P L D 2011 Supreme Court 554

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Mian Saqib Nisar, JJ

THE STATE and others---Appellants

Versus

ABDUL KHALIQ and others---Respondents

Criminal Appeals Nos.163 to 171 and S.M. Case No.5 of 2005, decided on 21st
April, 2011.

(On appeal from the judgment dated 3-3-2005, passed by Lahore High Court,
Multan Bench in Criminal Appeal Nos.60, 61, 65, 66, 67, 60, 61, 62, 63 and 60 of
2002 respectively).

Per Mian Saqib Nisar J; Mian Shakirullah Jan, J., agreeing; Nasir -ul-Mulk, J.
differing--

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10, 11 & 19---Penal Code (XLV o f 1860), S.149 & S.354-A read with S.109---
Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Constitution of Pakistan,
Art.185(3)---Gang rape---Leave to appeal was granted by Supreme Court to consider as
to whether the Anti-Terrorism Court had the jurisdiction to try the case; effect of delay in
lodging the F.I.R.; whether sole testimony of the victim in rape case was sufficient for the
purpose of conviction; whether the marks of injuries on the body of the victim were
superfluous to secure conviction; and whether the High Court had passed the judgment
on surmises and conjectures in violation of/or ignoring the mandate of law---Supreme
Court also suspended the impugned judgment and non-bailable warrants of arrest were
issued of all the accused who were acquitted, even those by the Trial Court.

(b) Criminal Procedure Code (V of 1898)---

---S. 417-Constitution of Pakistan, Art.185---Offence of Zina (Enforcement of Hudood)

Ordinance (VII of 1979), Ss.10, 11 & 19---Penal Code XLV of 1860), S.149 & S.354-A
read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---
Appeal against acquittal---Scope of interference in appeal against acquittal is most
narrow and limited---Principles and guidelines to be adhered to by the courts in appeal
against acquittal stated.

The scope of interference in appeal against acquittal is most narrow and limited,
because in an acquittal the presumption of innocence is significantly added to the
cardinal rule of criminal jurisprudence, that an accused shall be presumed to be
innocent until proved guilty; in other words, the presumption of innocence is
doubled. The courts shall be very slow in interfering with such an acquittal
judgment, unless it is shown to be perverse, passed in gross violation of law,
suffering from the errors of grave misreading or non-reading of the evidence; such
judgments should not be lightly interfered and heavy burden lies on the prosecution
to rebut the presumption of innocence which the accused has earned and attained on
account of his acquittal. Interference in a judgment of acquittal is rare and the
prosecution must show that there are glaring errors of law and fact committed by the
Court in arriving at the decision, which would result into grave miscarriage of
justice; the acquittal judgment is perfunctory or wholly artificial or a shocking
conclusion has been drawn. Judgment of acquittal should not be interjected until the,
findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court
of appeal should not interfere simply for the reason that on the reappraisal of the evidence
a different conclusion could possibly be arrived at, the factual conclusions should not be
upset, except when palpably perverse, suffering from serious and material factual
infirmities. Supreme Court being the final forum would be chary and hesitant to interfere
in the findings of the courts below. Supreme Court observed that it was expedient and

Page No. 1 of 40
imperative that the above criteria and the guidelines should be followed in deciding these
appeals.

Violating the sanctity and chastity of a woman is a sordid, despicable, squalid act, which
is considered abhorrent in any civilized society; any language falls short of vocabulary to
condemn such heinous act and cases of this taxonomy must be strictly construed and
dealt with. However, at the same time under criminal jurisprudence for the safe
administration of criminal justice, the courts are required to follow certain settled
principles, such as the innocence of the accused must be presumed, till he is proved to be
guilty; sifting "the grain out of the chaff"; the defence may take a number of pleas and
even if all are shown to be false, yet it is the duty of the prosecution to prove its case to
the hilt; "better that ten guilty persons escape than that one innocent suffer".

These are certain salutary principles of the criminal justice system which should be
adhered to by the courts, in letter and spirit and there is no exemption to these rules, even
in gang rape cases for otherwise, due to departure therefrom, the innocent person may
suffer. However, at the same time the courts should keep in view that in such a class of
cases, usually independent ocular evidence is not available, therefore due weight should
be attributed to the statement of the victim buttressed by medical evidence, and strong
attending circumstances, shall suffice to warrant the conviction.

Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495; Noor Mali Khan v. Mir
Shah Jehan and another 2005 PCr.LJ 352; Imtiaz Asad v. Zain-ul-Abidin and another
2005 PCr.LJ 393; Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152;
Barkat Ali v. Shaukat Ali and others 2004 SCMR 249; Mulazim Hussain v. The State and
another 2010 PCr.LJ 926; Muhammad Tasweer v. Hafiz Zulkarnain and 2 others PLD
2009 SC 53; Farhat Azeem v. Asmat Ullah and 6 others 2008 SCMR 1285; Rehmat Shah
and 2 others v. Amir Gul and 3 others 1995 SCMR 139; The State v. Muhammad Sharif
and 3 others 1995 SCMR 635; Ayaz Ahmed and another v. Dr. Nazir Ahmed and another
2003 PCr.LJ 1935; Muhammad Aslam v. Muhammad Zafar and 2 others PLD 1992 SC 1:
Allah Bakhsh and another v. Ghulam Rasool and 4 others 1999 SCMR 223; Najaf Saleem
v. Lady Dr. Tasneem and others 2004 YLR 407; Agha Wazir Abbas and others v. The
State and others 2005 SCMR, 1175; Mukhtar Ahmed v. The State 1994 SCMR 2311;
Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Khan v. Sajjad and 2 others
2004 SCMR 215; Shafique Ahmad v. Muhammad Ramzan and another 1995 SCMR 855;
The State v. Abdul Ghaffar 1996 SCMR 678; Mst. Saira Bibi v. Muhammad Asif and
others 2009 SCMR 946; The State v. Muhammad Sharif 1995 SCMR 635; Muhammad
Ijaz Ahmad v. Raja Fahim Afzal and 2 others 1998 SCMR 1281; William Black Stone-
English Jurist and Supreme Court Greatest Hits by Michael G. Trachiman in his Book ref.

(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with
S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure
Code (V of 1898), 5.417---Constitution of Pakistan, Art.185---Gang rape--Appeal
against acquittal---Reappraisal of evidence---Common intention---Scope and proof
---Names of accused persons did not appear in the F.I.R., in the statements under
Ss.161 & 164, Cr.P.C. of the prosecution witnesses except one and even in the
statements of the prosecution witnesses in the court; no particular role had been
assigned to accused persons in the commission of the alleged offence, except their
presence only in the 'Akath' 'Panchayat' which had been alleged by the prosecutrix
alone---Accused was the one, who got married whereafter present case was ignited;
in this group of the accused; one was the real father of (bridegroom) accused other
two were his real paternal uncles and the other one was his maternal uncle; order of
the Trial Court showed that they were placed in column No.2 of the challan---Such
facts had not been controverted by the complainant's counsel which showed that
they had been implicated in the matter, because the complainant side felt annoyed
and unhappy on account of the marriage, because till then there was a complete lull,
but thereafter everything suddenly sparked visibly and there was an element of
vengeance in their involvement, as all the close relatives of the accused were booked
in the case; such was not a mere incident or an honest implication---Decision of the
Trial Court had been affirmed by the appellate court, however, counsel for the

Page No. 2 of 40
complainant by resorting to the rule of 'common intention' under S.109, P.P.C. had
urged that their mere presence in the 'Akhat' 'Panchayat' where the decision of
'Badla' was taken and the object was achieved, was good enough to haul them up in
the case---Rule of 'common intention', in the present case, could not be stretched to
an extent that any person who was present at the time of the alleged occurrence
should be involved in the matter and convicted-In order to constitute and apply
'common intention' rule it was necessary to prove that the intention of each one of
the accused was known to the rest of them and accordingly shared---One of the
prosecution witnesses had stated that there were about 200/250 persons present at
the place of occurrence all of them could not be held responsible for the alleged
incident on the basis of the said rule, when no specific role had been assigned or
performed by them in furtherance of any alleged common intention; they were not
implicated by any prosecution witness at any stage in any manner whatsoever---No
evidence was available to the effect that Mastois' 'Akhat' as a whole decided to
commit the offence, in fact there were two 'Akhat' of the Baradaris at distinct places
and it was not established by any prosecution witness 'that he was present in the mastoi
gathering where such an alleged decision was taken and shared by all those
present---Village had no electricity no prosecution witness had given the time of
occurrence, but even if gathered by joining the scattered pieces of evidence, it was
somewhere after midnight; prosecutrix remained outside accused's house for a short
while, so she in the darkness could not identify these eight persons by name and
parentage---Said accused had acquired a triple presumption of innocence, which
could not be dispelled by the complainant's counsel on any score whatsoever---No
case had been made out against accused for interference of their acquittal---Appeal
against acquittal was dismissed.

Shaukat Ali v. The State PLD 2007 SC 93 ref.

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with
S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure
Code (V of 1898), S.417--- Constitution of Pakistan, Art.185---Appeal against
acquittal---Gang rape---Common intention---Scope---Supreme Court endeavoured to
ascertain veracity of prosecution case regarding the incident on the rules of common
sense, ordinary prudence and logic; the choronological order of the incident which
erupted from some obscure happening in a sugar field regarding which there was no
direct and accurate evidence on the record---Held, that foundational facts Of the
case which had a serious reflection on the version of the prosecution, which put
together, made the prosecution version implausible, flimsy and uncanny as set forth,
and if, on account of inter alit: the recorded facts, the High Court had drawn certain
conclusion such as, that complainant side was reluctant to report the matter was
influenced by one of the accused persons or that said accused was the mastermind of
the entire episode, or the prosecution evidence was not confidence inspiring and the
delay in lodging the F.I.R. had not been plausibly explained, such a conclusion
could not be unjustified.

(e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10, 11 & 19-Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---
Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure Code (V of
1898), S.417---Constitution of Pakistan, Art.185---Appeal against acquittal---Gang
rape---Victim a grown up lady, who was divorcee for the last many years---Delay in
lodging of F. I. R. ---Inferences---Principles.

Contention of the complainant was that the inferences drawn against the prosecution
regarding delay in lodging the F.I.R. was against the settled law, because in cases
pertaining to gang rape it was understandable that the victim or her family was/were
hesitant to report the matter and in certain cases delay of even up to a month had not been
considered fatal to the prosecution. Held, the above was not an absolute or universal rule
and the delay in each case has to be explained in a plausible manner and should be
assessed by the Court on its own merits; in a case of an unmarried virgin victim of a

Page No. 3 of 40
young age, whose future may get stigmatized, if such a disclosure was made, if some
time was taken by the family to ponder over the matter that situation could not be held at
par with a grownup lady, who was a divorcee for the last many years; the element of
delaying the matter to avoid Badnami may also be not relevant in such case because the
incident according to the prosecution's own stance was known to a large number of
people and there was no point in keeping it a secret from everyone. If any threats were
flung to the complainant side as had been alleged seemed to be an abortive attempt to
cover up the delay, otherwise there was no substantial cogent proof that after the incident,
in between the 8 days anyone from the accused side threatened and/or harassed the
complainant or her family; likewise the reason of fear was also self-assumed. Case
seemed to be the one where, the delay was not on account of the facts mentioned by the
prosecution, but for some other reasons. View of the High Court that the F.I.R. was
registered after due care and deliberation and all the witnesses of the prosecution were
called and then they all approached the police, therefore, the delay in the registration of
the case was a factor which tilted against the prosecution and suffered from no vice and
looked to be a proper perception and conclusion drawn by the Court from the record of
the case.

( f ) Criminal Procedure Code (V of 1898)---

----Ss. 161, 162 & 164---Qanun-e-Shahadat (10 of 1984), Arts. 140 & 153---Use o f
previous statement of witnesses before fact finding inquiry---Scope---Prosecution
while confronting a prosecution witness under Art.140 of the Qanun-e-Shahadat,
1984 with his previous statement may use any of his previous statements not
necessarily those under Ss.161 & 164, Cr.P.C. without the proof of those at that
time---If the witness admits of having made such statement there is no need for the
proof, but if it is denied, then though the process of confronting him and recording
the inconsistency may be completed by the Court, whereas such material cannot be
used against the prosecution, until and unless the confronted statement is
subsequently proved by the defence, as any disputed instrument---Statement under
S.161, Cr.P.C. should be strictly construed in consonance with S.162, Cr.P.C. and if
those are signed by the witnesses, such is an incurable defect and an illegality which
vitiates the statement and it shall not be that previous statement which is
contemplated by the said provision, available for confrontation in terms of Art.140
of the Qanun-e-Shahadat Order, 1984---Article 140 of the Qanun-e-Shahadat, 1984
in a criminal matter is not totally and conclusively governed and regulated by the
provisions of S.162, Cr.P.C.; it may be so, when the statement to be confronted has.
been recorded under S.161, Cr.P.C. that the rider of S.162, Cr. P. C. shall apply, but
Article 140 of Qanun-e-Shahadat, 1984 being a part of general law of evidence, has
its own independent legal efficacy and application and any previous statement of the
witness, which may have been made by him in some other judicial, quasi judicial,
administrative, executive proceedings or inquiries or before such of the forums or
even privately made through some instrument i.e. agreement or an affidavit, can be
confronted to him, if relevant, in any criminal case, however, subject to its proof---
Such statements can always be used by the defence for impeaching the credibility of
a witness under Art.153(3) of the Qanun-e-Shahadat, 1984 as well.

(g) Criminal Procedure Code (V of 1898)---

----Ss. 164 & 162(2)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Statement under

S.164, Cr.P.C. of a person, who is not produced, cannot be considered as a
substantive piece of evidence, but at the same time the criminal court in order to
administer safe justice, in consonance and in letter and spirit of S.162(2), Cr.P.C.
may use such statement not as evidence, but to aid it; the said statement thus can be
looked into, for drawing the presumption under Art.129(g) of Qanun-e-Shahadat,
1984---Court, 'thus, for the purpose(s) of drawing a presumption for withholding the
best evidence under the said Article could examine the statement and make up its
mind in that context.

(h) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with

Page No. 4 of 40
S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Sole
testimony of prosecutrix---Corroboration---Believing sole testimony of prosecutrix
is not an absolute rule---Principles.

It depends upon the facts and circumstances of each case and has to be assessed by the
Court on the basis of the entire evidence on the record whether the sole testimony of the
victim should be believed or not, particularly in the light of her cross examination, and
the other evidence produced by the prosecution; if on account of totality of facts the
Court is of the view that such a statement should not be believed and for that good
reasons are assigned it cannot be said that any illegality has been committed by the Court
in this behalf. Thus, rule of believing, of sole testimony pressed into service shall not
apply to each and every case of rape, as a matter of routine and course, because it is not
the command of any law/statute, that in deviation of the general principles of
jurisprudence, the accused must be put to the test of strict liability and should be asked to
prove his innocence because the prosecutrix's version under all circumstances should be
taken as correct; the sole testimony view, should be applied with due care and caution in
the cases where there is backdrop of grudge, rift and tiff between the parties, as has
emerged in the present case. The possibility in such matter cannot be ruled out that the
complainant side was trapped.

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

----Ss. 10 & 11---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---
Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure Code (V of
1898), S. 417---Constitution of Pakistan, Art.185---Gang rape---Appeal against
acquittal---Reappraisal of evidence---Rule of believing the sole testimony of
prosecutrix---Scope---Failure to get DNA Test---Effect---Absence of injuries and
marks on the body of prosecutrix should not be the only factor to disbelieve her
version in an ordinary rape case, but where a woman had been forcibly raped for full
one hour, by four young individuals on the bare floor, it was not expected that she
should not struggle and in the course would sustain no marks or injury---Such, of
course, was not a conclusive proof or disproof of rape and unusual---Omission of DNA
and group semen test, which would have been strong supporting evidence to the
testimony of the victim, had not been done---Semen in the vagina were available till the
date of examination and it was not clear as to what prevented the prosecution to seek the
chemical examiner's opinion to confirm, whether the sexual intercourse was by one
individual or more; such was especially required it gang rape cases, as it was a matter of
life and death of a person and the life of an accused, who might be innocent in a such
case and should not be put to danger, only because the prosecutrix had said so, and in any
case he should not suffer for the omission of the prosecution---If the rule of the sole
testimony of the prosecutrix as sufficient evidence, was accepted, as absolute without any
exception thereto, what shall be the outcome of a case, where a lady claims being raped
or gang raped, but the medical evidence negates it; it was not in every gang rape case,
that the sole testimony should be accepted and relied upon, but each case should be
assessed and adjudged on its own facts---DNA and/or group semen test, in the present
case was of immense importance which could have scientifically determined as to
whether the intercourse with the prosecutrix was committed only by one or by a group of
persons---Benefit of such omission should go to the accused, rather the prosecution.

(j) Qanun-e-Shahadat (10 of 1984)---

----Arts. 132 & 133---Suggestions in cross-examination not necessarily always the

defence plea or admission; it could be so taken or assumed if through suggestion any
statutory plea was taken.

Per Nasir-ul-Mulk, J (Minority view)--

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

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S. 149 & S.354-A read with S.109---
Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Delay in lodging of
F.I.R. by victim party---Effect.

Page No. 5 of 40
Mehboob Ahmad v. The State 1999 SCMR 1102; Muhammad Umar v. The State
1999 PCr.LJ 699; Nasreen v. Fayyas Khan and another PLD 1991 SC 412 and Azhar
Iqbal v. The State 1997 PCr.LJ 1500 ref.

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

----Ss. 10, 1l & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---
Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Sole testimony of
prosecutrix---Corroboration---Scope.

Shehzad v. The State 2002 SCMR 1009; Muhammad Tashfeen v. The State 2006
SCMR 577; Muhammad Abbas v. The State PLD 2003 SC 863; Rana Shahbaz
Ahmad v. The State 2002 SCMR 303; Mehboob Ahmad v. The State 1999 SCMR
1102; Haji Ahmad v. The State 1975 SCMR 69; Ghulam Sarwar v. The State PLD
1984 SC 218 and Bhupinder Sharma v. Himachal Pradesh AIR .2003 SC 4684 ref.

Criminal Procedure Code (V of 1898)---

----S. 417---Constitution of Pakistan, Art.185---Offence of Zina (Enforcement of

Hudood) Ordinance (VII of 1979), Ss.10, 11 & 19---Penal Code (XLV of 1860), 5.149 &
S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang
rape---Appeal against acquittal---Interference---Scope---Errors calling for interference
pointed out.

Ch. Zubair Ahmed Farooq, Addl. P.G. Pb. and Ahmed Raza Gillani, Addl. P.G. Pb.
for the State (appellant) (in Cr.As. Nos.163 to 166 of 2005).

Malik Muhammad Saleem, Advocate Supreme Court and Faiz-ur-Rehman,

Advocate-on-Record for Respondents (in Cr.As. Nos. 163 to 166 of 2005).

Aitzaz Ahsan, Senior Advocate Supreme Court and Gohar Ali Khan, Advocate
Supreme Court for the Complainant (appellant) (in Cr.As. Nos. 167 to 170 of 2005).

Malik Muhammad Saleem, Advocate Supreme Court and Faiz-ur-Rehman,

Advocate-on-Record for Respondents (in Cr.As. Nos. 167 to 170 of 2005).

Ch. Zubair Ahmed Farooq, Addl. P.G. Pb. and Ahmed Raza Gillani, Addl. P.G. Pb.
for the State (in Cr.As. Nos,167 to 170 of 2005).

Malik Muhammad Saleem, Advocate Supreme Court and Faiz-ur-Rehman,

Advocate-on-Record for the Accused (Abdul Khaliq) (in Cr.A. No. 171 of 2005).

Ch. Zubair Ahmed Farooq, Addl. P.G. .Pb. and Ahmed Raza Gillani, Addl. P.G. Pb.
for the State (respondent) (in Cr.A. 171 of 2005).

Petitioner (Mukhtar Mai) in person (in S.M. Case No.5 of 2005).

Dates of hearing: 30/11, 1/12/2/12, 7 to 9/12, 14/12 of 2010, 3 to 6/01, 10 to 12/01,

17/01 to 20/01 and.25 to 27/01 of 2011.

JUDGMENT

MIAN SAQIB NISAR, J.---In all, these are ten matters arising out of the impugned
judgment of the Lahore High Court dated 3-3-2005; eight are the appeals (four each)
against the acquittal of the accused having been initiated by the complainant and the
State; one appeal has been filed by the convict and the last is the Suo Moto action
espoused by this Court.

2. These matters have genesis in a criminal case, which has emanated from an F.I.R.
(Exh.P1) dated. 30-6-2002, got registered by Mst. Mukhtar Mai, the complainant, with
the Police Station Jatoi, District Muzzafargarh initially under section 10(4) of Offence of

Page No. 6 of 40
Zina (Enforcement of Hadood) Ordinance, 1979 (the Ordinance) read with section 109,
P.P.C., but thereafter offences under section 19 of the Ordinance, sections 354-A, 217,
119 and 342, P.P.C. and section 7 of Anti-Terrorism Act, 1997 were also added thereto. It
was reported by the complainant that on 22-6-2002, due to suspicion that her brother,
Abdul Shakoor, has illicit relations with Mst. Naseem alias Salma, the girl, of Mastoi
Baradari (accused party); the boy was confined by them in their house; in order to resolve
the issue an `Akhat' `Panchayat' was held the same day, in which Faiz Mastoi, Ramzan
Pachar and Ghulam Fareed (all accused) acted as the Arbitrators (Salis) for the Mastois,
while Maulvi Abdul Razzak (P.W.11) and Manzoor Hussain (not produced) were the
arbitrators (Salis) for the complainant, besides Altaf Hussain (P.W.12) and Ghulam Nabi
(not produced) were also present. It was decided by the `Panchayat' that by exchange
marriages of the complainant with Abdul Khaliq, the accused (brother of Salma) and
Abdul Shakoor with Salma the dispute be settled, but Ramzan Pachar and Ghulam Fareed
did not agree to this arrangement, therefore, the arbitrators for the complainant left the
Panchayat. However, subsequently on the promise of the accused party, that if Mst.
Mukhtar Mai came to the `Panchayat' and sought forgiveness for her brother, he shall be
pardoned according to Baloch customs and the issue stand resolved, Mst. Mukhtar Mai
went to the `Panchayat', `Akhat' of the Mastois, which was outside the house of Abdul
Khaliq (accused), but instead of upholding their word as promised, he caught hold of her
when Faiz Mastoi said that Fareed (the father of complainant) be forgiven, but Abdul
Khaliq, his brother Allah Ditta, Fayyaz, Ghulam Fareed son of Mahmood, all dragged her
into the room of Khaliq's house, where zina-bil-jabbar was committed with her by all of
them. After one hour she was turned out of the room in a nude condition, with a torn shirt
on her body, Fayyaz threw her shalwar and duppta towards her. It is specifically
mentioned that due to fear/threats of the accused party and moral onslaught and
retribution of the public, the case could not be initiated earlier. Mst. Mukhtar Mai at the
time of the initiation of complaint was accompanied by her father Ghulam Fareed;
Maulvi Abdul Razzak (P.W.11), Altaf Hussain (P.W.12), Sabir Hussain (P.W.13), her
maternal uncle, and one Ghulam Nabi (not produced), all of them were said to have either
seen the occurrence or participated in the proceeding, or were present at the time of
`Panchayat'.

3. Before proceeding further, it may be pertinent to signify, that being a blatant, heinous
and untoward incident it attracted the media, both electronic and the print, and on account
of an atrocious, pernicious and shameful act, it generated both grief and rage in the public
at large. The higher-ups of the Government including some Ministers at the Federal and
Provincial levels condemned the deplorable act; they, as well as, the Governor of Punjab
visited the complainant to pacify her with promises and , avowing that justice shall be
provided to her forthwith. The Governor also announced some fiscal compensation for
the aggrieved victim. The incident also drew the attention of the Apex Court and
accordingly, a suo moto action was initiated, in which the progress of the investigation
was monitored and directions were given for the submission of challan within a specific
period. The Anti-Terrorism Court was also directed to decide the matter within a time
frame, by even proceeding on day-to-day basis.

4. On account of the investigation, in all 14 persons were indicted in the matter; they
were arrested and challaned by the police and charged by the Anti-Terrorism Court (the
Court) with the offences under sections '19(4), 11 of the Offence of Zina (Enforcement of
Hudood) Ordinance VII of 1979 read with section 149, P.P.C. and under section 354-A
read with section 109, P.P.C. and under sections 10 and 7(c) of the Anti-Terrorism Act,
1997. During the course of trial, the prosecution examined 17 = witnesses out of which
the rather important ones are: Maulvi Abdul Razzak (P.W.11) who stated to be one of the
arbitrators for the complainant party, but left the Panchayat when Ramzan and Fareed
declined the proposal of exchange marriages; Altaf Hussain (P.W.12) the brother of
P.W.11, who states to be present during the `Panchayat' confabulations and is also the
witness of the alleged occurrence; Sabir Hussain (P.W.13) who has also .deposed in
similar vein; Abdul Shakoor (P.W.10), in whose context the issue triggered off; he denied
of having any illicit relations with Salma, rather claimed that, in fact, he was sodomized
by Manzoor, Jamil and Punno (the later is the brother of Salma). It is alleged that the said
culprits after fulfilling their lust asked him not to disclose the incident to anyone, but on
his refusal, he was locked up with Salma and with an object to cover up their misdeed, a
false allegory of an illicit relationship was concocted. P.W.2, Dr.Shahida Safdar examined

Page No. 7 of 40
Mst. Mukhtar Mai and proved a positive report of sexual intercourse with her as Exh.P-E.
P. W.7 is the Magistrate, who recorded the statements of the prosecution witnesses under
section 164, Cr.P.C. and proved those as, Ghulam Fareed (Exh.P-L), Ghulam Nabi
(Exh.P-M), Abdul Razzak (Exh.P-N) and Sabir Hussain (Exh.P-O). Six persons including
the councillors of the area were examined as the court witnesses; while the Defence also
produced six witnesses to support its version.

5. On the conclusion of the trial vide judgment dated 31-8-2002 eight out of the fourteen
accused (originally) namely Aslam, Allah Ditta (son of Jan Muhammad), Khalil Ahmed,
Ghulam Hussain, Hazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were
acquitted by the Court, while all others were found guilty of the following offences and
sentenced as under:

"Taking into consideration all the aforesaid facts and the circumstances of the
case, I find that Abdul Khaliq, Allah Ditta sons of Imam Bakhsh, Muhammad
Fiaz, Ghulam Farid, Ramzan Pachar, Faiz Muhammad alias Faiza (accused of
Column No.3 of the challan) along with others, in prosecution of their common
design, convened Panchayat, mostly of their Mastoi Baluch tribe of the area, on
22-6-2002 in Mauza Meerwala Police Station Jatoi and coerced, intimidated,
overawed the complainant party, and the community;, created a sense of fear and
insecurity in society; and thereby committed the offences under sections 11, 10(4)
of Ordinance VII of 1979 read with section 149/109, P.P.C. and 21-I ATA 1997,
and section 6(1)(a) and (b) and subsection 2(b) ATA 1997, punishable under
section 7(c) read with section 21-I ATA 1997 and sections 149/109, P.P.C.; and
are, therefore, convicted under all the aforesaid provisions of the law.

Actions of the aforesaid convicts were cruel which overawed and harassed the
society at large and therefore, they are not entitled to any leniency. Under section
7(c) read with sections 21-I ATA, 1997 and 149/109, P.P.C. each of the six
accused persons, namely Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam
Farid,' Ramzan Pachar and Faiz Muhammad alias Faiza accused are sentenced to
imprisonment for life, plus fine Rs.20,000, and in default to further undergo six
months' R.I.

Under section 11 Ordinance VII of 1979 read with 149, P.P.C., each of the four
accused namely Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz
convicts are sentenced to undergo imprisonment for life, plus thirty stripes each
and fine Rs.20,000 each, and in default to further undergo six months' R.I each
under section 10(4) Ordinance VII 1979 (liable to Taazir) read with 149, P.P.C.,
each one of them is sentenced to death, subject to confirmation by the Hon'ble
High Court.

Under section 11 Ordinance VII 1979 read with section 21-I and section 109/149
PPC, Ramzan Pachar and Faiz Muhammad alias Faiza (convicts) are sentenced to
undergo imprisonment for life, plus thirty stripes, and fine Rs.20,000 and in
default to further undergo six months' R.I. Under section 10(4) Ordinance VII
1979 read with section 21-I ATA 1997 and section 109/149, P.P.C., Muhammad
Ramzan Pachar and Faiz Muhammad alias Faiza .(both accused) are sentenced to
death, (subject to confirmation by the Hon'ble Lahore High Court.

However, all the accused were acquitted of the charge under section 354-A, P.P.C.

6. Aggrieved, the complainant/State filed appeals against the acquittals, while the
judgment was, accordingly, challenged by the convicts, before the Lahore High Court. On
hearing, the acquittal appeals were dismissed and by accepting the appeals of all others in
toto, they were exonerated from all the charges, except Abdul Khaliq, whose appeal was
partly allowed, in that his conviction was converted from section 10(4) of the Ordinance
to section 10(3) thereof and his capital punishment was reduced to imprisonment for life,
while the fine imposed by the Trial Court was maintained. The benefit of section 382-B,
Cr.P.C. was also extended to him. It seems significant to mention here, that while
rendering its decision, the following (main) reasons/factors have prevailed with the
Court: that the version of the prosecution is not proved beyond doubt, as its evidence is

Page No. 8 of 40
not confidence inspiring, thus, the benefit must go to the accused; delay in the lodging of
the F.I.R. has not been sufficiently and plausibly explained, the complainant party was
reluctant to initiate the case, but influence in this behalf was exerted by Maulvi Abdul
Razzak (P.W.11), who is the mastermind thereof; the F.I.R. was registered after due
consultations and deliberations; sole testimony of the prosecutrix to prove the occurrence,
no one 'else had seen it and hence is insufficient to establish the guilt of the accused; the
DNA and SEMEN tests were not conducted to prove the gang rape; there are
contradictions and inconsistencies in the statements of the witnesses inter se and also
with their previous statements; there are improvements in their statements made before
the Court; the occurrence has not taken place in the manner as is stated by the P.Ws.;
there are no significant marks or injuries on the body of the prosecutrix, which is very
unusual in such kind of a case; no duration of the heeled marks on the body of the victim
has been given by P. W.2. thus, it is not possible to ascertain, if those were sustained
during the occurrence; adverse inferences have been drawn for the non-production of
Ghulam Nabi and Ghulam Fareed in the witness box as they, in their statements under
section 164, Cr.P.C. recorded by the Magistrate, have not fully supported the version of
the prosecution, the former's stance that on the given date/day he was not in the village
and thus not a witness to the incident and/or modus operandi of the offence. The learned
High Court has also considered the prosecution evidence regarding each of the accused,
the individual role imputed to them and has found that the prosecution has failed to prove
its case to their extent, except Abdul Khaliq for which reasons have been duly assigned in
the impugned judgment.

7. This is how, the noted appeals have reached this Court, besides vide order dated 14-3-
2005 this Court took suo moto cognizance of the matter, because soon after the impugned
judgment, a learned Single Member of the Federal Shariat Court, while exercising the suo
moto jurisdiction suspended the impugned judgment, thus it was inevitable for the Court
to interfere in order to avoid a ludicrous situation from arising and to prevent a conflict
between two constitutional institutions of the State.

8. Anyhow, the leave, in these matters, was granted on 28-6-2005 and the important
points in this behalf are: the jurisdiction of the Anti-Terrorism Court to try the case; effect
of delay in lodging the F.I.R.; whether the sole testimony of the victim in rape case is
sufficient for the purpose of conviction; whether the marks of injuries on the body of the
victim are superfluous to secure conviction; whether the High Court has passed the
judgment on surmises and conjectures in violation of/or ignoring the mandate of law;
with reference to the above, some case law has also been cited in the LGO.
Simultaneously, this Court was also pleased to suspend the impugned judgment and non-
bailable warrants of arrest were issued of all the accused who were acquitted, even those
by the trial Court; since then they are all behind the bars (Emphasis supplied).

9. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court, has opened arguments in
these cases and has divided his submissions into two main heads: The Law and The
Evidence. Under the first, he has dilated upon the point of jurisdiction and it is. submitted
that rape is a grievous bodily harm and injury to a person, thus the offence is duly
covered by section 6(1)(a & b) read with sections 6(2)(b) and 7(c) of the Anti-Terrorism
Act, 1997 (the Act). To elucidate the above, the learned counsel has cited the dictums
reported as Bhupinder Sharma v. Himachal Pradesh (AIR 2003 SC 4684), Hyam v. DPP,
HL [1974] 2 All ER 73, R v. Miller [1954] 2 All ER 529 and R v. Robinson [1993] 1
WLR 168. He has also relied upon the judgment reported" as Shakil and 5 others v. The
State (PLD 2010 SC 47) to argue, that in a gang rape case the conviction awarded by the
Anti-Terrorism Court was upheld by this Court, primarily on the reasoning that no
prejudice was caused to either side and none (in that case) had objected to the jurisdiction
at any stage of the proceeding. The case, according to the learned counsel, is apt for
settling the jurisdictional question and should be followed in this matter. In order to show,
that the incident (gang rape) created terror in the area, thus attracting the provision of the
Act, on account of which the residents thereof even thought of migration, he has referred
to the statements of the court witnesses.

10. Malik Muhammad Salem, the learned counsel for the defence has not joined issue
with Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court on jurisdiction, rather
has supported him by adding certain facts; that vide order dated 24-7-2002, the trial Court

Page No. 9 of 40
before commencing the proceeding decided that it has the jurisdiction, none assailed it;
the Supreme Court also, as mentioned above, in the first suo motu action required the
challan to be submitted before the Anti-Terrorism Court, and set out a time frame for the
decision of the case by that Court. Be that as it may, during the hearing of the case,
learned Attorney General was personally summoned and was put to notice on the issue,
but the Deputy Attorney General who from time to time has been attending the
proceeding(s), has not controverted the jurisdictional aspect. The State counsel has also
not questioned it.

11. In view of the above, we find that the issue of jurisdiction in these matters has lost
efficacy; it emerged on account of the specific situation (indicated above) which has
ceased; no one at the relevant time raised any objection thereto; all the concerned are in
agreement that the Anti-Terrorism Court had the jurisdiction; appeals before the learned
High Court were, accordingly, filed by both the sides and decided without there being any
such objection; more than eight years have elapsed since the incident took place and
those who have been acquitted, obviously have acquired a right of defending their
acquittal and the one who is convicted seeks his acquittal and the State and the
complainant are pressing to set aside the acquittal(s) and are urging to maintain the
conviction of Khaliq. It is not established if any prejudice has been caused to the parties
in any manner whatsoever and therefore now, if at this stage any interference on the basis
of jurisdiction is made, justice, rather than being promoted shall stand defeated, and
serious prejudice shall be caused to either side. Therefore, keeping in view the peculiar
circumstances of the case and by following the ratio of the judgment reported as Shakil
and 5 others (supra), we would not like to hold against the jurisdiction of the Anti-
Terrorism Court and leave it an open question to be decided in some appropriate case, in
which it is a live issue.

12. Adverting to the other submissions of Ch. Aitzaz Ahsan, Senior Advocate Supreme
Court/the learned counsel, under the first head (The Law), he has argued that the
impugned judgment is against the law and it cannot sustain; in this respect, he urged that
previous statements of the P.Ws. have been invalidly and illegally used by the learned
High Court for impeaching their credibility, in particular, when the P.Ws. had denied the
making of certain statements, in the fact finding inquiry, conducted by the SP Crimes
Range as per orders of the Government. Thus, without proving the statements in
accordance with law, those could not be used for the purpose of confronting P.Ws. in their
cross-examination. Besides, those were allegedly signed by the P.Ws., this is prohibited
by section 162, Cr.P.0 and therefore these statements were illegal and could not be used in
terms of Article 140 of the Qanun-e-Shahadat Order, 1984 (QSO, 1984). In this context,
the learned counsel has also submitted that section 161, Cr.P.C. and Article 140 of the
QSO, 1984 are governed by section 162, Cr.P.0 which prohibits the signing of these
statements. Likewise, serious criticism has been made that the learned High Court has
used and relied upon the statements under section 164, Cr.P.C. of those persons, who
were not produced by the prosecution in evidence; in this respect, it is stated that such
statements are not substantive piece of evidence and have a limited use of confronting a
PW, who appears in the Court and for no other purpose whatsoever, reliance is placed on
1969 PCr.LJ 1580; Yaru alias Yar Muhammad v. The State, 1995 MLD 515; Nasrullah v.
The State 1985 PCr.LJ 428; Amjad Ali alias Kaloo v. The State 1984 SCMR 979; Nadir
Khan and another v. The State 1974 PCr.LJ 224; Salehon v. The State AIR (33) 1946 PC
38; Brij Bhushan Singh v. Emperor; it is stated that holding the sole testimony of the
prosecutrix insufficient to award conviction is against the law laid down in judgments
reported as PLD 1991 SC 412; Mst. Nasreen v. Fayyaz Khan and another PLD 2003 SC
863; Muhammad Abbas v. The State 2002 SCMR 303; Rana Shahbaz Ahmad v. The State
1992 PCr.LJ 1944; Muhammad Amir Khan v. The State 2001 PCr.LJ 503; Saleem Khan
and others v. The State and others 1993 PCr.LJ 1839; Muhammad Boota v. The State
1993 PCr.LJ 1839 (FSC); Muhammad Boota v. The State. He has further argued that the
victim in rape cases does not require corroboration and has drawn support from PLD
1989 SC 742; Muhammad Akram v. The State 2002 SCMR 1009; Shahzad alias Shaddu
and others v. The State 1999 SCMR 1102 Mehbood Ahmad v. The State 1975 SCMR 69:
Haji Ahmad v. The State, PLD 1984 SC 218 (SAB); Ghulam Sarwar v. The State.
Reference in the above context is also made to the cases from the Indian jurisdiction:
(1995) 5 SCC 518; Karnel Singh v. M.P, AIR 1996 SC 1393; State of Punjab v. Gurmit
Singh AIR 2003 SC 4684; Bhupinder Sharma v. Himachel Pardesh AIR 1988 SC 753;

Page No. 10 of 40
Bharwada Bhogiawal v. Gujerat; the view of the Court that DNA etc. tests were not
conducted due to any weakness of the prosecution case and the omission/lapse should
effect the veracity of the prosecutrix is conjectural and is against the law declared by the
superior Courts, even otherwise due to the lapse on part of the investigator, the
prosecutrix should not suffer, besides, such omission is not fatal to the case of the
prosecution, see 2002 SCMR 1009: Shahzad v. The State; he submits along similar lines
vis-a-vis the view of the Court qua the absence of marks of violence or the injuries on the
body of the victim; learned counsel has referred to cases 1999 SCMR 1102: Mehboob
Ahmed v. The State 1975 SCMR 69; Haji Ahmed v. The State PLD 1984 SC 218 (SAB);
Ghulam Sarwar v. The State; the learned counsel has further pointed out that in this case
while making statements under section 342, Cr.P.C., the accused have not propounded
their defence, rather in this behalf have solely relied upon their cross-examination;
however, in the cross-examination vital suggestions have been given through which the
case of the prosecution in material aspect has been admitted. In this context, Ch. Aitzaz
Ahsan, Senior Advocate Supreme Court has made reference to certain portions of the
cross-examination, such as about sodomy with Abdul Shakoor, he mentioned that P.W.14.
stated "Incorrect to suggest that Abdul Khaliq accused stated that as his brother Punno
had been accused of committing Sodomy with Abdul Shakoor, therefore, he could not
give Salma in marriage to Abdul Shakoor" Like-wise P. W. 11 while replying a
suggestion, "it is false to suggest that in BADLA of Mst. Mukhtar Mai, Salina was
proposed to be taken and for sodomy another woman plus land was demanded by the
complainant" Again P.W.14 responded "incorrect to suggest that up to 26-6-2002, Abdul
Razzaq PW and my father tried to compound the matter in terms of their demands or for
the same reasons the sodomy case was also not got registered". On his contention that the
incident of Zina with the prosecutrix and her nudity incident is also admitted, reference
has been made by the learned counsel to the suggestions "I did not state to the
Inspector/SPL,RC on their 'query "whether after Zina-bil jabr the accused persons turned
me out in quite naked condition"? replied "no I had worn shirt and my private part was
covered with duppta as the Azarband of my shalwar had been broken; shalwar was in my
hand" "incorrect that she was handed over the shalwar inside the room after the rape",
Further in response to a suggestion P. W.13 stated "incorrect that as we went there, we
saw Mst. Mukhtar Mai holding Shaiwar in her hand". Moreover in the cross-examination
of Mst. Mukhtar Mai, the suggestions culminate into the following replies "I recorded in
the complaint that I had come out of the room in nude condition" ……"I stated to the
police that after the accused person committed Zina, I came out in nude condition and
called out my father Ghulam Fareed. I had not put on the shalwar as it was without string,
nor I covered the same on my body, and my father had arrived just then". According to
the learned counsel, this is a confession of the fact that she did come out of the room
without shalwar on her body. The suggestion is only that the accused, (who had thus
admittedly taken the shalwar off her body in the first instance) were not responsible for
her venturing out naked. But this is an admission that she did come out naked. It is also
pointed out that responding to a suggestion in relation to Abdul Khaliq, P.W.14 replied
"incorrect to suggest that he performed conjugal duties as my husband in the said night",
furthermore; "incorrect. to suggest that upto 28-6-2002, Maulvi Abdul Razzak P.W. and
my father tried to compound the matter in terms of their demands' or for the same reason
the sodomy case was, also not got registered". It is explained that the suggestions, in the
cross-examination have the effect of a defence plea, is an implied admission, an indirect
admission and to support his point of view, reliance has been placed on the cases reported
as 2010 SCMR 1009: Muhammad Shah v. The State, 2000 YLR 1406; Khalid Pervaiz v.
The State 2003 CLD 80(sic.); Mian Sajidur Rehman v. Messrs Granulars (Private)
Limited through Manager Commercial Lahore, 2005 PCr.LJ 729; Ibrar Hussain v. The
State 2004 MLD 1062: Muhammad Inayat alias Inayatoo v. The State 2006 SCMR 577;
Muhammad Tashfeen and others v. The State.

13. Under the caption of `THE EVIDENCE' on the factual premise, it has been urged by
the learned counsel that glaring and patent errors of misreading and non-reading of
evidence have been committed by the learned High Court; erroneous conclusions of facts
and law have 'been drawn; the findings of facts are based on conjectures and surmises;
the view that the prosecutrix has not been corroborated, is incorrect, rather the P.Ws. and
the medical evidence has duly supported her version; the witnesses of the prosecution
.were credible and trustworthy, but to hold them otherwise is a serious factual error,
which is apparently against the record; in this regard, special reference has been made

Page No. 11 of 40
that even according to DW-1, the prosecutrix has declined the cash compensation given
to her by the Governor, rather has used that money for an educational institution
established by her after the incident and it .is a publicly known fact that now hundreds of
girls of humble background of a backward area are receiving education due to the noble
efforts of the lady; moreover her credibility is also established from the fact' that she has
not implicated the sodomizers of Shakoor, who in case of a false claim were the obvious
targets; the convening of the Panchayat with the `common intention' to take BADLA and
such a decision being made therein was duly proved on the record; the conclusion that the
victim was not dragged, as there are no marks or injuries on her body, is a misconception,
as it is not necessary that, if such marks/injuries should Always occur; besides; dragging
has many shades which may not even sustain any injury at all; the learned High Court has
gravely and seriously erred in drawing an adverse conclusion against the prosecution for
the non-examination of Ghulam Nabi and Ghulam Fareed. It is also argued that the view
set out by the Court that there are discrepancies and inconsistencies in the statements of
the prosecution witnesses about the nude condition of the prosecutrix, again are the result
of mis-reading and non-reading because the statements in this behalf are consistent; the
Court has erred to hold that P.W.11, Maulvi Abdul Razzak is the mastermind and has
influenced the complainant party for the registration of the case. The gentleman had no
ulterior motives to falsely implicate the accused, rather as a conscientious person
performed his moral duty to help the oppressed and aggrieved persons. It is also
submitted that sufficient explanation was provided by the prosecution for the delay in
lodging the F.I.R. and even otherwise on account of social, religious and cultural
restraints, people are hesitant to report such incidents and some time is taken to glean and
gather the courage of going public. In this connection, he has referred to the judgments
reported as 1999 SCMR 1102; Mehboob Ahmed v. The State 1993 MLD 2361; Maqsood
Ahmad alias Mooda v. The State 1999 PCr.LJ 699 (FSC); Muhammad' Umar v. The State
2001 PCr.LJ 503; Saleem Khan v. The State PLD 2003 SC 863; Muhammad Abbas and
others v. The State PLD 1991 SC 412; Mst. Nasreen v. Fayyaz Khan and another.
Moreover, in this case, the complainant side was overawed/threatened and was in the
state of both shock and fear, thus it could not approach the police immediately. As regards
the view of the learned High Court that Mst. Mukhtar Mai was not abducted because of
the short distance of a few paces, it is argued that distance is absolutely inconsequential
for such an act/offence and reference is made to the case reported as Nadeem Iqbal v. The
State (1994 MLD 1405). On the question, as to what extent the acquittal judgment can be
interfered with by this Court, it is argued that such is possible, where there is a
misapplication of law Barkat Ali v. Shaukat Ali (2004 SCMR 249); misreading and non-
appraisal of evidence or is speculative, artificial and arbitrary Amal Shirin v. State (PLD
2004 SC 371); non-reading and non-appraisal of evidence Barkat Ali v. Shaukat Ali
(2004 SCMR 249); Abdul Mateen v. Sahib Khan (PLD 2006 SC 538); the findings of
acquittal recorded by the trial Court are not supported by the evidence on record and in
fact are based on gross misreading and misconstruction of evidence Amal Shirin v. State'
(PLD 2004 SC 371); the decision turned upon inadmissible evidence; 2006 SCMR 1550:
Sana-ur-Rehman v. Nayyar; whether there is any piece of evidence which has not been
considered or the evidence brought has been discarded for reasons which are not
recognized under the law Barkat Ali v. Shaukat Ali (2004 SCMR 249); there is an error
apparent on the face of record Abdul Mateen v. Sahib Khan (PLD 2006 SC 538); and to
reappraise the evidence in its true perspective Gul Sabdar v. Malikuddin (2007 SCMR
714). He, has also made reference to the case of Muhammad Ashraf v. Tahir (2005
SCMR 383) in which, according to him, the Apex Court comprehensively reappraised the
evidence and while taking into account the ocular testimonies, the medical evidence and
other factors and also considering; the explanation of the delay in lodging of F.I.R., the
acquittal judgment was reversed. It is submitted that the instant case is squarely covered
by this pronouncement.

15. Towards the conclusion, Mr. Aitzaz Ahsan, Senior Advocate Supreme Court has
argued that the prosecution has proved its case against the accused beyond reasonable
doubt and upto the hilt and specific roles performed by each of the accused which are
duly established on the record through credible evidence; it is a clear and square case of
`common intention'. Anyhow, before leaving the rostrum, the learned counsel in very
clear, unequivocal and unambiguous words stated that while accepting the appeals,
instead of resort to the provisions of section 10(4) of the Act, section 10(3) be invoked
and all the accused must be sentenced thereunder. When specifically asked by the court

Page No. 12 of 40
for Abdul Khaliq, it is stated that he is not pressing for the enhancement of his sentence to
death, but seeking to maintain the same. He states that though it is a gang rape case, but
life imprisonments are permissible and reliance in this regard has been placed upon
Shakil and 5 others v. The State (PLD 2010 SC 47). Malik Muhammad Saleem, Advocate
appearing for all the acquitted accused and also for the convict, Abdul Khaliq (appellant
in Criminal Appeal No.171 of 2005), has forcefully submitted that the High Court was
justified in relying upon the statements of the prosecution witnesses recorded in the fact
finding enquiry by the S.P Range Crimes, as those for all intents and purposes are the
previous statements of such witnesses and, therefore, could validly be used for
confronting them in their cross-examinations in terms of Article 140 of QSO, 1984. It is
further argued that such statements were also relevant under Article 153(3) for
impeaching the credibility of the prosecution witnesses. He has submitted that these are
not the statements under section 161, Cr.P.C. to be read subject to section 162, Cr.P.C.
and, 'therefore, for the reason that these have been signed by the witnesses, should not be
a bar for using them independently for the object of confrontation and for impeaching the
credibility as aforesaid. Learned counsel for the respondents/accused has vehemently
defended the judgment of the trial court regarding the acquittal of the eight accused,
which decision has been affirmed by the High Court. While supporting the impugned
judgment of the High Court regarding acquittal of the accused, he has argued that the
conclusions of facts drawn by the Court are based upon proper reading and appraisal of
the evidence and it is not a case of surmises and conjectures; the contradictions in the
testimonies pointed out by the High Court have been reiterated by the learned counsel to
assert that on account of such weaknesses in the ocular deposition of the P.Ws., their
evidence/testimonies cannot be believed. He however has argued that on the basis of such
quality of evidence produced and the conclusions drawn by the High Court, the case of
Abdul Khaliq accused was at par with the others and thus he too was/is entitled to the
acquittal. The learned counsel has forcefully argued that the parameters and the rules for
interference in acquittal decisions are altogether different from those pertaining to appeals
against conviction. In this respect, the learned counsel has relied upon Syed Saeed
Muhammad Shah and another v. The State (1993 SCMR 550) and Ghulam Sikandar and
another N. Mamaraz Khan and others (PLD 1985 SC 11).

16. We have heard this case at a considerable length stretching on quite a number of
dates, and with the able assistance of the learned counsel for the parties, have thoroughly
scanned every material piece of evidence available on the record; an exercise primarily
necessitated with reference to the conviction appeal, and also to ascertain if the
conclusions of the Courts below are against the evidence on the record and/or in violation
of the law. In any event, before embarking upon scrutiny of the various pleas of law and
fact raised from both the sides, it may be mentioned that both the learned counsel agreed
that the criteria of interference in the judgment against ' acquittal is not the same, as
against cases involving a conviction. In this behalf, it shall be relevant to mention that the
following precedents provide a fair, settled and consistent view of the superior Courts
about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan
v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin
and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others
(2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249),
Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad
Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v.
Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir
Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others
(1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another
(2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD
1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999
SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407),
Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175),
Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and
another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004
SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR
855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v.
Muhammad Asif and others (2009 SCMR 946).

Page No. 13 of 40
From the ratio of all the above pronouncements and those cited by the learned counsel for
the parties, it can be deduced that the scope of interference in appeal against acquittal is
most narrow and limited, because in an acquittal the presumption of innocence is
significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be
presumed to be innocent until proved guilty; in other words, the presumption of
innocence is doubled. The courts shall be very slow in interfering with such an acquittal
judgment, unless it is shown to be perverse, passed in gross violation of law, suffering
from the errors of grave misreading or non-reading of the evidence; such judgments
should not be lightly interfered and heavy burden lies on the prosecution to rebut the
presumption of innocence which the accused has earned and attained on account of his
acquittal. It has been categorically held in a plethora of judgments that interference in a
judgment of acquittal is rare and the prosecution must show that there are glaring errors
of law and fact committed by the Court in arriving at the decision, which would result
into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial
or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court,
it has been categorically laid down that such judgment should not be interjected until the
findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis
supplied). The Court of appeal should not interfere simply for the reason that on the re-
appraisal of the evidence a different conclusion could possibly be arrived at, the factual
conclusions should not be upset, except when palpably perverse, suffering from serious
and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995
SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR
1281) that the Supreme Court being the final forum would be chary and hesitant to
interfere in the findings of the Courts below. It is, therefore, expedient and imperative
that the above criteria and the guidelines should be followed in deciding these appeals.

17. Anyhow, before proceeding further with the matter, it may be observed with
emphasis, that violating the sanctity and chastity of a woman is a sordid, despicable,
squalid act, which is considered abhorrent in any civilized society; any language falls
short of vocabulary to condemn such heinous act and cases of this taxonomy must be
strictly construed and dealt with. However, at the same time under criminal jurisprudence
for the safe administration of criminal justice, the courts are required to follow certain
settled principles, such as the innocence of the accused must be presumed, till he is
proved to be guilty; sifting "the grain out of the chaff"; the defence may take a number of
pleas and even if all are' shown to be false, yet it is the duty of the prosecution to prove
its case to the hilt; "better that ten guilty persons escape than that one innocent suffer"
(William Black Stone English Jurist). In this context it may be mentioned that the above
principle is engraved and embedded in t the American Constitution and Criminal
Jurisprudence as has been put forth by Michael G. Trachtman in his Book The Supremes'
Greatest Hits in the following words:--

"Our Founding Fathers were mindful of, the penchant of monarchs to charge
persons with, false crimes as a means of political oppression and social control.
Consequently, they built copious protections for those accused of criminal
offences into the foundations of the Constitution. It was acknowledged that giving
all benefits of the doubt to the accused would result in some guilty persons being
set free, and yet they freely accepted this necessary evil as a price of freedom.

The story is told of a Chinese law professor who was advised of our, belief that it
was better that a thousand guilty men go free than one innocent man be executed.

The Chinese professor thought for a bit and asked, "Better for whom?"

The Founding Fathers' answer to that question was this: better for all, because as
history has proven, if anyone can be unlawfully jailed, everyone can be
unlawfully jailed".

These are certain salutary principles of the criminal. justice system which should be
adhered to by the Courts, in letter and spirit and there is no exemption to these rules, even
in gang rape cases for otherwise, due to departure therefrom, the innocent person may
suffer. However, at the same time the Courts should keep in view that in such a class of

Page No. 14 of 40
cases, usually independent ocular evidence is not available, therefore due weight should
be attributed to the statement of the victim buttressed by medical evidence, and. strong
attending circumstances, shall suffice to warrant the conviction.

18. Having referred to certain principles, we would now proceed to consider the merits of
the case; and following the sequence we would first deal with the (acquittal) appeals of
the eight accused persons, who were acquitted by the trial court and the decision affirmed
by the High Court as well. The important features in this behalf are their names do not
appear in the F.I.R.; in the statements under sections 161 and 164 of Cr. P. C. of the P.
Ws. (except P.W.14) and even in the statements of the F prosecution witnesses in the
court (except P.W.14.); no particular role has been assigned to them in the commission of
the alleged offence, except their presence only in the `Akath' `Panchayat' which has been
alleged by the prosecutrix alone. The accused, Khalil Ahmad is the one, who got married
to Salma on 26th of June, 2002, where-after this case was ignited. In this group of the
accused, Ghulam Hussain is the real father of Khalil Ahmad (bridegroom of Salma),
Qasim, Rasool and Hazoor are his real paternal uncles, and Nazar Hussain is his maternal
uncle. According to the trial Court, they are placed in column No. two of the challan.
These facts have not been controverted by the complainant's learned counsel. It seems
that they have been implicated in the matter, because the complainant side felt annoyed
and unhappy on account of the above marriage, because till then there is a complete lull,
but thereafter everything suddenly sparked visibly and there is an element of vengeance
in their involvement, as all the close relatives of Khalil were booked in the case; it is not
a mere incident or an honest implication. The decision of the trial Court as earlier stated
has been affirmed by the appellate court, however, the learned counsel for the
complainant by resorting to the rule of `common intention' under section 109, P.P.C. has
urged that their mere presence in the `Akhat' `Panchayat' where the decision for `Badla'
was taken and the object was achieved, is good enough to haul them up in the case. We
are not impressed, if the rule of `common intention'- in this case can be stretched to an
extent that any person who was present at the time of the alleged occurrence should be
involved in the matter and convicted. In her statement, P.W.14. states that there were
about 200/250 persons present at the place of occurrence, can all of them be held
responsible for the alleged incident on the basis of the said rule, when no specific role has
been assigned or performed by them in furtherance of any alleged common intention;
they are not implicated by any P.W. at any stage in any manner whatsoever. Moreover,
there is absolutely no evidence that Mastois' `Akhat' as a whole decided to commit the
offence, in fact there were two `Akhat', of the Baradaris at distinct places and it is not
established by any P.W. that he was present in the mastoi gathering where such an alleged
decision was taken and shared by all those present. Besides, the village has no electricity,
no P.W. has given the time of occurrence, but even if gathered by joining the scattered
pieces of evidence,' it was somewhere after midnight on 22-6-2002; the prosecutrix
remained outside Khaliq's house for a short while, so how could she in the darkness
identify these eight persons by name and parentage. By now, they have acquired a triple
presumption of innocence, which cannot be dispelled by the complainant's counsel on
any score whatsoever. In view of the foregoing, we do not find that a case has been made
against them for interference, therefore, the appeals relating to these accused are liable to
be dismissed. While parting with their subject, it may be relevant to point out that in
order to constitute and apply `common intention' rule it is necessary to prove that the
intention of each one of the accused was known to the rest of them and accordingly
shared, see PLD 2007 SC 93; Shaukat Ali v. The State; however, this is not established
from the evidence of the prosecution. Therefore, the said rule for the aforesaid accused or
for any other (accused) in this case cannot be pressed into service.

19. Before attending to the various pleas raised by Ch. Aitzaz Ahsan, learned Senior
Advocate Supreme Court, we take up the prosecution's case regarding the incident as put
forth by it, and endeavour to ascertain its veracity on the rules of common sense, ordinary
prudence and logic; the chronological order of the incident, for the above is quite
important; and it may be mentioned that the incident dated 22-6-2002 erupted from some
obscure happening in a sugar field 'regarding which there is no direct and accurate
evidence on the record; any how:

(a) Taking the prosecution version on its face value as correct, it does not appeal to
reason that Salma's brother, who along with two others when committed sodomy

Page No. 15 of 40
 with Shakoor, was so naive to understand that Shakoor would not disclose their
misdeed to anyone, and on his unexpected refusal they took the extreme measure
of confining him in his own house along with Salma; risking, endangering and
putting at stake, the virtue, the sanctity and respect of a young unmarried sister. It
is incomprehensible that his other family members including the mother, other
brothers, sister would allow this nefarious design to be carried out and would all
become a party with him to do away with sacredness of their innocent daughter.
This is absolutely not done or conceivable in our rural society, where people are
very sensitive about the chastity of their womenfolk, especially young and virgin.

(b) If the intention of the Mastois was to take BADLA, on learning about the
confinement of Shakoor, Mst. Mukhtar Mai etc. had gone to the house of Khaliq,
without the company and protection of their menfolk, this was a good opportunity
for Khaliq or for that matter any other male of the family to settle the score, but
no harm was caused to anyone.

(c) It is strange that when Maulvi Abdul Razzak (P.W.11.), Hazoor Bakhsh (brother
of Shakoor) along with the police arrived and rescued the boy, he did not apprise
them that he is not the culprit, rather is a victim of sodomy; the explanation of the
prosecution that it was due to shame that he refrained from the disclosure, does
not go with the earlier prosecution's version, when he had refused not to declare
being sodomised and was thus confined with Salma. It is unbelievable that the
boy for `shame' would not tell the true story, lose the chance of liberty and the
sympathies when Maulvi Razzak along with the police had reached the spot for
rescuing him, rather would go to the police station instead of securing his
liberation and exoneration from the charge of rape. Strangely even in the police
station did not reveal his sodomy to any one.

(d) Maulvi Abdul Razzak was a very important person to the complainant party, as he
was the first one to be approached by them for rescuing Shakoor; he was the Salis
for Gujjars (complainant) and had been to and fro for resolving the matter, he
approached Faiz Mastoi the so-called head of` the Mastoi Baradari, and
persuaded him to agree to the proposal of exchange marriages, but on refusal of
Ramzan Pachar and Ghulam Fareed Mastoi walked out of the `Akhat', .leaving
behind the people who were depending upon him; trusted him the most at the
mercy of the alleged mighty Mastois. It is improbable and unbelievable that he
did not come to know of the subsequent event of ziadti (rape) with the
complainant for five days and during this period himself made no effort to find
out as to what happened to such a burning issue after his return. Rather he
discovered about it on 28-6-2002 from some individual whose name he does not
remember, and that person .too was not the witness of the incident himself, rather
he learnt about the occurrence from the vagabonds of the Mastois in a hotel; that,
"BADLA" had been taken. It is strange and incomprehensible that being an Imam
of the mosque, a mature, responsible, educated person, he would act in a way, that
without even verifying the occurrence from any authentic source; not from the
immediate relations of the complainant side as to whether the story is true or
otherwise or they would like for it to be announced in the mosque or not, he
disclosed it in his juma speech, without even the permission of the complainant
side. It is afterward that he approached Ghulam Fareed (complainant's father),
who according to him would not acknowledge the incident at all; the reason given
for this, that it was due to fear of Mastois, might have been possible in respect of
approaching the police, but what fear-" did Ghulam Fareed harbour in revealing
the incident to a man, who he always. looked upon, who was a friend, a confidant
and who already knew about the incident and to whom the disclosure would not
have caused any embarrassment.

(e) There is another very important fact that P.W.12. Altaf Hussain is the real brother
of P. W.11. and they admittedly live in the same house. P.W.12. claims to be the
witness of the `Akhat' proceedings and also the incident, so how come can it be
possible that till 30-6-2006, neither P. W.11 inquired as to what happened after he
had left nor P. W.11. disclosed to his brother, for in his statement, P.W.12 has
categorically mentioned that the incident was not divulged by him to his brother

Page No. 16 of 40
 even till 28-6-2002 or 30-6-2002. This is one of the most ridiculous aspect of the
prosecution's case which knock the bottom out of its version.

(f) Anyhow, having failed in his first attempt to know from Ghulam Fareed on 28-6-
2002 about the incident of which earlier he was not eager or bothered to know,
after leaving the Akhat; now he became proactive and in utter exuberance, he
again approached Ghulam Fareed on 29-6-2002, but this time with the power of
media, as the `pressmen' were with him; even then, it is not spelt out from the
prosecution evidence that any disclosure was made to them. However, all of a
sudden in the early hours of the day on 30-6-2002 the complainant, her father and
Sabir (P. W.13) approached P.W. 11 and thereafter he takes charge of the matter;
he calls all the witnesses and usher them along with for reporting the matter to the
police. Be that as it may, it is the categorical stance of the prosecution that the
"contact with the police for the first time with reference to the incident was made
on 30-6-2002, but it is quite important to note that in his statement under section
164, Cr.P.C. Maulvi Abdul Razzak has mentioned that the report was made on 29-
6-2002. This was confronted to him, but he failed to offer any explanation. This
man is not the witness of the incident, rather very conveniently drops out of the
scene on the pretext of the refusal of Watta Satta marriage, but leaving behind his
brother P.W.12 -to make up his deficiency who throughout remains attached to
the events to witness those, till the drop scene thereof, however as a silent
spectator only. It may be pertinent to mention here that in the F.I.R. there is no
mention of Shakoor's sodomy, surprisingly Maulvi. Abdul Razzak says that he
was not aware of it till reporting the matter, but P.W.14 deposed that the
disclosure was made to the Police Officer, who advised that the matter shall be
dealt with separately. However, this incident too perhaps later in the day was
reported through the courtesy of Razzak; the man, who also collected the clothes
of the prosecutrix for handing those over to the police. His role throughout
remains conspicuous and of a vanguard.

(g) It is also noticeable that a serious incident, allegedly has occurred in the area, it
was almost known to about 300 people who were present in both the `Akhats' and
if their family members are added to whom they would ordinarily pass on or
share the information, number of people who would be aware of the occurrence
would be exponentially increased but neither the Lumberdar/Chowkidar of the,
village nor councillor of the area or any respectable got to know of it on the
same/following day, or soon thereafter; the police from its own sources, which
(sources) it has and is a publicly known fact, never got any clue about the
occurrence till 30-6-2002 thus for the incident remained hidden from all and
sundry.

(h) Furthermore, in the context of Maulvi Abdul Razzak (P.W.11)'s statement and his
conduct, he has deposed in unequivocal terms that Faiz Mastoi agreed to the
exchange marriages "Watta Satta" but Ramzan and Ghulam Fareed rejected the
proposal and thus he and Manzoor left the `Akhat'; Faiz Mastoi allegedly was the
head of Mastoi people, now if he had agreed, the rejection of the proposal by
Ramzan, who was not even a member of the accused family/tribe, rather was a
friend of Hazoor Bakhsh, the brother of the complainant comes across as rather
convoluted and a ridiculous excuse for the walkout. Likewise, Ghulam Fareed too
is an unimportant character in the scenario, he is not a close F relative of Abdul
Khaliq and even is not shown to have any influence in the Baradari, but obviously
is the son-in-law of Karam Hussain, with whom Maulvi Abdul Razzak was in
litigation and had to give up some land; Razzak for reasons best known to him in
his cross-examination has tried to be evasive when asked about such relationship;
but his brother P.W.12 has admitted that Ghulam Fareed was so related to Karam
Hussain. Be that as it may, it is hard to believe and does not behove of a person
who has been portrayed as a conscientious man; who was discharging his moral
obligation by helping the oppressed against the Mastoi atrocity as argued
throughout, on the alleged refusal of the two unconnected men would
absquatulate and shed his above virtue at the hour of the need and would not
yearn to learn from anyone of those present in the `Akhat' (about 300 people of
both sides) that when he came back what happened thereafter. He is the Imam of

Page No. 17 of 40
 the mosque and runs a madrasa, but surprisingly never came across someone who
could reveal the deplorable incident of the beleaguered Mukhtar Mai; what an
apathy on his part. To us, as put by Shakespeare, in Hamlet, the role of Maulvi
Abdul Razzak (P.W.11) is "like Hamlet without the Prince" (Hamlet).

(i) It transpires from the record that the alleged recovery of the pistol from Abdul
Khaliq was on the last date of his remand. According to the statement of P. W.9.
the I.O., throughout the remand period, Khaliq denied about the pistol, rather
would not answer on the pretext that he does not remember, I.O. unequivocally
stated that Khaliq was not tortured; it is indiscernible that why all of a sudden
Khaliq would agree to get the pistol recovered from his house. Besides, in such a
high profile case, no independent witness was associated with the recovery
process; neither the Lumberdar nor Chowkidar of village or any other respectable
such as Councillors etc. were taken along with. We are not persuaded that Hazoor
Bakhsh and Ghulam Hussain recovery witnesses, who are close relatives of the
complainant would pass the test of independent witness in this respect.

(j) P. W.10. Shakoor stated, that when he reached home he discovered that Ziadati
had been committed with his sister, it is then he disclosed the Ziadati was
committed with him too. It is not plausible that neither at the police station, nor
while coming along with P.W.13, he mentioned about his Ziadati. P. W.14 in her
statement mentioned that P. W.10. revealed about his Ziadati in the presence of
P.W.13. at (Fareed's) house when he returned from the police station, but from the
statement of P.W.13. it can be reasonably spelt out, that after leaving Shakoor (P.
W.10) at the house of Fareed, he immediately left, for his house and did not stay
back. From the above, it can be concluded that the version of the prosecutrix in
this respect is not correct.

(k) According to the prosecution, Ramzan Pachar and Faiz Mastoi are responsible for
the ziadati, it is unbelievable that after the incident, they still would accompany,
Sabir Hussain (P.W.13.) for the release of Shakoor from the police station.

(l) It is against the human conduct if a daughter is being raped a father and maternal
uncles would stand dormant and would not strive to get help from the Baradari or
the police; at that time even Khaliq had left for the alleged rape; if they were
earlier scared of his pistol, but when he was gone, no other person is alleged 'to
be carrying any weapon; this was the opportunity to call for the help, the house of
Khaliq and Ghulam Fareed is not at much distance, even Hazoor Bakhsh, a young
man, also never turned up to save the honour of his sister. There is no material
evidence even of threats on the record, none of the Mastois after the alleged
incident is stated to have ever came in contact with the complainant side to extend
any threat which could preclude the complainant from taking recourse to a legal
action. The submission that threats were extended on the scene of occurrence to
our understanding were nothing more than rhetoric and would not be the reason
for their silence.

20. Afore-noted are the foundational facts of the case which have a serious reflection on
the version of the prosecution, which put together, make the prosecution version
implausible, flimsy and un-canny as set forth, and if, on account of, inter alia, the above,
the learned High Court has drawn certain conclusion such as, that the complainant side
was reluctant to report the matter and was influenced by Maulvi Abdul Razzak or that he
is the mastermind of the entire episode, or the prosecution evidence is not confidence
inspiring and the delay in lodging the F.I.R. has not been plausibly explained. Such a
conclusion, in our view, cannot be said to be unjustified.

21. P.W.12. Altaf Hussain, as stated earlier, is the real brother of Maulvi Abdul Razzak.
His statement has not been given much credence by the learned High Court, inter alia, for
the obvious reasons of the inconsistencies and improvements in his statement in the
Court, when compared with his previous statements under section 161, Cr.P.C. (leaving
apart those allegedly compared with the fact finding inquiry). Besides, it emanates from
the prosecution evidence that the case has been orchestrated by Maulvi Abdul Razzak,
and he being his brother, has to support the prosecution version. As far as P.W.13. is

Page No. 18 of 40
concerned, the learned High Court has duly and extensively analyzed his evidence; he is
the maternal uncle of the prosecutrix; the court has drawn certain factual conclusions
from the reading of his statement. Our own reading thereof does not take us to form a
view different from that of the High- Court; this witness has tried to improve the version
of the prosecution and also the statement admittedly made by him before the police under
section 161, Cr.P.0 and that under section 164, Cr.P.C. and such contradictions have been
duly highlighted in the cross-examination; particularly his statement before the
Magistrate under section 164, t Cr.P.C. to the effect "I stated to the Magistrate that the
decision of the panchayat re. Watta Satta was not agreed to by Faiz Mastoi, Ramzan
Pachar and Ghulam Fareed accused (confronted with Ex-PO where not so recorded).
Moreover, P.W.13. stated that Faiz Mastoi at the time when the victim came before the
panchayat commanded that ziadati be committed with her, but this is not so stated in his
previous statements, recorded under sections 161 and 164, Cr.P.C; even this portion of his
statement, which is quite important, is against the contents of the F.I.R., where it is
recorded that Ghulam Fareed (the complainant's father be forgiven). P. W.14. in her
statement has also not supported P.W.13 in this context when she deposed that Faiz did
assert for the pardon, but was it siasi dunyavi, besides he has stated that when Mst.
Mukhtar Mai was pushed in the Panchayat she fell down on the ground and was dragged,
this has not been so stated by P.W.12 or even the prosecutrix herself; there are some more
contradictions in his previous statement under section 164, Cr.P.C. and that made before
the Court, such as, who declined the "Watta Satta" proposal etc. In the previous
statement, he stated the man was Khair Muhammad Mastoi, but in Court he named Faiz.
As regards nudity incident, this P.W. has been confronted with his statement before the
Magistrate and his replies are that "I stated to the Magistrate that Fayyaz accused had
thrown the clothes to Mst. Mukhtar Mai as she came out of Kotha (confronted with PO
where not so recorded) I stated to the Magistrate that clothes of Mst. Mukhtar Mai were
torn as she came out. I stated to the Magistrate that shirt of Mukhtar Mai was torn from
the front and sides (confronted with PO where not so recorded). I stated to the Magistrate
that coming out Mukhtar Mai called out her father and the latter picked up those clothes
and put on her (confronted with PO where not so recorded)", therefore, if on the basis of
appreciation of his statement the learned High Court has disbelieved him, it cannot be
said to be the result of any improper reading of the evidence.

22. As far as P.W. 14. , the prosecutrix herself is concerned, though she has stated about
the facts pertaining to the holding of the `panchayat', but she being not a witness Jo these
proceedings herself therefore, all such evidence is hearsay thus, inadmissible. However,
when she came to the `Panchayat', it is categorically stated by her that, Faiz Mastoi stated
that the girl be forgiven, but according to her it was "politically and wordily". It is only an
impression of the witness which has not been shared by any other P.W.; besides, this is
not her version in the F.I.R. or the statements given under sections 161 and 164, Cr.P.C.
In this regard, the relevant confronted portions of he; statement are, "I stated to the
Thanedar at Chowk Jhuggiwala that accused Faiz Mastoi proclaimed dunyavi (siasi) and
to show to the people that girl has reached and be forgiven (confronted with Exh.Pl where
not so recorded) H except that Ghulam Fareed be forgiven ………."Further I did not state
to the Thanedar that Faiz Bakhsh Mastoi stated that Ghulam Fareed be forgiven
(confronted with Exh-P1. where so recorded)………. "I stated to the Magistrate that Faiz
Mastoi stated dunyavi (siasi) that Ghulam Fareed be forgiven" (confronted with Exh.PK
where words dunyavi (siasi) are not recorded), this clearly depict improvements and
inconsistencies. There is another vital contradiction in her statement made before the
Magistrate from that in the Court "I did not said to the Magistrate when we went back
home, Ghulam Nabi and Altaf were present there (confronted with Exh.PK/6-7 where so
recorded). She in her statement further admitted Allah Ditta accused lived in the house
along with Abdul Khaliq, his wife and children, mother, six sisters and five brothers; in
the situation it is improbable if such a despicable act was to be committed by the accused
there, particularly by the two real brothers together, that too in the presence of the entire
family living in the same house. If therefore, factual conclusions on that account have
been drawn by the learned High Court, those cannot be held to be against the evidence on
the record or perverse etc. About her nudity and clothes in reply to a question P.W.14.
stated, "I do not remember to have stated to the Thanedar that as I came out of room my
shirt was torn from the front and the sides and Fayyaz threw clothes at her (confronted
with Exh.P1 where not so recorded). I had come out of the room in nude condition I
stated that Fayyaz had thrown duppta and shalwar at me (confronted with Exh.PK where

Page No. 19 of 40
not so recorded), but duppta and shalwar were in the hands of Fayyaz". About the nudity
aspect and the clothes and how allegedly those were thrown, the learned High Court has
pointed out the inconsistencies in the statements of the witnesses and has again arrived at
a factual conclusion, which to our mind does not suffer from any factual or legal vice.
The learned High Court on account of extensive reading of the evidence has given its
findings, which are covered by the rules (about appeal against acquittal) laid down in the
aforementioned judgments and we are not convinced, that if any error of reading of the
evidence or any misapplication or violation of law has been committed by the Court
while delivering the impugned judgment. Only for the reason that on account of the re-
appraisal of evidence a different conclusion can be arrived at by the court of appeal, in an
acquittal case is not permissible under the law and this standard should not be resorted to
at all. 'In view of the foregoing, we do not find it to be a fit case for interference. Before
parting with this aspect of the case, it may be mentioned that prior to their examination in
the Court, all the witnesses were taken by the police to a house in Muzzafargarh, there
they were together for some good time, on account of which the learned High Court has
drawn the inference of tutoring the witnesses; however, the complainant's counsel states,
it was for their safety; but we are not impressed because almost all the concerned were
behind the bar, then from whom the witnesses had a threat, is a question mark.

23. Now attending to certain legal and factual pleas raised by the learned counsel for the
complainant which according to him also have nexus to the law, such as, the inferences
drawn against the prosecution regarding delay in lodging the F.I.R. is against the settled
law, because in cases pertaining to the present nature it is understandable that the victim'
or her family is/are hesitant to report the matter and in certain cases delay of even upto a
month has not been considered fatal to the prosecution. In our view, the above is not an
absolute or universal rule and the delay in each case has to be explained in a plausible
manner and should be assessed by the Court on its own merits; in a case of an unmarried
virgin victim of a young age, whose future may get stigmatized, if such a disclosure is
made, if some time is taken by the family to ponder over the matter that situation cannot
be. held at par with a grownup lady, who is a divorcee for the last many years; the
element of delaying the matter to avoid Badnami may also be not relevant in this case
because the incident according to the prosecution's own stance was known to a large
number of people and there was no point in keeping it a secret from everyone. We are
also not convinced if any threats were flung to the complainant side as has been alleged
and to us it seems to be an abortive attempt to cover up the delay, otherwise there is no
substantial cogent proof that after the incident, in between the 8 days anyone from the
accused side threatened and/or harassed the complainant or her family; likewise the
reason of fear is also self-assumed. It seems to be a case where, the delay is not on
account of the facts mentioned by the prosecution, but for some other reasons, which may
be those as has been propounded by the defence version i.e. the marriage of Salma and
Khalil, because the marriage took place on 26-6-2002 soon thereafter the case was
registered and it is not a mere co-incident, rather conspicuously strange, that whole
family of Khalil has been roped into the matter. It seems that on account of this marriage
the possibility of (Watta Satta) marriage extinguished and the complainant felt betrayed
and deceived. The view of the learned High Court that The F.I.R. was registered after due
care and deliberation and all the witnesses of the prosecution were called and then under
the leadership of Maulvi Abdul Razzak they all 'approached the police, therefore, the
delay in the registration of the case is a factor which tilts against the prosecution, suffers
from no vice and looks to be a proper perception and conclusion drawn by the Court from
the record of the case.

24. As far as the argument that the alleged previous statements of the witnesses before the
fact finding were illegally allowed to be used by the defence, for the purpose of
confronting the prosecution witnesses, we hold that such statements should have been
proved by the defence as those were denied by the P.Ws., when put to them; the S.P.
Range Crime, D.W.6 has categorically stated not to have recorded the statements and,
therefore, it was expedient for the defence to have been proved by either examining the
inspector or his reader, in whose handwriting these are alleged to be; though the defence
made an application for summoning the inspector, but that was turned down by the trial
Court, however no challenge was thrown to this order at the appropriate stage. In this
context, it may be held that the prosecution while confronting a P.W. under Article 140 of
QSO, 1984 with his previous statement may use any of his previous statement not

Page No. 20 of 40
necessarily those recorded under sections 161 and 164, Cr.P.C. without the proof of those
at that time. If the witness admits of having made such statement there is no need for the
proof, but if it is denied, then through the process of confronting him and recording the
inconsistency may be completed by the court, whereas such material cannot be used
against the prosecution, until and unless the confronted statement is subsequently proved
by the defence, as any disputed instrument. However, in this case even excluding the
confronted portion of the P.Ws. with such statements (fact finding inquiry), we are of the
view that the factual conclusion arrived at by the learned High Court, does not suffer in
any material aspect and can sustain independently.

25. About the argument that statements 'under section 161, Cr.P.C. should be strictly
construed in consonance with section 162, Cr.P.C. and if those are signed by the
witnesses, such is an incurable defect and an illegality which vitiates the statement and it
shall not be that previous statement which is contemplated by the above provision;
available for confrontation in terms of Article 140 of the Qanun-e-Shahadat Order, 1984
(QSO, 1984). To this extent, we agree with the learned counsel, however, we cannot
subscribe to the submissions, that Article 140 of the QSO, 1984 in a criminal matter is
totally and conclusively governed and regulated by the provisions of section 162, Cr.P.C.
It may be so, when the statement to be confronted has been recorded under section 161, K
Cr.P.C. that the rider of section 162, Cr.P.C. shall apply, but Article 140 of QSO, 1984
being a part of general law of evidence, has its own independent legal efficacy and
application and any previous statement of the witness, which may have been made by
him in some other judicial, quasi judicial, administrative, executive proceedings or
inquiries or before such of the forums or even privately made through some instrument
i.e. agreement or an affidavit, can be confronted to him, if relevant, in any criminal case,
however, subject to its proof as stated earlier. Such statements can. always be used by the
defence for impeaching the credibility of a witness under Article 153(3) of the QSO,
1984 as well.

26. As regards the other submission of Ch. Aitzaz Ahsan, learned Senior Advocate
Supreme Court, that the statement under section 164, Cr.P.C. of those witnesses who have
not been examined by the prosecution is not a substantive piece of evidence and cannot
be used for any purpose in the case, including to support the plea of the defence, suffice it
to say that admittedly in this case the Magistrate before whom the statements were
recorded has appeared as a witness and has produced in evidence, inter alia, the
statements of Ghulam Fareed, father of the complainant and Ghulam Nabi which were
duly exhibited. In an answer to a question by the defence counsel, the Magistrate in
unequivocal terms stated that Ghulam Nabi appeared before him and stated that on the
day of occurrence he was not in the village, rather had gone to meet the relatives at Dera
Ismail Khan and returned after two days when he learnt about the incident; these
statements have been produced by the prosecution in the evidence itself as aforestated,
the contents are also proved by the Magistrate, who recorded it; though ordinarily the
opposite side can use such a document to its advantage which has been produced by the
other side and the party producing it in evidence is bound by the fall out thereof;
however, when the statement is under section 164, Cr.P.C.. of a person, who is not
produced, it cannot be considered as a substantive piece of evidence, but at the same time
the criminal court in order to administer safe justice, in consonance and in letter and spirit
of section 162(2), Cr.P.C, may use such statement not as evidence, but to aid it; the said
statement thus can be looked into, for drawing the presumption under Article 129(g) of
QSO, 1984, because Ghulam Nabi was the star witness of the prosecution, who
throughout remained in touch with the alleged events; he was allegedly present at the
time of Panchayat, the occurrence and even went along with the prosecutrix to register
the case in which he is specifically named, as a witness, but was given up by the
prosecution, not being won over, but as unnecessary. The Court, thus, for the purpose (s)
of drawing a presumption for withholding the best evidence under the said Article could
examine the statement and make up its mind in this context. Had Ghulam Nabi been
examined by the prosecution, the defence would have validly confronted him with his
statement to create a vital dent in the prosecution version; and it seems that in order to
avoid the repercussions and consequences thereof, he was given up. Adverse presumption
of withholding the father of the prosecutrix could likewise be validly drawn.

