Allah Almighty shows His love and affection with a person who speaks nothing except truth

 PLJ 2024 Cr.C. (Note) 229

[Lahore High Court, Lahore]

Present: Mazhar Iqbal Sidhu and Ijaz Ahmad Chaudhary, JJ.

BILAL ARSHAD--Appellant

versus

STATE--Respondents

Crl. A. No. 175-J of 2007 & M.R. No. 596 of 2006,
heard on 14.9.2011.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b), 449, 324 & 337-F(ii)--Murder reference--Conviction and sentence--Challenge to--Quantum of sentence--The appellant has been found teen-ager and he has yet to enter in realities of life--Although appellant contested case by gainsaying charge framed against him and hot pursuits is vivid through cross examination but all of sudden when he was examined u/S. 342, Cr.P.C., admitted commission of occurrence--This fact can reasonably be construed in favour of appellant that he must has been repented through his scruple and boldly spoke truth--This particular act of bravery of appellant is required to be appreciated not for purpose of imposition of capital sentence but with this angle that Allah Almighty shows His love and affection with a person who speaks nothing except truth--Principles of administration of criminal justice are very lucid that burden of proof always remains on party who asserts--The prosecution has fully been able to prove its case against appellant beyond any shadow of reasonable doubt but for reasons herein before discussed we are of view that quantum of sentence imposed upon appellant is required to be reduced to imprisonment for life and same is accordingly commuted from death sentence to imprisonment for life--Resultantly death sentence imposed to appellant is not confirmed and murder reference is answered in negative.                                                             [Para 11, 12 & 13] A, C & D

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

----S. 418--Appeal may lie on matter of fact--Phraseology of Section 418 of Criminal Procedure Code, 1898 is very much illuminative that an appeal may lie on a matter of fact as well as on a matter of law and its explanation is alleged severity of sentence shall for purpose of this section be deemed to be a matter of law--Age of appellant has primarily been considered in Penal servitudes.                              [Para 12] B

Mr. Abid Hussain @ Abid Raza Shaheen, Advocate for Appellant.

Mr. Tariq Javaid, DDPP for State.

Date of hearing: 14.9.2011.

Judgment

Mazhar Iqbal Sidhu, J.--This judgment will dispose of above captioned criminal appeal filed by Bilal Arshad appellant as well as Murder Reference for confirmation of his death sentence or otherwise, who was convicted by learned Addl. Sessions Judge, Faisalabad in a case vide FIR No. 819/04 dated 06.09.2004 under Sections 302/324/449, PPC registered at Police Station, Nishatabad, Distt. Faisalabad vide impugned judgment dated 17.05.2006 and sentenced as follows:-

Bilal Arshad, Appellant,

i)        Death sentence under section 302(b), PPC and to pay an amount of Rs. 1,00,000/-as compensation to the legal heirs of the deceased Nadeem Aslam under Section  544-A, Cr.P.C. and in default whereof to undergo S.I. for six months.

ii)       Ten years R.I. under Section 449, PPC with fine of Rs. 50,000/-and in default whereof to further undergo SI for three months.

iii)      Ten years R.I. under Section 324, PPC for committing murderous assault on Ijaz Ahmad injured PW with fine of Rs. 50,000/-and in default whereof to further undergo SI for three months.

iv)      Three years R.I. under Section 337-F(ii), PPC on two counts.

All the sentences were ordered to run concurrently.

2. The facts disclosed by complainant Shehbaz Aslam (PW.9) in FIR Exh.PE/1 are that he deals with the business of rice. On 6.9.2004 at about 9.00 PM (night) he along with his brothers Nadeem Aslam deceased, Ejaz Ahmad injured and Baber Aslam-PW were sitting in the Courtyard of his house, suddenly, Bilal Arshad appellant, his nephew entered in the house while armed with pistol. His brother Nadeem Aslam deceased asked him not to come their house armed with pistol as they do not permit any person to come to their house armed with pistol. At this, Bilal Arshad appellant became furious and started abusing Nadeem Aslam, the deceased one. Ijaz Ahmad, his other brother, reprimanded Bilal Arshad appellant but in rage he made two straight fire shots at Nadeem Aslam that landed on his chest and as a result of which he fell to the ground. Ijaz Ahmad came forward, and then appellant Bilal Arshad again made two fire shots hitting Ijaz Ahmad (injured PW) on his right foot and left calf. He also fell to ground. He and Baber Aslam took Nadeem Aslam deceased the then injured and Ijaz Aslam injured to the hospital where Nadeem Aslam succumbed to the injuries while Ijaz Ahmad (Injured) was admitted in the hospital. He further narrated that Bilal Arshad is his nephew and is a street-boy and disobedient. He on a small quarrel committed Qatl-e-Amd of Nadeem Aslam deceased while injured Ejaz Ahmad.

