007 S C M R 437

 
[Shariat Appellate Jurisdiction]
 
Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza
Khan Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid
Ahmed Jullundhari, Members
 
MUHAMMAD ZUBAIR----Petitioner
 
Versus
 
THE STATE----Respondent
 
Jail Petition No.8(S) of 2005, decided on 14th November, 2006.
 
(On appeal from the judgment, dated 29-1-2005 passed by the Federal Shariat Court,
Lahore, in Jail Criminal Appeal No.224/I of 2003 and Criminal Suo Motu No.4/I of
2004).
 
(a) Constitution of Pakistan (1973)---
 
----Arts. 203-F(2-B) & 185(3)---Constitutional jurisdiction of Supreme Court---
Concurrent findings of fact by the Courts below---Interference by Supreme Court---
Principles---Normally, Supreme Court does not interfere with findings of fact arrived
at by the Courts below, while exercising constitutional jurisdiction after its
satisfaction that findings of the Courts below are on the whole reasonable and are not
arrived at by disregarding any provision of law or any accepted principle concerning
appreciation of evidence---If finding is on the face of it against evidence or so patently
improbable, or perverse that to accept it could amount to perpetuating a grave
miscarriage of justice, or if there has been any misapplication of principle relating to
appreciation of evidence, or finally, if finding could be demonstrated to be physically
impossible, then it is the duty and obligation of Supreme Court to interfere in
concurrent conclusions arrived at by the Courts below. 
 
(b) Criminal trial---
 
---Delay in registration of F.I.R.---Effect---Generally delay in lodging F.I.R. cannot in
all cases lead to the inference that the cases set up in F.I.R. is necessarily true or false,
however it is relevant circumstance to be considered. 
 
(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
 
---S. 10---Qanun-e-Shahadat (10 of 1984), Art.129 (g)---Withholding of evidence---
Presumption---No report of Chemical Examiner regarding swabs of victim was
available, in spite of the fact that according to prosecution, the parcel was sent to
Chemical Examiner---Effect---Such piece of evidence having been withheld by
prosecution, therefore, adverse inference could be taken against the prosecution. 
 
Abdul Khaliq v. The State 1995 SCMR 1412 and Abdul Waheed v. The State 1995
SCMR 1498 rel.
 
(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
 
----Ss. 10, 11 & 16---Penal Code (XLV of 1860), S.338-F---Reappraisal of
evidence---Unexplained delay in F.I.R.---Benefit of doubt---Acquittal of co-
accused---Accused along with two co-accused was charged with offence of abduction
and committing Zina-bil-Jabr with the victim---Trial Court convicted the accused only
under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and
sentenced him to seven years of imprisonment, whereas both the co-accused were
acquitted---Conviction and sentence awarded by Trial Court was maintained by
Federal Shariat Court---Validity---If contents of F.I.R., statements of complainant and
that of prosecution witness and victim were put in a juxtaposition, then their
statements were not consistent with one another on material points---Trial Court had
disbelieved the statement of prosecution including victim while acquitting two co-
accused, therefore, it was necessary for Federal Shariat Court to re-examine the
evidence with due care and caution to maintain the conviction of accused but Federal
Shariat Court failed to examine the evidence---Person making contradictory statement
could not be held worthy of credence---Accused was convicted under the provision of
Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein it was the duty
and obligation of the Courts to give reasons for awarding conviction under S.338-F,
P.P.C.---Reasons for conviction were fancy and a result of misreading and non-
reading of record---Supreme Court converted petition for leave to appeal into appeal
and set aside the conviction and sentence awarded to accused by the Courts below---
Appeal was allowed. 
 
Aminullah's case PLD 1982 SC 429 and Muhammad Shafique Ahmad's case PLD
1981 SC 472 rel.
 
F.K. Butt, Advocate Supreme Court for Petitioner.
 
Ch. Munir Sadiq Advocate Supreme Court for the State on Court call.
 
