time and again by Mr. Munir Ahmad Bhatti, learned ASC
on behalf of appellants.
15. The appeal is disposed of accordingly.
(M.S.A.) Appeal
disposed of.