3. Shoukat All SI (PW.13) deposed that on 6.9.2004 he after receipt of information of the occurrence arrived at Allied-Hospital, Faisalabad. He inspected the dead body, prepared injury sheet Exh.PB and inquest report Exh.PC and handed over the dead body to Muhammad Azam 3206/C for the purpose of post mortem examination. Thereafter, he proceeded to the place of occurrence, inspected the spot, took blood imbrued earth and grass, made the same into sealed parcel by memo. Exh.PH attested by the PWs. He also secured two empties of bullets, made the same into sealed parcel and took into possession vide memo. Exh.PJ attested by the PWs. He prepared rough site-plan Exh.PL of the place of occurrence. On 7.9.2004, Muhammad Azam constable, after the post mortem, presented before him last worn togs of the deceased P-1 to P-3, which he took into possession vide memo. Exh.PG attested by the PWs. On 10.9.2004 he got prepared scaled site-plan in duplicate Exh.PF and Exh.PF/1. On 13.9.2004, he arrested the appellant and on the follow day obtained his physical remand from the Court of Area Magistrate. On 16.9.2004, appellant Bilal Arshad while in policed custody, made a disclosure and got recovered pistol 9 MM P-5 along with four live bullets P-6/1-4, made the same into sealed parcel and took into possession vide recovery memo. Exh.PK attested by the PWs. He also prepared rough site-plan Exh.PK/1 regarding the said recovery. On 18.9.2004 appellant was sent to judicial lock up. He also recorded the statements of the PWs step-wise. He handed over the case property to the Moharrar of Police Station. Investigation culminated in preparing the report under Section 173, Cr.P.C.

4. Trial concluded, resulted in pronouncement of impugned judgment.

5. At the trial, prosecution in order to prove its case, produced 13 PWs in all.

Dr. Muhammad Nadeem, Demonstrator, Forensic Medicine Department, PMC, Faisalabad was examined as PW.1. He on 07.09.2004 at 10.20 a.m. conducted post-mortem examination on the dead body of Nadeem Aslam deceased and observed as under:

INJURIES:

i)        A firearm wound of entry oblique in shape 3 cm x 1-½ cm in size with inverted and abraded margins on right chest, 5 cm below right clavicle, 9 cm above right nipple and 10 cm away from midline.

2-A     A fire arm wound of entry 1 cm x 1 cm in size with abraded and inverted margins on outer aspect of right fire arm, 5 cm above right wrist, 20 cm below right elbow joint.

2-B     A fire arm wound of exit 1 cm x 1 cm in size with everted margin on inner side of right fore arm, 4 cm opposite to entry wound.

REMARKS

          In his opinion, cause of death was haemorrhage and shock caused by Injury No. 1, which was inflicted by firearm and was ante mortem and was sufficient to cause dearth in ordinary course of nature. Injuries No. 2-A and 2-B were also inflicted by firearms and were ante mortem.

          Probable time that elapsed between injury and death was within a few minute and between death and post mortem was within 24 hours.

          Exh.PA was the correct carbon copy of the post-mortem report and Ex.PA and Exh.PA/2 were the diagram showing the location of the injuries, the same bore his signatures. He also endorsed injury sheet Exh.PB and inquest report Exh.PC regarding the dead body of Nadeem Aslam.

          Dr. Tahir Ismail, CMO, Allied Hospital, Faisalabad was examined as PW.2. He on 6.9.2004 at about 9.10 PM medically examined Ijaz Ahmad injured and observed three injuries on his body. All injuries were caused by firearms. Exh.PD was the correct carbon copy of MLC while Exh.PD/1 was the diagram of injuries showing the location of injuries.

Learned APP by renouncing PWs namely Dr. Ali Amin, Naveed Yousaf and Ahmad Ali 937/HC as being unnecessary, thereafter by tendering in evidence reports of Chemical Examiner regarding blood imbrued earth Exh.PN and that of Serologist Exh.PN/1 and report of Forensic Science Laboratory as Exh.PQ, closed the prosecution case.