27. As far as the question about the sole testimony of the prosecutrix and believing her

Page No. 21 of 40
without any corroboration is concerned, suffice it to say that this too, is not an absolute
(Emphasis supplied) rule. It depends upon the facts and circumstances of each case and
has to be assessed by the Court on the basis of the entire evidence on the record whether
the sole testimony of the victim should be believed or not, particularly in the light of her
cross examination, and the other evidence produced by the prosecution; if on account of
totality of facts the Court is of the view that such a statement should not be believed and
for that good reasons are assigned it cannot be said that any illegality has been committed
by the Court in this behalf. Thus, rule pressed into service by the learned counsel shall
not apply to each and every case of rape, as' a matter of routine and course, because it is
not the command of any law/statute, that in deviation of the general principles of
jurisprudence mentioned above, the accused must be put to the test of strict liability and
should be asked to prove his innocence because the prosecutrix's version under all
circumstances should be taken as correct; the sole testimony view, should be applied with
due care and caution in the cases where there is backdrop of grudge, rift and tiff between
the parties, as has emerged in instant case. The possibility in this matter cannot be ruled
out that the complainant side was trapped by Khaliq; Mst. Mukhtar Mai deceptively in
the garb of exchange marriage was subjected to sexual intercourse by him, who in this
manner took revenge for Shakoor's act and, thereafter, Salma was secretly married to
Khalil, which embittered and betrayed the complainant and provoked her to initiate the
present case. Be that as it may, if not the ocular evidence, the prosecutrix in the case
should have been corroborated by medical evidence, which in the required quality is
missing. What is the basis of the lady doctor's opinion that she was raped, yes-she was
subjected to sexual intercourse, but the question is whether by one person or forcibly four
as the prosecution has set out.

28. The absence of injures and marks on the body of a prosecutrix should not be the only
factor to disbelieve her version in an ordinary rape case, but where a woman has been
forcibly raped for full one hour, by four young individuals on the bare floor, it is not
expected that she would not struggle and in the course would sustain no marks or injury.
This, of course, is not a conclusive proof or disproof of rape and the learned High Court
has rightly held it to be unusual; we have no reasons to differ with it. The omission of
DNA and group semen test, which would have been strong supporting evidence to the
testimony of the victim, has not been done. To the argument of the learned counsel for the
complainant, that on account of the lapse of investigating authorities, the prosecutrix
should not suffer; suffice it to say that it should also be true for the defence, rather with
more vigour and. force. The semen in the vagina were available till the date of her
examination and we are at a loss to see what prevented the prosecution to seek the
chemical examiner's opinion to confirm, whether the sexual intercourse was by one
individual or more. It is especially required in gang rape cases, as it is a matter of life and
death of a person and the life of an accused, who might be innocent in a such case and
should not be put to danger, only because the prosecutrix has said so, and in any case he
should not suffer for the omissions of the prosecution. If the view of the sole testimony of
the prosecutrix as sufficient evidence, is accepted, as absolute without any exception
thereto, what shall be the outcome of a case, where a lady claims being raped or gang
raped, but the medical evidence negates it, what/who should be believed then, the point
is, that it is not in every gang rape case, that the sole testimony should be accepted and
relied upon, but each case as earlier stated should be assessed and adjudged on its own
facts. The DNA and/or group semen test in this case was of immense importance which
could have scientifically determined as to whether the intercourse with the prosecutrix
was committed only by Khaliq or by a group of persons. Therefore, in our considered
view, the benefit of this omission should go to the accused, rather the prosecution.

29. Responding to the argument about the credibility and trustworthiness of P. W.14. , it
may be held that only for the reason, she declined the money awarded to her by the
Governor and has established the school would not mean that whatever she stated should
be accepted as true; in our view nothing much turns on it and the case of such a nature
cannot be decided on these trivial factors, rather on the basis of tenable evidence, about
the proof of the crime.

For, the non-involvement of Shakoor's sodomizers is concerned, in our view this is by

design and quite a deliberate and clever move on part of the prosecution, these two
incidents were kept aloof with an obvious object and we are told that convictions of the

Page No. 22 of 40
accused in that case have been achieved, the purpose seems to have been served.

30. Regarding the argument that the version of the prosecution. has been admitted and
proved through the suggestions put forth by the defence counsel to the prosecution
witnesses, during the course of cross examination, particularly in view of the fact that the
accused in their statements under section 342, Cr.P.C. has relied for their defence on the
cross-examination; it may be pointed out that the purpose and object of cross-
examination is two fold; one to extract truth i.e. to unfold the truth, second to challenge
the veracity of a witness. During the course of cross examination to achieve the aforesaid
objectives or any one of the two, the defence counsel at time put questions to the witness
in form of suggestions suggestions not necessarily are always the defence plea or the
admission. They can be so taken or assumed if through suggestion, I any statutory plea is
set up. Like for example, if a witness is suggested that the act or commission by an
accused person had to be done in exercise of right of self defence by suggestion in a cross
examination, the attempt is to take the case to fall within the mischief of section 302(c)
instead of 302(a) or (b) or where suggestion is made regarding plea of the accused as to
his "alibi". Other suggestions are intended to dislodge the witness statement made by him
during his examination-in-chief, like in the instant case the complainant-lady was
suggested to which she replied "incorrect to suggest after commission of zina, the
shalwar was given to me in the room". The suggestion that the Shalwar was not thrown
upon her, rather was with her in the room does not mean that defence is accepting the
occurrence of rape or accepting what the witness has stated in the examination-in-chief,
but it is a challenge to a statement of fact as alleged. Secondly, it may be in the mind of
the cross- examiner that he has already or at a later stage to come from some other
witness has to extract that the Shalwar was not thrown outside the room, rather all this
happened inside. For the suggestions to be construed as the admissions in any form
(implied or otherwise) those should be unambiguous, clear, incapable of any other
inference and where no two interpretations are possible. But from those to which
reference has been made by the learned counsel, we do not find that these are adequate
enough to be interpreted as the admission of the alleged occurrence; these may at the
most be said to be the result of an inarticulate, or inapt art of cross examination, which is
not of much importance in this hotly contested case and cannot be given that much
importance especially, when the case of the prosecution from its own evidence is not
proved to the hilt, as it was put forth.

It may, however, be observed that in the case of Abdul Khaliq the suggestion of his
intercourse with the prosecutrix obviously is very clear, definite and qualifies the test of
being an admission as described by the learned counsel for the complainant, however, his
case shall be discussed separately.

31. Now considering the cases of each accused who has been acquitted, but before that, it
is expedient to mention even at the cost of repetition that there was not one Panchayat as
the impression sometimes emerge from the prosecution evidence; in fact there were two
`Akhats' `Panchayats' of the two Baradaris, the Gujjar gathered in the Mosque of
Meeranwala (presumably in which Maulvi Abdul Razzak is the Imam) and that of the
Mastois, was outside the house of Abdul Khaliq. It is not the case of the prosecution if
any collective decision of all those who were present in such a `Akhats' was ever made,
however, the so-called Salis (the arbitrator) of one side have been commuting to the
other. It is not spelt out through any independent evidence that the Mastois' `Akhat'
collectively took the decision of taking BADLA from Mst.Mukhtar Mai---

(a) Be that as it may, firstly the role of Faiz Mastoi should be examined. In the
F.I.R. it is mentioned that Shakoor was liberated by Abdul Khaliq etc. on his
intervention; he according to P.W.1l proposed the exchange marriages,
however, when again approached by (P.W.11.) he affirmed the proposal in this
behalf. In the F.I.R. the complainant stated that Faiz avowed that Fareed
(father of the complainant) be forgiven. PW.11 while appearing has not stated
that Faiz had ever declared to take BADLA. This is not even the statement of
P.W.12. Only P.W.13 (Sabir Hussain) at two occasions has imputed and
insinuated that Faiz disagreed with the marriage proposal and also when Mst.
Mukhtar Mai was brought to the `Panchayat' he asked for committing Ziadati
with her. But this is directly in contradiction with the statement of Mst.

Page No. 23 of 40
 Mukhtar Mai when she appeared as PW.14 and stated, that Faiz said the girl
has come and should be forgiven, however, she further stated that it was
"politically" or "wordily" which may be only her perception, as what has been
stated, is not reflected on account of his conduct or words that he was party to
any decision or act of Zina; no other witnesses have said anything about Faiz
Mastoi having played any part which could be held to be pursuant to any
`common intention'. He according to PW-13 also accompanied him to the
police station for the release of Shakoor at about 3 a.m. on 23-6-2002.

(b) As far as Ramzan Pachar is concerned, he admittedly is the friend of Hazoor

Bakhsh, the brother of the complainant, he is not a Mastoi by caste, it
transpires from the record that he accompanied Sabir (P.W.13) for the release
of Shakoor, but demanded some money for further payment to the police.
Though it is alleged that he declined the proposal of exchange marriages, but
it seems strange that why would a person who does not belong to Mastoi tribe
and has relations only with the brother of the complainant would become
hostile and would insist raping his friend's sister, even by overruling Faiz
Muhammad Mastoi, who is projected by the prosecution as a `Sarbrah' of
Mastoi Baradari, and who had agreed to the proposal. To our mind, his status
and capacity at the best was not more than a messenger.

(c) About Ghulam Fareed, it is apparent from the record that his parentage was
wrongly mentioned in the F.I.R. The F.I.R. was duly read over to the lady, she
signed it in token of its correctness and she at that time was accompanied by
all the male witnesses, who knew well all the people in the area, her father as
well as Mamoon were also present, but no one pointed if the name of Fareed's
father was wrong. The complainant does not mention in any of her statement
under sections 161 and 164, Cr.P.C. about this error, rather for the correction a
supplementary statement was recorded, however, there are no police
proceedings, in the context of the supplementary statement, as has been held
by the learned High Court. He too is neither a stalwart of the Mastoi Baradari
nor is a close relative of Salma and his role has been inflated in the matter
because he is the son-in-law of Karam Hussain Mastoi with whom PW-11 as
mentioned earlier had litigation and as a result whereof he lost some land.

(d) As far as Fayyaz accused is concerned, he is not the resident of Meeranwala

as was alleged by the prosecution, he has produced evidence to that effect;
besides he was taken into custody from jail, because actual Fayyaz who was
the first cousin of Khaliq and Salma, could not be apprehended, therefore, his
name was put in the matter, because the investigators as stated earlier where
under immense pressure to complete investigation and submit the challan.
Moreover, he has produced DW-2 Nadeem Saeed correspondent "DAWN"
who has stated that Hazoor Bakhsh the brother of the complainant told him
that he is not the real culprit, in this regard the news item has also been
brought on the record. He is an independent witness and no effective cross
examination to his testimony to shatter the same has been conducted; the
argument of the learned counsel for the complainant that he was duly
identified by the witnesses, particularly by P.W.14 in the Court; it may be held
that such was unavoidable at that stage in order to save the disastrous damage
to the prosecution's case. The High Court in the impugned judgment has
made comprehensive discussion about him and we do not find that any of the
factual conclusions drawn by the said Court in this behalf being erroneous for
any reason whatsoever.

(e) Allah Ditta is the brother of Abdul Khaliq, he is married, living in the same
house where the alleged incident took place, with his whole family including
wife, mother, six sisters and five brothers and his children. It is improbable
that he in the presence of all particularly his wife and children and young
sisters would commit Zina along with his real brother. The High Court, in his
case, too has given valid reasons, which calls for no interference on any
account.

Page No. 24 of 40
32. However the High Court has distinguished the case of Abdul Khaliq primarily for the
reasons that he has remotely admitted the intercourse with the prosecutrix; he took up the
defence of Nikkah„ but has failed to prove it. It is argued by his counsel that it is
available to the defence to take as many pleas as it wants, and even if all such pleas are
found to be incorrect yet the prosecution is not absolved of its primary duty to prove its
case and, therefore, when on account of the reasons given by the High Court it is found
that the case as set out by the prosecution is not true, he should have also been exonerated
by giving benefit of doubt along with other accused. We are afraid that his case is not at
par with the other accused for additional reasons that the version of the complainant of
sexual intercourse with her has been duly corroborated by the medical evidence,
notwithstanding the omission of DNA/SEMEN test, which may in our view would have
been relevant for gang rape, to determine if the act is by one person or more, but in the
instant case the suggestion given by his counsel to the prosecutrix is very clear,
unambiguous and leads to no other interpretation. When in reply thereto P.W.14 stated as
under:--

"It is incorrect to suggest that pursuant to the decision of my family members my

Shari Nikkah was performed in the house of Abdul Khaliq in the presence of
Ramzan Pachar, my father and Sabir P.Ws. It is incorrect to suggest that
compromise was reached and thereafter my maternal uncle Sabir Hussain P.W.,
Ramzan Pachar and Abdul Khaliq accused went to the police station and brought
Abdul Shakoor back with whom Nikkah of Salma was to be performed. Incorrect
to suggest that at 3/4 a.m. Abdul Khaliq came to room where I was present as his
bride. In-correct to suggest that he performed conjugal duties as my husband in
the said night."

In the light of the above, it was incumbent for the defence to prove the Nikkah and being
conscience of this requirement, that some D.Ws were also examined by the defence,
however through such evidence the Nikkah could not be proved, the obvious result,
would be that he committed sexual intercourse with the prosecutrix, but without a valid
Nikkah.

33. While concluding we share the view of the Courts that no case for abduction was
made out by the prosecution, notwithstanding the distance; we are not convinced that
prosecutrix was taken to the room as has been alleged by her.

34. In the light of the above, we do not find any merits in these appeals, which are hereby
dismissed. The suo motu action, initiated by this Court in the matter is also discharged.

(Sd.)
Mian Saqib Nisar, J
(Sd.)
Mian Shakirullah Jan, J

I have added my own note.

(Sd.)
Nasir ul Mulk, J

NASIR-UL-MULK, J.---I have had the benefit of reading the lucid judgment authored
by my Lord Mr. Justice Mian Saqib Nisar and concurred by my Lord Mr. Justice Mian
Shakirullah Jan, upholding the final conclusions drawn by the High Court in the
impugned judgment and its findings on various questions raised before it. While agreeing
with some of the findings in the proposed judgment, with humility and utmost respect, I
have formed a different opinion on other aspects of the case.

2. The prosecution case in a nutshell is that the complainant, Mukhtar Mai, was subjected
to gang rape by four persons of Mastoi Tribe, including Abdul Khaliq and Allah Ditta,
brothers of Mst. Salma, with the sanction of the Panchayat of the Tribe, as retaliation and
in order to vindicate the honour of the Tribe and the family of Mst. Salma, who is alleged
to have indulged in an affair with Abdul Shakoor, brother of the complainant.

Page No. 25 of 40
3. The accused charged and tried for the crime can be conveniently divided into two
groups. The four accused of rape are, Abdul Khaliq, Allah Ditta, Ghulam Fareed and
Muhammad Fayyaz. The remaining eight were members of the Panchayat sanctioning the
rape. Out of these, Faiz Muhammad (Faiza Mastoi) and Muhammad Ramzan (Ramzan
Pachar) as well as Ghulatn Fareed were stated to have represented the Panchayat and
taking active part in its proceedings, while the rest were simply its members.

4. The Anti Terrorism Court, Dera Ghazi Khan trying the accused convicted and
sentenced six of the accused, namely, Abdul Khaliq, Allah Ditta, Muhammad Fayyaz,
Ghulam Fareed, Muhammad Ramzan Pachar and Faiz Muhammad alias Faiza Mastoi,
awarding them various sentences under sections 10(4) and 11 of the Offence of Zina
(Enforcement of Hadood) Ordinance, 1979 and 7(c) of the Anti Terrorism Act, 1997,
including sentence of death. As details of the convictions and sentences of the convicts
have been stated in Para 5 of the majority judgment, to avoid repetition; the same are not
reproduced. The convicts were, however, acquitted on the charge under section 354-A
PPC. The remaining eight accused were acquitted of all the charges for lack of evidence.
The High Court in its judgment dated 3-3-2005 acquitted all the convicts except Abdul
Khaliq, whose conviction was recorded under section 10(3) of Offence of Zina
(Enforcement of Hadood) Ordinance, 1979, as the charge of gang rape under Section
10(4) of the Ordinance could not be maintained in view of the acquittal of other the three
accused of rape.

5. The judgment of the High Court was impugned before this Court by the complainant,
Mukhtar Mai, the State as well as Abdul Khaliq, the latter challenging his conviction and
sentence. Simultaneously, this Court also took suo motu notice of the case when an
Hon'ble Judge of the Federal Shariat Court took suo motu of the judgment of the High
Court and suspended the same. Leave to appeals was granted in all the matters on 28-6-
2005 in the following terms:

"Listed petitions for leave to appeal have been filed against the judgment of
Lahore High Court Multan Bench, Multan, dated 3-3-2005 passed in Criminal
Appeals Nos. 60 to 63, 65 and 66 of 2002.

(2) Precisely stating facts of the case are that an occurrence took place on 22nd
June 2002 in the area of Mauza Meerwala District Muzaffargarh, situated at a
distance of 13 kilometers from the Police Station Jatoi towards South. Matter was
reported to the S.H.O. Police Station Jatoi on 30th June 2002 at 7-30 a.m. He
recorded statement of Mst. Mukhtar Mai on the basis of which formal F.I.R. was
recorded. Prosecution story as narrated by petitioner Mst. Mukhtar Mai in the
complaint (Exh.P 1) is that on 22nd June 2002 her brother Abdul Shakoor was
suspected of having illicit liaison with Mst. Naseem daughter of Imam Bakhsh
resident of the same village. To resolve the dispute a Panchayat (meeting) was
convened on that very day. Muhammad Ramzan son of Karim Bakhsh, Ghulam
Farid son of Mahmood, Faiz Bakhsh Khan son of Sher Muhammad were
appointed as arbitrators on behalf of Abdul Khaliq (accused) whereas Maulvi
Abdul Razzaq son of Bahadur, Manzoor Hussain son of Noor Muhammad were
appointed as arbitrator on behalf of Ghulam Farid-father of complainant. The
arbitrators of both the sides proposed that Mst. Naseem should be wedded to
Abdul Shakoor son of Ghulam Farid and likewise Mukhtar Mai be married to the
son of Imam Bakhsh. But Abdul Khaliq, Muhammad Ramzan and Ghulam Farid
opposed the proposal and allegedly demanded that they would commit Zina with
Mukhtar Mai with a view to equalize the incident and then they would
compromise the matter. The demand was opposed by the members of the
Panchayat. On this some of the respectable persons namely Maulvi Abdul Razzaq
and Manzoor Hussain left the Punchayat. Thereafter on coercion and pressure of
accused party complainant-Mukhtar Mai was brought to the Punchayat by her
maternal uncle Sabir Hussain to pray for forgiveness according to the customs of
Baloch. Later on she was caught hold by Abdul Khaliq from her right hand which
she got released by force. Faiz Bakhsh also sought forgiveness" for Ghulam Farid,
but she was taken into a nearby Kotha forcibly by the accused persons namely
Abdul Khaliq, being armed with .30 bore pistol, Allah Ditta (both sons of Imam

Page No. 26 of 40
 Bakhsh), Fayyaz Hussain son of Karim Bakhsh and Ghulam Farid son of
Mahmood and was subjected to Zina-bil-Jabr by all the four persons turn by turn
during course of which complainant-Mukhtar Mai remained crying. Later on she
came out of the said Kotha in a nude condition and called her father Ghulam
Farid. Statedly the incident was witnessed by Ghulam Nabi son of Bahar Khan
and Altaf Hussain son of Bahadur Ali as well as her father. After recording of
statement of complainant Mukhtar Mai F.I.R. was recorded at 8.00 a.m. on 30th
June 2002 at Police Station Jatoi. On completion of investigations accused were
arrested and sent up to face trial. As they did not plead guilty to the charge, thus,
prosecution led evidence to substantiate accusation by producing as many as 17 P.
Ws On completion of trial learned Judge, Anti Terrorism Court, Dera Ghazi
Khan convicted/sentenced them as follows:

Under section 7(c) read withAbdul Khaliq, Allah Ditta,Life Imprisonment with
section 21(1) ATA 1997 andMuhammad Fiaz, Ghulamfine of Rs.20,000 each and
149/109, P.P.C. Farid, Ramzan Pachar andin default whereof to
Faiz Muhammad further undergo six months'
R.I. each.
Under section 11 of Offence Abdul Khaliq, Allah Ditta, Life imprisonment plus 30
of Zina (Enforcement ofGhulam Farid andstripes each with fine of
Hudood) Ordinance, 1979Muhammad Fiaz Rs.20,000 each and in
read with section 149, P.P.C. default whereof to further
undergo six months' R.I.
each.
Under section 10(4) of ZinaAbdul Khaliq, Allah Ditta, Sentence of death
(Enforcement of Hudood)Ghulam Farid and
Ordinance, 1979 read withMuhammad Fiaz
section 149, P.P.C.
Under section 11 of Zina Ramzan Pachar and FaizLife imprisonment plus 30
(Enforcement of Hudood)Muhammad, Muhammadstripes each with fine of
Ordinance, 1979 read withRamzan Pachar and FaizRs.20,000 each and in
section 21(1) of ATA andMuhammad. default whereof to further
Sections 109/149, P.P.C. undergo six months' R`I.
each
Under section 10(4) of ZinaMuhammad Ramzan PacharSentence of death.
(Enforcement of Hudood)and Faiz Muhammad
Ordinance, 1979 read with
section 21(1) of ATA and
sections 109/149, P.P.C.

Above convicts, however, were acquitted from the charge under section 354-A,
Cr.P.C., whereas, remaining accused namely Muhammad Aslam, Allah Ditta son
of Jan Muhammad, Khalil Ahmed, Ghulam Hussain, Hazoor Bakhsh, Rasool
Bakhsh, Qasim and Nazar Hussain were found not guilty for all the charges.

(3) Learned High Court in appeal, vide impugned judgment dated 3rd March,
2005 concluded as under:-

(i) Sentence of Abdul Khaliq appellant is covered by section 10(3) of the

Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (hereinafter
referred to "Ordinance, 1979), as gang rap is not proved under section 10(4)
of the Ordinance, 1979. He is sentenced to 25 years' R.I. The sentence of
fine awarded by the learned Trial Court is maintained. Benefit of section
382-B, Cr.P.C. was also extended to him. However, he was acquitted of the
charge under section 11 of the Ordinance 1979 and 7(c) read with section
21(1) of the Anti-Terrorism Act, 1997 and 149/109, P.P.C.

(ii) All other convicts were acquitted on setting aside the sentences awarded to
them by the Trial Court.

(iii) Appeal filed by the complainant and the State to challenge the acquittal of
some of the accused mentioned above was also dismissed.

Page No. 27 of 40
(4) Learned Attorney General who was asked to assist the Court, during hearing of
the petitions, particularly in view of question, which has arisen relating to
jurisdiction of the High Court, and Federal Shariat Court, as appeals have arisen out
of the judgment passed by the Anti-Terrorism Court under section 10(4) of the
Ordinance, 1979.

It may be noted that State as well as complainant in memo of their respective

petitions for leave to appeal had also highlighted the jurisdictional question of the
learned High Court as well as learned Shariat Court.

(5) Learned Attorney General categorically contended that as the original judgment
was passed by the Anti Terrorism Court, therefore, appeal under section 27-A of the
Anti-Terrorism Act, 1997 was competent before the High Court.

(6) From the arguments so raised by him, following questions emerge for
consideration:

(i) Was the case competently brought before the Anti-Terrorism Court?

(ii) Could Anti-Terrorism Court try offences other than the scheduled offences,
which may otherwise fall exclusively in the domain of other Courts?

(iii) Were the appeals of the convicts before the High Court competent?

(iv) Could the Federal Shariat Court under Article 203-DD of the Constitution
interfere in the appellate order of the High Court?

(7) When called upon to address arguments on merits he stated that impugned
judgment is indefensible for the following reasons:-

(i) Delay in lodging F.I.R. constitute no ground for acquittal of accused

particularly in the cases pertaining to rape/gang rape, in view of the social
conditions of society. [Harpal Singh v. State of Himachal Pradesh (AIR
1981 SC 361), Mst. Nasreen v. Fayyaz Khan (PLD 1991 SC 412),
Muhammad Abbas v. State (PLD 2003 SC 863)].

(ii) Sole testimony of a victim in rape/gang rape cases is sufficient for the
purposes of conviction. [Mst. Nasreen (ibid), Shahzad alias Shaddu v.
State (2002 SCMR 1009), Muhammad Abbas (ibid)

(iii) Marks of injuries on the person of prosecutrix are not necessary to secure
conviction of an accused, where there is allegation of gang rape. [Shahzad
alias Shaddu (ibid)].

(iv) Expert evidence is of confirmatory nature, therefore, non obtaining report

of expert, to ascertain as to whether clothes of the victim were stained with
semen, is not fatal to the prosecution's case. [Muhammad Abbas (ibid)].

(v) Impugned judgment has proceeded mainly on conjectural consideration as

is evident from perusal of the impugned judgment.

(8) He also pointed out that there are so many other questions, which are required
to be examined in depth if leave is granted to the State. It was also prayed by him
that in presence of overwhelming, direct and indirect incriminating evidence, the
respondents have been acquitted of the charge, therefore, he prayed for suspension
of their acquittal, in exercise of powers under Order XXXIII Rule 9 of the
Supreme Court Rules, 1980.

(9) Learned Advocate General (Punjab) adopted the arguments advanced by the
Attorney General for Pakistan. However, he added that considerations prevailed
upon the learned High Court are not sufficient to sustain the judgment.

Page No. 28 of 40
 (10) Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court also
appeared on behalf of the State and contended that:

(i) Learned High Court had no jurisdiction to accept the appeal filed by
respondents under section 27-A of the .Anti-Terrorism Act, 1997, in view
of the provisions of Article 203-DD of the Constitution read with section
20 of the Ordinance, 1979.

(ii) The evidence produced by the prosecution has not been appraised by the
learned High Court, at the touchstone of the principles pronounced by this
Court, from time to time, for the safe administration of justice in criminal
cases, as the evidence of prosecutrix and other witnesses has been
disbelieved on the basis of technicalities, rendering the impugned
judgment not tenable in the eye of law.

(11) Ch. Aitezaz Ahsan, learned Senior Advocate Supreme Court appearing for
the complainant argued that:

(i) The evidence produced by the prosecution to establish guilt had not been
appreciated by the learned High Court in its real perspective, due to which
serious injustice has been caused to the compliant, who not only gang
raped by four persons but she was also forced to parade without clothes in
presence of her close relatives i.e. father, uncles and the members of the
Punchayat.

On the role of Punchayat, he stated that they had also facilitated the
commission of the offence.

(ii) The conclusion drawn by the learned High Court is not tenable, thus
cannot sustain in the eye of law.

(iii) The prosecution had proved the act of terrorism/gang rape by the
respondents i.e. Abdul Khaliq, etc. with the assistance of others, therefore,
following observation from the judgment goes to show that the appeal has
not been disposed of according to facts on record:-

"Hence we are satisfied that the allegation of committing sexual intercourse with
the complainant (P.W.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 of Zina (Enforcement of
Hudood) Ordinance, 1979 and he is sentenced to 25 years R. I. 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 sections 21(1), ATA 1997 and 149/109, P.P.C. 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 Khaliq 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, P.P.C. Criminal Appeal No.60 of 2002 to
his extent stands disposed of and impugned judgment of conviction and sentence
is set aside."

(12) Learned counsel appearing for accused contended that:--

(i) Learned High Court had jurisdiction to dispose of appeal as the respondents

Page No. 29 of 40
 were allegedly charged for the gang rape as well as for the offence under
section 7(c) read with 21(1) of the Anti-Terrorism Act, 1997 and the Federal
Shariat Court had no jurisdiction to entertain the appeals filed by the convicts.

(ii) The petitioner Abdul Khaliq has been convicted contrary to evidence available
on record. Story put forward by the prosecutrix Mst. Mukhtar Mai is full of
improbabilities, therefore, he was entitled for the acquittal from the charge
under section 10(3) of the Ordinance, 1979 as well.

(iii) Learned High Court had not believed the same set of evidence against the
remaining accused persons but without seeking any corroboration, it has been
believed against the petitioner, contrary to the principles of consistency.
Similarly, against the remaining respondents, no evidence is available,
therefore, High Court on having evaluated the same rightly acquitted them of
the charge.

(iv) As now there is double presumption of innocence in their favour, as such

acquittal order may not be interfered with, unless the case is made out in view
of the principle laid down in Ghulam Sikandar v. Mamaraz Khan (PLD 1985
SC 11).

(13) We have heard learned counsel for the parties and have also gone through the
relevant record carefully. Leave to appeal is granted in all the petitions, inter alia, to
examine contentions of parties' counsel noted above, Keeping in view the facts and
circumstances of the case, operation of the impugned judgment of Lahore High Court,
Multan Bench dated 3rd March 2005 is suspended. Non-bailable warrants of arrest of
the respondents in Criminal Petitions Nos. 96 to 99, 114 to 116 and 161 of 2005,
except Abdul Khaliq, who is already in custody, be issued. Inspector General Police,
Punjab is directed to cause their arrest and keep them in judicial custody pending final
disposal of the appeals. They shall be treated as under trial prisoners."

6. One of the points formulated for determination in the leave granting order related to
the assumption and exercise of jurisdiction by the Anti-Terrorism Court. In the majority
judgment, this question has been examined and without proceeding to determine whether
or not the incident created terror justifying trial by the Judge Anti-Terrorism Court, it has
been considered appropriate not to undertake the exercise in the light of the concurrence
of all the counsel before us not to reopen the issue at this stage, more so when the
objection by the defence to the jurisdiction of the Court was given up during the trial. I
agree that it is too late in the day to reopen the question. I also find myself in agreement
with the findings regarding the eight accused who allegedly were members of the
Panchayat but were neither attributed any active role in its proceedings nor nominated
in .the First Information Report. They were acquitted by the Trial Court and that acquittal
was upheld by the High Court. For the reasons mentioned in Para 18 of the majority
judgment I agree that their acquittal is to be maintained.

7. Adverting to the impugned judgment, the High Court has disbelieved the prosecution
version of the incident except to the extent of Abdul Khaliq, whose culpability was found
of a far lesser degree than that alleged by the prosecution. The Court found a host of
weaknesses in the prosecution case. It held that the delay of 8 days in reporting the
incident to the police was inordinate and not sufficiently explained; that it was due to the
persuasion and undue influence of Maulvi Abdul Razzaq (P.W.11) that the unwilling
complainant and her father, were made to make the report; that Maulvi Abdul Razzaq was
the instigator and the mastermind of the entire plan; that the accused were nominated
after deliberation and consultation with him. On merits of the prosecution evidence, the
Court found contradictions in the statements of the witnesses. It found hard to believe
that the complainant's father and maternal uncle present at the Panchayat of the Mastoies
would make no effort to intervene while the complainant was being raped in the nearby
house. The Court was doubtful if the complainant was .at all raped as it found no
supportive evidence of her testimony, holding that the healed bruises on her buttocks and
back did not furnish any corroboration. On the defence plea that on the evening of the
incident nikah, followed by sexual intercourse, was performed between Abdul Khaliq and
Mukhtar Mai, the learned Judges of the High Court, neither held the nikah proved., nor

Page No. 30 of 40
gave clear finding on the culpability of the said accused, though, convicted him under
section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979.

8. Taking up first the question of delay in lodging the report. Admittedly, it was made
after eight days of the incident. There are no hard and fast rules for assessing the effect on
the prosecution case of delay in reporting the crime to the police. Every case is to be
examined on its own facts and the nature of the crime committed. The Courts are
generally inclined not to attach much importance to delay in reporting rape, considering
that the victim and her family would take time to recover from shock and to be in a
position to decide whether or not report the crime, in view of the social taboos and the
stigma it attaches not only to the victim but the entire family. Mr. Aitzaz Ahsan, learned
counsel for the complainant, provided us with a long list of case law from our own as
well as Indian jurisdiction where delay in reporting rape was not considered fatal to the
prosecution case. Reference may be made to some of them. In Mehboob Ahmad v. The
State (1999 SCMR 1102), the Court observed, "We cannot be unmindful of the prevailing
taboos in our society. Even in modern day advanced societies, for and on account of the
prevalent predilections, many cases of rape go unreported. A victim of rape should not be
penalized on account of ostensible delay in reporting what she has undergone. On the
contrary, kindness, encouragement and understanding are the requirements to approbate a
victim's difficult decision to purge the society of perpetrators of such heinous offences."
Brushing aside the defence argument of the delay in lodging the F.I.R. two months after
the rape, the Federal Shariat Court in Muhammad Umar v. The State (1999 PCr.LJ 699)
declared that "delay in reporting occurrence of such nature to police was not uncommon,
particularly in tribal society where people were normally hesitant to report to police
matters concerning womenfolk and involving their honour." In Nasreen v. Fayyaz Khan
and the State (PLD 1991 SC 412) this Court accepted the explanation furnished by the
prosecutrix, victim of the rape, of delay of several months in lodging the F.I.R. In Azhar
Iqbal v. The State (1997 PCr.LJ 1500), the Federal Shariat Court dealing with the delay in
registration of a rape case observed that it was the natural result of the socio-ethnic
situations coupled with painful mental condition of the victim and her close relatives; that
such delay in rape cases is a universal phenomenon and can be brushed aside unless the
very commission of offence itself is clearly dubious.

9. It follows that it is quite normal that crimes of rape are not reported promptly. The
devastating effects of rape on the victim and her family itself furnish explanation for
delay in its reporting. Delay per se would not cast any reflection on the truthfulness of the
allegations made in the report. There is another compelling reason that discourages a rape
victim to prosecute the accused. She is deterred by the embarrassment and humiliation
she would have to suffer in narrating the incident to strangers, more so, to the police
recording the F.I.R., followed by probes during investigation into matters personal to her.
She would further have to bear the agony of narrating the story in the open court in the
presence of men and face searching and harassing questions from the cross-examiner. It is
said that a rape victim relives the trauma every time she narrates the incident.

10. Furthermore, in our society rape victims, particularly, from rural areas, are not free
agents. To bring the rapist to justice, they invariably require permission and approval of
their men-folk. This is amply demonstrated by the facts of this case. P.W. Maulvi Abdul
Razzaq claims that when he learnt about the incident, he approached the father of the
complainant, Ghulam Fareed. It was only after he managed to persuade the father that the
complainant was taken to lodge the report.

11. The record of the present case however reveals that there were a number of other
factors that prevented the complainant party to make the report to the police. The
complainant party was under a continuous threat from the accused not to disclose the
incident. The threat was real in view of the social disparity between the two parties, as
will be discussed latter. Without the moral support of P.W. Maulvi Abdul Razzaq and the
publicity given to the incident, perhaps, it may never have seen light of the day.

12. Despite such odds, the complainant, an illiterate woman of rural humble background,
mustered tremendous courage to stand up against powerful influential culprits to bring
them to justice. Thus, in my view, the delay of eight days in reporting the incident to the
police by the complainant in the afore-mentioned circumstances will not be fatal to the

Page No. 31 of 40
prosecution case.

13. The High Court, it appears, has placed the entire blame on P.W. Maulvi Abdul Razzaq
for planning to prosecute the accused and in the words of the High Court he was "the
mastermind who got this case registered. He appears to have involved them by
influencing and pressurizing the complainant and her father Ghulam Fareed who were
playing in his hands, according to his own statement." Maulvi Abdul Razzaq was Imam
of a local mosque, who was one of the two arbitrators (salis) selected by the Panchayat of
the Gujjars (complainant party) to negotiate with the representatives of the Panchayat of
the Mastoi Tribe for a settlement of the dispute arising out of the affair between Abdul
Shakoor and Mst. Salma. According to him, when the proposal of the Gujjars, that Abdul
Shakoor be married to Salma and a girl from the Gujjars to a man from Mastoies, was not
accepted by the latter, who insisted upon revenge (badla), he withdrew from the
negotiations. That when he learnt about the rape, he made it public in the congregation of
the Juma prayer and that is how the incident received wide publicity in the national and
international media. Maulvi Abdul Razzaq, being an `Imam' had some social standing and
influence in the society and it was on account of his intervention and moral support that
encouraged the complainant's father to take the accused to task. The witness is not, in any
way, related to the complainant party. It is hard to believe that the complainant, or her
father would, in order to please Maulvi Abdul Razzaq, make out a false case of rape
against the accused and face and endure its serious repercussions. The High Court had
misconstrued the role of this witness, which in my opinion was positive and well
intentioned, rather than mala fide. His civil litigation with Karam Hussain, father-in-law
of the accused Ghulam Fareed would not render him un-credible. Had he been ill
motivated on that account he would have implicated Karam Hussain, or member of his
immediate family, rather than son-in-law. No ill will of this witness against the other
accused has been shown by the defence.

14. In order to examine and appreciate the prosecution evidence in its proper perspective
one has to keep in mind the disparity in the levels of the social status of the complainant
and the accused party and the influence of the latter. The accused belonged to influential
Mastoi Tribe and the complainant to a humble family of Gujjars. The influence of the
Mastoi Tribe was vividly portrayed in a news report published in the Daily Dawn by a
journalist, Nadeem Saeed, who was produced by the defence as D.W.2 in support of the
report (Exh.DK), to prove that the complainant had implicated the wrong Fayyaz as
accused. Whether his reference to the statement of P.W. Abdul Shakoor about the error is
admissible evidence is another issue, his personal observations reported in the news item
titled "POLICE, FEUDALS TRYING TO SAVE CHIEF JUROR", demonstrating the
influence of Faiz Mastoi is admissible. The Correspondent visited the police station
where the accused were detained. He observed that Faiz Mastoi was being treated by the
officer in charge of the police station as a special guest and was trying to help out the
accused by giving a different twist to the incident. The record further shows that due to
influence of the Mastoi Tribe, without the intervention of its head (sarbara) Faiz Mastoi,
the police did not dare release of Abdul Shakoor when he was detained by Abdul Khaliq
in his house. It was on account of this clout that the police had refused to register the case
of sodomy committed upon Abdul Shakoor. The very act of bringing the complainant to
the Panchayat of the Mastoies to seek forgiveness for her brother but instead subjected to
rape while her near and dear ones stood by helpless, demonstrates the power of Mastoies
as against the complainant. For further evidence of the Mastoies arrogance, aggression
and highhandedness, one may refer to the statement of some of the witnesses. Altaf
Hussain (P. W.12), who was one of the persons present at the Panchayat of the Mastoies,
disclosed that after the complainant was raped the accused threatened the complainant
party to teach them a lesson in case the matter was disclosed (Hashar Kar dengey). Sabir
Hussain, P.W., the maternal uncle of the complainant, who had taken her to the Panchayat
to seek forgiveness, when questioned in cross-examination about his failure to intervene
to save the complainant from being raped, responded "I saved my life not respect"
Mukhtar Mai, responding to a question volunteered', "after the rape we were not in our
senses and everybody was weeping". Sabir Hussain and Mukhtar Mai, during their
testimonies had referred to the threats held out to the complainant party after the incident
to prevent them from reporting to the police. The accused party not only raped the
complainant but sodomized her brother, who out of fear and shame desisted from
reporting both the incidents.

Page No. 32 of 40
15. The episode culminating into the complainant's rape began with the detention of
Abdul Shakoor by Abdul Khaliq, brother of Mst. Salma, in his house on the allegation
that he was having an affair with his sister. The members of Abdul Shakoor's family made
abortive efforts to get him released. Even the police initially failed and it was only when
Faiz Mastoi gave clearance, Abdul Shakoor was handed over to the police, who took him
to the police station. Abdul Shakoor's family realizing that he would not be freed by the
police without the approval of the Mastoies, started making efforts to have the matter
settled through compromise. On the other hand, the Mastoies were reluctant to any term
of compromise without vindicating the honour of Mst. Salma's family and for that matter,
the Mastoi Tribe as a whole. To resolve the issue two separate Panchayats/Akaths were
held, one by the Mastoies, comprising 200/250 members and the other by the Gujjars,
each proposing its own terms of settlement. These were not the customary Panchayats
convened to resolve disputes between two parties; each Panchayat was convened to
decide its own terms for settlement. For the Gujjars, Maulvi Abdul Razzaq and one,
Mansoor Jatoi, neither of them Gujjars, were nominated to negotiate with the Mastoies,
who were represented by Faiz Mastoi, Ramzan Pachar and Ghulam Fareed. The Gujjars
proposed that the hand of Mst. Salma be given to Abdul Shakoor and in return the
complainant be wedded to Abdul Khaliq. The Mastoies rejected this proposal and
demanded that a compromise could not be reached without badla (revenge), demanding
that a woman of the complainant's family be allowed to be subjected to zina. This
demand was not acceptable to the Gujjars and as the negotiations failed they dispersed
and their salis withdrew. Later on, Ramzan Pachar and Ghulam Fareed came with a fresh
proposal from Faiz Mastoi that the complainant family would be forgiven and the matter
compromised if Mukhtar Mai would seek pardon from the Mastoies. It was in these
circumstances that Sabir Hussain P.W.13, maternal uncle of the complainant,
accompanied by Haji Altaf P.W., Ghulam Nabi and Ghulam Fareed, father of the
complainant took Mukhtar Mai to the Mastoi Panchayat. However, according to the
prosecution, instead of being forgiven, she was subjected to multiple rape.

16. There are two phases of the proceedings of the Panchayats and the negotiations
between them through their representatives. The first is up to the stage of failure of
negotiations and the second is the happenings thereafter. To prove the first, the
prosecution has produced P.W. Maulvi Abdul Razzaq and P.W. Sabir Hussain; the former
being one of the salis and the latter maternal uncle of the complainant, was part of the
Gujjars akath assembled in the mosque. Besides the complainant, Sabir Hussain and Haji
Altaf Hussain are witnesses of the second phase. The prosecution did not produce
Ghulam Fareed, father of the complainant and Ghulam Nabi, who were also stated to be
present when Mukhtar Mai was taken to the Panchayat. The prosecution is not obliged to
produce all its witnesses, so long as it can bring on record sufficient credible evidence to
sustain conviction of the accused on trial. In any event non-appearance of the
complainant's father in the witness box is understandable. He was a timid and broken
man who was neither able to prevent the rape of his daughter nor had the courage and
nerves to go to the police. Perhaps, he was in no position to further endure the pain and
embarrassment that he would suffer narrating the episode in open Court. The High Court,
while disbelieving the prosecution case as a whole, found weaknesses in the testimony of
these witnesses. However, due weight was not given to the testimony of the complainant,
the victim of the crime and mainstay of the prosecution case. Her testimony provided
foundation, while, the testimony of other witnesses furnished corroboration.

17. Both the Courts, the Trial as well as the High Court found that the Panchayats were
held. Though, the High Court was suspicious of Maulvi Abdul Razzaq's role in getting
the case registered, his role in the negotiations between the two tribes was not seriously
doubted. According to his testimony, he was associated by the Gujjars from the stage
Abdul Shakoor was taken to the police station. Being Imam of the local mosque, his
involvement by the Gujjars was quite natural. The Gujjars were of a lower social status
and at the receiving end. They needed the intervention and support of men of some
influence as they were not in a position to have the issue settled on their own. P.W. Sabir
Hussain, being maternal uncle of Abdul Shakoor, no exception can be taken to his
presence in the Gujjars' akath and, thus, was well aware of all the negotiations that were
going on. In fact, he is the witness of both the phases. Even the defence in their
confirmatory suggestions to the prosecution witnesses, conceded the holding of

Page No. 33 of 40
Panchayats. For example, P.W. Maulvi Abdul Razzaq, in cross-examination; admitted
correct that Haji Altaf Hussain and Ghulam Nabi were present in the akath. It was argued
by the defence counsel, Malik Muhammad Saleem, that suggestion by the defence to a
prosecution witness in cross-examination, does not amount to admission on behalf of the
accused. Mr. Aitzaz Ahsan, however, referred to a number of judgments including two of
this Court Shehzad v. The State (2002 SCMR 1009) and Muhammad Tashfeen v. The
State (2006 SCMR 577)" in support of his contention that such suggestion can be
considered by the Courts. In the present case, suggestions by the defence to the witnesses
have assumed greater importance as all the accused in their statements recorded under
section 342, Cr.P.C., instead of taking any specific defence plea, stated "their defence is
the same as taken in the cross-examination by the counsel". Thus it stands proved that
each camp held its own Panchayat/Akath, and entered into negotiations for a settlement,
that eventually failed.

18. About the second phase of which the complainant was a witness, she had alleged that
when she was taken to the Mastoies Panchayat, she was handed over to Abdul Khaliq
accused. That inspite her hue and cry for help, no one came forward to her rescue. Abdul
Khaliq armed with a pistol caught her by the arm, Fayyaz, Ghulam Fareed and Allah
Ditta pushed and dragged her into the room of the house of Abdul Khaliq where the four
subjected her to rape.

19. The roles of Faiza Mastoi, Ramzan Pachar and allegations made against each of the
four accused of rape will be discussed later. The primary question is whether the
complainant was subjected to rape. The fundamental and crucial testimony in any rape
case is always that of the victim. Being victim of the crime she is the most informed and
credible witness of the incident. The High Court found that the testimony of the
complainant lacked corroboration. On the question as to whether in the absence of
corroboration, conviction on a charge of rape can be based on the sole testimony of the
victim, Mr. Aitzaz Ahsan cited a number of judgments where the Courts in Pakistan as
well as in India have held that no corroboration was required. Reference may be made to
"Muhammad Abbas v. The State (PLD 2003 SC 863), Rana Shahbaz Ahmad v. The State
(2002 SCMR 303, 306), Shehzad v. The State (2002 SCMR 1009), Mehboob Ahmad v.
The State (1999 SCMR 1102, 1103), Haji Ahmad v. The State (1975 SCMR 69). In the
last two cases it was held that absence of marks of violation on 'the body of the
prosecutrix does not imply non-commission of rape. Ghulam Sarwar v. The state (PLD
1984 SC 218 [SAB]) and Bhupinder Sharma v. Himachal Pradesh (AIR 2003 SC 4684)".
In Bhupinder Sharma's (ibid) case it was observed "when Indian woman in tradition
bound society makes a complaint of rape there is an inbuilt assurance that the charge is
genuine. To insist on corroboration is to add insult to injury".

20. In most of the reported cases where conviction was based on the sole testimony of the
victim, there was absence of corroboration. That is not so in the present case. When
medically examined eight days after the incident, the doctor found healed bruises on the
complainant's buttocks and back. The locale of the bruises indicates physical struggle by
the complainant and there healed condition coincide roughly with the timing of the
incident. Unlike most other cases of reported rape, the present one was not committed in
complete privacy and not for the satisfaction of the lust of the rapist. In the presence and
within the view of the members of Panchayat and the witnesses the complainant was
forcibly taken away by the accused to the house of Abdul Khaliq and freed with clothes
in her hand and body half naked.

21. The complainant's allegation of rape receives some support from the defence plea,
admitting sexual intercourse between Abdul Khaliq and the complainant, albeit after
performance of nikah. The defence in this respect made positive suggestion to P.W.
Maulvi Abdul Razzaq and the complainant that nikah between the two was performed by
the former. The suggestion was rejected by both the witnesses. The defence also produced
Ghulam Hussain (D.W.5) in support of the plea. This witness is father of one of the
accused, Jamil. His testimony was not believed by either of the Courts. No other witness
was produced to prove nikah. Maulvi Abdul Razzaq was conveniently introduced by the
defence as nikah khawn in order to preempt any objection by the prosecution for not
producing nikah khawn in support of the nikah. Had the nikah been performed between
the two and Abdul Khaliq and the complainant pronounced husband and wife it does not

Page No. 34 of 40
stand to reason that the complainant would straightway leave the husband's house for her
own, for it is nobody's case that they ever lived together. Whereas the Trial Court did not
accept the plea of nikah, the High Court neither held the same proved, nor ruled out the
possibility of its truth. With respect, the burden was on the accused to prove the nikah,
though a lighter one. Once the burden was not discharged the plea had to be excluded
from consideration for all purposes. Perhaps it was on account of some confusion in the
mind of the learned Judges on the issue that led them to give inconsistent findings on the
plea as the following passage of the impugned judgment would show:

"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, therefore, on 27-6-2002 the marriage of Salma sister of Abdul
Khaliq appellant was performed 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 P.Ws. that he was active to take revenge for
the disrespect of his sister Salma.

22. If the plea of nikah is accepted, the complainant would still be the lawful wedded
wife of Abdul Khaliq, as it is not the case of the defence that the complainant was
divorced. One wonders why would she bring a charge of rape against her husband even if
the accused party had backed out of their commitment of marrying Mst. Salma with
Abdul Shakoor.

23. Mr. Malik Muhammad Saleem, learned counsel for the defence referred to a number
of aspects of the prosecution case in order to persuade us that the entire story set up was
concocted. The learned counsel argued that it is unbelievable that P.W. Sabir Hussain,
maternal uncle of the complainant would take her to the Mastoies Panchayat who had
already vowed to take badla (revenge). This argument fails to take note that when the
Mastoies rejected the Gujjars' proposal for settlement, the negotiations failed and the
Gujjars aktah dispersed. It was thereafter that Muhammad Ramzan Pachar and Ghulam
Fareed approached the complainant's family with a new proposal from the Mastoies that
led the complainant party to seek pardon from the Mastoies. The complainant's family,
hard pressed for the release of Abdul Shakoor from the police custody, took their chance
and presented the complainant to the Panchayat. Reference may be made to the
statements of P.Ws. Altaf Hussain, Sabir Hussain and the complainant. They were
unaware of the actual decision and design of the Panchayat. The dispersal of the Gujjars'
Akath also furnishes answer to the defence argument as to why the Gujjars did not
intervene to save the complainant. Additionally the Gujjars' Akath, even otherwise was
weak, comprised of 15/20 members as against the 200/250 members of the powerful
Mastoi Tribe. The learned defence counsel had further argued that it was not possible that
rape would be committed in the house of Abdul Khaliq when the complainant admitted
that the accused Allah Ditta lived in that house along with his wife and children. This
argument fails in the absence of any evidence, or even suggestion by the defence, that
Allah Ditta's family was present in the house at the time of the occurrence. The learned
defence counsel next contended that had the complainant been subjected to rape,
members of her family would never have accompanied Faiza Mastoi and Ramzan Pachar
to the police station to obtain the release of Abdul Shakoor. This argument loses sight of
the fact that the negotiations between the two parties were held with the object of the
Gujjars to get Abdul Shakoor's release. The Mastoies forced their own terms on the
Gujjars. The Mastoies were thereafter no more desirous of Abdul Shakoor's detention.
For the release, the Gujjars were compelled to take Faiza Mastoie to the police station,

Page No. 35 of 40
without whose permission, as noted above, the police would not release Abdul Shakoor. It
made sense for the complainant's family to get Abdul shakoor released even with the help
of their tormentors when they had already suffered in the process.

24. There is another aspect of the case. Upon receipt of certain complaints regarding
negligence and corruption by the police during investigation of the case, the Deputy
Inspector General of Police, Dera Ghazi Khan Range ordered a fact finding inquiry to be
conducted by. Mr. Mirza Muhammad Abbas, Superintendent of Police, Crimes Range.
During this inquiry certain statements were recorded, apparently also of all the
prosecution witnesses. After the prosecution. closed its evidence the defence examined
the said Mirza Muhammad Abbas as D.W.6 and on the basis of his statement the
prosecution witnesses, Mukhtar Mai and others were recalled and subjected to another
round of cross-examination in order to confront them with their statements recorded in
the said inquiry. For the purpose of highlighting the contradictions in the prosecution
evidence, the High Court had extensively referred to these statements. Mr. Ch. Aitzaz
Ehsan, objected to reference to such statements, as according to him they carried the
signatures of the witnesses and thus could not be treated as statements under section 161
and therefore, the witnesses could not have been confronted with them under section 162,
Cr.P.C. It was argued that admittedly these statements were not part of the investigation
but recorded during the fact finding inquiry into the allegation of corruption and
negligence of the local police investigating the case. On the factual aspect, the learned
counsel submitted that the statements of the main prosecution witnesses were not even
proved, in that Mirza Muhammad Abbas (D.W.6) admitted that the statements of Mukhtar
Mai, Maulvi Abdul Razzaq and Ghulam Fareed were not recorded by Inspector Riaz in
his presence; that Inspector Riaz was not produced to prove the statements. Responding
to this contention Malik Muhammad Saleem, learned ASC, argued that the witness gave
concessions to the prosecution due to pressures of the Government and the Media on
those involved with the investigation and that is why the Court declared the witness
hostile. That in any case, photo copies of the statements recorded by him were brought on
record. He pointed out that the witness admitted that the statement of P.W. Sabir Hussain
was recorded in his presence.

25. Leaving aside the controversy about the status of the statements recorded during the
fact finding inquiry, those of Mukhtar Mai, Maulvi Abdul Razzaq and Ghulam Fareed do
not stand proved. They had denied making them. Inspector Riaz, who is alleged to have
recorded the statements, was not produced to prove the same. As for the statement of P.W.
Sabir Hussain (Exh.DR/2), D.W.6, admits that it was recorded in his presence. Even if the
same could be legally used for confronting the witness I found that the statement supports
the prosecution case on all material aspects and that the cross-examiner confronting him
with such statement was unable to elicit any material contradiction with his previous
statement in Court or the prosecution case as a whole. The High Court had even taken
into account the statement of Ghulam Fareed, father of the complainant, made during the
said fact finding inquiry, even though he was not produced as a prosecution witness. The
previous statement made by a person can only be referred to when he testifies in court.

26. There is some controversy between prosecution and the defence about the cause of
detention of Abdul Shakoor by Abdul Khaliq in his house leading to the holding of the
two Panchayats. The prosecution alleges that Abdul Shakoor was sodomised by Punoo,
another brother of Mst. Salma, and his two accomplices, in the sugarcane field of the
village and to save themselves from criminal prosecution, locked up him on the false
allegation of intimacy with Mst. Salma. The defence version, on the other hand, as
gathered from the trend of cross examination and the statement of their witness, Ghulam
Hussain D.W.5, is that Abdul Shakoor was detained after he was caught with Mst. Salma
in the sugarcane field. There is no direct evidence of any sexual intercourse between the
two except for the verbal assertion by D.W.S. Whether or not such intimacy did exist is
not material here so long as the accused party believed in it, which they did. The sodomy
on Abdul Shakoor has been denied by the defence but the same stands proved not only by
the statement of Dr. Fazal Hussain, P. W.17, who upon his medical examination on 13-7-
2002, confirmed that he was subjected to sodomy, but the matter has now been judicially
determined as all the three accused were convicted under section 377, P.P.C. and their
appeal was dismissed by the Federal Shariat Court. Copy of the judgment of the Shariat
Court was produced by the learned counsel for the complainant.

Page No. 36 of 40
27. The prosecution version does not appeal to reason. In any society, much less rural or
tribal, would brothers falsely scandalize their unmarried sister to save their own skin from
a criminal charge of sodomy. The facts of the present case show that the accused party
did not need any protection as according to the testimony of Abdul Shakoor, because of
fear and shame he had refrained from reporting the sodomy to the police. Considering the
complainant being a weaker party the accused did not had to worry about any criminal
charge of sodomy. As stated earlier, they almost managed to keep the complainant family
silent about the rape.

28. Though the sodomy on Abdul Shakoor stands proved but the reason advanced by the
prosecution for his detention by Abdul Khaliq is found preposterous. Though it may
sound speculative, it seems that, Abdul Shakoor and Mst. Salma were found together in
the sugarcane field; taking this as an insult, her brother, Punoo, and his two accomplices
first sodomized Abdul Shakoor and thereafter locked him up, leading to the present
incident. Having said that, the incident of sodomy only provides a background to the
present occurrence but does not have any substantial bearing on the merits of the case.

29. The second phase of the episode, in the Mastoies Panchayat, is proved by the
testimony of the complainant, P.W. Sabir Hussain and Haji Altaf Hussain. The
complainant had successfully withstood the test long cross-examination, twice, spreading
over sixteen pages. At one point, she broke down, which was noted by the Trial Court.
Her testimony supported by the healed bruises on her body was sufficient to prove the
charge of rape. Nevertheless her testimony receives further corroboration from the
statement of her maternal uncle P.W. Sabir Hussain, whose presence in both the
panchayats cannot be doubted. As earlier observed, the defence had failed to make any
dent in his testimony. The High Court, with respect, was not right in discarding his
testimony on the ground that he was not witness to the actual rape. He had taken the
complainant to the Mastoies Panchayat and had witnessed her being dragged to the house
and then saw her half naked after the rape. It is a rare phenomena to find a eye-witness of
the very act of rape. As far as the presence of P.W. Altaf Hussain is concerned, the High
Court has disbelieved his testimony on the ground that he being the brother of Maulvi
Abdul Razzaq, labelled as `mastermind' of the case, was interested in the prosecution of
the accused. I have already disagreed with the High Court's observations regarding P.W.
Maulvi Abdul Razzaq, but even if the testimony of Altaf Hussain is excluded, the
testimonies of the complainant and P.W. Sabir Hussain, together with the circumstances
of the case, sufficiently prove the prosecution case. The contradictions of the prosecution
case mentioned in the impugned judgment and also highlighted by the learned defence
counsel are not so significant as to render the entire prosecution case false. Some of the
contradictions between statements of the prosecution witnesses about minute details of
the various stages of the episode, from the detention of Abdul Shakoor -right up to the
commission of rape, spreading over several hours can be attributed to the hectic activities
and tension between the two groups, particularly in the complainant's camp. Even
otherwise the contradictions taken into consideration by the High Court were mainly with
reference to the statements made by the witnesses to the fact finding enquiry, which were
never proved.

30. In the light of the foregoing appraisal of the prosecution. evidence, it stands
established that Abdul Shakoor was detained by Abdul Khaliq, accused, on the accusation
that he had developed an illicit liaison with his sister and that eventually he was taken
into custody by the police; that two Panchayats, one of the Mastoies and the other of the
Gujjars, were separately held; that when the negotiations between them failed for the
release of Abdul Shakoor, Mukhtar Mai was taken to the Mastoies' Panchayat for seeking
pardon but was instead subjected to Zina-bil-Jabr. To this extent, the prosecution has
succeeded in proving its case.

31. The next question to be determined is whether the rape was committed with sanction
of the Mastoies Panchayat. The High Court had answered this question in negative on the
ground that there was no direct evidence that the Panchayat had taken decision to take
revenge by zina for zina. No one from the Panchayat would have been ready to come
forward and testify for the prosecution. Its stand can only be gathered from the
circumstances. The two prosecution witnesses, Maulvi Abdul Razzaq and Sabir Hussain,

Page No. 37 of 40
testified that the Gujjars' proposal of swap marriages between members of the two groups
was not accepted by the Mastoies Panchayat, who insisted upon revenge. This assertion is
corroborated by the Panchayat's conduct when the complainant was brought before it. Its
sanction was evident when its 200/250 members remained unmoved when the
complainant begged for help while she was being dragged by Abdul Khaliq and others to
the house. The presence of such a large number of members, of Panchayat also scared the
persons accompanying the complainant from making any attempt to save her. The
Panchayat thus approved and facilitated the commission of Zina-bil-Jabr.

32. I have already agreed with the majority view that eight accused members of the
Panchayat. not named in the F.I.R., were entitled to acquittal. The role of Faiz Mastoi,
Ramzan Pachar and Ghulam Fareed, however, stands on a different footing. They were
nominated in the F.I.R. and also by the witnesses in their testimony as representative of
the Mastoies and taking active part in the negotiations. The complainant had stated that
when she was brought to the Panchayat, Faiz Mastoi addressed Abdul Khaliq, accused,
that as the complainant had been brought her family be forgiven. She however added that
this was said in a Siasi/Dunyavi (politically/worldly) manner. The learned defence
counsel, taking advantage of the statement, contended that the same shall be taken on its
face value that Faiz Mastoi did not approve of the revenge and was rather inclined to
forgive the complainant party. The statement has to be seen in its context. Faiz Mastoi
was the sarbrah (head) of the Mastoie Tribe. In that capacity he headed the Panchayat
deciding the terms of settlement. His statement of forgiveness may have been his
personal view but he felt bound by the decision of the Panchayat and allowed its
implementation when despite being in a position of influence did not, intervene when
Abdul Khaliq took the complainant to his house. The other two, Ramzan Pachar and
Ghulam Fareed, actively participated in the Panchayat's proceedings and represented it.
According to Maulvi Abdul Razzaq and Sabir Hussain these two had out rightly rejected
the Gujjars terms for settlement and insisted upon Zina for Zina. Ghulam Fareed is
additionally charged for participating in gang rape. His that role would be discussed later.
Faiz Mastoi, Ramzan Pachar and Ghulam Fareed, thus facilitated, aided and abetted the
commission of Zina-bil-Jabr.

33. The complainant had charged four accused for gang rape; Abdul Khaliq, his brother,
Allah Ditta, Faiz Muhammad and Ghulam Fareed. All the four were convicted by the
Trial Court under Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance,
1979 and each of them sentenced to death. For the reasons afore-stated, rape by Abdul
Khaliq stands proved beyond shadow of doubt. He was the main figure in the entire
episode, playing the lead role from locking up of Abdul Shakoor to dragging the
complainant to his house. As regards Fayyaz accused, undisputedly a resident of Rampur,
and not a mastoi, the defence case has been that he was mistaken for another Muhammad
Fayyaz, resident of Mirwali, a mastoi and cousin of Abdul Khaliq. To prove the error, the
defence produced Nadeem Saeed, D.W.2 of the Daily Dawn, whose testimony has been
discussed earlier in a different context. He had quoted Hazoor Baksh, brother of the
complainant, that the police got hold of the wrong Fayyaz. This may amount to hearsay
evidence but similar complaints about the error were made to the Governor as well as
other police officer. The question of identity of Muhammad Fayyaz has been discussed in
the majority judgment and on a charge of serious offence of gang rape, I would agree
with the findings that he would be entitled to the benefit of doubt on the ground of
mistaken identity. This leaves us with Allah Ditta and Ghulam Fareed. The complainant
was subjected to rape in a room in the house of Abdul Khaliq at around mid night. The
prosecution evidence is completely silent about the source of light in the room. The site
plan carries a note by the Investigating Officer that he was informed that it was a moon lit
night, thereby tacitly confirming the absence of electric light in the room. The
complainant had charged four accused for the rape. The only sentence for gang rape
under section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 is
death. The complainant's allegation of being gang raped may not be false but in such a
situation where one of the accused, Fayyaz, is being given benefit of doubt and acquitted
of the charge of rape, and there was no light in the room where the incident took place, it
may be unsafe to convict the other two accused of offence under section 10(4) of Offence
of Zina (Enforcement of Hadood) Ordinance, 1979. Having said that, Ghulam Fareed and
Allah Ditta were the ones who had physically helped. Abdul Khaliq in forcibly taking the
complainant to the room. Ghulam Fareed had already been found guilty for facilitating

Page No. 38 of 40
and abetting the commission of rape. Allah Ditta is held similarly guilty.

34. The learned defence counsel opposed the appeals against acquittal on the legal plane
that a verdict of acquittal is not liable to be converted into that of conviction unless the
appellants (complainant and the State) could show that the judgment of acquittal suffers
from some material irregularities or has resulted in grave miscarriage of justice. He
contended that all the points now being taken up by the prosecution were examined and
adjudicated upon by the High Court. That though the High Court had drawn correct
conclusions from the evidence, but such findings cannot be reversed even if this Court
comes to different conclusions on the same evidence. He placed relied upon Relied upon,
Ghulam Sikandar v Mamaraz Khan (PLD 1985 SC 11), Ch. Aitzaz Ahsan, on the other
hand, referred to certain aspects of the case and the impugned judgment, which according
to him, warrants interference by this Court. With the help of case law, he argued that the
judgment of acquittal based on misapplication of law, conclusion drawn by taking into
consideration inadmissible evidence the reversal of the findings of acquittal. In support,
he cited "Barkat Ali v. Shaukat Ali (2004 SCMR 249), Amal Shirin v. The State (PLD
2004 SC 371) and Muhammad Ashraf v. Tahir (2005 SCMR 383)". In the latter case, a
full bench of this Court convicted the accused whose acquittal by the Trial Court was
upheld by the High Court, after the entire evidence was comprehensively reappraised.

35. The following errors pointed out by the learned counsel for the complainant, in my
view, call for interference with the impugned judgment. The High Court, as observed
above, erred in holding that the delay in lodging of F.I.R. is fatal to the prosecution case;
that the testimony of a rape victim requires corroboration. The Court had overlooked that
there was corroboration of the complainant's testimony. The Court failed to give due
attention and weight to the testimony of the victim of the rape and its findings were
considerably influenced by its erroneous view about the role of P.W. Maulvi Abdul
Razzaq. The High Court was not entitled to use, and that too extensively, for the purpose
of highlighting inconsistencies in the prosecution case, the statements recorded by Mirza
Muhammad Abbas (P.W.6), during the facts finding inquiry, more so, treating such a
statement of Ghulam Fareed, father of the complainant, as substantive evidence without
his appearance in the witness box. The High Court had failed to give any clear finding on
the culpability of Abdul Khaliq.

36. For the foregoing reasons Criminal Appeal No.171 of 2005, filed by Abdul Khaliq, is
dismissed, Criminal Appeals Nos. 163 to 166 of 2005, filed by the State and 167 to 170
of 2005, filed by Mst. Mukhtar Mai are partially allowed. The impugned judgment to the
extent of acquittal of Allah Ditta, Ghulam Fareed, Faiz Mastoi and Muhammad Ramzan
Pachar, is set aside and they are convicted under section 10(3) of Offence of Zina
(Enforcement of Hadood) Ordinance, 1979 read with section 19 of the Ordinance and
Section 109, P.P.C. for abetment of Zina-bil-Jabr and under section 7(c) of the Anti-
Terrorism Act, 1997 and on each count sentenced to imprisonment for ten years. The
sentences shall run concurrently.

(Sd.)
Nasir-ul-Mulk, J

ORDER OF THE COURT

In view of the majority decision, all the noted appeals are hereby dismissed. The suo
mote action initiated by this Court vide order dated 14-3-2005 in the matter is also
discharged. Therefore, all those who were arrested pursuant to the order of this. Court
dated 28-6-2005 if not required in any other case be released forthwith. Abdul Khaliq,
however shall be released after serving his sentence as awarded to him by the learned
High Court, the benefit of section 382-B Criminal Procedure Code extended to him by
that Court is also maintained.

(Sd.)
Mian Shakiullah Jan, J

(Sd.)
Nasir-ul-Mulk, J

Page No. 39 of 40
 (Sd.)
Mian Saqib Nisar, J

M.A.K./S-21/SC Appeals dismissed.

Page No. 40 of 40
2 0 1 0 S C M R 55

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat
Hussain Jafferi, JJ

MAJEED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.84 of 2006, decided on 1st October, 2009.

(Against judgment, dated 31-5-2004 of the High Court of Balochistan, Quetta passed in
Criminal Appeal No.112 of 2000).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-Amd---Appraisal of evidence---Dying declaration made by the

deceased immediately after the incident had eliminated the possibility of any influence by
the witnesses, whereby the accused was made responsible for causing the injuries to hint---
Dying declaration made even before a private person, if free from influence, would become
substantive piece of evidence after examination of the said person and would require no-
corroboration and could be made basis of conviction---Accused in his judicial confession had
specifically admitted to have caused fire-arm injuries to the deceased, which was
corroborated by the dying declaration---Delay of twelve days in recording the confession
by itself was not sufficient to discard the same---Time of half an hour given to accused by
Magistrate for reflection was sufficient, which had not caused any prejudice to the
accused---Even otherwise, any lapse by Magistrate in recording confession could not
always be treated as fatal to its evidentiary value, when the Court was satisfied that the
lapse had not in any way adversely affected the voluntary or truthful nature of the
confession---Assessment of evidence by the Courts below did not suffer from any
infirmity---Appeal was dismissed in circumstances.

Farmanullah v. Qadeem Khan 2001 SCMR 1474; Nabi Bakhsh v. State 1999 SCMR
1972; Muhammad Yaqoob v. State 1992 SCMR 1983; Gul Jamal v. State 1980 SCMR
654; Naseem Akhtar v. State 1999 SCMR 1744 and Gul Muhammad v. The State 1991
SCMR 942 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 46(1)---Dying declaration eligible for conviction--Principles---No specified forum

for making dying declaration is required and it can be 'made before a private person; dying
declaration is not legally required either to be read over to or to be signed by its maker;'
dying declaration' should be influence free; . in order to prove dying declaration the person
by whom it was recorded should be examined; dying declaration becomes substantive
evidence when it is proved to have been made by the deceased; corroboration of a dying,
declaration is not a rule of law, but a requirement of prudence and such declaration when
proved by cogent evidence can be made a base for conviction.

Farmanullah v. Qadeem Khan 2001 SCMR 1474 ref.

(c) Criminal Procedure Code (V of 1898)---

----S. 164---Judicial confession---Delay in recording confession---Effect---Delay in

recording the confessional statement of an accused by itself is not sufficient to adversely
affect its, validity---No hard and fast rule can certainly be laid down about the period for
recording such confession during investigation.

Nabi Bakhsh v. State 1999 SCMR 1972 and Muhammad Yaqoob v. State 1992 SCMR

Page No. 1 of 4
1983 ref.

(d) Criminal Procedure Code (V of 1898)---

----S. 164---Power to record confession---Lapse by Magistrate-Effect---Any lapse on the

part of Magistrate in recording confession cannot always be treated as fatal to the
evidentiary value of confession, if Court is satisfied that the said lapse has not in any way
adversely affected the voluntariness or truthfulness of the confession.

Naseem Akhtar v. State 1999 SCMR 1744 and Muhammad Yaqoob v. State 1992 SCMR
1983 ref.

(e) Criminal Procedure Code (V of 1898)---

----S. 164---Judicial confession, when sufficient for conviction---Voluntary and true

recorded confession requires no corroboration and is sufficient for conviction, but as a rule
of procedure, Court is required to seek corroboration of the same on material particulars.

Gul Muhammad v. The State 1991 SCMR 942 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for the State.

Date of hearing: 1st October, 2009.

JUDGMENT

RAHMAT HUSSAIN JAFFERI, J.---Present appeal, by leave of the Court, is directed

against the judgment dated 31-5-2004, passed by a learned Division Bench of the High
Court of Balochistan, Quetta by which appeal of the appellant was dismissed,
maintaining the conviction for offence punishable under section 302(b), P.P.C.' and
sentence of imprisonment for life with benefit of section 382-B, Cr.P.C. awarded by the
Special Judge S.T.A., Turbat.

2. It is the case of the prosecution that on 7-12-1998 Mir Shandad and his son Mujeeb-ur-
Rehman were coming to their house on a motorcycle from Dasht Khuddan. When they
reached at a place known as Maksar their motorcycle was intercepted by the appellant
and co-accused who were armed with kalashnikovs. They fired upon Mir Shandad and
Mujeeb-ur-Rehman due to which Mir Shandad died at the spot while Mujeeb-ur-Rehman
became injured. On the fire-arm reports P.W.3 Abdul Rehman, P.W.4 Muhammad Amin
and P.W.7 another Abdul Rehman reached there. The deceased Mujeeb-ur-Rehman
disclosed that the appellant and Ismail caused them injuries. The deceased Mujeeb-ur-
Rehman succumbed to the injuries. The complainant Muhammad Anwar also arrived
there and lodged the report on 7-30 p.m.

3. Motive of the incident was that on the day of occurrence Mir Shandad apprehended a
proclaimed offender Sawali and handed him over to the Levies authorities of Tehsil Dasht
Khuddan.

4. The police investigated the case and collected the evidence of dying declaration of
deceased Mujeeb-ur-Rehman in presence of P.Ws.3, 4 and 7. After the arrest, the
appellant was produced before a Magistrate where his judicial confession was recorded.
After completing the investigation the appellant was challaned in the Court where he was
tried, convicted and sentenced as mentioned above.

5. We have heard learned counsel for the appellant as well as the State. Learned counsel
for the appellant stated that dying declaration is doubtful and that the judicial confession
was not recorded in accordance with law, therefore, the case of the prosecution has not
been proved. The learned State Counsel has stated that the prosecution has proved the
dying declaration and confession, therefore, he supported the impugned judgment.

Page No. 2 of 4
6. We have given consideration to the arguments and have gone through the evidence
available on record with the assistance of learned counsel for the appellant.

7. The evidence of P.Ws.3, 4 and 7 reveals that when they reached on the fire-arm reports
they found the deceased Mir Shandad lying dead while Mujeeb-ur-Rehman was alive but
lying in injured condition who disclosed that the appellant Majeed and Ismail had fired at
them. P.W.7 apart from naming the above two persons also named Naseer and Bashir. All
these three witnesses were cross-examined but nothing came on record to discredit their
evidence. No serious effort was made to challenge their statement on the question of
dying declaration. From the evidence it has been established beyond any shadow of doubt
that deceased Mujeeb-ur-Rehman made dying declaration immediately after the incident,
eliminating the possibility of influence etc. before the witnesses making the appellant
responsible as one of the accused for causing them injuries. It is a well-settled principle
of law that if dying declaration is made even before a private person, is free from
influence and the persons before whom such dying declaration was made was examined
then it becomes substantive piece of evidence and for that no corroboration is required
and such declaration can be made basis of conviction. This Court gave following guiding
principles for relying upon the dying declaration in the case of Farmanullah v. Qadeem
Khan 2001 SCMR 1474.

"(i) There is no specified forum before whom such declaration is required to

made.

(ii) There is no bar that it cannot be made before a private person.

(iii) There is no legal requirement that the declaration must be read over or it
must be signed by its maker.

(iv) It should be influenced free.

(v) In order to prove such declaration the person by whom it was B recorded
should be examined.

(vi) Such declaration becomes substantive evidence when it is proved that it was
made by the deceased.

(vii) Corroboration of a dying declaration is not a rule of law, but requirement of

prudence.

(viii) Such declaration when proved by cogent evidence can be made a base for
conviction."

Thus, the prosecution has proved the dying declaration which by itself is sufficient to
maintain the conviction and sentence.

8. As regards confessional statement, the accused made the confession of committing the
crime by specifically admitting that he had caused fire-arm injuries to the deceased. This
statement is supported and corroborated by the dying declaration. Both the Courts below
have relied upon the above pieces of evidence and we do not find any reason to interfere
with their findings.

9. Learned counsel for the appellant has criticized the confession on the grounds that
there was a delay of 12 days in recording the confession; that it was not voluntary and
true and that only half an hour was given to the appellant for reflection.

10. No doubt there was delay of 12 days in recording the confession but this by itself its
not sufficient to discard the same. This Court in the case of Nabi Bakhsh v. State 1999
SCMR 1972 held that delay in recording the confessional statement by itself is not
sufficient to affect its validity. However, no hard and fast rule can certainly be laid down
about the period within which the confessional statement of the accused ought to be
recorded during investigation. Reference is also invited to Muhammad Yaqoob v. State
1992 SCMR 1983.

Page No. 3 of 4
11. We have examined the confessional statement and found that the Magistrate after
performing requirements of law and giving a time of half an hour recorded the same and
he was of the opinion that the confession was voluntary and true. In the case of Gul Jamal
v. State 1980 SCMR 654, it was held that no hard and fast rule as to how much time is to
be allowed to the accused for reflection before confession is recorded. However, period
of time depends on each case. In the present circumstances of the case, we find that the
period given by the Magistrate for reflection purposes to the appellant was sufficient and
it has not cawed any prejudice to the appellant. Even otherwise, any lapse by Magistrate
in recording the confession cannot always be treated as fatal to the evidentiary value of
confession when the Court is satisfied that lapse on the part of the Magistrate is not in
any way adversely affected the voluntariness or truthfulness of the confession. Reference
is invited to Naseem Akhtar v: State 1999 SCMR 1744 and Muhammad Yaqoob v. State
1992 SCMR 1983. We do not find any infirmity in the confessional statement which is
corroborated by the dying declaration. Even otherwise, the recorded confession is
sufficient for conviction if it is voluntary and true and requires no corroboration but as a
rule of procedure the Court is required to seek corroboration of the same on material
particulars. Reference is invited to Gul Muhammad v. The State 1991 SCMR 942. In this
case confession has been fully corroborated by dying declaration.

12. After scrutinizing the evidence, we are of the view that there is ho misreading or non-
reading of the evidence on record. There is no infirmity in the assessment of evidence by
the learned High Court and the trial Court as such no interference is required to the
impugned judgment. Consequently, the appeal fails and conviction and sentence awarded
by the trial Court and affirmed by the learned High Court is maintained. However, we
may point out that both the Courts below did not pass any order as required under section
544-A, Cr.P.C. which was required to have been passed and further they also did not give
any reason for not passing such an order, therefore, we direct the appellant to pay
compensation of Rs.1,00,000 for each deceased to be paid to "their legal heirs or in
default thereof to undergo R.I. for six months.

Resultantly, the appeal stands dismissed.

N.H.Q./M-119/SC Appeal dismissed.

Page No. 4 of 4
2 0 0 9 S C M R 736

[Supreme Court of Pakistan]

Present: Syed Jamshed Ali, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali,
JJ

ALLAH NAWAZ----Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.236 of 2005, decided on 15th September, 2008.

(On appeal from the judgment and order, dated of the Peshawar High Court, D.I. Khan
Bench, dated 23-4-2004 passed in Criminal Appeal No.119 of 2003 and Murder
Reference No.13 of 2003).

(a) Penal Code (XLV of 1860)---

---Ss. 302(b), 302(c), 324 & 337-A00---Appraisal of evidence--Despite the fact that eye-
witnesses knew the accused, he was not named in the F. I . R . , which led to the only
inference that they were not present at the spot---On the inquest reports of the two
deceased prepared by the police immediately after registration of the case, other
prosecution witnesses had identified both the deceased, which also showed absence of the
eye-witness at that time---Identification parade in the circumstances was also of no
consequence--Recovery of pistol or crime-empty or clothes or blood-stained earth did not
connect the accused with the crime---Judicial confession of accused, according to Judicial
Magistrate, had been recorded after fulfilling all the formalities---Mere suggestion of the
defence that the same was involuntary was not enough to throw it away--Accused after
confession had been remanded to judicial custody---Nothing was available on record to
disbelieve the confession, which had to be rejected or accepted as a whole, in which the
accused had claimed that he had fired at both the deceased when they assaulted him---
One deceased was unarmed while other deceased was carrying a "Lathi", as against that,
the accused was equipped with a fire-arm and inflicted injuries to both the deceased at the
chest, vital part of the body---Accused, thus, had exceeded his right of self-defence---
Conviction of accused under S.302(b), P.P.C. was consequently, altered to S.302(c), P.P.C.
and his sentence of death was reduced to 14 years' R.I. on two counts with the direction
to run concurrently---Accused was acquitted of the charges under Ss.324 & 337-A(ii),
P.P.C. as neither he had confessed the same, nor the injured witness had implicated him in
the offence---Appeal was disposed of accordingly.

Khan Muhammad and others v. The State 1999 SCMR 1818 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 164---Penal Code (XLV of 1860), Ss.302(b), 324 & 337-A(ii)-Judicial

confession---Status---Confession of accused is to be rejected or accepted as a whole.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

M. Zaman Bhatti, Advocate Supreme, Court for the State.

Date of hearing: 15th September, 2008.

JUDGMENT

SYED JAMSHED ALI, J.--- This jail appeal is directed against the judgment of the
Peshawar High Court, Circuit Bench, dated 23-4-2004 whereby Criminal Appeal No.119
of 2003 filed by the appellant was dismissed and the death sentence awarded to him was
confirmed. His co-accused namely, Munir Ahmed, was however, acquitted.