 
ORDER
 
JUSTICE CH. IJAZ AHMED (MEMBER).--- The petitioner has sought leave to
appeal against the judgment of the learned Federal Shariat Court, dated 19-1-2005
wherein the appeal filed by the petitioner against his conviction was dismissed. The
brief facts out of which the present petition arises are that petitioner along with his
acquitted co-accused were involved in a case F.I.R. No.39 which was registered at
Police Station Naushera, District Khushab on 20-6-2002 under sections 11/10 of
Offence of Zina (EOH) Ordinance, 1979 on the complaint of Sher Muhammad
P.W.10. The contents of the F.I.R. reveal that Sher Muhammad alleged that his
daughter. Mst. Kausar Naheed aged 16/17 years has been abducted by the petitioner
who was once his neighbour. The contents of the F.I.R. further reveal that Mst.
Nasreen sister of the petitioner and one Muhammad Ramzan facilitated the
commission of the offence. It is further alleged that during the night between 24/25-5-
2002 Mst. Kausar Naheed daughter of Sher Muhammad was found missing and in the
morning he came to know through P.W.8 about abduction of his daughter Mst. Kausar
Naheed by the petitioner and his acquitted co-accused with the intention to seduce her
to illicit intercourse and the complainant after his failure to get back his daughter from
the petitioner, lodged report on 20-6-2002 against the petitioner and his acquitted co-
accused. The police investigated the case and sent the accused to face trial before the
competent Court. The trial Court completing legal formalities such as recording of
evidence and statement of the accused. Consequently, learned Additional Sessions
Judge vide its judgment, dated 27-8-2003 convicted and sentenced the petitioner as
under:---
 
 
Name of accused Under section Sentence
Muhammad Zubair 16 of the Offence of 7 years' R.I. with fine of Rs.10,000
Zina (EOII) Ordinance, in ease of default of payment of
1979 fine to further suffer 3 months' S.I.
Sentence of fine of Rs.40,000 as
compensation under section 544-A,
Cr.P.C. to Mst. Kauser Naheed
victim and in default to further
suffer six months S.I. Benefit of
section 382-B, Cr.P.C. was also
extended.
 
It is pertinent to mention here that trial Court had acquitted his co-accused namely
Mst. Nasreen and Muhammad Ramzan by giving benefit of doubt. Petitioner being
aggrieved filed Jail Criminal Appeal No.224/I of 2003 before the learned Federal
Shariat Court. The learned Federal Shariat Court issued suo motu notice to the victim
Naheed Kausar. The Federal Shariat Court vide impugned judgment dismissed the
appeal of the petitioner and also had withdrawn notice issued to Mst. Naheed Kausar
vide impugned judgment, dated 19-1-2005. Hence the present petition.
 
2. The learned counsel of the petitioner submits that prosecution had failed to prove
the case against the petitioner beyond shadow of doubt. He further submits that,
prosecution witnesses had improved their statements and contradicted each other on
material points which were not considered by both the Courts below. Therefore,
judgments of both the Courts below qua guilt of the petitioner were not sustainable in
the eye of law. He further maintains that the petitioner is involved in this case on
account of enmity and this fact was not considered by both the Courts below in its true
perspective. He further urges that on the basis of the same evidence his 2 co-accused
were acquitted but both the Courts below erred in law not to give benefit of this fact to
the petitioner and convicted the petitioner on the same evidence which was not
believed by both the Courts below against the acquitted co-accused.
 
3. The learned State counsel has supported the impugned judgment. He further
submits that the statement of the victim was duly supported by the medical evidence
and both the Courts below after proper appreciation of evidence have come to the
concurrent conclusions qua the guilt of the petitioner, therefore, the petition is liable
to be dismissed.
 