6. Then the statement of the appellant under Section 342, Cr.P.C. was recorded wherein he admitted the entire incriminative prosecution evidence. He neither opted to appear on oath as required under Section 340(2), Cr.P.C. nor opted to produce evidence in defence. He while answering to the question “why is this case against you and why the PWs have deposed against you?” stated as follows:

“I have rightly been involved in this case.”

The trial concluded in conviction and sentence of the appellant as mentioned supra.

7. In support of this appeal learned counsel for the appellant submits that it is a bad bloodless case; circumstances reveal that occurrence took place at the spur of the moment and before the firing, the deceased forbade the appellant his arrival with pistol in his house, whereupon appellant became unpalatable and also flared up and then under the heat of passions, allegedly made firing might not with an intention to kill the deceased and injuring to another. Further submitted that appellant as well as deceased Nadeem Aslam and Ejaz Ahmad injured are inter se related and all of a sudden hoodoo made intruded the houses of both the parties. In this respect it has been submitted that the prosecution has petered in screening out the cause of abstaining the appellant to his house with pistol.

8. Learned counsel submits that recovery of spent crime empties four in number and the pistol P-5 has been falsely planted upon the petitioner and the report of Firearm Examiner/Ballistic Expert has also been manoeuvered to beef up the case of the prosecution. Further submitted that despite the fact that the appellant has admitted the occurrence in all respects in his statement recorded under Section 342, Cr.P.C. and even has not offered any explanation as to happening of the incident and it is the burden of proof remains on the prosecution and if the prosecution’s own case provides a benefit to an accused, then the same has to be resolved in favour of the accused. Further submits that under the preternatural circumstances through the behaviour of the appellant, he has shown bravery by making truthful statement before Court and the Almighty Allah not only likes the truthful persons but also admires them with appreciation. In this background, statement of the appellant under Section 342, Cr.P.C. may not be interpreted and continued against the appellant rather it requires to be appreciated. Further submitted that the appellant was teen-ager at the time of occurrence and perhaps was not aware the implications of his act having been perpetrated by him and in ambient circumstances, it is a fit case to provide extenuation by way of commuting his capital sentence to Imprisonment for life.

9. Learned DDPP has opposed the acceptance of appeal as well as supplication of reduction of quantum of sentence clinchingly through exquisite arguments that FIR was lodged without being gained any undue time for deliberations and consultations; the appellant came in the house of the deceased with a sophisticated weapon and just on refraining him as to why he had come to the house with weapon, he reacted unpalatably and being so on a matter like the rotting, made indiscriminate firing resulted in death of a young person Nadeem Aslam and caused injuries to Ijaz Ahmad injured PW.11. Further submitted that presence of the PWs can absolutely not be questioned being inmates of the house and indubitably the occurrence took place in the interior of house and this fact has gone unchallenged and the report of the Ballistic Expert is positive and the same synchronizes the version of the prosecution, in addition to that, the appellant has admitted the commission of occurrence in his statement recorded under Section 342, Cr.P.C. while answering to the allegations put by the prosecution against him by way of affirmation. Lastly, it has been submitted that teen-age by itself is no ground to extend him benefit of the same and contrarily has been argued that possessing of formidable weapon and on a petty matter he did away with the life of an innocent young chap and caused injuries to Ijaz Ahmad PW, necessarily and primarily exposes and demonstrates element of desperation on part of the appellant and has prayed for dismissal of appeal as well as positive answer to the murder reference.

10. We have hearkened the arguments and have gone through the record.

11. It has gone undisputed that complainant party as well as the appellant have inter se propinquity and no bad blood has been found between them ever earlier. The reporting of incident with promptitude excludes chances of deliberations and consultations even question of mistaken of identity of the appellant does not arise. This fact cannot be refuted that deceased was the visitor in the said house. At this juncture, it is also regarded that the alleged weapon held by the appellant was not carried by him in order to cause harm to any person in the house of the complainant party whereas without being exposed of any undue/unusual act by the appellant, he was reprimanded by the deceased for taking weapon and perhaps the deceased being elder of the appellant might have expectations that the appellant would not react seriously but happened otherwise suddenly without any intention and by passing over the outcome of firing being ragged, the appellant made firing cannot be ruled out. The appellant was the regular visitor to the house of the complainant party and there was nothing wrong in the house of the occurrence and why the appellant was forbidden by the deceased person to bring a pistol in the house, has been found nebulous and being mystified remained in shrouds.