Page No. 1 of 3
2. The prosecution case was that on 18-11-2001, Muhammad Amir and Muhammad
Shahzad, brothers, inter se, were selling sugar cane bits (Ganderis) on their cart at Adda
Sheikh Yousaf, when at 13-45 hours two persons came there for purchasing sugar cane
bits, one with beard and the other without it. An altercation ensued on the rate of the
sugar cane bits (Ganderis) on which the man without beard fired at Muhammad Amir and
when Shehzad tried to catch hold of the assailant, the same man fired at him also. Saeed
Anwar, a passerby was also injured by fire of the said assailant. The complainant, Mir
Alam (P.W.10) real brother of Muhammad Amir and Shehzad took them and the injured,
Saeed Anwar, to the District Headquarter Hospital, D.I. Khan, where Muhammad Amir
and Shehzad succumbed to the injuries. Case F.I.R. No.358, dated 18-3-2008 was
accordingly, registered under sections 302/324/34, P.P.C.

3. During investigation of the case, appellant Allah Nawaz and Munir Ahmed made
judicial confessions before a Judicial Magistrate (P.W.6)., A .30 bore pistol was recovered
at the instance of Allah Nawaz, appellant. One .30 bore empty was also recovered. The
two accused were challaned. After the trial, both the accused were convicted under
section 302(b)/34, P.P.C. and sentenced to death on two counts. They were also convicted
under section 324/34, P.P.C. and sentenced to suffer 3 years' R.I. with a fine of Rs.10,000
each. In default of payment to undergo one year's R.I. The appellants were further
convicted under section 337-A(ii)/34, P.P.C. and sentenced to payment of "Arsh" at the
rate of 5% of the "Diyat" of the year 2001. In case of failure to pay Diyat, they would
remain in jail in the same manner as if sentenced to simple imprisonment until the Arsh
was paid. This was vide judgment, dated 8-12-2003 of the learned Additional Sessions
Judge-I, Dera Ismail Khan.

4. Criminal Appeal No.119 of 2003 and Jail Petition No.120 of 2003 were filed by the
appellant Allah Nawaz while Criminal Appeal No.124 of 2003 was filed by the appellant
Munir Ahmed. The learned High Court, vide judgment, dated 23-4-2004, accepted the
appeal of Munir Ahmed while dismissed the appeal of Allah Nawaz and his death
sentence was confirmed.

5. The learned High Court, in the impugned judgment, took the view that the eye-witness
account was consistent, the judicial confessions and identification parade in which the
accused was clearly identified were also relied upon.

6. Leave to appeal was granted vide order, dated 26-7-2005.

7. The learned counsel for the appellant submits that the eye-witnesses were not in fact
present at the spot because despite the fact that both the eye-witnesses knew Allah
Nawaz, he was not named in the F.I.R. for which there was no explanation. Regarding
judicial confessions, the contention of the learned counsel was that it was involuntary and
that the appellant was handed over to the police after recording of his confession which
suggests that it was made under duress. As to the recoveries, he submits that although a
pistol and one empty were recovered but there is no report of the Fire-arm Expert that the
empty matched with the recovered pistol, therefore, the recoveries were totally irrelevant.

8. On the hand, the learned counsel for the State submits that it is a double murder case.
The occurrence took place in broad daylight. The eye-witness account, the identification
parade and the judicial confession proved beyond any doubt the guilt of the appellant
and, therefore the death penalty was rightly awarded to him. He maintained that there was
no reason for real brothers of the deceased to substitute the real culprit. He relied on
Khan Muhammad and others v. The State 1999 SCMR 1818 to contend that judicial
confession alone would, in certain circumstances be sufficient to sustain the conviction.

9. We have heard learned counsel for the parties and have carefully gone through the
record. The eye-witness account was given by the complainant, P. W.10, Mir Alam, P.
W.11, Inayatullah and Saeed Anwar, P.W. 12, a passerby. As for as the last mentioned
eye-witness is concerned he does not implicate any of the three accused and, therefore,
his testimony is of no consequence. As far as P. W.10 is concerned, he admitted in cross-
examination that he knew Allah Nawaz by name even prior to the occurrence. Inayatullah
(P.W. 11) likewise also admitted that he knew Allah Nawaz by name prior to occurrence.

Page No. 2 of 3
Even otherwise, the appellant runs a tea stall at Adda Sheikh Yousaf, Inayatullah, (P.
W.11) runs a filter agency and Mir Alam (P. W.10) resides in village Sheikh Yousaf. The
F.I.R. was lodged in the hospital when P.Ws.10 and 11 had taken the two deceased and
the injured to the hospital but despite the fact that both these witnesses knew appellant
Allah Nawaz, he was not named in the F.I.R. Omission of his name from the F.I.R. leads
us only to the inferences that they were not present at the spot. We have also noticed that
on the inquest reports of the two deceased prepared by the police immediately after
registration of the case, one Muhammad Suleman and Sarfraz identified both the
deceased which also shows absence of P. W.10 at that time. In the circumstances, the
identification parade was also of no consequence. The recovery of pistol or empty or
clothes, or blood-stained earth do not connect the appellant with the crime.

10. Excluding the eye-witness account, the identification parade, the evidence of
recovery, we are left with the judicial confession only. We have carefully gone through it.
The Judicial Magistrate appeared and testified that it was recorded after fulfilling all the
formalities. The mere suggestion of the defence that it was involuntary is not enough to
throw it away. The contention of the learned counsel for the appellant that the appellant
was handed over to the police after the confession is also not correct. We have seen the
judicial order available on the record which shows that the appellant was remanded to the
judicial custody. There is nothing on record to disbelieve the confession. According to his
confession, the appellant claimed that Muhammad Amir deceased, assaulted him with a
Lathi on which he fired at Muhammad Amir while Shahzad also struck him from the
back on which he fired two shots at Shahzad. Now it is settled law that confession is to be
rejected or accepted as a whole. We noticed that while Shahzad was unarmed,
Muhammad Amir, deceased, was statedly carrying Lathi, as against that, the
appellant/accused was equipped with fire-arm and inflicted injuries to both the deceased
at the vital part of the body i.e. the chest. In the circumstances we are of the view that the
appellant exceeded his right of self-defence.

11. In view of the above, we convert his conviction from 302(b) to 302(c) of the P.P.C.
and alter the sentence of death to 14 years' R.I. on two counts. The appellant will also pay
compensation of Rs.1,00,000 to the legal heirs of the deceased, in default he would
undergo simple imprisonment for one year. The sentence of 14 years' R.I. awarded to the
appellant shall run concurrently. He will also be entitled to the benefit of section 382-B,
Cr.P.C. So far as the conviction and sentence under sections 324 and 337-A(ii)/34, P.P.C.
are concerned, since the injured did not implicate the appellant nor it was confessed that
the appellant also caused injury to Saeed Anwar, therefore, he is acquitted of the said
charges.

12. In view of the above this appeal is partly allowed in the above terms.

N.H.Q./A-27/SC Order accordingly.

Page No. 3 of 3
2004 S C M R 477

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Javed Iqbal and Falak Sher, JJ

WILAYAT ALI ---Petitioner

versus

THE STATE and another---Respondents

Criminal Petition No. 128-P of 2003, decided on 31st October, 2003.

(On appeal from the judgment dated 27-5-2003 of Peshawar High Court, Peshawar,
passed in Cr. A. No.433 of 2002).

(a) Penal Code (XLV of 1860)---

----S.302(b)---Constitution of Pakistan (1973), Art.185(3)---Ocular account, of

occurrence was coherent, consistent and creditworthy which was fully supported by
medical evidence, voluntary confession made by accused, recovery of shotgun and his
abscondence --- Non-attachment, of the certificate with the confessional statement had no
adverse effect on the worth and admissibility of the confession being a minor curable
irregularity---Magistrate, who had recorded the confession had satisfied himself about its
voluntariness and also completed the mandatory formalities as envisaged under. Ss. 164
& 364, Cr.P.C.---Conviction could be based on retracted confession subject to availability
of some corroboration which was not a rule of law but considered inevitable by way of
abundant caution and such corroboration was available in the form of recovery,
abscondence, forthright eye account and medical evidence---Conclusion arrived at by the
Courts below being well-based and unexceptionable did not warrant interference ---Leave
to appeal was declined to accused accordingly.

Muhammad Yaqoob v. The State 1992 SCMR 1983, Mokha v. Zulfiqar PLD 1978 SC 10;
Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Umar
Din v. Crown ILR 1921 Lah. 129; State v. Waqar Ahmed 1992 SCMR 950; Nadir
Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and
State v. Minhun PLD 1964 SC 813 ref.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Principles---Any contradiction, improvements

or other factors made by .a witness reflecting adversely on his credibility would not, by
itself, be sufficient to reject his testimony as a whole---Court can rely upon a portion of
the testimony of such witness if it is corroborated by other reliable evidence or
circumstance.

Muhammad Yaqoob v. The State 1992 SCMR 1983, Mokha v. Zulfiqar PLD 1978 SC 10;
Zakir Khan v. The State 1995 SCMR 1793 and Roshan v. The State PLD 1977 SC 557
ref.

(c) Penal Code (XLV of 1860)---

----S:302(b)---Criminal Procedure Code (V of- 1898), S.164--Appreciation of

evidence---Judicial confession---Principles---Confession of accused recorded under S.
164, Cr.P.C. whether retracted or not, must be supported by some connecting evidence as
a rule of caution.

State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Crown 1969 SCMR 442;
Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 ref.

Page No. 1 of 4
Roohul Amin Khan, Advocate Supreme Court and M. Ismail Fehmi, Advocate-on-Record
for Petitioner.

Nemo for Respondents.

Date of hearing: 31st October, 2003.

ORDER

JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment
dated 25-5-2003 passed by learned Division Bench of Peshawar High Court, Peshawar,
whereby the criminal appeal preferred on behalf of petitioner has been dismissed and
judgment dated 6-11-2002 of the learned Sessions Judge Swabi whereby the petitioner
was convicted under section 302(b), P.P.C. for murder of deceased Jehanzeb and Khanzeb
and sentenced to death as Qisas with fine of Rs.50,000 as compensation to the legal heirs
of both the deceased under section 544-A, Cr.P.C. or in default to undergo six months R.I.
has been kept intact.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to
the effect that "crime was reported at 10-45 p.m. on 16-6-1998 in Hospital at village Yar
Hussain which was recorded by Munawar Khan, A. S. A., (P.W.11) in the shape of
Murasila Exh.P.A./1. According to the complainant he alongwith his two deceased sons
and his nephew Sher Zaman (P.W.16) were present in their tobacco barn situated in
village Kalu Khan, it was 9-00 p.m. when the appellant and the absconding co-accused
Shaukat Ali both came there duly armed with fire-arms and on the pretext of some
business with the two deceased they took them away at some distance but were followed
by Aurangzeb and P. W. Sher Zaman, the latter two heard the report of fire-shots and
when they rushed towards the spot found both the deceased having sustained fire-arm
injuries and were lying injured whereas the two accused were seen escaping from the
spot. Motive for the crime was that Mst. Gulnar daughter of the complainant was married
to the appellant, Wilayat, who divorced her about two years prior to the occurrence which
became cause of annoyance to both sides". After completion of investigation the
petitioner was sent up for trial and on conclusion whereof he was convicted and
sentenced as per details mentioned hereinabove by means of judgment dated 6-11-2002
passed by learned Sessions Judge, Swabi. Being aggrieved an appeal was preferred which
has been dismissed by learned Division Bench of Peshawar High Court vide judgment
impugned, hence this petition.

3. Mr. Roohul Amin Khan, learned Advocate Supreme Court entered appearance on
behalf of petitioner and urged vehemently that the legal and factual aspects of the
controversy have not been examined in its true perspective due to misreading and
non-reading of evidence resulting in serious miscarriage of justice. It is argued that
glaring contradictions in the statements of prosecution witnesses have been ignored
without any rhyme and reason causing prejudice against the petitioner. It is pointed out
that various visible inconsistencies and glaring improvements went unnoticed. It is
contended that no conviction could have been awarded on the basis of the statements of
interested witnesses without having independent corroboration which is lacking in this
case. It is also argued that the presence of Sher Zaman an eyewitness at the spot being
doubtful, his testimony should have been discarded being a chance witness. It is
contended emphatically that the confessional statement was got recorded under duress
and coercion without observing the mandatory legal formalities as envisaged under
sections 164 and 364, Cr.P.C. It is argued that the principle of vicarious liabilities has hot
been dealt with properly and the sentence of death could not have been awarded in view
of the absconsion of co-accused namely Shaukat who was proceeded under section 512,
Cr.P.C. It is also argued that sentence of death could not have been awarded on the basis
of inconsistent, sketchy and vague evidence.

4. We have carefully examined the contentions as agitated on behalf of petitioner in the

light of relevant provisions of law and record of the case. We have minutely perused the
judgment of learned trial Court as well as judgment impugned. The entire evidence has
been scanned with the eminent assistance of learned Advocate Supreme Court. After
having gone through the entire record we are of the view that prosecution has established

Page No. 2 of 4
its case by producing cogent and concrete evidence. The eye-account furnished by
Aurangzeb (P.W.15) and Sher Zaman (P.W.16) being coherent, consistent and worthy of
credence has been rightly taken into consideration and relied upon by the learned trial and
Appellate Courts. The above mentioned witnesses have corroborated each other on all
material particulars and nothing advantageous could be elicited in spite of an exhaustive
cross-examination. By no stretch of imagination Sher Zaman (P.W.16) can be termed as
chance witness. His presence at the spot was not something unusual. We have noted a few
contradictions in their statements which can be ignored safely being insignificant and
minor in nature. "If a witness makes any contradiction, improvements, or other factors
which may adversely reflect on his credibility would not by itself be sufficient to reject
his testimony as a whole. Court can rely upon a portion of his testimony if it is
corroborated by other reliable evidence, or circumstance." If any authority is required
reference can be made to Muhammad Yaqoob v. The State 1992 SCMR 1983, Mokha v.
Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793 and Roshan v. The
State.PLD 1977 SC 557.

5. We have absolutely no doubt in our mind that Aurangzeb (P.W.15) is a truthful witness
whose testimony finds full support from the medical evidence, confession of petitioner,
factum of absconsion, recovery of shotgun and statement of an other eye-witness namely
Sher Zaman (P.W.16). It must be kept in view that Aurangzeb (P.W.15) is real father of
the deceased namely Jehanzeb and Khanzeb who were done to death in a callous and
merciless, manner. It is hardly conceivable rather impossible that the real father would
substitute the assailant with that of petitioner which otherwise is a rare phenomena. There
is no denying the fact that Jehanzeb and Khanzeb (deceased) were taken in the presence
of their father from tobacco barn and soon after killed by the petitioner and other
absconding accused by means of firing and were seen running duly armed from the place
of, occurrence. We have also adverted to the prime contention of learned Advocate
Supreme Court that sentence of death could not have been awarded on the basis of
retracted confession. The confession got recorded by the petitioner has further been
attacked by the learned Advocate Supreme Court from different angles with the
submission- that being involuntarily it should have been discarded. It is also pointed out
that on the same date, time and place another confessional statement of the petitioner was
also recorded by the same Magistrate against the petitioner vide F. I. R No. 84 qua the
murder of Qatl-e-amd of one Ihsanullah. It is also pointed out that no independent
certificate was attached with the confession and thus the mandatory formalities as
envisaged under section 364, Cr.P.C. were not adhered to strictly and on this score alone
the confessional statement should have been discarded. In order to determine as to
whether the confessional statement was got recorded voluntarily or otherwise, the
statement of Muhammad Adil (P.W.17)/Magistrate has been perused carefully which is
demonstrative of the fact that all the mandatory formalities have been complied with in
letter and spirit. No question worth the name was asked from the learned Magistrate
when his statement was being recorded regarding the factum of coercion or maltreatment
which hardly deserves any consideration being devoid of merit. We are not persuaded to
impress by the contention that two confessional statements were got recorded in different
cases on the same day by the same Magistrate and, therefore, the confessional statement
got recorded in this case becomes inadmissible for the simple reason that no legal bar
whatsoever has been imposed in recording two confessional statements in two different
cases on the same day. It is worth mentioning that the confessional statement got
recorded in this case is inculpatory in nature and has rightly been considered and relied
upon by the learned trial and Appellate Courts. There is no denying the fact that no
certificate has been attached with the confessional statement but it would have no adverse
effect on the worth and admissibility of this confessional statement being minor
irregularity which is curable. The learned Magistrate (P.W.17) by whom the confessional
statement was recorded had satisfied himself about the voluntariness of the and also
completed the mandatory formalities as envisaged 164 and 364, Cr.P.C. and, therefore, it
hardly matters as the certificate was attached or not. In this regard reference to case titled
Umar Din v. Crown (D.B.) ILR 1921 (2) Lahore 129.

6. It is well-established by now that conviction could have been awarded on the basis of
retracted confession subject of availability of some corroboration which is not a rule of
law but considered inevitable for the sake of abundant caution. The factum of recovery,
absconsion, forthright eye-account and medical evidence lend full corroboration to the

Page No. 3 of 4
retracted confession. There is no cavil with the proposition that "confession got recorded
under section 164, Cr.P.C. whether retracted or not as a rule of caution must be supported
by some connecting evidence". State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v.
The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v.
Minhun PLD 1964 SC 813. As mentioned hereinabove even if the confession is treated as
retracted it could have been taken into consideration in view of sufficient corroboratory
material as noted above and cannot be brushed aside merely on the ground that it was
declared as retracted.

7. We have also adverted to the contention of learned Advocate Supreme Court that no
proper dying declaration of Khanzeb who became unconscious after sustaining injuries
was recorded in this case and accordingly it should have been excluded from
consideration. Even if the dying declaration is excluded from consideration it would have
no substantial bearing on the fate of the case in view of the overwhelming incriminating
material which has come on record and discussed above. No other argument was made.

8. In sequel to above mentioned discussion we are of the considered opinion that the
prosecution has proved the guilt of the petitioner to the hilt by producing worthy of
credence eye-account duly supported by medical evidence, voluntary confession made by
the petitioner, factum of absconsion and recovery of shotgun. The conclusion as arrived
at by the learned trial Court and affirmed by learned High Court being well-based and
unexceptionable does not warrant interference. The petition being meritless is dismissed
and leave refused.

N.H.Q./W-54/S Leave refused.

Page No. 4 of 4
2402 S C M R 384

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

ZAHIR SHAH---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.26 of 2001 in Jail Petition No. 129 of 2000, decided on 7th
September, 2001.

(On appeal from the judgment, dated 30-5-2000 of High Court of Balochistan, Quetta
passed in Criminal Appeal No.354 of 1999).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975),

Preamble---Constitution of Pakistan (1973), Art.185(3)---Judicial confession made by
accused was both true and voluntary and its truthfulness was established by ocular
testimony, medical evidence and other corroborative pieces of evidence brought on
record---Prosecution witnesses had no motive whatsoever to falsely implicate the accused
and they had been rightly believed by the Courts below---Contention that the case was
not covered by the provisions of the Suppression of Terrorist Activities (Special Courts)
Act, 1975, was not a pure question of law but it was a mixed question of law and
fact---Issue of jurisdiction of Court was, neither raised before the Trial Court nor before
High Court and the said contention had no force---Leave to appeal was refused to
accused in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----Ss.164 & 364---Constitution of Pakistan (1973), Art.13---Provisions of Ss.164 & 364,

Cr.P.C. are not violative of Art. (13(b) of the Constitution, rather they are in consonance
with Art. 13 of the Constitution.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court with Ejaz Muhammad Khan,
Advocate-on-Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 7th September; 2001.

JUDGMENT

NAZIM HUSSAIN SIDDIQUI, J.---Petitioner Zahid Shah, has

impugned judgment, dated 30-5-2000 of a learned Division Bench headed by Chief.
Justice, High Court of Balochistan, Quetta, whereby Criminal Appeal No.354 of 1999
preferred by the petitioner against judgment, dated 28-10-1999 of a learned Judge for
Suppression of Terrorist Activities, Loralai, convicting him under section 302(b), P.P.C.
and sentencing him to suffer imprisonment for life with benefit of section 382-B, Cr.P.C.,
was dismissed.

2. The prosecution case, in brief, is that in the night intervening between 14/15-9-1998
the petitioner entered into the house of Allah Noor deceased, situated at Kachi Peer Dost,
Tehsil Muslim Bagh and murdered the latter by causing him firearm injuries. The
petitioner was arrested on 15-9-1998 and an automatic rifle was recovered from his
house. He confessed his guilt before a First Class Magistrate, and his confessional
statement was recorded.

Page No. 1 of 3
3. On completion of investigation charge-sheet was submitted before trial Court.

4. In support of its case, the prosecution examined 10 witnesses namely, Muhammad

Khan, Mst. Memoona, Abdul Aziz, Amanullah, Dr. Jafar Khan, Khudai Dad, Hafiz Abdul
Basit, Noor Shah, Abdul Nabi and Abdul Khaliq P.Ws. The statement of the petitioner
was recorded under section 342, Cr.P.C. He also examined himself as his own defence
witness and his statement, as such, was recorded under section 340(2), Cr.P.C.

5. The prosecution case rests upon (1) ocular evidence (2) judicial confession of the
petitioner and (3) medical evidence.

6. Muhammad Khan, complainant is not the eye-witness of occurrence. He was called by

the father of the deceased to report the matter to the police, which he did. Mst. Memoona
widow of deceased and Abdul Aziz, father of the deceased, have furnished the ocular
account. Mst. Memoona P.W. stated that the petitioner on the night of occurrence entered
into her house and went near the cot of the deceased. He was duly armed with a rifle. The
deceased woke up and both grappled. According to her, the petitioner then killed her
husband by firing upon him. Abdul Aziz P.W. stated that he had seen the deceased lying
in a pool of blood in the courtyard of their house. He deposed that Mst. Memoona was
also there and weeping. He also stated that, on his enquiry, the deceased had informed
him that the petitioner had caused him (deceased) fire-arm injuries and after sometime he
expired.

7. High Court while maintaining the conviction and sentence of the petitioner, observed
that credibility of testimony of Mst. Memoona could not be doubted. She was inmate of
the house and was a natural witness. She had no motive to falsely implicate the petitioner,
nor it is a case of substitution. She was believed by both the Courts below. About certain
discrepancies in her statement it was observed that the same did not nullify the main
features of her testimony and that it was the petitioner and petitioner alone, who had
killed the deceased. The discrepancy in her statement was that when the deceased and the
petitioner were grappling they proceeded towards "outside the house in lane" and there
the deceased was killed. It is, however, evident from the evidence of the Investigating
Officer that the dead body was lying in courtyard of the house of the deceased. Abdul
Aziz P.W. also stated that he had seen the deceased in courtyard profusely bleeding. Both
the Courts below believed the version of Mst. Memoona P.W. It appears that just after
sustaining injuries the deceased came back to courtyard of his house and conversed with
both i.e. his wife and father. Blood-stained earth was also recovered from courtyard.
Testimony of Mst. Memoona and Abdul Aziz was rightly relied upon by two Courts
below.

8. Learned counsel for the petitioner contends that confessional statement of the
petitioner was neither voluntary nor true, as such, the same could not be relied upon. He
also argued that the petitioner, while answering Question No.8 of the confession clearly
stated that he was threatened by the Investigating Officer. Next question viz. Question
No.9 was if the Investigating Officer would not have threatened then what he would have
done. He replied that still he would have admitted his guilt as after some time he was to
appear before Allah. Besides answering the questions put to him in confessional
statement in the last he stated that about a year back from the date of recording his
confession, the deceased in a gathering had abused him and on the night of the incident
he had fired upon him, which resulted in his death.

9. It is legal requirement that confession shall be true and voluntary. Close scrutiny of
that prosecution evidence on above principle reveals that the confession was both true
and voluntary. Its truthfulness is established by the eye account furnished by the
witnesses, by medical evidence, and other corroborative pieces of evidence brought on
record. P.Ws. had no motive whatsoever to falsely implicate him. He also used to resided
in the same locality where the deceased resided. It was made voluntarily and so is proved
by the statement of Hafiz Abdul Basit, Assistant Commissioner/Magistrate 1st Class, who
recorded the confessional statement according to law having ascertained that it was made
by the petitioner without any inducement or coercion. Indecent or provocative remarks
about womenfolk are taken seriously in the tribal society in which the petitioner and the
deceased lived. The petitioner in his confessional statement explained himself that the

Page No. 2 of 3
deceased had passed such remarks impliedly against his (petitioner) wife. All these
circumstances show that the petitioner was annoyed with the deceased.

10. Learned counsel challenged the testimony of Mst. Memoona and Abdul Aziz P.Ws.
relating to the alleged dying declaration of the deceased before them. He argued that the
deceased must have expired on the spot instantaneously, as such, there was no possibility
of any dying declaration before them. Medical evidence does not show that after how
much time of the incident, the deceased had expired. Learned counsel argued that Dr.
Jafar Khan, who conducted autopsy, did not mention the time elapsed between injuries
and death and this he did only to oblige the prosecution. It is true that the doctor did not
specifically mention that after how much time of sustaining injuries the deceased had
expired. The facts, however, remains that the petitioner did not challenge this aspect
seriously and remained satisfied with the statement of the doctor. This was probably for
the reason that his case was of total denial. In view of said omission in the statement of
the doctor, the statements of above named witnesses, who categorically claimed to have
talked the deceased, before his death, could not be disbelieved. Under the circumstances,
the testimony of said witnesses was rightly believed by the Courts below.

11. In the last, learned counsel argued that the provisions of sections 164 and 364, Cr.P.C.
are against the Article 13 of the Constitution and shall be struck down. According to
Article 13(a) no person shall be prosecuted or punished for the same offence more than
once and that no person shall, when accused of any offence, be compelled to be a witness
against himself. Learned counsel contended that second part of the Article i.e. 13(b) is
attracted as the petitioner was compelled to be a witness against himself when his
confession was recorded. Section 164, Cr.P.C. is about power of Magistrate to record
statement of confession. The confession, if recorded, is to be recorded in the manner laid
down in section 364, Cr.P.C. It is significant to note that section 364, Cr.P.C. speaks about
that how examination of an accused is to be recorded. It provides details and the manner
in which the confession is to be recorded. It is also significant to note that the Magistrate
has to take all precautions to see that it, is voluntary and further he is required to certify
that "examination was taken in his presence and hearing". Under present system of
dispensation of criminal justice much reliance is not placed on self-incrimination and it is
duty of the prosecution to prove its case through legal evidence based upon established
judicial norms enunciated by superior Courts. Cardinal principle is that a person is
presumed innocent until proved guilty. An act of compelling a person to expose his own
guilt or depose against himself is taken as illegal under various provisions of law,
including the provisions under discussion. Article 13 of the Constitution provides the
protection to the accused of not being a witness against himself and the provisions of
sections 164 and 364', Cr.P.C. are not violative of Article 13(b). We are of the view that
the provisions of aforesaid two sections are in consonance with Article 13 of the
Constitution. This contention is also without any substance.

12. Learned counsel also argued that the case was not covered by the provisions of
Suppression of Terrorist Activities (Special Courts) Act, 1975, as nature of the fire-arm
used in the commission of the offence was not clearly disclosed. Explaining further he
submitted that it was not proved that I, automatic rifle was used to the commission of this
offence and that recovery of rifle from petitioner was not established. Above plea is not a
pure question of law but it is of mixed question of law and fact. The facts as stated by
P,Ws. were not controverted. Besides, learned counsel frankly conceded that neither
before trial Court nor High Court the issue of jurisdiction of Court was raised. There is no
force in this contention also.

13. In consequence, leave to appeal is refused and the petition is dismissed.

N.H.Q./Z-94/S Leave to appeal refused.

Page No. 3 of 3
1999 S C M R 1744

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza and Abdur Rehman Khan, JJ

Mst. NASEEM AKHTAR and another --- Appellants

versus

THE STATE ---- Respondent

Criminal Appeal No.298 of 1998, decided on 13th May, 1999

(On appeal from the judgment dated 4-5-1998, of the High Court of Sindh, Karachi,
passed in Criminal Appeal No. 193 of 1994).

(a) Penal Code (XLV of 1860)---

---- S. 365-A/34 --- Constitution of Pakistan (1973), Art.-185(3) --- Leave to appeal was
granted to accused by Supreme Court to consider --- Whether principles governing
appraisal of evidence laid down by Supreme court were correctly followed by the Courts
below to ensure safe administration of justice.

(b) Penal Code (XLV of 1860)---

---- S. 365-A/34 --- Criminal Procedure Code (V of 1898), S.164 --- Appraisal of
evidence --- Delay of twelve days in recording the confession of the accused had not
rendered the same inadmissible --- Recording of the confessions of two accused jointly or
in presence of each other was not borne out from the record--Accused were not in
unlawful police custody during the period when their confessions were recorded ---
Confessions made by accused tallied with each other in almost all respects with very
minor variations which did not cast any doubt on the prosecution version --- No
significant or material lapse on le port of the Magistrate in recording the confessions of
the two accused was available and one or two minor omissions could not be termed as
lapses to affect the evidentiary value of the said confessions --- Both the accused had led
the police and others to the place where the dead body of the deceased child was found
whic9 was a very important and admissible conduct against them providing corroboration
for their involvement in the crime and for their confessions-' Audio cassette containing
the conversation of the accused with the father of the deceased on telephone recorded at
the instance of police, had also provided evidence against the accused --- Though
confession of co-accused might not, by itself, be sufficient to corroborate the retracted
confession of another accused, but in the presence of other evidence the confession of co-
accused could be used as further corroboration --- Medical evidence had also supported
the case of prosecution against the accused --- Retracted confessions of the accused were
truthful and voluntary which were corroborated by the aforesaid pieces of evidence--
Convictions and sentences of death awarded to accused were maintained in
circumstances.

Amir Ali v. State PLD 1975 Kar. 753; Khalas Khan v. State 1975 PCr.LJ 172; Abdul
Ghani v. State 1976 PCr.U. 1462; Naeem Akhtar v. State 1993 PCr.U 769; Abdul Kaleem
v. State 1992 PCr.U 1314; State v. Kamal Khan 1993 SCMR 1378; Azeem Shah v. State
PLD 1987 Quetta 96; Hamzo v. State PLD 1960 Kar 817; Muhammad Yaqoob v. State
1992 SCMR 1983; Sharifuddin Pirzada v. Solibat Khan PLD 1972 SC 363; Kadir Bakhsh
v. State 1985 PCr.U 2375; Munir Ahmed v. State 1995 MLD 1126; Gul Jamal v. State
NLR 1980 Cr. (SC) 357; Zakir Khan v. State 1995 SCMR 1793; Din Muhammad v. The
Crown 1969 SCMR 777; Munawar Hussain v. The State 1991 SCMR 1601; Rasool
Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Ismail v. State 1995
SCMR 1615; Muhammad Yaqoob v. State 1992 SCMR 1983; Faqira and others v.
Emperor AIR 1929 Lah. 665: Rafiqueuddin Ahmad and others v. Emperor AIR 1935 Cal.
184; Emperor v Nanua AIR 1941 All. 145 and Ganu Chandra Kashid v. Emperor 33
Cr.L.J. 396. ref.

Page No. 1 of 16
(c) Criminal Procedure Code (V of 1898)----

----S. 164 --- Confession --- Lapse by Magistrate --- Effect--7--Principles-- . Any lapse on
the administrative side on the part of a Magistrate recording a confession may not be fatal
as to the evidentiary value of such confession, provided the Court is satisfied that the
lapse on his part has not in any way adversely affected the voluntariness or truthfulness of
the confession.

Muhammad Yaqoob v. State 1992 SCMR 1983 ref.

(d) Penal Code (XLV of 1860)----

---- S. 302 --- Criminal Procedure Code (V of 1898), S. 164 --- Retracted confession ---
Conviction for a capital offence can be sustained on the basis of a retracted confession
alone provided it is voluntary and true --- Courts as a rule of prudence, look for
corroboration by other reliable evidence.

Muhammad Yaqoob v. State 1992 SCMR 1983 ref.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court with Ejai Muhammad
Khan, Advocate-on-Record for Appellants.

Illyas Khan, Advocate Supreme Court for the Complainant.

Raja Abdul Ghafoor, Advocate Supreme Court for the State

Date of hearing: 25th March, 1999.

JUDGMENT
NASIR ASLAM ZAHID, J.---This 'appeal filed by convicts Naseem Akhtar alias Jalees
and Muhammad Khalid son of Fazalur Rehman arises out of the judgment, dated 4-5-
1998 of Division Bench of the Sindh High Court dismissing their criminal appeal and
confirming their conviction and sentence of death awarded by judgment, dated 6-12-1994
of the trial Court, Special Court No. 1 (Suppression of Terrorist Activities), Karachi. We
have heard at length the arguments of Sardar M. Ishaq Khan, Senior Advocate Supreme
Court for the appellant, Raja Abdul Ghafoor, learned Advocate Supreme Court for the
State and Mr. Ilyas Khan, learned Advocate Supreme Court for the complainant. With the
assistance of the learned counsel, we have referred to the relevant record.

2. Leave was granted by order, dated 3-11-1998 as follows:-----

"Naseem Akhtar alias Jalees and Muhammad Khalid convicts seek leave to appeal
against the judgment, dated 4-5-1998, of the High Court of Sindh, Karachi, whereby their
appeal was dismissed and death sentence awarded to them by the learned Special Judge
Court-I (Suppression of Terrorist Activities), Karachi, was confirmed.

(2) Learned counsel for the petitioners, inter alia, contends that--

(a) the learned Judges of the High Court have disposed of appeal before them without
appraising the evidence in its true perspective;

(b) that the Courts below ignored the principle of law that the items of evidence requiring
corroboration cannot corroborate another such item; and

(c) that they overlooked the fact that the petitioners had remained in unlawful custody
from 11-8-1994 to 18-8-1994 without remand from any Court and the alleged retracted
judicial confessions recorded on 18-8-1994 had no legal sanctity."

Leave to appeal is granted to consider whether principles governing appraisal of evidence

laid down by this Court were correctly followed by the Courts below to ensure safe
administration of justice. "

Page No. 2 of 16
The facts have been narrated in the judgment of the trial Court as follows:--

"The two accused persons Muhammad Khalid and Naseem Akhtar alias Jalees stand
charged for kidnapping for ransom and murder of minor boy Anas Fareed. The case of
the prosecution is that, the minor Anas Fareed son of Fareeduddin Siddiqui who is related
to the accused persons found missing from outside his house where he had gone to play
on 19-7-1994. After making search for the boy the father of the boy Fareeduddin Siddiqui
lodged a report on the same day at about 9-45 p.m. at the Gulberg Police Station which
was entered into the daily diary. On 21-7-1994 Fareeduddin Siddiqui received a
telephone call at his house and the caller informed that his son Anas Fareed was with
them. On the same day statement of P.W.3 Sohail Rais Siddiqui, was recorded under
section 154, Cr.P.C. which was subsequently converted in the F.I.R. Thereafter, in the
words of P.W. Fareeduddin: 'Thereafter, I contacted C.P.L.C. at about 10 or 11, p.m. on
the same night. They advised me to record the dialogue between me and the unknown
person on telephone in a audio cassette. And also my telephone was kept under
observation. The other set of my telephone was kept for one way call. The unknown
persons were talking on phone for me from time to time and they were demanding
ransom amount of Rs.45 lacs for return of my son. It was continued for about 4/5 days.
The bargaining was carrying on and the demand was reduced to 30 lacs. One 6-8-1994 it
was about 10 p.m. when a police mobile consisting of S.H.O. and their subordinate
reached, at my house. They had also brought the two, accused persons who were under
handcuffs and the S.H.O. informed me that both of them were the real culprits who had
abducted my son Anas Fareed on motor bike. The accused Khalid present in Court is son
of my aunt while co-accused Naseem is the nephew of my another aunt. Accused Khalid
used to reside in our Mohallah near to my house. On my enquiry both the accused
admitted their guilt and asked me for forgiveness and that they have done this due to
temptation of money and abducted my son. On my enquiry about my son both the
accused persons told me that after abducting my son they had murdered him immediately.
"
It -is the case of the prosecution that both the accused namely Muhammad Khalid and
Naseem Akhtar a Jalees led the police party while in custody and pointed out the place
where the dead body was found lying. They also got recovered the handkerchief which
was used for the commission of the offence. The motor-cycle used for transporting the
deceased boy by accused Nasim Akhtar was got recovered from the house of accused
Khalid who had borrowed the same from P.W. Anwar. Both the accused also pointed out
the place from where the deceased boy was picked up. Finally on 18-8-1994 both the
accused made confession before a Magistrate, who remanded them to judicial custody
and the challan was submitted in the Court.

Prosecution examined P.W. I Exh.3 Muhammad Ibrahim Qureshi who is ACM-III

Karachi (Central) who recorded the confession of both the accused P.W. 2 Anwar Exh.4
who claimed to be the owner of the motor-cycle which was borrowed by accused Khalid
and was recovered from the house of the said accused on his pointing. P.W. 3 Sohail Rais
Siddiqui Exh.5 whose statement under section 154, Cr.P.C. Exh. 5-A was recorded on 21-
7-1994 and who is the cousin of the deceased boy. He, is also Mashir of the memo. of the
place from where the boy was picked up which was prepared on 21-7-1994. He is also
Mashir of the recovery of the dead body of the deceased boy which was recovered as a
result of both the accused leading them to the place of the murder situated in an under-
construction house Surjani Town, Karachi from where the dead body of the deceased boy
was recovered. He also produced the photographs of the deceased boy. Police also
prepared inquest report before him. On the day of 'Soyam' of the deceased boy tape
consisting the recording of the conversation of the accused with that of the father of the
deceased was produced before the police which was taken into possession before him.
P.W.4 Exh.6 lieutenant Khurrain Qamar who is also a relative of the accused as well as of
the complainant. He has also corroborated the prosecution story. P.W.5 Exh.8 is Dr. Syed
Saeed Haider Kazmi who performed the postmortem on the body of the deceased boy and
produced the post-mortem report. P.W.6 Exh.9 Muhammad Jahangir Khan is a Mashir of
the arrest of accused Khalid on 6-8-1994 from near ' Ziauddin Hospital. Accused Khalid
then led the police party to the house of his partner coaccused Naseem Akhtar alias Jalees
who was arrested. On 8-8-1994 police secured the motor-cycle from the house which was
pointed out by accused Khalid. P.W. 7 Exh.10 is Fareeduddin Siddiqui, the father of the

Page No. 3 of 16
deceased boy who corroborated the prosecution story and produced the audio cassette
containing the recording of the conversation between him and that of the kidnappers.
P.W.8 is Muhammad Fayyaz Exb.11 is A.S.I. of Police Station Gulberg who recorded the
154, Cr.P.C. statement of Sohail Rais at his house and the statement was then
incorporated by him in the 154, Cr.P.C. book as F.I.R. Finally the prosecution examined
Abdul Rasheed the S.H.O. and Investigating Officer of the case as P.W.9 Exh. 13. "

3. According to the trial Court, in the case, the following points required determination-

(a) Whether Anas Fareed was murdered as a result of strangulation?

(b) Whether both the accused persons in active connivance and common intention of each
other kidnapped the boy deceased Anas Fareed for the purpose of obtaining ransom?

Whether after kidnapping the boy the accused persons murdered the boy?

(d) If the answer is in the affirmative, what the sentence should be?

Trial Court's findings were in the affirmative on the first three points. Both the appellants
were found guilty of murder of minor Anas Farced and both the appellants were awarded
capital sentence of death. As observed, by the impugned judgment dated 4-5-1998, Sindh
High Court has dismissed the appeal filed by the appellants and death sentence awarded
to them has been confirmed.

4. There is no eye-witness of the incident, Prosecution built up its case against the two
appellants on the judicial confessions of the appellant, which were retracted at the trial,
and the following other pieces of evidence:--

(i) Extra-judicial confessions of the two appellants which were retracted at the trial;

(ii) leading to and pointing out of the place of kidnapping by the appellants:

(iii) leading to and pointing out by the appellants of the place from where dead body of
the deceased was found and recovered;

(iv) leading to and pointing out the place from where the handkerchief, used in the
strangulation of the deceased was recovered;

(v) leading to, pointing out and recovery of the motor-cycle from the house of accused
Khalid on which, according to the prosecution. the deceased was kidnapped;

(vi) arrest of appellant Khalid from the telephone booth from where, according to the
prosecution, the appellants used to ring up the family of the deceased for claiming
ransom;

(vii) audio cassette in which the conversation between the appellants and the members of
the family of deceased was recorded pursuant to Instructions given by the Citi7en Police
Liaison Committee (CPLC):

(viii) medical evidence of P.W.5 Dr. Syed Saeed Hyder who performed post-mortem of
the body of the deceased confirming that the deceased died on account of strangulation.

5. The main piece of evidence against the two appellants were their respective judicial
confessions recorded by P.W. 1 Ibrahim Qureshi, Additional City Magistrate. Karachi
Central. The judicial confessions were retracted at the trial by the two appellants. These
judicial confessions were accepted as admissible by the trial Court as well as the High
Court and became basic evidence of the prosecution case. Prosecution also relied on
extra-judicial confessions, circumstantial evidence, recoveries and medical evidence.

6. Sardar Muhammad Ishaq Khan, learned counsel appearing for the two appellants, has
raised the following contentions on merits, on the inadmissibility and irrelevance of the

Page No. 4 of 16
various pieces of evidence against the appellants and also on other deficiencies and
weaknesses in the prosecution case:-----

(i) Extra-judicial confessions relied upon by the prosecution are not admissible in
evidence as the same were made while the appellants were in custody of the police.
Additionally, according to learned counsel, the said confessions having been recorded
jointly were inadmissible and in any case these were not put to the appellants while their
statements were being recorded under 342, Cr.P.C.

(ii) The audio cassette in which allegedly the conversation between the appellants and
P.W.7 Fariduddin Siddiqui, father of the deceased, was allegedly; recorded does not prove
that the voices in the said cassette were that of the appellants. It was also pointed out that
on 6-8-1994 the police had gone to the house of deceased's father but on that day the
audio cassettes were never produced, whereas it was produced after two days on 8-8-
1994 whiCh fact by itself raises a doubt as to the genuineness of the audio cassette. It was
also pointed out that P.W.7 Fariduddin mentioned in his evidence before the trial Court
that he had been told that appellant Khalid was capable of changing his voice and this
was to justify that the voice of Khalid on the telephone was not easily recognised by
P.W.7. According to learned counsel this was an intentional mala fide improvement by
P.W.7 as, when confronted, it came out that in his statement under section 161, Cr.P.C.
that he never mentioned about the change of voice. In the circumstances, according to
learned counsel no reliance could be placed on the audio cassette.

(iii) As regards the disclosure about the dead body of the deceased, it was submitted that
this disclosure while in custody was a joint disclosure and, therefore, the recovery of the
dead body on the basis of such disclosure could not be used as evidence against either of
the appellants.

Regarding leading the police and marginal witnesses to the place where the dead body
was lying in an under-construction house in Surjani Town, pointation of the dead body
and its recovery, it was submitted were all, according to the prosecution evidence itself,
joint, that is, by both the appellants together. It was contended by learned counsel for the
appellants that all these joint disclosure, leading, pointation and recovery are inadmissible
against either of the two appellants and for this proposition reliance was placed on the
following judgments:--

(a)Amir Ali v. State (PLD 1975 Kar. 753).

(b) Khalas Khan v. State (1975 PCr.LJ 172).
(c)Abdul Ghani v. State (1976 PCr.LJ 1462).
(d) Naeem Akhtar, v. State (1993 PCr. LJ 769).
(e) Abdul Khaleem v. State (1992 PCr.LJ 1314).

(iv) As regards the recovery of handkerchief which, according to the prosecution, was
used by the appellants in strangulating the deceased, learned counsel submitted that
recovery of such handkerchief was also made jointly at the instance of the appellants, and
therefore, inadmissible. It was further pointed out that the said handkerchief had been
taken as a weapon of offence by the prosecution but it was not sent to the Chemical.
Examiner and the same could not be used as a corroborative piece of evidence against the
appellants.

(v) Recovery of the motor-cycle on which the deceased was kidnapped and was taken to
the place where he was murdered was also at the joint pointation of the appellants and,
therefore, according to learned counsel, was inadmissible. Additionally, it was submitted
that there is no evidence that any one saw the deceased or either of the appellants riding
that motor-cycle.

(vi) Pointation of the place of kidnapping, according to learned counsel, is neither

admissible as it was joint pointation nor relevant as it was not a place which was only
known to the appellants.

(vii) As regards judicial confessions it was first submitted that these was jointly recorded
and, therefore, were inadmissible; secondly it was very vehemently contended that

Page No. 5 of 16
appellants had been taken into police custody on 6-8-1994 and remand was obtained till
11-8-1994 whereafter the remand was refused and from -11-8-1994 to 18-8-1994, when
the confessions were recorded before the Magistrate, both the appellants were in unlawful
custody of the appellants and, therefore, no reliance could at all be placed on such
confessions. According to learned counsel, in these circumstances the two confessions are
basically illegal and of no consequence.

Further according to learned counsel, in the judicial confessions, there are errors and
omissions in their recording which clearly show that the Magistrate was not cautious in
recording the same which were recorded haphazardly. It was then pointed out that there
are material contradictions between the two confessions on account of which no reliance
should have been placed on the confessions by the Courts. It was also argued that there
was delay of 14 days in recording the judicial confessions which affected their reliability.

In support of his attack on judicial confessions, counsel relied on the following

judgments:--

(a) Naseem Akhtar v. State (1993 PCr.U 769).

(b) State v. Kamal Khan (1993 SCMR 1378).

(c) Azeem Shah v. State (PLD 1987 Quetta 96).

(d) Hamzo v. State (PLD 1960 Kar. 817).

It was pointed out that the other evidence of the prosecution comprising statements of
Sohail Siddiqui (cousin of the deceased), P.W.7 (father of the deceased) and Lt. Khurram
Qamar (cousin of the deceased) was interested testimony and required independent
corroboration. According to learned counsel even if the aforesaid pieces of evidence were
admissible in evidence, all different pieces of evidence in this case are tainted in character
and it is now well-settled principle of law that one tainted piece of evidence cannot be
corroborated by another tainted piece of evidence. According to learned counsel
prosecution miserably failed to make out any case against the appellants.

7. Raja Abdul Ghafoor, learned, Advocate Supreme Court for the State, supported the
conviction and sentence of the two appellants. According to learned counsel for the State,
the judicial confessions were admissible in evidence and were rightly relied upon by the
trial Court as well as the High Court. According to learned counsel, judicial, confessions
were corroborated by medical evidence and other pieces of evidence which were all
admissible in evidence.

8. Mr. Muhammad Ilyas Khan, learned counsel for the complainant also supported the
prosecution case submitting that on 15-8-1994 Magistrate had granted further remand till
18-8-1994 and, therefore, when the judicial confessions were recorded, both the
appellants were in lawful custody of the police and after recording of their judicial
confessions the Magistrate sent them to jail. According to learned counsel for the
complainant, till 11-8-1994, the appellants were in custody of the police on remand from
a Magistrate; 12-8-1994 and 13-8-1994 were weekly holidays and 14-8-1994 was a
public holiday, and immediately on reopening of the Courts after the 3 holidays, on 15-8-
1994 remand was obtained from the Magistrate till 18-84994. Even otherwise according
to learned counsel for the complainant, if for the period from 12-8-1994 to 14-8-1994 (3
days which were holidays, 12th to 13th August, 1994 being Thursday and Friday then
weekly holidays and 14-8-1994 being a public holiday) there was no remand from any
Magistrate, such lapse on the part of the police was curable under section 537, Cr.P.C.

As regards defects in recording the confessions by the Magistrate, it was submitted that
the said defects were not material and reliance was placed on the judgment of this Court
in the case of Muhammad Yaqoob v. State (1992 SCMR 1983).

As regards delay of 12 days in recording the judicial confessions (appellants having been
arrested on 6-8-1994 whereas their confessions were recorded on 18-8-1994), according
to learned counsel, such delay was not fatal and did not affect the admissibility or

Page No. 6 of 16
veracity of the judicial confessions. Reliance was placed on the following judgments as
regards the question of delay in recording the confessions:--

(a) Sharifuddin Pirzada v. Sohbat Khan (PLD 1972 SC 363)

(b) Kadir Bakhsh v. State (PU 1985 Cr.C. (Quetta) 357)

(c) Munir Ahmed v. State (1995 MLD 1126)

On the question of corroboration, reliance was placed by Mr. Muhammad Ilyas Khan,
learned counsel for the complainant, on the case of Gul Jamal v. State (NLR 1980 Cr.
(S.C.) 357 and Zakir Khan v. State (1995 SCMR 1793).

9. In reply Sardar M.Ishaq Khan, Senior Advocate Supreme Court submitted that the
judgments cited by learned counsel for the complainant were either irrelevant or
distinguishable. It was emphasized that the main reason for taking further remand by the
police was apparently to get a few more days which could be used for putting pressure
and coercion upon the appellants for obtaining the confessions which were recorded on
18-8-1994.

10. We may first consider the extra-judicial confessions of the appellants. Learned
counsel for the appellants is correct in his submission that said extra-judicial confessions
are inadmissible in evidence as the same were made by the two appellants while they
were in the presence of police officer and in police custody and also admittedly
handcuffed. Article 39 of Qanun-e-Shahadat Order, 1984 (section 26 of the repealed
Evidence Act, 1872) may be referred. No reliance could also be placed on such pieces of
evidence as they were not put to the appellants while their statements under section 342,
Cr.P.C. were being recorded. Following judgments can he referred for this principle:-----

(i) Din Muhammad v. The Crown (1969 SCMR 777).

(ii) Munawar Hussain v, The State (1991 SCMR 1601)

(iii) Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373)

11. The basic evidence in this case against the appellants are the judicial confessions both
made on 18-8-1994 before P.W.1 Magistrate Muhammad Ibrahim Qureshi, which were
retracted at the trial. Before we may refer to the errors in the recording of the confessions
and other defects and contradictions therein pointed out by Sardar Ishaque Khan.. counsel
for the' appellants, the following contentions regarding inadmissibility of the confessions
may be dealt with:--

(a) Delay of 12 days in recording confessions --- appellants were arrested on 6-8-1994
whereas their confessions were recorded on 18-8-1994. Delay in recording confessions
by itself is no longer considered fatal to their admissibility. Reference in this behalf can
be made to the following judgments of this Court:--

(i) Sharifuddin Pirzada v, Sohbat Khan (PLD 1972 SC 363)

(ii) Muhammad Ismail v. State (1995 SCMR 1615)

Delay is not the crucial factor. The trial Court has to assess whether the confession is
voluntary and true and not the result of any pressure, threat or inducement. In this case,
delay of 12 days in recording the confessions does not render them inadmissible.

(b) The other objection to the admissibility of the appellants' confession was that these
were made jointly. Perusal of the record does not support the assertion of learned counsel,
The confessional forms show that first Nasim's confession was recorded and thereafter
Khalid was called and his confession recorded. Nasim was earlier given time from 9 to 10
a.m. for reflection and Khalid was later given time from 10-30 to 11-30 a.m.
Examination-in-chief of the Magistrate (P.W. 1) confirms that the confessions were not

Page No. 7 of 16
recorded jointly or in the presence of both but first of Nasirn and then of Khalid. This was
further reiterated in his cross-examination as follows;--

"It was a Chamber where I recorded the confessional statement of both the accused. I
allowed accused Naseem to sit in my Chamber while accused Muhammad Khalid
allowed to sit out of my Chamber in a place in-between my office and Chamber. The
police was out of my office. "

The contention that confessions of the two appellants were jointly recorded or in presence
of each other is not home out from the record. The contention is without substance.

(c) It was then contended that when appellants' confessions were recorded, they were in
unlawful custody of the police without any remand order in existence. It was stressed that
remand had been obtained till H-8-1994 which was not extended. According to learned
counsel this patent illegality renders the confessions illegal and inadmissible or, in any
case, casts a doubt upon their veracity.

Record is available and it shows that on 11-8-1994 the two appellants were produced
before the Magistrate (P.W. 1) for seeking extension of remand till 20-8-1994 on which
he passed the following orders:-

'Where is the first police remand order?'

(Sd.)
11-8-1994
ACM-III"

12th and 13th August, 1994 (Thursday and Friday were weekly holidays) during that
period and 14th August, 1994 was a public holiday (according to learned counsel for the
complainant and as noted in the impugned judgment of the High Court and not
controverted by Sardar Ishaque Khan). On 15-8-1994, in the remand report it was pointed
out that on 11-8-1994 when appellants were produced before the Magistrate, on account
of copy of earlier remand order (dated 7-8-1994) not being available with the police,
further remand was not granted by the Magistrate. A request was made for remand from
15-8-1994 to 20-8-1994 on which the following order was passed by the Magistrate (P.
W. 1): -----

"Accused are present in P.C. and do not complain for maltreatment by police. Remanded
to P.C. up to 18-8-1994 for investigation.

(Sd.)
15-8-1994

Copy to Hon'ble D& SJ(c) for information.

(Sd.)
15-8-1994."

From the record it does not appear that appellants were in unlawful custody of the police
from 11-8-1994 to 18-8-1994 when their confessions were recorded. First remand order
was passed on 7-8-1994; appellants were remanded into police custody till 11-8-1994;
they did not complain of maltreatment when asked by the Magistrate on 7-8-1994. Then
there is a gap of 3 days i.e. 12th, 13th and 14th August, 1994. An explanation (holidays
and copy of remand order dated 7-8-1994 not being available which was asked for by the
Magistrate on 11-8-1994) is available which may not be formal and legal explanation but
there is some explanation which shows that there was no mala fide on the part of the
police. Then the appellants are again produced before the Magistrate and remand is
obtained up to 18-8-1994 when the appellants are produced before the Magistrate for
recording their confessions which are recorded whereafter the Magistrate remands them
to jail custody.

In these circumstances it cannot be said that appellants were in unlawful police custody
from 11-8-1994 to 18-8-1994 when their confessions were recorded.

Page No. 8 of 16
12. As regards the deficiencies and illegalities in recording of and the defects and
contradictions in the confessions, pointed out by Sardar Ishaq Khan, learned counsel for
the appellants, we may refer to the Exhs. 3-C(Naseem Akhtar's confession), and 3-D
(Khalid's confession), which are as follows:--

Exh.3/c

"Crime No.286/94 under section 364-A/34 read with 302, Qisas and Diyat.

Form of proceedings in confession of accused persons. (Section 164 of the Code of

Criminal Procedure)

In the Court of the Additional City Magistrate Court No.III KYC Central.

The accused Naseem Akhtar Urf Jalees is brought by Inspector Abdul Rashid Khan of
Gulberg Police Station before me at my Court at 9-0 a.m. to have his confession
recorded. A letter is given to me dated 16-8-1994 from the S.H.O. Gulberg which is
attached to the record. The offence is alleged to have been committed at Police Station
Gulberg on 19-7-1994 at 4-00 p.m. and the accused is said to have been arrested at P.S.
Gulberg on 6-8-1994 at 8-0 p.m. by S.H.O., Police Station Gulberg.

The accused is placed in custody of Court staff and the police is directed to leave the
premises.

The accused is warned that he is not bound to make a confession and that any statement
be makes will be taken down in writing and may thereafter be used against him. He is
then allotted time for reflection from 9-0 am to 10 a.m. and during this period, the
investigating police have had no access to him.

The accused is again brought before me in open Court/not in open Court but in my
chamber because it is more appropriate.

I have satisfied myself that there is no policeman in Court/Chamber or in any place where
the proceeding could be seen or heard.

The accused is asked if he is disposed to make a confession of his own free will. He
replies as follows:--

The body of the accused is examined with his consent and it is found that:

The accused is asked details as to the length of time during which and the places where
he has been in the custody of the notice. He replies as follows:--

The accused is examined as follows, in order to ascertain whether he is disposed to make

a confession of his own free will or under any inducement, threat or promise. (The
following and such other questions as may appear necessary to be asked)---

(Every question and every answer to be recorded in full).

Question:--Have you been given any inducement, threat or promise by the police or any
one.1,olse which induces you to make this confession?

Answer.--

Question--Have you been beaten, tortured or maltreated by the Police?

Answer.--

Question.--Has any family member of yours, male or female, been sent for 'by the Police
in order to pressurise you to confess? ,
Answer. --

Question.--What are the circumstances which are inducing you to confess?

Page No. 9 of 16
Answer-
Question-Are you aware that I am a Magistrate, and if you make a confession I am
required to record it?
Answer. -
Question.--Are you aware that if you make a confession, it will be used against you at
your trial and on its basis you may be convicted and sentenced for committing the offence
of ----?
Answer-
Question. --What have to say? Answer,
(Sd.)
ACM 18-8-1994. (Stamp of Magistrate)

CERTIFICATE

I have explain ed to (Naseern Akhtar) that he is not bound to make confession and that if
he does so, any confession he may make, that be used as evidence against him and I
believe that the confession was voluntarily made. It was taken in my presence and
hearing and was read over to the person making it and admitted by him to be correct and
it contains full and true account of statement made by him.
(Sd.)
ACM-III -C 18-8-1994

The accused, after his confession has been recorded by me is forwarded to Central Jail.

Mark of identification of accused

(Sd.)

18-8-94

(Stamp of Magistrate)
Place or camp

ExhA/D

"Crime No. 286/94 Unser section 364-A/34 read with 302, Qisas and Diyat
Form of proceeding confession of accused persons

(Section 164 of the Code of Criminal Procedure)

In the Court of the Additional City Magistrate Court No. III KYC. C.

The accused Muhammad Khalid is brought by Inspector Abdul Rashid Khan of Gulberg
Police Station before me at my Court at 9.00 a.m. to have his confession recorded. A
letter is given to me dated 16-8-1994 from the S.H.O. Gulberg which is attached to the
record. The offence is alleged to have 6een committed at Police Station Gulberg on 19-7-
1994 at 4-00 p.m. and the accused is said to have been arrested at Police Station Gulberg
on 8-1994 at 8-00 p.m. by SHO-Police Station Gulberg

The accused is placed in custody of Court staff and the police is directed to leave the
premises.

The accused is warned that he is not bound to make a confessiom and that any statement
he makes will be taken down in writing and may thereafter be used against him. He is
then allotted time for reflection 'from 10-30 a.m. to 11-30 a.m. and during this period, the
investigating police have had no access to him.

The accused is again brought before me in open Court/not in open Court but in my
chamber because it is more appropriate.

I have satisfied myself that there is no policeman in Court/Chamber or in any place where
the proceedings could be seen or heard.

Page No. 10 of 16
The accused is asked if he is disposed to make a confession of his own free will. He
replies as follows:--

The body of the accused is examined with his consent and it is found that

The accused is asked details as to the length of time during which and the places where
he has been in the custody of the police. He replies as follows:--

The accused is examined as follows, in order to ascertain whether he is disposed to make

a confession of his own free-will or under any inducement, threat or promise. (The
following and such other questions as may appear necessary to be asked):--

(Every question and every answer to be recorded in full)

Question.--Have you been given any inducement, threat or promise by the police or
anyone else which induces you to make this confession?
Answer.--
Question. --Have you been beaten, tortured or maltreated by the Police?
Question.--Has any family member of yours, male or female, been sent for by the Police
in order to pressurise you to confess?
Answer.-
Question--What are the circumstances which are inducing you to confess?
Answer.--
Question.--Are you aware that I am a Magistrate, and if you make a confession I am
required to record it?
Answer
Question.--Are you aware that if you make a confession, it will be used against you at
your trial and on its basis you may be convicted and sentenced for committing the offence
of ---?
Answer:-
Question:-- What have to say?
Answer:--
After the text of the confession of appellant Khalid, there is the certificate by the
Magistrate, P.W. I Ibrahim Qureshi.

13. It has been argued by learned counsel for the two appellants that the confessions had
been haphazardly recorded by P. W. 1 who was also not cautious in recording the same.
However, from the judicial confessions (reproduced hereinabove) we find no substance in
the submission. We find from Exh. 3/C and Exh.3/1) that the confessions had been
recorded on the prescribed pro formas and, except for one question for which no answer
was recorded by P.W. 1, the Magistrate, answers to all other questions in the pro formas
were recorded by him.

The question to which no answer was recorded in the two confessions is that whether the
accused was aware that if he were to make a confession, the same would be used against
him at his trial on the basis of which he may be convicted and sentenced. However, we
find that in the certificate recorded at the end of both the confessions, in his own
handwriting, the Magistrate has inter alia confirmed that he had expressed to the accused
that they were not bound to make confessions and if they did, the same could be used as
evidence against them.

It was then submitted that no answer had been recorded to the question as to what time
during which and the places where the accused had been taken while in custody of the
police. But ' we find from the perusal of the confessions that answers in both the
confessions to the said questions are given and the same are:--

Learned counsel for the appellants had also pointed out certain contradictions between
the two confessions. The date of the offence is 19-7-1994. In his confession, Naseem
Akhtar gave the date as 17-7-1994 at two places whereas in Khalid's confession the
correct date of 19-7-1994 is given. The said difference in the date by Naseern Akhtar is

Page No. 11 of 16
not such an error or slip which affects the veracity or truthfulness of the confession of
Naseem Akhtar.

As regards the strangulation of the deceased boy, in both the confessions, it is mentioned
that both the appellants had strangulated him by pressing his neck till he died. Naseern
Akhtar mentioned that they were pressing the neck of the deceased for-half an hour
whereas Khalid does not mention the time. Then, according to the learned counsel,
Naseem Akhtar does not mention about the use of handkerchief whereas Khalid
mentioned about the use of handkerchief by Naseem Akhtar in the strangulation of the
deceased.

After carefully scrutinizing the confessions made by the appellants, we find that in all
most all respects the confessions tally with each other with very minor variations which
do not cast any doubt on the prosecution version. Perhaps, if the two confessions had
been exact copies of each other, eve .. ... .extent of all minor details, there might have
been a question mark as to why it was so.

The High Court has referred to a judgment of this Court in the case of Muhammad
Yaqoob v. State (1992 SCMR 1983) which has been relied upon by learned counsel for
the complainant. One of the principles reiterated in the said judgment is that any lapse on
the administrative side on the part of a Magistrate recording a confession may not be fatal
as to the evidentiary value of such confession provided the Court is satisfied that the
lapse on his part has not, in any way, adversely affected the voluntariness or truthfulness
of the confession.

We do not find any significant or material lapse on the par' of in recording the
confessions of the two appellants. One or two minor omissions cannot be termed as
lapses to affect the evidentiary value of the said confessions.

It was not established that the confessions had been obtained or tendered on account of
any pressure, influence or coercion from any quarter. No suggestion was made to P.W.1,
the Magistrate, that the confessions had been obtained under pressure, influence or
coercion, except for the general suggestion that the confession had been recorded by him
under the dictation of the Investigating Officer which was denied by P.W. 1.

As regards P.W.9, Inspector Abdul Rashid, then S.H.O. Police Station Gulberg, in his
cross-examination, apart from a general question that the police had maltreated the
appellants, no specific questions were put regarding any torture or maltreatment.
Similarly in their respective statements under section 342, Cr.P.C. the appellants have
made general allegation about maltreatment. No suggestions were made to prosecution
witnesses about where, how and by whom the maltreatments took place.

14. In this case, the deceased boy disappeared on 19-7-1994, on which a report was made
at the police station about his disappearance by the father of the boy. Till 6-8-1994, there
was no information about the whereabouts of the deceased except that telephone calls for
ransom were received by Fariduddin, father of the deceased. It is only after the arrest of
the two appellants on 6-8-1994 that the body of deceased was recovered. The two
appellants are closely related to Fariduddin, father of the deceased, being his cousins. If
he wanted to implicate them falsely, he could do so before their arrest or before the body
of the deceased was found but this was not done by him. He never suspected them. He
did not implicate them falsely. He had no enmity with the appellants.

The fact that the body was recovered on 6-8-1994, after the arrest of the appellants is
confirmed from the fact that the 'Soyem' of the deceased was held on 8-8-1994, which
fact is mentioned in the evidence of witnesses and which was not denied. There is
nothing on the record that anyone else knew about the place where the body of the
deceased was lying. No suggestion was made to prosecution witnesses that the body was
discovered earlier. As observed, it was only after their arrest that the body was discovered
and recovered.

The trial Court found the confessions to be truthful and having been made voluntarily by
the two appellants without any pressure, influence or coercion from any quarter which

Page No. 12 of 16
finding has been confirmed by the High Court. We find no infirmity or error in the
findings of the two Courts and the background and circumstances mentioned hereinabove
also confirm the prosecution case about the veracity and truthfulness of the said
confessions and the fact that they were made voluntarily.

15. In the case of Muhammad Yaqoob v. State (supra), it was observed that the retracted
confession of an accused is sufficient to sustain his conviction for a capital sentence if the
Court is of the view that the same is voluntary and is true but, as a rule of prudence the
same should not be acted upon unless corroborated by some other reliable evidence in
material particulars. As a pure question of law, it could be said that conviction for a
capital offence can be sustained on the basis of a retracted confession only, provided it is
voluntary and true. However, as observed, as a rule of prudence the Courts look for
corroboration by other reliable evidence.

In the present case, the High Court has relied upon the following pieces of evidence
providing corroboration in the retracted confessions of the two appellants:--

(a) Recovery of the handkerchief

(b) Recovery of motor-cycle

(c) Pointation of the place of kidnapping.

(d) Recovery of the dead body of the deceased at the pointation of the appellants.

(e) Arrest of appellant Khalid from telephone booth from where according to the
prosecution calls were made to the father of the deceased claiming ransom.

(f) Audio cassette containing conversation between the appellants and Fariduddin.

(g) Medical evidence

The High Court in the impugned judgment, despite the fact that the pointation and the
aforesaid recoveries were joint, accepted the same as admissible distinguishing various
judgments cited before the High Court for the proposition that joint pointation and joint
recoveries are inadmissible in evidence. Judgments cited by learned counsel for the
appellants support the proposition that joint pointation and joint recoveries are not
admissible. However, we do not consider it necessary in this case to decide this question
as, according to us, other reliable evidence is available for corroborating the retracted
judicial confessions of the two appellants. We may, however, observe that in some other
appropriate case the question regarding admissibility or otherwise of joint or
simultaneous pointation and recoveries can be decided by an authoritative judgment of
this Court.

16. Reference may now be made to judgment of this Court in the case of Gul Jamal v.
State (NLR 1980 Cr. (SC) 357). In that case also there were 2 appellants before this Court
in a murder case. After their arrest, the appellants led the S.H.O. to a place where they
had washed the blood from the tonga and discarded the clothes of the deceased and to a
place at a distance of 100 yards further from where a torn Shalwar and a piece of the shirt
of the deceased were secured. Both the appellants led the S.H.O. to a house from where
one of the appellants, Gul Jamal had picked up a blood-stained dagger. An objection had
been raised regarding joint pointation and recoveries and in this context it war. observed
as follows:--

"it was contended that the joint recoveries should not he accepted as pieces of
corroboratory evidence for such evidence cannot be regarded as evidence of conduct
under section 8 of the Evidence Act. In evaluating this submission the weight of
authorities have judged this piece of evidence on the footing of a statement made to a
police officer under section 27 of the Evidence Act which leads to the discovery of a fact
and for reference sake we may here cite Faqira and others v. Emperor (AIR 1929 Lah.
665) and Rafiqucuddin Ahmed and others v. Emperor (AIR 1935 Calcutta 184). In this

Page No. 13 of 16
connection it will be of relevance to refer to Minor's Commentary on the Law of
Evidence, 1974 Edition, at page 62 of his book: --

'If, however, two or more persons are alleged to have pointed out a relevant fact, it must
be shown who pointed out the fact first; and if that is not done, the evidence of pointing
out will not be admissible against any one of the accused. Where no material fact is
discovered, and the accused merely points out places where certain incidents took place,
the evidence Of Pointing out will not be admissible. Of course, the fact that the accused
Produced stolen property or any instruments used in the commission Of the offence and
always be proved as a relevant fact under, as well as apart from, the present section.'

The reason for exclusion is not far to seek, for section 27 of the Evidence Act renders a
statement admissible if it leads to the discovery of a fact. Similarly, Explanation I to
section 8, also makes statements which accompany and explain facts other than the
statements also admissible and since the line to be drawn between the admissibility of
these statements under section 27, and Explanation 1 to section 8 is thin the courts had
been zealous to guard against the admission of statements which amount to confessions
even though they accompany and explain acts and, therefore, they have held section 8 to
be read subject to sections, 25, 26 and 27 of the Act. Further, for drawing the inferential
conclusion, the Courts have insisted that the statements leading to the discovery of
incriminating articles should be precise and if the fact is discovered at the behest of two
persons then it should be clear as to who gave the information first either by words of
gesture so as to fasten the discovery of the incriminating article with his conduct in terms
of Explanation I to section 8. However, a distinction has to be drawn where, without
making a statement an accused leads to a place where he had discarded the articles and
upon a search these were recovered. In such a case it would amount to an act which
would be relevant under section 8 as a piece of conduct; and if authority is needed it will
be found in the case of Emperor v. Nanua (AIR 1941 All. 145). In drawing a distinction
between an act and statement, it was held as under:----

'Conduct' may in certain circumstances includes statements as well as acts, but in doing
so it still retains the difference between an act and a statement. The difference between a
statement and an act is in our opinion clear, A statement must consist of words, be they
spoken, be they written, or be they spelled out, as would be done by a mute person who
spells Out words on his fingers, and we are inclined to think that even words would not
always be statements, as for instance, if a person recited the numbers from I to 10, if one
considers a statement in the sense used in section 162, Cr.P.C. Acts however exclude
words and in our opinion cannot be translated into words. For instance if a person points
out a place, it is impossible to say whether had he spoken he would have said look there
or dig there, or you will find there, or I have buried there, or I have committed such and
such crime. We are unable to hold, therefore, that the fact that in present case appellant.
by taking in his hands certain articles and handing them over, made a statement muchless
can we find that he made a statement which amounts to a confession.

In Ganu Chandra Kashid v. Emprror (33 Cr.U 396). Beaumont, C.L. held:--

'The fact of the production of these sums of money is of course admissible as conduct
under section 8 of the Act, and if the fact of production is admissible, then the
circumstances in which the production took place are also relevant under section 9.

The cases of Faqira and others v. Emperor (supra) and Rafiquddin Ahmad and others v.
Emperor (supra) were decided on the premise that the statements made by the accused
persons did not show any particularity as to from whose information the recovery was
effected so as to fasten the statement with the act in terms of Explanation I to section 8
and also for the reason as to who was the first to give that statement which led to the
recovery of the article as in that eventuality the statement of the other could not be linked
with the act as the fact had already been discovered. In these cases, however, no
distinction was attempted to be drawn between an act simpliciter and the statement
accompanying the act and, therefore, whatever was said in the context of the facts of
those cases. Here in so far as the seizure of the dagger is concerned, the act of Gul Jamal
in picking it up from under the box cannot be excluded for it is a piece of relevant
conduct under section 8. Similarly, the joint leading to the place from where the clothes

Page No. 14 of 16
of the deceased were recovered is also an act and we see no reason why it should not be
so fastened to each appellant as a piece of conduct under section 8 of the Evidence Act in
the absence of any bar in this section itself. The High Court had taken the presence of the
blood on the front seat of the tonga, which was of the same group as that of the blood of
the deceased, to substantially corroborate the confessions of both the appellants as they
had stated that the first blow was given while the deceased was sitting on the front seat of
the tonga'. "

(It may be noted that sections 26, 27 and 28 of the repealed Evidence Act, 1872, are
identical to Articles 38, 39 and 40 of Qanun-e-Shahadat Order.)

It has been held that joint leading by the two appellants in the reported judgment to the
place from where the clothes of the deceased were recovered is also an act and that the
same can be fastened to each appellant as a piece of conduct under section 8 of the
Evidence Act (now Article 22 of Qanun-e-Shahadat Order, 1984) in the absence of any
bar in such section itself.

17. In the present case, though there might be some objection to the admissibility of joint
recoveries and joint pointation by the appellants the fact that the two appellants led the
police to the place from where the dead body of the deceased and motor-cycle were found
and recovered are conducts of the appellants which are admissible under Article 8 of
Qanun-e-Shahadat Order. 1984 and can be used as corroboration for the judicial
confessions. At least as regards the dead body, it has also been noted that since the boy
disappeared nobody knew his whereabouts and the boy was recovered only after the
appellants had been arrested on 6-8-1994. Both the appellants led the police and others to
the place where the body was found and this is a very important and admissible conduct
against the two appellants and provides corroboration for their involvement in the crime
and for their confessions.

Apart from the above, production of the audio cassette by Fariduddin in which, according
to Fariduddin, the conversation with the abductors was recorded at the instance of the
CPLC (Citizen Police Liaison Committee) is also a piece of evidence against the
appellants. Fariduddin father of the deceased, had talked to the kidnappers on telephone
and the conversation was taped on the said audio cassette, There is no reason or motive
for Fariduddin to introduce a fake cassette for the purpose of providing evidence against
the appellants. As observed, according to the evidence of Fariduddin, after the telephone
calls started coming from the kidnappers, he was advised to get the conversation recorded
which was done. At that time he did not know nor he suspected that the two appellants.
close relatives, were involved and were the culprits who were making demands on
telephone. There is no reason to disbelieve or doubt the testimony of Fariduddin that the
cassette contained the voice of the accused.

Another piece of evidence, though weak, is the confession of one appellant against the
other appellant. It has been reiterated in the case of Muhammad Yaqoob v. State (supra)
that though the confession is evidence of a weak character and cannot be made the
foundation of conviction the same can be used in support of other evidence. Under
Article 43 of Qanun-e-Shahadat Order, confession of a co-accused can be taken into
consideration as circumstantial evidence. Though confession of the co-accused may not
by itself he sufficient to corroborate the retracted confession of another accused, in the
presence of other evidence the confession of co-accused can be used as further
corroboration.

Medical evidence of P.W.5 Dr. Syed Saeed Haider, who had performed post-mortem on
the body of the deceased, also confirmed that the deceased died on account of
strangulation, which is how the deceased was done to death by the appellants according
to their confessions. The medical evidence also provides support to the case of the
prosecution against the appellants.

18. In our view, therefore, the retracted confessions of the two appellants were truthful
and made voluntarily by the appellants and the said confessions are corroborated by the
pieces of evidence mentioned hereinabove. The case against the appellant had been

Page No. 15 of 16
established beyond reasonable doubt and the impugned judgment of the High Court does
not call for interference.

19. As a result, Criminal Appeal No.298 of 1998 is dismissed.

N.H.Q./N-55/S Appeal dismissed

Page No. 16 of 16
1994SCMR2177

[Supreme Court of Pakistan]

Present: Saeeduzzaman Siddiqui, Fazal Ilahi Khan and Wali Muhammad Khan, JJ

RIFFAT HAYAT---Appellant

versus

JUDGE SPECIAL COURT FOR SUPPRESSION OF TERRORIST ACTIVITIES,

LAHORE and another---Respondents

Criminal Appeal No.36 of 1994, decided on 25th August, 1994.

(On appeal from the judgment of Lahore High Court, dated 22-1-1994, passed in W.P.
805/94).

(a) Suppression of Terrorist Activities Act (XV of 1975)---

----S.5---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to

consider whether in view of the special provision contained in S. 5, Suppression of
Terrorist Activities Act, 1975 laying down the conditions for taking cognizance in a case
by a Special Court, a private complaint could be entertained, after a challan was already
filed in respect of the case by the Police before the Court mentioning the names of all the
accused persons, though some of them were shown in Column No.2 of the Challan.

(b) Criminal Procedure Code (V of 1898)--

----Part V, Chap. XIV [Ss. 154 to 1761---Taking cognizance of criminal case by

Court---Procedure detailed.

(c) Suppression of Terrorist Activities Act (XV of 1975)---

----Ss.5 & 5-A---Criminal Procedure Code (V of 1898), Ss.173, 190 & 193--'Direct
cognizance of a case or entertaining a private complaint by Special
Court---Procedure---Special Court can take cognizance of a case directly as a Court of
original jurisdiction in the same manner as a Magistrate is empowered to take cognizance
of a case under 5.190, Cr.P.C.---Procedure prescribed under Criminal Procedure Code,
1898 for entertaining private, complaint or taking direct cognizance of a case by the
Magistrate in so far as it is not inconsistent with the provisions of Ss.5 & 5-A',
Suppression of Terrorist Activities Act, 1975, was not excluded in its application to
proceedings before the Special Court---Special Court, therefore, was competent to
entertain private complaint and issue process to the accused person after holding
preliminary inquiry in the case---Subsequent filing of the Police Report under 5.173,
Cr.P.C. by the Incharge of police station long after filing of the private complaint before
the Special Court by the complainant could not divest the Special Court of its jurisdiction
under S.5(3) of the Act to take direct cognizance of the case.

Section 5(1) of the Suppression of Terrorist Activities Act, 1975 provides that the officer
incharge of the police station, on completion o: investigation, shall forward its report
under section 173 of Cr.P.C. to the Special Court within 14 days in respect of a case
triable exclusively by the Special Court. Section 5(2) of the Act deals with the power of
Special Court to extend time of 14 days prescribed under subsection (1) of section 5 of
the Act for submission of police report and the consequences of delay and default in
compliance with the provisions of section 5(1) by the Police Officer. Subsection (3) of
section 5 of the Act provides that the Special Court may directly take cognizance of a
case triable by that Court without the case being sent to it under section 190 of the
Criminal Procedure Code. A comparison of provisions of section 190 of the Criminal
Procedure Code with section 5 of the Act will show that neither application of section
173 nor section I90 of the Code is excluded either specifically or by necessary
implication. The provisions relating to taking of direct cognizance by the Special Court

Page No. 1 of 8
contained in subsection (3) of section 5 of the Act is not a new one as a similar provision
for taking cognizance of the case directly by a Magistrate already existed under
subsection (2) of section 190 of the Code. Section 5 of the Act, which appears to be a
combination of sections 173 and 190 of the Code differs from these provisions only to the
extent hereinafter indicated. Section 173 of the Code provides for submission of the
report by the incharge of police station to the concerned Magistrate, who in turn forwards
the same to the Court competent to try the case. Under section 5 of the Act, the incharge
of police station is required to submit the report in a case triable by Special Court directly
to that Court. Section 173 of the Code provides no time limit for submission of the report
on conclusion of investigation by the officer incharge of the police station to the
concerned Magistrate while section 5 of the Act lays down a time limit of 14 days for
submission of such a report to. Special Court and delay in compliance of this time limit is
punishable as disobedience of the order of Special Court. A Court of Session under
section 193, of the Code is debarred from taking cognizance of a case as a Court of
original jurisdiction unless the case is sent to it by a Magistrate under section 190(3) of
the Code whereas a Special Court under the Act can take cognizance of a case directly as
a Court of original jurisdiction in the same manner as a Magistrate is empowered to take
cognizance of a case under section 190 of the Code. Section 5-A of the Act prescribes the
procedure to be adopted by the Special Court in the cases exclusively triable by it.

Subsection (9) of section 5-A of the Suppression of Terrorist Activities Act, 1975 clearly
provides that in all matters with respect to which no procedure has been prescribed under
the Act, the procedure prescribed by the Code for cases triable by the Magistrates will be
adopted. Therefore, only to the extent of the inconsistency and difference between the
provisions of the Act and the Code, the provisions contained in the latter will not be
applicable to the proceedings before the Special Court. No specific procedure has been
laid down under section 5-A of the Act for taking direct cognizance by the Special Court
in a case triable by it. The only condition prescribed under the Act for taking direct
cognizance by the Special Court in a case triable by it is, that the case has not been sent to
it under section 190 of the Code. Therefore, the procedure prescribed under the Code for
entertaining private complaints or taking direct cognizance of a case by the Magistrate, in
so far it is not inconsistent with the provisions of sections 5 and 5-A of the Act, was not
excluded in its application to proceedings before the Special Court. Section 190 of the
Code in its application to Special Court is neither excluded by express prohibition nor by
necessary implication, except to the extent of the difference between the two provisions
(section 5 of the Act and section 190 of the Code) indicated above. A direct complaint,
therefore, in a case triable by the Special Court, which has not been sent to it under
section 190 of the Code was maintainable. In the present case it is quite clear from the
facts brought on record that no police report under section 173 of the Code or under
section 5(1) of the Act, was submitted to the Special Court at the time the direct
complaint was filed by the respondent before the Special Court. In these circumstances
the Special Court was not only competent but rightly entertained the private complaint
and issued process to the accused persons after holding preliminary inquiry in the case.
The subsequent filing of the police report under section 173 of the Code by the incharge
of the police station long after filing of the private complaint before the Special Court by
the complainant could not divest the Special Court of its jurisdiction under section 5(3) of
the Act to take direct cognizance of the case.