4. We have considered the submissions made by learned counsel for the parties and
have perused the record. Normally this Court, does not interfere with the findings of
fact arrived at by the Courts below while exercising constitutional jurisdiction after its
satisfaction that the findings of the Courts below are on the whole reasonable and are
not arrived at by disregarding any provision of law or any accepted principle
concerning the appreciation of evidence meaning thereby in case the finding is on the
face of it against the evidence or so patently improbable, or perverse that to accept it
could amount to perpetuating a grave miscarriage of justice, or if there has been any
misapplication of principle relating to appreciation of evidence, or, finally, if the
finding could be demonstrated to be physically impossible, then it is the duty and
obligation of this Court to interfere in the concurrent conclusions arrived at by the
Courts below. In the present case, however, it is difficult to avoid the impression that
the conclusions reached by the Federal Shariat Court and the trial Court suffered from
serious errors of law and fact, which unless set right are likely to result in miscarriage
of justice. The petitioner had taken a specific plea in reply of question No.7 in his
statement under section 342 of Cr.P.C. that the petitioner was involved in a case on
account of enmity and both the Courts below had not scrutinized properly defence
version in the impugned judgment. It is an admitted fact that the occurrence took
place according to the prosecution on the' night between 24/25 May, 2002 at 2-30 a.m.
whereas the F.I.R. was lodged on 20-6-2002 after a considerable delay without
explanation. Generally delay in lodging F.I.R. cannot in all cases lead to the inference
that the case set up in the F.I.R. is necessarily true or false, however, it is relevant
circumstance to be considered. In the present case this piece of evidence qua delay of
recording the F.I.R. without explanation creates doubt qua the prosecution story
meaning thereby such unexplained delay of almost 26 days makes the investigation of
the case doubtful and this fact was not considered by both the Courts in its true
perspective. According to the statement of the victim petitioner had abducted her
along with Mst. Nasreen Akhtar real sister of the petitioner and Muhammad Ramzan.
This fact alone is sufficient to discard the statement of victim to the extent that
petitioner had abducted her by force by closing her mouth with her Dupatta and he
threatened her that he would kill her if she raised alarm. She remained with the
petitioner for a considerable time more than a month as evident from the statement of
the abductee. She could not try to get rid of from the clutches of the petitioner in spite
of the fact she had got various opportunities to raise hue and cry at public places when
the petitioner had taken her from one place to another specially when her age was
16/17 years. It also does not appeal to common sense that the petitioner had abducted
the victim along with her sister to illicit intercourse. The contents of the F.I.R. clearly
show that complainant found the victim in the morning missing from his house,
therefore, Sher Muhammad complainant was himself not a witness of abduction
whereas Zahoor Ahmad P.W.8 had failed to show his presence at the Adda Ucchali at
the time of alleged abduction. It is pertinent to mention here that there is no direct
evidence of Zina-bil-Jabr against the petitioner except the sole statement of the victim.
Even otherwise in case the evidence of the victim be read as a whole then ingredients
of Zina-bil-Jabr are not attracted. It is pertinent to mention here that there was no
report of Chemical Examiner regarding the swabs of victim in spite of the fact
according to the prosecution the parcel was sent to the Chemical Examiner. This piece
of evidence was withheld by the prosecution, therefore, adverse inference could be
taken against the prosecution. See Abdul Khaliq v. The State 1995 SCMR 1412 and
Abdul Waheed v. The State 1995 SCMR 1498.
 
5. It is pertinent to mention here that in case the contents of F.I.R., the statement of
complainant, statement of Zahoor Ahmad, statement of victim are put in a
juxtaposition then their statements are not consistent with each other on material
points coupled with the fact trial Court had disbelieved the statement of prosecution
including victim while acquitting two co-accused of the petitioner, therefore, it was
necessary to re-examine the evidence by the learned Federal Shariat Court with due
care and caution to maintain the conviction of the petitioner but the learned Federal
Shariat Court failed to examine the evidence keeping in view this principle. See
Aminullah's case PLD 1982 SC 429. It is a settled principle of law that person making
contradictory statement cannot be held worthy of credence as law laid down by this
Court in Muhammad Shafique Ahmad's case PLD 1981 SC 472. The petitioner was
convicted under the provisions of Enforcement of Hudood Ordinance wherein it is the
duty and obligation of the Courts to give reasons for awarding conviction in view of
section 338-F. Reasons as mentioned above are fancy wind-result of mis-reading and
non-reading of record.
 
6. For what has been discussed above, this petition is converted into appeal and same
is allowed as a result whereof the petitioner is ordered to be released forthwith if not
required or involved in any other criminal case.
 
M.H./M-209/SC                                                                                  Appeal allowed.