The appellant has been found teen-ager and he has yet to enter in realities of life. Although the appellant contested the case by gainsaying the charge framed against him and the hot pursuits is vivid through cross-examination but all of sudden when he was examined under Section 342, Cr.P.C., admitted the commission of occurrence. This fact can reasonably be construed in favour of the appellant that he must has been repented through his scruple and boldly spoke the truth. This particular act of bravery of the appellant is required to be appreciated not for the purpose of imposition of capital sentence but with this angle that the Allah the Almighty shows His love and affection with a person who speaks nothing except truth. Principles of administration of criminal justice are very lucid that burden of proof always remains on the party who asserts. The affirmative replies of the accused/appellant to the incriminative evidence put to him under Section 342, Cr.P.C. cannot be interpreted to confession. However, this particular stance of the appellant has to be evaluated in the light of facts and circumstances of the case and if prosecution’s own case through its own infrastructure provides a benefit to an accused person, even then his admission under Section 342, Cr.P.C. to the allegations cannot be construed as confession. The appellant being teen-ager is required to be dealt with leniently as to the quantum of sentence.

12. Phraseology of Section 418 of the Criminal Procedure Code, 1898 is very much illuminative that an appeal may lie on a matter of fact as well as on a matter of law and its explanation is the alleged severity of sentence shall for the purpose of this section be deemed to be a matter of law. Age of the appellant has primarily been considered in the Penal servitudes. In these circumstances, being guided by the celebrated legal precedents of the Hon’ble Apex Court if a case of an accused ranging slightly above to 18 years, then of course being a case of border line, benefit as to quantum of sentence can be given to the accused and the same is accordingly extended in this case in favour of the appellant.

13. For what has been discussed above, we have been convinced that the prosecution has fully been able to prove its case against the appellant beyond any shadow of reasonable doubt but for the reasons herein before discussed we are of the view that quantum of sentence imposed upon the appellant is required to be reduced to imprisonment for life and the same is accordingly commuted from death sentence to imprisonment for life. Resultantly death sentence imposed to the appellant is NOT CONFIRMED and murder reference is answered in the NEGATIVE.

14. So far as quantum of sentence imposed for allegedly causing injuries to Ijaz Ahmad injured PW.11 under Section 324, PPC is concerned, the same is reduced from 10 years R.I. to 05 years R.I. and the amount of fine is also reduced from Rs. 50,000/-to Rs. 25,000/-and in default whereof, he shall further undergo S.I for 1½ months instead of three months. Likewise quantum of sentence Imposed under Section 337F(ii), PPC, is also reduced from three years R.I. to 1½ year R.I. on two counts. As far as quantum of sentence imposed under Section 449, PPC is concerned, the same, too, is reduced from 10 years R.I. to five years R.I. and the amount of fine is also toned down from Rs. 50,000/-to Rs. 25,000/-and in default whereof, he shall further undergo S.I. 1½ months instead of three months. Amount of compensation in the ambient circumstances of the case is also toned down from Rs. 1,00,000/-to Rs. 50,000/-and in default whereof to undergo six months SI. The appellant shall be entitled to have the benefit of Section 382-B, Cr.P.C. and all the sentences are ordered to run concurrently/ simultaneously. With these modifications, the instant Appeal is dismissed.

(A.A.K.)          Appeal dismissed

Defect of investigation of case did not vitiate trial

PLJ 2004 SC 819

[Appellate Jurisdiction]

Present: MIAN MUHAMMAD AJMAL AND FAQIR MUHAMMAD KHOKHAR, J J.

SASTAY KHAN MASOOD-Petitioner

versus

STATE-Respondent Crl. P. No. 112-L of 2004, decided on 30.3.2004.