A Special Court is entitled to take direct cognizance of a case triable by it exclusively if a

case has not been sent to it in accordance with the provisions of section 190 of the Code.
The Special Court can take cognizance of the case on the basis of complaint filed by
complainant which was much earlier to the police report under section 173 of the Code.

Irshad v. The State 1987 PCr. LJ 2131 distinguished.

(d) Suppression of Terrorist Activities Act (XV of 1975)---

----Ss.5 & 5-A---Special Court seized of the case both on the basis of private complaint
as well as Police challan---Procedure to be adopted.

Nur Elahi v. Ch. Ikram-ul-Haq and another PLD 1966 SC 708 and Rashid Ahmad v.
Asghar Ali and others PLD 1986 SC 737 ref.

Page No. 2 of 8
(e) Suppression of Terrorist Activities Act (XV of 1975)---

----Ss.5 & 5-A---Special Court could summon the persons to whom the process had been
issued by the Special Court even though they were found innocent by the two successive
Police investigations.

Raja Khushbakhtur and another v. The State 1985 SCMR 1314 ref.

Talib H. Rizvi, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for
Appellant.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

M. Bilal, Senior Advocate Supreme Court with Ejaz Muhammad Khan,

Advocate-on-Record for Respondent No.2.

Date of hearing: 5th July, 1994.

JUDGMENT

SAEEDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is
filed by the appellant against the order of a learned Division Bench of Lahore High Court
dated 22-1-1994, dismissing Writ Petition No.805 of 1994 filed by the appellant to
challenge the order of Special Judge for Suppression of Terrorist Activities, Lahore
(hereinafter to be referred as ('the Special Court') dated 6-11-1993, issuing summons to
appellant and 9 others in a case under sections 302/324 and 149, P.P.C.

Leave was granted in the case to consider 'whether in view of special provision contained
in section 5 of the Suppression of Terrorist Activities Act, 1975, laying down the
conditions for taking cognizance in a case by a Special Court, a private complaint could
be entertained, after a challan was already filed in respect of the case by the police before
the Court mentioning the names of all the accused persons, though some of them were
shown in column No.2 of the challan.

The appellant, alongwith 9 others, was named as accused person in F.I.R. No.369/92
registered at Police Station Factory Area, Lahore, at the instance of respondent No.2,
under sections 302/324/148/149 and 109, P.P.C. on 28-8-1992, in connection with double
murder of Nazir Shah and Sajjad Ahmed alias Bhutto and for launching murderous
assault on Amanullah, P.W. The police during investigation found only one out of the 10
accused persons framed in the F.I.R., namely Amer Ali involved in the case and
accordingly submitted challan against him on 28-7-1993. However, before submission of
police challan in the case, the complainant (respondent No.2) filed a direct complaint
before the Special Court on 12-1-1993. The learned Special Court recorded evidence of
the complainant on 21-9-1993 and further examined Amanullah, Dr. Muhammad
Mahmood Alam Pasha and Shehzad Khan (P.Ws.) on 18-10-1993 and 24-10-1993
respectively. On the basis of the above preliminary evidence, the learned Special Court
found a prima facie case against the appellant and nine others and accordingly ordered
issuance of process against them on 6-11-1993 to appear before him on 20-11-1993. The
appellant challenged the above order of Special Court before the Lahore High Court in a
Writ Petition but without success. Leave to appeal was granted against the order of High
Court by this Court as aforesaid.

Mr. Talib Hussain Rizvi, the learned A.S.C. appearing for the appellant, contended before
us that section 5 of the Suppression of Terrorist Activities Act, 1975 (hereinafter to be
referred as the Act' only) lays down specific conditions for taking cognizance by the
Special Court in a case triable by it. It is contended by the learned counsel that in view of
section 5 of the Act, the Special Court can take cognizance either on the report of the
Officer-incharge of a Police Station under section 173 of the Code of Criminal Procedure
(hereinafter to be called as 'the Code') ;or it may take cognizance of the case directly
without filing of such report by the Police Officer. Apart from these modes prescribed
under section 5 of the Act, according to Mr. Talib Hussain, the Special Court has no

Page No. 3 of 8
power to take cognizance of a case under the Act in any other manner. According to Mr.
Talib Hussain, the effect of prescribing the above procedure for taking cognizance of a
case under the Act by the Special Court, necessarily excluded the procedure of
entertainment of a direct complaint by the Special Court available under the Code. The
learned counsel for the respondents on the other hand supported the order of High Court
and jointly contended that entertainment of a direct complaint by the Special Court in
accordance with the provisions of the Code is neither excluded expressly nor by
necessary implication by section 5 of the Act. We have heard the learned counsel for the
parties at length.

In order to understand the contentions raised in the above case, it is necessary first to
examine the procedure prescribed under the Code for taking cognizance of a criminal
case by the Court. Chapter XIV of Part V of the Code prescribed the manner in which
intonation regarding commission of cognizable and non-cognizable offences is to be
conveyed to police officers and the powers of the police officer to investigate these
offences. Section 173 in Chapter XIV of the Code requires that the result of every
investigation conducted by police officer is to be forwarded by the officer incharge of
police station to a Magistrate empowered to take cognizance of the offence on a police
report in the form prescribed by the Provincial Government. This report contains the
names of the parties, nature of information and names of persons who appeared to be
acquainted with the circumstances of the case. This report also states whether persons
named as accused in the F.I.R. have been arrested and if arrested whether they are being
forwarded in custody or have been released after taking bond with or without surety. On
receipt of the report under this section, the Magistrate may either discharge the bonds of
the accused person released by the police after taking bond or he may direct otherwise. A
copy of the report under section 173 ibid, is to be provided on application to an accused
person before the commencement of inquiry or trial before the Magistrate. Part VI,
Chapter XV of the Code contains sections 177 to 199-B, which deal with the jurisdiction'
of criminal Courts to hold inquiries and trials. Section 190, in Chapter XV of the Code
which is relevant here, reads as under:--

"190.---Except as hereinafter provided any District Magistrate or Sub-Divisional

Magistrate, and any other Magistrate specially empowered in this behalf, may take
cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offences;

(b) upon a report in writing of such facts made by any police officer,

(c) upon information received from any person other than a police officer, or upon his
own knowledge or suspicion, that such offence has been committed.

(2) The Provincial Government, or the District Magistrate subject to the general or
special orders of the Provincial Government may empower any Magistrate to take
cognizance under subsection (1), clause (a) or clause (b), of offences for which he may
try or send to the Court of Session for trial.

(3) A Magistrate taking cognizance under subsection (1), of an offence triable exclusively
by a Court of Session shall, without recording any evidence, send the case to the Court of
Session for trial.

The above section provides that the District Magistrate or Sub-Divisional Magistrate or
any other Magistrate specially empowered in this behalf may take cognizance of an
offence (i) either on receipt of a complaint of facts disclosing commission of an offence
(private complaint); or (ii) on the basis of a report in writing of such facts made by a
police officer (report under section 173, Cr.P.C.); or (iii) upon information received from
any person other than police officer or upon his own knowledge or suspicion that such
offence has been committed (direct cognizance). Subsection (2) of section 190 provides
that the Provincial Government or a District Magistrate subject to the general or special
orders of the Government may empower any Magistrate to take cognizance of offences
under subsection (1), clauses (a) and (b) of section 190 C (1) ibid and either try the case
himself or send it to the Court of Session for trial. Subsection (3) of section 190 ibid

Page No. 4 of 8
makes it obligatory on the Magistrate taking cognizance under subsection (1) of section
190 to forward the case to the Court of Session without recording any evidence if such
case is exclusively triable by the Court of Session. Section 193 in Chapter XV of the
Code also needs mentioning here as it prohibits taking of cognizance by a Court of
Session as a Court of original jurisdiction unless the case is sent to it by a Magistrate
under section 190(3) ibid. Having referred briefly to the procedure of investigation of
criminal offences by the police and the manner of inquiries and trial of criminal offences
by the Court, we now turn to the provisions of the Act in this regard.

Section 5(1) of the Act provides that the officer incharge of the police station, on
completion of investigation, shall forward its report under section 173 of the Code to the
Special Court within 14 days in respect of a case triable exclusively by the Special Court.
Section 5(2) of the Act deals with the power of Special Court to extend time of 14 days
prescribed under subsection (1) of section 5 of the Act for submission of police report and
the consequences of delay and default in compliance with the provisions of section 5(1)
by the police officer. Subsection (3) of section 5 of the Act provides that the Special
Court may directly take cognizance of a case triable by that Court without the case being
sent to it under section 190 of the' Code. A comparison of provisions of section 190 of the
Code with section 5 of the Act will show that neither application of section 173 nor 190
of the Code is excluded either specifically or by necessary implication. The provision
relating to taking of direct cognizance by the Special Court contained in subsection (3) of
section 5 of the Act is not a new one as a similar provision for taking cognizance the case
directly by a Magistrate already existed under subsection (2) of section 1.90 of the Code.
Section 5 of the Act, which appears to be a combination of sections 173 and 190 of the
Code differs, from these provisions only to the extent hereinafter indicated. Section 173
of the Code provides for submission of the report by the incharge of police station to the
concerned Magistrate, who in term forwards the same to the Court competent to try the
case. Under section 5 of the Act, the incharge of police station is required to submit the
report in a case triable by Special Court directly to that Court. Section 173 of the Code
provides no time limit for submission of the report on conclusion of investigation by the
officer incharge of the police station to the concerned Magistrate while section 5 of the
Act lays down a time limit of 14 days for submission of such a report to Special Court
and delay in compliance of this time limit is punishable as disobedience of the order of
Special Court. A Court of Session under section 193 of the Code is debarred from taking
cognizance of a case as a Court of original jurisdiction unless the case is sent to it by a
Magistrate under section 190(3) of the Code whereas a Special Court under the Act can
take cognizance of a case directly as a Court of original jurisdiction in the same manner
as a Magistrate is empowered to take cognizance of a case under section 190 of the Code.
Section 5-A of the Act prescribes the procedure adopted by the Special Court in the cases
exclusively triable by it. It reads as follows:--

"5A. Procedure of Special Court.--(1) On taking cognizance of a case the Special Court
shall proceed with the trial from day to day and shall decide the case speedily.

(2) A Special Court shall not adjourn any trial for any purpose, unless such adjournment
is in its opinion, necessary in the interest of justice and no adjournment shall be granted
for more than two - days.

(3) A Special Court shall not, merely by reason of a change in its ~~:m composition or
transfer of a case under section 4A, be bound to recall and rehear any witness who has
given evidence, and it may act on the evidence already recorded.

(4) An accused person may be tried in his absence, if the Special Court after such inquiry
as it deems fit, is satisfied that---

(a) such absence is deliberate and brought about with a view to impeding the course of
justice; or

(b) the behaviour of the accused in Court has been such as to impede the course of justice
and the Special Court has on that account ordered his removal from the Court:

Page No. 5 of 8
Provided that, in a case referred to in clause (a), the accused person shall not be tried
unless a proclamation in accordance with the provisions of section 87 of the Code has
been published in respect of him, which proceedings shall be completed by the Special
Court within seven days, and until the proclamation has been published in at least three
national daily newspapers out of which two shall be in the Urdu language:

Provided further that the Special Court shall proceed with the trial after taking necessary
steps to appoint an advocate to defend the accused person who is not before the Court.

(5) The advocate appointed under the second proviso to subsection (4) shall be a person
selected by the Special Court for the purpose as far as may be, with the consent of the
accused and he shall be engaged at the expense of Government and a notice of his
appointment shall be published by the Special Court in the newspapers referred to in the
first proviso to the said subsection.

(6) An accused who is tried in his absence under subsection (4) shall be deemed not to
have admitted commission of any offence for which he has been charged.

(7) If, within sixty days from the date of his conviction, any person tried under subsection
(4) appears voluntarily or is apprehended and brought before the Special Court, and
proves to its satisfaction that he did not abscond or conceal himself for the purpose of
avoiding the proceedings against him, the Special Court shall set aside his conviction and
proceed to try him for the offence for which he is charged:

Provided that the Special Court may exercise its powers under this subsection in a case in
which a person as aforesaid appears before it after the expiration of the said period and
satisfied it that he was prevented from appearing within the said period by circumstances
beyond his control.

(8) An accused person shall not be released on bail by a Special Court or by any other
Court, if there appear reasonable grounds for believing that he has been guilty of a
scheduled offence; nor shall an accused person be so released unless the prosecution has
been given notice to show cause why he should not be so released.

(9) A Special Court shall in all matters with respect to which no procedure has been
prescribed by this Act, follow the procedure prescribed by the Code for the trial of cases
by ' Magistrates' . "

Subsection (9) of section 5-A of the Act clearly provides, that in all matters with respect
to which no procedure has been prescribed under the Act, the procedure prescribed by the
Code for cases triable by the Magistrates will be adopted. Therefore, only to the extent of
the inconsistency and difference between the provisions of the Act and the Code, the
provisions contained in the latter will not be applicable to the proceedings before the
Special Court. The learned counsel for .the appellant admitted that no specific procedure
has been laid down under section 5-A of the Act for taking direct cognizance by the
Special Court in a case triable by it. The only condition prescribed under the Act for
taking direct cognizance by the Special-Court in a case triable by it is, that the case has
not been sent to it under section 190 of the Code. Therefore, in our view the procedure
prescribed under the Code for entertaining private complaints or taking direct cognizance
of a case by the Magistrate in so far it is not inconsistent with the provisions of sections 5
and 5-A of the Act, was not excluded in its application to proceedings before the Special
Court. Section 190 of the Code in its application to Special Court is neither excluded by
express prohibition nor by necessary implication, except to the extent of the difference
between the two provisions (section 5 of the Act and section 190 of the Code) indicated
above. A direct complaint, therefore, in a case triable by the Special Court, which has not
been sent to it under section 190 of the Code was maintainable 'n the case before us, it is
quite clear from the facts brought on record that no police report under section 173 of the
Code or under section 5(1) of the Act, was submitted to the Special Court at the time the
direct complaint was filed by the respondent before the Special Court. In these
circumstances the Special Court was not only competent but rightly entertained the
private complaint and issued process to the accused persons after holding preliminary
inquiry in the case. The subsequent filing of the police report under section 173 of the

Page No. 6 of 8
Code by the incharge of the police station long after filing of the private complaint before
the Special Court by the respondent/complainant could not divest the Special Court of its
jurisdiction under section 5(3) of the Act to take direct cognizance of the case. The
learned counsel for the appellant has relied on the case of Irshad v: The State 1987 P Cr.
L J 2131. In the above-cited case, the appeal arose from conviction under section 18(a) of
the Emigration Ordinance, 1979. Subsection (6) of section 24 of the Emigration
Ordinance provided that a Special Court shall take cognizance of an offence triable by it
exclusively, only upon complaint in writing which is accompanied by previous sanction
of Federal Government. In view of this special provision, the learned Judge in Chambers
in that case reached the conclusion that as the offence under the Emigration Ordinance
was cognizable by the Special Court only in the manner provided in section 24(6) of the
Emigration Ordinance, the Court could not take cognizance in any other manner. The
case, therefore is quite distinguishable and has no application to the circumstances of the
present case. In the case before us, section 5 of the Act clearly provides that a Special
Court is entitled to take direct cognizance of a case triable by it exclusively if a case has
not been sent to it in accordance with the provisions of section 190 of the Code. From the
material on record before us, it is quite clear that the Special Court took cognizance in the
present case on the basis of complaint filed by respondent which was much earlier to the
police report under section 173 of the Code. We are, therefore, of the view that in the
circumstances of the case, the Special Court acted within its jurisdiction in taking
cognizance of the case on the basis of a direct complaint. In the case of Nur Elahi v. Ch.
Ikram-ul-Haq and the State PLD 1966 SC 708, this Court considered the question as to
what procedure is to be adopted in a case by the Court where it is seized of the case both
on the basis of private complaint as well as police challan. The following observations
were made by this Court after referring to the various provisions of the code which may
be reproduced here with advantage:-

"The question then is what should be the procedure to be adopted by the learned trial
Judge in disposing of these two cases. It has been conceded by the learned
Advocate-General as well as by Ch. Nazir Ahmad Khan who appeared for the three
accused persons in the complaint case, that paragraph 8 of the judgment of the learned
Single Judge, in so far as it directed that witnesses should be examined only once and
their statements read out as evidence in the other case, is not supportable in law. To that
extent, the appeal is well-founded and must succeed on this point.

The question how the two cases should be proceeded with so' as to cause no prejudice to
either party, is one of difficulty in the circumstances mentioned and has caused us some
concern. The learned Advocate-, General suggested that we might issue directions similar
to those embodied by the Lahore High Court in the unreported case cited above. The
learned Judges observed therein that it would be desirable, should the trial Judge decide
to hear first the case based on the police version, to summon the witnesses supporting the
counter-version as Court witnesses under section 540-A of the Code of Criminal
Procedure, so that the record contains all the relevant evidence. Similar procedure was
directed to be adopted during the trial of the complaint case. After considering all aspects
of the matter, we hold that a fair procedure would be for the learned trial Judge to take up
the complaint case first for trial. During that case the learned trial Judge may call the
witnesses mentioned in the police challan, if they were not already examined on behalf of
the complainant, as Court witnesses under section 540-A of the Criminal Procedure Code,
so that they can be cross-examined by both the parties. This will enable the Court to have
the whole' relevant evidence included in one trial and a decision could be arrived at after
a proper consideration of the entire material relied on by the parties. The accused persons
would in addition obviously have the right to adduce defence evidence if they so choose.
If that trial results in a conviction; it will be for the Public Prosecutor to consider whether
or not he should withdraw from the prosecution, with the permission of the Court, under
section 494 of the Code of Criminal Procedure, in the police challan case. It would be
easy for him to take such a decision after the whole evidence has been thrashed out in the
first trial. If the first case ends in' an acquittal, he might still have to consider whether the
police version has not been so seriously damaged by what has been brought out in the
first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be
allowed to proceed to its normal conclusion and the parties would have the advantage of
utilizing the material placed on the record of the earlier trial, by way of
cross-examination of the relevant witnesses as permitted by law.

Page No. 7 of 8
The procedure is being suggested to avoid a difficulty that might otherwise confront the
complainant. If the police challan is taken up first for trial, the complainant would be
under a handicap in so far as he would not be in a position to cross-examine the witnesses
for the prosecution.

Another difficulty may arise in respect of conducting the case on behalf of the
complainant in the first trial. Normally, of course, under the law, the Public Prosecutor is
to be incharge of the case, even if the trial is based on a private complaint. The Public
Prosecutor, however, in the special circumstances of the case, could permit the
complainant's counsel to conduct the proceedings on his behalf under his directions.
Alternatively and that may meet the situation more adequately, Government in the
interest of justice, could notify the complainant's counsel, as a Special Public Prosecutor,
for the conduct of that case alone. This would ensure full justice to complainant and he
would not be left with any sense of grievance. He is at present challenging the bona fides
of the police investigations. We, therefore, allow the appeal and direct that the trials will
now be taken by the trial Judge in accordance with the observations made above. "
The view expressed in Nur Elahi’s case (supra) by this Court was reiterated with
approval in the case of Rashid Ahmad v. Asghar Ali and others (PLD SC 737)
The contention of the appellant that the persons to whom the process has been
issued by the learned Special Court were found innocent by the two successive
police investigations and therefore, they could not be summoned in the case, has
no merit. In the case of Raja Khushbakhtur and another v. The State (1985
SCMR 1314), this Court dealt with a similar argument and observed as follows:

"7. As regards the power of the trial Court to summon the petitioners, who had been
placed in column No.2 learned counsel does not deny that the trial Court is possessed of
such power. He contends that the trial Court had not taken proper note of the fact that the
petitioners had been found guilty neither by the police nor by the Ilaqa Magistrate to
whom the case has been referred under section 202, Cr.P.C. The learned Judge in his
order, dated 3-10-1978 has given reasons for summoning the petitioner. He had perused
the record before him. His order summoning the petitioners thus suffers from no legal
infirmity. It is to be noted that the petitioners had dropped their objection to the issue of ;
process against them by withdrawing their Criminal Miscellaneous No.992-M of 1982. "

In view of the aforesaid reasons, we find no merit in this appeal which is, accordingly,
dismissed but in the circumstances of the case there will be no order as to costs.

M.B.A./R.239/S Appeal dismissed.

Page No. 8 of 8
P L D 1994 Supreme Court 314

Present: Muhammad Rafiq Tarar, Pir Muhammad Karam Shah and Maulana
Muhammad Taqi Usmani,JJ

JAVED MASIH and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.41 (Shariat) of 1992, decided on 4th January, 1994.

(On appeal from the judgment and order of the Federal Shariat Court dated
3-2-1992 passed in CrA. 46-K of 1991/M.R.No.3/I of 1991).

(a) Penal Code (XLV of 1860)---

----S. 302/34---Constitution of Pakistan (1973), Art.203-F(ZB) --- Leave to appeal was

granted in the case for reappraisal of evidence.

(b) Penal Code (XLV of 1860)---

----S. 302/34---Appraisal of evidence---Confessional statement made by accused under

S.1G4, Cr.P.C. admitting to have actively participated in the murder of the deceased was
inculpatory which could safely be used against him as well as against his
co-accused---Such confessional statement was also corroborated by the arrest of its
c-Baker and recoveries effected from him, and prosecution evidence including medical
evidence ---Khas Deposit Certificates alleged to have been stolen were recovered at the
instance of accused had also connected them with the commission of the
offence---Picking up of two witnesses by the Investigating Officer from a place not very
far from the place of raid could not render the recoveries doubtful or
ineffective---Convictions and sentences of accused were upheld in circumstances:

(c) Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898); S.164--Statement of an

accomplice---Solitary statement of an accomplice should not form the basis of '
conviction of other accused persons unless it is corroborated by some other circumstantial
or ocular evidence.

(d) Penal Code (XLV of 1860)---

----S. 302/34---Appraisal of evidence---Confessional statement made by co accused

implicating the accused did not find strong corroboration from any other
evidence---Accused was not seen by anybody at or around the place of incident on the
night of occurrence, nor was he seen by any independent witness at that time in the
company of the deceased persons or in the company of anyone of the three
culprits---Recoveries effected from the accused did not connect him with the
crime---Accused was acquitted on benefit of doubt in circumstances.

Sardar Muhammad Ishaque, Advocate Supreme Court and Muhammad Ansarul

Islam Qarni, Advocate-on-Record (absent) for Appellants.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record for the State.

Date of hearing: 23rd November, 1993.

JUDGMENT

MAULANA MUHAMMAD TAQI USMANI, J: --The four appellants namely,

Javed Masih, Shamoon Masih, Arif Masih and Noor Masih were tried by the learned
Additional Sessions Judge No.VII South Karachi under section 17(4) of the Offences

Page No. 1 of 9
Against the Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to
as the Ordinance, 1979). At the conclusion of the trial the accused, Javed Masih,
Shamoon Masih and Arif Masih were convicted under section 302, F.P.C. and section
17(4) of the Ordinance and were sentenced to death and a fine of Rs.50,000 each, and in
case of default in the payment of fine the defaulter was ordered to undergo imprisonment
for 5 years. However, the accused Noor Masih was convicted under section 301 read with
section 17(4) of the Ordinance and was sentenced to life imprisonment and to pay a fine
of Rs.50,000 to be paid to the heirs of the deceased. All the four appellants preferred an
appeal before the Federal Shariat Court. The appeal of Javed Masih, Shamoon Masih and
Noor Masih was dismissed by the Federal Shariat Court. However, their conviction under
section 17(4) of the Ordinance was set aside .and all their sentences under section 302,
P.P.C. were maintained, and the conviction of Noor Masih was converted from section
301, P.P.C. to section 302/34, P.P.C. but the sentence of life imprisonment was not
changed. This joint appeal by special leave of this Court has been directed against the
said judgment of 'the Federal Shariat Court.

2. The brief facts of this case, according to the prosecution, are that Muhammad Shafi,
P.W.S is a Chowkidar in the Hirani Centre, a Building owned by Ibrahim Ali Bhai Trust
situated at LI. Chundrigar Road, Karachi. In the morning of 13th of August, 1988 he
came to his duty at 8-00 a.m..He proceeded to the Machine Room on the ground floor
where he found the dead bodies of Turab Gul, a Chowkidar of the 4th floor of the same
building and of Zahid Noor who was an employee of Ibrahim Ali Bhai Trust. Turab Gul
was bleeding from his mouth. Being frightened of the scene, he went to the adjoining
Building Al-Manzoor and informed Munsif Khan, P.W.6 (who was the Chowkidar of
AI-Manzoor building) about the occurrence. Munsif Khan told him that on about 10-00
p.m. in the preceding night he had seen Javed Masih, the appellant No.l entering into the
Hirani Centre alongrvith Turab Gul and Zahid Noor, the deceased persons. Both
Muhammad Shari, P.W.S and Munsif Khan, P.W.6 entered the building where dead
bodies were lying. Munsif Khan advised Muhammad Shafi to contact Ayub Khan,
another Chowkidar working on the 5th floor of the same building. They proceeded to the
5th floor but they found that the door of that floor was also opened and Ayub Khan was
also lying dead. His right hand was tied with electric wire and the other hand was tied
with a nylon rope. Some blood was found on the floor and on the walls of the floor and
also over the door span.

3. Munsif Khan, P.W.6, then returned back to his own building and informed
Muhammad Mehdi, P.W.7, the Manager of AI-Manzoor Building about the occurrence
and he conveyed the message to Shamim Ahmad Siddiqui, P.W.3, the Manager of
Ibrahim Ali Bhai Trust who reached at the spot and found that some unknown persons
after killing the three Chowkidars had taken away the valuable articles of Habib Group
Action. He, therefore, lodged the formal F.LR. in the Police Station Civil Line, Karachi
on 13-8-1988 at 10-30 a.m.

4. Being informed by Munsif Khan, P.W.6 that the deceased persons were seen in the
eventful night with Javed Masih who happened to be a sweeper in the relevant building,
the investigation was directed against Javed Masih who disclosed, during interrogation,
the names of other three appellants also. They were arrested and some recoveries were
effected from them and they were challaned in the Court of 7th Additional Sessions
Judge, Karachi South, who after concluding the trial convicted and sentenced them as
aforesaid.

5. In order to establish the guilt of the appellants, the prosecution has produced as
many as 27 witnesses. As leave in this case was granted for A reappraisal of evidence, it
will be pertinent to give a substance of the evidence of some important witnesses.

6. Muhammad Hussain P.W.1 is the Mushir of Vardat who has attested the memo of
Vardat. He is a Typist in Habib Mudaraba Management Ltd. Hirani Centre, 5th Floor. He
has also deposed that the Managing Director of Habib Mudaraba had prepared the list of
the articles which were found missing from the office on the day of occurrence. This list
has been brought on the record as Exh.10. It is in the form of a letter dated 13-8-1988,
which is signed by Akbar Ali Fadoo P.W.4, the Managing Director Habib Mudaraba and

Page No. 2 of 9
is addressed to the Station House Officer, Civil Lines, Karachi. The articles which were
found missing are described therein as under:--

Two Seiko wrist watches

One Lassala wrist watch

One Rado wrist watch

Four Dunhill lighters.

Two ball pens (S.T. Dupont)

One ball pen with calculator

one wrist watch Raymondweil five cross ball pens

Khas Deposit Certificates amounting to Rs. Five million, bearing numbers

J-216101 to J-216130 for Rs.100,000 each (30 Nos) and No.H-243537 to H-243576 for
Rs.50,000 each (40 Nos.).,

7. Sharaim Siddiqi P.W.3 is the complainant who has proved the contents of the
F.I.R. where the incident has been mentioned without any reference to the appellants.

8. Akbar Ali Fadoo P.W.4 is the Managing Director of Habib Mudaraba, the office of
which is situated at the 5th floor of the relevant building. He has proved the letter dated
13-8-1988 Irxh.10 signed by him containing the list of the missing articles as detailed
above. He has also signed the recovery memo of the rope and the electric wire used for
electrocuting the deceased victim. He has also signed the letter Exh.16 whereby he
informed the S.H.O., Civil Lines that he has written letters to the Standard Chartered
Bank and the Citi Bank to stop encasement of the Khas Deposit Certificates. He also
received a confirmation letter from Citi Bank dated 16-8-1988 Exh.17 and a similar letter
from Standard Chartered Bank dated 16-8-1988 Exh.18 to the effect that they have
marked caution on the relevant Khas Deposit Certificates in their books. All these letters
contain the numbers of the certificates as mentioned in para.6 above.

9. Muhammad Shah P.W.S is the person who saw the dead bodies of Turab Gul and
Zahid Noor for the first time. He has signed the inquest report Exh.20 prepared by the
Inspector Incharge Civil Lines. He has also witnessed the arrest of Javed Masih and the
recoveries effected from him.

10. Munsif Khan P.W.6 is the Chowkidar of Al-Manzoor Building adjoining to the Hirani
Centre. He has given the `Last Seen Evidence' to the effect that on 12th of August 1988 at
10-00 p.m. he saw Turab Gul and Ayub in the company of Javed Masih around the Hirani
Centre. Then, Javed Masih brought another person, namely Noor Masih. The deceased
Turab Gul disclosed to this witness that Javed Masih had brought a video film and they
wanted to view it. Munsif P.W. asked Turab Gul about Zahid Noor on which he replied
that he was inside the building. On the next morning the witness was informed by
Muhammad Shaft P.W.S that Turab Gul and Zahid Noor were lying dead on the ground
floor.

11. Munsif Khan also stated that Javed Masih was employed in the ground floor of the
Hirani Centre and he knew him well. Therefore, he escorted the police to get him
arrested. On personal search of Javed Masih one key was recovered from his pocket.
Later on, he led to the recovery of two Seiko wrist watches from a suitcase, and his
blood-stained clothes from a bag. The shirt of Javed contained 6 stains of blood while the
Shalwar had 4 stains of blood. One cassette titled "Bikhre Moti" was also secured from
the same bag. The memo. of all these recoveries Exh.22 was signed and proved by
Munsif Khan P.W.6 and Muhammad Shaft P.W.S.

Page No. 3 of 9
 12. Ghulam Qadir P.W.12 is a Sanitory Inspector of Karachi City Railway Station. He
deposed that Arif Masih and Shamoon Masih used to serve under him as sweepers. They
were absent from their duty since 11-8-1988.

13. Imdad P.W.13 is an officer of Export Promotion Bureau. According to the site plan
E.xh. 67, the display centre of this bureau is situated on the ground floor of the Hirani
Centre. Imdad has deposed that Javed Masih used to serve in his department as a sweeper
and he had the key of the library section of the Bureau and was authorized to open the
office in the absence of the Chowkidar who was on leave on the day of occurrence.

14. Muniruddin P.W.14 is the Magistrate who conducted the identification parade
wherein Munsif P.W.6 correctly recognized Javed Masih and Noor Masih, but did not
recognize Arif Masih and Shamoon Masih.

15. Muniruddin, the Magistrate has again appeared as P.W.15 to state that on
27-8-1988 he had recorded the confessional' statement of Noor Masih under section 164,
Cr.P.C., Exh.50, and observed all the formalities to satisfy himself about the voluntary
nature of the statement.

16. The substance of the confessional statement of Noor Masih is that in the night
preceding the night of occurrence his friend Javed Masih called him to his home where
Arif Masih and Shamoon Masih also arrived. Javed proposed to all of them that they
should murder the three Chowkidars of his office in order to rob money from it. Noor
Masih was not agreeable to the proposal in the beginning, bL: Javed Masih threatened
him that he, alongwith his two other friends, would do the job and then get him involved
in the case.

Being afraid of this threat, he went to Javed's home on the next day. Javed took him
to his office and on their way to the office, Arif Masih and Shamoon Masih also joined
them. Javed, alongwith a Chowkidar of his office, went to a shop of video-cassettes from
where he brought a cassette. He saw the Chowkidar viewing the film on the VCR. He sat
besides him while Javed was standing nearby. After a while Javed went outside and came
back with Arif and Shamoon. Javed threw a coil of rope in the neck of the Chowkidar and
threw him on the ground from his back side. Shamoon and Arif tied him with the rope,
and Javed gave an electric shock to the naked toe of his left leg, and he died on the spot.
Then, Javed went outside and called another Chowkidar. When he came near the door,
Javed knocked him down on the ground and Arif and Shamoon tied his hands and legs
with a rope and brought him inside the room where the other Chowkidar was lying dead.
Javed gave him an electric shock on his stomach, and he also breathed his last. Then
Javed brought all his three companions to the fifth floor where another Chowkidar was
sleeping. He ordered him to open the door, and as soon as the Chowkidar opened the
door, Javed Masih threw the rope on his neck and dragged him towards the centre of the
door where he was knocked down. All the three persons i.e. Noor Masih, Arif and
Shamoon tied his hands and legs. Then, Javed gave him also the electric current and he
died within five minutes.

17. Noor Masih has further stated that after all the three Chowkidars were killed,
Javed took his companions to the second floor of the building where Javed opened the
door of an office and broke an almirah with a hammer and took out money from it. Then
he took all of them to the third floor where also he broke a safe open and took out money.
Thereafter he took them to the fifth floor where Arif, Shamoon and Javed broke another
almirah and took out some valuable articles including watches, a lighter, pens, some
bonds and some cash amount. Then, all of them came downstairs where the robbed
property was distributed and Noor Masih was given Rs.38,000 and a watch. This
operation came to an end at 3-30 a.m.

18, Taj Muhammad P.W.17 a taxi driver, is a public witness who witnessed the arrest
of Shamoon Masih, Aril Masih and Noor Masih. S.H.O. Tariq had requested him to join a
police raid arranged by him to arrest the three accused persons. According to him, they
reached Hijrat Colony where they saw a locked house situated at 'Ganda Nala'. The
S.H.O. broke the lock open, they entered the house and found all the three persons sitting
on a cot. The witness identified them in the Court.

Page No. 4 of 9
19. The witness further stated that during the personal search of Noor Masih, a cash
amount of Rs.38,041 and one Rado wrist watch was recovered. From Arif Masih, an
amount of Rs.18,500 and one golden wrist watch and from Shamoon Masih Rs.17,000,
one lighter, one ball pen and one calculator was secured. Then, Shamoon Masih pointed
out to a tin box and after digging the ground from beneath it an envelope was discovered
which contained the Khan Deposit Certificates.

20. The memo of these recoveries is Exh.54 which is signed by Taj Muhammad
P.W.17 and one Sayyid Anwar Shah (not produced). The memo describes the serial
numbers of the Khas Deposit Certificates which are the same as mentioned in para. 6 of
this judgment.

21. Dr. Aftab Azizi P.W.18 conducted the post-mortem on the dead body of Haji Ayub,
the deceased, from 1-00 p.m. to 2-00 p.m. on 13-8-1988. He found two lacerated wounds
on his skull, one ligature mark round the neck, one electric burn round the right little
finger proximal phalyn where one electric wire was folded around, and one electric burn
round the left little finger proximal phalyn. The doctor's observation about the cause of
death was as under:

"In my opinion the cause of death was asphyxial leading to cardiorespiratory failure
resulting from electric shock and strangulation. The probable time between death and
post-mortem examination was about 10 to 12 hours."

22. Sirajuddin P.W.23 owns a video-cassette shop at LI Chundrigar Road. He deposed

that he had given a video-cassette of the film `Kanwar Lal' on rent to Javed Masih on
12-8-1988 p.m. and that he had given to the police a photostat copy of a page from the
register maintained by him, where it was recorded that the film had been issued to Javed
Masih. This photostat copy is Exh.64.

23. Dr. Muhammad Iqbal P.W.25 conducted post-mortem on the dead bodies of Turab
Gul and Zahid Noor. He found two electric burns on the left and right foot and one
ligature mark round the neck of Turab Gul. With respect to Zahid Noor, he found the
electric burns on the right hand, left forearm and the abdomen. He also observed one
legature mark round the neck. The cause of death of both of them was observed as
Asphyxia leading to cardio-respiratory failure resulting from electrocution and
strangulation.

24. Abdulhadi Khan P.W.26 is the chemical analyser who has proved his report Exh.72
wherein he found articles Nos. 1 to 9 and 12 (being different articles found with the
deceased persons) stained with human blood. He also found stains of human blood on
Article 14 which was the Shalwar of Javed Masih. The stains found on the shirt of Javed
Masih (Article 13) were too insufficient to form an opinion about their origin.

25 Muhammad Sadiq P.W.27 is the S.H.O. at Civil Line Police Station who has acted
as investigation officer in this case and he has given the details of his investigation.

26. All the four appellants, while giving statements under section 342,
Cr.P.C. denied all the charges against them. They also refused to accept that anything was
recovered from them. They also appeared in the witness-box under section 340(2),
Cr.P.C. Javaed Masih advanced no plea except denial. H claimed that he did not even
know his other co-accused persons. However, a the remaining three appellants took the
plea that they had been arrested frog the village Budha Guraya, District Gujranwala
on 17-8-1988. Noor Masih also disowned the confessional statement referred to in para.l6
of this judgment.

27. They also examined Muhammad Iqbal D.WS and Nusrat Mariyan D.W.7, the sister
of Noor Masih who have supported the defence plea that the three appellants were
arrested from District Gujranwala on 17-8-1988. On a~ application moved on behalf .of
the three appellants, Aurangzeb A.S.I. wa called to the witness-box as D.W.6. He clarified
that at one stage he had gone to P.S. Wirqua in District Gujranwala, but he was informed

Page No. 5 of 9
that the required accused persons had left the place, therefore he came back to Karachi.
The entry found in the daily diary about his departure from Karachi relates to the event.

28. We have heard the learned counsel for the appellants contended that it was a blind
murder not witnessed by anyone; that the evidence produced by the prosecution is not
sufficient to hold the appellant; responsible for such a blind murder; that the recovered
articles were not produced in the Court; that the cash amount and other articles alleged to
be secured from the appellants were not claimed by anyone; that the only direct evidence
against the appellants is the confession made by Noor Masih, but its voluntary nature is
doubtful, because, according to Noor Masih, it has been extracted from him through
coercive measures and by putting his mother and sister under the threats of dishonouring
them. The learned counsel further contended that in any case the confession made by
Noor Masih is exculpatory in nature and it cannot be used against the other accused
persons.

29. The learned counsel for the State submitted that the circumstantial evidence
produced by the prosecution, coupled with the confession made by Noor Masih, has
established the guilt of the appellants and they have been rightly convicted and sentenced.

30. We have heard both the learned counsels at length and have scrutinized the record
with due precaution. It is true that the actual incident was not witnessed by anyone
except the culprits or the victims themselves. Murder and robbery was committed in
the late hours of the night at a place where nobody was supposed to be present except
the Chowkidars themselves who were brutally murdered. Therefore, no direct
evidence could be expected in these circumstances. It is only circumstantial evidence
that could be furnished in the given situation. We have, therefore, to see whether the
material brought by the prosecution on record was sufficient to convict the appellants.
In order to examine this question, it will be just and proper to take the case of each
one of the foul appellants separately.

31. We first take the case of Noor Masih. He has given a detailed amount of the
occurrence in his statement under section 164, Cr.P.C. which has already been
summarized in para. 16 above. Muniruddin A.C.M. has appeared as P.W.15 who has
recorded this statement. He removed the handcuffs of Noor Masih, sent the police
outside, introduced himself to Noor Masih, and not only informed him twice that he was
not bound to give any statement, but also gave him two hours time for reflection. The
Magistrate also examined his body and found no injury therein. After recording the
statement he was sent to jail.

32. It is true that Noor Masih has disowned this statement at the trial, but his
standpoint is contradictory. In his statement under section 342, Cr.P.C. he has flatly
denied that he had made any confessional statement. Similarly, in his statement under
section 340(2) he at first, said, "The statement under section 164, Cr.P.C. before the Court
was not made by me as it was in a language which I do not understand," but in the same
breath he said, "The police obtained the confessional statement by coercive methods." He
also stated that he had some physical injuries when he was produced before the
magistrate. But the magistrate has expressly said that he did not find any injury on his
person.

33. In these circumstances, no reliance can be placed on his statement at the trial, and
his statement under section 164, Cr.P.C. can safely be used against him. He has admitted
in that statement that he not only accompanied Javed Masih throughout the brutal
operation, but also helped him in tying the hands and legs of Haji Ayub, the deceased

34. His confession is corroborated by the testimony of Munsif Khan P.W.6 who had
seen him alongwith Javed Masih in the eventful Wight. It is further corroborated by his
arrest from a locked house and by the recovery of Rs.38,000 and a Rado watch from him.
The amount recovered from him is more than the. amounts recovered from Arif and
Shamoon. Therefore, his participation in the crime is proved to the hilt. His ,conviction is
well-founded and the learned trial Court has given him maximum benefit by awarding
him life imprisonment instead of capital punishment. His appeal is therefore dismissed.

Page No. 6 of 9
 35. We come now to the case of Javed Masih. According to the statement of Noor
Masih under section 164, Cr.P.C. he was the main character of the whole satanic game,
but the learned counsel for the appellants argued before, us !;hat the statement of Noor
Masih being exculpatory in nature cannot be used against him. This argument of the
learned counsel has been specifically noted in the leave granting order also.

36. We have paid due attention to this aspect of the case and have gone through the
confessional statement of Noor Masih with care and caution. He has admitted that on
11-8-1988 he was invited by Javed Masih to participate in the murder of three
Chowkidars of his office. It means that one day earlier he was well-aware of the evil
game Javed Masih was designing to play. Still, he went to join him and remained with
him from beginning to the end. His plea that Javed had threatened him of being roped in
the murder case does in no way' exonerate him from his participation in the conspiracy.
Moreover, he has himself admitted that he, alongwith Arif and Shamoon, had tied the
hands and legs of Haji Ayub after he was knocked down by Javed. It is a clear admission
on his part that he actively participated in the murder of Haji Ayub. In these
circumstances his statement cannot be termed as exculpatory. It is rather an inculpatory
statement which can be used against his co-accused persons also.

37. However, it is true that the solitary statement of an accomplice should not form the
basis of conviction of other accused persons unless it is ` corroborated by some other
circumstantial or ocular evidence. We have, F therefore, to see whether the statement of
Noor Masih is corroborated by other pieces of evidence.

38. Javed Masih has admitted while appearing as D.W.1 that he was serving is the
office of Export Corporation situated on the ground floor in Hirani Centre. Imdad P.W.13
has deposed that Javed had the key of one section of that office, Munsif Khan P.W.6 had
seen him at 10-00 p.m. in the eventful night in the company of Turab Gul and Haji Ayub,
the deceased persons. Turab Gul also informed Munsif Khan that Javed had brought a
video film which they were going to watch. Sirajuddin P.W.23 has testified that he had
given the video film "Kanwar Lal" on rent to Javed in the night of ~ occurrence. It also
appears that he remained absent from his duty in the period between 13.8. and 15.8,
because he was arrested on 15.8 from Railway Phatak. Had he been attending his duty, he
could have been arrested on 14.8. Munsit Khan P.W.6 and Muhammad Shaft P.WS have
witnessed the arrest of Javea on 15-8-1988 where after he led to the recovery of his
blood-stained clothes. His Shalwar was found by Abdulhadi Khan P.W.26 stained with
human blood. Javed Masih has admitted in his statement under section 34C(2), Cr.P.C.
that none of these prosecution witnesses had any enmity with him.

39. All these circumstances provide very strong corroboration to the confessional,
statement of Noor Masih. The results of the post-mortem examination also match with
the details given by him in the statement. The G guilt of Javed Masih has been fully
proved and his conviction and sentence needs no interference by this Court. His appeal is
also liable to be dismissed.

40. Shamoon Masih was also an active partner of Javed Masih according to the
confessional statement of Noor Masih. This statement is corroborated by the testimony of
Sirajuddin P.W.23 who has deposed that Javed and Shamoon both had come to his shop
for taking the video film "Kanwar Lal". This witness has not been cross-examined by the
counsel of Shamoon Masih. Rather, he has submitted a written statement Fach.65
wherein he has written: "No cross on behalf of accused Arif Masih, Noor Masih and
Shamoon Masih". The statement of Noor Masih is further corroborated by Ghulam Qadir.
P.W.12 under whom Shamooa used to work as sweeper. He has deposed that he was
absent from his duty since 11-8-1988.

41. The strongest corroboration is his arrest from a locked house where he has also led
to the recovery of the Khan Deposit Certificates from a pitch under a `dibba' of breads.
This recovery is witnessed by Taj Muhammad P.W.17. The recovery memo. is Exh.54
where the serial numbers are also mentioned. These are the same numbers as disclosed by
Akbar Ali Fadoo P.W.4 in his letter Exh.10 as the serial numbers of the certificates
robbed from his office.

Page No. 7 of 9
 42. The learned counsel argued in favour of Shamoon that he was actually arrested
from Punjab and that no question has been asked from him under section 342 about the
recovery of these certificates on his pointation. 43. So far as the factum of his arrest is
concerned, it is proved on' the record through an independent witness Taj Muhammad
P.W.17 and Muhammad Siddiq Tariq P.W.27 that he was arrested on 21-8-1988 from a
locked house in Hijrat Colony, Karachi. Although, Shamoon has denied this fact in his
examination-in-chief, yet.he has made an admission during the cross examination in the
following words:

"It is correct that the house of Hijrat Colony, from where we were arrested was full of
dirt and also heap of woods. It is also correct that there was one `dibba' of breads
alongwith 2/3 other dibbas."

44. It is true that no question was asked from Shamoon under section 342 about the
recovery of the certificates on his pointation. But when he appeared as D.W. under
section 340(2) he was asked during the cross-examination about this recovery.

45. The learned counsel further contended that Muhammad Tariq Siddiq P.W.27, who
is the LO. in this case, has denied that the Khas Deposit Certificates were recovered from
Shamoon. We have checked the record. In fact, the relevant portion of his
cross-examination is as under:-
"It is correct that these three accused (Arif, Shamoon and Noor Masih), have
pointed to the Khas Deposit Certificates to be present into the pitch. It is incorrect to say
that pointation was made only by accused Shamoon Masih."

It is, therefore, dear that the I.O. did not deny the fact that the certificates were recovered
on the pointation of Shamoon. Instead, he claims that they were recovered on the
pointation of all the three persons including Shamoon Masih. This statement of the I.O. is
a little discrepant with the recovery memo. F.xh.54 where it is mentioned that the
recovery of the certificates was effected on the pointation of Shamoon. Taj Muhammad
P.W.17 also has named Shamoon only. As the recovery memo. was prepared on the spot,
it is more authentic. The inclusion of two other persons in the statement of the 1.0. may
be due to the lapse of time, but it does is no way exonerate Shamoon from the liability of
this recovery.

45. The learned counsel for the appellants raised another objection that instead of the
original Khas Desposit Certificates, only their photostat copies were produced in Court.
But nothing turns out to this objection, because the serial numbers of the certificates were
duly mentioned in the letter dated 13-8-1988 F.xh.10 and any in the letters dated
16-8-1988 issued by City Bank. (Fxh.17) and by the Standard Chartered Bank (Exh.18)
whereby it was confirmed that the certificates bearing .these numbers belonged to the
Habib Mudaraba Management. The same serial numbers are mentioned is the recovery
memo. F.xh.54 which was prepared on 27-8-1988. In these circumstances, there remains
no doubt in the fact that the recovered certificates were the same as were found missing
by the Habib Mudarabah. In the case of such certificates, the serial numbers are more
important khan their original papers, and after ascertaining their numbers, it was useless
to retain the original certificates of as huge an amount as five million rupees.

46. The learned counsel further contended that the recoveries from the house of Hijrat
Colony were effected in dear violation of section 103, Cr.P.C. It is admitted by the LO.
that no person from the locality was associated in the operation. Therefore, these
recoveries are illegal and cannot form basis of conviction.

47. It is true that 'the requirements of section 103, Cr.P.C. were not fully observed by
the LO. Instead of the persons residing in the same locality, he has picked up a public
witness from PIDC. But we cannot overlook the fact that the persons of the same locality
generally do not come forward to act as witnesses against such criminals. Therefore, if
the I.O, has picked up two witnesses from a place not very far from the place of raid, it
cannot render the recoveries doubtful or ineffective.

48. For the reasons given above, the guilt of Shamoon is also established beyond any
reasonable doubt. His appeal is also merits dismissal.

Page No. 8 of 9
49. Now remains the case of Arif Masih. According to the confessional statement of Noor
Masih he was also an active partner in the commission of the offence. But we feel that the
corroborative evidence against him is not so strong as is the case of the former three
culprits. He was not seen by anybody' at or around the place of incident in the night of
occurrence, nor was he seen by any independent witness at that time in the company of
the deceased ' persons or in the company of anyone of the three culprits. The things
recovered from him are Rs.18,500 and a wrist watch, but nobody has appeared in the
Court to say, nor any other evidence is led to prove, that this wrist watch was the same as
was found missing from the office of Habib Mudaraba. It is true that an amount of
Rs.18,500 is not normally supposed to be present in the pocket of a sweeper, but in order
to connect this amount to the robbed amount one has to make some conjectures, and in
the absence of some other evidence it will not be safe to treat it as a strong corroboration
to the statement of Naor Masih. Therefore, his case is not free from doubt.

50. The upshot of the above discussion is that the appeal of Arif Masih is allowed. He is
acquitted -on* the benefit of doubt. He shall be released forthwith if not required in any
other case. However, the guilt of other three appellant, l namely Javed Masih, Shamoon
Masih and Noor Masih is fully proved. They have committed the murder of three
innocent pnnr men with such an in,uixaz brutality that they deserve no leniency. All the
sentences awarded to them, including the sentences of death awarded to Javed Masih and
Shamoon Mask are upheld and their appeals are dismissed.

N.H.Q./J-105/S Order accordingly,

Page No. 9 of 9
1993 S C M R 550

[Supreme Appellate Court]

Present: Justice Sajjad Ali Shah, Chairman, Justices Mamoon Kazi and Haziqul
Khairi, Members

Syed SAEED MUHAMMAD SHAH and another---Appellants

versus

THE STATE---Respondent.

Criminal Appeals Nos.15 and 16 of 1992, decided on 16th December, 1992.

(On appeal from the judgment of the Special Court for Speedy Trials, Tando Muhammad
Khan dated 23-11-1992 passed in Special Case No.l of 1992).

(a) Criminal Procedure Code (V of 1898)---

----S.154---Provisions of S.154, Cr. P.C. mandatorily bind the police officer to register
F.I.R. of a cognizable offence.

(b) Criminal Procedure Code (V of 1898)---

----S.173---Report of police officer under S.173, Cr. P.C. is merely an information of the
police officer and the same is not admissible in evidence--Presumption of innocence of
accused involved in such report is not diminished by mere fact that the case has been sent
up for trial or that particular witness or person had formed opinion against the accused.

Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736
ref.

(c) Criminal Procedure Code (V of 1898)---

----S.164---Complainant normally is not examined under S.164, Cr. P.C. and. only other
witnesses are examined there under---However, if need be further statement of the
complainant can be recorded.

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.10(3)---Qanun-e-Shahadat.(10 of 1984), Art.71---Evidence of prosecution witness

as to what happened at the time of rape or before was hearsay and was not admissible in
evidence under Art. 71 of Qanun-e-Shahadat, 1984 and was rejected on the ground that
his claim of being apprised by other witnesses was not confirmed by those witnesses in
their earlier statements.

Khurshid Ahmad v. Qabool Ahmad PLD 1964 SC 356 ref.

(e) Criminal Procedure Code (V of 1898)--

----Ss.173 & 537---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),

S.10(3)---Non-compliance of S.173, Cr. P.C. in respect of shutting out evidence of first
F.I.R. had amounted to an illegality causing prejudice to the defence and vitiating the trial
not curable under S.537, Cr. P.C.

Yousuf v. State PLD 1988 Kar- 521 and Kaura v. The State and others 1983 SCMR 436
ref.

(f) Offence of Zina (Enforcement of Hudood) Ordinance (VII of Evidence 1979)---

Page No. 1 of 22
----S.1Q(3)-----Statements of witnesses in the Court in which improvements are made to
strengthen the prosecution case are not worthy of reliance.

Amir Zaman v. Mehboob and others 1985 SCMR 685; Haji Bakhsh v.

The State PLD 1963 Kar. 805; Qaim Din and others v. The State 1971 PCr.IJ 229 and
Fazla and another v. The State PLD 1960 Lah. 373 ref.

(g) Criminal Procedure Code (V of 1898)---

----S.161---Statements recorded by police after delay and without explanation are to be

ruled out of consideration.

Sikandar v. The State PLD 1963 SC 17; Ismail and others v. The State1983 PCr.1-.l 823;
Sirajuddin v. Kala and another PLD 1964 SC 26; Muhammad Siddiq and another v. The
State PLD 1960 SC 223 and Sahib Gut v. Ziarat Gul1976 SCMR 236 ref.

(h) Criminal Procedure Code (V of 1898)--

----S.540---Section 540, Cr. P.C. is divided into two parts, one where it is discretionary
for .the Court to summon a Court witness suo motu or on application and the second
where it is mandatory for the Court to do so ---Main precondition for exercise of
mandatory duty is the satisfaction of the Court that the evidence of the witness is
essential for just decision of the case.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 ref.

(i) Qanun-e-Shahadat (10 of 1984)---

----Art.133---Cross-examination---Cross-examination by accused himself is no substitute

of cross-examination by the counsel.

(j) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.10(3)---Penal Code (XLV of 1860), S.109---Appreciation of evidence--Evidence of

complainant (father of prosecutrix) did not inspire confidence that he had spoken the
whole truth---Prosecution witnesses in their anxiety and enthusiasm to fall in line with
the prosecution story had made additions, variations and improvements at the
trial---Medical evidence had given no specific finding about rupture of hymen of
prosecutrix being recent and having any nexus with sexual intercourse allegedly having
taken place at the time of incident ---Piosecutrix herself had also made improvements in
her evidence which was discrepant and did not inspire confidence---Background of
political rivalry existed between the two groups as shown by the defence plea and
possibility of false implication of accused, therefore, could not be ruled out--Rape was
not found to have taken place in the manner suggested by the prosecution---Accused
were given benefit of doubt and acquitted in circumstances.

Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736;
Khurshid Ahmad v. Qabool Ahmad PLD 1964 SC 356; Yousuf v. State PLD 1988 Kar.
521; Kaura v. The State and others 1983 SCMR 436; Amir Zanian v. Mehboob and others
1985 SCMR 685; Haji Bakhsh v. The State PLD 1963 Kar. 805; Qaim Din and others v.
The State 1971 PCr.LJ 229; Fazla and another v. The State PLD 1960 Lah. 373; Sikandar
v. The State PLD 1963 SC 17; Ismail and others v. The State 1983 PCr.LJ 823; Sirajuddin
v. Kala and another PLD 1964 SC 26; Muhammad Siddiq and another v. The State PLD
1960 SC 223; Sahib. Gul v. Ziarat Gul 1976 SCMR 236; Abdul Aziz and another v. The
State 1984 SCMR 530; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC
95; Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412; Khushi Muhammad
alias Bogi v. The State PLD 1986 SC 12; Ghulam Haider v. The State 1983 SCMR 842;
Muhammad Aslam v. The State PLD 1985 FSC 282; Muhammad Akram v. The State
PLD 1989 SC 742; Bahadur Shah v. The State PLD 1987 FSC 11; Mst. Ameer Khatun v.
Faiz Ahmad and others PLD 1991 SC 787; Tauqir Alam and others v. The State 1985
MLD 604 and Kashmira Singh v. The State AIR 1952 SC 159 ref.

Page No. 2 of 22
(k) Precedents---

---- Each criminal case has its own peculiar facts and circumstances and it is the question
of satisfaction of the Court which depends upon evidence produced by the
parties.---[Criminal trial].

(l) Criminal Procedure Code (V of 1898)---

----S.340(2)---Question of cross-examination of accused arises only when his

examination-in-chief takes place.

(m) Criminal trial---

----- Defence plea- and duty of prosecution---Duty of prosecution to prove its case
against accused beyond doubt does not diminish on raising of defence plea---Defence is
not duty bound to disprove the prosecution case---Defence plea may be taken or may not
be taken and may be sometimes the same is not proved---Burden of proof is not upon
defence but is always upon prosecution to prove the case beyond doubt---It is sufficient if
defence plea succeeds in causing a dent in the credibility of the prosecution
case.---[Burden of proof].

(n) Special Courts for Speedy Trials Act (IX of 1992)---

----S.8---Purpose and purport of the Act is expeditious disposal of the. case, but speed is
not to be construed as haste---There is perceptible difference between speed and
haste---Object of speed can be achieved even after observing all legal requirements
without indulging in haste---"Justice delayed is justice denied` and "justice hurried is
justice buried", so balance is to be struck between the two principles.

(o) Criminal trial---

---- Benefit of doubt---Accused is presumed to be innocent until prosecution proves case

against him beyond shadow of reasonable doubt and if prosecution fails in its duty which
never shifts to the defence accused is entitled to the benefit of doubt.---[Benefit of doubt.

(p) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.10(3)---Special Courts for Speedy Trials Act (IX of 1992), S.8---In cases involving
sensationalism and excessive publicity it becomes more necessary for the Court to
examine the evidence with more than ordinary care lest shocking nature of crime might
induce an instinctive reaction against a dispassionate judicial scrutiny of facts and law.

Tauqir Alam and others v. The State 1985 MLD 604 and Kashmira Singh v. The State
AIR 1952 SC 159 ref.

A. Q. Halepota, Advocate for Appellant No.l.

Attaur Rehman, Advocate for Appellant No.2.

Abdul Ghafoor Mangi, Additional Advocate-General Sindh for the State.

Dates of hearing: 13th, 14th, 15th and 16th December, 1992.

JUDGMENT

SAJJAD ALI SHAH, J.---Above-captioned two appeals are filed under section 13 of the
Special Courts for Speedy Trials Act, 1992, calling in question judgment dated
23-11-1992 of the Special Court for Speedy Trials, Tando Muhammad Khan, whereby
Special Case No.l of 1992 is disposed of convicting appellant Syed Saeed Muhammad
Shah under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979 (to be
referred hereafter as the Zina Ordinance) and sentencing him to R.I. for 15- years and 30

Page No. 3 of 22
stripes. Appellant Khuda Bakhsh Shcedi having been found guilty-of abetting the offence
committed by Saeed Muhammad Shah is convicted for offence under section 10(3) of the
Zina Ordinance read with section 109/34 P.P.C. and is sentenced to R.I. for 3 years. Both
appellants have been absolved of charges under section 11/12 of the Zina Ordinance and
offences under sections 342, 336, 504 and 323, P.P.C. Since impugned judgment and
evidence recorded is common, we propose to dispose of both these appeals by single
judgment.

2. Briefly stated the relevant facts giving rise to these appeals are that as per the case of
the prosecution Mst. Sahiba aged about 12 years daughter of complainant Jaffer was
raped twice by appellant Saeed Muhammad Shah on 10-10-1992 at about 3-00 p.m. in the
old and abandoned school building situate in the land of Syed Zulfiqar Ali Shah at Jarra
canal in Deb Dhandli. Appellant Khuda Bakhsh alias Khudoo Sheedi, who is servant of
Saeed Muhammad Shah was instrumental in bringing Mst. Sahiba and her mother and
father to the scene of offence by overawing them with threats and stood guard with
hatchet in his hand outside the room while rape was carried on. Rape took place while
mother and father of Mst. Sahiba were kept at bay under the tree near the spot by
appellant Khudoo Sheedi. After the rape Mst. Sahiba and her parents were sent in a
vehicle and left outside Saeedpur town. They went to their house and in the morning
apprised Saleh Mirbahar, Achar Patel and Hassan Mirbahar and others who informed
Syed Qabool Muhammad Shah on telephone who advised to lodge complaint with police.
On 11-10-1992 'at 19 hours (7-00 p.m.) complainant Jaffer lodged report at Police Station
Tando Muhammad Khan which was registered as report in Crime No.115 of 1992.
Complainant was not satisfied with this report for the reason that according to him name
of Saeed Muhammad Shah as rapist was not mentioned in it by the police and it was
recorded therein that Khuda Bakhsh Sheedi and one other unknown man had committed
rape with Mst. Sahiba. Secondly, jungle was shown as place of rape. Clothes of Mst.
Sahiba were recovered and she was referred to the hospital for medical examination. Not
satisfied with the report complainant complained to high officers of the police and with
their help was able to file second F.I.R.

3. D.S.P. Noor Ali Mari of C.I.A. deposed before the trial Court that on 14-10-1992 on
the direction of S.S.P., Hyderabad, he recorded fresh F.I.R. in accordance with
information given by complainant Jaffer. He did so and made such entry in the station
diary. He forwarded that station diary to S.H.O. P.S. Bulri Karim Shah for incorporating it
in 154, Cr. P.C Register and in the result F.I.R. No.71 of 1992 was registered. He sent
Mst. Sahiba for medical examination. He arrested Khuda Bakhsh who was already in
lock-up and Saeed Muhammad Shah. He visited abandoned school where rape was
committed as claimed by the complainant and- prepared such Mashirnama. He recorded
161, Cr. P.C. statements of P.Ws. Hassan, Haji, Saleh, Mst. Basra (mother of victim) and
Achar Patel. He made recovery of clothes of Mst. Sahiba which were already scaled in
the investigation of previous F.1.R. The packet was opened in front of complainant who
identified the clothes and then resealed. He filed case against D.S.P. Qamaruddin and
S.H.O. Younus of P.S. Tando. Muhammad Khan for recording incorrect F.I.R. He got
recorded statements of witnesses under section 164, Cr. P.C. On 18-10-1992 he handed
over investigation to Crime Branch. D.S.P. Mian Masud Hayat of Crime Branch, Karachi,
took over investigation on 18-10-1992 and produced Saeed Muhammad Shah before the
doctor in L.M.C. Hospital, Hyderabad for examination and it was reported that he was fit
to commit sexual intercourse. D.S.P. further caught hold of drivers of Suzuki Pick-up and
private taxi used in the commission of crime and recorded statements of drivers
Muhammad Khan and Bholoo. After transfer of this D.S.P., investigation was taken over
by D.S.P. Nizamuddin of Crime Branch who brought appellants to Karachi and got 164,
Cr. P.C. statements of Mst. Sahiba and complainant Jaffer recorded through A.C.M. at
Karachi in presence of the appellants. After .completion all steps in the investigation,
challan was presented.

4. In the trial Court prosecution examined 16 witnesses in support of its case. P.W.1 is
Jaffer complainant and P.W.2 is Mst. Sahiba, who is victim of rape. P.W.3 is Porho who is
brother of Mst. Sahiba and step-son of Jaffer. P.W.4 Muhammad Khan and P.W.5 Bholoo
are drivers of vehicles used in the crime. P.W.6 Dr. Farhana Qureshi examined victim on
15-10-1992 in L.M.C. Hospital, Hyderabad and found no marks of violence on her body.
According to her hymen of victim was torn and slight bleeding was detected. In 'the

Page No. 4 of 22
opinion of the doctor the girl was subjected to sexual intercourse and on radiological
examination was found between 13/14 years of age. She took vagina slides and sent them
to Chemical Examiner. P.W.7 is Dr. Manzoor Shaikh who examined Saeed Muhammad
Shah and found him capable of committing sexual intercourse. P.W.8 is Dr. Farida Jabbar
who examined victim on 11-10-1992 at Taluka Hospital, Tando Muhammad Khan in
connection with investigation of first F.I.R. (Crime No.115 of.1992). According to the
doctor victim was 13 years old and was not virgin as her hymen was ruptured. She was
subjected to sexual intercourse between 30 to 40 hours.

5. P.W.9 is Ghulam Mustafa A.S.I. of C.I.A. who arrested Khuda Bakhsh on 14-10-1992
who was already in custody. P.W.10 is Qamaruddin, P.C. who attested Mashirnama of
Vardat Exh.14/1 prepared on 15-10-1992. He also attested Mashirnama of recovery of
clothes Exh.14/2. P.W.11 is Sultan Badshah A.S.I. who attested Mashirnama of arrest of
Saeed Muhammad Shah on 14-10-1992 vide Exh.15/1. P.W.12 is Dr. Irshad Memon, who
examined complainant Jaffer and found two bruises on him of simple nature. P.W.13
D.S.P. Noor Ali Mari, and P.W.14 Mian Masood Hayat have taken part in the
investigation of the case as stated above. P.W.15 Ghulam Muhammad S.I.P. and
Additional S.H.O. of P.S. Tando Muhammad Khan cancelled F.I.R. in Crime No.115/92
on the direction of S.S.P., Hyderabad. He submitted final report to S.D.M., Tando
Muhammad Khan for orders. He produced such order dated 5-1.1-1992 as Exh.20/1.
P.W.16 is D.S.P. Nizamuddin of Crime Branch who also dealt with investigation as stated
above. Prosecution produced two reports from Chemical Examiner. According to the
report Exh.21/1 human semen belonging to Group "O" detected in the sealed test tube.

According to report Exh.21/2 human semen belonging to Group "O" detected in Shalwar
and shirt of victim and human blood belonging to Group "B" detected on the vaginal
slides. Vide statement dated 11-11-1992 Special Public Prosecutor gave up P.Ws. Achar,
Haji, Saleh, Hussain for the reason that they were not eye-witnesses and further had been
won over. P.W. Mst. Basra (mother of victim) was given up on the ground that she was an
old lady physically and mentally unable to give evidence. P.W. Mr. Ghulam Mohiuddin,
A.C.M. was given up for the reason that he had only recorded statements of Mst. Sahibs
and complainant Jaffer under section 164, Cr. P.C.

6. In the trial Court in his statement under section 342, Cr. P.C. appellant Saeed
Muhammad Shah denied prosecution allegations and proclaimed false implication due to
conspiracy of Mirs and Pirs who are inimical to him. He denied having committed rape or
sexual intercourse with Mst. Sahibs. He filed statement in writing giving background of
enmity. According to this statement Syed Qabool Muhammad Shah maternal uncle of this
appellant defeated Mir Aijaz Ali Talpur and Mohsin Shah defeated Mir Mumtaz Ali
Talpur. Pir Saeed Jan Sarhandi acted as Chief Election Agent of Mir Group. After
dissolution of District Council, Hyderabad, Syed Zulfiqar Ali Shah, elder brother of
appellant was likely to be appointed as Administrator for which post Khalid Jan Sarhandi
was aspirant. It was further stated by Saeed Muhammad Shah that Khuda Bakhsh Sheedi
no more worked with him and was employed by Khuda Dino Tangri as labourer in the
brick kilns. Prime Minister of Pakistan was assured that the case was true and he awarded
an amount of Rs.l lac in cash and land admeasuring 16 acres to Mst. Sahibs. Witnesses in
the case were taken in protective custody and were tutored.

7. Appellant Khuda Bakhsh alias Khudoo Sheedi in his statement under section 342, Cr.
P.C. denied prosecution allegations and disclaimed any knowledge about the incident. He
further stated that he left service of Saeed Muhammad Shah six months prior to the
incident. He filed statement in writing in which it was stated by him that he was
employed by Khuda Dino Tangri in his brick kilns and was implicated in this case on
account of his past service with Saeed Muhammad Shah due to political rivalry with Mirs
and Pirs. Appellant Khuda Bakhsh Sheedi also gave statement on oath under section
340(2), Cr. P.C. Further eight witnesses have been examined. Remaining defence
witnesses were given up vide statement dated 16-11-1992 of defence counsel on the
ground that they had been won over and side was closed.

8. Before us it was submitted on behalf of the appellants that evidence of three most
important witnesses of prosecution namely P.W.1 complainant Jaffer, P.W.2 Mst. Sahibs
and P.W.3 Porho is defective and unreliable and is not sufficient to form basis of

Page No. 5 of 22
conviction. In this context the very first attack on the abovementioned evidence is that the
investigation in this case has been conducted dishonestly inasmuch as first F.I.R, of
Crime No.115 of 1992 was cancelled in illegal manner and without justification due to
political pressure. To this reply given by learned AA.-G. for the State is that first F.I.R. in
Crime No.115 of 1992 was dishonestly recorded with attempt to screen main culprit
Saeed Muhammad Shah, whose name was not mentioned as rapist and place of incident
was also shown in jungle which was factually incorrect. We propose to examine this
aspect of the case first. During the hearing of appeal when mention was made before us
about first F.I.R. in Crime No.115 of 1992, we wanted to peruse it and we were informed
that it was not included in the record for the reason that it was not acted upon and
cancelled. An application was filed in the Court before us for causing production of F.I.R.
in Crime No.115 of 1992 on the ground that there was no legal justification for filing w
second F.I.R. in Crime No.71 of 1992 and such illegality was not curable under section
537, Cr. P.C. After hearing learned counsel for the appellants and State we sent for the
relevant record of investigation of F.I.R. in Crime No.115 of 1992 "and its cancellation.
In compliance the requisite record was produced before us.

9. In both F.I.Rs. mentioned above, complainant. is Jaffer father of victim of rape Mst.
Sahibs. F.I.R. in Crime No.115 of 1992 was registered as P.S. Tando Muhammad Khan on
11-10-1992 at 7-00 p.m. which was registered by S.H.O. Muhammad Younus, who also
undertook to investigate the case. According to this F.I.R, at about 2-00 p.m. Khuda
Bakhsh son of Iddan Sheedi who is servant of Saeed Muhammad Shah came to the house
of complainant alongwith one other young boy who was not identified and told
complainant that Saeed Muhammad Shah had sent for his daughter and saying that both
of them forcibly took away Mst. Sahibs in the jeep. At a distance of about one mile to the
south of house of complainant Khuda Bakhsh removed clothes of Mst. Sahibs and
forcibly committed sexual intercourse with her. Complainant raised cries and he was
given Lathi blows by that other man. Then that other man also committed rape with the
girl and both of them continued doing that up to 6-30 p.m. Afterwards, they brought
daughter of complainant to his house in the jeep. Complainant remained in his house for
the night and in the morning informed Nekmard Achar Patel, who after some time
advised him to file report with the police. Papers relating to the investigation of F.I.R.
No.115 of 1992 show that clothes of Mst. Sahibs were recovered which were found to be
stained with semen and blood and were put into a sealed parcel. Mst. Sahiba was referred
for medical examination and she was so examined by P.W.8 Dr. Farida Jabbar on
11-10-1992. Place of occurrence was inspected and memo prepared. Mst. Sahibs not
being in proper state of mind declined to give statement under section 161, Cr. P.C.
Khuda Bakhsh Sheedi was arrested. Second F.I.R. in Crime No.71 of 1992 was registered
at P.S. Bulri Karim Shah on 14-10-1992. P.W.13 D.S.P. Noor Ali Mari of C.I.A. Centre,
Hyderabad deposed that he was directed by S.S.P.to record fresh F.I.R. as F.I.R. of Jaffer
was not correctly recorded according to his instructions. He recorded statement of
complainant Jaffer in the station diary E-"/1, which was thumb-marked by the
complainant. The station diary was sent to S.H.O. P.S. Bulri Karim Shah, who
incorporated the same in 154, Cr. P.C. register. D.S.P. Noor Ali Mari then took in hand the
investigation afresh. P.W.15 Ghulam Muhammad SJ.P. was additional S.H.O. of P.S.
Tando Muhammad Khan and on 14-10-1992 he cancelled F.I.R. in Crime No. 115 of
1992 on the direction of S.S.P. This S.S.P. who directed cancellation of F.I.R. and fresh
investigation by D.S.P. Noor Ali Mari was not examined in the trial Court. He was under
legal obligation to explain under what provisions of law he had issued direction for
cancellation of F.1.R. and filing a fresh F.I.R. He could have been examined as Court
witness also to explain as to what material was available with him on the basis of which
he was satisfied that first F.I.R. was false. At page 241 of the paper book there is order of
the Magistrate Exh.20/1, which shows that he has disposed of the case arising from
Crime No.115 of 1992 as cancelled "C" Class mainly for the reason that S.S.P. Hyderabad
had recommended that action on the grounds that name of Saeed Muhammad Shah and
correct place of Wardat were not mentioned by S.H.O.

10. In Part V of the Criminal Procedure Code there is Chapter XIV containing sections
154 to 176 which relate to the information to the police and their powers to investigate.
These provisions cover information in cognizable cases as well as in non-cognizable
cases. Under section 154, Cr. P.C. it is mandatorily bounden duty of the police officer to
register F.I.R. of a cognizable offence. Under section 157, Cr. P.C. he has to send his

Page No. 6 of 22
report to the Magistrate and if he does not want to investigate a case for reason of
insufficient grounds then also he has to send his report to the Magistrate with reasons for
his such conclusion. Under section 159, Cr. P.C. the Magistrate may direct an
investigation or hold a preliminary enquiry or otherwise dispose of the case in the manner
provided in the Code. Under section 169, Cr. P.C. if there is insufficient evidence or
reasonable grounds do not exist to justify forwarding the accused to the Magistrate such
police officer can release him on his executing a bond with or without sureties and such
report is to be sent to the Magistrate under section 173 for appropriate orders. Section
173. Cr. P.C. is most important section in this Chapter for the reason that under this
section final report of investigation is to be sent by the police officer to the Magistrate
empowered to take cognizance of offence. This report is to contain names of the parties,
nature of information and names of persons who appeared to be acquainted with the facts
and circumstances of the case. Names of accused are to be mentioned whether in custody
or not. Report of police officer under section 173 is merely an information of the police
officer and the same is not admissible in evidence. Presumption of innocence of accused
involved in it is not diminished by mere fact that the case has been sent up for trial or that
particular witness or person formed opinion against the accused. In support of this
proposition, reference can be made to the case of Raja Muhammad Afzal v. Ch.
Muhammad Altaf Hussain and others 1986 SCMR 1736,

11. We have Police Act, 1861 and Police Rules, 1934 in the field. In Police Rules,
Chapter XXV relates to investigation. In the said Chapter Rule 55(2) onwards relates to
the investigation of the case by a police officer in cognizable as well as non-cognizable
cases. These rules cover almost all steps necessary m be taken in the course of
investigation and to bring the investigation to a close and final report as contemplated
under rule 25.57. This rule envisages that on completion of investigation final report is to
be submitted to the Magistrate and in a case in which police are unsuccessful and it is
considered advisable to suspend the investigation, final report is to be submitted as
required under section 173. Cr. P.C. In the book titled Police Laws of Pakistan by Shaikh
Abdul Haleem (1979 Edition) at the end of the Police Rules, 1935 there are prescribed
forms and at page 1166 there is Form No.25.57(2) depicting format (if final report under
section 173, Cr. P.C. and column No.8 whereof reads as under:-- .

"Brief description of information or complaint, action taken by police with result and
reasons for not proceeding further with investigation."

12. The form mentioned above clearly shows that final report is to be sent to the
Magistrate under section 173, Cr. P.C. in the case in which investigation is not completed
for some reason. Under section` 190 the Court taking cognizance has very vast powers to
do so upon receiving a complaint of facts which constitute such offence or upon a report
in writing made by police officer or upon information received from any person other
than police officer car upon knowledge of Magistrate/Judge or his suspicion that such
offence has been committed.

13. In view of powers of the police for the purpose of investigation and the Court for the
purpose of taking cognizance stated above, it is to be seen now whether in this case
cancellation of first F.I.R. (Crime No.115 of 1992) by P.W.16 S.I.P. Ghulam Muhammad,
Additional S.H.O. at P.S. Tando Muhammad Khan is legally justified or not. According to
this witness he did so under the orders of S.S.P. who was not examined. Order of the
Magistrate Exh.20/1 is on the record (at page 241 of the paper book) which appears to
have been passed in perfunctory manner because in view of Senior Superintendent of
Police first F.I.R. had to be cancelled. Order of the Magistrate manifestly is passed
without judicial application of mind. If name of Saeed Muhammad Shah was omitted in
first F.I.R. then there was no legal impediment in the way of recording further statement
of complainant mentioning therein name of Saeed Muhammad Shah with role assigned
and change of place of occurrence. He could have been taken in custody and proceeded
according to law and if there was evidence against him, he could have been challaned. If
omission was on account of dishonesty of the police officer who wrote F.I.R. then action
should have been taken against him and all the facts should have been brought to the
notice of the Court. Complainant did not come to the police station alone and he was with
several persons including his daughter. If complainant correctly dictated contents of F.I.R.
and mentioned the name of Saeed Muhammad Shah and place of incident but police

Page No. 7 of 22
officer made vital omissions and when the contents were read out and the omissions were
noticed, complainant would have raised hue and cry and would not have participated
further in the investigation. First F.I.R. was registered on 11-10-1992 and second F.I.R.
was registered on 14-10-1992 and m between there were three days in which further steps
were taken in the investigation, clothes of Mst. Sahiba were recovered at the police
station and put into sealed parcel, she was sent for medical examination, place of
occurrence was visited and Khuda Bux Sheedi was taken m custody. If police officer
scribing first F.I.R. made deliberate and dishonest omission in F.I.R. then on the charge of
misconduct departmental proceedings could have been taken against him under rule
16.24 of the Police Rules, 1934, which would have been a better and efficacious course
than judical proceedings. P.W.13 D.S.P. Noor Ali Mari of C.I.A. deposed before the trial
Court that he had filed case against D.S.P. Qamaruddin and S.H.O. Younus of Tando
Muhammad Khan for recording incorrect F.I.R. In cross-examination he admitted that he
did not secure the investigation papers pertaining to first F.I.R. which was recorded at P.S.
Tando Muhammad Khan. He has not explained further in his evidence as to for what
offence cases were filed against D.S.P. Qamaruddin and S.H.O. Younus. On our query as
to what happened to that case, learend A.A.-G. informed that F.I.R. was registered at
C.I.A. Centre against these police officers for offences under sections 224 and 225-A,
P.P.C. in which they have absconded and the police department is waiting. Section 224,
P.P.C. is resistance and obstruction of person of his lawful apprehension and section
225-A is omission to apprehend and both these offences are bailable punishable with R.I.
for two years and three years respectively or with fine. In any case D.S.P. Qamaruddin
and S.H.O. Younus were not produced by the prosecution in this case and it is
unascertainable as to what stand they would have taken with regard to allegations against
them. In such circumstances it can be said that in this case prosecution has withheld
important evidence by not examining S.S.P. who ordered cancellation of first F:I.R. and
registration of second F.I.R. and D.S.P. Qamaruddin Shaikh and S.H.O. Younus who were
concerned with registration of first F.I.R. Explanation is also very strange that these
police officers are absconding and department is waiting for them. It is likely that case
registered against these officers will be decided after the final decision of the main case.
Explanation also gives rise to presumption that these police officers were not to be made
available to be examined as defence witnesses, if defence wanted to do so.

14. Going back to the appraisement of evidence brought on the record it can be said that
the three most important witnesses in the case of the prosecution are P.W.1 Jaffer, P.W.2
Mst. Sahiba and P.W.3 Proho. P.W.1 Jaffer is father of Mst. Sahiba and in the caption of
his deposition column of age is blank. In his evidence he has not claimed that he was
working for Saeed Muhammad Shah in any capacity. There is observation of the trial
Court at the foot of page 59 of the paper book that this witness wears spectacles and his
one eye is useless. It appears that this observation is made on the basis of admission made
by this witness. Incident took place on 10-10-1992 at 3-00 p.m. and we need not go into
first F.I.R. in Crime No.115 of 1992 registered at P.S. Tando Muhammad Khan on 11-
10-1992. It would suffice to say that this F.I.R. was cancelled and copy of it was not
given to the defence and was not placed on the record. In this F.I.R. name of Saeed
Muhammad Shah is not mentioned and there is no allegation against him of rape. Place of
incident is also shown as in jungle. In the absence of this F.I.R. complainant could not be
cross-examined by defence on this point. Prosecution was commenced with second F.I.R.
which was registered on 14-10-1992 at 7-30 p.m. Second F.I.R. which was recorded after
three days of incident (sic) incorporated in 154, Cr. P.C. register of CIA. Hyderabad and
then copy sent to P.S. Bulri Shah. Karim for compliance because of its jurisdiction. There
is graphic account of incident which runs into more than three typed pages. Narration in
F.I.R. can be divided into three parts. First part relates to what happened before the rape.
Second part relates to details of rape. Third part relates to what happened after rape and at
the police station.