(On appeal from judgment dated 15.1.2004 of the Lahore High Court, Multan Bench, passed in Criminal Appeal No. 212 of 1994)

(i)  Constitution of Pakistan, 1973--

—Art. 185(3)--Leave to appeal-Grant of-Prior registration and investigation of case-Prejudice-FIR got registered u/S. 161 PPC and 5(2) Prevention of Corruption Act, 1947-Petitioner apprehended with tainted currency notes-Investigation transferred from Provincial Anti-Corruption Est. to FIA-Fresh FIR registered by FIA and same was being investigated and after submission of challan-Trial Court found petitioner guilty of charge and sentenced him—High Court in appeal affirmed judgment-Hence this petition-Objection-Prejudice-Held: Objection against registration and initial Investigation of case by PACE, suffice it so that no prejudice caused to petitioner on account of any defect or irregularity in course of investigation-FIA registered a fresh FIR conducted investigation and submit challan-Defect of investigation of case, if any, did not affect the jurisdiction of trial Court.

[P. 821] A

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 537-Irregularities in Police Investigation-Effect of-Held: Irregularity in police investigation is curable u/S. 537 and docs not vitiate trial.

[P. 821] B

Rana Muhammad Arshad Khan, ASC for Petitioners.

Nemo for State.

Date of hearing: 30.3.2004

JUDGMENT

Faqir Muhammad Khokhar, J.--This criminal petition for leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, is directed against judgment dated 15.1.2004, passed by a learned Single Judge of the Lahore .High Court, Multan Bench in Criminal Appeal No. 212 of 1994.

2.           The brief facts of the case are that Ahmed Yar, P.W-6, made anapplication to the Anti-Corruption Establishment, Vehari stating thereinthat the petitioner, who was a Sub-Divisional Clerk in the office of S.D.O,WAPDA, Mailsi, District Vehari, had demanded Rs. 300/- from him asillegal gratification in connection with the installation of electric meter.However, the matter was settled at Rs. 200/-. A case FIR No. 14 dated8.8.1984 'was registered against the petitioner at the Police Station Anti-Corruption Establishment, Vehari, under the provisions of Section 161 PPG
read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafterreferred to as the Act). A raiding party constituted for the purpose conducted
a raid and recovered from him tainted currency notes of Rs, 200/-.

3.           Since, WAPDA was an organisation of the Federal Government,
therefore,  the  investigation   of the  case  was  transferred  to  FederalInvestigation Agency, Mailsi, District Vehari, where a fresh F.I.R. No. 168dated 4.10.1984 was registered and investigated against the petitioner underSection 161 P.P.C. The Agency submitted the challan before the Special
Judge (Central), Multan. The trial Court, by judgment dated 15.12.1994,found the petitioner guilty of the charge under Sections 161 PPC and 5(2) of
the Act. He was convicted and sentenced to 2 years R.I with a fine ofRs. 500/- and in default of payment of fine to further undergo R.I for twomonths. However, the benefit of Section 382-B Cr.P.C. was extended to him.He preferred Criminal Appeal No. 212 of 1994 against his conviction andsentence which was dismissed by a learned Single Judge of the Lahore High
Court, Multan Bench, by the impugned judgment dated 15.1.2004. Hencethis petition for leave to appeal.

4.    The learned counsel for the petitioner argued that the Anti-Corruption Establishment had no jurisdiction to register and conduct initialinvestigation  of the  criminal  case against the petitioner who was anemployee of WAPDA which had been set up by the Federal Government.The complainant Ahmed Yar, P.W-6, had also sworn an affidavit therebyexonerating the petitioner. It was further contended that P.W-4 Liaqat Ali,LDC, WAPDA, had produced the relevant record which showed that thepetitioner was not officially concerned in the matter. The learned counselsubmitted that the raiding Magistrate, P.W-5 Rana Irshad Ali had stated
before the trial Court that neither he had heard the conversation nor the
bribe money was passed within his view and that the tainted money wasfound lying on the ground. The learned counsel further submitted that thetainted currency notes were not produced before the trial Court. Therefore,the trial  of the  petitioner was vitiated.  It was lastly argued that the

prosecution had failed to prove its  case against the petitioner beyond reasonable doubt and the impugned judgment was liable to be set aside.

5.   We have heard the learned counsel for the petitioner at somelength. We have also gone through the available record. We find that thetrial Court as well as the High Court believed the prosecution evidence quathe petitioner. Rana Irshad Ali, PW-5 was the raiding Magistrate. He clearly
stated that the petitioner was holding the tainted currency notes in his handwhich he threw on the ground when he introduced himself to him. The same
were recovered vide memo Ex.P.W-5/C. He also proved the raid reportEx.P.W.-5/G.  Another  decoy witness,  P.W-2,  Bahadur Khan,  a Police
Constable, also stated that the petitioner threw the tainted currency noteson the ground immediately after the raiding Magistrate disclosed his identity
to him. The Police Inspector Malik Khadim Hussain, passed away during thetrial of the case. The bribe money could not be produced before the trialCourt as the same was found (vide Ex.P-D, E and F) to have beenmisappropriated    by    the    then   Moharrar    of   the    Anti    CorruptionEstablishment, Vehari. The case against the petitioner was duly establishedby the prosecution.

6.      As   regards  the   objection   against  registration   and  initialinvestigation of the case by the Provincial Anti-Corruption Establishment,suffice it to say that no prejudice was shown to have been caused to thepetitioner   on   account   of  any   defect   or   irregularity   in   the   course   ofinvestigation.   We,   however,   find   that   on   its   transfer,   the   FederalInvestigation Agency registered a fresh F.I.R., conducted investigation andsubmitted final report under Section 173 Cr.P.C. for taking cognizance of theoffence by the trial Court. The defect of investigation of a case, if any, did notaffect the jurisdiction of the trial Court to try the case in the absence of anymiscarriage of justice. Ordinarily, an irregularity in Police Investigation iscurable under Section 537 Cr.P.C. and does not vitiate the trial. A similarquestion was considered by the Superior Courts in a series of cases. In M.Abdul   Latif  vs.   G.M.   Paracha   and   others   (1981   SCMR   1101),   an
investigation into the offences of corruption by a Police Officer attached tothe Anti Smuggling (Rice and Paddy Mobile Team) was not interfered with.

7.           In another case titled The Crown vs. Mehr Ali (PLD 1956 F.C.106), the investigation for an offence under Section 161 PPC against aCentral Government servant was conducted by an Inspector of Sindh Anti-
Corruption Police. The Federal Court took the view that even if it could beestablished that the investigation by the Sindh Anti Corruption Inspectorwas irregular, the result would not be to deprive the Special Magistrate ofjurisdiction or otherwise to affect the validity of the proceedings of the trial.

8.           In Ch. ManzoorElahi vs. Federation of Pakistan etc. (PLD 1975S.C. 66 at page 87), it was held that the adjudication of the guilt or innocenceof an accused person had no nexus with the manner in which he wasproduced for trial before a Court of competent jurisdiction. Therefore, if the

A

B

evidence placed before the Court brings home an offence to the accused                        person, he would be properly convicted notwithstanding any illegality in the

                        mode by which he was brought to trial. A some what similar view was taken

                        in the cases of the State versus Muhammad Hussain (PLD 1968 S.C. 265),

                               M.S.K Ibrat versus The Commander-in-Chief Royal Pakistan Navy and

                       others (PLD 1956 S.C. (Pak) 264), H.N Rishbud and another versus State of

                               Delhi (AIR 1955 S.C. 196) and Major E.G Barsay versus State of Bombay^]       (AIR 1961 S.C. 1762). However) in an appropriate case, a Police Officer who

                               is not authorised by law, to register and investigate a particular case or

                       category of cases, can be proceeded against for misconduct, abuse of power

                               and dereliction of duty notwithstanding that a trial of a case before a Court

of law may not be quashed on such a ground.

9.  The High Court after re-appraisal of the entire evidence on recordaffirmed the judgment of the trial Court. The impugned judgment does notsuffer from any legal infirmity so as to warrant interference by this Court.Even otherwise, this is not a fit case for grant of leave to appeal.

10.    For the foregoing reasons, we do not find any merit in thispetition which is dismissed and leave to appeal is refused accordingly.

(A.A.K.)                                                                          Petition dismissed.

Judgment on Re-investigation

PLJ 2015 Karachi 190 (DB)

Present: Muhammad Ali Mazhar and Naimatullah Phulpoto, JJ.

ZEESHAN MUSTAFA LASHARI and another--Petitioners

versus

PROVINCE OF SINDH through the Chief Secretary, Sindh, Karachi and others--Respondents

C.P. No. D-5158 of 2014, decided on 24.11.2014.