15. Salient features of narration of F.I.R. briefly stated are to the effect that since about
one or one and a half month prior to the incident Saeed Muhammad Shah had been
compelling complainant to produce his daughter at the bungalow of the complainant for
sexual intercourse. Complainant resented this proposal and complained to Kamdar of
Qabool Muhammad Shah, Saleh Mir Bahar, Hussain Mir Bahar, Haji Mir Bahar, Achar
Patel and others. Three days before the incident Khuda Bakhsh Sheedi took complainant
to the bungalow of Saeed Muhammad Shah where complainant was detained and

Page No. 8 of 22
maltreated. Again as is stated in F.I.R. that four or five days prior to the incident (should
have been after that incident) Khuda Bakhsh Sheedi came in Suzuki and took away
complainant and his wife and daughter Sahiba alongwith belongings to an abandoned
school in the land of Zulfiqar Ali Shah. Now so far second part is concerned it is
mentioned in F.I.R. that half an hour later at 3-00 p.m. Saeed Muhammad Shah came in
red coloured Alto Car and fired shots from pistol in air and abused complainant. Khuda
Bakhsh Sheedi stood armed with hatchet guarding complainant and his wife while Saeed
Muhammad Shah forcibly took Mst. Sahiba inside the abandoned school and raped her.
Mst. Sahiba came out crying and after some time Saeed Muhammad Shah again forcibly
took her inside and raped her for the scorned time. Afterwards Saeed Muhammad Shah
and Khuda Bakhsh Sheedi brought complainant, his wife and daughter in that car and left
them outside Saeedpur town. Complainant and his wife and daughter slept for the night in
their house. The third part is that on the following morning complainant narrated the facts
of incident to Saleh Mir Bahar, Achar Patel, Hussain Mir Bahar, Achar Machhi and
others, who informed Syed Qabool Muhammad Shah on telephone and he asked to lodge
complaint at police station. Complainant went to police station and lodged report but
police officer did not mention name of Saeed Muhammad Shah in F.I.R. as a person who
committed rape and instead mentioned names of his servants. It is further stated in F.I.R.
that while complainant was present at the police station, S.S.P. came there and
complainant complained to him weeping whereupon S.S.P. ordered D.S.P. C.I.A.,
Hyderabad to correctly lodge F.I.R. of complainant and investigate.

16. Complainant was examined in the trial Court on 8-11-1992 which was before expiry
of one month of incident which took place on 10-10-1992. In his evidence before the trial
Court complainant repeated allegations but in different manner and he also made
improvements in his version. He testified that about one month prior to the incident
Saeed Muhammad Shah called him and asked him to send his daughter Mst. Sahiba to
him for illicit purposes. He declined on which Saeed Muhammad Shah abused him and
slapped him. About 10/15 days prior to the incident complainant left his residence in
village Saeedpur and went to Tando Saindad to live with his relatives. After staying there
for about 8 days he returned to Saeedpur as he was advised by people to complain to
Zulfiqar Ali Shah brother of Saeed Muhammad Shah. He did so and while he was waiting
in the bungalow of Zulfiqar Ali Shah, Saeed Muhammad Shah came there, slapped him
and took him to his bungalow and confined him for three days during which time Saeed
Muhammad Shah kept on beating him off and on. Saeed Muhammad Shah insisted that
complainant should shift alongwith his belongings from village Saeedpur to Tando
Saindad. He brought complainant to his house and gave him beating with stick when
complainant was alighting from vehicle and in the result complainant fell down.
Complainant, his wife and daughter were made to sit in the vehicle and Saeed
Muhammad Shah ordered Khuda Bakhsh Sheedi to take them to the lands. Saeed
Muhammad Shah stayed in the house of the complainant while complainant, his wife and
daughter were taken to the abandoned school. After about half an hour Saeed Muhammad
Shah reached in car and fired in the air. He dragged Mst. Sahiba towards the school
building and gave her blows. Khuda Bakhsh stayed outside the building while Saeed
Muhammad Shah raped Mst. Sahiba. Mst. Sahiba came out weeping and after some time
Saeed Muhammad Shah again took her inside school building and raped her. After some
time car in which Saeed Muhammad Shah had come returned in which complainant, his
wife and daughter were brought by Saeed Muhammad Shah and Khuda Bakhsh Sheedi to
Saeedpur and dropped there. While they were walking Khuda Bakhsh carried wife of
complainant on shoulders as she was unable to walk. On reaching home complainant
informed his son Porho and his wife. Next morning he informed his relatives Haji Faqir,
Saleh, Hussain and Achar who came to his house. Relatives of complainant informed
Syed Qabool Muhammad Shah on telephone at Karachi. After some time a police official
c.,sme from police Station and took complainant to the police station where F.I.R. was
lodged. Mst. Sahiba accompanied complainant to the police station. F.I.R. was not read
over to the complainant. Name of Saeed Muhammad Shah was not mentioned in F., R. as
the person who committed rape and instead rape was attributed to Khuda Bakhsh Sheedi.
Mst. Sahiba was examined at police station and her clothes were secured. Complainant
and his daughter were made to sit at police station for 2/3 days. High police officer who
was either D.I.-G. or S.S.P. came to the police station and complainant complained to him
about F.I.R. which was incorrectly recorded. On the direction of that high police officer
second F.I.R. was recorded which was correct.

Page No. 9 of 22
17. Before coming to variations in the evidence of complainant it would be worthwhile to
mention that incident took place on 10-10-1992 at 3-00 p.m. and second F.I.R. was
registered on 14-10-1992 at 7-30 p.m. after delay of three days. D.W.16 D.S.P.
Nizamuddin took complainant Jaffer, Mst. Sahiba and Porho to Karachi and on
24-10-1992 their statements under section 164, Cr. P.C. were recorded before a
Magistrate which was after 14 days of the incident. In the trial Court complainant during
cross-examination was confronted with second F.I.R. and his 164, Cr. P.C. statement. In
second F.I.R. it is stated that after persistent demand of Saeed Muhammad Shah for
surrendering Mst. Sahiba for sexual intercourse, complainant complained to Kamdar of
Qabool Muhammad Shah and Saleh Mir Bahar, Hussain Mir Bahar, Haji Mir Bahar and
Achar Patel. In evidence before the trial Court this fact was not repeated and the persons
mentioned were not examined by the prosecution. It is stated in F.I.R. that after receiving
message of Saeed Muhammad Shah from Khuda Bakhsh complainant went to the
bungalow of Saeed Muhammad Shah where he was detained by him for three days and
maltreated. After his return 4/5 days later, Khuda Bakhsh Sheedi drove Suzuki to the
house of the complainant alongwith Saeed Muhammad Shah. Under the orders of Saeed
Muhammad Shah complainant, his wife and daughter got in the Suzuki alongwith their
belongings and Khuda Bakhsh Sheedi took them to the abandoned school in the land of
Zulfiqar Ali Shah. After half an hour Saeed Muhammad Shah came there in red coloured
Alto car.

18. In evidence in the trial Court is stated that due to the pressure of Saeed Muhammad
Shah, complainant shifted from his village Saeedpur to Tando Saindad to live with his
relatives. He came back after 8 days and as advised by people went to the bungalow of
Zulfiqar Ali Shah, brother of Saeed Muhammad Shah and there Saeed Muhammad Shah
came, slapped him and took him away to his bungalow where he was confined for three
days during which he was beaten off and on. Saeed Muhammad Shah kept on repeating
his demand that complainant should surrender his daughter to him for immoral purposes.
Thereafter Saeed Muhammad Shah brought complainant to his house and as complainant
was alighting from the vehicle Saeed Muhammad Shah gave him beating with stick and
consequently complainant fell down. It appears from the evidence that on the same day
complainant, his daughter and wife were sent in Suzuki to the abandoned school in the
land of Saeed Muhammad Shah through Khuda Bakhsh Sheedi. Saeed Muhammad Shah
stayed in the house of complainant and reached the abandoned school after half an hour
of arrival of complainant party there. In second F.I.R. the story is different and
complainant went to the bungalow of Saeed Muhammad Shah where he was detained for
three days. 4/5 days after his return Khuda Bakhsh Sheedi came and took away
complainant, his wife and daughter alongwith belongings to the land of Saeed
Muhammad Shah. It is mentioned in second F.I.R. that Saeed Muhammad Shah had come
alongwith Khuda Bakhsh Sheedi and under his orders complainant, his wife and daughter
boarded vehicle and went to the abandoned school alongwith Khuda Bakhsh Sheedi.

19. It is mentioned in second F.I.R. that after an hour Saeed Muhammad Shah came to the
abandoned school in red coloured Alto car, abused complainant and fired in the air from
his pistol. Same allegation is repeated in the evidence. It is not understandable as to why
Saeed Muhammad Shah after succeeding in getting Mst. Sahiba to abandoned school
would fire in the air to attract attention particularly when he was going to commit rape.
Narration in second F.I.R. shows that complainant, his wife and daughter were in the
abandoned school when Saeed Muhammad Shah arrived there and took the girl inside the
school and shut the door. It is not mentioned in second F.I.R. that complainant and his
wife waited outside the school premises. As against that in evidence complainant has
stated that Khuda Bakhsh stood over him and his wife as guard at 100 paces from the
school building. Another noticeable feature is that in F.I.R. Khuda Bakhsh is shown to be
armed with hatchet while standing as guard and in deposition of complainant hatchet is
not mentioned. It is mentioned in both second F.I.R. and evidence that after rape
complainant, his wife and daughter were brought back by Saeed Muhammad Shah and
Khuda Bakhsh in the same Alto car and were dropped outside Saeedpur town. Relating to
that part the only difference is that while second F.I.R. is silent, it is mentioned in
evidence by complainant that while they were walking from Saeedupur to their house on
the way Khuda Bakhsh carried complainant's wife on his shoulders as she was unable to
walk. Another departure is that second F.I.R. does not mention but it is stated by

Page No. 10 of 22
complainant in his evidence that after reaching the house he informed his son Porho and
his wife about the incident. In second F.I.R. there is no mention that Porho and his wife
were present in the house when complainant and his daughter and wife returned after
incident and apprised them of the facts of the incident. Both in F.I.R. and in the evidence
it is mentioned that next morning complainant informed Saleh Mir Bahar, Achar Patel,
Hussain Mir Bahar and Achar Machhi and they informed Qabool Muhammad Shah on
phone at Karachi, who advised to lodge the report. Persons so named have not been
examined by the prosecution. In the circumstances presumption would be that had they
been examined, they would not have supported the prosecution case.

20. Complainant did not state in his 164, Cr. P.C. statement that while he was waiting in
the house of Zulfiqar Ali Shah, Saeed Muhammad Shah came there, slapped him and
took him to his bungalow. Complainant also did not state in his 164, Cr. P.C. statement
that Saeed Muhammad Shah had sent for him through Khuda Bux Sheedi and detained
him at his house and maltreated him when complainant refused to surrender his daughter.
Complainant did not state in his 164, Cr. P.C. statement that Saeed Muhammad Shah took
him to his (complainant's) house and on the way beat him. Complainant did not state in
second F.I.R. and also in 164, Cr. P.C. statement that on reaching his house when
complainant was alighting from vehicle Saeed Muhammad Shah gave him beating with
stick and as a result he fell down. Complainant did not state in his 164, Cr. P.C. statement
that when Saeed Muhammad Shah took Mst. Sahiba inside the school he had shut the
door of the school. Complainant did not state in his 164, Cr. P.C. statement that after the
incident while they were getting out from the car on the out-skirt of Saeedpur Saeed
Muhammad Shah directed Khuda Bakhsh to go with complainant and Khuda Bakhsh
lifted wife of the complainant on shoulders and took her to the house of the complainant.
Complainant did not state in his 164, Cr. P.C. statement that he narrated the incident to his
son and his wife after they returned from the place of occurrence. Complainant did not
state in his 164, Cr. P.C. statement that clothes of his daughter were secured at the police
station. Complainant did not state in his 164, Cr. P.C. statement that his first F.I.R. was
not correctly recorded according to his instructions and it was not read over to him.
Complainant did not state in his 164, Cr. P.C. statement that while he was in police station
at Tando Muhammad Khan some high officer of police came there and he complained to
him and thereafter he and his daughter were taken to Hyderabad. Normally, complainant
is not examined under section 164, Cr. P.C. and only other witnesses are examined under
that provision. If need be further statement of the complainant can be recorded. There is
no explanation on the record why in this case need was felt to record statement of
complainant under section 164, Cr. P.C. Normally statement of a witness is recorded
under section 164, Cr. P.C. by way of precaution so that if eventually he is won over and
does not support the prosecution case then in his cross-examination he could be
confronted with his 164, Cr. P.C. statement after he is declared hostile.

21. Complainant stated in his cross-examination before the trial Court that when he and
his daughter were taken to Hyderabad they stayed there for about 7 days. They had stayed
at Fauji Hospital after that they were taken to Karachi. At Karachi they were taken to a
place which was guarded by army but he was unable to give further detail. His daughter
was with him. There they stayed for three days. His statement was recorded before the
Court at Karachi on the third day after they reached there. Complainant further stated that
from Karachi he was brought to C.I.A. Police, Hyderabad. Next day he was taken to
Tando Muhammad Khan Police Station. His daughter had also accompanied him there.
They stayed at Tando Muhammad Khan Police Station for three days. He was again taken
to Hyderabad before Superintendent of Police. Admissions made by the complainant in
his evidence before the trial Court as stated above clearly show that constantly he
remained under the patronage and influence of police and was being taken from place to
place to ensure that he supported the prosecution case as put forward by them. It also
appears that police was extra kind to him and helped for him out of the way in spite of the
fact that he alleged that S.H.O. of P.S. Tando Muhammad Khan had incorrectly recorded
his F.I.R. by omitting name of Saeed Muhammad Shah as person who committed rape.
Another intriguing admission in his cross-examination at page 63 of the paper book is
that his step-son Manoo lives in Goth Saindad and is servant of Pir Jan Sarhandi.
Complainant has denied that there is political rivalry between Pir Jan Sarhandi and family
of Syed Qabool Muhammad Shah but defence plea is that there is enmity between Pirs
and Mirs on one side and family of Syed Qabool Muhammad Shah and appellant on the

Page No. 11 of 22
other side. There are inherent defects in the evidence of the complainant. He has made
improvements in his evidence before the trial Court. At the time of incident he was not
working under Saeed Muhammad Shah and only his step-son Porho was working as
labourer on the land of Saeed Muhammad Shah. Complainant has not explained as to
how he was under the influence of Saeed Muhammad Shah in a way that he was utterly
helpless and could not save his daughter. He could have gone away with his daughter and
his son Porho could have left service of Saeed Muhammad Shah and joined service of Pir
Jan Sarhandi with whom his other step-son Manoo was already working as servant.
Another mysterious aspect of this case is that if Saeed Muhammad Shah wanted to rape
daughter of complainant, why would he be anxious that she should come alongwith her
father and mother. If he could exercise so much pressure on the complainant, he could
also have succeeded in getting her alone for the purpose of rape without creating against
himself evidence of father and mother of the victim. It is also not understandable why
abandoned school was selected as place for committing rape in broad daylight. All these
disturbing questions are not answered in the evidence of the prosecution. Evidence of
complainant does not inspire confidence to be truthful. He is not consistent in his story.
He has made variations and improvements. His story does not appear to be plausible.

22. We take up evidence of P.W.3 Porho before evidence of P.W.2 Mst. Sahiba for the
reason that his evidence is brief. He is brother of Mst. Sahiba and in his evidence before
the trial Court he has deposed about several aspects of the case with which he was not
connected and no role was assigned to him according to the second F.I.R. and evidence of
complainant. He has deposed that two or three days before the incident Saeed
Muhammad Shah asked him to send his father to his bungalow. He took his father to the
bungalow and left him there. This witness further stated that after some time Khuda
Bakhsh Sheedi came to his house and took him and his father to the house of Saeed
Muhammad Shah and on their return to their house while his father was alighting from
the vehicle Saeed Muhammad Shah hit him with stick. He also deposed that after his
father, mother and Mst. Sahiba went in Suzuki alongwith Khuda Bakhsh Sheedi, he and
Saeed Muhammad Shah proceeded on foot towards his house. This witness also deposed
that when after incident his father, mother and Mst. Sahiba came back to their house they
narrated the facts of the incident to him. He was also present next morning when Achar
Patel and others came to their house and were apprised about the story. On the other hand
second F.I.R. does not mention his name at all to be connected anywhere with any aspect
of the incident. Even complainant in his evidence before the trial Court does not show
presence of this witness anywhere throughout the narration of the facts of incident. Mst.
Sahiba also did not mention name of this witness throughout her narration till she
returned home after rape. Both complainant and Mst. Sahiba only stated in their evidence
that on their return from place of occurrence to their house they informed Porho and his
wife who were present there about the facts of the incident. In the circumstances to the
extent of what happened at the time of rape and before it evidence of P.W. Porho is
hearsay and is not admissible in evidence under section 60 of the Evidence Act. Evidence
of this witness is rejected on the ground that his claim of being apprised by other
witnesses is not confirmed by those witnesses in their earlier statements. In support of
this proposition reference can be made to the case of Khurshid Ahmad v. Qabool Ahmad
(PLD 1964 SC 356).

23. Now we take up evidence of P.W.2 Mst. Sahiba who is victim of rape. In the caption
of her testimony her age is mentioned as 12 years. Dr. Farida Jabbar has shown her age to
be 13 years and Dr. Farhana Qureshi has given he, age as between 13 and 14 years. This
witness testified before the trial Court that Saeed Muhammad Shah used to pester her
father to send her to him for immoral purposes and her father resisted. In that process her
father left village Saeedpur and went to Tando Saindad. After his return her father went to
Zulfiqar Ali Shah and complained about immoral demand of Saeed Muhammad Shah.
Her father was detained by Saeed Muhammad Shah for three days in his house. On. the
day of incident Khuda Bakhsh and Saeed Muhammad Shah came with her father to their
house and while her father was getting down from vehicle Saeed Muhammad Shah gave
him Lathi blows. Khuda Bakhsh took their belongings and put them in the vehicle and
then she and her mother were also made to sit in the vehicle. Her father was also made to
sit in the vehicle and they were taken to the lands of Saeed Muhammad Shah. Saeed
Muhammad Shah stayed back in their house and did not come in the same vehicle. He
came in another vehicle. He fired shots in the air and abused her father. He took her

Page No. 12 of 22
forcibly inside the school building where he raped her against her will. She resisted and
raised cries but he overpowered her. She bled and felt pain. Afterward& Saeed
Muhammad Shah brought her out. She complained to her parents. After a while vehicle in
which Saeed Muhammad Shah had come returned and Saeed Muhammad Shah made her
parents sit in that vehicle and took her again to the school building and raped her for the
second time. On both the occasions of rape Khuda Bakhsh Sheedi stood guard on her
parents. She has mentioned that Khuda Bakhsh was armed with hatchet. After she was
raped twice Saeed Muhammad Shah and Khuda Bakhsh took her and her parents in the
vehicle and they got down near Saeedpur. It is difficult to understand how in a small
Suzuki Car Alto, six persons could fit in, driver, Saeed Muhammad Shah, Khuda Bakhsh,
complainant, Mst. Sahiba and mother of Mst. Sahiba. Saeed Muhammad Shah asked
Khuda Bakhsh to take her mother to their house. When they reached their house Porho
and his wife were there and they narrated the whole incident to them. Next morning they,
Achar Patel, Haji Faqir, Saleh and Achar Machhi came to their house and they apprised
them of the incident. Police vehicle came to their house and she and her father were taken
to the police station. She was examined by the police and was also medically examined at
Tando Muhammad Khan hospital. She was medically examined again at Hyderabad. Her
statement was also recorded at Hyderabad. She was examined before Magistrate at
Karachi. Her clothes were recovered at the police station. Her 164, Cr. P.C. statement was
recorded at Karachi alongwith her father after 14 days as mentioned above.

24. In her evidence before the trial Court in the cross-examination Mst. Sahiba was
confronted with her 164, Cr. P.C. statement in which she omitted to say that her father
was so much troubled by Saeed Muhammad Shah that he abandoned his residence at
Saeedpur and went over to live at Tando Saindad for about 15 days prior to the incident.
On the other hand she stated in that statement that her father disappeared from Saeedpur
on account of demands of Saeed Muhammad Shah and returned after about one month.
She omitted to state in her 164, Cr. P.C. statement that about 3/4 days before the incident
her father went to Zulfiqar Ali Shah brother of Saeed Muhammad Shah and complained
to him against Saeed Muhammad Shah. She omitted to state in her police statement and
also in her 164, Cr. P.C. statement that her father was still under detention in the house of
Saeed Muhammad Shah when Khuda Bakhsh came to their house and informed that her
father was at the bungalow of Saeed Muhammad Shah and asked her to take belongings
and accompany him but she refused and Khuda Bakhsh went away. She omitted to state
in her police statement and also in 164, Cr. P.C. statement that her father receiving stick
blows fell down when he was brought home by Saeed Muhammad Shah. She omitted to
mention in her police statement and 164, Cr. P.C. statement that Saeed Muhammad Shah
had sent Khuda Bakhsh to her house with direction that he should take her and her
belongings to Tando Saindad. She omitted to state in her 164, Cr. P.C. statement that
Saeed Muhammad Shah had stayed at her house when Khuda Bakhsh had taken them to
the lands of Saeed Muhammad Shah. She omitted to state in her police statement and also
164, Cr. P.C. statement about bleeding and feeling pain at the time of commission of rape.
She omitted to state in her 164, Cr. P.C. statement that after making her parents sit in the
said car Saeed Muhammad Shah again took her to the school building to commit rape for
the second time. She omitted to state in her police statement as well as 164, Cr. P.C.
statement that after getting down on the outskirts of Saeedpur town on the direction of
Saeed Muhammad Shah, Khuda Bakhsh carried her mother to their house. She omitted to
state in her 164, Cr. P.C. statement that her brother Porho and his wife were present in the
house when they reached there after the incident and apprised them of the facts of the
incident.

25. Mst. Sahiba stated in her evidence during the cross-examination that in the school
building at the time of rape the room was not locked. There were a chair, a Mondha, an
empty oil cane and a Charpai in the room. There was Rilly on the Charpai. She was raped
on the Charpai. She resisted and in doing so she had clasped her thighs. Saeed
Muhammad Shah forcibly separated them by his hands. She had bled at the time of
commission of rape and blood had fallen at the Rilly as well. Saeed Muhammad Shah had
removed all her clothes. There was dint on the floor. She was raped for the second time
also on the Charpai. There was bleeding for the second time as well. She wore the same
clothes until they were secured by the police. She did not wash herself until clothes were
secured by the police. Mst. Sahiba stated in the cross-examination that at Police Station
they remained for three days and when S.P. had come her brother was present. After that

Page No. 13 of 22
she and her brother and father were sent to Hyderabad where she remained indoor patient
in hospital at Hyderabad for about 7 days. Then she was taken to Karachi where she
stayed for three nights. Her brother was not with her during the period when she stayed.
at Karachi and only her father was with her. From there she was taken to Hyderabad and
from there to her village. After two or three days thereafter she was taken to Tando
Muhammad Khan police station. Her father had accompanied to the police station. They
stayed at the police station for the whole night and in the morning they were taken back
to their village. Prime Minister Nawaz Sharif had come to her village that day. She was
produced before the Prime Minister. In fact Prime Minister had himself come to her
house. She denied the suggestion that police had called her at the police station for the
purpose of tutoring her and the statement made by her before the Prime Minister was
tutored one taught to her by the police. She denied suggestion that she was deposing
falsely against Saeed Muhammad Shah at the instance of police. She also denied
suggestion in her cross-examination that police threatened her that if she did not support
the version of the case amount of Rs.l lac sanctioned by the Prime Minister would not be
given to her.

26. Evidence of these three important witnesses of prosecution mentioned above has been
criticised before us by the learned counsel for the appellants on many grounds. Firstly,
that first F.I.R. which was registered earlier in point of time did not contain name of
Saeed Muhammad Shah and rape was not attributed in it to him was cancelled without
legal justification. If complainant changed his mind and wanted to introduce name of
Saeed Muhammad Shah, his further statement could have been recorded without
cancelling the first F.I.R. In support of the contention reference has been made to the case
of Yousuf v. State (PLD 1988 Kar. 521), which judgment is authored by one of us and in
which it is held that if sections 154, 156 and 157, Cr. P.C. are read together, it would
appear that investigation of cognizable case can commence with information supplied
from any source and investigating officer is competent to investigate in such manner to
find out the truth and also apprehend culprits who are not named in F.I.R. There is no
room in the provisions mentioned therein of Cr. P.C. for filing second F.I.R. We find no
hesitation in approving the ratio in this judgment. It is not only question of filing second
F.I.R, but in the instant case very serious prejudice is caused to the defence because copy
of first F.I.R. was not supplied to the defence nor it was brought on the record on the
ground that it was cancelled. In the circumstances defence was unable to cross-examine
complainant with regard to first F.I.R. in which Saeed Muhammad Shah was not shown
as the person who committed rape. Additionally S.H.O. and D.S.P. who were
instrumental in recording first F.I.R. were not examined by the prosecution and defence
was deprived of right of cross-examination. In such circumstances non-compliance of
section 173, Cr. P.C. in respect of shutting out evidence of first F.I.R. would amount to an
illegality causing prejudice to the defence and vitiating the trial not curable under section
537, Cr. P.C. It is held in the case of Kaura v. The State and others (1983 SCMR 436) that
after registration of first F.I.R., registration of second F.I.R. is not called for
notwithstanding divergent version contained therein as police is not only competent but
also duty bound to unearth true facts and trace real culprit.

27. Secondly, statements of the witnesses in the Court in which improvements are made
to strengthen the case of the prosecution are not worthy of reliance. It is held in the case
of Amir Zaman v. Mehboob and others (1985 SCMR 685) that testimony of witnesses
containing material improvements are not believable. Reference can also be made to the
cases of Haji Bakhsh v. The State (PLD 1963 Kar. 805), Qaim Din and others v. The State
(1971 P Cr. LJ 229) and Fazla and another v. The State (PLD 1960 Lah. 373).

28. Thirdly, attack was made on the evidence of these three star witnesses of prosecution
on the ground that their police statements were recorded with delay. In this case statement
of complainant was also recorded under section 164, Cr. P.C. Since first F.I.R. was
cancelled hence statements of witnesses recorded in connection with investigation of that
F.I.R. were not brought on the record. Second F.I.R. was recorded after three days by
D.S.P. Noor Ali Mari of C.I.A. He incorporated fresh statement of complainant in 154,
Cr. P.C. register and sent copy to P.S. Bulri Shah Karim where F.I.R. No.71 of 1992 was
registered which is produced in the record as Exh.17/1. This second F.I.R. was registered
on 14-10-1992 when incident took place on 10-10-1992. D.S.P. recorded police
statements of P.Ws. Hassan, Saleh, Haji, Mst. Basra and Achar Patel. He admitted to have

Page No. 14 of 22
recorded their 164, Cr. P.C. statements but A.C.M., Latifabad could not do the needful on
account of his pre-occupation. P.W.16 D.S.P. Nizamuddin of Crime Branch got recorded
statements of Jaffer and Mst. Sahiba under section 164, Cr. P.C. on 24-10-1992 at
Karachi. Reason given by prosecution is that first F.I.R. had to be cancelled because it
was recorded dishonestly not mentioning name of Saeed Muhammad Shah as the person
who committed rape on Mst. Sahiba and also place of occurrence was not correctly
mentioned which was abandoned school. This explanation is unsatisfactory and cannot be
accepted for the reason that S.S.P. who ordered cancellation of first F.I.R. and registration
of second F.I.R. and S.H.O. and D.S.P. who were instrumental in registration of first
F.I.R. were not produced by the prosecution and examined in the trial Court in support of
that contention. Explanation, therefore, is not established with supporting evidence. In the
absence of satisfactory nature of explanation normally rule is that statements recorded by
police after delay and without explanation are to be ruled out of consideration. In this
case unsatisfactory explanation which is not substantiated can be equated with no
explanation. In the case of Sikandar v. The State (PLD 1963 SC 17) there was
controversy as to when police statement of eye-witness was recorded and in that regard
there was choice between version of eye-witnesses and investigating officer. It was held
that controversy is to be resolved on the basis of rule that benefit of doubt must be given
to the accused hence evidence of that eye-witness was viewed with doubt. In the case of
Ismail and others v. The State (1983 PCr.1.J 823) evidence of witnesses was ruled out of
consideration on the ground that their police statements were recorded after 8 days and
prosecution offered no explanation. In the case of Sirajuddin v. Kala and another (PLD
1964 SC 26), evidence of witness was held to be not reliable for the reason of patent
doubt as to the time as he first appeared before the police for his statement.

29. While we are dealing with the subject of late recording of police statements of the
witnesses, we may at this stage aptly deal with two witnesses produced by the
prosecution as drivers of vehicles by way of corroborative evidence. They are P.W.4
Muhammad Khan and P.W.5 Bholoo. Muhammad Khan deposed before-the trial Court
that Sheedi came to Bathoro stand and hired a Suzuki pick-up for transporting belongings
of hari of his landlord. He went there and the inmates of the but refused to go. Sheedi
took the vehicle and brought Saeed Muhammad Shah and an old man to the hut. After
that old man, girl and old woman boarded the pick-up alongwith Sheedi. Saeed
Muhammad Shah stayed behind at the hut. He drove the vehicle to school building where
luggage was unloaded. He demanded fare from Sheedi who promised to give it after a
day or two. This led to a quarrel after which he came back. This witness admitted in
his-cross-examination that he was examined by police after 10 or 12 days of the incident.
In cross-examination he stated that he did not know Saeed Muhammad Shah prior to the
incident except that he had met him once or twice and also had heard his name. He had
seen Saeed Muhammad Shah at Bathoro stand where he used to come for taking fuel for
his vehicles. He also admitted in the cross-examination that he was contacted by police
10 or 12 days after the incident and he immediately went to the police station. He was
examined by the police on the same day and was examined by the Karachi police. He was
allowed to go home after he was examined and after that he did not go to the police
again. He denied suggestion that since the day when he was contacted by the police he
remained in the protection of police. P.W.5 is Bholoo who is driver of the car on hire.
This witness testified before the trial Court that at the hotel of Yaqoob Memon he got a
telephonic call and when he answered the person at the other end told him that he was
Secretary of Saeed Muhammad Shah and gave his name as Ilyas. Secretary informed him
that Saeed Muhammad Shah would like to go to his land and he wanted to hire the car.
He agreed and drove the car to Jarwa Dhandhi with Saeed Muhammad Shah who had a
revolver in his hand. At the destination he found Khudoo Sheedi standing guard over an
old man and old woman and young girl. Saeed Muhammad Shah got down and fired 3/4
shots. He took young girl towards school building. Witness asked Khudoo as to what was
the matter and he was told that it was a matter of Zamindar and Hari and he should not
make any enquiry in that regard. This witness drove back and returned after 2-1/2 hours.
He further supported the prosecution case as to how they all returned. He admitted in the
cross-examination that his police statement was recorded 10/12 days after the incident.
He was confronted with his police statement in which he has not said so many things
which he said in his evidence. Both these drivers were discovered by P.W.14 Mian
Masood Hayat D.S.P., Crime Branch, who was third investigating officer. Names or
description of these drivers were not given by complainant and his daughter and Porho.

Page No. 15 of 22
This D.S.P. claimed in his evidence before the trial Court that he learnt about the identity
of these drivers and got hold of them and recorded their statements. In cross-examination
Mian, Masood Hayat admitted that he did not find complainant or Mst. Sahiba at C.I.A.
Centre and did not meet them at all during the short time the investigation remained with
him nor did he enquire about their whereabouts. In such circumstances question arises as
to how did this witness learn about the identity of these two drivers. It is, therefore, clear
that evidence of these two drivers is assailable on the grounds that their evidence does not
sound truthful and also that their police statements were recorded very late. If they had
played part in the incident as claimed by the prosecution, they could have informed the
police and could have voluntarily come forward to have their statements recorded by the
police. In the circumstances evidence of these two drivers does not inspire confidence to
be reliable particularly when their police statements have been recorded belatedly. In the
case of Muhammad Siddiq and another v. The State (PLD 1960 SC 223), while
evaluating evidence of the eye-witness, who did not disclose murder to anyone for 24
hours it was held that evidence of such witness is not of least value. In the case of Sahib
Gul v. Ziarat Gul (1976 SCMR 236) evidence of eye-witness who had shop near police
station and accompanied complainant to police station was held to be unreliable for the
reason that his police statement was recorded after 4 days.

30. Fourthly, it is submitted that medical evidence of two lady doctors does not lend
support to the testimony of prosecutrix on the question of Zinabil-jabr as it is not
mentioned therein that there were any marks of violence or rupture of hymen was fresh
and connected with allegation of rape. Medical evidence only shows that she was
subjected to sexual intercourse and nothing more. Age of prosecutrix is also shown as
between 13/14 years.

31. Fifthly, it is submitted on behalf of the appellants by the learned counsel that on the
legal plane there are errors in the charge which made the charge defective and misled
appellants in their defence, which has occasioned failure of justice. Defects pointed out
are that in the first part of charge offences mentioned are 376, P.P.C. read with section 10
of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and as law stands now
section 376, P.P.C. is repealed and fully covered by section 10 of Zina Ordinance. Second
defect pointed out is that in the second part of the charge offences mentioned are under
sections 11 and 12 of the Zina Ordinance read with section 34, P.P.C. This charge is
against both appellants Saeed Muhammad Shah and Khuda Bakhsh Sheedi. Section 11
relates to kidnapping, abduction and inducing a woman to compel her to marry and
section 12 relates to kidnapping and abduction in order to subject a person to unnatural
lust. In the third part sections .342, 336, 504, P.P.C. are mentioned read with section 34,
P.P.C. Section 336, P.P.C. as it stood before amendment covered act endangering life or
personal safety of others normally invoked in accident cases. After amendment as now it
covers punishment for Itlaf Salahiyat Udh. In this section now entirely new version is
given for causing hurt on the principle of tooth for tooth and eye for eye. It is further
submitted that this section does not apply and on the charge under section 323, P.P.C. in
the last part of the charge appellant Saeed Muhammad Shah is acquitted (page 441 of the
paper book). Trial Court has also disbelieved evidence of the witnesses on the point that
complainant was wrongfully confined by Saeed Muhammad Shah in his bungalow for
three days and acquitted him on that charge (point No.5 at page 441 of the paper book).
This shows that the witnesses who have deposed on these points have not spoken the
truth and they have been disbelieved by the trial Court to that extent, hence it can be said
that these material witnesses have compromised their integrity and their veracity is not
beyond question. Last paragraph of the impugned judgment (page 445 of paper book)
shows that both appellants are absolved of the charges under sections 11 and 12 of Zina
Ordinance and under sections 342, 336, 504 and 323, P.P.C. Charge under section 11 of
Zina Ordinance covers subject of kidnapping and in this connection evidence produced
with regard to the kidnapping of Mst. Sahiba in Suzuki pick-up when she was taken to
the abandoned school on the day of incident is not categorically dealt with in the
impugned judgment and act of kidnapping -was prelude to the act of Zina and both are to
be treated as integral parts of the same transaction. If appellants are exonerated on the
charge of kidnapping then credibility of second part of rape is also affected. So far rape is
concerned, Charpai and Rilly on which it is alleged that rape was committed were not
recovered from the, abandoned school.

Page No. 16 of 22
32. Mr. Attaur Rehman learned counsel for the appellant Khuda Bakhsh Sheedi submitted
that on the question of abetment point No.3 was famed to the effect whether Khuda
Bakhsh had abetted in the commission of offence of rape or Zina-bil-jabr (page 435 of
paper book). In paragraph 21 of the impugned judgment, evidence of abetment as such is
not discussed categorically but finding is given on the ground that Khuda Bakhsh Sheedi
at the relevant time was servant of Saeed Muhammad Shah and, therefore, at the time of
commission of offence he had helped his master by taking her to the place of incident.
There is also not much of discussion in the judgment of the trial Court on the subject of
Wardat. Wardat was visited by the learned trial Judge and inspection memo. was prepared
which is on the record as Exh.36 (page 335 of paper book). In this memo. there is
mention about school building with one room and Varandah in front and there is also
mention in it about a tree at a distance of 100 paces. It is also mentioned that the room of
the school was lying barren and contained nothing and was lying unlocked. Mr. Attaur
Rehman submitted that appellant Khuda Bakhsh Sheedi was charged for offences under
sections 11 and 12 of Zina Ordinance and offence under section 11 is punishable with
imprisonment for life and offence under section 12 is punishable with death. In such
circumstances appellant Khuda Bakhsh was entitled to the engagement of counsel on
Government expense as is contemplated under High Court Rules, Volume V, Chapter 4-E
and Rule 6, Chapter VII of Federal Capital and Sindh Codes Criminal Circulars of 1978.
This lapse has caused very serious prejudice to the defence and in support reliance is
placed on the case of Abdul Aziz and another v. The State (1984 SCMR 530).15
prosecution witnesses were examined in the absence of counsel of appellant Khuda
Bakhsh Sheedi. When last witness P.W.16 Nizamuddin D.S.P. was examined at that time
Mr. Nandan Lal, Advocate appeared for Khuda Bakhsh and cross-examined the last
witness on 15-11-1992. Advocate for appellant Khuda Bakhsh filed an application under
section 540, Cr. P.C. for recall of 15 prosecution witnesses on the ground that they were
examined in the absence of counsel. The application was rejected on the ground that
sufficient opportunity was given to Khuda Bakhsh to cross-examine the witnesses which
he did not avail and permission was given to cross-examine only one witness Dr.
Manzoor Shaikh as opportunity was not given to Khuda Bakhsh to cross-examine him. It
appears from the order sheet dated 11-11-1992 of the record that the trial Court allowed
application under section 540, Cr. P.C. made by Special Public Prosecutor for
examination of four additional witnesses who were not included in the challan. This
application was allowed for reasons stated in the paragraph of the order-sheet, relevant
portion whereof is reproduced as under--

"It appears that the names of these witnesses had been left out from the challan because
the two doctors had examined Mst. Sahiba and complainant Jaffer, respectively, in
furtherance of the investigation taken up on the basis of the first F.I.R. No.115 of 1992
and the relevant medical certificate etc. was lying with the record of the first F.I.R. and in
the rush of the work after the recording of the second F.I.R. the necessity of including the
names of these two doctors in the challan as witnesses was overlooked. Same is, the
position in respect of A.S.I. Sultan Badshah. Since the fact of cancellation of the first
F.I.R. has already come on record, it appears to me that the evidence of the fourth witness
S.I.P. Ghulam Muhammad becomes necessary who shall formally show that the first
F.I.R. had been cancelled. Learned defence counsel Mr. Hidayatullah Abbasi, Advocate
has opposed this application on the ground that copies of the 161, Cr. P.C. statements
recorded in furtherance of the first F.I.R. had not been supplied to him and since first
F.I.R. had been subsequently cancelled, no evidence which was recorded on the basis of
the cancelled F.I.R. should be brought on record. I am not impressed with the arguments
of the learned defence counsel."

33. Order sheets in the record dated 7-11-1992 and 8-11-1992 show that on the first day
of hearing both appellants were un-represented and they informed the trial Court that
efforts were being made to engage a counsel for them through relatives. On the next date
Mr. Hidayatullah Abbasi appeared for appellant Saeed Muhammad Shah but Khuda
Bakhsh was noted as un-represented. No opportunity was given to him for engagement of
counsel on Government expense on the ground that he was charged for offence which
was punishable with death. It also appears that prosecution and defence both had filed
applications under section 540, Cr. P.C. and application of prosecution was allowed but
application of defence was rejected. It also appears that in respect of cancellation of first
F.I.R. set backs in the matter of production of evidence by prosecution have been covered

Page No. 17 of 22
but copies of first F.I.R. and other documents related therewith were not given to the
defence and such request of defence was rejected on the ground that first F.I.R. has been
cancelled. In such circumstances grievance is made that appellants were discriminated
against.

34. Under section 540, Cr. P.C. powers are given to the Court to summon or recall any
witness already examined if his evidence is essential to the just decision of the case. This
section is divided into two parts. One where it is discretionary for the Court to summon a
Court witness suo motu or on application and the second part is where it is mandatory for
the Court to do so. Main precondition for exercise of mandatory duty is the satisfaction of
the Court that evidence of the witness is essential for just decision of the case. In the case
of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95) the controversy
between the parties was that Nikah was not voluntary but under coercion. Prosecution
alleged coercion while defence plea was that Nikah was valid and without' coercion. It
was held by Shariat Bench of the Supreme Court that evidence relating to Nikah was
absolutely essential and failure of the trial Court to act under section 540, Cr. P.C. had
deprived the appellate Court of essential material for just decision and also occasioned
miscarriage of justice. In the instant case when application of prosecution under section
540, Cr. P.C. was allowed and witnesses not named in challan were allowed to be
examined, application of defence under the said provision should also have been allowed
for more formidable reason that 15 witnesses were examined in the absence of Advocate
of Khuda Bakhsh for whom Advocate should have been engaged on Government
expense. Trial Courts did not make offer for engagement of counsel on Government
expense to represent appellant Khuda Bakhsh at the commencement of trial which should
have been done. Cross-examination by accused himself is no substitute of cross-
examination by the counsel.

35. Mr. A.G. Mangi, learned AA.-G. for State contended before us that prosecution case
stands fully proved by the evidence of prosecutrix Mst. Sahiba and supported by her
father complainant Jaffer and two drivers Bholoo and Muhammad Khan. Learned AA.-G.
further stated that P.Ws. Jaffer, Bholoa and Muhammad Khan can be equated with
eye-witnesses -to the extent that they saw kidnapping of Mst. Sahiba to the school
building and her being taken in forcibly by Saeed Muhammad Shah for rape. P.W.4
Muhammad Khan driver of Suzuki did not state in his deposition that he saw Saeed
Muhammad Shah near the abandoned school. He also did not say that he saw taking away
of Mst. Sahiba forcibly inside the room by Saeed Muhammad Shah. Evidence of both
these witnesses who are drivers has been evaluated by us and we do not feel satisfied
with their evidence for the reasons that their police statements were recorded late after 10
or 12 days of the incident and secondly even on merits their evidence does not sound to
be truthful. They are drivers of the vehicles which are run for public use hence they are
likely to come in touch with police and their evidence can be easily secured by police.
Both these drivers have made improvements in their evidence and did not state material
particulars in their earlier statements. Trial Court has acquitted on the charge of
kidnapping under section 11 of Zina Ordinance and State has not challenged that finding
in appeal. So far complainant Jaffer is concerned, there is no doubt that he is father of the
prosecutrix but his evidence does not inspire confidence that he is speaking whole truth.
He filed first F.I.R. in which there is no allegation of rape against Saeed Muhammad
Shah. He filed second F.I.R. and his statement under section 164, Cr. P.C. was also
recorded. He was confronted with second F.I.R. and 164, Cr. P.C. statement in which he
had not said so many things which in evidence he said differently. His evidence is replete
with improvements and additions in consequence of tutoring by the police. Porho son of
complainant also voluntarily assumed rule which was not attributed to him by Jaffer or
Mst. Sahiba. These witnesses were very anxious to fall in line with story set up by the
prosecution and in that anxiety and enthusiasm made additions, variations and
improvements.

36. Now we are left with evidence of Mst. Sahiba who is prosecutrix and claims that she
has been subjected to rape by Saeed Muhammad Shah. She also claims that Khuda
Bakhsh Sheedi was instrumental in bringing her and her father and mother to the
abandoned school and stood guard while she was taken inside the room and raped by
Saeed Muhammad Shah. Like other witnesses she has also made improvements and was
confronted with her earlier statements in which she had not said so many things or said

Page No. 18 of 22
differently. Mr. Mangi has contended that evidence of prosecutrix alone supported by
medical certificates is sufficient to prove the case of prosecution beyond doubt. Learned
AA.-G. has stated that in the medical certificates it is mentioned that intercourse was
committed and prosecutrix was injured internally and was bleeding and further here are
findings of Chemical Examiner that swabs and clothes of prosecutrix contained semen
and blood.

37. In the context of medical examination P.W.8 Dr. Farida Jabbar examined prosecutrix
Mst. Sahiba on 11-10-1992 which was on the following day of the incident. According to
this doctor she did not find any external injury upon the person of Mst. Sahiba. She found
lacerations present on labia majora and minora. Vagina admitted one finger. Hymen was
ruptured. Doctor further gave her opinion that Mst. Sahiba was not virgin as her hymen
was ruptured and she was subjected to sexual intercourse. Two things are prominent in
the evidence of this lady doctor. Firstly, that there were no marks of violence on the
person of Mst. Sahiba and secondly doctor did not say that hymen of Mst. Sahiba was
ruptured during the sexual intercourse she was subjected to at the time of incident. She
did not give age of lacerations and for that purpose she referred prosecutrix to
Gyneacologist but she was not examined by Gyneacologist. Mst. Sahiba was examined
again on 15-10-1992 after investigation of second F.I.R. was taken in hand. This time she
was examined by P.W.6 Dr. Farhana Qureshi who again found no marks of violence on
the body of Mst. Sahiba. She was examined radio logically and her age was found to be
13 and 14 years. On general examination of vagina, doctor found red inflammatory edges
on labia minora. Vagina admitted tip or his of finger. Hymen was torn. Slight bleeding
was detected. Doctor gave opinion that girl was subjected to sexual intercourse. Doctor
took vaginal slides and forwarded them to Chemical Examiner. This lady doctor admitted
in her crossexamination before the trial Court that she did not examine vagina by way of
toning and through the process of toning it can be determined as to whether rupture of
hymen was recent or not. From the evidence of lady doctors and medical reports
submitted by them it is clear that there is no specific finding that rupture of hymen of
prosecutrix was recent and had nexus with sexual intercourse which allegedly took place
at the time of incident. From the medical evidence as stated, it appears in the absence of
marks of violence and positive and categorical finding with regard to rupture of hymen,
that at the most it was a case of sexual intercourse. Question now arises for consideration
whether this medical evidence is sufficient to connect appellant Saeed Muhammad Shah
with commission of rape or Zina-bil-jabr as is alleged by the prosecution. This is to be
considered in the light of fact that all other pieces of evidence produced by the
prosecution have been examined in detail and found defective, unsatisfactory and
suffering from legal infirmities.

38. Mr. Mangi has cited a large number of rulings in support of the proposition that
evidence of prosecutrix supported by medical evidence is sufficient and sometimes when
medical evidence is deficient then deposition of prosecutrix alone confirmed by other
circumstances is sufficient. There is no quarrel or cavil with the proposition as such. In
criminal cases each case has its own peculiar facts and circumstances. It is the question of
satisfaction of the Court which depends upon evidence produced by the parties. If
evidence of prosecutrix sounds truthful and she had no reason or motivation to falsely
implicate accused then such evidence can be accepted to be sufficient to justify
conviction. Cases cited by learned A.A.-G. are distinguishable and do not apply to the
facts of the instant case. In the case of Mst. Nasreen v. Fayyaz Khan and another (PLD
1991 SC 412) sole testimony of victim was considered enough for conviction as it
inspired confidence. Delay in filing F.I.R. was explained on the ground that victim's
husband being an insane person was in jail and was not available to impregnate her and
victim maintained silence which was broken when symptoms of pregnancy became
pronounced with passage of time and victim felt compelled to divulge the secret to her
mother which resulted in. registration of F.I.R. Question of sole testimony of victim came
up for consideration before the Supreme Court in connection with hearing of application
for cancellation of bail granted by the High Court on the ground of further enquiry as
contemplated under section 497, Cr. P.C. In the case of Khushi Muhammad alias Bogi v.
The State (PLD 1986 SC 12) two eyewitnesses examined by the prosecution were not
relied upon due to discrepancies in their evidence. Sole testimony of prosecutrix was
supported by medical evidence with finding that she was used to sexual intercourse.
Federal Shariat Court treated it as a case of consent and altered conviction to section

Page No. 19 of 22
10(3) of the Zina Ordinance. In that case apparently there was no allegation of
background of enmity or false implication. Shariat Appellate Bench declined to interfere
in appeal on the grounds that no generalisation can be made in the case of Zina and every
case depends upon its own facts and circumstances and further that apart from element of
possible consent there was no inherent infirmity in the deposition of victim and she had
no reason to falsely implicate the appellant in that case. In the instant case defence plea is
false implication due to political rivalry and in support 8 witnesses have been examined.
Complainant Jaffer admitted in cross-examination (page 63 of paper book) that his
step-son Manoo worked as servant of Pir Jan Sarhandi who is connected with Mirs and
Pirs of Tando Saindad. Moreover deposition of prosecutrix herself also does not inspire
confidence as she had made improvements and her evidence is discrepant. Case of
Ghulam Haider v. The State (1983 SCMR 842) does not help learned AA.-G. for State for
the reason that it was a case of attempted rape and secondly, natural witnesses examined
had no reason to falsely implicate the accused. Similarly case of Muhammad Aslam v.
The State (PLD 1985 FSC 282) is also distinguishable for the reason that it was a case of
attempt to Zina-bil-jabr in which no enmity was alleged against witnesses to falsely
implicate the accused. There was also nothing on the record available to show why
mother of prosecutrix should concoct such a case against accused involving her own
young daughter and no substance was found in defence plea. Lastly reliance was placed
by learned AA.-G. on the case of Muhammad Akram v. The State (PLD 1989 SC 742) in
support of contention that even if there is no clear finding in the medical evidence sole
testimony of prosecutrix can be relied upon. In this case medical evidence disclosed
conditions of genitals of prosecutrix but did not say whether it was on account of
intercourse under compulsion or due to abusive sexual intercourse or other causes
including self-abuse. It was held that opinion of the doctor would not weaken the
testimony of prosecutrix, which otherwise appeared to be reliable and her testimony
inspired confidence.

39. Learned A.A.-G. contended that in this case appellant Saeed Muhammad Shah
refused to give evidence on oath, hence adverse inference can be drawn that because of
guilt feeling he was not prepared to take oath. In support of the proposition reliance is
placed by him on the case of Bahadur Shah v. The State (PLD 1987 FSC 11). This
controversy came up for detailed consideration in the case of Mst. Ameer Khatun v. Faiz
Ahmad and others (PLD 1991 SC 787) before Full Bench of five Judges of the Supreme
Court. Section 340(2) of Cr. P.C. provides that accused, if he does not plead guilty shall
give evidence on oath in disproof of the charges. Refusal of accused to give statement on
oath was considered at length in conjunction with Article 44 of Qanun-e-Shahadat which
provides that accused shall be liable to crossexamination. It was held by the Supreme
Court that provisions of section 340(2), Cr. P.C. have to be interpreted as only conferring
duty or power on the Court to inform the accused that he has a right under the law to
make a statement on oath and it is his option with no risk attaching it to either make that
statement or not to make that statement. Question of cross-examination of accused would
arise only when examination-in-chief of the accused takes place.

40. In the trial Court both appellants denied prosecution allegations in their statements
under section 342, Cr. P.C. and Saeed Muhammad Shah proclaimed false implication due
to enmity of Mirs and Pirs on account of political rivalry. He filed separate statement in
writing showing enmity on account of election contested between Mirs and Pirs on one
side and relatives of appellant Saeed Muhammad Shah on the other. Pir Saeed Jan
Sarhandi was Chief Election Agent of Mir group. There was also rivalry between Pir
Khalid Jan Sarhandi and ZuIfiqar Ali Shah brother of appellant Saeed Muhammad Shah
for the post of Administrator of District Council, Hyderabad. According to Saeed
Muhammad Shah situation was exploited by Mirs and Pirs through press and other media
and story of incident was concocted by the police after taking into their protective
custody, complainant Jaffer, Mst. Jaffer, Mst. Basra and Porho and these witnesses
remained in police custody until they were examined before the trial Court. It was further
stated by Saeed Muhammad Shah that entire police administration took upon itself to
prosecute him and make it certain that he would be convicted. Prime Minister was
assured that the case was true and on such assurance he awarded an amount of Rs.l lac in
cash and land admeasuring 16 acres to Mst. Sahiba before the case proceeded before the
trial Court. His guilt was prejudged by the administration. S.S.P. Hyderabad and other
subordinates used to sit inside the Court and watch the proceedings with a view that

Page No. 20 of 22
witnesses produced by prosecution must support the case. Appellant Khuda Bakhsh
claimed that at the relevant time he was not in the service of Saeed Muhammad Shah.
Appellant Khuda Bakhsh examined himself on oath. Saeed Muhammad Shah examined 8
witnesses in defence. D.W.1 is Syed Zaman Shah, Sub-Divisional Educational Officer,
Tando Muhammad Khan. He stated that there was no Government school on the lands of
Syed Zulfiqar Ali Shah and his office maintained proper record in that respect. D.W.2 is
Muhammad Moosa who deposed that he was Election Agent of Syed Mohsin Shah
during election of 1990 which was contested against Mir Mumtaz. Zulfiqar Ali Shah
acted as Chief Election Agent of Mohsin Shah while Pir Saeed Jan Sarhandi had acted as
Chief Election Agent of Pir Mumtaz Ali Shah. D.W.3 is Muhammad Shah who stated that
in 1990 election Qabool Muhammad Shah had contested against Mir Aijaz Ali Talpur in
respect of seat of Provincial Assembly. He was voter in that constituency and Pir Saeed
Jan Sarhandi and Pir Khalid Jan Sarhandi worked for Mir Aijaz Ali Talpur in that
election. D.W.4 Muhammad Ilyas stated that he was stamp vendor in Tando Muhammad
Khan and did not receive or hear any complaint in respect of this incident. D.W.5 is
Ghulam Mustafa who stated that Pir Khalid Jan Sarhandi was Chairman of District
Council, Hyderabad before its dissolution and rumour was afloat that Zulfiqar Ali Shah or
Pir Khalid Jan Sarhandi would be appointed as Administrator of the District Council.
D.W.6 Kazi Taj Muhammad stated that he did not go to the police station at the time of
arrest of Saeed Muhammad Shah. DW.7 Achar stated that he was Hari by profession and
prior to that he was Kamdar of Oabool Muhammad Shah. He saw crowd of persons at
one place and on enquiry learnt that police had arrested and k taken away Jaffer and
servant of Saeed Muhammad Shah whose name was Khuda Bakhsh. About 8 or l0 days
thereafter, C.I.A. Police had summoned him and Haji Faqeer, Saleh, Achar Patel and
Hussain. This information was conveyed to him by Achar Patel. While they were with
C.I.A. at Hyderabad they learnt that Jaffer had named them as witnesses. D.W.8 is Haji
Faqeer who claims to he related to the complainant. He deposed that about one month
ago police had taken him and also Hussain, Saleh, Achar Patel and Achar son of Essa to
Hyderabad for interrogation. His statement was that he did not know anything about the
incident and then he was allowed to go back.

41. Duty of prosecution to prove its case against accused beyond doubt does not diminish
on raising of defence plea. It is not duty of the defence to disprove the case of the
prosecution. Defence plea may be taken, may not be taken and may be sometimes it is not
proved. Burden of proof is not upon defence but is always upon prosecution to prove the
case beyond doubt. It is sufficient if defence plea succeeds in causing a dent in the
credibility of the prosecution case. In this case defence plea has shown that there is
background of political rivalry between two groups and in such circumstances possibility
of false implication cannot be ruled out.

42. In this case, trial is held under special law, the purpose and purport of which is
expeditious disposal of case but then speed is not to be construed as haste. There is
perceptible difference between speed and haste. Object of speed can be achieved even
after observing all legal requirements without indulging in haste. There are legal maxims
in the field which act as guidelines. One maxim is that justice delayed is justice denied
and the other in the same context is justice hurried is justice buried. So balance is to be
struck between the two maxims. In process of hurry mistakes were made in the
investigation and during trial. There is yet another thought provoking aspect of this case.
In this case excessive publicity was given through information media after crime was
reported which fact is reflected in the evidence brought on the record and is beyond
dispute. Such publicity is bound to create sensationalism portraying the crime as cruel
and revolting which is so done when the crime is either at the stage of investigation or the
case is pending trial. It is the cardinal principle of law that accused is to be presumed as
innocent until prosecution proves case against him beyond shadow of reasonable doubt of
prosecution fails in its duty which never shifts to the accused, accused is entitled to the
benefit of doubt. On account of excessive publicity course of investigation is affected and
charged to go in one particular direction, which may turn out to be incorrect. In such
cases involving sensationalism and excessive publicity it becomes more necessary for the
Court to examine the evidence with more than ordinary care lest shocking nature of crime
might induce an instinctive reaction against a dispassionate judicial scrutiny of facts and
law. In support of the proposition reference can be made to the case of Tauqir Alam and

Page No. 21 of 22
others v. The State (1995 MLD 604) and Kashmira Singh v. The State (AIR 1952 SC
159).

43. For facts and reasons mentioned above we are satisfied that rape has not taken place
in the abandoned school in the manner suggested by the prosecution after kidnapping
Mst. Sahiba in Suzuki alongwith her father and mother. Prosecution has miserably failed
to produce confirmatory evidence in that regard. In this case there is room for doubt,
benefit of which must go to the appellants. We, therefore, set aside their conviction and
sentences. Appeals are allowed and in consequence appellants are acquitted. They may be
released at once if not wanted in any other case.

N.H.Q./80/SAC Appeals allowed.

Page No. 22 of 22
1990 S C M R 895

[Shariat Appellate Bench]

Present: Muhammad Afzal Zillah, Nasim Hasan Shah and Shafiur Rahman, JJ

Mst. ZUBAIDA---Petitioner

versus

THE STATE---Respondent

Jail Petition No. 38-R(S) of 1987, decided on 6th March, 1988.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.10(2)---Criminal Procedure Code (V of 1898), Ss.540, 164 & 342--Evidence Act (I

of 1872), S. 165---Constitution of Pakistan (1973), Art. 203-F---Allegation of Zina---Plea
of Nikah---Leave to appeal---Trial Court took note of statement under S. 164, Cr.P.C. by
female accused (petitioner) for assuming that there was sexual intercourse but neither
paid any attention to the other part of the statement nor performed its duty under S. 540,
Cr.P.C. and S.165, Evidence Act, 1872 to do justice in at least summoning evidence
regarding the documents which were lying on its record, e.g. there was her Nikahnama
with male accused Y dated 3-5-1973 on record while her Nikahnama with complainant M
was dated 30-4-1983---Figure 83 in the latter date having been scored and overwritten as
73 as also name of female accused on the register of Nikah with M when it was
overwritten on a scored entry---Both Courts below failed to take notice of these strong
elements in favour of defence---Two prima facie adverse elements in the conduct of the
female accused (petitioner) were that she had disowned her children from complainant's
loins and that if she did give birth to those children in complainant's wedlock, how could
she justify union of marriage with accused Y without seeking divorce from
complainant---Such adverse elements stood explained in defence version which was not
properly noted---Female accused in her statement under S.342, Cr.P.C. was improperly
asked a composite question about a valid Nikah with complainant and valid birth of
children from that wedlock which she denied and such denial fitted in her version and
Courts did not at all take notice of the nature of denial under S.342, Cr.P.C. which should
have been read with her entire story wherein she admitted the birth of children--Female
accused's statement that her marriage with complainant was later than her marriage with
accused Y (in fact), but it was ante-dated on paper and therefore it was void without a
divorce from male accused, was not gone into--Leave to appeal was granted to examine
the points: firstly whether Trial Court failed to perform its duty regarding bringing on
record relevant evidence through Court orders as visualised in Muhammad Azam v.
Muhammad lqbal and others PLD 1984 SC 95; secondly whether the prosecution had
established its case beyond reasonable doubt, in particular about the Nikah of
complainant; thirdly whether female accused's (petitioner's) act in question amounted to
willful indulgence in Zina; fourthly in case the trial was vitiated due to material
omissions or other illegalities, what should be the Supreme Court's order -extension of
benefit of doubt to the accused, otherwise acquittal or retrial and fifthly other related
questions---Sentence of female accused was suspended subject to her furnishing bail
bond in the sum of Rs.10,000 with one surety in the like. amount. and she was ordered to
be released on bail.

Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95 mentioned.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(2)---Legal Practitioners and Bar Councils Act (XXXV of 1973), S.41---
Constitution of Pakistan (1973), Art. 203-F---Counsel and client---Allegation of Zina
against client---Leave to appeal---Prima facie trial defence-lawyer acted carelessly and
the lawyers' firm which undertook female accused's (petitioner's) defence at appeal stage,
seemed to have left her in the lurch and she had to file jail petition without legal
assistance in a complicated case---Such a situation could have arisen due to the mistaken

Page No. 1 of 3
belief that client (accused petitioner) was a bad woman having given up her children for
lover's sake---Leave to appeal was granted to examine whether rules of professional
conduct were not violated and how to eradicate such shortcomings where rustic poor
ladies were involved in, such like cases when they were forsaken by their kith and kin.

JUDGMENT

MUHAMMAD AFZAL ZULLAH, J.--This is a classic example visualised in

Muhammad Azam v. Muhammad lqbal and others PLD 1984 SC 95 wherein only passive
participation in the trial by the presiding officer, it seems, has resulted in miscarriage of
justice. The story is usual. Zubaida petitioner was betrothed to Yaqoob her co-convict--a
relative. Munir complainant ultimately got promise of her hand. Before marriage, she ran
away to Yaqoob and married him in May, 1973. She was inveigled and brought back on
promise of regular Rukhasti to Yaqoob. But was married off to Munir ante-dating this
Nikah by a week before Yaqoob's Nikah. There were Habeas Corpus proceedings also but
the love couple lost in this first round. She gave birth to several children in the house of
Munir. The love for the first man had not died though. She again ran away to Yaqoob
after eleven years in 1984 and started living with him under a genuine belief that this
marriage was proper and that the one with Munir was no real marriage. The police sided
with the accused couple and refused to register the case. There was Writ Petition by
Munir. The police was thus compelled to book both Zubaida and Yaqoob for offence of
Zina. This all is in her statement under section 164, Cr.P.C. and other records. This
version, however, it seems, has not been clearly taken in the statement under section 342,
Cr.P.C. nor marshalled properly by the defence; probably because of inexperience or
gross negligence of the lawyer.

2. The trial Court did take note of statement under section 164, Cr,p.C. for assuming that
there was sexual intercourse but unfortunately it neither paid any attention to the other
part of the statement nor performed its duty under section 540, Cr.P.C./165 Evidence Act
to do justice in at least summoning evidence regarding the documents which were lying
on its records, e.g. there is a Nikahnama dated 3-5-1973 on record. It is of Zubaida's
marriage with Yaqoob. Her Nikah with Munir is of 30-4-1983-- figure 83 having been
scored and overwritten as 73. Again it is in evidence that the name of Zubaida on the
register of Nikah with Munir is over-written on a scored entry. Both the Courts below
failed to notice the elements supporting the defence version and also did not care to
reconcile the weak links in the prosecution case.

3. Two prima facie adverse elements in the conduct of the petitioner are:

(a) That she has disowned her children from Munir's loins; and

(b) that if she did give birth to those children in Munir's wedlock, how could she justify
union of marriage with Yaqoob without seeking divorce whether in 1973 or in 1984.

However, both points stand explained in the defence version which, a,~ stated above, has
not been properly noticed.

4. In her statement under section 342, Cr.P.C. she was asked unfortunately and
improperly a composite question about a valid nikah with Munir arid valid birth of
children from this wedlock. It was unfair to her. She denied the question and it fitted in
her version---as, according to her, she was not validly married to Munir and thus the
children from this wedlock could not be owned by her. She at no place denied having
given birth to those children. On the contrary the has been crying for them as of her own
and not of Munir. That is why she requested that the youngest be allowed to stay with her
in jail and the authorities allowed it. The learned Courts below did not at all notice the
nature of denial under section 342, Cr.P.C. It should have been read with her entire story
wherein she admitted the birth of the children.

5. The second point also stands explained from her point of view. According to her,
Munir's marriage was later than Yaqoob's (in fact), but it was ante-dated on paper.
Therefore, it was void without a divorce from Yaqoob. It was a very important point, that
is why the Investigating Officer when asked that the two versions about the two Nikahs

Page No. 2 of 3
having been brought to his notice, did he try to find out which was true, answered in the
negative. As it was essential part of the investigation, the police file when examined,
revealed that the Investigating Officer wanted to go deep into this question so as to do
justice and asked the complainant to help him by producing the other relevant documents.
The latter promised to do so. But then something odd happened during the investigation,
It was suddenly clamped and the accused were booked. The reason can only be
conjectured,,"'

6. After careful and minute examination of the case there is sufficient justification for
examination of the following points:--

(i) Whether the trial Court failed to perform its duty regarding bringing on record relevant
evidence through Court orders as visualised in Azam's case;

(ii) Whether the prosecution has established the case beyond reasonable doubt, in
particular about the Nikah of Munir;

(iii) Whether Zubaida's act in question amounted to wilful indulgence in Zina;

(iv) In case the trial is vitiated due to material omissions or other illegalities, what should
be the Court's order ---extention of benefit of doubt to the accused; otherwise acquittal or
retrial; and

(v) other related questions.

7. I would, therefore, hold that it is a fit case for grant of leave to appeal.? Before parting
with the matter it needs to he noticed that prima facie the trial defence lawyer acted
carelessly and the lawyers' firm which undertook petitioner's defence at appeal stage,
seems to have left her in the lurch and she filed this jail petition without legal assistance
in such a complicated case. It can be due to the mistaken belief that she was a bad woman
having given up her children for lover's sake: It might also need examination:

(1) whether rules of professional conduct were not violated; and

(2) how to eradicate these shortcomings where rustic poor ladies are involved in such like
cases when they are forsaken by their kith and kin.

8. In case leave to appeal is granted, I would also suspend the sentence of the petitioner
during the pendency of the matter in this Court on her furnishing of bail bond in the sum
of Rs. 10,000 with one surety in the like amount to the satisfaction of the A.C. concerned.

NASIM HASAN SHAH, J.--(1) I think the order of the Federal Shariat Court is not
liable to interference.

(2) The convict is disowning the children and can hardly evoke sympathy on their
becoming hopeless.?

(3) Not a fit case for grant of leave.

SHAFIUR RAHMAN, J.--I agree that the Leave to Appeal be granted and the sentence
suspended on terms.

ORDER OF THE COURT

Leave to appeal is granted. The sentence of the petitioner is suspended. Subject to her
furnishing bail bond in the sum of Rs.10,000 with one surety in the like amount, she will
be released on bail. Bail, to the satisfaction of the A.C. concerned.

M.BA./Z-100/S Leave granted.

Page No. 3 of 3
1990 SCMR 40

Present: Shafiur Rahman, Ali Hussain Qazilbash and Nainuiddin, JJ

MUZAFFAR SAEED--Appellant

versus

AULAD HUSSAIN SHAH alias PHUL PEER and others--Respondents

Criminal Appeals Nos. 12E and 127 of 1987, decided on 11th June, 1989.

(From the judgment of the Lahore High Court, Lahore, dated 17-6-1986, passed in
Criminal Revision No. 184 of 1985, Criminal Appeal No. 556 of 1984 and Murder
Reference No. 214 of 1984).

(a) Penal Code (XLV of 1860)--

--S.302/34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to

examine the correctness of the decision of High Court while maintaining convictions of
accused sentence of death awarded to them was not confirmed and instead they were
sentenced to life imprisonment.

(b) Penal Code (XLV of 1860)--

---S.302/34---Reappraisal of evidence---High Court while seized of question of

confirmation of death sentences reappraised entire evidence and recorded its own
findings on material issues in controversy and found that nothing was available on record
to suggest that accused had any motive to kill the two deceased ladies---No particular
purpose was indicated for selecting these ladies for effective firing--Nothing had
happened earlier or during occurrence to aggravate or precipitate any animosity and ill
will, if any, against them and relationship between parties had not been abnormally
bad---Sentence of death awarded to two accused, held, had rightly been altered to
imprisonment for life in circumstances---Even otherwise due to general amnesty granted
in the country, death sentence stood commuted into life imprisonment and as restoration
of death sentence would be relatable to the judgment passed by High Court and in
substitution of it the benefit could not be denied to the accused simply because they were
wrongly sentenced to lesser penalty for the same offence and in this context the appeal
with regard to sentence must be treated as having become infructuous despite the high
principles advanced on behalf of complainant which were well-supported by precedents.

Dost Muhammad v. The State P L D 1963 S C 285; Piran Ditta and 3 others v. The State P
L D 1976 S C 300 and Muhammad Mushtaq v. The State 1973SCMR219ref.

(c) Criminal Procedure Code (V of 1898)--

---S.164---Evidence Act (I of 1872), S.32---High Court in not treating the statement of

deceased lady recorded under S. 164, Cr. P.C. as a dying declaration on the ground that
she was not imminently fearing death nor did her death take place soon after, ignored the
law laid down by Supreme Court in the case of Wazir Gul v. The State 1976 S C M R 471
and the express provission of S. 32 of x the Evidence Act.

Wazir Gul v. The State 1976 S C M R 471 rel.

K. M: A. Samdani, Advocate Supreme Court and Ch. Mehdi Khan Mehtab,

Advocate-on-Record (Absent) for Appellant/Complainant (in Cr. A. No.126 of 1987).

Ijaz Hussain Batalvi, Advocate Supreme Court and Ch. Muhammad Aslam,
Advocate-on-Record (Absent) for Convicts/Respondents in Cr. A. No.126 of 1987 and
Appellants in Cr. A. No.127 of 1987.

Page No. 1 of 5
Ch. M. Akram, Advocate Supreme Court and Rao Muhammad Yousaf Khan,
Advocate-on-Record for the State.

Date of hearing: 11th June, 1989.

JUDGMENT

SHAFIUR RAHMAN, J.--Leave to appeal was granted to the two convicts under
section 302/34, P.P.C, and also to the complainant for examining the correctness of the
decision given by the Lahore High Court on 17-6-1986 whereby while maintaining the
convictions of these two appellants the sentence of death was not confirmed and instead
they were sentenced to life imprisonment.

2. Muhammad Younis, the father of the complainant (Muzaffar Saeed PW 9) had

purchased agricultural land in village Vaince which was already in his cultivating
possession as tenant. The purchase had taken place on 6-11-1982. The land was close to
the house of the convicts and their family members. They were interested in purchasing it
and having not succeeded, were planning to file a preemption suit. In order to ensure
success before instituting such a suit, they wanted to dislodge the entries in the Khasra
Girdawari showing Muhammad Younis as the tenant of the land and had got moved an
application through the vendor himself for the correction of the Khasra Girdawari
wherein one Ghulam Mustafa son of Boota had appeared as a witness. On 23rd of May,
1983, while Muzaffar Saeed PW 9 was returning in the company of Ghulam Mustafa son
of Noor Muhammad, he encountered Ghulam Mustafa son of Boota and complained to
him as to why he had appeared to depose falsely about correction of the Khasra
Girdawari. There was exchange of abuse followed by grappling. Ghulam Mustafa son of
Boota left the place in order to report the matter to the convicts and their associates
whereupon soon arrived at the scene the two convicts alongwith three others. Chan Peer
and Aulad Hussain alias Phul Peer the two brothers, Sabir Hussain Shah s/o Chan Peer
were all armed with revolvers. Abuzer soil of Sabir had a carbine wile Musaddiq son of
Auland Hussain alias Phul Peer had a gun. Chan Peer was the first to fire which proved
ineffective. Aulad Hussain's shot injured Naseem Akhtar the mother of Muzaffar Saeed
while Sabir's shot injured Khalida who later died of the injuries on 23-8-1983 while in the
Hospital. The convicts and their associates fired more shots but they proved to be
ineffective. The two injured ladies were removed to the Hospital where Saeed Ahmad,
S.H.O./PW-20 also arrived and recorded the statement of Muzaffar Saced on which a
case was registered at Police Station Philora at 5 p.m. The case was investigated by Saeed
Ahmad, SHO who got recovered from Sabir revolver P.12 which was the licenced
weapon of Chan Peer his father and from Musaddiq the gun P.13 which was the licenced
weapon of his father Aulad Hussain.

3. The convicts and their associates denied their participation in the occurrence. Chan
Peer stated, and his statement was adopted by other associates, that Younis, father of the
complainant suspected that Chan Peer had got moved an application for the correction of
the Khasra Girdawari with a view to deprive Muhammad Younis of his rights as a tenant
for protecting the sale. In defence Muhammad Latif, Assistant Licence Clerk, Licence
Branch, D.C's. office was produced to prove that the arms shown to have been recovered
from Sabir (P 12) and Musaddiq (P. 13) were licensed weapons.

4. The trial Court held that "the evidence regarding motive does not inspire confidence".
As regards the statement of Mst. Khalida deceased (Exh. P.R.) recorded by the Magistrate
(Abdul Rashid PW 16) on 16-6-1983, the Court held that "it can be read in evidence as a
dying declaration". Two fire-arms recovered were found not to be linked with the crime
as the recoveries did not match with the bullets recovered. The trial Court held the three
eye-witnesses Muzaffar Saeed (PW-9), Saeed Ahmad (PW-10) and Muhammad Khan
(PW-12) to be natural witnesses of the occurrence who had established their presence at
the spot. As regards the fact why the two women who were not directly concerned with
the occurrence were made the target, the trial Court observed as hereunder:-

"The extreme confusion of mind in the assailants which necessarily follows the murder
must have played a major part and even if the accused persons had intended the death of
Muzaffar Saeed complainant and not the death of the two deceased persons which had

Page No. 2 of 5
resulted in the consequence, the accused persons naturally must hake been more
concerned about their attempt to abscond from the place of occurrence and to create a
defence for the extreme steps that they had already taken. After that because of this
confusion and concern they could not successfully aim at the complainant. If 11-6-1983
the date of the arrest of the accused persons who belong to the same village Vaince is kept
in mind it would reflect upon the concern that the accused persons had for defending the
consequences."

The case of Chan Peer was distinguished by observing as hereunder:-

"So far as Chan Peer accused is concerned his alibi of being present in his Dera in village
Waince at the relevant time was accepted by the first investigating officer and he was
mentioned in column No. 2 of the Challan yet in the subsequent investigation conducted
by the Crime Branch he was not given this advantage and was challaned alongwith other
accused persons. However, the prosecution has not examined DSP Crime Branch who
had investigated this case. Even otherwise, the alleged fire by this accused had not
injured any person and keeping in view his extreme old age and the above mentioned
facts the probability of his false involvement on account of being the head of the family
cannot be ruled out and in view of this count he is entitled to the benefit of doubt."

The trial Court finally held as hereunder:-

"The eye-witnesses examined were the natural witnesses of the occurrence having no
special reason to falsely depose against the accused persons and barring their minor
discrepancies and confrontation to Exh. DB, Ex. DC and Ex. DD, their statement under
section 161, Cr. P.C. the over all picture which their deposition depicts proves beyond
doubt the guilt of these 4 accused persons. They have been able to establish that Mst.
Naseem Akhtar was killed on account of the revolver shot fired by Aulad Hussain alias
Phul Peer while in furtherance of their common intention of all while similarly revolver
shot by Sabir Hussain accused resulted in the ultimate death of Mst. Khalida deceased.
These witnesses have also established the participation of Musaddiq Hussain while armed
with gun and that of Abuzar Hussain accused while armed with a carbine in this
occurrence in the furtherance of their common intention."

All the four accused were held guilty under section 302/34 P.P.C. and Aulad Hussain and
Sabir Hussain were sentenced to death while Musaddiq Hussain and Abuzar Hussain
were sentenced to life imprisonment. Sentences of fine and compensation were also
awarded against them.

5. On appeal and while seized of the question of confirmation of death sentences awarded
to the two convicts, the High Court reappraised the entire evidence and recorded its own
findings on material issues in controversy. It found "nothing on the record to suggest that
the accused had any motive to kill the two deceased ladies". It considered Muhammad
Khan (PW. 12) alone to be an independent witness by observing as follows:-

"So far as the ocular evidence is concerned, there are minor contradictions which are
quite natural but some improvements have also been made by Muzaffar Saeed and Said
Ahmad. PW. 12 Muhammad Khan, however, is quite an independent witness. His
testimony rings true. The occurrence took place quite close to his residence. He is the
most natural witness of the incident."

As regards the dying declaration it dealt with the dying declaration of Mst. Khalida as
hereunder:-

"This statement was recorded more than two months prior to the death of Mst. Khalida.
Later she died on account of bedsore which caused septicaemia. The Magistrate
admittedly did not ensure that the statement was not a tutored one. Two months prior to
her death Mst. Khalida had no apprehension of her death, and, therefore, this statement
cannot be termed as a dying declaration of a person made some time before his death
when he was under the imminent danger of death."

It formed the opinion about the whole case as hereunder:-

Page No. 3 of 5
"In the light of the foregoing discussion we have come to the conclusion that in this case
net has been thrown wide and efforts have been made by the prosecution to involve male
members of the family of Chan Peer Shah in this case. In the light of the ocular evidence
supported by statement Exh. PR, we find that Aulad Hussain Shah and Sabir Hussain
Shah appellants are liable for the murders of Mst. Nasim Akhtar and Mst. Khalida
deceased, but the guilt in this behalf has not been brought home to Musaddaq Hussain
Shah and Abuzar Hussain Shah beyond doubt and so is the case of Chan Peer Shah who
has already been acquitted by the learned trial Court."

On these findings Musaddiq Hussain Shah and Abuzar Hussain Shah were acquitted and
while maintaining the conviction of Aulad Hussain Shah and Sabir Hussain Shah under
section 302/34, P.P.C. their sentence 'was altered to imprisonment for life from death.
They were given the benefit of section 382-B of the Criminal Procedure Code. The
sentence of fine and compensation was kept intact.

Mr. Ijaz Hussain Batalvi, Advocate, the learned counsel for the convicts/appellants in
Criminal Appeal No. 127 of 1987 has contended that the same evidence which was found
to be insufficient for convicting three of the five accused should not, without any
additional material or any distinctive feature, have been considered sufficient for
convicting the two others. The anomaly is obvious. The inconsistency need not be over
emphasised. The learned counsel has also seriously challenged the conclusion of
Muhammad Khan (PW. 12) being a disinterested witness, a natural witness or a witness
whose testimony rings true. He has drawn our attention to the fact that he belongs to a
different village Golookot. He admitted that father of Sarwar the husband of Khalida
deceased and Ghulam Mustafa PW, were the first cousins of his father. He has also
referred to the inconsistencies in his statement 'for make his evidence suspect. He has
heavily relied on the general conclusion drawn by the learned Judge of the High Court
that the net was widely thrown to contend that it was not possible after holding that to
come to the conclusion that the case against the two convict-appellants was proved
beyond doubt, so as to entail their conviction and sentence under section 302/34, P.P.C.

7. Mr. K. M. A. Samdani, Advocate, the learned counsel for the complainant has
contended that the test adopted for distinguishing the case of three acquitted accused
from the two convicted ones, namely, the efficacy of the shots fired by them was no test
at all for judging the common intention of the participants in a crime. Even the role of
firing ineffectively is as incriminating as is that of firing effectively on the ground that
there existed common intention. The dying declaration and the statement of the three
witnesses, according to the learned counsel for the complainant, was sufficient to
establish the case of the prosecution beyond reasonable doubt. Further, according to the
learned counsel, the High Court has not followed the salutary principle of giving any
reason for imposing the lesser penalty. The absence of motive inferred is against the
weight of evidence on record which clearly showed a plausible motive whereby stranger
of no consequence was acquiring land in their vicinity. The learned counsel stated that in
view of the decision given by this Court in the case of Dost Muhammad v. The State (P L
D 1963 S C 285) reasons had to be recorded for awarding the lesser sentence. He relied
on Piran Ditta and 3 others v. The State (P L D 1976 S C 300) and Muhammad Mushtaq
v. The State (1973 S C M R 219) for stating that if there are no extenuating circumstances
noticeable in the case then lesser penalty should not be awarded. He has also relied on
Wali Muhammad and another v. The State (P L D 1976 S C 287) to contend that if the
victims are defence-less intervenors as in this case the two women were, both having
been fired from behind, such leniency should not have been shown.

8. There are certain features of the case which have to be noted in reappraising the
evidence brought on record. In the first place, the two ladies who received fire arm
wounds and died sooner or later of it, were fired at from behind and from a very close
range. For example on the dead body of Naseem Akhtar, there was a fire arm entry
wound 4 m.m. with blackend edges, on the right scapular region (back) about 4 c.m. right
to mid line. Mst. Khalida Begum had a wound of fire-arm entry 4 m.m. in diameter with
blackend margin on the back of chest. The closeness from which the shots were fired, in
the normal circumstances leave out any scope for the shots having been aimed at
someone else and mistakenly injuring these ladies. Secondly, no particular motive or

Page No. 4 of 5
purpose has been indicated for selecting these two ladies for effective firing, against
them. Nothing had happened earlier or during the course of the occurrence to aggravate
or precipitate the animosity and the ill-will, if, any, against these two ladies. Thirdly, the
relationship between the parties had not been abnormally bad. Even if it is admitted that
2-1/2 years prior to the occurrence, a brother of Muzaffar Saced had got a case registered
under section 500, P.P.C. against Musaddiq Hussain and his brother or that the parties had
been in opposite camps in 1959 B.D. Elections or that ten or fifteen years ago a civil suit
had been instituted by Afzal against Chan Peer with regard to closure of water channel in
'another village, there was nothing imminent or grave to occasion the occurrence. The
purchase by Muhammad Younis had led to no exchange of threats and to no overt
aggressive act on the part of either of the parties. They had been living in the
neighborhood. Such litigation as is alleged is (he normal course of village life without
any threat to life unless some other factor, graver in nature and more imminent in point of
time, intervenes. Nothing of the sort had taken place. At least there is no evidence to
show the intervention of any such fact. Fourthly, the High Court in not treating the
statement of Khalida recorded under section 164, Cr. P.C. as a dying declaration, on the
ground that she was not imminently fearing death nor did the death take place soon
thereafter, ignored the law laid down by this Court and the express provision of section
32 of the Evidence Act. In the case of Wazir Gul v. The State (1976 S C M R 471) it was
laid down that "the law does not insist that for the purpose of being treated as a dying
declaration, the statement should have been made under immediate apprehension of
death. We cannot import into the statutory provision any such extraneous limitation".
Finally, a fact to be noted is that due to the general amenesty granted in the country death
sentence stands commuted into life imprisonment and those over sixty years of age and
having undergone five years' effective rigorous imprisonment have been released. One of
the convicts falls in the latter category and both in the former. As the restoration of death
sentence will be relatable to the judgment passed by the High Court and in substitution of
it the benefit cannot be denied to the appellants simply because they were wrongly
sentenced to lesser penalty for the same offence. In this context and for that reason the
appeal with regard to the sentence notwithstanding the high principles well-supported by
precedents advanced by the learned counsel for the complainant must be treated as
having become infructuous.

9. The High Court was justified in treating Muhammad Khan (PW-12) as a disinterested
witness and relying on his testimony and thereafter extending the benefit to those whose
fires did not hit or were not effective. On the facts of the case such a view was justified
because the common intention to cause death remained a matter of some doubt in respect
of those who did not fire or could not fire effectively at the individuals even from such a
close distance. In respect of those who aimed their shots and caused the injuries to the
individuals, such a common intention could be said to have been established beyond
reasonable doubt. Such a view does not erode the principle of common liability but only
reflects that feature of judicial restraint and caution which is insisted upon in a criminal
case involving capital punishment where the totality of the facts of the case had to be
viewed with a view to arrive at a conclusion beyond reasonable doubt. This also explains
why even after giving all the benefits to three others allegedly involved in the crime, the
conviction and sentence of the two convict appellants can be maintained and sustained on
the same evidence.

We find no merit in both the appeals and they are dismissed.

N.H.Q./M-1074/S Appeals dismissed.

Page No. 5 of 5
1989 S C M R 2058

Present: Nasim Hasan Shah, Pir Muhammad Karam Shah and Maulana
Muhammad Taqi Usmani, JJ

THE STATE—Petitioner

Versus

MUHAMMAD NASEER—Respondent

Criminal Petition No.61-R(S) of 1988, decided on 25th June, 1989.

(On appeal from the judgment dated 27-4-1988 of the Federal Shariat Court in Jail
Cr.Appeal No.43/1 of 1987).

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

---Ss.4 & 6--Criminal Procedure Code (V of 1898), S.164--Constitution of Pakistan

(1.973), Art.185(3)--Leave to appeal granted to consider questions whether Zina can be
committed against dead body; which is the competent Court before whom a valid
confession could be made and what was the value of a retracted confession under Islamic
Law.

Muhammad Nawaz Abbassi, Addl. Advocate General Punjab and Rao Muhammad Yusuf
Khan, Advocate-on-Record for the State.

Nemo for Respondent.

Date of hearing: 25th June, 1989

ORDER

NASIM HASAN SHAH, J.--This is a very unusual case. The respondent Muhammad
Naseer, it is alleged, was deeply in love with a young lady Mst. Farhat but was unable to
come close to her before she died on 11-2-1987. She was buried on the same day at about
11 a.m. in Pir Mitha Graveyard at Wazirabad. On the night between 11/12 February,
1987, the respondent allegedly took out the dead body of Mst.Farhat from her grave and
committed zinc upon her. Next day at about 10 a.m. the father of Mst.Farhat, one
Muhammad Hussain received information that the corpse of his daughter was not in her
grave. Consequently, he went to the graveyard and found the naked dead body of his
daughter lying at a distance from her grave under the cover of a wall. It was also
discovered that the dead body of the deceased had been disgraced by some persons by
taking her out of the grave and leaving her naked in the open. The dead body was
thereupon reburied.

Sometime later the respondent was arrested and was found on arrest in possession of
unlicensed arm i.e. Carbine and some Charas. He also disclosed that he had committed
zina on Mst.Farhat. Whereupon the dead body was exhumed under the orders of the
District Magistrate and medical examination of the same conducted. Swabs taken from
the private parts of the dead body were found to be stained with semen. The accused was
also medically examined and swabs taken; 3 from his penis and glans and 3 from
perineal. These were also stained with semen. The accused was, accordingly, challaned
under section 8(3)(b) of Zina (Enforcement of Hudood) Ordinance 1979 for the offence
of Zina-bil-Jabr upon the dead body of the deceased. On conclusion of his trial he was
sentenced to death, subject to the confirmation of the Federal Shariat Court and also
imposed the punishment of 100 stripes to be inflicted at a public place.

On appeal and reference, the Federal Shariat Court came to the conclusion that although
zina could be committed against the dead body of a female as the definition of zina as
given in section 4 of the Ordinance VII of 1979 and the provision of section 6 thereof did
cover the offence committed against the dead body but, in the circumstances of this case,

Page No. 1 of 2
since the conviction was based on the confession of the respondent which was later
retracted, the same could not be sustained.

According to the learned Judges of the Federal Shariat Court, the confession on which
reliance can be placed for the purpose of Hadd sentence must be made four times in four
different meetings. In this case, the confession was made in the statement under section
164, Cr.P.C. and this was made before a Magistrate, who, according to the learned
Federal Shariat Court, was not the competent Court. Moreover, this was made only once
and not four times. Furthermore, instead of sending the accused to the judicial lock-up
after he had made the confession, he was returned to the custody of the police. The Court
further held that no sentence of Hadd in a zina case could be imposed without the
requirement of four eye-witnesses whereas in this case the conviction was based on the
circumstantial evidence. Admittedly, there were no eye-witnesses of the occurrence and
there was no direct evidence of any sort on record. The circumstantial evidence moreover
also did not connect the accused with the crime. The Federal Shariat Court also
considered the recoveries as doubtful. In the result, the respondent was acquitted and
ordered to be released.

In this petition for leave, some important questions of law arise for consideration, inter
alia, whether zina can be committed against the dead body; which is the competent Court
before whom a valid confession can be made and what is the value of a retracted
confession under Islamic Law etc.

Leave is, accordingly, granted.

The appeal shall be heard on the present record at an early date.

M.A.K./S-424/5 Leave granted.

Page No. 2 of 2
1986 S C M R 1934

Present: Muhammad Haleem, C. J., S.A. Nusrat and Ali Hussain Qazilbash, JJ

RIAZ HUSSAIN and others--Appellants

versus

THE STATE--Respondent

Criminal Appeals Nos. 17 of 1981, 184 and 185 of 1983, decided on 2nd September,
1986.

(From the judgment, dated 23-12-1980 of the Lahore High Court, passed in Criminal
Appeal No. 171 of 1978, Criminal Appeal No. 155 of 1978, Murder Reference No. 74 of
1978, Criminal Revision No. 704 of 1978 and Criminal Revision No. 737 of 1978).

(a) Penal Code (XLV of 1860)--

--Ss. 302 & 34--Daylight occurrence, enacted in midst of village and report of which
lodged by one of eye-witnesses with great promptness-Eye-version account of incident
furnished by two independent witnesses whose presence at spot at crucial time was
established beyond doubt--No inconsistency found in version of occurrence given by
eye-witnesses at trial, narration made in F.I.R. and their inter se version--Eye-witnesses
giving graphic account of incident implicating each accused for the part played by him in
commission of crime--Fact that one of deceased had received large number of knife
injuries was fully corroborated by medical evidence- --Motive for crime stated by
complainant party duly established--Recovery of weapons of offence at instance of
accused and their blood-stained clothes effected through reliable witnesses--Findings
arrived at by Courts below found to be correct--Conviction and sentences maintained.

(b) Penal Code (XLV of 1860)--

---S. 302--Evidence--Fact that blood on weapons of offence had disintegrated, held,

would lose significance in view of unimpeachable ocular evidence.-

Ghulam Rasul v. Ali Akbar P L D 1965 S C 363 ref.

(c) Penal Code (XLV of 1860)--

---S. 302--Evidence--Weapon of offence--F.I.R. and evidence of eye-witnesses showing

accused to have been armed with and having inflicted a blow on deceased with a "knife"
but recovery made at his instance being that of "Chhuri"—Miss description of weapon of
offence, held, would not tarnish case of prosecution in view of reliable ocular evidence.

(d) Penal Code (XLV oaf 1860)--

---Ss. 302, 96, 97--Criminal Procedure Code (V of 1998), S. 342--Private defence, right
of--Plea raised by two out of six accused in their statements under 5.342, Cr.P.C. being
contradictory, discrepant and hardly making out a case for self defence--Such plea, held,
was rightly rejected.

(e) Criminal Procedure Code (V of 1898)--

---Ss. 154 to 176--Investigation--System of re-investigation in criminal cases, a recent

innovation always taken up at instance of influential people and favourable reports
obtained in no way assists Courts in coming to correct conclusion--System disapproved.

(f) Criminal Procedure Code (V of 1898)--

---S. 540---Summoning material witness by Court--Application for summoning three

Police Officers made by accused during trial but Court summoning only one Officer as a

Page No. 1 of 8
Court-witness -No effort made by accused at trial to insist on production of other officers
and point not raised at appellate stage--Asking Supreme Court to undergo such exercise,
held, would be too late in the day.

(g) Penal Code (XLV of 1860)--

---Ss. 302 a 34--Sentence--Quantum--Death sentence--Unarmed deceased (two in

number) mercilessly and brutally done to death-- No mitigating circumstances existing to
impose lesser punishment on convicts-Sentences of death imposed by High Court, held,
would not require any interference in circumstances.

(h) Penal Code (XLV of 1860)--

----S. 302--Sentence--Enhancement--Award of lesser punishment of imprisonment for life

by lower Court on very solid grounds--Supreme Court declined interference.

Sh. Shaukat Ali, Senior Advocate Supreme Court instructed by Tanvir Ahmad
Advocate-on-Record (absent) (in Criminal Appeals 17 of 1981 and 184 of 1983).

Ijaz Hussain Batalvi, Advocate Supreme Court instructed by Muhammad Aslam

Chaudhry, Advocate-on-Record (absent) in Criminal Appeal No. 185 of 1983.

M. Bilal, Advocate Supreme Court instructed by Rao M. Yousaf Khan

Advocate-on-Record for the State.

Date of hearing: 29th June, 1986.

JUDGMENT

ALI HUSSAIN QAZILBASH, J.-- These three appeals bearing Nos.17/1981, 184/1983
by the convicts against their conviction and 185/1983 by Sadiq Ali, father of Baqir Ali
deceased, for the enhancement of the sentence of Zahid Hussain and Muhammad Rafiq
by leave of this Court arise out of a consolidated judgment of the Lahore High Court
dated 23-12-1980.

2. Mehr Din, his sons Muhammad Boota and Ghulam Abbas, his nephews Zahid Hussain
and Riaz Hussain and their friend Muhammad Rafiq, all residents of Chak No.224/R.B.
Abadi Mehar Hakim Din Wali, Faisalabad, were tried by the Additional Sessions Judge
Faisalabad, who, vide his judgment dated 2.2.1978. while acquitting Mehr Din and his
son Muhammad Boots, convicted the remaining four (the appellants) under section
302/34, P.P.C. on two counts for the murder of Baqir Ali and Bakhat Nawaz Malli. For
the murder of Baqir Ali, Riaz Hussain, Zahid Hussain, Muhammad Rafiq and Ghulam
Abbas were sentenced to imprisonment for life and' a fine of Rs.5,000 each or in default
of payment of fine to four years further R.I. each, For the murder of Bakhat Nawaz Malli,
Ghulam Abbas appellant was sentenced to death, Riaz Hussain, Zahid Hussain and
Muhammad Rafiq were sentenced to imprisonment for life and a fine of Rs.5,000 each or
in default of Payment of fine to undergo four years' further R.I. each. Half of the fine on
realization was ordered to be paid to the heirs of the deceased. This judgmen, was made
the subject-matter of two separate appeals by Ghulam Abbas (Criminal Appeal No.
155/1978)' Riaz Hussain, Zahid Hussain and Muhammad Rafiq (Criminal Appeal
No.171/1978) against their convictions and sentences and two Criminal Revisions
bearing Nos. 704/1978 and 737/1978 by Muzaffar Ahmad for the enhancement of
sentence of Riaz Hussain, Zahid Hussain and Muhammad Rafiq imprisonment for life to
death and against the acquittal of Mehr Din and his son Muhammad Boots, respectively.
When seized of the matter, the learned appellate Court vide its judgment dated
23.12.1980, dismissed the revision against the acquittal of Mehr Din and his son
Muhammad Boots, it also dismissed Criminal Appeal No.171 of 1978, withdrew the
notices of enhancement from imprisonment for life to death issued to Muhammad Rafiq
and Zahid Hussain, maintained the sentences imposed by the learned trial Court, also
confirmed the death sentence awarded to Ghulam Abbas and enhanced the sentence of
Riaz Hussain from imprisonment for life to death for the murder of Baqir Ali.

Page No. 2 of 8
3. The occurrence in this case took place on 27.9.1974 at 4-45 p.m. near the Dera of Baba
Lata within the area of Hussaini Street, Faisalabad. The report was made by Muzaffar
Ahmad (P W.8) resident of Chak No.354 Qadirabad, a close friend of Baqir Ali deceased,
at Peoples Colony Police Station, Faisalabad, at 5-30 p.m. and recorded by Muhammad
Khan, S.H.O. Police Station Peoples Colony (P.W.10). It runs as follows:

"I am a resident of Chak No.354 Qadirabad, had friendly relations with Baqir Ali, owner
of Dawn Textile Industries, who now-a-days was undergoing training as C.S.P. Officer at
Lahore. Bakhat Nawaz Malli, a relation of mine, who was constructing a towel factory at
Sheikhupura Road, Faisalabad, was also a close friend of Baqir Ali. According to a
prearranged programme I was to meet Baqir Ali today afternoon, therefore, I and Shaukat
Ali, my co-villager, reached Dawn Textile Industries at 4 p.m. where Bakhat Nawaz Malli
was present. On enquiry it wa3 given out that Baqir Ali was present in his house, situate
in Abadi Mehar Hakim Din. I alongwith Bakhat Nawaz Malli and Shaukat Ali Shah
reached the house of Baqir Ali who was present there. It was decided there that a sitting
should be held in Dawn Textile Industries and we all adopted Hussaini Street for Dawn
Industries. Baqir Ali and Bakhat Nawaz Malli were going ahead and 1 and Shaukat Ali
Shah were following them talking to each other. It was about 4-45 p. m. when we reached
in front of the Dera of Baba Lata where we found Mehr Din alias Shikra, Ghulam Abbas,
Muhammad Boots, Zahid Hussain, Riaz Hussain and Muhammad Rafiq standing there.
Of them, Ghulam Abbas, Riaz Hussain, Zahid Hussain and Muhammad Rafiq were
armed with knives. They raised a Lalkara at Eaqir Ali that he would not be spared.
Muhammad Boots took Baqir Ali in his Japhha and Riaz Hussain, Zahid Hussain and
Muhammad Rafiq attacked Baqir Ali and in the process inflicted knife injuries on the
various parts of his body. when Bakhat Nawaz Malli tried to intervene in order to save
Baqir Ali, he was given Japhha by Mehr Din alias Shikra while Ghulam Abbas gave him
a knife blow at his left flank,as a result of which Bakhat Nawaz Malli fell down an the
ground in mud. I and Shaukat Ali Shah tried to intervene but were threatened by the
accused. Thereafter Muhammad Boots. Riaz Hussain, Zahid Hussain and Muhammad
Rafiq lifted Baqir Ali and took him inside their Dera from the street. On my raising alarm
Muhammad Khalil who lived near the place of occurrence was attracted. The occurrence
was witnessed by me, Shaukat Ali Shah and Muhammad Khalil P.Ws. Baqir Ali died in
the Dera and Bakhat Nawaz Malli in the street. The accused bolted away."

4. The motive given in the F.I.R. is that Baqir Ali was betrothed about 21 years earlier to
the occurrence to Mst. Asmat, daughter of Mehr Din alias Shikra. In the meantime Baqir
Ali was selected in the services and he refused to marry Mst. Asmat. Over this Mehr Din
was annoyed and had repeatedly threatened that he would not allow Baqir Ali to become
a C . S . P . Officer.

5. After recording the F.I.R., Muhammad Khan S.H.O. went to the spot, prepared the
inquest reports and injury sheets of bath the deceased and despatched the dead bodies to
the mortuary for postmortem examination. He collected blood-stained earth from the
place of occurrence. He arrested Ghulam Abbas and took into possession his
blood-stained shirt vide memo. Exh.P.M. He arrested Zahid Hussain, Riaz Hussain and
Muhammad Rafiq on 28.9.1974 and took into possession blood-stained shirt P.15 and
trousers P.16 of Zahid Hussain, vide memo. Ex.P.N. blood-stained shirt P.17 and
blood-stained trousers P.18 from Riaz Hussain, vide memo. Ex.P.Q and bushshirt P.19
and trousers P.20, both blood stained, from the person of Muhammad Rafiq, vide memo.
EXh.P.P. He also arrested Muhammad Boota and Mehr Din on the same day, i.e.,
28.9.1974. On this very day Muhammad Bashir constable produced last worn clothes of
the two deceased handed over by the doctor which were taken over into possession
through memos. Exhs. P.C. and P.D. On 30-9-74 Riaz Hussain, Zahid Hussain,
Muhammad Rafiq and Ghulam Abbas while in custody led the Police party to the Dera of
Baba Lata from where three blood-stained knives and one blood-stained Chhuri
Exhs.P.10, P.11, P.12 and P.13 were recovered, vide memos. Exhs. P F. P.G., P.H. and P.J.
The report of the Chemical Examiner and that of the Serologist in respect of the above
articles are Exhs.P.Z and P.AA.

6. Dr. Abdul Haleem Sahota (P.W:1) conducted the post-mortem examination on the dead
body of Bakhat Nawaz Malli aged about 24 years, and found a stab wound, 2"x3/4" x

Page No. 3 of 8
deep to chest on the left side of chest about two inches below the level of-left nipple and
three and a half inches away from the nipple.

The wall of the, thorax was pierced at site of injury No. l .There was a cut 2" long on the
left pleura. A cut 1½" long and 2" deep seas present in the left lung on the left lower base.
The base was cut through and through. There was a hole in the apex of the heart whim
was through and through. There was a cut 2-1/4" in the middle of diaphragm and also a
cut 1½" long and 2" deep in the left lobe of the liver. The injury had penetrated chest
wall, left pleura, left lung, heart, diaphragm: and liver. The path was about 10" long.

On the same day the same doctor also conducted post-mortem examination on the dead
body of Baqir Ali and found the following injuries:

(1) Stab 1-3/4" x 3/4" x deep to chest on the back of left lower chest.

(2) Stab 1½" x 1/2" x muscle deep on the back of left lower chest near mid line.

(3) Stab 2" x ½ " deep to chest on the back of left chest in the 10th inter-costal space.

(4) Incised wound 2¼ " x bone cut (chip fracture). On the lateral of palm of left hand.
The first matacarpal, near little finger was fractured (chip fracture).

(5) Incised wound 1½" x 3/4" x muscle deep on the posterior of the left forearm near
elbow joint.

(6) Stab 1" x 1/2" x deep to chest about one inch below the nipple line on the right
part of sternum.

(7) Triangular shape stab 1½" x 3/4" x deep to chest about four inches below nipple
line and 2-3/4" medial to the nipple in the right anterior of chest.

(8) Incised wound 1¾ " x 1/2" x muscle deep on the right arm above elbow joint.

(9) Bruised areas covering 3" x 1½" involving left cheek lower eye lid and lower part
of upper eye-lid.

(10) Stab 2" x 1/2" x muscle deep back of right chest lower part.

The wall of the thorax was pierced, the pleura was cut and so was the left lung through
and through. The pericardium was cut at the right lower side. The diaphragm was cut
beneath injury 7 on the right dome. There was a cut 11" deep on the right posterior lobe
of liver and a cut 1" x a piece separated on the upper part of the spleen. A hole 1" through
and through was present in the left kidney on the upper pole. The sternum was cut on the
right side right half beneath injury No.6. The 9th rib was cut beneath injury No.7. The
doctor admitted that the width of injuries 2, 3, 4, 6, 8 and 10 was one and the same and it
was not necessary that the breadth of the wound should correspond with the breadth of
the weapon of offence. However, in the case of pointed weapon it might be true. He ruled
out the possibility of the various injuries having common measurement of 1/2" to have
been caused by one and the same weapon.

7. At the trial, the prosecution in support of its case produced as many as ten witnesses.
Of them, Muzaffar Ahmad P.W.8 and Muhammad Khalil P.W.9 have furnished
eye-account of the occurrence.

8. Ghulam Abbas appellant in his statement under section 342, Cr.P.C. has denied the
charge of the murder of Baqir Ali and Bakhat Nawaz Malli. He also denied the recovery
of blood-stained Chhuri Exh . P .13 at his pointation and also the recovery of
blood-stained shirt Exh.P.14 from his person. In his detailed statement he deposed that on
the evening of the day of occurrence he had left Lahore along with Zahid Hussain and
Riaz Hussain co-accused after visiting Data Darbar shrine. On the way back he fell ill and
joined Mananwala Hospital for treatment. He had told this position to the police and Mr.
Rizvi Inspector after perusing the record of the hospital recommended him to be shown in

Page No. 4 of 8
column No.2. As long as Mr.Mazhar Awais was S.P at Faisalabad he did not pay any heed
to his plea of defence. An soon as he was transferred this plea was accepted by the Police.
Later on under the influence of Iftikhar Rasul Malli, D,I.G., they were all challaned.

Muhammad Rafiq appellant on his part denied the charge of murder of Baqir Ali and
Bakhat Nawaz Maili. He disowned bushshirt P.19 and trousers P.20 and denied the
recovery of knife P.12 at his instance from the Dera of Baba Lata. He further deposed that
'as a matter of fact on the day a drain was being repaired in the street. The deceased came
there in a car and when they reached near us they managed to drive the car in such a way
that mud splashed on us. There was an exchange of hot words, whereupon Baqir Ali and
Bakhat Nawaz came out of their car. They fired with pistols. I left the place and went to
my house. I did not know what happened on the spot afterwards".

Zahid Hussain too denied the charge, the recovery of blood-stained knife P.11 and
ownership of blood-stained shirt and trousers P.15 and P.16. He adopted the statement of
Ghulam Abbas.

Riaz Hussain in his statement under section 342, Cr.P.C. denied the charge of double
murder, denied the ownership of shirt P.17 and trousers P.18 and knife 'P.'10. He pleaded
alibi by stating that on 27--9-1974 he actually attended the marriage ceremony of his
friend Sardar Ali son of Nabi Bakhsh at Mauza Ibrahimabad Laliani. This was at a
distance of 120 miles from Lyallpur. He produced the Nikahnama before the
Investigating Officer Mr. Rizvi. It bore his name as a witness of Nikah. This fact was
verified at Laliani and he was shown in column No.2 by Mr. Raza Hussain Rizvi and Mr.
Fida Hussain D.S.P.

The Court also examined Mr. Raza Rizvi as C.W.1.

9. We have heard the learned counsel for the parties in detail. The learned trial as well as
the appellate Courts in convicting the appellants have relied upon the statements of
Muzaffar Ahmad P. W. 8 and Muhammad Khalil P.W.9 who had given eye-version
account of the occurrence, the motive, the medical evidence and, of course, the recoveries
of the weapons of offence. On further re-appraisal of the evidence produced by the
prosecution in this case, by us, in the light of the arguments of the learned counsel for the
parties, has led us to the conclusion that the findings arrived at by the Courts below were
correct. It is daylight occurrence, enacted in the midst of the village, the report of which
had been lodged within 45 minutes which, under the circumstances of the case, was with
great promptness. The F.I.R. has been lodged by Muzaffar Ahmad P.W.8 and this fact
alone goes a long way to establish that he was present at the spot at the crucial time. As
for Muhammad Khalil P. W.9, since his house is situated in the close vicinity of the spot,
therefore, his presence also cannot be disputed, moreso when no attempt was made by the
defence to create doubt about his presence at the spot at the relevant time. The
eye-version account of the incident has been furnished by the above two witnesses who
are absolutely independent in that there is not an iota of evidence that they were inimical
towards the appellants and had, therefore, implicated them falsely.

10. We have carefully examined the version of the occurrence given by Muzaffar Ahmad
and Muhammad Khalil P.Ws at the trial and have not been able to find any departure
made by these two witnesses from the narration made in the F.I.R. or for the matter of
that any inconsistency in their inter se version of the occurrence. Both of them have given
a graphic account of the incident accusing each of the appellants for the part played by
him in the commission of the crime. It was rather the defence which further strengthened
the case of the prosecution when in the cross-examination Muzaffar Ahmad P.W.8 was
made to depose:--

"The moment Baqir was taken in his Japha by Boots, the other accused assaulted
on him, therefore, Baqir had got no time to release himself from the Japha of Boots. Riaz,
Zahid and Rafique accused were the persons, who attacked on Baqir Ali when he was
taken into Japha by Boota. Mehar Din and Abbas also tried to attack on Baqir Ali, but
Bakhat Nawaz immediately interfered and was attacked by them. It was Zahid accused,
who gave a blow on the chest of Baqir Ali. I did not state at the time of F.I.R. that it was
Zahid, who gave a blow on the chest of Baqir Ali. Rafique accused also attacked on Baqir

Page No. 5 of 8
Ali, when Baqir had tried to defend himself with his hands. It was Riaz accused, who
inflicted injury on the back of Baqir Ali."

The very fact that Baqir Ali deceased had received large number of knife injuries on his
person and Bakhat Nawaz Malli deceased one stab blow has been fully corroborated by
the medical evidence inasmuch as Dr. Abdul Haleem Sahota (P.W.1) on examining the
dead body of Baqir Ali deceased found nine incised wounds on its upper portion and one
stab wound on the body of Bakhat Nawaz Malli. The doctor further deposed that injuries
1, 3, 6 and 7 were sufficient to cause death individually in the ordinary course of nature.
It was again the defence which weakened its case more, when it brought from the mouth
of the doctor that he would rule out the possibility of the various injuries having common
measurement of 1/2" to have been caused by one and the same weapon.

11. Another circumstance which has gone against the appellants is the motive. Azhar
Hussain P.W.7, who is brother of Baqir Ali deceased, and Muzaffar Ahmad P.W.9
deposed at the trial that Baqir ali deceased was engaged to Mst. Asmat daughter of Mehr
Din. But on being selected to the Superior Services he refused to marry Mst. Asmat
because she was below his standard and that the appellants were annoyed over the
behaviour of Baqir Ali and had threatened him many a time. Though the appellants have
denied the above allegation but they have failed to bring any material on the record to
create doubt about the same. The parties are inter-related, there existed no other enmity
between them except the above motive which, we are of the view, has been duly
established.

12. Yet another incriminating circumstance which has been relied upon in this case is the
recoveries of the weapons of offence at the instance of the appellants and their
blood-stained clothes soon after the occurrence. Both the recoveries had been effected
through reliable witnesses. The fact that the blood on the weapons of offence had
disintegrated has lost its significance in view of the unimpeachable ocular evidence and
reliance in this respect was rightly placed by the learned Judges of the High Court in the
case of Ghulam Rasul v. Ali Akbar P L D 1965 S C 363. There is a discrepancy in
describing the weapon which was in possession of Ghulam Abbas appellant at the crucial
time. In the F.I.R. and in the evidence of Muzaffar Ahmad and Muhammad Khalil, he has
been shown to be armed with and inflicted a blow on Bakhat Nawaz Malli with a "knife"
but recovered at his instance has been made that of a "Chhuri". The miss-description of
the weapon of offence in view of the reliable ocular evidence would not at all tarnish the
case of the prosecution against Ghulam Abbas appellant, more so when the Chhuri
recovered at his instance had stains of blood though disintegrated.

13. Mr. Shaukat Ali the learned counsel for the appellants, while referring to the
statement of Muhammad Bashir P.W.4 and the statements made by Muhammad Rafiq
appellants and Mehr Din (the acquitted accused) under section 342, Cr. P. C . ,
vehemently contended that as a matter of fact Baqir Ali deceased intended to kill
Muhammad Rafiq and had fired at him with his pistol and that the appellants had
inflicted injuries on the deceased in exercise of the right of private defence. He also
submitted that during the re-investigation conducted in the case by responsible police
officers in the persons of Zahoor Hussain Shah, Raza Hussain Rizvi Inspectors, and Fida
Hussain Shah D.S.P., Ghulam Abbas, Riaz Hussain and Zahid Hussain appellants were
found innocent and their reports formed part of the record, yet the learned trial Court
examined Raza Hussain Rizvi only as C.W.1 but did not summon the others, which has
resulted in a grave and serious miscarriage of justice.

14. We have given our careful consideration to the contentions raised but we are afraid, as
the case stands, none would prevail. The perusal) of the record shows that as for the
question of self-defence is concerned this question had been raised in the Courts below.
Both the Court, after thorough examination of the question rejected it on a very solid
ground. Of the six accused, only two namely, Mehr Din, the acquitted accused, and
Muhammad Rafiq appellant had raised the plea of self-defence in their statements under
section 342, Cr.P.C. But to their misfortune their statements are so contradictory and
discrepant that it hardly makes out a case for self-defence. Muhammad Rafiq appellant
has not said a single word that he had inflicted injuries on the deceased 'in exercise of his
right of private defence. Further, neither the pistols which the deceased were allegedly

Page No. 6 of 8
carrying nor any empty had been recovered from the place of occurrence. So far as the
statement of Muhammad Bashir P.W.4 is concerned, it is vague and off the point and has
lost its value in view of the consistent statements of other prosecution witnesses.

15. So far as the innocence of Ghulam Abbas Riaz Hussain and Zahid Hussain appellants
during re-investigation is concerned, this was urged before the learned trial Court and
repelled by it after due consideration and there exists no reason with us to come to a
different conclusion. The occurrence in this case had taken place in September 1974 and
the final report of the re-investigation was submitted in April 1977, i.e. after a lapse of
about three years. How on earth any significance can be attached to a report compiled and
submitted after such a long time, especially when there was every possibility of
fabrication of evidence. The system of re-investigation in criminal cases is a recent
innovation which is always taken up at the instance of influential people and favourable
reports obtained. This in no way assists the Courts in coming to a correct conclusion, it
rather creates more complications to the Court administering justice. We, therefore,: this
system altogether. As for the grievance of the learned' counsel for the appellants for
non-summoning of the police officers goes, it too has no basis. The perusal of the
order-sheet of the trial Court shows that during the trial an application under section 540,
Cr.P.C. was moved by the appellants for summoning of Zahoor Hussain Shah, Raza
Hussain Rizvi and Fida Hussain. The learned trial Court after hearing the arguments of
the parties on this application passed order on 19-12-1977 and only Raza Hussain Rizvi
was summoned as a Court witness and was examined on 19-1-1978. It seems that no
effort was made by the appellants at the trial to insist on the production or the other police
officers and the point was not raised at the appellate stage as well. It is, therefore, too late
in the day to ask this Court to undergo that exercise.

16. Lastly, the learned counsel for the appellants had addressed us on the question of
quantum of sentence. The appellate Court has maintained the sentence imposed by the
trial Court upon Zahid Hussain, Muhammad Rafiq and Ghulam Abbas but enhanced the
sentence of Riaz Hussain from imprisonment for life to death for the murder of Baqir Ali.
It also confirmed the sentence of death imposed on Ghulam Abbas for the murder of
Bakhat Nawaz Malli and also maintained the sentence imposed by the trial Court on Riaz
Hussain, Zahid Hussain and Muhammad Rafiq for the murder of Bakhat Nawaz Malli
which was committed by them in furtherance of their common intention. The learned
High Court did not find any mitigating circumstance for Riaz Hussain and thus enhanced
his sentence from imprisonment for life to death and directed that he shall be hanged by
his neck till he is dead. We have considered the quantum of sentence imposed upon the
appellants from every angle and we find that the sentences imposed by the Division
Bench of the High Court did not require any interference in that the two deceased who
were unarmed have been mercilessly and brutally done to death. Thus, no mitigating
circumstance exists to impose lesser punishment on Ghulam Abbas and Riaz Hussain
appellants. Therefore, the appeals filed by the appellants are dismissed. However the
sentences off imprisonment for life imposed on Zahid Hussain and Muhammad Rafiq
appellants shall run concurrently and they are also allowed the benefit of section 382-B ,
Cr. P . C . As for the appeal of Sadiq Ali for the enhancement of sentence of Zahid
Hussain and Muhammad Rafiq is concerned, we are of the view that the Courts below
have awarded them lesser punishment on very solid grounds and same does not require
interference by us. Therefore, the appeal of Sadiq Ali is also dismissed.

S. Q. Appeal dismissed.

Page No. 7 of 8
P L D 1984 Supreme Court 29

Present : Aslam Riaz Hussain and Nasim Hasan Shah, JJ MUHAMMAD SAEED AND 6
OTHERS-Appellants

Versus

THE STATE AND ANOTHER-Respondents

Criminal Appeal No. 141 of 1983 in Criminal Petition for Special Leave to Appeal No.
3J8 of 1983, decided on 22nd October, 1983.

(Against the Order of the Lahore High Court dated 24-7-1983, passed in Criminal
Miscellaneous No. 273/Q/1982).

(a) Criminal Procedure Code (V of 1898~

-- Ss. 181(4), 202 & 561-A-Offence of Zina (Enforcement of Hudood) Ordinance (VII of
1979), Ss. 6, 11 & 16--Private complaint-Sessions Judge cannot take cognizance of
private complaint in first instance without report of enquiry under S. 202, Cr. P. C.-
Accused after abduction taking away abductee to place to place and bringing her to S as
well-Sessions Judge at S has jurisdiction to entertain and adjudicate upon matter-
Application for quashing of proceedings, held, rightly dismissed by High Court in
circumstances.-[Complaint].

(b) Criminal Procedure Code (V of 1898)

Ss. 561-A, 181(4), 202 & 164-Offence of Zina (Enforcement of Hudood) Ordinance (VII
of 1979), Ss. 6, 11 & 16-.Married woman after leaving her husband's home living with
her father-Father of such woman lodging F. I. R. to the effect that S has abducted her-
Woman in her statement under S. 164, Cr. P. C. completely exonerating accused S and
stated that no one abducted her nor had any one done anything by force with her and she
left house of her father on fear that her father may not send her to her husband against her
will, who is vagabond, drunkard and used to beat her-Police having found accused to be
innocent Magistrate cancelled case against S-Woman, after statement under S. 164, Cr. P.
C. refused to go to her father alleging that he did not wish to keep her in his house-
Woman, on the next day lodging private complaint under Ss. 6, 11 & 16 of Offence of
Zina (Enforcement of Hudood) Ordinance, 1979 in Court of Sessions Judge implicating 7
persons including S's father, mother and brother, with allegation that S has raped her after
abduction-Contention that complaint filed by lady was not likely to succeed and
petitioners (accused) were bound to be acquitted and should not therefore be permitted to
be subjected to humiliation and harassment which was only purpose for which relatives
of lady have made her institute private complaint against petitioners, held, has force, lady
being a grown up married woman cannot be induced to accompany accused in manner
alleged by her but was just an attempt on her part to dishonour petitioners (accused)
because of bad blood existing between parties-Supreme Court converting petition into
appeal quashed proceedings in private complaint against petitioners in circumstances.
S. M. K. Lodhi, Advocate Supreme Court with Sh. Abdul Karim, Advocate-on-Record for
Petitioners.

Muhammad Abdullah Bajwa, Advocate Supreme Court and Ch. Mehdi Khan Mehtab,
Advocate-on-Record for Respondent.

Date of hearing : 22nd October, 1983.

ORDER

ASLAM RIAz HUSSAIN, J.-This petition by Muhammad .Saeed and 6 others is directed
against the dismissal of their application for quashing the criminal proceedings based on
a private complaint filed by Mst Nasreen Fatima against Muhammad Saeed etc., in a case
under sections 6, 7 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance,

Page No. 1 of 3
1979, pending against the petitioners in the Court of Mr. Muhammad Younis, Additional
Sessions Judge, Sargodha, dismissed vide the impugned , judgment dated 24-7-1983.

2. The facts giving rise to this petition are, briefly, that on 25-3-1982, Kazi Muhammad
Rafiq made a report to the Inspector Incharge of the Police Station, Khushab to the effect
that on the night between 24th and 25th of March, 1982, Muhammad Saeed petitioner
had abducted his daughter Mst. Nasreen Fatima. It may be mentioned that Mst. Nasreen
Fatima (respondent No. 2 herein) is a married woman and had been putting up with her
father Kazi Muhammad Rafique. On the next day, i. e. on 26-3-1982, he lodged an F. I. R.
with the police giving some more detailed version of the abduction of his daughter,
naming Muhammad Saeed as well as two others, namely the real mother and the brother
of Saeed.

During the investigation Mst. Nasreen Fatima was recovered and lodged in Darul Amaan
from where she was produced before a Magistrate Ist Class on 10-4-1983, who recorded
her statement under section 164, Cr. P. C. In the said statement she completely exoneratad
the accused and stated that, in fact, her husband was a vagabond, drunkard and used to
beat her ; that she used to earn her own livelihood by doing labour; that she lived with her
father after leaving her husband's. house; that her father told her that she was not needed
by the family and that they would send her with her husband against her will. She stated
further that no one had abducted her nor had any one done anything by force with her.

It is noted by the Magistrate that after completion of her statement the Magistrate wanted
to send her with her father but, the latter said that he (i. e. her father) did not wish to keep
her in his house.

The police found the accused person named in the F.I.R. to be innocent and the case was
finally cancelled by the concerned Magistrate on 8-9-1982. But the very next day a
private complaint under sections 6, 11 and 16 of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979, was lodged by Mst. Nasreen Fatima in the Court of the
Sessions at Sargodha, in which as many as 7 persons including the father, mother and one
brother of Muhammad Saeed and four other persons (all of them are petitioners herein),
were accused. It was also stated in the said complaint that after having abducted Mst
Nasreen Fatima, Muhammad Saeed had committed rape on her.

3. The learned Sessions Judge transferred the case to Additional Sessions Judge,
Sargodha, who in turn, marked it to the Magistrate Ist Class for inquiry under section
202, Cr. P. C.

After holding inquiry the learned Magistrate sent his report to the learned Additional
Sessions Judge, who issued non-bailable warrants against the accused-petitioners on 10-
10-1982.

Feeling aggrieved the petitioners filed quashment application under section 561-A, Cr. P.
C. before the High Court for quashment of the proceedings.

4. It was urged before the High Court, inter alia; (i) that a private complaint could not
have been entertained by the learned Additional Sessions Judge, Sargodha, directly and
(ii) that the occurrence had taken place in Khusbab, as such the learned Additional
.Sessions Judge, Sargodha did not have the jurisdiction to entertain and try the matter.

Both these contentions were repelled by the High Court. The learned Single Judge in
Chamber observed that the Additional Sessions Judge had not taken cognizance of the
private complaint in the first instance but did so only when the report of the inquiry under
section 202, Cr. P. C., had been submitted to him, and secondly, it is the prosecution's
own case that after. abduction the accused had taken Mst. Nasreen Fatima from place to
place and had also been brought to Sargodha. Therefore, in view of the provisions of.
section 181 (4), Cr. P. C., the learned Additional Sessions Judge had jurisdiction to
entertain and adjudicate upon the matter. The High Court, therefore, dismissed the
quasbment application vide the impugned judgment dated 24-7-1983.

Hence the present petition.

Page No. 2 of 3
5. Before us the learned counsel for the petitioners urged both the abovementioned
contentions, but we find no force in them as no exception can be taken against the view
expressed by the High Court, with which we agree respectfully.

6. The counsel for the petitioners then argued that, in any case, the complaint filed by
Mst. Nasreen Fatima is not likely to succeed' and the petitioners are bound to be acquitted
and should not therefore, be permitted to be subjected to humiliation and harassment
which is the only purpose for which the relatives of Mst. Nasreen Fatima have made her
institute this complaint against the petitioners and other members of their family.

7. After having gone through the contents of the report dated 25-3-1982; the F. 1. R. ; the
statement made by Mst. Nasreen Fatima under section 164, Cr. P. C. , dated 10-4-1982
and the private complaint filed by her, we feel that i there is force in the submission noted
in para. No. 6. Mst. Nasreen Fatima is a grown up married woman and could not be
induced to accompany the accused in the manner alleged by her. Moreover, there are
variations in the version of the incident and drastic change have been made by including
more accused each time the matter was reported to the police or to the Court through the
private complaint. We are, therefore, inclined to agree with the learned counsel for the
petitioners this is an attempt on the part of the complainant party to dishonour the
petitioners because of the bad blood existing between the parties.

Considering all the facts of the case in the light of the material before us, we feel that this
is a fit case for quashment of proceedings in respect of a private complaint filed by Mst.
Nasreen Fatima under sections 6, 11 and 16 of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979, pending in the Court of Mr. Muhammad Anwar, Additional
Sessions Judge, Sargodha. We, therefore, convert this petition into appeal; accept the
same and. quash the proceedings in the above-noted complaint case.

M. z. M. Appeal accepted.

P L D 1984 Supreme Court 32

Page No. 3 of 3
P L D 1984 Supreme Court 95 Shariat Beach

Present : Justice Muhammad Afzal Zullah, Chairman, Nasim Hasan Shah, Shafiur
Rahman, Pir Muhammad Karam Shah and Muhammad Taqi Usmani, JJ

MUHAMMAD AZAM-Appellant versus

MUHAMMAD IQBAL AND OTHERS-Respondents

Criminal Appeal No. 2 of 1982 (Shariat), decided on 26th Octobcr, 19$3.

(On appeal from the judgment and order of the Federal Shariat Court, Islamabad, dated
26-5-1982 in Cr. A. No. 44/1 of 1982).

(a) Constitution of Pakistan (1973)

-- Art. 20_-F-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.

10(3)-Zina-bil-Jabar liable to Tazir-Trial Court failing to record all essential evidence so
as to reach correct conclusions about alleged marriage ; statement of prosecutrix under
Ss. 164/200 Cr. P. C., age of prosecutrix and effect thereof on acts of accused Findings of
Federal Shariat Court if suffering from some misreading, held, by itself would not justify
setting aside of acquittal in circumstances as failure of trial Court to act in accordance
with law regarding conduct of trial also reacted on decision of Federal Shariat Court
Judgment of trial Court liable to be set aside, and remand order necessary-Question of
remand for fresh trial being directly involved in case, Supreme Court, avoided conclusive
finding on any question of fact which would vitally effect culpability or otherwise of
accused.[Remand-Finding of fact].
Link

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of.1979)-

-- S. 10(3)-Criminal Procedure Code (V of 1898), S. 540-Zina-bilJabar liable to Tazir-

Nikah-Production of Nikhnama by accusedDuty of trial Court and Investigating Officer if
Nikabnama alleged to be fake-Secondary evidence necessary-Prosecution alleging
coercion by accused and defence plea of valid Nikah without coercion-Resolution of
controversy by Court absolutely essential for just decision of caseTrial Court to summon
entire available evidence on controversy and record/admit same by virtue of powers
under S. 540, Cr. P. C.
Link

(c) Criminal Procedure Code (V of 1898)

--- S. 540-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 1,0(3)-

Zina-oil-Jabar liable to Tazir-Nikah-Prosecution alleging coercion by accused and
defence plea of valid Nikah without coercion-Evidence relating to Nikah absolutely
essential-Failure of trial Court to act under S. 540, Cr. P. C., held, not only deprived
appellate Court of essential material for just decision of appeal but also occasioned
miscarriage of justice.
Link

(d) Criminal Procedure Code (V of 1898)

-- S. 540--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)-

Zina-oil-Jabar liable to Tazir-Nikah-Effort by accused to create false evidence in support
of defence plea of willing elopement and/or Nikah with consent and filing of false
criminal complaints in Magistrate's Court so as to get statement of so-called complainant
recorded on oath under S. 200, Cr. P. C.-Duty of trial Court to re-summon and re-examine
prosecution under S. 540, Cr. P. C. to discover truth about Nikah.
Link

(e) Criminal Procedure Code (V of 1898)

Page No. 1 of 55
Ss. 540, 107/151, 100, 491 & 561-A - Penal Code (XLV of 1860), S. 506/34 -
Constitution - of Pakistan (1973), Art. 199-Complaint under S. 107/151, Cr. P. C. and
under S. 506/34, P. P. C. Proceedings for recovery of female under S. 100, Cr, P. C. and
other provisions of Code before Magistrate and District Magistrate-Proceedings before
High Court under S. 491, Cr. P. C. or S. 561-A, Cr. P. C.-Proceedings in writ jurisdiction
with a view to get either a statement of abductee recorded on oath, or her similar
statement in affidavit filed within such proceedings, besides affidavits before Notary
Public and Oath Commissioner, so as to create defence plea in cases of abduction,
kidnapping or rape-Held, such practice by itself would not be enough to give concrete
finding of fact in a given case that such proceedings were false so as to create/support a
defence plea in a criminal case without detailed evidence or material'about circumstances
in which any of such proceedings were launched-Such practice being of such magnitude
that court dealing with such matter should take extreme care and caution for discovering
reality and truth---Case, if found to be of mala fide, proper action to be launched against
persons involved with mala fide intentions or those who failed to act with due care and
attention in Court of law or in other forums including administrative-Failure of parties to
produce sufficient evidence on subject should not deter trial Court in performing duty
under S. 540, Cr. P. C.-Failure of trial Court to perform such duty, case merited remand
for fresh trial-Offence of Zina (Enforcement of Hudood) Ordinance (Vii of 1979), S.
10(3).
Link

(f) Criminal Procedure Code (V of 1898)

Ss. 164 & 540-Confession-Statement under S. 164, if proved, its admission in evidence
and consideration would be vital for just decision of case-Offence of Zma (Enforcement
of Hudood) Ordinance (VIl of 1979), S. 10(3).
Link

(g) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

S. 10(3)-Criminal Procedure Code (V of 1898), S. 164-Zina-bilJabar liable to Tazir-

Controversy regarding production of prosecutrix for recording of statement under S. 164,
Cr. P. C. before one or more Magistrates during investigation-Trial Court failing to
ascertain clearly all circumstances about such controversy, so as to place on record
contents of such statements under S. 164, Cr. P. C., had same been so recorded-Held,
Magistrate(s) who recorded such statement(s) and circumstances in which same was/were
recorded could have been examined under S. 540, Cr. P. C. in case both parties had failed
to produce same.-[Confession].
Link

(h) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 10(3)-Criminal Procedure Code (V of 1898), Ss: 540, 164 & 200-Zina-oil-Jabar

liable to Tazir-Entire material regarding statements in any formal proceedings under S. !
64, Cr. P. C. made by prosecutrix during investigation and/or prior to her recovery by
police in addition to complaint and proceedings under S. 200, Cr. P. C., held, essential for
just decision of case-Failure of trial Court to act in accordance with law in that behalf,
held further, resulted in miscarriage of justice.
Link

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

-- S. 10(3)-Criminal Procedure Code (V of 1898), S. 540-Zina-bilJabar-Question of age

of prosecutrix-Apart from examining question of puberty of prosecutrix, examination of
other relevant questions also essential-Age of girl relevant to resolve question of coercion
with regard to Nikah-Summoning and recording of mere evidence about place and date of
birth of prosecutrix as also entries in connection therewith, necessary--Such material, if
not otherwise available, Court can under S. 540, Cr. P. C. call for same-Court can look
into material not formally admitted in evidence whether same was available on record of
judicial file ; in police file or elsewhere.-[Age].
Link

Page No. 2 of 55
(j) Criminal Procedure Code (V of 1898)

-._- S. 540-Provisions of S. 540, Cr. P. C. divided in two parts : One where power is only
discretionary for Court to summon a Court witness suo mote or on application, and
second where. it was mandatory for Court to do so-Expression "appears to it" in second
part of provision-Discussed-Second part of provision does not admit any qualification of
filling gaps and omissions in version or evidence of one or other party-Court has no
discretion in that behalf but obliged to admit evidence if essential for just decision of
case-Power under S. 540, if essential to be exercised for just decision of case, then
although conclusion with regard to finding whether or not it was essential for just
decision of case has to be reached with due care, but once it was reached it would not be
proper for Court to hesitate in admitting additional evidence-Exercise of such power not a
mere exercise of discretion-Trial Court not to hold separate inquiry so as to reach
conclusion whether any item of evidence was essential for just decision of case- Enough
for Court to exercise power under S. 540 Cr. P. C. if "it appears so" to Court from any
material or inference from material, including that which was already available to court in
any form, admitted evidence or material otherwise lying on judicial and other files before
Court.
Link 1
Link 2
Link 3
Link 4

Syed Ali Na waz Gardezi v. Lt.-Col. Muhammad Yusuf P L D 1963 S C 51 ; The State v.
Maulvi Muhammad Jamil and others P L D 1965 S C 681 ; Rashid Ahmad v. The State P
L D 1971 S C 709 ; Bashir Ahmad v. The State and another 1975 S C M R 171 ; Yasin
alias Cheema and another v. The State 1980 S C M R 575 and The Crown v. Rafiq
Ahmad and another P L D 1955 Bal. 12 ref.

Ramesh war Dayal and others etc. v. State of U. P. A I R 1978 S C 1558 distinguished.

(k) Criminal Procedure Code (V of 1898)

5. 540-.Constitution of Pakistan (1973), Art. 185 (3)--Leave to appeal-Finding of High

Court that evidence of any witness was not necessary for just decision of case-A finding
of fact and unless there was some substantial error in judgment of High Court, Supreme
Court would not inierfere in case of leave to appeal-High Court, if commits error in
interpreting second part of S. 540, Cr. P. C. Supreme Court can interfere.-[Finding of
fact].
Link

Abdul Latif and others v. State of Uttar Pradesh A I R 1978 S C 472 ref.

(l) Criminal Procedure Code (V of 1898)

--5. 540-Filling or otherwise of gap in defence evidence by resort to S. 540, Cr. P. C.-Rule
of "avoidance to fill gaps"-Observation of rule of "avoidance to fill gaps" in case of
evidence which was essential for just decision, held, not only negation of justice in
general sense but also contravention of another rule that "no party should suffer on
account of mere technicalities"--Procedural law not enacted to trap individual parties
through technicalities and has to be interpreted always as acting in aid of justice and
fairplay.--[Interpretation of statutes].
Link

(m) Criminal Procedure Code ( V of 1898)

--S. 540-Evidence Act (I of 1872), S. 165- Power conferred on Court by second part of S.
540, Cr. P. C. and one conferred by S. 165, Evidence Act, 1872, held, complimentary to
each other-Power under ' S. 165, Evidence Act, 1872 being so wide as sometimes even to
go beyond what was conferred by S. 540, Cr. P. C., held further, it would not be proper to

Page No. 3 of 55
assume any artificial limitations on exercise of one or other power and such powers have
to be treated as supplementary to each other.
Link

Jamatraj Ke walji Go vani v. State of Maharashtra A I R 1968 S C 178 and Raghunandaa

v. State of U. P. A I R 1974 S C 463 ref

. (n) Criminal Procedure Code (V of 1898)

S. 540-Court has unfettered powers to examine any person as a witness at any stage of
any inquiry, trial or other proceedings-Obligatory for Court to do so when it was essential
for just decision of case.-[Witness].
Link
Moulvi Hazoor Bux v. The State P L D 1983 F S C 209; Ntsar Ahmad v.

The State P L D 1983 F S C 485; Muhammad Siddique and another v. The State P L D
1983 F S C 173 and Din Muhammad v. The State Criminal Appeal No. 61 /L of 1981 ref.

(o) Criminal Procedure Code (V of 1898)

S. 540-Exercise of powers under S. 540, Cr. P. C.-Three main aspects of powers under S.
540 illustrated-Situation of case falling under second part of S. 540, Cr. P. C. clearly and
squarely-Question of prejudice would not be entertainable and powers under S. 540 must
be exercised-Mandate of law when itself not admitting of any such qualification, court
cannot introduce same.
Link

(p) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979}-

---S. 10 (3)-Criminal Procedure Code (V of 1898), S. 540-Evidence Act (I of 1872), S.

165-Zina-bil-Jabar liable to Tazir-Disputed question of Nikah of prosecutrix with
accused-Power to summon additional evidence regarding Nikah when exercised seeming
to be filling gap left in defence evidence-Held, ultimately additional evidence, if
supporting defence, would not be taken as not gone in aid of justiceNo distinction made
by law between prosecution and defence in this regard.-[Evidence].
Link

Abdul Ghafoor v. The State and 2 others P L D 1983 Lah. 139 ; Mehboob Khon v. The
State P L D 1979 Lah. 691 ; Barkat All v. The State P L D 1979 Lah. 740 ; Muhammad
Hussain v. Abdul Rashid P L D 1975 Lah. 1391 ; Muhammad Ehsan v. The State P L D
1975 Lah. 1431 ; Gillat Shah v. The State 1982 P Cr. L J 933 ; Muhammad Ashiq v.
Martial Law Administrator Zone `C' 1980 P Cr. L J 97 ; Jewan and 9 others v. The State
1980 P Cr. L J 570 ; Abdul Rashid v. The State 1980 P Cr. L J 1119 ; The State v. Abdul
Hamid and another 1970 P Cr. L J 384 ; Kanhu Charan Saraf crud another v.
Radhamohan Padhi A I R 1965 Orissa 219 ; Saghir Hussain and another v. The State A I
R 1958 All. 312 ; Ram Jeet and others v. The State A I R 1958 All. 439 ; Mukti Kumar
Ghosh v. State of West Bengal 1975 P Cr. L J 838 ; Syed Mohammad v. K. C. Raman and
others (1964) 1 Cr. L J 100 and Ramjiwan v. Maddy Khan and another 1952 Cr. L J 1012
ref.

(q) West Pakistan Family Courts Act (XXXV of 1964)

--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)Purpose of

enactment of two laws examined.
Link
(r) Offence of Zinn (Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 10(3)-Zina-Zina or Zina-bil-Jabar liable to Tazir-Plea of valid marriage as defence in

case of Zina or Zina-bil-Jabar liable to Tazir-Valid marriage, held, a good defence-
Validity of marriage a sine qua non for success of defence of marriage-Word '.validly"
cannot be treated as surplusage and has to be given full meaning and effect "Irregular"

Page No. 4 of 55
marriage affords no protection as being not a "valid" marriage-Doubtful marriage also
would not afford any protection.
Link 1
Link 2
Ghulam Shabbir Shah v. The State 1983 S C M R 942 ref.

(s) Offence of Zinn (Enforcement of Hudood) Ordinance (VII of 1979)

-- Ss. 5, 4, 6(1) & 10(3)-Provisions relating to Zinz liable to Hadd 4epee and Zing liable
tQ Tuir.ofeaep-Comparison illustrated.
Link

(t) Offence of Zina (Enforcement'of Hudood) Ordinance (VII of 1979)

5. 10(3)-Criminal Procedure Code (V of 1898), S. 540-Zina-bilJabar liable to Tazir-Plea

of valid marriage as defence-Plea that accused "suspected himself to be married" to
person concerned-No such "suspicion" factual or legal on part of accused, held, provided
as defence in Ss. 4, 6(1) & 10 of Ordinance-Person raising such plea would have to
establish same in law and fact beyond any "suspicion" about that-Failure on part of
person raising such plea for any reason whatsoever to produce evidence-Court would be
duty. bound to examine same in depth even that involved action under S. 540, Cr. P. C.
and similar other provisions including those relating to . coercive measures for
production of evidence--Burden without shifting from person concerned would be
interjected in duty of Court under S. 540, Cr. P. C. its resolution being essential for just
decision of case.
Link

(u) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

5. 10(3)-Offence of Zina-bil-Jabar liable to Tazir-Question of valid marriage when ,raised

as a genuine plea, same has to be approached with extreme care and circumspection-
Evidence and material regard. ing Nikah should. be of high quality, incapable of
admitting any doubt.
Link

Muhammad Iqbal v. The State P L D 1983 F S C 9 ; A6dus Sattar v. Muhammad Ashraf P

L D 1982 F S C 157 ; Arif Hussain and Azra Parveen v. The State P L D 1982 F S C 42 ;
Afadat and others v. The State P L 1D 1982 F S C 52 ; Iftikhar Nazir Ahmad and others v.
Ghulam Kibria and others P L D 1968 Lab. 587 ; Habibullah and 3 others v. The State P L
D 1973 Kar. 609 ; Manzoor Hussain and another v. Manzoor Hussain P L D 1974 Lab.
202 ; Bachinoo v. Abdul Hakim 1973 P Cr. L J 732 ; Falak Sher v. The State P L J 1974
Cr. C (Lab.) 181 ; Mst. Qadul and 7 others v. Allah Bachaya and 2 others P L D 1973 B J
48 ; Mst. Alfat Bibi and another v. The State P L D 1972 Lab. 121 ; Umaid Khan v. Akbar
P L D 1974 Lab. 445 ; Ghulam Muhammad v. Fakir Muhammad etc.. P L D 1975 Kar.
118 ; Muhammad Anwar v. Muhammad Sulemen P L D 1978 Lab. 1330 ; Dr. A. L. M.
Abdullah v. Rokeya Khatoon and another P L D 1969 Dacca 47 ; Muhabat v. Abdulla and
9 others P L D 1970 Lab. 303 ; Muhammad Aslam v. Ghulam Muhammad Taslfm P L D
1971 Lab. 139 ; Muhammad Inayat v. Chaudhry Muhammad Salim and 2 others P L D
1979 Lab.' 154 ; Nazar Qasim v. Mst. Shaista Parveen 1979 C L C 462 ; Habib v. 'The.
State and 2 others P L D 1980 Lab. 791; Mst. Ghulam Fatima and S others v. Mst. Anwar
alias Anwar! Begun and another 1981 C L C 1651 ; Mst. Farhat and another v. The State
and 2 others' 1982 P-Cr. 1, J 1152 ; Mst. Fatima and another v. S. H. O., Police Station
Golra Sharif and 2 others P L D 1978 Lab. 1436 ; Haji Nizam Khan v. Additional District
Judge; Lyallpur and Others P L D 1976 Lab. 930 ; All Nawaz Gardezi v. Lt: Col.
Muhammad Yusuf P L D 1963 S C 51 ; Abdul Basil v. Union Council, Ward No. 3,
Peshawur Cantt. and another 1970 S C M R 753 ; Mst. Bakshi v. Bashir Ahmad and
another P L D 1970 S C 323 ;. Muhammad Rafiq v. Muhammad Ghafoor P'L D 1972 S C
6 ; Shaukat Ali v.. Allaf Hussain Qureshi and another 1972 S C M R 398 ; Muhammad
Nazir v. The S. H. O., Police Station, Shahpur and 3 others 1973 S C M R 351 ; Murad

Page No. 5 of 55
and others v. The Resident Magistrate, Pakpattan and another 1973 S C M R 575 and
Muhammad Nawaz v. Rab Nawaz and another P L D 1976 S C 298 ref.

Ghularn Shabir Shah w. The State 1983 S .C M R 942 fol,

(v) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- Ss. 4, 6 & 10(3)-Offence of Zin-bil-Jabar liable to Tazir-Condition and social

circumstances out of which such offence arises particularly when matrimony is involved,
examined and some features of general type in such cases running through them. as
thread-lines mentioned.

Conditions and social circumstances out of which offence of Zina arises particularly
when the matrimony was involved, some features of general type in all such cases which
run through them as thread-lines are

Irrational and sometimes un-Islamic customs attitudes where parents refuse to recognize
legitimate and rational exercise of discretion and judgment by female youth of not only
mature age but also mature understanding, in matter of her desire and selection of a
mate ;

young girls immature in age or if mature in age immature in understanding inveigled by

Shatanik overtures, tricks and sometimes pleadings and traps from which after the first
act it becomes difficult for them to extricate themselves ;

similar cases where the first act of abduction or rape is by use of force and thereafter
there is marked tendency in some females of even respectable families, to avoid going
back to the parents ;
suffering on account of the social antagonism that they invariably face after their return to
the parents ;
in the earlier mentioned situations it happens at least in a few cases, that the female is
resigned to the fate to live with the abductors as a concubine and, rarely as wife ;
wherein, in order to frustrate even genuine remorse of the accused and his resort to a
lawful marriage, the parents on account of false prestige and their own social conditions,
try to falsify such a marriage ;
attempt in innumerable cases to misuse the procedures provided by law for other
purposes : for example like the preparation of false affidavits and lodging a farcical
proceedings so as to create evidence of consent, Nikah or otherwise-there are cases where
forgeries in so-called Nikahnama were also demonstrated ; and
lastly in many cases of this class of crime, females including those of very tender age
have been subjected to acts of cruelty besides being treated by the accused persons like
chattel. Link
(w)Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) -- Ss. 4, 6&10(3)-
Evidence Act (I of 1872), S. 3-Criminal Procedure Code (V of 1898), S. 540-Offei:ce of
Zina-bil-Jabar liable to TazirPlea of valid marriage-Application of Evidence Act, 1872 to
cases of offence of Zina liable to Tazir and plea of marriage-No other option if left, even
after exhausting powers under S. 540, Cr. P. C. and whenever necessary, subject to nature
of proof about Nikah, held, resort may be had to wider scope of word "proved" in
definition thereof under S. 3, Evidence Act, 1872.
Link

Muhammad ~zeem v. The State 1983 S C M R 1119 ;The State v. Habibur Rahman and
others P L D 1983 S C 286 ; Said Wall v. Yaqoot Khan and another P L D 1983 S C 440
and Muhammad Aslam @ Achha etc. v. The State Criminal Appeal No. 191 of 1976 ref.

(x) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

•--- Ss, 3, 4, 6 & 10(3)-Offepce of Zina-bil-Jabar liable to tazir-Plea of

valid marriage-Consequences of wrong findings of fact on plea of marriage either way

visualized and discussed-Duty of Courts, both trial and appellate, explained.

Page No. 6 of 55
Far-reaching consequences of wrong findings of fact on plea of marriage, either way can
well be visualized. Verdict in the affirmative not only gives legitimacy to conjugal
intimacy and the off-springs but also, binds two persons in a solemn and pious bond
which, in turn in our faith, creates rights and obligations of such permanent nature that
the life in this world and hereafter also are influenced. And similarly verdict in the
negative amongst others, can have serious repercussions on the questions of legitimacy of
conjugal contact, liberty/life of the accused, the life of the of springs, in addition to the
social complications for the future of the concerned individuals.
Link 1

A very delicate duty of recording, admission and appreciation of evidence falls on the
two courts of fact namely the trial Court and the Federal Shariat Court.
Link 2

It is necessary for the two courts to make every effort to reach the mark of perfection on
the questions relating to facts, regarding the plea of valid marriage. Mere surmises and
casualness where cold logic should be the rule might, .as would be presently
demonstrated by examining the interaction of section 3 of Ordinance which gives it the
overriding effect and section 5 of the Family Courts Act which gives exclusive
jurisdiction to the Family Courts on questions of marriage, prove harmful in so far as the
working of this difficult branch of judicial administration is concerned. The apprehended
erosion can; however, be checked if all necessary implications are kept in view.
Link 3

B. Z. Kaikaus v. Federal Government of Pakislan P L D 1982 S C 409 and Abdul Hameed

v. The State P L D 1983 S C 130 ref.

(y) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

.- S. 10(3)--Offence of Zina-bil-Jabar liable to Tazir-Plea of valid !marriage by accused--

Presumption against prosecutrix when can be raised.
Link

(z) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

- , S. 10(3)-Evidence Act (I of 1872), S. 8-Offence of Zina-bil-Jabar liable to Tazir-Girl of

tender age-Plea of valid marriage by accusedSecret marriage-Legal implications-Previous
admissions of prosecutrix in favour of valid marriage if proved as voluntarily made
particularly when before a Court of law but in proceedings which were normal and
genuine, held, will have important bearing-False evidence of previous admissions created
by accused in farcical proceedings, if proved, held further, might .be used against accused
in negation of plea of valid marriage as permissible under S. 8, Evidence Act, 1872-Trial
Court to examine (in circumstances of each case) as to why effort was made to solemnise
marriage in secrecy, at odd place in presence of outsiders to exclusion of near ones
particularly in cases of "minor" girl of such' tender age that child Marriage Restraint Act,
1929 provided as crime-Laws on various levels of age for marriage and exercise of option
of puberty desired to be examined by Court.
Link

Mauj Ali v. Syed Safdar Hussain Shah and another 1970 S C M R 437 ref. _

(aa) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 10(3)-Evidence Act (I of 1872), S. 165-Criminal Procedure Code (V of 1898), S.

540-Offence of Zina-bil-Jabar liable to Tazir- Plea of valid marriage by accused-Direct
and primary and in its absence secondary evidence can be led of a recent marriage-Such
evidence, if not forthcoming, tangible explanation a must-Such evidence once led and
admitted, other party expected when afforded opportunity, to rebut same, if he or she
insisted in its denial-Further opportunity can be afforded under S. 540, Cr. P. C.-Such
type of trial in reality would be of mixed nature, adversary as also inquisitorial-Section
540, Cr. P. C. and S. 165, Evidence Act were, proof positive of such aspect of criminal
procedure-Court not expected to sit mentally unconcerned when adversaries doing

Page No. 7 of 55
exercise of . contest-Court, ordinarily, should prepare contemporaneous memorandum of
proceedings in Court in Judge's own handwriting which should form part of judicial
record-Court has to discover truth even if one or other party or both were interested in
withholding sameCourt is required (when parties avoid) to summon important witnesses
who would clarify main issue or an ancillary matter-Neighbours can be summoned by
Court if omitted by parties-Duty of Court in Islamic law and administration of justice,
discussed.
Link

Syed Ali Beparl v. Nibaran Molla and others P L D 1962 S C 502 ; Muhammad Bashir
v. The State P L D 1982 S C 139 ; Akhbar-ul-Quzat by Kaki` bin Khalf, Vol. II, p. 21
(1366 H. Egypt) ; Fatawa-i-Alamgiri, Vol. II, . 173 (1398 H. Quetta) and Doctor
Muhammad Abdul Jawad Muhammad on Islamic Shariah and Law (1977 Allexanderia)
ref.

(bb) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- - S. 10(3)-Zina-bil-Jabar liable to Tazir-Plea of valid marriage by accused-

Nikab/marriage can also be proved in absence of direct evidence thereof amongst others
by admissions, acknowledgement of off-springs as legitimate, and amongst other modes,
cohabitation as man and wife for a period of time known to others.
Link

(cc) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

- - S. 10(3)-Zina-bil-Jabar liable to Tazir-Plea of valid marriage by accused-Finding on

basis of mere doubt-Implication.
Link

Sher Hassan v. The State P L D 1959 S C (Pak.) 480 and Ghulam Shabir ihah v. State
1983 S C M R 942 ref.

(dd) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 10-West Pakistan Family Courts Act (XXXV of 1964), ~5Evidence Act (1 of 1872),
S. 145-Zina-bil-Jabar liable to Tazir-Plea of valid marriage by accused-Issue of jactitation
of marriage having been decided by Family Court brought in appeal before District Judge
by accused to show that decision of Family Court was not correct and that a valid Nikah
(marriage) had been established in fact and law-Accused making request to Federal
Shariat Court for adjournment in case of offence of Zina-bil-Jabar liable to Tazir so as to
await decision of appellate Court regarding final position under West Pakistan Family
Courts Act, 1964 regarding Nikah-Federal Sbariat Court refusing adjournment to accused
on ground that it was based on a mere hypothetical proposition, namely that if accused
succeeded before forum provided by West Pakistan Family Courts Act, 1964 same would
react on result of case under Offence of Zina (Enforcement of Hudood) Ordinance, 1979-
Held, approach of Federal Shariat Court regarding question raised before it, which was
based on proceedings under Family Courts Act, 1964 was not merely a hypothetical one,
so as to be ignored-Decision of a forum original/ appeal, having determining effcct on
outcome of criminal trial-Stay of latter proceeding or appeal therefram desired to be
stayed.

Issue of jactitation of marriage having been decided by the Family Court had been
brought in appeal before the District Judge by the accused presumably to show that the
decision of the Family Court was not correct and that a valid Nikah had been established
in fact and law. A request was made to the Federal Shariat Court for adjournment so as to
await the decision of the appellate Court regarding the final position under the Family
Courts Act regarding the Nikah. This adjournment was refused on the ground that it was
based on a mere hypothetical proposition ; namely, that if the accused succeeded before
the forum provided by the Family Courts Act it would react on the results of the criminal
cases. The approach of the Federal Shariat Court regarding the question raised before it in
that case as it was based on proceedings under the Family Courts Act, was not merely a
hypothetical one so as to be ignored.

Page No. 8 of 55
Link 1

The judgment of the Family Court, in the circumstances discussed would be binding in
all relevant respects. Moreover it will not be correct to say that the statement made by a
party in the case before the Family Court will be relevant only for purpose of
contradiction under section 145, Evidence Act. It will also be a piece of evidence before
the criminal trial Court regarding conduct and as to what was the plea in that Court. On
the stay of proceedings on the criminal side, pending decision by the Family Court the
approach of the Federal Shariat Court was not correct. When it is known that the decision
of that forum original/appeal, will have a determining effect on the outcome of the
criminal trial, it would be in the interest of justice and fairness to stay the latter
proceeding or the appeal therefrom.
Link 2

(ee) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

5. 10(3)-Criminal Procedure Code (V of 1898), S. 540-Zina-bilJabar liable to Tazir-Plea

of valid marriage by accused-Such plea if not frivolous, Nikahnama should be exhibited
and placed on record with statement of accused person himself in that behalf-Regardless
of fact whether accused would have produced evidence in connection with Nikabnama, if
it was essential for just decision of case, Court was duty bound to summon evidence
indicated in Nikahnama itself under S. 540, Cr. P. C.
Link

(ff) West Pakistan Family Courts Act (XXXV of 1964)

-- Preamble and Schedule-Act creates a special Court for decision of matters mentioned
therein-Ci0t. Procedure Code, 1908 and Evidence Act, 1872-, generally speaking, not
made applicable to trial before Family Court-Court given a real inquisitional jurisdiction
by introduction of special procedure including; an obligatory effort to discover
possibilities of amicable settlement.
Link

(gg) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-

-- S. 10(3)-Criminal Procedure Code (V of 1898), S. 540-Offence of Zinabil-Jabar liable

to tazir-Plea of valid marriage by accused-Trial Court failing to perform its duty to record
and admit necessary evidence and also failing to act under S. 540, Cr. P. C.-Approach of
Federal Shariat Court in appeal primarily conditioned by what was found as evidence on
record and findings of trial Court thereon-Federal Shariat Court not approaching special
plea of valid Nikah (marriage) raised by defence in its true perspective and proceedings
on such suppositions and conclusions which were not permissible under relevant law--
Held, case should have been remanded by Federal Shariat Court to trial Court for fresh
trial in circumstances.
Link
Din Muhammad v. The State Criminal Appeal No. 61-L of 1981 ref.

(hh) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- Ss. 10(3) & 3-West Pakistan Family Courts Act (XXXV of 1964), S. 5 and Sched., item
7-Offence of Zina-bil-Jabar liable to Tazir-Plea of valid marriage by accused-Controversy
relating to interaction of plea and decision thereon of valid Nikab as defence in case of
Zina under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and provisions of
West Pakistan Family Courts Act, 1964 which confers exclusive jurisdiction on Family
Court to decide all matters included in Schedule thereto-Suitable amendment(s), held,
necessary so as to make procedures less cumbersome and embarrassing in some
situations at least for parties concerned.

Suitable amendment(s) would be necessary so as to make the procedures less

cumbersome and embarrassing in some situations at least for the parties concerned. On
the other hand the sooner they are made, the better would it be for easy flow of justice in
matrimonial cases.

Page No. 9 of 55
Link 1
The main amendment (other consequential amendments notwithstanding) preferably
should be in the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979
with reference to the possible defence of valid Nikah in the trial of the relevant offences.
It can be by adding a provision after section 20, which enacts the procedural law for the
trials, by reference to Cr. P. C. ; so as to provide therein., that whenever such a plea is
raised the trial Judge shall proceed to decide this issue in accordance with the procedure
prescribed in. this behalf in the Family Courts Act with the exception of specified
provisions thereof. It should be made subject to sections 105 and 106 of Evidence Act or
by its direct incorporation ; so as to make it incumbent on the accused to establish the
defence plea of an exception even if it forms part of the definition of the offence. A
consequential amendment providing finality to the judgment on this issue would obviate
fresh trial before another Family Court. It would also have salutary effect on resolution of
matrimonial issues when these arise in criminal cases, because the settlement thereof
would also be aided by the procedure of compromise provided in the Family Courts Act.
The greatest advantage will be in the saving of time and expense, besides the avoidance
of cumbersome legal involvements and embarrassment in multiple trials before different
forums, of same issues relating to matrimonial status. As to its feasibility, on principle,
there might not be any objection because, a somewhat similar provision already exists in
section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance No. VIll of. 1979.

The foregoing suggestion however, does not imply that if that is not acceptable or
practicable the existing law does not provide a lawful way out, though of course not as
efficacious as it could be through proper amendments.
Link 2

Monir's Commentaries on Evidence Act, Vol. I, 1974 Edn., p. 572 ref.

(ii) West Pakistan Family Courts Act (XXXV of 1964)

S. 5 and Sched., item 7-Jactitation of marriage-Interpretation of term "jactitation"-Suit,

regardless of its timings can be filed by person other than spouses involved in jactitation
of marriage-Suit can also be filed by spouses, against third party, with a view to prevent
them from denying their marriage.
Link 1
Link 2

Mst. Amine Begum v. Ghulam Nabi and 2 others P L D 1974 Lab. 78 ; Tajoo v. Mst.
Sattaran P L D 1974 Lab. 105 ; Mst. Zohran Bibi v. Manzoor Ahmad 7nd 2 others P L D
1975 Lab. 318 ; Mst. Sakina and 2 others v. Nasir Ali P L D 1976 Quetta 97 ; Nazar
Qasim v. Mst. Shaista Parveen 1979 C L C 462 ; Mst. Fahmida Bibi v. Mukhtar Ahmad
and another P L D 1972 Lab. 694 ; Manzoor Ahmed v. Muhammad Nawaz Siddiqui and
S others P L D 1975 Lab. 739 and Abdur Rashid and another v. Mst. Shaheen Bibi and 2
others P L D 1980 Pesh. 37 ref.

(jj) West Pakistan Family Courts Act (XXXV of 1964)

S. 23-Validity of marriage registered under provisions of Muslim Family Laws

Ordinance, 1961-Section 23 assumes validity of marriage only if it satisfies certain
conditions-Section 23 would not prevent a party from showing either that marriage had
not taken place at all or that fraud had been committed in connection therewith or for that
matter Nikahnama was a forgery and/or that signatures therein were forged-Such
marriage or otherwise invalid marriage, might not be held to be beyond challenge before
Family Court because same was solemnized in accordance with provisions of Muslim
Family Laws Ordinance, 1961-Sucb marriage and its registration even if purported to be
under Muslim Family Laws Ordinance, 1961 could not truly in law be treated as in
accordance with provisions thereof if same was result of fraud, misrepresentation, forgery
and like infirmities.
Link

(kk) West Pakistan Family Courts Act (XXXV of 1964)

Page No. 10 of 55
-- Ss. 5 & 20-Combined effect of sections-Procedural change without affecting
substantive rights of party regarding scheduled matters.
Link

[p. 145]SS Nazar Qasim v. Mst. Shaista Pareeen 1979 C L C 462 ref.

(Il) Offence of Zina (Enforcement of Hndood) Ordinance (VII of 1979)

-- Ss. 3 & 10(3)--West Pakistan Family Courts Act (XXXV of 1964), S. 5 & Sched.-
Offence of Zina-bil-Jabar liable to Tazir-Plea of valid marriage by accused-Decision of
Supreme Court deciding issue of valid Nikah in a criminal case of Zina-Family Court,
whether can decide question of valid Nikah again-Whether principle of general res
judicata attracted.

If as a result of a criminal trial under the Offence of Zina (Enforcement of H udood)

Ordinance a finding of fact is recorded or affirmed by a Superior Court regarding
existence or non-existence of valid Nikah, then even if theoretically it might,be possible
for a Family Judge to set at naught the judgment of the Supreme Court under an
assumption that the two forums are independent in their functions under separate laws for
all practical purposes would not be possible for it to do so even under the Family Courts
Act. However it has other mandatory functions to perform like effort at a compromise
and the case might otherwise end without a real conflict of decision emerging out of
afresh trial of the same issue and between the same parties (but under a different law).
The relevant provisions of the Evidence Act would not present any difficulty either. The
principle of res judicata subject to the above observations would be attracted.
Link 1

The decision of a Superior Court including the Supreme Court on the plea of Nikah will
have effect on the same issue before a Family Court.
Link 2

[For further elaboration on point see

Link 3
Link 4
Link 5
Link 6
Link 7

Abdul Majid and others v. Abdul Ghafoor Khan and others P L D 1982 i C 146 ; Asif Jan
Siddiqi v. Government of Sind and others P L D 1983 C 46 ; Rehmatullah v. Ali
Muhammad and another 1983 S C M R 1064 ; Wuni v. Habib Khan P L D 1956 Lab.
403 ; Subhan v. Muhammad Murad and another P L D 1963 (W. P.) B J 34 ; Muhammad
Akbar v. The State and another P L D 1968 S C 281 ; Nur Elahi v. The State and others P
L D 1966 S C 708 ; Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 ;
The CocaCola Commpany of Canada Ltd. v. Pepsi Cola Company of Canada Ltd. A I R
1942 P C 40 ; Emperor v. Khawaja Nazir Ahmad A I R 1945 P C 18 and Abdul Majid and
others v. Abdul Ghofoor Khan and others P L D 1982 S C 146 ref.

(mm) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

Ss. 3 & 10(3)-West Pakistan ,Family Courts Act (XXXV of 1964), S. 5 & Sched. -
Eviden;e Act (I of 1872), Ss. 41, 11, 13 & 35Offence of Zina-bil-Jabar liable to Tazir-Plea
of valid marriage by accused - Decision of Superior Court deciding issue of Nikah in a
criminal case of Zina-Family Court, whether can decide question of valid marriage again-
Whether judgment of one or other forum will be relevant under Evidence Act, 1872, if so
which forum will have precedence at trial level-Procedure discussed.

Strictly speaking the judgment of the trial Judge under the Criminal Law will not have
any determinative effect on the decision before the Family Court if it is to be on the same
issue and between the same parties except to the extent it is permissible to refer to it
under the law as declared by Supreme Court in the case of Malik Din and another v.
Muhammad Aslam P L D 1969 S C 136. However .it cannot be said regarding vice versa

Page No. 11 of 55
situation and thus the judgment by the Family trial Judge would have direct effect on the
outcome in the criminal trial if the question of valid Nikah, which already stands decided
by the Family Court, is also involved before the Criminal Court. Therefore, the decision
of the Family Court in this behalf will have precedence.
Link 1

Unless there is pressing unavoidable need to proceed with the criminal trial (as is in the
present case to record essential evidence only regarding which there might be danger of it
being lost) the Criminal Court should stay the proceedings and await the result of the
contest on issue of Nikah before the Family Court, if the suit is already pending or is filed
during the criminal trial proceedings.

Otherwise too it can ask the party/person concerned to seek a decision on that issue from
the Family Court and on refusal or failure in this behalf to raise the necessary
presumptions.

In the last-mentioned eventuality the criminal trial would proceed with no change
except : firstly, as aforementioned about certain presumptions ; and secondly, that the
issue concerned shall be decided as nearly as possible in accordance with the spirit
underlying the procedure prescribed by the Family Courts Act and the Rules thereunder,
in so far as they do not come in conflict with the procedure for the criminal trial-the
provisions regarding compulsory two efforts at compromise would then not apply ;

that in case the proccedings of the criminal trial are stayed the accused might be released
on bail so as to enable him/them to pursue the Family Court case and refuse/cancel the
same in exceptional/appropriate cases ;

that in case it is just and proper and the Sessions Judge or Additional Sessions Judge is
empowered to try both the matters under bath systems of law, the trial by the same Court
would not be illegal provided the case under the Family Law is decided in the first
instance ;

that when any case on the criminal side has reached the appeal stage but the issue is still
pending before the Family Court, the hearing of the appeal should be stayed for a
reasonable time to await the decision by that forum and in case of intentional or
otherwise inordinate delay, to take appropriate measures in reconsideration of any
concession including bail and the stay, whether it is not being misused.

That when the same question is pending before the Federal Shariat Court and the High
Court the latter would await the decision by the former Court.
Link 2

Muni v. Habib Khan P L D 1956 Lah. 403 ; Subhan v. Muhammad Murad and another P
L D 1963 (W. P.) B J 34 ; Muhammad Akbar v. The State and another P L D 1968 S C
281 ; Nur Elahi v. The State and others P L D 1966 S C 708 ; Malik Din and another v.
Muhammad Aslam P L D 1969 S C 136 ; The Coca-Cola Company of Canada Ltd. v.
Pepsi Cola Company of Canada Ltd. A I R 1942 P C 40 ; Emperor v. Khawaja Nazir
Ahmad A I R 1945 P C 18 and Abdul Majid and others v. Abdul Ghafoor Khan and others
P L D 1982 S C 146 ref.

(nn) Offence of Zina kEnforcement of Hudood) Ordinance (VII of 1979)

-- Ss. 3 & 10(3)-West Pakistan Family Courts Act (XXXV of 1964), S. 5-Offence of
Zina-bil-Jabar liable to Tazir-Plea of valid marriage by accused - Decision of Superior
Court deciding issue of valid marriage in criminal case of Zina-Family Court, whether
can decide question of valid marriage again-Interaction of S. 3, Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 vis-a-vis S. 5 of West Pakistan Family Courts
Act, 1964.

When section 3 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 provides

that its provisions shall have.effect notwithstanding anything contained in any other law
for the time being in force, the intention underlying the same is not such so as to

Page No. 12 of 55
materially reduce the effect of the mandate in section 5 of the Family Courts Act to the
effect that the Family Court shall have exclusive jurisdiction regarding the matters
specified in the Schedule ; which includes, amongst others, the subjects of dissolution of
marriage, restitution of conjugal rights and jactitation of marriage. Be that as it may, even
if there is some seeming conflict the same would be removed by the practical application
of these laws.
Link

(oo) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

Ss. 10 & 4-Offence of Zina-bil-Jabar liable to Tazir-Plea of valid marriage raised by

accused before trial Court-Options.

The defence of Nikah in a case of Zina whether liable as a Hadd or as Tazir in ordinary or
Zina-bil-Jabar categories, is of immense importance in so far as the trial of the offence
and results thereof is concerned. It, however, does not mean that this defence would have,
in any way, less effect on other cognate offences of kidnapping, abduction and sale for
prostitution of females and similar other offences. Definition of Zina in section 4 itself
visualises the defence of a valid marriage, Similar is the position regarding definition of
the aggravated offence of Zina liable to Hadd. It visualizes a defence of marriage even
when the accused suspects to be married to the other person involved in the Zina. The
provision regarding Zina-bil-Jabar and other offences in the Ordinance would have to be
construed accordingly in so far as this defence is concerned. .Thus when a plea of
defence is raised before a trial Judge (conducting a trial under this law) regarding Nikah
and it needs to be examined as a genuine plea for giving a finding of guilty or otherwise
and the Court is informed that the same issue is involved before Family Court (either
between the same parties or those directly or indirectly concerned therein on account of
the nature of the lis) criminal Court would stay the proceedings in the criminal case.
Link 1

Whenever same question is being adjudicated upon between the same parties in criminal
and civil forums, the criminal proceedings are not normally postponed; but this
assumption would ordinarily apply if the proceedings are other than bona fide and are
pending or commenced in a civil forum when the same subject-matter requires
determination in criminal proceedings.
Link 2

But where it is clear that the criminal liability is dependent upon the result of the civil
litigation or is so intimately connected with it that there is a danger of grave injustice
being done in the case if there be a conflict of decision between the civil Court and the
criminal Court then in such event it is equally clear that the criminal Court has not only
the right to but should also stay its hands until the civil litigation is disposed of. In
exercising this discretion the guiding principle should be to see as to whether the accused
is likely to be prejudiced if the criminal proceedings is not stayed.
Link 3

It cannot, therefore, be said that the subject-matter of dispute in the criminal decision is
not dependent upon the decision in the civil litigation.
Link 4

As and when a confident honest plea of Nikah is raised in a bona fide manner ; it is the
duty of the trial Court to enquire about the parties' attitude towards its adjudication by the
Court of exclusive jurisdiction. If the suit is already pending, it must be taken to its
logical end even if certain amendments became necessary due to the criminal
involvements. That being so the criminal Court would stay the proceedings for a
reasonable time and/ or from time to time. This is permissible under section 344, Cr. P. C.
If this can be done, it is a reasonable corrollary thereof to ask the concerned party, if the
suit has not already been instituted, to institute one. And there is nothing in section 114,
Evidence Act that the necessary presumption shall not be raised regarding the failure or
refusal to file the suit ;namely that if instituted the party concerned would have no chance
of success. This will also serve as a test for the bona fides and genuineness of the plea.
Once the consideration of postponement of the trial becomes necessary so as to avail or

Page No. 13 of 55
seek adjudication by a Family Court it will be lawful to release the accused on bail so as
to enable him to pursue the case before the other forum. But that would not mean that in
exceptional proper cases with reasons to be recorded, bail could .not be refused or
cancelled. The discretion shall have to be exercised keeping in view the circumstances
including the conduct of the parties concerned e.,g. an attempt or intention to delay or
frustrate lawful proceedings. But it might be clarified that an attempt at compromise,
without intentional delay. in the Family Court proceedings, will not be good ground for
cancellation of bail; because that will be in pursuance of the mandate of the relevant lave
in that behalf. The C. P. C. as such does not apply to the Family Court. It can adjudicate a
matter only on entertaining a suit, therefore, no reference will be permissible to be made
to it.
Link 5

The need for an inter-pleader suit would, not arise because the one visualized by the C. P.
C. is not of any relevance. Although a procedure or suit out of C. P. C. may not be
unlawful but it would need the making of rules under the Family Courts Act, so as to give
the assumption a concrete form. Without the same the parties might be prejudiced.
Link 6

The District Judge and Additional District Judge who are empowered to try the relevant
offences under the Offence of Zina Ordinance are also Family Courts by virtue of rule 3
of the relevant Rules amended on 19-8-1969 by Notification No. Integ. 10-31/64. The Act
now extends to wholc of Pakistan (see P. O. 5 of 1975). These Judges can, therefore, try
the matrimonial suits also if and when a need arises, even by exercise of power to transfer
the same to their respective Courts (see rule 7(3)). In that case both the civil and criminal
cases in controversies like the present one, can be heard by the same Judge. It will not be
possible to give any general direction that in all cases this procedure shall be adopted.
However, unless there is some other law prohibiting it, in proper cases and particularly
when the purpose is to save unnecessary expense, delay and embarrassment to the parties
in pleading the defence of Nikah, such a procedure might be adopted by a speaking order
after recording reasons for the same. In some cases, however, the transfer of a case will
not be possible when the law regarding territorial jurisdiction does not permit it. In that
case an interested party can approach the concerned higher but competent forum. When
both the cases are lawfully brought before the same Court, then the trial of the case under
Family Courts Act should be conducted in the first instance, so that the effect of the
decision therein may govern the criminal case in accordance with the foregoing
discussion on the subject. It should be in so far as possible and mutatis mutandis, in
accordance with the procedure laid down and observations made by Supreme Court in
Nur Elahi's case P L D 1966 S C 708 and Muhammad Akbar's case P L D 1968 S C 281.
While the proceedings in the criminal trial would remain stayed, the suit proceeds and
concludes. Thereafter due legal effect will be given to the decision.
Link 7

Abdul Majid and others v. Abdul Ghafoor Khan and others P L D 1982 S C 146 ; Malik
Din and another, v. Muhammad Aslam P L D 1969 S C 136 ; Muhammad 4kbar v. The
State and another P L D 1968 S C 281 and Nur Elahf v. The State and another P L D 1966
S C 708 ref. ,

(pp) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 10(3)-Offence of Zina-bil-Jabar liable to Tazir-Plea of valid marriage by accused

before trial Court-Result in further appeals/ writ petitions, if different in Federal Shariat
Court and High CourtConflict how to resolve and finality reached.

The decisions under Family Courts Act can come under final scrutiny, subject to the
appeal to Supreme Court, before the High Court either in appeal or in writ jurisdiction but
in the case under the Offence of Zina Ordinance, the appeal lies before the Federal
Shariat Court. A case can arise when after the District Judge/Sessions Judge stage matter
like the one under discussion is taken before both the Superior Courts. In that case the
proceeding in the High Court would have to be stayed till the decision by the Federal
Shariat Court because under Articles 203-G and 203-GG of the Constitution, it would not
be possible for the High Court to do anything which detracts from the true effect of these

Page No. 14 of 55
provisions. This position will prevail until the Federal $hariat Court is made the appellate
forum for the Family Courts also. Thus after the decision of the Federal Shariat Court the
High Court would then dispose of the matter in accordance with the law and procedure
governing its jurisdiction but subject to what has been stated above. Though a possible
conflict would be avoided, but if any aspect is left out. as undetermined or a conflict is
not removed it can be taken to the Supreme Court to which appeal lies from both these
Courts. of course, in accordance with the law applicable to it.
Link

(qq) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-

-- S. 10(3)--Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S. 3-West

Pakistan Family Courts Act (XXXV of 1964), S. 5Offence of Zina-bil-Jabar liable to
Tazir-Plea of valid marriage by accused - Issue of jactitation of marriage pending, before
Family Court-Parties entering into compromise-Effect on criminal trialRequirements of
Qazf law.

If before the Family Court, the parties enter into a compromise and the case is decided
accordingly, the question would arise as to what will then be the outcome in the criminal
trial. The law in Qazf Ordinance, 1979 requires complaint by specified person. If that
person is a party to the compromise, he or she would not file the complaint, on the other
hand as indicated in the case of Nur Elahi P L D 1966 S C 708; the prosecutor would also
seek to withdraw the case. This failure/refusal to prosecute in the case of Zina would not
negate any of the provisions of the procedural law now made applicable to these trials.
This, if not more, will be the effect of the provisions of the Qazf Ordinance, 1979. They
and the provisions of the Family Courts Act relating to compromise would react on each
other, and would have indirect effect on the outcome of the criminal trial of Tazir,
offences involving plea of a valid Nikah.
Link

Nur Elahi's case P L D 1966 S C 708 ref.

(rr) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

--- S. 10(3)-Criminal Procedure Code (V of 1898), S. 340---Offence of Zina-bil-Jabar

liable to Tazir-Plea of valid marriage by accused before trial Court-Question of valid
Nikah pending before Family CourtAccused facing trial before criminal Court would
have to appear as witness before Family Court-Held, in that situation it would not be
possible to plead that on account of accused's position before Criminal Court,
incriminatory questions and answers would be impermissible and there will be no
illegality or prejudice to parties in circumstances.
Link

(ss) Offence of Zinn (Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 10(3)-Criminal Procedure Code (V of 1898), Ss. 340(2) & 540Evidence Act (1 of

1872), Ss. 3 &, 165-West Pakistan Family Courts Act (XXXV of 1964), S. 5-Offence of
Zina-bil-Jabar liable to Tazir Question of valid marriage between accused and prosecutrix
pending in Family Court-Plea of valid marriage by accused-Such plea to be raised at
earliest opportunity--Accused can offer himself to be a witness under S. 340, Cr. P. C.-
False material to support doubtful pleas of consent or valid marriage-Effect-Initial burden
of proof on accused to prove plea of valid marriage-"Proved", definition of-Benefit of
plea of valid marriage to accused, when can be given--Duty of Court when Nikahnama,
witnesses and other relevant evidence in that behalf withheld by accused or otherwise not
adduced before Court exhaustively discussed--Minor female involved in act of secret
marriage, fraud or false plea of consent/or valid marriage against provisions of Child
Marriage Restraint Act, 1929-Age of puberty relevant but not deciding factor alone
regarding coercion and undue influence and/or fraud Duty of Court in circumstances
stated.

The decision of a Superior Court including the Supreme Court on the plea of Nikah will
have effect on the same issue before a Family Court.

Page No. 15 of 55
At the trial level the decision in this behalf of the Family Court will have binding effect
on the decision in criminal trial.
Link 1

Unless there is pressing unavoidable need to proceed with the criminal trial (as is in the
present case to record essential evidence only, regarding which there might be danger of
it being lost) the Criminal Court should stay the proceedings and await the result of the
contest on issue of Nikah before the Family Court, if the suit is already pending or is filed
during the criminal trial proceedings.

Otherwise too it can ask the party/person concerned to seek a decision on that issue from
the Faimly Court and on refusal or failure in this behalf to raise the necessary
presumptions.

In the last-mentioned eventuality the criminal trial would proceed with no change except:
firstly, as aforementioned about certain presumptions, and secondly, that the issue
concerned shall be decided as nearly as possible in accordance with the spirit underlying
the procedure prescribed by the Family Courts Act and the rules thereunder, in so far as
they do not come in conflict with the procedure for the criminal trial-the provisions
regarding compulsory two efforts at compromise would then not apply.

That in case the proceedings of the criminal trial are stayed the accused might be released
on bail so as to enable him/them to pursue the Family Court case and refuse cancel the
same in exceptional/appropriate cases.

That in case it is just and proper and the Sessions Judge or Additional Sessions Judge is
empowered to try both the matters under both systems of laws, the trial by the same
Court would not be illegal provided the case under the Family Law is decided in the first
instance.

That when any case on the criminal side has reached the appeal stage but the issue is still
pending. before the Family Court, the hearing of the appeal should be stayed for a
reasonable time to await the decision by that forum and in case of intentional or
otherwise inordinate delay, to take appropriate measures in reconsideration of any
concession including bail and the stay, whether it is not being misused;

That when the same question is pending before the Federal Shariat Court and the High
Court the latter would await the decision by the former Court.
Link 2

In case compromise is reached between the concerned parties before (and a decree is
passed accordingly, by) the Family Court which will have binding effect on the Criminal
Court, the latter Court would give effect to it in the criminal trial in an appropriate
manner; and lastly.

That in all these procedures the Court shall have power to prevent the abuse of the Court-
process by any party, or person involved in the trial of the criminal case.

In cases of kidnapping/abduction and/or Zinc liable to Tazir a valid marriage, being a

defence included in the very definition of the offence, to establish the same is an initial
burden. on the accused pleading .so;

Nevertheless where the Nikahnama, the witnesses and other relevant evidence in this
behalf is withheld by the accused or is otherwise not adduced before it, the Court's duty
under second part of section 540, Cr. P. C. is to summon the same-in primary or
secondary form.

The action in section 540 (first part) is discretionary; while under its second part it is
obligatory if the evidence concerned is essential for just decision of the case.

Page No. 16 of 55
The determination whether it is essential is dependent upon only its appearing to be so
and satisfaction is not necessary under the second part of section 540, Cr. P. C.

Under the last part also the discretion is to be liberally exercised, otherwise a wrong
decision on this question in present type of case would be of unimaginable consequences
for the persons affected directly or remotely.

The bar against the so-called `filling of gaps' and the question of so called `prejudice to a
party', would not be relevant consideration if a matter otherwise falls within the scope of
section 540, Cr. P. C. (second party= and this is true both for the defence and the
prosecution,

It is when all possible effort is made and more direct evidence is not available, then only
the other material mentioned in the definition of "proved" in section 3 of the Evidence
Act, can also be made use of.

That benefit of plea of valid marriage is to be given by the Court only when it is able to
give a positive finding thereon and not merely on suspicions and doubts.

Similarly the Court while acting under section 540, Cr. P. C. as also under section 165,
Evidence Act, has to remain vigilant and should actively participate in the proceedings
and should prevent any party taking undue advantage of the simplicity of the other or of
mere technicalities and that this interpretation of these provisions is in accord with
Islamic philosophy and jurisprudence.

The plea of valid marriage in order to be received in the manner indicated, must be raised
at the earliest opportunity available before the Court and not as an afterthought and
further that it should be genuine/and bona fide so as to get justice and not for vexation,
delay or for mere humiliation of a party.

False material is often created in fake complaints, affidavits etc. in farcical proceedings
so as to support doubtful pleas of consent and/or valid marriage but that should not deter
the Court from discovering the truth by resort to sections 540, Cr. P. C. and 165, Evidence
Act and other lawful means.

On discovery of an instance of foregoing type, in addition to the adverse effect on the

plea of the party connected therewith directly or indirectly, the persons concerned therein
should also be proceeded against in suitable forum.

Whenever an act is secret, or is accompanied by efforts of aforementioned type and/or a

"minor" female as involved, the Court has immediately to act with vigilance and
circumspection and is to ask all necessary questions in that behalf so as to prevent
continued victimisation of innocent sufferors.

It is particularly so in cases of "minor" females when the plea of valid marriage is

otherwise against the provisions of the Child Marriage Restraint Act, 1929, and, in such
cases in addition to the correct determination of age, measures should be adopted to
remove effects (invisible included) of apprehended coercion, cheating, undue influence.

In the foregoing exercise the attaining of puberty would be a relevant factor but not the
deciding factor alone regarding coercion and undue influence and/or fraud.

The accused can offer himself to be a witness is support of his plea under section 340(2),
Cr. P. C. with necessary consequences accordingly.

The Courts nevertheless, in appropriate cases when cruelty, undue advantage or unusual
acts are not involved, may treat this circumstance also into consideration on mitigation
where the sentence is not prescribed as the fixed one or minimum one;

That institution of valid marriage being an important factor in the foregoing context, the
plea in that behalf is to be viewed by the Courts with compassion but a mistaken zeal and
temptation of being so-called liberal in these matters, has to be avoided if not for other

Page No. 17 of 55
reasons, at least for the sake of innocent victims of wrong appreciation of evidence and
faulty conclusions (in matters of matrimony).

This branch of administration of justice has, on account of development of certain

techniques of dubious character, become complicated and in order to avoid mistakes on.
account of ignorance, the guidance can be had from the decided cases in so far as the
background knowledge and trends are concerned.
Link 3

Malik Rab Nawaa Noon, Advocate Supreme Court and Ch. Akhtar All, Advocate-on-
Record for Appellant.

Sardar M. Ishaque, Advocate Supreme Court for Respondent No. 1.

M. Kowkab Iqbal, Advocate-on-Record for the State.

- Date of hearing : 26th October, 1983.

JUDGMENT

JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.-This appeal through

special leave of this Court is directed against the judgment of the Federal Shariat Court
dated 26-5-1982, whereby the judgment dated 18-4-1982 of the Sessions Judge, Gujrat,
convicting Muhammad Iqbal, respondent, for an offence of, Zina-bil-Jabr (not liable to
Hadd) under section 10(3) of the Offence of Zina (nforcement of Hudood) Ordinance,
1979, was set aside and he was acquitted.

The prosecution case is that on 22-6-1981, Mst. Sajida Bibi, the prosecutrix, a young
virgin girl under the roof of her parents was inveigled and led away to a car parked at
some distance by the women co-accused of the respondent (accused) where she was
pushed into it and then taken away to various places. She was recovered on 19-7-1981.
Attempts were made by the police to get her statement under section 164, Cr. P. C.
recorded soon thereafter but it appears that. the same could not be recorded due to the
resistence by the accused side; on the plea, that she had made a statement during her
alleged abduction before a Magistrate in a complaint against her grand-father and parents,
which was subsequently dismissed for nonprosecution.

The mainstay of the prosecution case was the deposition by Mst. Sajida Bibi sought to be
supported by other pieces of evidence. In the examination in-chief it reads as follows:-

"p. lV s: Sajida Bibi daughter of Muhammad Azam, Caste Tarkhan.

aged 14 years, household, r/o Darya P. S. Kunjah, Tehsil Gujrat on S. A.

On 22-6-1981, 1 was present in my house. Rabia and Irshad P* Ws. were also present
there. Sardar Begum, Shabida and Zahida accused asked me to go out on the pretext to
ease ourselves. I accompanied them to saim-nala. Iqbal and Nawaz accused were present
there near a car. They took me into the car by catching hold of my arms. I raised noise.
My mother and my Phuphi were behind me and they saw me being taken by the accused.
I was taken to Gujrat on the car. My statement was recorded by force ,at Gujrat. My
thumb-impressions were obtained forcibly on some papers. My Nikah was not performed
with any one. Muhammad lqbal accused committed Zina-bil-Jabar with me. 1qbal then
took me to Rawalpindi and then to Karachi. A telephonic message was made at Karachi
and then I made statement before the police. My father was at Gujrat. I was medically
examined at Gujrat by a lady doctor."

art from this statement of the prosecutrix the following material was before learned
Courts below:

(1) Statement of Muhammad Azam her father about his wife Mst. Irshad Begum (not
examined as unnecessary) and Mst. Rabia P. W. his sister, that they saw the initial taking

Page No. 18 of 55
away of the girl and the incident about the car; and that he lodged the report on this
information.

(2) Statement of Mst. Rabia Bibi about the occurrence.

(3) Birth entry with statement of the Secretary of a Union Council that at the relevant
time the prosecutrix was less than 15 years of age. Another birth entry produced by
defence showing her age as about 16 years.

(4) A statement of the prosecutrix recorded under section 200, Cr. P. C.

upon a complaint against her own grand-father and parents which was dismissed for
default.

(5) An assertion of a Nikah by defence without direct evidence and the statement by the
prosecutrix that her thumb-impression was obtained on some papers under coercion-No
Nikahnama nor witnesses thereon, however, was produced by the defence.

(6) Statement in an affidavit and otherwise made by the prosecutrix in High Court for
release from Darul Aman and desire to live with the parents.

(7) Attempt of the defence to prevent the recording of the statement of the prosecutrix
under section 164, Cr. P. C. soon after her recovery, on the pretext that her statement had
been earlier recorded under section 164, Cr. P. C. and also on a complaint; and, the
defence evidence about the complaint.

(8) Medical evidence showing that the first act of coitus with the prosecutrix took place
about 21 days prior to 19-7-1981 and subsequently she was subjected to several such acts
before her recovery by the police; while, D. W. 1 stated that her alleged Nikah was
performed with Iqbal accused/respondent 2 days prior to her recovery on 18/ 19-7-1981.

(9) Statement of Aurangzeb Jarua (D. W. 1) showing that two days prior to the prpdq94pp
of the prosecutrix and the respondent before the police on 18/19-7-1981 their Nikah was
performed and that this D. W. although not a witness of the Nikah, had seen a
Nikahnama. His assertion was that the prosecutrix had made a statement before the police
that she had married the respondent and that Nikahnama was produced before the police.
No such question (about the statement) was asked from the Investigating Officer and the
prosecutrix; whose deposition shows as if an attempt was made at a fake Nikah on the
same day when she was produced before a Magistrate to support a false complaint, t. e.
on 22-6-1981. The Nikahnama and other Nikah evidence was however not summoned or
produced in Court.

(10) Admission by the respondent about conjugal intimacy on plea of marriage.

The learned trial Judge did not accept the statement of.respondent about the Nikah
without evidence about it and convicted him for the offence of Zina under section 10(3)
of the Ordinance as noted earlier. He, however, acquitted all the accused in the charge of
abduction under section 11 of the Ordinance. On appeal the learned Federal Shariat Court
acquitted the respondent on the assumption that there was valid marriage with consent
between Mst. Sajida Bibi and Muhammad Iqbal respondent as against the finding by the
learned trial Judge that, she was not a consenting party to it.

The circumstances relied upon by the learned Federal Shariat Court are as follows:

(i) Statement of Mst. Sajida Bibi under section 200, Criminal Procedure Code, on the
complaint filed by her on the day of the occurrence against her parents and grand-father
in which she gave her age as 17 years and asserted that she wanted to marry Muhammad
Iqbal respondent; although at the trial she, as observed in the impugned judgment,
claimed that some thumb-impressions were procured forcibly from her;

Page No. 19 of 55
(ii) that she was produced before a Magistrate on 9-7-1981 but the police recorded this
incident as of 18-7-1981; so as to cover up the period, as assumed, spent on prevailing
upon the girl to involve the accused falsely for abduction and Zina.

(iii) That she was produced before the Magistrate thrice and her statement could be
recorded only on second occasion, presumably under section 164, Cr. P. C.

(1v) That she was not willing to go to the house of her parents, that is why she was sent
to Darul Aman after the so-called recording of the statement on 26-7-1981 and after her
production in Court on 5-8-1981. Therefore, her statement was due to police pressure.

(v) That although the birth certificate Exh. P. D. (showing the age of the prosecutrix as
less than 15 years) produced by the father of the prosecutrix "appears" as if it "may be
forged document", because was issued by a Union Council where she was not born; but it
was not found necessary to give final judgment on the question of age of the prosecutrix:
firstly, because she had attained the age of puberty on admission of menstruation two
years prior to the occurrence and thus the marriage with her cons-.nt was valid; and
secondly, because marriage in violation of the provisions of the Family Laws Ordinance
"except probably in case of marriage of minor with her consent only, does not invalidate
the marriage."

With respect it was argued by the learned counsel that each one of these findings suffers
from some misreading; but that by itself would not, as will be presently shown, justify the
setting aside of the acquittal; because the trial Court also failed to record all essential
evidence, so as to reach correct conclusions about: the alleged marriage, the statements
under section 164/200, Cr. P. C. the age of the prosecutrix and effect thereof on the acts of
the accused. In the circumstances of this case the failure of the trial Court to act in
accordance with law regarding the conduct of trial has also reacted on the decision of the
Federal Shariat Court cn the said A question. On account of this reason the impugned
judgment, it would be seen, has also become liable to be set aside. Thus for the above
reasons the setting aside of the trial Court judgment and remand of the case for fresh trial
becomes necessary.

As the question of remand for fresh trial is directly involved in this case therefore, effort
would be made to avoid conclusive finding on any question of fact, which would vitally
effect the culpability or otherwise of the accused.

It is in evidence that after the alleged abduction but before the recovery of the prosecutrix
a Nikahnama (not produced) was prepared showing a if she was married to Muhammad
Iqbal accused. This Nikahnama, it is i the statement of D. W. 1 was also shown to the
police during the investigation.

According to the said D. W. the alleged Nikah, evidenced by the Nikahnama, was
performed two days prior to the recovery of the prosecutrix by the police. This witness
however was not himself the witness of Nikah but had seen the Nikahnama. Moreover, it
appears from his statement that the police had also during the investigation confronted
the girl with this Nikahnama. No question was put to the Investigating Officer nor to the
prosecutrix,

about this Nikahnama; nor was it produced by the defence in suppo of their main
substantial plea of a validly performed Nikah. Even if any Investigating Officer (he may
not be the same who appeared as a prosecution witness) after seeing the Nikahnama
failed to take it into possession so as ultimately to produce it before the Court as an
evidence of its being fake H as is the prosecution case now, the defence could have led
direct evidence about the Nikah and the preparation of the Nikahnama. If it was not
available the examination of secondary evidence about the same was necessary. And i
secondary evidence about the Nikahnama was not available to the defence which is most
unlikely, the defence could have produced the witnesses of the Nikahnama including the
scribe, the Nikahkhawan and the witnesses of Nikah. They must have, even if it was a
sham Nikah, been mentioned a such in the Nikahnama. Whether the police withheld the
Nikahnama allegedly shown to them during the investigation or the defence for reasons
best known to it withheld the same as also the other evidence regarding the alleged

Page No. 20 of 55
Nikah; there remains no doubt in the circumstances of this case, that on account of the
prosecution case about the use of coercion by the accused and the defence plea of valid
Nikah without coercion, the resolution of this controversy was absolutely essential for the
just decision of the case,. It is not one of those cases where antiquity is involved and
availability of primary or secondary evidence is doubtful, nor was so the case of the
defence which was more vitally interested in the discovery and production of this
evidence (because it must be within their knowledge as to who was the Nikahkhawan and
who were the witnesses).
The duty nevertheless lay squarely on the trial Court to summon the entire available
evidence on this controversy and record/admit the same by virtue of power under section
540, Cr. P. C. It reads as follows:

"540. Power to summon material witness or examine person present. Any Court may, at
any stage of any inquiry, trial or other proceeding under this Code, summon any person
as a witness, or examine any person in attendance, though not summoned as a witness, or
recall and re-examine any person already examined; and the Court shall summon and
examine or recall and re-examine any such person if his evidence appears to it essential
to the just decision of the case."

This provision is divided into two parts: one where it is only discretionary for the Court
to summon a Court witness suo motu or on application, and. the second part where it is
mandatory for the Court to do so. The main condition to be satisfied with regard to the
second part is that the evidence to be summoned under this part should appear to the
Court to be essential to the just decision of the case. As has already been observed the
evidence in question relating to Nikah was undoubtedly essential for the just decision c of
the case. In the circumstances of this case the failure of the learned trial Judge to act
under the said part of section 540, Cr. P. C. has not only deprived the Appellate Courts of
essential material for the just decision of the appeal, but has also occasioned miscarriage
of justice. As would be presently seen, after the enactment of the new criminal law about
abduction] marriage and sex offences, the evidence regarding the questions noted above'
has become all the more essential to be recorded, for just decision of these cases.

The foregoing was only one major aspect where the trial Court failed to perform its duty
regarding summoning and admission of evidence. There is another aspect also. The
defence represented before the Court and there is material on the judicial file to show that
the prosecutrix had (according to the prosecution version due to fear/force) recorded one
or more statements before Magistrate (s) regarding circumstances of the alleged
abduction, her association with lqbal accused as also about the alleged Nikah and her age.
The record of one proceedings on a complaint, alleged to have been filed by the
prosecutrix against her own parents after the alleged abduction, professing the same to be
under section 506/34, P. P. C., is on the file. The allegation in the complaint and statement
under section 200, Cr. P. C. was that she was betrothed to Muhammad Iqbal respondent
during childhood, that her parents wanted to marry her elsewhere to which she was not
agreeable and that she having run away from her parents' house on her own. was at the
time of the filing of the complaint, residing with a female friend at Gujrat ; when on 21-
6-1981 the accused mentioned in the complaint including her father, mother and grand
father came there and wanted to take her along to their house but on her refusal abused
her and further that on her raising the alarm they went away while threatening to murder
her.

This statement is of 22nd June, 1981 i.e., the same day on which according to the F. 1. R.
in the main case, the girl was taken away from her parents' house by the accused party.
The complaint purports to have been thumb-marked by the prosecutrix but the same was
not put to her in cross-examination so as to ascertain as to whether she owned it and the
thumb-impression thereon. She on the other hand stated at the trial that though some
thumb-impressions were procured by force from her, she never made any such statement
before the Magistrate. She further explained that on production by the accused before a
"Magistrate", she protested and raised noise on which she was admonished by the
Magistrate and was ordered by him to make the statement and then on account of this fear
she made a statement, meaning thereby, the tutored version. And that thereafter "the Naib
Court and other officials of the Court accompanied her to the car. No Magistrate would
do or permit this. Either the girl told lie or she first went through the well-known fake and

Page No. 21 of 55
mock proceedings arranged, by the culprits to test whether she would follow the dotted
course. The victim of such a farcical test, ordinarily follows the tutored lines, after the
first reaction to the protest, i.e., the rebuke by a privately arranged fake Court in the mock
proceedings. In this case the Magistrate who appeared in defence to depose about the
complaint proceedings stated that no such incident took place on the said complaint. If
the prosecutrix is right then she must have been produced before a fake Magistrate and
after her protest, some other method might have been used to accomplish the purpose of
preparing a statement of the girl on oath supporting the defence version. One possibility
of production of another girl before the genuine Magistrate, could also be considered in
the light of the statement made by the Magistrate as a defence witness. The trend of
cross-examination and his admissions shows that he could not identify the complainant.
The address of the complainant in the case is shown to be "Moballah Kalupura, Thana
Saddar, Gujrat" while the address of both the main parties in this case is of village "Darya
P. S. Kunjah". It was necessary in these circumstances to summon evidence regarding
who the female friend of the complainant (mentioned in the complaint) was with whom
she allegedly stayed during the days when according to the prosecution she was with her
parents or in detention as an abductee with the accused party. Had these pieces of the
evidence been received, of course in its details, the consequences might have been totally
different. And in that eventuality proper action could be taken against persons who
indulge in such like farcical proceedings without due care and caution. Learned trial
Court, notwithstanding sufficient precedent cases ; showing that in cases like the present
one sometimes effort is made to create false evidence in support of defence plea of
willing elopement and/or Nikah with consent fake and false criminal complaints are filed
in Magistrate's Courts so as to get the statement of the so-called complainant recorded on
oath undersection 200, Cr. P. C., failed to summon and admit all the vital evidence
regarding this complaint. It was the duty of the trial Court to resummon and re-examine
the prosecutrix under the second part of section 540, Cr. P. C. as discussed above to
discover the truth about this piece of evidence. This was also essential for the just
decision of the case.

It is pertinent to note that the record of the complaint purports to show that the
complainant made the statement under section 200, Cr. P. C. on 22nd June, 1981. The
complaint thereafter purports to have come up before the Magistrate for further
proceedings on several occasions but none pursued the same and ultimately it was
consigned to record. The said proceedings, one face at least, appear to be one of those
typical which are launched before Courts ; of the Magistrates on complaints under section
107/151, Cr. P. C.; sometimes under section 506/34, P. P. C. as in this case ; the
proceeding or recovery of females under section 100, Cr. P. C. and other provisions Of
criminal Procedure Code (before Magistrates and District Magistrates) ; and, .E
sometimes even before the High Court purporting to be proceedings under section 491,
Cr. P. C. or 561-A, Cr. P. C. ; or, even in writ jurisdiction with a view to get either a
statement of abductee recorded on oath ; or, her, similar statement in an affidavit filed
with such proceedings. This is besides, the affidavits before the Notary Public and the
Oath Commissioners, so as to create defence plea in the cases of abduction, kidnapping
or rape. Such practice, howsoever . well-known, by itself would not be enough to give a)
concrete finding of fact in a given case that the proceedings were false so as to
create/support a defence plea in a criminal case, without detailed evidence or material
about the circumstances in which any of such proceedings were launched.

The practice is nevertheless of such magnitude that it should put the Courts dealing with
these matters on extreme care and caution for discovering the reality and truth.

If ultimately a case is found of this type then, proper action should be launched (against
persons involved with male fide intentions or those who fail to act with due care and
attention) in Court of law or in other forum including administrative.

The failure of the parties to produce sufficient evidence after introducing this subject
should not have deterred the trial Court in performing the duty under the second part of
section 540, Cr. P. C. The trial Court has, as discussed above, failed to do so and therefore
on this account also the case merits remand for fresh trial.

Page No. 22 of 55
It is also in evidence and the learned Chief Justice of the Federal Shariat Court has made
mention of it that the prosecutrix, was produced before one or more Magistrates during
the investigation for recording of her statement under section 164, Cr. P. C. ; but, the
defence resisted this attempt on the part of the police on the plea that similar statements
(including presumably those under section 164, Cr. P. C.) had already been recorded. The
attempt of the defence in all probability was to show that once a statement under section
164, Cr. P. C. has been recorded during - the investigation of a case, a second statement of
the same person could not be recorded. Apart from the question whether or not it is a
correct proposition of law, this issue for the time being does not arise because no
statement recorded under section 164, Cr. P. C. of the prosecutrix was proved either from
the side of the defence or by the prosecution ; which as asserted by the defence had
already been recorded by a Megistrate under the said provision. If there was some such
statement, when proved its admission in evidence and consideration would F have been
vital for the just decision of the case. The learned trial Court failed to ascertain clearly all
circumstances about this controversy, so as to place on its own record the contents of
such statement under section 164, Cr. P. C. had it been so recorded. The Magistrates who
recorded the same G and the circumstances in which it was recorded could have been
examined, again, under the second part of section 540, Cr. P. C., in case both the parties
had failed to produce the same.

It appears from the record (which contains enough doeumentaty material in this behalf)
that during the investigation of the case the prosecutrix was ordered to be detained in
Darul Aman. The complainant party challenged this detention in the High Court. She was
then produced before a learned Judge of the High Court. There are proceedings in that
behalf in which she purports to have acted in a particular manner ; whether the same
favours the accused or the prosecution will have to be determined after evidence is
admitted at the trial stage and the prosecutrix is duly confronted therewith. This also was
not done by the learned trial Court. The entire material regarding the statements, in any
formal proceedings under section 164, Cr. P. C., made by the prosecutrix during the
investigation and/or prior to her recovery by the police, in addition to the complaint and
section 200 Cr. P. C. proceedings. was essential for the Just decision of the case. Failure
of the trial Court to act in accordance with law in this behalf also resulted in miscarriage
of justice.

Although another aspect of the case also required deep scrutiny yet it cannot be said that
the material admitted in evidence in that behalf was not enough for just decision of the
case. It is the question of the age of the prosecutrix at the relevant time. It has been
observed in the impugned judgment that in the circumstances of the case it was not
necessary to render any final decision on this question ; but notwithstanding the same,
apart from examining the question of the puberty of the prosecutrix, it was also essential
for examining other relevant questions. With regard to alleged coercion, the age of the
girl would be relevant. A girl of 14 if acting under fear might behave in a more
submissive manner than an elder mature female. It would also be relevant for other
cognate offences under the Ordinance. Therefore in this view of the matter, it might
become necessary to summon and record more evidence about the place and date of birth
of the prosecutrix as also the entries in connection therewith. This also could be done
under section 5 if it was not otherwise available in defence or prosecution evidence.
It needs to he observed that for purpose of acting under section 540, Cr. P. C. (whether
the first or second part), it is permissible to look into the material not formally admitted
in evidence, whether it is available in the records of the judicial file or in the police file or
elsewhere. The perusal of both these records would show that if evidence, in connection
with the items already noticed, would have been properly entertained the reasoning and
decision of the learned two Courts might have been different.

Sometimes apprehension is expressed that any action by the trial Court under section 540,
Criminal Procedure Code would amount to filing the gaps and omissions in the version or
evidence of one or the other party. It ma straightaway be observed that in so far as the
second part of section 54 goes, it does not admit any such qualification. Instead, even if
the action thereunder is of the type mentioned, the Court shall act in accordance with the
dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it
to admit evidence thereunder if it is essential for the lust decision of the case. It was held
in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963SC51) that even if a

Page No. 23 of 55
witness who is ultimately to be produced by the accused in his defence is examined by
the trial Court as a Court witness at an earlier stage then notwithstanding the fact that the
defence would have an extra advantage of putting leading questions to the witness when
standing in the witness-box as a Court witness, it would not effect the power of the Court
(under section 540, Cr. P. C.1 to summon and examine the witness if, of course, as was
observed in that case, it was in the interest of justice and thus presumably essential for the
just decision of the case. Again in The State v. Maulvi Muhammad Jamil and others (PLD
1965SC681) when examining the effect of change in the criminal procedure, regarding
right to further crossexamination, during the transitional period, this Court held that even
though it would be for the benefit of the defence, the trial Court could avoid any
prejudice to the defence by acting under section 540, Cr. P. C. After holding so a very
weighty observation was made which needs to be reproduced :

This section empowers a Court at any stage of inquiry, trial or any other proceeding under
the Code, to summon any person as a witness, or recall and re-examine any person
already examined, and it is obligatory for the Court to summon and examine or recall and
re-examine any such person, if his evidence appears to it essential for the just decision of
the case."

In yet another case Rashid Ahmad v. The State (P L D 1971 S C 709), this Court made it
more clear that "a criminal Court is fully within its rights in receiving fresh evidence even
after both the sides have closed their evidence and the case, is adjourned for judgment,
for, till then the case is still pending. The only question therefore, is as to whether in the
interest of fairness further opportunity should have been given to the accused" ; and, it
was held that there is no bar to the taking of additional evidence in the interest of justice,
at any stage of inquiry or trial as provided by the provisions of section 540, Cr. P. C." In
these cases if the question regarding so-called filling of the gaps would have been raised
more squarely, the answer in view of what has been noticed above would have been the
same as already rendered ; namely, that if it is essential for the just decision of the case,
then the same is the command of the law under the second part of section 540, Cr. P. C. It
would not be possible to canvass that when the action under the said provision amounted
to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the
additional evidence. Two more decisions by this Court as illustrative of the practice, may
also be noted. They are Bashir Ahmad v. The State and another (1975 S C M R 171), and
Yasin alias Cheema and another v. The State (1980 S C M R 575).

A seemingly contrary view regarding filling of the gaps taken in Rameshwar Dayal and
others v. State of U. P. (A I R 1978 S C 1558), when properly appreciated, in reality, does
not appear to be so. It was held that a Judge who has to decide a case should not himself
become a witness therein by making a statement on oath before a Court of law and thus
"should not fill up gaps left by the prosecution". The circumstances in which this type of
filling the gap was not approved, were totally different. Otherwise, it is pointed out that
the learned Judges held that "it is true that under section 540 of the Cr. P. C. the High
Court has got very wide powers to examine any witness it likes for the just decision of
the case, but this power has to be exercised sparingly and only when the ends of justice so
demand. The higher the power the more careful should be its exercise." I would, with
respect, add that if it is essential for the just decision of the case to exercise this power
then (although the conclusion with regard to the finding whether or not it is essential for
the just decision of the case has to be reached with due care, but once it is reached) in that
case it will not be proper for the Curt to hesitate in admitting the additional evidence.

At this stage it is necessary to notice another somewhat contrary view expressed in The
Crown v. Rafiq Ahmad and another (P L D 1955 Bal. 12), wherein it was held that it is
discretionary for the Court under both parts of section 540, Criminal Procedure Code to
summon or not to summon a witness. With respect, it is pointed out that with regard to
the second part if it was meant to convey that the Court (after reaching the conclusion
that it was essential for the just decision of the case) had a discretion not to admit the
relevant evidence, then this decision has not. laid down the correct law. It would also be
not correct to say that the process of reaching conclusion whether or not it is essential for
the just decision of the case to summon an item of evidence is merely an exercise of

Page No. 24 of 55
discretion ; because, while appreciating the material or circumstances in which a
conclusion has to be reached one way or the other, the Judge goes through an exercise in
which logical constraints are to be followed and he cannot in his discretion follow the
course contrary to what the clear logic of the situation demands. In that sense, with
respect, it is again pointed out that this exercise would not be a mere exercise of
discretion.

The use of the expression "appears to it" in the second part of section 54 gives ample
indication that even when it is not possible to give a conclusive verdict with regard to the
item of evidence being essential or otherwise, yet it must in any case at least "appear" to
the Court that it is essential, before; taking action under the said part of section 540. And
for that matter a observed earlier, it would not be necessary for the trial Court to hold
separate inquiry so as to reach a conclusion whether an item of evidence is essential for
the just decision of the case. It would be enough f it appears so to the Court from any
material or inference from the material including that which is already available to the
Court in any form-admitted evidence o material otherwise lying on the judicial and other
files before it. It is in the foregoing context that another judgment namely Abdul Latif and
others v. State of Uttar Pradesh (AIR 1978 S G 472), has to be viewed. It was held therein
that if there is a finding of the High Court that the evidence of any witness is not
necessary for just decision of the case, it is a finding of fact and unless there is some
substantial error in the judgment of the High Court, the Supreme Court would not
interfere in a case of special leave. I agree with the proposition but would, with respect,
add that if the High Court itself commits an error in interpreting the second part of
section 540, Cr. P. C. in a manner contrary, to what has been stated earlier, it might
become a case for interference by this Court.

The question regarding so-called bar against filling of gaps, has to be considered in
another context also. If it is found to be a salutary rule, then the same, without any
distinction vis-a-vis the nature of the offence, should be applicable in all criminal trials. It
would be noticed that in murder cases ; the application of this rule, when the controversy
is with regard to the filling or otherwise of a gap in the defence evidence by the resort to
section 540, and in case denial thereof would result in conviction and no other sentence
than death would be likely to be awarded, it would not be possible to canvass that in
observation of the so-called rule of avoidance to fill the gaps, evidence which is essential
for the just decision of the case, would not be admitted for this reason. It would not only
be the negation of justice in a genera sense, but would also contravene another rule
namely that no party should suffer on account of mere technicalities. The procedural law
is not enacted to trap individual parties through technicalities and has to be interpreted
always as acting in aid of justice and fairplay.

It may be added that the language of section 165 of the Evidence Act also lends full
support to the view regarding interpretation of second part of section 540, Cr. P. C. It
reads as follows :

"165. Judge's power to put questions or order production.-The Judge may, in order to
discover or to obtain proper proof of relevant facts, ask any question he pleases, in any
form, at any time, of any witness, or of the parties about any fact relevant or irrelevant ;
and may order the production of any document or thing ; and neither the parties nor their
agents shall be entitled to make any objection to any such question or order, nor, without
the leave of the Court, to crossexamine any witness upon any answer given in reply to
any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant,
and duly proved

Provided also that this section shall not authorise any Judge to compel any witness to
answer any question or to produce any document which such witness would be entitled to
refuse to answer or produce under sections 121 to 131, both inclusive, if the questions
were asked or the document were called for by the adverse party ; nor shall the Judge ask
any question which it would be improper for any other person to ask under section 148 or
149 ; nor shall he dispense with primary evidence of any document, except in the cases
hereinbefore excepted."

Page No. 25 of 55
The power conferred on the Court by the second part of section 540, Cr. P. C. and the one
conferred by section 165, Evidence Act are indeed complementary to each other. If the
power under section 165 is so wide as sometimes even to go beyond what is conferred by
section 540 then it would not be proper to assume any artificial limitations on the
exercise of one or the other power and they have to be treated as supplementary to each
other. This view finds support from elaborate reasoning in the Indian case of Jamatraj
Kewalji Govan! v. State of Maharashtra (AIR 1968 S C 178). Another illustrative case
from-India might also be noticed. It is Raghunandan v. State of U. P. (A I R 1974 S C
463).

The Federal Shariat Court in a recent case of Moulvi Hazoor flux v. The State (P L D
1983 F S C 209), took serious note of undesirable practice already noticed in this
judgment ; namely, the attempt of a party to create false evidence in cases of abduction
through affidavits or other statements purporting to be on oath so as to create a defence
plea of consent and also observed that such cases could also be taken note of for
prosecution under section 193, P. P. C. It was in that connection that the learned Judges of
the Federal Shariat Court further observed that in a case where the defence wanted to
produce evidence regarding such an affidavit at the late stage, it would not be essential
for the Court to admit it in evidence under section 540, Cr. P. C. The argument raised
from the defence side was rejected with the observation that "I agree with the learned
Additional Sessions Judge that such practice which involves taking away of a minor boy
by the brother of Hazoor Bux and then making him to swear a statement under threat or
promise should not be encouraged. This is one of the methods of tampering with evidence
and tampering should not be allowed." In this background the request of the accused for
recalling the victim of the crime to confront him with such an affidavit denying whole
incident, after the close of the evidence of the defence was held to have been rightly
refused under section 540, Cr. P. C. It may be mentioned that the Court was able to find
enough material on the record with regard to the said affidavit so as to reach a conclusion
regarding the futility of its being admitted in evidence at that late stage because otherwise
too it was not essential for the just decision of the case, to do so. The observation of the
Federal Shariat Court in Nisar Ahmad v. The State (P L D 1983 F S C 485), regarding the
so-called filling of the gaps, has to be read subject to the foregoing discussion on this
issue. And as also, subject to what the Federal Shariat Court itsell observed in another
case Muhammad Siddique and another v. The State (P L D 1983 F S C 173), that "it is not
disputed that under section 540, Cr. P. C. the Court is given unfettered powers to examine
any person as a witness at any stage of any enquiry, trial or other proceedings." And it
may be added that it becomes obligatory for the Court to do so when it is essential for the
just decision Of I the case, and the same was done by the Federal Shariat Court itself in
the case of Din Muhammad v. The State (Criminal Appeal No. 61/L of 1981, decided on
26-1-1982), which would be presently examined in another connection.

One more aspect needs to be clarified regarding the exercise of power under section 540,
Cr. P. C. It is in addition to three main aspects already noticed namely : that, it is divided
into two parts one discretionary and the other obligatory ; that, the obligatory one is
conditioned by the fact that it should appear to the Court to be essential for the just
decision of the case; and that, the rule against filling of the gaps would not operate
against the exercise of this power if the case falls under the second part of section 540, R
Cr. P. C. It relates to a proposition, converse to the so-called rules regarding filling of the
gaps ; namely that it should not be exercised so as to prejudice one or the other party.
Enough has been said already that if a situation falls under the second part of section 540
clearly and squarely then the question of , prejudice would not be entertainable. 1t is
fallacious proposition that this power then should not be exercised. The mandate of law
when itself does not admit of any such qualification, the Court cannot introduce it.

Another clarification needs to be made that although in this case the power to summon
additional evidence regarding nikah when exercised would seem to be filling a gap left in
the defence evidence ; and, if ultimately the additional evidence admitted supports the
defence, it would not be possible to S say that the process has not gone in aid of justice.
Same would apply to the prosecution side because the law as contained in section 540,
Cr. P. C. (second part) or for that matter in the relevant part of section 165, Evidence Act,
does not make uny distinction between the prosecution and the defence.

Page No. 26 of 55
At this stage it is necessary to notice the remaining case-law in this behalf. The general
trend therein has important bearing on the discussion on section 540, Cr. P. C. It would be
of advantage to cite some of the relevant cases found during the search made in this
behalf. The following cases except at SI. No. 6 do not support the restricted view of
section 540,

Cr. P. C.

Abdul Ghafoor v. The State and 2 others (1), Mehboob Khan v. The State (2), Barkat Al!
v. The State (3), Muhammad Hussain v. Abdul Rashid (4), Muhammad Ehsan v. The
State (5), Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others
(6) Gillat Shah v. The State (7), Muhammad Ashiq v. The Martial Law Administrator.
Zone 'C' (8), Jewan and 9 others v. The State (9), A6dul Rashid v. The State (10), The
State v. Abdul Hamid and another (11), Kanhu Charan Saraf and another v. Radhamohan
Padh! (12), Saghir Hussain and another v. The State (13), Ram Jeet and

(I) P L D 1983 Lah. 139 (2) P L D 1979 Lah. 691

(3) P L D 1979 Lah. 740 (4) P L D 1975 Lah. 1391
(5) P L D 1975 Lah. 1431 (6) P L D 1967 Lah. 1045
(7) 1982 P Cr. L J 933 (8) 1980 P Cr. L J 97
(9) 1980 P Cr. L J 570 (10) 1980 P Cr. L J 1119
(11) 1970 P Cr. L J 384 (12) A I R 1965 Orissa 219
(13) A I R 1958 All. 312
others v. The State (A I R 1958 All. 439), Mukti Kamar Ghosh v. State of West Bengal
(1975 Cr. L J 1838), Syed Muhammad v. K. C. Raman and others (1964) 1. Cr L J 100)
and Ramjiwan v. Maddy Khan and another (1952 Cr. L J 1012).

As a result of the foregoing discussion it is essential to remand the case for fresh trial. But
it is also essential to examine in detail some other important aspects involved in the cases
like the present one, particularly after the enactment of the Family Courts Act (XXXV of
1964) and Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979.

One such aspect relates to the possible repercussions on the family and social life of the
parties concerned particularly the female side; and the other is the trend and effect of
different facets of the case-law which has developed in Pakistan in connection with this
branch of administration of justice.

The offence of Zina and for that matter abduction and Zina, whenever IT they are
combined in the same case, is not like those offences which affect the parties for the time
being and ordinarily do not produce permanent results for them and others as well. The
enforcement of Islamic law of Zina and related crimes is an attempt to inculcate Islamic
values notwithstanding the influences of western culture and rules in this field. The mass
media and modern techniques of dissemination of material, relatable to the temptation' to
commit these crimes, are well-known. These laws do not even profess to deal with the
on-slaught from these otherwise uncontrollable sources. One view of dealing with this
clash of law and influences might be to look at this crime with some amount of
compassion but that will not stop or reduce it and innocent victims would continue to
suffer. civilized societies have always stuck to the classical rule of need for punishing the
crime. In our country also the legal mandate is to punish the crime and in doing so, no
allowance can be made for the above-mentioned influences in the matter of interpretation
of law, the appreciation of evidence (say when giving finding of guilty or otherwise), or
even in the measure of punishment when it is fixed as the only one or minimum one. In
individual cases however where a particular offence is punishable with varying periods of
imprisonment, amounts of fine or numbers of stripes in whipping, the Court when
allowed discretion by law can and might legitimately take into account the afore-
discussed features as a ground of mitigation-provided that elements of cruelty, undue
advantage or unusual behaviour are not involved. Nevertheless in the context. of this vital
question, the bigger unfortunate controversy would remain to be resolved for the social
thinkers, religious scholars and law-making and enforcing agencies; in that, how to stop
these influences and acknowledge them in defining and punishing the crime; and, if the
society is unable to do so mainly or at least partly because of foreign controlled media,

Page No. 27 of 55
then how to absolve itself in connection with the temptation and easy opportunity to
commit this type of crime. The Courts in either way have to administer law as indicated
above.

In Pakistani as the law now stands, a redeeming feature in administering this branch of
criminal justice, is that the institution of legitimate valid marriage not only operates as a
defence mechanism vis-a-vis the rigours of the law; but also, as a cushion against the
vices of present day free social norms and influences. The Court's duty though, in dealing
with the defence of marriage is very delicate. On the one hand, it has to caution itself
when dealing with this defence plea against breaking the well-known rules of
appreciation of evidence in the mistaken zeal of being liberal and on the other, it has to
understand that by its undue restraint the faith in the institution of marriage itself might
not be affected.

It is in this context that various aspects of the defence of valid marriage are to be noticed.

The new law, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has added vast
dimension to the plea of marriage as defence in a case of Zina or Zina-bil-Jabr liable to
Hadd offence. It is not involved in this case,1 therefore, the discussion thereon is being
avoided. On the charge of `ina or J, Zina-bil-Jabr liable to Tazir offence also the law,
without any doubt, acknow-1 ledges a valid marriage as a good defence. Relevant parts of
sections 4, 6 and 10 of the Ordinance read as follows

"4. Zina. A man and a woman are said to commit `Zinc' .if they wilfully have sexual
intercourse without being validly married to each other.

6. Zina-bil-Jabr.--(I) A person is said to 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) against the will of the victim,

(b) without the consent of the victim,

(c) with the consent of the victim when the consent has been obtained

by putting the victim in fear of death or of hurt, or

(d) with the consent of the victim, when 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 to be validly married.

Explanation... .........
(1) . … …
(2) :
(3)
(4) .....................

10. Zina or Zina-bil-Jabr.--(1)...............

(2) Whoever commits Zina liable to Tazir shall be punished with rigorous imprisonment
for a term which may extend to ten years and with whipping numbering thirty stripes and
shall also be liable to fine.

(3) Whoever commits `Zina-bil-Jabr' liable to Tazir shall be punished with imprisonment
for a term which may extend to twenty-five years and, if the punishment be one of
imprisonment shall also be awarded the punishment of whipping numbering thirty
stripes."

Validity of the marriage is a sine qua non for the success of the defence of marriage in
case of Zina or Zina-bil-Jabr, liable to Tazir. This Court in Ghulam Shabir Shah v. The
State (1983 S C M R 942) has already ruled in this behalf that the word "validly" cannot

Page No. 28 of 55
be treated as a mere surplusage and has to be V given full meaning and effect. "Irregular"
marriage therefore affords no protection ; as, being not a "valid" marriage. It may be
added that a "doubtful". marriage in so far as factual aspect is concerned for the same
reasons, would not afford any protection. Here a reference to the comparative provision
regarding zina liable to Hadd offence, would illustrate the point. While section 5 of the
Ordinance, provides that a person who is not married to "and does not suspect himself to
be married" to the member of the opposite sex with whom the zina is said to have been
committed, is liable to Hadd; if of course, certain other conditions are satisfied. Thus the
success of the plea that accused "suspected himself to be married" to the person
concerned will be a defence for him to avoid the Hadd. No such suspicion, factual or
legal, on the part of the accused in the offence of zina liable to Tazir, has been provided
as defence in sections 4 or 6(1) or 1 of the Ordinance. It is not necessary to go into the
reasons for the difference. The law of Tazir is very clear on the point.-One who raise this
plea would have to establish the same in law and fact beyond any suspicion about it. If
there is failure on his or her behalf for any reason whatsoever to produce evidence, it
being the mandate of law as an important part of definition of the offence, once seriously
and genuinely raised (with some foundation and not for the purpose of delay and vexation
which features are always discoverable by exercising judicial mind), the Court . would be
duty bound to examine it in depth, even if it involves action under section 540, Cr. P. C.
(first and/or second part) and similar other provisions including those relating to coercive
measures for production of evidence. It needs to be observed however, that keeping in
view sections 105 and 106 of the Evidence Act, in the context of the Muslim law
attempted to be codified, it is not the intention of this law that merely because of the
inclusion of the exception in the very fabric of the definition ; its exclusion is the burden
ofhe prosecution. It being an exception involving a special type of knowledge, the burden
will be on the person pleading it. But in the context of section 540, Cr. P. C this burden
without shifting from the person concerned. would also be interjected in the duty under
section 540 (second part), Cr. P. C.; because, its resolution will be essential for just
decision of the case.

The relevant precedent cases while furnishing background material for this exposition,
will have to be seen and understood. only subject thereto and not in derogation thereof. It
is a major point of emphasis in this crime that the question of valid marriage when raised
as a genuine plea in a trial for offence of zina liable to be punished as tazir, it bas to be
approached with extreme care and circumspection. The evidence and material regarding
Nikah should be of high quality, incapable of admitting any doubt. It is on account of this
reason and due to the constraint of the newly enacted law that it became necessary to
make a statement of caution before noticing the case-law in this behalf. Some of these
cases arse under old law but are relevant in connection with the question of marriage, its
validity and proof in so far this defence against rape, kidnapping and abduction, is
concerned. They are : Muhammad Iqbal v. The State (1) ; Abdus Sattar v. Muhammad
Ashraf (2); Arif Hussain and another v. The State (3), Afadat and others v. The State (4) ;
Iftikhar Nazir Ahmad and others v. Ghulam Kibrla and others (5) ; Habibullah and 3
others v. The State (6) ; Manzoor Hussain and another v. Manzoor Hussain (7) ; Baehinoo
v. Abdul Hakim (8) ; Falak

(1) PLD1983FSC9 (2) PLD 1982FSC157

(3) PLD1982FSC42 (4)1 P L D 1982 F S C 52

E5) P L D 1968 Lab. 587 (6A P L D 1973 Kar. 609

(7) P L D 1974 Lab. 202 (8)1975 P Cr. L J 732

Sher v. The State (1) ; Mst. Qadul and 7 others v. Allah Bachaya and 2 others (2) ; Mst. A
fat Bib! and another v. The State (3) ; Umaid Khan v. Akbar (4) ; Ghulam Muhammad v.
Fakir Muhammad etc. (5) ; Muhammad Anwar v. Muhammad Suleman (6) ; Dr. A. L. M.
Abdullah v. Rokaya Khatoon and another (7) ; Muhabat v. Abdullah and 9 others (8) ;
Muhammad Aslam v. Ghulam Muhammad Taslim (9) ; Muhammad Inayat v. Chaudhry
Muhammad Saline and 2 others (10) ; Nazar Qasim v. Mst. Shaista Parveen (11) ; Habib
v. The State and 2 others (12) ; Mst. Ghulam Fatima and 5 others v. Mst. Anwar alias
Anwari Begum and another (13) ; Mst. Ferhat and another v. The State and 2 others (14) ;

Page No. 29 of 55
Mst. Fatima and another v. S. H. O. Police Station. Golra Sharif and 2 others (15) and
similar other cases not noticed here but taken note of in Haji Nizam Khan v. Additional
District Judge, Lyallpur and others (16).

In addition to the aforementioned case-law from the Federal Shariat Court and the High
Courts of Pakistan, there are some decisions by this Court which would furnish more
material for assessing the social conditions regarding the crime in question particularly
when matrimony is involved therein, as a frivolous or genuine plea ; and when genuine,
whether correct or unfounded plea. The most recent case as already noticed is of Ghularn
Shabir Shah v. The State (17). This case has to be treated as an authority for the law
declared on an important plea in these cases and would also govern the relevant question
of the efficacy of the plea of Nikah in this case. The other Supreme Court cases, in the
general context, are : Al Nawaz Cardezi v. Lt.-Col. Muhammad Yusuf (18) ; Abdul Basil
v. Union Council, Ward No. 3, Peshawar Cantt. and another (19) ; Mst. Bakshi v. Basher
Ahmad and another (20) ; Muhammud Rafiq v. Muhammad Ghafoor (2l) ; Shaukat Ali v.
Altaf Hussain Qureshi and another (22) ; Muhammad Nazir v. The S. H. O. Police
Station, Shahpur and 3 others (23) ; Murad and others v. The Resident Magistrate,
Pakpattan and another (24) and Muhammad Nawaz v. Rab Nawaz and another (25).

Some features of general type in all these cases and others (serveral

whereof have already been noticed), which run through them as thread

lines are

Irrational and sometimes un/Islamic customs /attitudes, where parents

refuse to recognize legitimate and rational exercise of discretion and

(1) P L J 1974 Cr. C (Lab.) 181 (2) P L D 1973 B J 48

(3) P L D 1972 Lab. 121
(5) P L D 1975 Kar. 118
(7) P L D 1969 Dacca 47
(9) P L D 1971 Lab. 139
(11) 1979 C L C 462
(13) 1981 C L C 1651
(15) P L D 1978 Lab. 1436
(17)1983SCMR 942
(19) 1970 S C M R 753
(21) P L D 1972 S C 6 0
(23) 1973 S C M R 351
(4) P L D 1974 Lab. 445
(6) P L D 1978 Lab. 1330
(8) P L D 1970 Lab. 303
(10) P L D 1979 Lab. 154
(12) P L D 1980 Lab. 791
(14) 1982 P Cr. L J 1152
(16) P L D 1976 Lab. 930
(18)PLD1963SC51
(20) P L D 1970 S C 323
(22) 1972 S C M R 398
(24) 1973 S C M R 575

(25) P L D 1976 S C 298

judgment by female youth of not only mature age but also mature understanding, in
matter of her desire and selection of a mate ;

Young girls immature in age or if mature in age immature in understanding inveigled by

Shatanik overtures, tricks and sometimes pleading] and traps from which after the first
act it becomes difficult for them t extricate themselves

Similar cases where the first act of abduction or rape is by use of force and thereafter
there is marked tendency in some females of even respectable families, to avoid going
back to the parents ;

Suffering on account of the social antagonism that they invariably face, after their return
to the parents ;

In the earlier mentioned situations it happens at least in a few cases, that the female is
resigned to the fact to live with the abductors as a concubine and, rarely as wife ;

Page No. 30 of 55
Wherein, in order to frustrate even genuine remorse of the accused and his resort to a
lawful marriage, the parents on account of false prestige and their own social conditions,
try to falsify such a marriage ;

Attempt in innumerable cases to misuse the procedures provided b law for other purposes
: for example as already mentioned like the preparation of false affidavits and lodging a
farcical proceedings s as to create evidence of consent, Ntkah or otherwise there are cases
in the above resume where forgeries in so-called Nikahnama were also demonstrated ;
and

Lastly in many cases of this class of crime, females including those of very tender age
have been subjected to acts of cruelty besides being treated by the accused persons like
chattel.

There are other features also of relevant type which are discoverable from the afore-
recorded array of cases. It is once more emphasised that these cases excepting of course
those in connection with which observation otherwise as laying down a law has been
made, have been mentioned as a background material to understand the conditions and
social circumstances out of which the crime of the type involved in cases like the present
one, arise and the manner they have been dealt with in various forums. It would help the
trial Courts in understanding the prevalent practices and in some matters prejudices also
and take due note thereof when coming to conclusions regarding controversies of facts.
These cakes have . been mentioned also to illustrate the present and past trends in this
type of crime and how it has been dealt with in varied circumstances. So as to avoid
impressions of approval or otherwise, no further comment is necessary.

The Evidence Act as interpreted and applied by this Court in Muhammad Azeem v. The
State (1983 SCMR 1119) will also have to be applied to these cases. In doing so,
whenever necessary and when there is absolutely no A other option left even after
exhausting the power under section 540, Cr. P. C. but subject to the nature of proof about
Nikah in these cases, as already A discussed, resort may be had to the wider scope of the
word "proved" in the definition thereof under section 3 of the Evidence Act, as
interpreted by this Court in The State v, Habibur Rehman and others ( PLD 1983 SC 286)
in Said Wali v. Yagoot Khan and another (P L D 1983 SC 440) and also, in Muhammad
Aslam alias Achha etc. v. The State Criminal Appeal No. 191 of 1976, decided by this
Court on 1-10-1983.

Far-reaching consequences of wrong findings of fact on plea of marriage, 18 either way

can well be visualized. Verdict in the affirmative not only gives legitimacy to conjugal
intimacy and the off-springs but ; also, binds two persons in a solemn and pious bond
which, in turn in our faith, creates rights and obligations of such permanent nature that
the life in this World and Hereafter also are influenced. And similarly verdict in the
negative amongst others, can have serious repercussions on the questions of legitimacy of
conjugal contact, liberty/life of the accused, the life of the off-springs, in addition to the
social complications for the future of the concerned individuals.

Therefore it is on account of the foregoing reasons that a very delicat duty of recording,
admission and appreciation of evidence falls on the two Courts of fact namely the trial
Court and the Federal Shariat Court. As held by the Supreme Court in B. Z. Kaikaus v.
Federal Government of Pakistan (PLD1982SC409) and Abdul Hameed v. The State
(PLD1983SC 130) this Appellate forum functions as a Bench of the "Supreme Court" and
follows the rules and practice thereof. And keeping in view the precedent law on
controversies of factual nature the Supreme Court ordinarily is reluctant to interfere,
unless a question of law or principle of law also arises. It is thus all the more necessary
for the two Courts below to make every effort to reach the mark of perfection on" the
questions relating to facts, regarding the plea of valid marriage. Mere, surmises and
casualness where cold logic should be the rule might, a would be presently demonstrated
by examining the interaction of section 3 of Ordinance which gives it the overriding
effect and section 5 of the Family Courts Act which gives exclusive jurisdiction to the
Family Courts on questions of marriage, prove harmful in so far as the working of this
difficult branch of judicial administration is concerned. The apprehended erosion can;
however, be checked if all necessary implications are kept in view. This .very case is

Page No. 31 of 55
illustrative of some of them. The accused has pleaded valid Nikah as the defence against
the charge of zina-bil jabr punishable as tazir. The probability is that unless there is
compromise, both are likely to deny each other's claim in so far as the statements in Court
are concerned ; with the distinction that while she deposes on oath, the accused though
permitted by law to do so (see section 340 (2), Cr. P. C.) ordinarily does not enter the
witness-box and for this failure no presumption can be raised against him. But if she fails
to appear as witness unless there is explanation or she dies, a presumption can be raised
against the prosecutrix.

Muslim marriage is not an act of secrecy. Any action to keep it secret will_ give rise to
some adverse legal implications particularly when the female is of tender age. When in
secrecy she might not be able to raise protest on account of fear (particularly if she is of
tender age) or due to its utter futility as no help will be available in places of secrecy.
Previous admissions of the prosecutrtx in favour of a valid marriage if proved as
voluntarily made particularly when before a Court of law but in proceedings which are
normal and genuine, will also have important bearing. On the contrary when it is
established that false evidence of previous admission was created by the accused in
farcical proceedings it might be used against him in the negation of the plea of marriage,
as is permissible under section 8 of Evidence Act It is important for the trial Courts to
examine as to why (in the circumstances of each case) effort is made to solemnise a
marriage in secrecy at an odd place, in presence of outsiders to the exclusion of the near
ones particularly in cases of "minor" girls of such tender age that the Child Marriage
Restrain' Act, 1929, provides it as a crime. While doing so it would also need serious
consideration why all such measures were adopted and why the adult male could not wait
till at least it is not a crime to marry the girl when she has attained more maturity and to
see also whether a delay would have changed the so-called consent. The answers to these
questions would, besides being revealing, throw light on the various trends in this type of
crime. It is not necessary in this case to re-examine the larger question as to what would
be the position now, in view of the new laws and experience gained in recent years,
regarding such a marriage with a "minor" female of tender age. In a proper case the effect
of these laws and the law on various levels of age, for marriage and exercise of option of
puberty, would be examined in more detail ; and in the context of certain relevant
observations made in the case of Mauj All v. Syed Safdar Hussain Shah and another
(1970SCMR437). Direct and primary and in its absence secondary evidence can be led of
a recent marriage. If it is note forthcoming, there must be a tangible explanation in that
behalf. Once it is led, and admitted, it might be expected of the other party when afforded
opportunity, to rebut the same ; if he or she insists in its denial. Such further opportunity
can be afforded under section 540, Cr. P. C. This type, of trial in. reality would be of
mixed nature-adversary as also inquisitorial. Sections 540, Cr. P. C. and 165 of Evidence
Act are, proof positive of this) aspect of our law of criminal procedure. It does not expect
the Judge to sit mentally unconcerned when the adversaries do the exercise of contests.
Ordinarily he should also prepare a contemporaneous memorandum of the proceedings in
the Curt in his own hand which should form part of the judicial record. He has to discover
the truth even if one or the other party or both are interested in withholding it. An
analogical reference can here be made to the well-known decision of this Court in Syed
Ali Hepari v. Nibaran Molla and others (PLD1962SC502) which though rendered in a
different context throw light on an adversary contest in a case of parallel versions and in
that context; as also, on the duty of the Court not to be deterred, in discovering the truth
and reality:

The interpretation of the relevant legal provisions in this behalf would not be complete
without taking note of the Muslim law on the duty of a Judge on this question, which
aspect on the authority of Muhammad Bashir v. The State (P L D 1982 S C 1 39), can
also be a supporting consideration. The Judge is required (when the parties avoid this) to
summon important witnesses who would clarify the main issue or an ancillary matter. It
is in this connection that neighbours were often summoned by the Court if omitted by the
parties. (See Akhbar-ul-Quzat by Waki` Bin Khalf, Vol. lI, p. 21 (1366 H. Egypt). That
the same effect is Fatawa-i-Alamgiri, on the duty of a Judge in cases of theft-see Vol. It,
p. 173 (1398 H. Quetta), Doctor Muhammad Abdul Jawad Muhammad a scholar in
Islamic Law and administration of justice, in his work on Islamic Shariah and Law (1977
Alexanderia) has made a comparative study on this question of various legal systems in
the civilised world. According to his study also Islam does not permit a Judge to abdicate

Page No. 32 of 55
his functions in mistaken zeal of impartiality, in favour of the parties as if they have an
exclusive domain to engage in an inter se fight and argumentation, only. H is not a mere
mute and blind arbiter to declare the winner in the fight. He must actively participate in
the proceedings. Exaggerated and wrong notions of such lack of concern (in the so-called
impartiality) is being criticised by some western jurists also and is being progressively
opposed in the middle eastern countries.

The Nikah marriage can also be proved in absence of direct evidence thereof amongst
others by admissions, the acknowledgement of off-springs as legitimate, and amongst
other modes, cohabitation as man and wife for a period of time known to others. Though
some of them might not be possible in this case but it will be unlikely that the Nikah as
alleged having taken place recently, there would be no direct evidence to be produced in
Court.

The implications of a finding on the basis of mere doubt (which as already held is not
permitted by the relevant law), are far-reaching. Such a finding on mere suspicion or
doubt or to put it more formally of "two equally strong possibilities"-implying the
existence as also '.he non-existence of the fact in question, as was held by this Court in
Sher Hassan v. The State (PLD 1959SC480), would not be permissible regarding the plea
of `valid marriage' in a case of zina liable to Tazir. Such d finding with both negative and
positive implications if given by the Court, besides being against the rationale in the case
of Ghulam Shabir Shah, will create impossible situations for the r parties, and their
children and next-of-kin for all times to come. And in particular it would be so, with the
weaker sex. She might have to live a life of drudgery and always in the state of
impossibilities in the affairs of matrimony for no fault of her in the matter. And when she
marries, there is fear of charge of adultery, because of the above discussed finding with
its uncertain implications. The suggestion that the Family Court might fill the gap and
remove uncertainty, as will be explained presently, is not as practicable as it looks on the
face.

In order to illustrate the point further, at this stage it is not out of place to take note of
another decision of the Federal Shariat Court in a similar case, which also came up in the
Supreme Court.
It is Din Muhammad v. The State Cr. A. No. 61-L of 1981. decided by Federal Shariat
Court on 26-1-1982, in a similar background of law and facts. It also involved the plea of
marriage as defence in a case of abduction and zina liable to Tazir. It will be instructive to
reproduce the relevant parts of the judgment therein

"Arrora (P. W. 5) father of Mst. Khursbid Bibi gave the F. I. R. at 5-40 p. m. in Police
Station Khoshab on 17-10-1979 stating that his daughter Mst. Khurshid Bibi (P. W. 3)
was taken away by force by three persons i.e. Din Muhammad, Muhammad Latif and
Muhammad Asghar. The first two of these persons went to the cotton field where she was
picking cotton, dragged her to the car and seated her in the back seat of the car which
immediately was driven away despite hue and cry raised by her. She was recovered when
she was found along with the appellant at Bus Stand of Chak No. 46 M. B. on the 23rd
October, 1979. The police arrested the appellant also then and there.

The police produced Mst. Khurshid Bibi before the Magistrate on 24-10-1979 for her
examination under section 164, Cr. P. C. but that statement is not on record. She was also
produced for medical examination on the same day before Lady Dr. Shamim Barlas who
found her to be accustomed to sexual intercourse. According to her, the hymen was
absent and there were old tears at 6 & 9 O'clock position. The vagina admitted two
fingers and examination was not painful. Labia majora and minora were pink and loose,
breasts were well developed and firm. She also found that there was no mark of struggle
on any part of the body.

Mst. Khurshid and Muhammad Yaqoob were produced in support of the prosecution
story about forcible abduction while Mst. Kurshid made a statement involving the
appellant in a case under section 10(3) of the Ordinance since she stated that she had been
subjected to zina- bil jabar.

Page No. 33 of 55
The appellant in his own statement said that he married Mst. Khurshid Bibi with her free
consent. He filed a nikahnama. This was suggested to Mst. Khurshid Bibi as well as to
Arrora (P. W. 5) her father but both of them denied the marriage.

It has come on record that Mst. Khurshid Bibi had filed a suit for jactitation of marriage
which was decreed in her favour. Judgment of this case has been placed on record.

The appellant also placed on record the statement of Mst. Khurshid Bibi made before the
Family Court as well as the opinion of an expert of questioned documents according to
whom the thumb-impression on the nikahnama was that of Mst. Khurshid Bibi.

The learned Sessions Judge found that the charge under section 11 was not proved.
Despite the fact that there was no evidence to bring the case within the scope of section
16, he convicted the appellant under section 16. He convicted him under section 10(2)
which means that he was convinced that the appellant committed zina with Mst. Khurshid
Bibi with her consent.

During the arguments the learned counsel tried to show from the nikahnama as well as
the Expert's opinion before the Family Court that the appellant was married. He also tried
to criticise the judgment of the Family Court in the above suit. But we are of the view
that the judgment cannot be considered since being a piece of evidence it ought to have
been put to the appellant in his statement under section 342, Cr. P. C. Since he had not
been given an opportunity to explain it, we cannot rely for our findings on-this judgment.
The statement of Mst. Khurshid Bibi before the Family Court could be relevant only
under section 145 of . the Evidence Act for contradicting her but no part of this statement
made in that Court was put to her. In these circumstances we cannot take. into
consideration that document. The other document. also cannot be considered since it was
the duty of the appellant to prove his nikah before the trial Court also.

The learned counsel argued that the nikahnama itself is *a public document. It is not
necessary for us to give a considered opinion on this question but the fact remains that in
view of the denial by Mst. Khurshid Bibi of the alleged marriage and of her being a party
to the nikahnama, the factum of nikah could have been proved by the evidence of at least
those who are signatories to the nikahnama. "

That case was remanded to the trial Court for recording direct evidence on nikah and also
for consideration of the decree for jactitation of marriage, by the Family Court passed in
favour of the prosecutrix therein.

Some observations are necessary with regard to certain remarks by the Federal Shariat
Court in the judgment of the cited case. It is noted therein that the issue of jactitation of
marriage having been decided by the Family Court had been brought in appeal before the
District Judge by the accused presumably to show that the decision of the Family Court
was not correct and that a valid Nikah had been established in fact and law. A request was
made to the Federal Sbariat Court for adjournment so as to await the deci-i sion of the
Appellate Court regarding the final position under the Family) Courts Act regarding the
Nikah. This adjournment was refused on the ground' that it was based on a mere
hypothetical proposition ; namely, that if the l accused succeeded before the forum
provided by the Family Courts Act i `t would react on the results of the criminal cases.
This question has to be' examined in the present case also. The approach of the Federal
Shariat Court regarding the question raised before it in that case as it was based on
proceedings under the Family Courts Act, with respect, it is pointed out, was not merely a
hypothetical one so as to be ignored.

Another remark in that judgment that when the alleged Nikahnama was produced by the
counsel for the accused, it should not have been`exhibited by the trial Court without
formal proof thereof as according to the learned Judges "there was no visible indication
about the marriage of the parties". If it was a frivolous plea, no further comment would
be necessary but in case it was otherwise, then the Nikahnama could have been exhibited
and placed on record with a statement of the accused person himself in that behalf. And if
it was also essential for the just decision of the case, regardless , of the fact whether the
accused would have produced evidence in connection with the Nikahnama, it would have

Page No. 34 of 55
become the duty of the Court under section 540 (second part) to summon the evidence
indicated in the Nikahnama,l itself. This is what was ultimately done by the learned
Judges of the Federall Shariat Court. They felt that in the circumstances of the case it was
necessary that the trial Court should record full evidence of the appellant in defence and
he should be provided with an opportunity "to prove his nikah independently of the
proceedings, before the Family Court".

In so far as whether or not the proceedings before the learned trial Judge in the criminal
Court were assumed by the Federal Shariat Court as independent of the proceedings
before the Family Court, this question would require elaborate and serious consideration.

Yet another remark made in the said judgment by Federal Shariat Court needs to be
noticed. It is to the effect that the judgment of the Family Court "though not binding is
relevant". It is yet to be seen whether on account of the interaction of the two relevant
laws and the specific provisions contained therein regarding the jurisdiction of the two
forums, and the prevailing view regarding the application of the Evidence Act, the
finding of the Family Court in that behalf would not be binding.

Although the aforenoted questions are a part of the other larger controversy in this case
which would be presently attended to, it is proper here to mention that the Family Courts
Act, 1964 was enacted, as its preamble and the Schedule show, to create a special court
for the decision of the `matters' mentioned therein. The provisions of the C. P. C. and
Evidence L . Act were generally speaking not made applicable to the trials before the Z
Family Courts. And instead, the Court was given a real inquisitional Jurisdiction by
introduction of a special procedure including an obligatory effect to discover the
possibilities of amicable settlement. It would require further examination whether the
condition in Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 regarding
complaint by a specified person, was not intended to acknowledge the value of such
settlement in disputed cases on Nikah as well.

As has already been discussed, in this case the trial Court failed to perform its duty to
record and admit necessary evidence and also failed tol act under section 540, Cr. P. C.
first and also second part. The approach of the Federal Shariat Court in appeal was
primarily conditioned by what wafound as evidence on record and the findings of the trial
Court thereon-1A Moreover, with respect, it did not approach the special plea of valid
nikah h raised by the defence in its true perspective and proceeded on such suppositions
and conclusions which as explained and discussed in this judgment, are not permissible
under the relevant law. The case should have been remanded by Federal Shariat Court to
the trial Court for fresh trial as was done by it in Din Muhammad v. The State already
noticed ; but in accordance with the law as discussed in this judgment. It has to be
ordered accordingly.

The matter, however, with the above order would not end. It is also essential to resolve
another controversy which has presented itself when studying another branch of law (the
Family Courts Act, 1964) during this preparation of this judgment. It relates to the
interaction of the plea (and decision thereon) of valid nikah as defence in the case of zina
under the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 and the
provisions of the. Family Courts Act, 1964 ; which confers exclusive jurisdiction on the
Family Court to decide all matters included in the Schedule thereto which are as follows

"5. Jurisdiction.-Subject to the provisions of the Muslim Family Laws Ordinance, 1961
and the Conciliation Courts Ordinance, 1961 the Family Courts shall have exclusive
jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule.

Schedule.-In the Schedule the following matters are mentioned

"(1) Dissolution of marriage ;

. (2) Dower ;

(3) Maintenance ;

Page No. 35 of 55
(4) Restitution of conjugal rights ;

(5) Custody of children ;

(6) Guardianship, and

(7) Jactitation."

It is also necessary to reproduce here section 3 of the Offence of Zina (Enforcement of

Hudood) Ordinance, 1979. It reads as follows :

"3. Ordinance to override other laws.-The provisions of this Ordinance shall have effect
notwithstanding contained in any other law for the time being in force."

In the light of even the bare study of section 5 and the Schedule to the Family Courts Act
and section 3 of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979,
the following questions would need to be answered

"(1) When a superior Court or for that matter (finally) the Supreme Court decides the
issue of nikah in a criminal case of zina, will the Family Court be able to decide it again ;
and whether principle of general res judicata applied in recent cases on Rent Restriction
law and Settlement writ cases vis-a-vis the civil Courts, will not be attracted.

(2) Whether the judgment of one or the other forum will be relevant under the Evidence
Act. 1f so which forum will have precedence at trial level.

(3) What are the implications of section 3 of the Offence of Zina (Enforcement of
Hudood) Ordinance of 1979 vis-a-vis section 5 read with Schedule of the Family Courts
Act ; whether and bow they react on each other.

(4) When the plea of valid nikah is raised before a criminal trial Court what are its
options?

(i) Stay criminal case till decision by Family Court of suit already pending.-Whether the
Supreme Court ruling in the case of Muhammad Akbar v. The State and another (P L D
1968 S C 281) will not cover the situation.

(ii) If suit is not pending whether it is possible to ask the party raising plea to file one ;
and in case of refusal to do so can a presumption be raised against the party concerned, if
so of what type?

(iii) If direction is not complied with, can a reference be made to the Family Court?

(iv) Whether an interpleader suit can be filed in the,Family Court or can a case be sent for
opinion thereof?

(v) Should it transfer to itself the suit under Family Courts Act if pending/ instituted and
decide both matters contemporaneously ? and

(vi) Whether the guidelines given by this Court in the case of Nur Elahi v. The State P L
D 1966 S C 70 should be followed by the trial Court by way of analogy?

(5) If in the further appeals/writ petitions, results are different in the Federal Shariat Court
and the High Court, how the conflict is to be resolved and finality reached?

(6) Whether the law laid down by the Federal Shariat Court in the case of Din
Muhammad v. The State (Criminal Appeal No. 61/L of 1981, decided on 26-1-1982),
already noticed, regarding the nature and effect of decision, by the Family Court on
questions of n1kah, on the same plea before the trial Court in the criminal case, is
correct ; and lastly

Page No. 36 of 55
(7) Whether the provisions in Qazf Ordinance, 1979 regarding requirement of a
complaint by the specified person, for launching prosecutions thereunder, has any bearing
on the foregoing questions."

Although no direct case is available resolving any of those questions, enough precedent
law has been discovered which would throw some light on them. The Family Courts Act,
1964 provided for speedy trial of family matters including matrimonial disputes. Now for
nearly two decades, its working, has been streamlined through precedent law also.

This branch of case-law (and the other referred to earlier), dug out with the assistance of
the concerned Court official, not having been found enough to answer these questions we
also called upon the two learned counsel appearing for the parties in this case to assist the
Court in that behalf. They as stated by them having worked together on these questions
have taken a joint position which has been stated and explained by the learned counsel
for the respondent accused as follows :

"That the judgment in a criminal trial can never be relevant in a civil case before a civil
Court even if it is in respect of the same controversy and between the same parties.
Sections 41 to 44 of the Evidence Act together with Monir's Commentaries thereon in its
Vol. 1, 1974 Edition, at page 572 were also referred in this behalf ; with a further
statement that section 41 of the Evidence Act read in the context of the West Pakistan
Family Courts Act, 1964, clearly implies that the Family Court, when determining the
questions of marriage under the said Act, shall have to be treated as a competent Court
exercising matrimonial jurisdiction. But the judgment by a. Family Court, in similar
circumstances. will be relevant during the criminal trial in cases of zina only if the plea of
a valid nikah is involved before both the forums; with the further condition that the
parties concerned therein were or are admittedly the husband and wife or there is an
allegation /denial/ assertion of the relationship of husband and wife. In other words, it
was further explained, the judgment of the Family Court would not be relevant against
other accused persons standing trial for an offence in which the relationship of husband
and wife is not at issue."

Learned counsel took up the position that "Section S of the Family Courts Act read with
item 7 of Schedule (Jactitation of Marriage) does not confer exclusive jurisdiction on the
Family Court to decide the existence or otherwise of a valid marriage when the same is
disputed and is the subject-matter of a trial before a criminal Court as a disputed issue. In
this behalf support was sought from the provisions of section 21 of the Family Courts Act
which provides that nothing in that law shall affect the provisions of the Muslim Family
Laws Ordinance, 1961 or the rules framed thereunder."

' Notwithstanding the foregoing position regarding jurisdiction of the Family Court taken
by the learned counsel, it was however vividly realised and acknowledged that, "the
questions raised earlier present a formidable difficulty ; which it was further asserted
could not be resolved except through proper amendments to be made in the relevant laws.
It will make it possible in cases like the present one, that the trial of the issue on the plea
of valid marriage in matrimonial jurisdiction, as also; its trial by a criminal Court when it
is involved therein as a genuine issue, should be held by the same person exercising the
power and jurisdiction of both the forums. It was accordingly opined that even two
separate trials would not be necessary, as is provided in a comparable law namely section
14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 which apart from
containing a penal provision also provides for dissolution of marriage. It was suggested
that an amendment be made in section 14 so as to make it applicable to not only the cases
where the relationship of husband and wife is admitted but also to those cases where it is
asserted and denied. The concrete proposal being that when in a criminal trial a man
accused of zina pleads the defence of valid marriage and the prosecutrix denies it and
makes an allegation of zina, both of them should be made to go through the processes of !
i'an as provided in section 14. This might, it was surmised obviate the need for holding
separate or joint trials regarding proof or otherwise of the marriage also."

Regarding simultaneous pendency of two trials on the same issue of marriage one before
Family Court and the other before the criminal Court it was suggested "that the
proceedings before the criminal Court could be stayed so as to await the decision by the

Page No. 37 of 55
Family Court provided it is held that the judgment of the Family Court would be
conclusive and binding on all parties as also the Courts concerned by virtue of the
application of section 41 of the Evidence Act. A difficulty however was expressed in
cases when the two Courts are situate in two different districts of the same province or in
two different provinces. As to the complications regarding examination of witnesses not
cited before one or the other Court, it was suggested that in so far as the criminal Court is
concerned, it could resort liberally to the provisions contained in section 540, Cr. P. C."

When asked whether any case-law is available and/or to be cited, the answer by the
learned counsel was in the negative, except of course the reference already made to
Monir's Commentary on section 41 of the Evidence Act. The particular part whereof with
the footnotes indicating the relevant laws and case-law is reproduced below :

Evidence Act, section 41

"Relevancy of certain judgments in probate, etc. jurisdiction.-A final judgment, order or

decree of a competent Court, in the exercise of probate, matrimonial, admiralty or
insolvency jurisdiction, which confers upon or takes away from any person, any legal
character, or which declares any person to be entitled to any such character, or to be
entitled to any specific thing, not as against any specified person but absolutely, is
relevant when the existence of any such legal character, or the title of any such person to
any such thing, is relevant.

Such judgment, order or decree is conclusive proof

That any legal character which it confers accrued at the time when such judgment, order
or decree came into operation ;

that any legal cbaracter, to which it declares any such person to be

entitled, accrued to that person at the time when such judgment (order or decree) declares
it to have accrued to that person ;

that any legal character which it takes away from any such person ceased at the time from
which such judgment (order or decree) declared that it bad ceased or should cease

and that anything to which it declares any person to be so entitled was the property of that
person at the time from which such judgment (order or decree declares that it had been or
should be his property."

Monir's Commentary (page 572)

Matrimonial jurisdiction.-Courts in Pakistan are invested with matrimonial jurisdiction

under various special enactments {( *Act IV of 1869 (Divorce Act) ; Act XV of 1872
(Christian Marriages Act) ; Act XV of 1865 and Act XXXVIII of 1920 (Parsi Marriage
and Divorce Act) ; Act XXI of 1866 (Native Converts' Marriage Dissolution Act) ; Act III
of 1872 (Civil Marriage Act). } In addition to the special Acts, an ordinary civil Court
has, under jurisdiction under these , the general law, jurisdiction to decide questions of
matrimonial status U between Hindus and Muhammadans according to their respective U
personal laws, but such adjudications are not judgments in rem. Thus, where A, a non-
Christian, gets an ex parte decree for restitution o conjugal rights against B, the decree
will be binding between A and B, but a third person will not be bound by the decision,
nor will such judgment be conclusive of marriage in proceedings between B and a third
person* Ma po Khin v. Ma Shin, 1933 R 250 ; but see Kanhya Lai v. Radha Churn, 7 W
R 338 (F B).. A decree granted by a Court under section 42 of the Specific Relief Act that
the plaintiff' in that suit was no longer the wife of the defendant is not a judgment passed
in the exercise of matrimonial jurisdiction and is not, therefore, admissible as a judgment
in rem under section 41 of the Evidence Act.* Muncherji Cursetj% Khambata v. Jessie
Grant Khambata, 1935 B. 5.

Judgment of a Court of matrimonial jurisdiction conclusive against strangers on questions

of status but not on grounds for the dissolution of marriage, etc.-The expression "legal

Page No. 38 of 55
character" when it has reference to a judgment of a Court of matrimonial jurisdiction
means the status of widowhood or wifehood.( Mi Ngwe Zan v. Mi Shwe Taik, 10 I C
987,) Section 41 enacts that a final decree of a competent Court, in the exercise of
matrimonial jurisdiction, which confers upon or takes away from any person any legal
character not as against any specified person but absolutely, is relevant when the
existence of any such legal character is relevant, and is conclusive proof that any legal
character, which it takes away from any such person, ceased at the time from which such
decree declares that it had ceased or should cease. Decrees by Courts of competent
jurisdiction for the absolute dissolution of marriages are no doubt binding upon third
parties. If a Court of competent jurisdiction decrees a divorce or sets aside a marriage
between Muhammadans or Hindus, it puts an end to the relationship of husband and wife,
and is binding upon all persons that, from the date of the decree the parties cease to be
husband and wife. This is not upon the principle that everyone is presumed to have had
notice of the suit, for, if they had notice, they could not intervene or interfere in the suit,
but upon the principle that when a marriage is set aside by a Court of competent
jurisdiction, it ceases to exist, not only so far as the parties are concerned, but as to all
persons ; a valid marriage causes the relationship of husband and wife, not only as
between the parties to it ; but also as respects all the world ; a valid dissolution of a
marriage, whether it being the act of the husband, as in the case of repudiation by a
Muhammadan, or by the act of a Court competent to dissolve it, causes that relationship
to cease as regards ail the world. "Matrimonial jurisdiction" of "competent Court"
includes judgments and decrees passed by a civil Court in exercise of its ordinary civil
jurisdiction. A Matrimonial decree passed by a competent Court is judgment in rem and
has binding effect on criminal Courts. A judgment of a competent Court dissolving or
annulling a marriage is conclusive proof of the fact that the relationship of husband and
wife ceased from the date of the decree of dissolution, and in the case of a decree of
nullity, that the marriage was null and void. The judgment is conclusive that the parties
are no longer husband and wife, but it is not conclusive, nor even prima facie evidence,
against strangers that the cause for which the decree was pronounced existed. For
instance, if a decree between A and B were granted upon the ground of the adultery of B
with C, it would be conclusive as to the divorce, but it would not be even prima facie
evidence against C that he was guilty of adultery with , unless he were a party to the suit.
So if a marriage between .Muhammadans were set aside upon the ground of
consanguinity or affinity, as, for instance, in the case of a Muhammadan, that the
marriage was with the sister of another wife then living, the decree would be conclusive
that the marriage has been set aside and that the relationship of husband and wife has
ceased, if it ever existed ; but it would be no evidence as against third parties for
example, in a question of inheritance, that the two ladies were sisters."

It needs to be mentioned that although the learned counsel cited page 571 but to be fair to
them what they really meant was the Commentary under the two relevant headings at
page 572 the discussion whereunder concludes at page 573).

The assistance rendered by the learned counsel no doubt is with full realisation of the
gravity of the problem. Notwithstanding, their valuable suggestions regarding
amendment of the law for which a different exercise might be necessary by other forums,
we after careful consideration of all the questions involved are of the view that even
without amendment, as the law at present stands, the controversy can be resolved. This
however by no means would imply that suitable amendments) would not be necessary so
as to make the procedures less cumbersome and embarrassing in some situations a least
for the parties concerned. On the other hand the sooner they are made; the better would it
be for easy flow of justice in matrimonial cases.

The main amendment (other consequential amendments notwithstanding) preferably

should be in the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979
with reference to the possible defence of valid Nikah in the trial of the relevant offences.
It can be by adding a provision after section 20, which enacts the procedural law for the
trials, by reference to Cr. P. C. ; so as to provide therein, that whenever such a plea is
raised the trial Judge shall proceed to decide this issue in accordance with the procedure
prescribed in this .behalf in the Family Courts Act with the exception of specified
provisions thereof. It should be made subject to sections 105 and 106 of Evidence Act. or
by its direct incorporation ; so as to make it incumbent on the accused to establish the

Page No. 39 of 55
defence plea of an exception even if it forms part of the definition of the offence. A
consequential; amendment providing finality to the judgment on this issue would- obviate
fresh trial before another Family Court. It would also have salutary effect on resolution of
matrimonial issues when these arise in criminal cases, because the settlement thereof
would also be aided by the procedure of compromise provided in the Family Courts Act.
The greatest advantage will be in the saving of time and expense, besides the avoidance
of cumbersome legal involvements and embarrassment in multiple trials before different
forums, of same issues, relating to matrimonial status. As to its feasibility, on principle,
there might not be any objection because, a somewhat similar provision already exists in
section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance No. VIII of 1979.

The foregoing suggestion however, as indicated earlier does not imply that if that is not
acceptable or practicable, the existing law does not provide a lawful way out, though of
course not as efficacious as it could be through proper amendments.

Be that as it may the questions posed earlier can be resolved on the basis of the existing
law. However it is a different matter whether or not it* would be necessary to decide; a11
or any one of them finally, in this judgment, They would thus be taken one by one ; but
before doing the same it is necessary to note and survey the case-law, which as already
mentioned has been possible t0 discover, with the assistance of the Court official.

The main features of the Family Courts Act which are relevant in the present context
would be : One, the exclusiveness of the jurisdiction of the Family Court regarding
matters enumerated in the Schedule thereto ; and two, jactitation of marriage. The cases
on these two aspects can be noticed together.

The term 'jactitation' mentioned at item No. 7 of the Schedule was added thereto by an
amendment made in 1969. It came up for interpretation and consideration before superior
Courts in several cases. In Mst. Arnina Begum v. Ghulam Nabi and 2 others (PLD 1974
Lah 78), jactitation of marriage was held to mean literally "false pretence" of being
married. It was further held that the suit in regard thereto could not be confined to a
declaration that there was no marriage. There can be different types of suit in the field of
jactitation and it would include also a suit for declaration that a person posing himself to
be a spouse (husband or wife), was doing so falsely. In other words any assertion by a
patty regarding marriage and its denial can be brought before the Family Court through a
suit for jactitation of marriage. It was also held that such suits which are based on the
denial of the defendant regarding marriage are not now cognizable by a civil Court on
account of section 5 of the Family Courts Act. Similarly in Tajoo v. Mst. Sattaran (PLD
1974 Lah 105), it was observed that a suit for declaration that the defendant is not the
husband or wife of the plaintiff but the defendant alleges so is a suit for jactitation of
marriage and was entertainable in a Family Court. In Mst. Zohran Bibi v. Manzoor
Ahmad and 2 others (PLD 1975 Lah. 318), it was held theft the Family Courts Act laid
stress on expeditious settlement in disposal of matrimonial disputes. Regarding jactitation
of marriage it was observed that in a suit where it was asserted that the defendant
(plaintiff's wife) had been divorced through an effective Talaq and that she could no more
claim to be married to the plaintiff in an existing wedlock, was a suit for jactitation of
marriage and was exclusively triable by a Family Court. The judgments in that case of the
Civil Court and its appellate Court (on the civil side although presided over by the same
person who was empowered to act as Family Court but) without the consciousness of the
law contained in the Family Courts Act, were set aside as without jurisdiction. In .'fist.
Sakina and 2 others v. Nasir Ali (4), a somewhat contrary view was expressed namely
that although a suit for jactitation of marriage could be filed in a Family Court and it
could grant a a declaration whether matrimonial relationship existed between contestants
but when the parties other than husband and wife raise such a claim, the suit will have to
be filed before a civil Court under section 54 of the Specific Relief Act ; mainly because,
the prohibitory decree would be claimed under the said law and that the Family Court
was not competent to grant the same. In that case in a, suit before a civil. Court the
persons who Were alleging themselves spouses inter se and also others who supported
them were jointly sued for a relief in the nature of jactitation of marriage. The civil Court
held that it was not competent and that it fell within the jurisdiction of the Family Court.
The first appellate Court upheld the decision and the High Court notwithstanding the
expression of the aforenoted opinion upheld the decision of the two lower Courts. It was

Page No. 40 of 55
not clarified as to whether two different forums would be able to decide the same subject-
matter involving same issues although the main defendant would be the same. A more
clear enunciation of law in this behalf can be found in Nazar Qasim v. Mst. Shaista
Parveen (1979 C L C 462). A suit for jactitation of marriage was held to imply the object
to perpetually silence a false allegation or claim of marriage. In this case in a suit for
jactitation of marriage consequential relief was sought for the cancellation of a
Nikahnama as forged one. It was held that it did not change the character of the suit
which remained as for jactitation of marriage and its trial by- a civil Court was barred.
Reliance in this case was placed on Mst. Fahmida Bib! v. Mukhtar Ahmad and another (P
L D 1972 Lah 694) wherein it was held that it is a well-settled law that though a Court
may not have jurisdiction to entertain a suit in respect of certain matter yet it is competent
for the Court to entertain a plea based on that, in defence when the determination of that
question is necessary for the decision of the suit itself which is within its exclusive
jurisdiction. Accordingly a Family Court could not refuse the decision on similar
questions if raised before it by any party. Thus an issue regarding jactitation of marriage,
could be competently raised before the Family Court even by a defendant, when it is not
the subject-matter of the suit filed by the plaintiff. It is in this wide context that in the
case of Manzoor Ahmed v. Muhammad Nawaz Siddiqui and 5 others (PLD 1975 Lah.
739), Karam Elahee Chauhan, J. as he then was, observed and held that the existence of a
wedlock at the time of suit is not necessary for claiming the dower because an ex-wife
who is divorced having contracted a second marriage and children from that wedlock,
cannot be estopped for a Waiving her dower money from her ex-husband if she files a suit
before Judge Family Court. In that respect she cannot be told that "since your wedlock
with the ex-husband at the time of the suit is no longer subsisting, therefore, your claim
has ceased to be a dower-claim and cannot be gone into by Judge, Family Court". The
nature of the claim is one thing but the time at which it is being claimed is another thing.
Since the nature of the claim both in the case of an ex-wife or heirs of an ex-wife is
essentially the recovery of "dower" that remains so always and the mere fact that it is
being claimed by the heirs of the deceased wife does not detract anything from its real
character. The various items of the Schedule referred to the true nature of the subject-
matter of a suit and not the persons who may file or institute it.

From these weighty observations it can safely be concluded that a suit, regardless of its
timings can be filed by a person other than the spouses involved in the jactitation of
marriage. And so can a suit be filed by the spouses, against third party, with a view to
prevent them from denying their marriage.

In a similar case Abdur Rashid and another v. Mst. Shaheen -Bibi and 2 others (PLD
1980 Pesh 37), while declaring that section 5 read with the Schedule of the Family Courts
Act confers an exclusive jurisdiction on the Family Court to decide questions relating to
dower ; it was held that Court or its appellate forum would be competent to determine all
questions relating thereto . whether the property involved was movable or immovable.
Thus in this case questions relating to property as also the Nikah and Kabeen-nama were
considered as falling within the jurisdiction of the Family Court directly or in any case as
questions ancillary to the subject-matter which fall in its jurisdiction. In Sabiha Bibi v.
Hussan Din (P L D 1978 Lah. 701), it was held that notwithstanding the provisions
contained in section 7 of the Family Laws Ordinance regarding some matrimonial
questions falling within the ambit of the local council, the jurisdiction of the Family
Court under section 5 of the Family Courts Act to entertain the suit for dissolution, could
not be held to have been ousted by the said provision. And the Family Courts Ordinance
would continue to have operation where the parties do not want the decision through the
intervention of the Family Court. Nevertheless it was held that Family Court does have
exclusive jurisdiction in so far as questions mentioned in the Schedule are, concerned.

In Najma Sadeque Rasool v. Munir Hamid Rasul and another (1), it was ruled that the
provisions of section 491, Cr. P. C. for obtaining custody of a child were not attracted
when according to section 5 of the West Pakistan Family Courts Act, 1964 the question of
custody of children fell exclusively within the jurisdiction of a Family Court. Reliance in
this case was placed on Adnan Afzal v. Captain Sher Afzal (2).

In another case regarding exclusiveness of the jurisdiction of Family Court Ghulam Sabir
v. Chairman, Union, Committee and others (3), it was held that the Chairman of a Union

Page No. 41 of 55
Committee had no jurisdiction to deal with an application of a divorced wife regarding
dower and that the question fell within the exclusive jurisdiction of the Family Court. It
was held by. one of us (Shafiur Rabman, J. as he then was) in Khan Asadullah Khan and
others v. Sheikh Islamud Din (4), that matters specified in the Schedule to the Family
Courts Act fell within the exclusive jurisdiction of the Family Court by virtue of section 5
of the Act and that the right to sue in that behalf would not be extinguished by the death
of the person concerned and that it survives in such a manner so as to entitle the heirs to
continue the proceedings. It may be observed that in such a situation third parties would
be arrayed in litigation before the Family Court in matters whi :h are exclusively within
its jurisdiction. There are several cases under section 488 of Criminal Procedure Code in
all of which the question arose whether section 5 of the Family Courts Act would effect
the jurisdiction under section 488 of the Cr. P. C. They are:

(1) Syed Muhammad Kazim Hussain v. Mst. Aziz Fatima and another P L D 1971 Kar.
759.

(2) Abdul Ghafoor v. Mst. Noor Begum 1972 P Cr. L J 909.

(3) Munshi v. Mst. Rashida Bibi 1972 P Cr. L J 1311.

(4) Mujtaba Hussain v. Mst. Ather Jehan and another 1972 P Cr. L J 351.

These cases, it can safely be presumed, could as well be decided on the basis of the rule
laid down in Adnan Afzal's case which had approved the Peshawar case of Alifdin v.
Shaukat All (5). The view taken in that behalf though in a different context in
Muhammad Amin v. Mst. Surraya Begum and 2 others (6) would have to be read subject
to what was held by the Supreme Court in the case of Adnan Afzal. ,'

The ratio in the case of Manzoor, Hussain v. Manzoor Hussain (7) decided by one of us
(Muhammad Afial Zullah, J. as he then was) runs somewhat counter to what has been
stated and discussed in the present

(1) 1973 P Cr. L J 98 (2) P L D 1969 S C 187

(3) P L D 1981 Lab. 232 (4) P L D 1978 Lab. 711
(5) P L D 1969 Pesh. 62 (6) P L D 1970 Lab. 475
(7) P L D 1974 Lab. 202

judgment and several other judgments regarding exclusiveness of the jurisdiction of a

Family Court conferred under section 5 of the Family Courts Act. It was held therein that
the question of subsistence of marriage was within the competence of the Criminal Court.
That question had arisen in quashment of proceedings : whether or not relief could be
sought by diverting the ordinary procedure contained in the Criminal Procedure Code. It
was in that context that when a question of marriage, was raised in those proceedings, it
was left to be determined by the-Criminal Court in accordance with law in the ordinary
proceedings under Criminal Procedure Code (and not under section 561-A, Cr. P. C.). In
so far as that context is concerned, it would mean also that the ordinary Criminal Court,
when dealing with the issue of marriage, might also be .competent to decide in the
manner that the same was to be left so as to be determined by the Family Court. In that
context only the judgment might be correct. Otherwise, in the light of the discussion in
this judgment, the said case cannot be held to have laid down correct law ; if a meaning is
sought to be given to it with the implication of the jurisdiction of any other Court on
matters mentioned in the Schedule to the Family Courts Act, being exclusively triable by
a Family Court. And indeed it would be so because the said provision was neither noticed
nor was relevant in that judgment. The case of Nazar Qasim v. Mst. Shaista Parveen (1)
can also be noticed in connection with another important aspect namely the true import of
section 23 of the West Pakistan Family Courts Act which lays down that a Family Court
would not be able to question validity of a marriage which is registered under the
provisions of the Family Laws Ordinance. It was held that this Section assumes the
validity of marriage only if it satisfies certain conditions but would not prevent a party
from showing either that the marriage had not taken, place at All or that fraud had been
committed in connection therewith or or that matter a Nikahnama was a forgery and/or
that the signatures thereon were forgery. Accordingly it was found that such a marriage or

Page No. 42 of 55
otherwise invalid marriage, might not be held to be beyond challenge before a Family
Court merely because it was solemnized in accordance with the provisions of the Family
Laws Ordinance. Moreover, it might be added such a marriage and its registration even if
l, purported to be under the Family Laws Ordinance, could not truly in law R be treated
as in accordance with the provisions thereof if the same was the result of fraud,
misrepresentation, forgery and the like infirmities.

In Adnan Afzal's case it was ruled by this Court that "the combined effect of sections 5
and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in
any way, diminishing or curtailing the rights already possessed by a litigant with regard
to the scheduled matters. Looking at the provisions as a whole it is therefore clear that all
that the Family Courts Act has done is that it has changed the forum, altered the method
of the trial and empowered the Court to grant better remedies. 5 It has, thus, in every
sense of the term, brought about only procedural changes and not affected any
substantive right". Thus two clear indications emerge from this decision : firstly, the
exclusiveness of the jurisdiction of the Family Court, in so far as all procedural matters
are concerned in connec. tion with the scheduled matters ; and, secondly that the same
did not effect the substantive right of the party, which of course would continue to be
governed by the substantive law governing person or the situation.

It is now possible to answer all the questions posed earlier with reference to the existing
law. It is true that on account of the law laid down in some cases to be presently noted, it
is not possible to assume that after the decision by a Superior Court on the same question
between same parties, the Family Court would be able to set at naught that decision
insofar as the practical aspect of the matter is concerned. But this situation would in view
of what is to follow hereinafter, is not likely to arise. And if. it arises in a rare l, given
case it could be resolved in accordance with the principles underlying the decision herein.
The cases referred to above are : -

(1) Abdul Majid and others v. Abdul Ghafoor Khan and others P L D 1982 S C 146.

(2) Asif Jan Siddlqi v. Government of Sind and others P L D 1983 S C 46, and

(3) Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064.

Together with the above answer to question No. 1 it is necessary to answer the next one
regarding the effect of provisions of the Evidence Act. Section 41 with relevant part of
Monir's Commentary thereon, has already been noted. It is also necessary to consider the
same with sections 11, 13 and 35 of the Evidence Act with Commentary thereon by
Monir at pages 143, 144, 145, 563, 564 and 588 of the same 1974 Edition of the book. A
case cited at page 563-564 by the author reported as Muni v. Habib Khan (1) it is with
respect pointed .out, does not lay down correct law in the context of the laws for the time
being in force, including the Family Courts Act, 1964. The learned author noted this case
and made his own comment as follows

"M filed a suit against H for the following reliefs :

(a) A declaration that her marriage with the defendant performed during her minority by
her maternal aunt, had come to an end by her repudiation on attainment of puberty.

(b) A declaration that the defendant had terminated the marriage six months before the
suit by an oral talaq ; and, in the alternative ; a decree for dissolution of marriage on the
ground of cruelty.

During the pendency of the suit, H filed a complaint under section 498/ 300, P. P. C.
against C and others. M applied under section 561-A, Criminal P. C. for 'stay of
proceedings in the Criminal Court pending the decision of the civil suit on the ground
that the question involved in the civil suit as well as in the criminal proceedings was the
same, namely, whether the relationship of husband and wife subsisted between M and H.
The point for decision was, whether the judgment of the Civil Court would be relevant or
conclusive evidence in the criminal proceedings. Held, that the proceedings in the civil
court could not have any effect upon the criminal proceedings, for so far as the decree for

Page No. 43 of 55
dissolution was concerned, it terminated marriage on the date of decree and so far as the
decree as to non-existence of marriage was concerned, it was not a judgment in rem.
There was therefore no ground for stay of criminal proceedings. The criminal court must
determine the issue as to marriage itself. A judgment in rem is a judgment which by its
own force has a direct effect upon the property,of status to which it relates so as to render
such property or status in the same condition as the judgment declares it to be. It is a
judgment delivered in the exercise of a jurisdiction to bind the property or the status,
which is the subject-matter of the proceedings itself. The test of a judgment in rem is that
it binds the whole world. (1) P L D 1956 Lah. 403) Further, that matrimonial jurisdiction
as that expression is used in section 41, Evidence Act is a special jurisdiction conferred
by soiree law, as in the case of Christians, and marriages under the Special Marriage Act.
The Legislature has created a special jurisdiction for materimonial causes which enables
the Court to make binding pronouncement as to existence of marriage but there is no
similar jurisdiction given to a Court in other cases."

It would be seen that even without taking note of the laws enacted subsequent to the
decision of the above case of Munir the comments of the learned author at page 573
already quoted, would dilute the effect of this decision including the observation that the
judgment therein was not in rem. At page 573 while relying on Subhan v. Muhammad
Murad and another (PLD 1963 (W.P) B J 134) it was remarked in this behalf that
"Matrimonial jurisdiction of competent Court includes judgments and decrees passed by
civil Court in exercise of its ordinary civil jurisdiction. A matrimonial decree passed by a
competent Court is judgment in rem and has binding,. effect on criminal Courts." And
further that. "This is not upon the principle that every one is presumed to have had notice
of the suit, for, if they had notice, they could not intervene or interfere in the suit, but
upon the principle that when a marriage is set aside by a Court of competent jurisdiction,
it ceases to exist, not only so far as the parties are concerned, but as to all persons. A valid
marriage causes the relationship of husband and wife, not only as between the parties to it
; but also as respects all the world. A valid dissolution of a marriage, whether it be the act
of the husband, as in the case of repudiation by a Muhammadan, or by the act of a Court
competent to dissolve it, causes that relationship to cease as regards all the world."
Moreover the rationale in Muni's case with reference to restricted interpretation of section
41 of the :Evidence Act vis-a-vis that in Subhan's case, though with respect not correct, is
otherwise not now available ; because, the jurisdiction conferred on the Family Courts
Act, 1964 in this behalf is undoubtedly matrimonial. Hence it would have a binding effect
in so far as the legal character referred in section 41 of the Y Evidence Act is concerned,
regarding matrimonial relationship-its affirmative and negative aspects included. The
case of Muni is also no authority regarding the stay of a criminal case pending the suit in
the Family Court under the Family Courts Act because of the latter judgment in
Muhammad Akbar v. The State and another (PLD 1968 S C 281) which would be again
noticed presently in connection with the answer to another question. Before passing to the
answer to the third question in the light of the foregoing answers to questions Nos. l and
2, it is necessary to notice few more cases on these two questions. They are

(1) Nur Elahi v. The State and others P L D 1966 S C 708 ;

(2) Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 ;

(3) The Coca-Cola Company of Canada Ltd.- v. - Pepsi-Cola' Company of Canada Ltd.
A- I R 1942 P C 40 ; and

(4) Emperor v. Khawaja Nazir Ahmad A I R 1945 P C 18.

A difficult question arose in the case of Nur Elahi -vie. what should be the procedure
when regarding same case of murder, there are two versions before the trial Court ; one,
in the police challan ; and the other, in the private complaint regarding the same
occurrence. ; In the majority opinion the decision of the two versions on one evidence
was not proper. First the complaint case and then the ehallan case was to be taken up-
though the influence and interaction of evidence and verdict one, it was assumed would
undoubtedly be on the other. The same aspect was highlighted in the minority judgment
when supporting the view on joint trial thus

Page No. 44 of 55
"The law is that every criminal proceeding (and in fact every civil proceeding) is to be
decided on the material on record of that proceeding and neither the record of another
case nor any finding recorded therein should affect the decision. If the Court takes into
consideration evidence recorded in another case of a finding recorded therein the
judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another
criminal proceeding. In fact there is an express provision in the Evidence Act, that is,
section 43, which debars the Court from taking it into consideration. It makes no
difference that the finding is recorded by a High Court or the Supreme Court. It remains
irrelevant. The Court which is to determine a matter must determine the matter itself
unaffected by opinion expressed in other cases.

The above statement of law would not seem to be open to any objection and in fact
appears to be based on good principle, yet it creates difficulties when the same incident is
the subject-matter of two different criminal proceedings. The law does permit more than
one criminal proceeding in respect of the same matter. There may be cross-cases where
each of the two opposite-parties charges the other with the commission of offences in
respect .of the same incident or there may be different versions as to who committed an
offence, put forward by different parties that move the Court. Cross-cases ,will be
separate cases and the same applies to the other category. As under the law every separate
proceeding is to be decided on its own record, and is not affected by the decision in
another case it is obvious that there is possibility of a conflict between decisions in
proceedings in respect of the same matter. But while we recognize the absolute
correctness of the proposition that all proceedings must be decided on their own record
we are at the same time not prepared to allow conflicting decisions with respect to the
same incident or a matter. It would be absurd that in respect of the same incident different
persons be convicted in different proceedings on stories inconsistent with each other. One
Court may hold that 'A' had murdered 'B' while another Court may be holding that 'C' had
murdered 'B' and both 'A' and 'C' may be punished for the murder of 'B' on the basis of
stories that falsify each other. In civil cases we do not mind conflicting decrees being
passed with resptct to the same property between different parties. They are judgments in
personem and no harm can result therefrom.

But it is different in criminal cases where persons have to be punished. It cannot be

tolerated that for the same incident more than one person be convicted on mutually
exclusive stories."

The rigour of rule of "irrelevancy" of certain judgments was further modified and its
rigidity was reduced in the case of Malik Din ; wherein it was held that :

"Judgments, whether inter partes or not, are conclusive evidence for an against all
persons whether parties, privies, or strangers of its own existence, date and legal effect, as
distinguished from the accuracy o the decision rendered. In other words, the law attribute
sufferring verify to the substantive as opposed to the judicial portions of the record. But
where the judgment is inter partes even recitals in such ; judgment are admissible. A
previous judgment is admissible also to prove a statement or admission or an
acknowledgement made by party or the predecessor-in-interest of a party, in his pleadings
in previous litigation. Similarly, a judgment narrating the substance of the pleadings of
the parties to a litigation is admissible to establish the allegations made by them on that
occasion."

With respect, it is relevant in the present controversy and would bet useful in solving the
other questions also.

The decision of the Privy Council in its Judicial Committee in "The Coca-Cola Company
of Canada Ltd. case" is of some historical importance regarding the development of case-
law on the subject of relevancy of previous judgments. The comment therein, about
judgments being irrelevant, has to be read subject to what has been stated above and also
to section 41 of Evidence Act.

Same would apply to the opinion of the Committee in the case of "Khawaja Nazir
Ahmad".

Page No. 45 of 55
It is now possible to answer questions Nos. 1 and 2, in that, if as a result of a criminal
trial under the Offence of Zina Ordinance a finding of fact is recorded or affirmed by a
superior Court regarding existence or non-existence of valid Nikah, then even if
theoretically it might be possible for a Family Judge to set at naught the judgment of the
Supreme Court under an assumption that the two forums are independent in their
functions under separate laws, for all practical purposes, as observed earlier in this
judgment and as discussed by this Court in the case of Abdul Majid and uthers v. Abdul
Ghafoor Y Khan and others (1), and repeated in several subsequent judgments, it would r
not be possible for it to do so even under the Family Courts Act. However it has other
mandatory functions to perform like effort at a compromise and the case might be
otherwise and without a real conflict of decision emerging out of afresh trial of the same
issue and between the same parties (but under a different law). The relevant provisions of
the Evidence Act as interpreted in the foregoing discussion as also in the cases of Nur
Elahi and Malik Din and another, would not present any difficulty either. Thus the answer
to question No. 1 is that the principle of res judicata subject to the above observations
would be attracted.

The second question relates to the stage and level of the relevant proceedings as different
from the one assumed in the first question. Strictly speaking the judgment of the trial
Judge under the criminal law will not have any determinative effect on the decision
before the Family Court if it is to be on the same issue and between the same parties
except to the extent it is permissible to refer to it under the law as declared by this Court
in the case of Malik Din and another. However it cannot be said regarding vice versa ,
situation and thus the judgment by the Family trial Judge would have direct effect on the
outcome in the criminal trial if the question of valid Nikah, which already stands decided
by the Family Court, is also involved before the criminal Court. Therefore, the decision
of the Family Court in this behalf will have precedence.

Question No. 3 relates to the interaction of section 3 of the Offence of Zina Ordinance
vis-a-vis section 5 of the Family Courts Act. After the resolution of(1) P L D 1982 S C
146) the controversy involved in questions Nos. 1 and 2 regarding the interaction of the
judgment of the two forums at the superior Court level and also at the trial Court level the
importance of this question (No. 3) on practical aspects of the case is considerably
reduced and it need not be answered in detail in so far as its theoretical aspects are
concerned. It is however necessary to observe that when section 3 of the Ordinance
provides that its provisions shall have effect notwithstanding anything contained in any
other law for the time being in force, the intention underlying the same is not such so as
to materially reduce the effect of the mandate in section 5 of the Family Courts Act to the
effect that the Family Court shall have exclusive jurisdiction regarding the matters
specified in the Schedule, which includes, amongst others the subjects of dissolution of
marriage, restitution of conjugal rights and jactitation of marriage. Be that as it may even
if there is some seeming conflict the same would be removed by the practical application
of these laws as explained and discussed in answer to the other relevant questions posed
in this judgment.

Question No. 4 is composite in the sense that it deals with the difficulties which a
learned Judge holding a criminal trial under the Offence of Zina Ordinance, might have to
face. In answcr to this question it may be straight- away remai ked that the defence of
Nikah in a case of zina whether liable as a hadd or as tazir in ordinary or zina-bil jabr
categories, is of immense import- ance in so far as the trial of the offence and results
thereof is concerned. It however does dot mean that this defence would have, in any way,
less effect on other cognate offences of kidnapping, abduction and sale for prostitution of
females and similar other offences. Definition of zina in section 4 itself visualizes the
defence of a valid marriage. Similar is the position regarding definition of the aggravated
offence of zina liable to hadd. It visulizes a defence of marriage even when the accused-
suspects to be married to the other person involved in the zina. The provision regarding
zina-bii jabr and other offences in the Ordinance would have to be construed accordingly
in so far as this defence is concerned. Thus when a plea of defence is raised before a trial
Judge (cunducting a trial under this law) regarding Nikah and it needs to be examined as
a genuine plea for giving a finding of guilty or otherwise and the Court is informed as is
visualized in situation No. (i) under question No. 4 that the same issue is involved before
Family Court (either between the same parties or those directly or indirectly concerned

Page No. 46 of 55
therein on account of the nature of the lis) the criminal Court would, as held in
Muhammad Akbar (1), and as resolved in the case of Nur Elahi, stay the proceedings in
the criminal case. The case of Nur Elahi has already been commented upon. It involved
the stay of the proceedings on a challan case regarding the same occurrence between the
same private parties as were involved in a complaint case which it was held would have
to be tried first ; when the proceedings in the challan case would remain stayed. And the
result of the complaint case would even if not theoretically, practically be reflected in
what subsequently happens in the other case on the challan, submitted by the police. The
case of Muhammad Akbar also highlights a similar practical controversy regarding
possibility of a conflict of decision by two forums. Though the nature of the lis in both
the trials involved in the case of Nur Elahl, was of criminal nature, that in the case of
Muhamrrad Akbar is of dual character; namely, criminal and civil, in the two trials, which
were also before two different forums. In the discussion it was assumed, to start with, that
whenever same questions being adjudicated upon between the same parties in criminal
and civil (1)PLD 1968 SC 281

forums, the criminal proceedings are not normally, postponed, but this assumption, as the
entire discussion reveals, would ordinarlly apply if the proceedings are other than bona
fide and are pending or commenced in a civil forum when the same subject-matter
requires determination in criminal proceedings. This finds support from the following
further observations and rule laid down in that case

"But where it is clear that the criminal liability is dependent upon the result of the Civil
litigation or is so intimately connected with it that there is a danger of grave injustice
being done in the case if there be a conflict of decision between the Civil Court and the
Criminal Court D then in such event it is equally clear that the Criminal Court has not
only the right to but should also stay its hands until the Civil litigation D is disposed of,
for, it is not desirable that when the title to the property itself is in dispute, the Criminal
Courts should give a finding in respect of the same question In exercising this discretion
the guiding principle should be to see as to whether the accused is likely to be prejudiced
if the criminal proceeding is not stayed."

In that case it was also held that "it cannot, therefore, be said that the E subject-matter of
dispute in the criminal decision is not dependent upon the decision in the civil litigation",
and accordingly the stay of proceedings in the criminal Court by the High Court in
exercise of its power under section 561-A, Cr. P. C. was upheld by the Supreme Court.
Thus question No. 4 (i) is answered in affirmative.

The answer to sub-question No. 4(ii) is that as and when a confident honest plea of
Nikah is raised in a bona fide manner, it is the duty of the trial Court to enquire about the
parties' attitude towards its adjudication by the Court of exclusive jurisdiction. If the suit
is already pending, it must be taken to its logical end even if certain amendments become
necessary due to the criminal involvements. That being so the criminal Court would, as
already held, stay the proceedings for a reasonable time and/or from time to time. This is
permissible under section 344, Cr. P. C. If this can be done, it is a reasonable corrollary
thereof to ask the concerned party, if the suit has not already been instituted, to institute
one. And there is nothing in section 114, Evidence Act that the necessary presumption
shall not be raised regarding the failure or refusal to file the suit, namely that if instituted
F the party concerned would have no chance of success. This will also serve as a test for
the bona fides and genuineness of the plea. It needs to be F observed that once the
consideration of postponement of the trial becomes necessary so as to avail or seek
adjudication by a Family Court it will be lawful to release the accused on bail so as to
enable him to pursue the case before the other forum. But that would not mean that in
exceptional proper cases with reasons to be recorded, bail could not be refused or
cancelled The discretion shall have to be exercised keeping in view the circumstances
including the conduct of the parties concerned e. g. an attempt or intention to delay or
frustrate lawful proceedings. But it might be clarified that an attempt at compromise,
without intentional delay, in the Family Court proceedings, will not be good ground for
cancellation of bail; because that will be in pursuance of the mandate of the relevant law
in that behalf.

Page No. 47 of 55
The C. P. C. as such does not apply to the Family Court. It can adjudicate a matter only
on entertaining a suit, therefore no reference will be permissible to be made to it. The
answer to question No. 4 (iii) accordingly is in the negative. The need for an interpleader
suit would not arise because the on visualised by the C. P. C. is not of any relevance.
Although a procedure o suit out of C. P. C. may not be unlawful but it would need the
making o rules under the Family Courts Act, so as to give the assumption a correct form.
Without the same the parties might be prejudiced. Accordingly for the time being the
answer to question No. 4 (iv) is also in the negative.

The District Judge and Additional District Judge who are empowered to try the relevant
offences under the Offence of Zina Ordinance are also Family Courts by virtue of rule 3
of the relevant Rules amended on 19-8-1969 by Notification No. Integ. 10-31/64. The Act
now extends to whole of Pakistan (see P. O. 5 of 1975). The position, according to the
answers of all the Law Secretaries of the four Provinces, to the question asked now in this
behalf, is the same, till date. These Judges can therefore try the matrimonial suits also if
and when a need arises, even by exercise of power to transfer the same to their respective
Courts (see rule 7(3) ). In that case both the civil and criminal cases in controversies like
the present one, can be heard by the same learned Judge. It will not be possible to give
any general direction that in all cases this procedure shall be adopted. However unless
there is some other law prohibiting it, in proper cases and particularly when the purpose
is to save unnecessary expense, delay and embarrassment to the parties in pleading the
defence of Nikah, such a procedure might be adopted by a speaking order after recording
reasons for the same. In some cases however the transfer of a case will not be possible
when the law regarding territorial jurisdiction does not permit it. In that case an interested
party can approach the concerned higher but competent forum. When both the cases are
lawfully brought before the same Court then the trial of the case under Family Courts Act
should be conducted in the first instance, so that the affect of the decision therein, may
govern the criminal case in accordance with the foregoing discussion on the subject. It
should be in so far as possible and mutatis mutandis, in accordance with the procedure
laid down and observations made by this Court in the case of Nur Elahf, and of
Muhammad Akbar. While the proceedings in the criminal trial would remain stayed, the
suit proceeds and concludes. There after due legal effect will be given to the decision.
Question No. 4(v) and (vi) are answered accordingly.

Question No. 5 presents serious difficulty. The decisions under Family Courts Act can
come under final scrutiny, subject to the appeal to this Court, before the High Court either
in appeal or in writ jurisdiction but in the case under the Offence of Zina Ordinance, the
appeal lies before the Federal Shariat Court. A case can arise when after the District
Judge/Sessions Judge stage matter like the one under discussion is taken before both the
superior Courts. In that case the proceeding in the High Court would have to be stayed till
the decision by the Federal Shariat Court because under Articles 203-G and 203-GG of
the Constitution, it would not be possible for the High Court to do anything which
detracts from the true effect of these provisions. This position will prevail until the
Federal Shariat Court is made the appellate forum for the Family Courts also. Thus after
the decision of the Federal Shariat Court the High Court would then dispose of the matter
in accordance with the law and procedure governing its jurisdiction but subject to what
has been stated above. Though a possible conflict would be avoided, but if any aspect is
left out as undetermined or a conflict is not removed it can be taken to the Supreme Court
to which appeal lies from both these Courts, of course, in accordance with the law
applicable to it. This answers question No. 5.

The foregoing discussion and questions Nos. 1 to 3 regarding effect of the decision of the
Family Court regarding the plea of Nikah on the same plea before the criminal trial
Court, would show that the view of the Federal Shariat Court in this behalf expresssd in
the case of Din Muhammad mentioned in Question No. 6 is, with respect, not correct.
The judgment of the Family Court, in the circumstances discussed already would be
binding in all relevant respects. Moreover it will not be correct to say that the statement
made by a party in the case before the Family Court will be relevant only for purpose of
contradiction under section 145, Evidence Act. It will also be a piece of evidence before
the criminal trial Court regarding conduct and as to what was the plea in that Court. 1t
was so held, as already noticed, in the case of Malik Din. On the stay of proceedings on
the criminal side, pending decision by the Family Court the approach of the Federal

Page No. 48 of 55
Shariat Court was not correct. When it is known that the decision of that forum original
appeal, will have a determining effect on the outcome of the criminal trial, it would be in
the interest of justice and fairness to stay the latter proceeding or the appeal therefrom.
Question No. 6 is answered accordingly.

The last question (No. 7) regarding Qazf Ordinance of 1979 has only an' indirect bearing
on the other questions and answers. If before the Family Court, the parties enter into a
campromisa and the case is decided accordingly,, the question would arise, as to what
will then be the outcome in the criminal trial. The law in Qazf Ordinance requires
complaint by specified person. If that person. is a party to the compromise, he or she
would not file the complaint, on the other hand a3 indicated in the case of Nur Elahi the
prosecutor would also seek to withdraw the case. This failure/refusal to l prosecute in the
case of zina would not negate any of the provisions of the procedural law now made
applicable to these trials. This, if not more, will be the effect of provisions of the Qazf
Ordinance, 1979. They- and the provisions of the Family Courts Act relating to
compromise would react on each other, and would have indirect effect on the outcome of
the criminal trial of Tazir offences involving plea of a valid Nikah. The last question No.
7 is therefore answered in the affirmative.

Before concluding the discussion on this part it is necessary to notice that in most of the
cases the accused facing trial before the criminal Court would have to appear as a witness
before the Family Court. In that situation it would not be possible to plead that on
account of his position before Criminal Court, incriminatory questions and answers
would be impermissible. Firstly, Evidence Act does not apply to the Family Court. And
secondly, even according to section 132 of the Evidence Act, there will be no bar to such
a procedure ; particularly when the accused cant also appear as his witness in accordance
with section 340 of Criminal Procedure Code. Thus there will be no illegality nor
prejudice to any of the parties.

The conclusions reached, as result of and subject to the discussion, on the questions
posed at pages 56-57 supra are

That the decision of a superior Court including the Supreme Court on the plea of Nikah
will have effect on the same issue before a Family Court;
That at the trial level the decision in this behalf of the Family Court will have binding
effect on the decision in criminal trial ~;

That unless there is pressing unavoidable need to proceed with the criminal trial (as is in
the present case to record essential evidence only regarding which there might be danger
of it being lost) the Criminal Court should stay the proceedings and await the result of the
contest on issue of Nikah before the Family Court, if the suit is already pending or is filed
during the criminal trial proceedings; That otherwise too it can ask the party/person
concerned to seek a decision on that issue from the Family Court and on refusal or failure
in this behalf to raise the necessary presumptions That in the last-mentioned eventuality
the criminal trial would Proceed with no change except firstly, as aforementioned about
certain presumptions, and secondly, that the issue concerned shall be decided as nearly as
possible in accordance with the spirit underlying the procedure prescribed by the Family
Courts Act and the rules thereunder, in so far as they do not come in conflict with the
procedure for the criminal trial-the provisions regarding compulsory two efforts at
compromise would then not apply;

That in case the proceedings of the criminal trial are stayed the accused; might be
released on bail so as to enable him them to pursue the.; Family Court case and
refuse/cancel the same in exceptional appropriatel, cases ;

That in case it is just and proper and the Sessions Judge or Additional Sessions Judge is
empowered to try both the matters under both system of laws, the trial by the same Court
would not be illegal provided the case under the Family Law is decided in the first
instance ;

That when any case on the criminal side has reached the appeal stage but the issue is still
pending before the Family Court, the hearing of the appeal should be stayed for a

Page No. 49 of 55
reasonable time to await the decision by that forum and in case of intentional or
otherwise inordinate delay, to take appropriate measures in re-consideration of any
concession including bail and the stay, whether it is not being misused.

That when the same question is pending before the Federal Shariat Court and the High
Court the latter would await the decision by the former Court.

That in case compromise is reached between the concerned parties before (and a decree is
passed accordingly, by) the Family Court which will have binding effect on the Criminal
Court, the latter Court would give effect to it in the criminal trial in an appropriate
manner, and lastly.

That in all these procedures the Court shall have power to prevent the abuse of the court
process by any party or person involved in the trial of the criminal case.

In addition to the foregoing, short answers to the specific questions posed in this
judgment, it is necessary also to summarise in similar manner some of the conclusions
reached in the earlier parts thereof. They, subject to the specifics, are as follows :--

That in cases of kidnapping,/abduction and/or Zina liable to tazir a valid marriage being a
defence included in the very definition of the offence, to establish the same is an initial
burden on the accused pleading so,

That nevertheless where the Nikahnama, the witnesses and other relevant evidence in this
behalf is withheld by the accused or is otherwise not adduced before it, the Court's duty
under second part of section 540, Cr. P. C., is to summon the same in primary or
secondary form ;

That the action in section 540 (first part) is discretionary ; while under its second part it is
obligatory if the evidence concerned is essential for just decision of the case

That the determination whether it is essential is dependent upon only its appearing to be
so and satisfaction is not necessary under the second part of section 540, Cr. P. C. ;

That under the last part also the discretion is to be liberally exercised, otherwise a wrong
decision on this question in present type of case would be of unimaginable consequences
for the persons affected directly or remotely ;

That the bar against the so-called `filling of gaps' and the question of so-called `prejudice
to a party,' would not be relevant considerations if a matter otherwise falls within the
scope of section 540, Cr. P. C. (second part) and this is true both for the defence and the
prosecution;

That it is when all possible effort is made and more direct evidence is

not available, then only the other material mentioned in the definition of "proved" in
section 3 of the Evidence Act, can also be made use of ;

That benefit of plea of valid marriage is to be given by the Court only

when it is able to give a positive finding thereon and not merely on suspicions and doubts
;

That similarly the Court while acting under section 540, Cr. P. C. as also under section
165, Evidence Act, has to remain vigilant and should actively participate in the
proceedings and should prevent any party taking undue advantage of the simplicity of the
other or of mere technicalities and that this interpretation of these provisions is in accord
with Islamic philosophy and jurisprudence;

That the plea of valid marriage in order to be received in the manner indicated, must be
raised at the earliest opportunity available before the Court and not as an afterthought and

Page No. 50 of 55
further that it should be genuine/and bona fide so as to get justice and not for vexation,
delay or for mere humiliation of a party ;

That false material is often created in fake complaints, affidavits etc. in farcical
proceedings so as to support .doubtful pleas of consent and/or valid marriage but that
should not deter the Court from discovering the truth by resort to section 540, Cr. P. C.
and 165, Evidence Act and other lawful means ;

That on discovery of an instance of foregoing type, in addition to the adverse effect on

the plea of the party connected therewith directly or indirectly, the persons concerned
therein should also be proceeded against in suitable forum ;

That whenever an act is secret, or is accompanied by efforts of aforementioned type

and/or a "minor" female is involved, the Court has immediately to act with vigilance and
circumspection and is to ask all necessary questions in that behalf so as to Prevent
9outipptrd victimistion of innocent sufferors ;

That it is particularly so in cases of "minor" females when the plea of valid marriage is
otherwise against the provisions of the Child Marriage Restraint Act, 1929, and, in such
case in addition to the correct determination of age, measures should be adopted to
remove effects (invisible included) of apprehended coercion, cheating, undue influence ;

That in the foregoing exercise the attaining of puberty would be relevant factor but not
the deciding factor alone regarding coercion and undue influence and/or fraud ;

That the accused can offer, himself to be a witness in support of his plea under section
340(2), Cr. P. C. with necessary consequences accordingly;

That Islamisation of this branch of criminal law has to face the adverse influences
(through mass media) of other cultures. The law-makers as well as social thinkers have to
provide the checks and balances. The Courts nevertheless, in appropriate cases when
cruelty, undue advantage or unusual acts are not involved, may treat this circumstance
also into consideration on mitigation where the sentence is not prescribed as the fixed one
or minimum one ;

That institution of valid marriage being an important factor in the foregoing context, the
plea in that behalf is to be viewed by the Courts with compassion but a mistaken zeal and
temptation of being so-called liberal in these matters, has to be avoided if not for other
reasons, at least for the sake of innocent victims of wrong appreciation of evidence and
faulty conclusions (in matters of matrimony) ;

That this branch of administration of justice has, on account of development of certain

techniques of dubious character, become complicated and in order to avoid mistakes on
account of ignorance, the guidance can be had from the decided cases in so far as the
background knowledge and trends are concerned the latter inter alia are enumerated as
inferences from these cases, at pages 39/40 (supra).

As a result of the discussion on various controversies arising in the matter, this case
merits remand. Therefore while setting aside both the judgments, the original as also the
appellate, the case is remanded to the trial Court for fresh trial. The answer to the
questions posed at pages 56/57 amongst others. will be kept in mind during the fresh trial
and while receiving evidence the provisions of sections 540, Cr. P. C. and 165, Evidence
Act will be followed in their true spirit, as explained in this judgment. Cases, like the
present one should not take long and should be decided as soon as possible. The delay
already occasioned in this case has to be taken note of. The occurrence is of June 1981.
There is danger of some evidence being lost, therefore the learned trial Judge, shall
record the evidence before staying further proceedings, to await the decision of the
Family Court on the issue of 'valid marriage' in accordance with the law already declared.
He shall require both the parties to adduce evidence in accordance with the procedure of
such trial. They would be well advised in their own interest, to adduce all essential
evidence. But failing that the learned trial Judge, shall act under section 540, Cr. P. C. in

Page No. 51 of 55
regard to various questions involved in this case; and shall also while receiving evidence
remain conscious and make use, of section 165, Evidence Act.

Case remanded.

Page No. 52 of 55
P L D 1969 Supreme Court 127

Present: Hamoodur Rahman, C. J., Sajjad Ahmad and Qadeeruddin Ahmad, JJ

HABIBULLAH AND OTHERS----Appellants

versus

THE STATE----Respondent

Criminal Appeal No. K-22 of 1968, decided on 25th February 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi
Bench, Karachi, dated the 2oth July 1967, in Confirmation Case No. 39 of 1966 and
Criminal Appeal No. 187 of 1966).

(a) Penal Code (XLV of 1860), S. 302-Motive-Murders may .be committed wantonly or
without motive - Nevertheless, where motive, alleged by prosecution, found to be false,
evidence of witnesses on premises of a false motive to be scrutinized.

In ordinary human conduct where killing takes place by design, it is not without a motive
strong or weak. This is not to say that murders are not committed wantonly without any
motive whatsoever. Motiveless murders do occur owing to mad or -reckless acts of
inhuman nature. Sometimes a motive lies mysteriously hidden in the mind of the killer
with no means to dig it out on the surface. But it may be stated as a rule of prudence .in
judging human conduct that where a motive is alleged by the prosecution Which is found
to be false, it becomes all the more necessary to scrutinise the credentials of the witnesses
who by their evidence direct or indirect speak about the guilt of an accused person ©n the
premises of a false motive.

Where, therefore, the alleged motive was found to be absent being untrue it was held that
the Courts should have been very much on their guard to accept the story of the
prosecution of which the motive was an important constituent and which depended for its
acceptance on the statement of a single witness who supported that story including the
motive.

(b) Penal Code (XLV of 1860), S. 302-Witness-Prosecution witness related to deceased

as well as accused-Mere relationship with both cannot make him an impartial witness.

(c) Penal Code (XLV of 1860) S. 302-Witness-CredibiIity-Prosecution witness making

false concession in favour of accused-Veracity of statement damaged.

The witness has to be taken on his own words. If he has made a false concession in
favour of the accused persons and has compromised 'his integrity, his veracity is
evidently damaged. If he is capable of making a false statement for one party he is
equally capable of making it for the sake of the other party.

(d) Criminal Procedure Code (V of 1898), S. 164-False statement-Cannot become true

merely by its consistent or constant repetitions.

(e) Evidence Act (I of 1872), S. 157-Expression "at or about the time"-Factor of "time"
very important Statement made about half an hour after occurrence-Held, plainly
inadmissible [Hamoodur Rahman, C. J. contra].

The former statement of a witness to furnish corroboration under section 157, Evidence
Act, can be proved only if it was made "at or about the time" when the fact took place.
The factor of time mentioned in this section is very important to serve as a safeguard
against fabrication of false evidence. The words at or about the time" mean that the
statement must be made at once or at: least shortly after the event, when a reasonable
opportunity for making it presents itself. The object is to permit the use of such
statements which are made at the time when the mind of witness is still so freshly
connected with the events as to make their description accurate. If time for reflection

Page No. 1 of 7
passes between the event and the subsequent statement, the latter is not only useless, but
on account of easy procurement by confirmatory-, sources, it may be really dangerous to
allow its admission. This would be putting a premium on fabricated evidence.

Per Hamoodur Rahman, C. J. [contra]:- The weight to be attached to a piece of

evidence is entirely a different thing from the admissibility of such evidence. Section 157
of the Evidence Act prescribes an exception to the general rule against admissibility of
hearsay evidence upon the conditions prescribed therein, and such statements have
always been held to be legally admissible in this sub-continent as corroboration if the
conditions are fulfilled, apart from the question of the weight or value to be attached to
such statements.

The conditions laid in this section are :--

(i) that the former statement must relate to the same fact;

(ii) that it must be made at or about the time when the fact: took place; or

(iii) before any authority legally competent to investigate the; fact.

The use of the words "about the time" unmistakably postulates that some interval of time
may well elapse between the fact and the statement. As to what should be this length of
timeis a question about which no hard and fast rule can be laid down nor can any rule of
thumb be adopted, but all that can be said is that it must be made either at once or at least
as soon thereafter as a reasonable opportunity presents itself. What is reasonable must
inevitably be a question of fact to be determined in the light of the evidence in each case.
But it is essential to remember that there is a material difference between this section and
section 6 of the Evidence Act which only makes declarations accompanying acts
admissible. Though the contemporaneousness must be substantial it will be appreciated
that it cannot be literal. The question, therefore, that has to be determined when
pronouncing upon the admissibility of evidence as compared to its weight is as to
whether the statement sought to be put in a& a corroborative statement under section 157;
was made as speedily as could reasonably be expected in the circumstance of the case.
Otherwise, merely taking into consideration the time factor may lead to dangerous
results. The onus, it must also be remembered, of proving the conditions of admissibility
of such evidence under section 157 is clearly on the prosecution and it must establish
those conditions by clear and unequivocal evidence before it can be allowed to put such a
statement in. But after such a statement had been put in, then the question will arise as to
what weight is to be given to it. Even though it may be legally admissible, it may well- be
that the weight to be attached to it may be nil. There is abundant case-law on the subject
to show that such statements have been held to be admissible, even when made several
hours later, as in the cases of Rameshwar v. The State of Rajasthan A I R 1952 S C (Ind.)
54 and Rex v. Cummings (1948) 1 A E R 551, where the Court of Appeal in England also
upheld the admission of a previous statement of a prosecutrix made on the next day as a
statement made as early as she could.

Rameshwar v. The State of Rajasthan A I R 1952 S C. (Ind.) 54 ref.

Tufail Ali A. Rahman, Senior Advocate Supreme Court (Hyder Raza Naqvi, Advocate
Supreme Court with him) instructed by Haider Bakhsh, Attorney for Appellants.

Kazi Akhtar Ahmad, A. A. G. West Pakistan (Jamaluddin H. Ahmad, Advocate Supreme

Court with him) instructed by Ijaz Ali, Attorney for the State.

Date of hearing: 15th January 1969.

JUDGMENT

SAJJAD AHMAD, J.---The five appellants, namely, Habibullah, Sher, Khakan, Ghafoor
and Ahmad, were convicted under section 302/34, P. P. C. for the murder of their
co-villager, Allah Wasayo, by the learned Additional Sessions Judge, Larkana. The first

Page No. 2 of 7
three were sentenced to death and the last two to transportation for life. Their appeal in
the High Court of West Pakistan, Karachi bench, was dismissed.

Two separate applications for leave to appeal were filed in this Court, the first through
jail by Sher, Khakan and Habibullah and the second; a regular petition by Ghafoor and
Ahmad in which Habibullah also joined. Both the petitions were allowed by separate
orders, dated the 6th of September 1967, and the 12th of February 1968, respectively, as
it was considered necessary "for ensuring safe dispensation of justice to re-examine the
evidence which consisted of a single eye-witness, namely, Khuda Bakhsh, who was .not
on good terms with the appellants".

Ahmad, appellant, was a cousin of the deceased and his immediate neighbour. The other
appellants do not bear any relationship with Ahmad, although some of them are related
inter se. Sher is a cousin of Ghafoor and Habibullah is married to the sister of Khakan,
but it is not clear how Habibullah and Khakan are connected with Ghafoor and Sher. It
was alleged that Sher, appellant, had a daughter by the name, Mst. Pathani, who lived
next to the house of Mst. Panna Khatoon, sister of deceased. About a fortnight before the
occurrence which took place at 9-30 p.m. on the 30th of October 1963, the deceased was
seen coming out of his sister's house which created a suspicion in the mind of Shahan, a
son of Sher, that he was having an affair with Mst. Pathani. This suspicion was alleged as
the motive for the murder of the deceased, although it was not supported by the learned
Assistant Prosecutor at the trial. The learned Additional Sessions Judge also thought that
the real motive was some other than that suggested by the prosecution. According to him
the appellants had possibly murdered the deceased for the sake of his agricultural land.
This, however, is equally conjectural.

The High Court has agreed with the learned trial Judge on the point of motive. It has,
however, reiterated as a settled proposition of law that the prosecution need not prove the
real motive for the crime by an accused person if his guilt is otherwise proved by reliable
and cogent evidence. It has held that the present case is of the type in which absence of
proof of real motive was not fatal to the prosecution case.

In ordinary human conduct where killing takes place by design, it is not without a motive
strong or weak. This is no to say that murders are not committed wantonly without any
motive whatsoever. Motiveless murders do occur owing to mad or reckless acts of
inhuman nature. Sometimes a motive lies mysteriously hidden in the mind of the killer
with no means to dig it out on the surface. But it may be stated as a rule of A prudence in
judging human conduct that where a motive is alleged by the prosecution which is found
to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses
who by their evidence direct or indirect speak about the guilt of an accused person on the
premises of a false motive. In the present case the alleged motive being absent and found
to be untrue, the fourts should have been very much on their guard to accept the story of
the prosecution of which the motive was an important constituent and which depended
for its acceptance on the statement of a single witness who supported that story including
the motive.

It is necessary to state here the prosecution case given by this sole eye-witness, P. W.
Khuda Bakhsh. He is a son of a cousin of the deceased and was also in his employment to
look after his cattle and plough his land. He is also a cousin of Ahmad, appellant, who as
stated above is also a cousin of the deceased. He deposed that at tripahri time on the day
of occurrence (30th of October 1963), Ahmad, appellant, came to the house of P. W., Mst.
Azizan, mother of the deceased, and invited him to a cinema show at Larkana. The
deceased agreed. Khuda Bakhsh also expressed a desire to join. At sunset time they set
out on two cycles; Ahmad on his own and Allah Wasaya carrying Khuda Bakhsh on his
cycle. After the show which ended at about 9-30 p: m. they returned home, this time
appellant, Ahmad, sat on the carrier of his cycle which was driven by the deceased and
Khuda Bakhah rode on the latter's cycle. When they reached the bank of Fateh Wah on a
kacha road near the garden of one Hayat Bhutto, Ahmad asked the deceased to stop the
cycle as his shirt had got entangled in the wheel. They got down from the cycle and
Ahmad shouted loudly `Ache Viyo' (has arrived). On this the appellant, Habibullah,
emerged from the trees with a hatchet and gave a blow to the deceased, which was
warded off by the deceased and Khuda Bakhsh. Thereafter the appellants, Sher, Khakan

Page No. 3 of 7
and Ghafoor came out similarly armed with hatchets. Ghafoor held Khuda Bakhsh in his
grip and pushed him aside. His shirt was torn in this process. Sher, Khakan and
Habibullah struck 'the deceased with their hatchets. Ahmad who was unarmed did not
take any part in the beating and ran away on seeing Allah Wasayo injured. Khuda Bakhsh
raised cries but no body came at that time. Habibullah threatened him that if he gave
evidence against them, they would kill him. The rest of the accused then also ran away.
Khuda Bakhsh went to his village and informed Mst. Azizan, the mother of the deceased
about the incident. He rode on a cycle passing through village Jamali consisting of about
30 houses raising cries which did not attract .any one. Shah Nawaz Bhutto who lived near
the house of Mst. Azizan was the second person to be informed. All the three then came
to the wardat passing through village Jamali but did not inform any one of the residents
there. At the wardat they raised cries again when Muhammad Hassan Jamali, P. W., and
other persons turned up. According to Khuda Bakhsh when these persons came at the
wardat in the first instance, he did not tell them that he had witnessed the murder. He
stated that after half an hour he told them about the incident and Mst. Azizan also
repeated the story. Mst. Azizan thereafter went to Taluka Police Station situated at a
distance of 2 miles from the wardat and lodged the First Information Report the same
night at 11-45 p m. In this report Mst. Azizan recounted the facts as given to her by
Khuda Bakhsh already reproduced above. However, the F. I. R. contains two significant
omissions and one striking departure from the story as narrated at the trial by Khuda
Bakhsh. It is not mentioned in the F. I. R. that Ahmad, appellant, had shouted `Ache
Veyo' (has arrived) on getting down from the cycle near the scene of occurrence as
alleged by Khuda Bakhsh in his statement at the trial. This omission is important as this
call allegedly made by Ahmad as a signal to the co-accused to attack the victim is the
only act attributed to Ahmad, appellant, for complicity in this crime, besides luring away
the deceased to the cinema show. He did not take any part in the assault on the deceased.
He had instead run away after seeing the deceased in an injured condition. The second
omission is about, the shirt of Khuda Bakhsh which according to his statement was torn
when Ghafoor gripped him and pushed him aside. If really Khuda Bakhsh was present
and his shirt was torn in the struggle, it was an important circumstance which could not
have been missed. The striking departure in the F. I. R. from the statement of Khuda
Bakhsh is in regard to the presence of Muhammad Hassan Jamali, P. W., at the wardat.
According to the statement of Khuda Bakhsh, P. W. Muhammad Hassan Jamali had come
to the spot after they had returned to the -wardat from the village. It was at that time that
both he and Mst. Azizan informed him about the occurrence. In the F. I. R. it is stated that
Shah Nawaz Bhutto and other residents of Kot Ali Murad (village of the deceased) were
informed and later on one Haji Jio was sent for and told about the incident who had
directed the filing of the report. Significantly the F. I. R. does not mention that. Khuda
Bakhsh had also returned to the wardat. Instead it is stated therein that Mst. Azizan and
Shah Nawaz: Bhutto came to the wardat followed by the other villagers. The name of
Muhammad Hassan Jamali is conspicuously absent in the F. I. R.

The post-mortem of the deceased was conducted by Dr. Badaruddin on the 31st of
October 1963. Four incised wounds were found on his body, first, a transverse incised
wound 7" x 2" x deep to great blood vessels of the neck on both the sides. His neck was
almost cut being attached by a tag of skin only. The second was an incised injury also on
the neck which had cut the fifth cervical vertebrae on the left lower outer part of the neck.
The third which was 4" x 1" had cut the 1st left rib above the middle of left collar bone.
The fourth was any incised wound 1" x 1½" x muscle deep on the front of the right
shoulder.

An analysis of the statement of P. W. Khuda Bakhsh the sole eye-witness in the case
brings to surface certain inherent improbabilities in the story given by him. It was
stressed by the learned Additional Advocate-General that his relationship with the
deceased is set off by his relationship with Ahmad, appellant, and he should, therefore, be
deemed as an impartial witness. I do not think that he can pass off as an impartial witness
on that score. There seems to be no love lost between him and' Ahmad appellant. He had
admitted in his cross-examination that the accused had beaten him about a month before
the incident as they wanted him to leave the land which he was ploughing for Allah
Wasayo, deceased. According to the learned Additional Advocate-General this was a
gratuitous admission which the witness had made to favour the accused as there was no
external proof of that beating. The witness has to be taken on his own words. If he has

Page No. 4 of 7
made a false concession in favour of the accused persons and has compromised his
integrity, his veracity is evidently damaged. If he is capable of making a false statement
for one party he is equally capable of making it for the sake of the other party. But the
inherent improbabilities in his story are more important. As pointed out by Mr. Tufail Ali
A. Rahman, learned counsel for the: appellants, if Ahmad appellant was wanting to decoy
the deceased with a design to kill him, he would have spurned the company of Khuda
Bakhsh for the cinema show. But if Khuda Bakhsh had accompanied the deceased and
Ahmad to the cinema show and was present at the time of occurrence, it is extremely
unlikely that he could have got away with merely a tear in his shirt. He was allegedly
seized by Ghafoor appellant and had also tried along with the deceased to ward off the
blows initially given to the deceased. It was rightly stressed by Mr. Tufail Ali A. Rahman
that the five accused persons bent on a murderous adventure would not have spared
Khuda Bakhsh in the circumstances. They could have conveniently disposed him off to
destroy the only source of the proof of their crime. Khuda Bakhsh stated that he had put
the counter-foil of the cinema ticket purchased for him in his shirt which, however, was
not produced during the investigation. The injuries on the deceased did not indicate that
four persons had pounced upon him and caused him hatchet blows one after the other as
alleged by Khuda Bakhsh. It is difficult to believe that each one of them stopped short at
giving just one blow each. All the injuries on the deceased could have easily been caused
by one or two culprits between themselves. It is difficult to get away from the impression
that the number of the accused persons has been added up Khakan and Habibullah have
no apparent connection with the other accused persons to have joined in the execution of
this murder, nor had Ahmad, appellant, any truck with the co-appellants to bring about
the murder of his own relative. The learned trial Judge has accepted the version of Khuda
Bakhsh on the ground that his statement is consistent with his previous statement
recorded under section 164 of the Criminal Procedure Code. A false statement cannot
become true merely by its consistent or constant repetition.

The Courts below have also referred to the statement of Muhammad Hassan Jamali, P.
W., as a corroborative proof of the testimony of Khuda Bakhsh. To my mind his
statement is of no use whatsoever and was plainly inadmissible. As already stated above,
he is not one of the persons mentioned in the F. I. R. to whom information was imparted
by Khuda Bakhsh immediately after the occurrence. At the trial Khuda Bakhsh had stated
that while going from the wardat to village (Kot Ali Murad) and returning from there to
the wardat he had passed through the otak of this witness in village Jamali, raising cries,
but he did not contact him. The person who was first informed of the occurrence in the
village, was Shah Nawaz who has not been examined by the prosecution. The other
person mentioned in the F. I. R. who was informed of the incident at the wardat both by
Khuda Bakhsh and Mst. Azizan is Haji Jio who was also not produced by the
prosecution. According to Khuda Bakhsh, Muhammad Hassan Jamali came to the spot
after Kbuda Bakhsh had returned there along with Mst. Azizan and Shah Nawaz and he
(Muhammad Hassan Jamali) was informed about this incident half an hour later. The
question arises whether on these facts, the statement of Muhammad Hassan samali is
admissible under any provision of the Evidence Act. The learned Additional
Advocate-General conceded that this statement not being that of a by-stander as forming
part of the Re-gestae, was not admissible under section 6 of the Evidence Act. He argued
that it was admissible under section 157 of the Evidence Act in corroboration of the
statement of P. W., Khuda Bakhsh. The former statement of a witness to furnish
corroboration under section 157 can be proved only if it was made "at or about the time"
when the fact took place. The factor of time mentioned in this section is very important to
serve as a safeguard against fabrication of false evidence. The words "at or about the
time" mean that the statement must be made at once or at least shortly after the event,
when a. reasonable opportunity for making it presents itself. The object is to permit the
use of such statements which are made at the time when the mind of witness is still so
freshly connected with the events as to make their description accurate. If time for
reflection passes between the event and the subsequent statement, the latter is not only
useless, but on account of easy procurement by confirmatory sources, it may be really
dangerous to allow its admission. This would be putting a premium on fabricated
evidence. Khuda Bakhsh, on his own version had informed Muhammad Hassan Jamali
about the occurrence after a long delay and after the incident had already been repeated to
other persons, namely, Shah Nawaz and others who were not examined by the
prosecution. In my view, therefore, the statement of Muhammad Hassan Jamali is of no

Page No. 5 of 7
avail to the prosecution. But as I have already held that the statement of Khuda Bakhsh
itself is unbelievable, it cannot derive any strength from its repetition to other persons
even if the affirmations of this repetition by others were admissible under the law.

Giving the case my anxious consideration I have reached the conclusion, that in judging
the evidence of Khuda Bakhsh, which suffered from grave doubts and improbabilities,
the Courts below have not acted in conformity with judicial standards for the
appraisement of such testimony on a murder charge. It was a fit case where the benefit of
doubt should have been extended to the appellants. I would, therefore,, accept this appeal,
set aside the convictions and sentences of the appellants. They are to be released
forthwith if not wanted in any other case.

QADEERUDDIN AFIMAD, J.----I agree.

HAMOODUR RAHMAN, C. J.-----I have had the advantage of perusing the judgment
proposed to be delivered by my learned brother, Sajjad Ahmad Jan, J., in the appeal of
Habibullah and others v. The State (Criminal Appeal No. K-22 of 1968), and I am in
general agreement with him that it would be wholly unsafe to uphold the convictions of
the five appellants in this case upon the testimony of Khuda Bakhsh, the sole eye-witness,
by reason of not only the inherent improbabilities in the story unfolded by him but also of
the serious infirmities in his evidence delineated in the judgment. I am also in agreement
with him that in this view of the matter the corroboration sought to be given to his
evidence by Muhammad Hassan Jamali was, of no value, for, if Khuda Bakhsh himself
was unbelievable, the corroborating evidence was also unbelievable. But I regret my
inability to subscribe to his view that the evidence of Muhammad Hassan Jamali was
"plainly inadmissible" even under section 157 of the Evidence Act, because, it was made:
about half an hour after the occurrence and after Khuda Bakhsh had passed and re-passed
his house twice.

The weight to be attached to a piece of evidence is entirely a different thing from the
admissibility of such evidence. Section 157 of the Evidence Act prescribes an exception
to the general rule against admissibility of hearsay evidence upon the conditions
prescribed therein, and such statements have always been held to be legally admissible in
this sub-continent as corroboration if the conditions are fulfilled, apart from the question
of the weight or value to be attached to such statements.

The conditions laid down in this section are: -

(i) that the former statement must relate to the same fact ;

(ii) that it must be made at or about the time when the fact took place, or

(iii) before any authority legally competent to investigate the fact.

The use of the words "about the time" unmistakably postulates that some interval of time
may well elapse between the fact and the statement. As to what should be this length of
time is a question about which no hard and fast rule can be laid down nor can any rule of
thumb be adopted, but all that can be said is that it must be made either at once or at least
as soon thereafter as a reasonable opportunity presents itself. What is reasonable must
inevitably be a question of fact to be determined in the light of the evidence in each case.
But it is essential to remember that there is a material difference between this section and
section 6 of the Evidence Act which only makes declarations accompanying acts
admissible. Even in this case, though the contemporaneousness must be substantial it will
be appreciated that it cannot be literal.

The question, therefore, that has to be determined when pronouncing upon the
admissibility of evidence as compared to its weight is as to whether the statement sought
to be put in as a corroborative statement under section 157, was made as speedily as
could reasonably be expected in the circumstances of the case. Otherwise, merely taking
into consideration the time factor may lead to dangerous results. The onus, it must also be
remembered, of proving the conditions of admissibility of such evidence under section
157 is clearly on the prosecution and it must establish those conditions by clear and

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unequivocal evidence before it can be allowed to put such a statement in. But after such a
statement had been put in, then the question will arise as to what weight is to be given to
it. Even though it may be legally admissible, it may well be that the weight to be attached
to it may be nil which was, in my opinion, the position in the present case. Although the
evidence of Jamali was admissible in evidence under section 15'7, the weight to be
attached to it was nil, because, he had sought to corroborate a person who had himself
been found to be a liar.

There is abundant case-law on the subject to show that such statements have been held to
be admissible, even when made several hours later, as in the case of Rameshwar v. The
State of Rajasthan (A I R 1952 S C (Ind.) 54) and Rex v. Cummings ((1948) 1 A E R
551); where the Court of Appeal in England also upheld the admission of a previous
statement of a prosecutrix made on the next day as a statement made as early as she
could.

With these observations I agree that this appeal should be accepted and the convictions
and sentences of the appellants set aside.

K. B. A.

Appeal accepted.

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