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

----Ss. 169, 170 & 173--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Reinvestigation-Essential for re-investigation after submission of challan--No power to C.M. to issue direction for reinvestigation--Police cannot adjudicate guilt or innocence of offender--Question of--Whether person is guilt or not rests with Court of law and not with police--Fair and impartial investigation--Jurisdiction and authority to pass order for reinvestigation--Validity--If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential FIR cannot be cancelled nor the accused can be discharged--Guilt or innocence of the accused can only be determined by the Court.       [Pp. 195 & 196] A

Police Order, 2002--

----S. 18(6)--Constitution of Pakistan, 1973, Art. 199--Reinvestigation--Change of investigation--Recommendations of board--Validity--Investigation would not be changed except after due deliberations and recommendation by a board headed by an officer not below the rank of SSP.                 [P. 197] B

Investigation--

----Change of investigation--Final order for changing of investigation--Second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer.  [P. 197] C

Re-investigation--

----Essential--Reinvestigation would be ordered denovo in routine--Validity--Reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation.       [P. 198] D

Investigation--

----Defect in investigation or challan--Non-allowance of reinvestigation--Validity--It is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all accused will be afforded ample opportunity to defend the indictment--Non-allowance of reinvestigation does not mean the deprivation of the right of fair trial of the accused persons.                              [P. 198] E

Re-investigation--

----Victim of reinvestigation--Deteriorate criminal administration of justice--Validity--Exercise of jurisdiction of passing orders for reinvestigation would not be taken so casually, callously and or offhandedly at the whims or aspiration.  [P. 198] F

Mr. Faisal Siddiqui, Advocate for Petitioners.

Mr. Abdul Razak, Advocate for Respondents Nos. 5 & 6.

Mr. Mustafa Mahesar, AAG.

Mr. Shahzado Saleem, APG.

Mr. Mazhar Hussain Alvi, ADIGP (Legal) Karachi.

S.I. (Legal) Tariq Jawed Bhatti and I.O. Inspector Muhammad Mubeen, P.S. Darakhshan, Karachi.

Date of hearing: 30.10.2014.

Order

Muhammad Ali Mazhar, J.--This constitutional petition is brought to challenge the impugned order dated 10.9.2014 issued by AIGP/Operation for and on behalf of Inspector General, Sindh Police whereby a committee was constituted for the re-investigation of Crime No. 235/2014, lodged at P.S.Darakhshan South Zone, Karachi under Sections 302, 324 and 34, PPC read with Section 7 of Anti-Terrorism Act, 1997.

2.  The brief facts of the case as narrated in the memo of petition are that the brother of Petitioner No. 1 and son of Petitioner No. 2 was murdered by Respondent No. 5 and his police guards on 8.5.2014. The Petitioner No. 1 lodged the FIR No. 235/2014 at P.S. Darakshan, Karachi on same date against Respondent No. 5 and others. Pursuant to the FIR, the I.O. submitted the charge-sheet No. 181/2014 on 11.6.2014 in the trial Court which was accepted on 16.6.2014. The Respondent No. 5 moved an application in the trial Court under Section 7 of Juvenile Justice System Ordinance, 2000 and vide order dated 30.6.2014 the Respondent No. 5 was declared juvenile and his case was separated for trial. He moved one more application under Section 23 of Anti-Terrorism Act, 1997 for the transfer of the case to the ordinary Court for trial, which was dismissed vide order dated 2.9.2014. Before submission of the charge-sheet the Petitioner No. 2 filed a Constitutional Petition No. 2667/2014 in this Court which was disposed of vide order dated 21.5.2014 with the following directions:

“After hearing all the learned counsel for the respective parties, Mr.Ali Sher Jakhrani DIG Police (Legal), Karachi makes a categorical statement before this Court that the investigation of the incident would be carried out in a very transparent, impartial and legal manner and it would be a test case for the Police Department and the Inspector General of Police will ensure that the Investigating Officer of the case is not influenced from anyone including the father of the alleged assailant. This statement satisfies the learned counsel for the petitioner, who seeks disposal of this petition in the above terms. Order accordingly. This petition stands disposed of in the above terms.”

3.  It is also a matter of record that the Respondent No. 5 filed a Criminal Misc. Application No. 211/2014 in this Court with the grievance that the I.O. has concealed vital piece of evidence so he prayed for reinvestigation of the case. However, on 12.9.2014 the Criminal misc. was dismissed as withdrawn.

4.  The learned counsel for the petitioners argued that the impugned order does not reflect any convincing reason as to why re-investigation is essential after submission of report under Section 173 Cr.P.C in the trial Court. The Respondent No. 5 though filed a criminal misc. application for reinvestigation, but it was withdrawn unconditionally. The challan has already been submitted and the matter is fixed for framing of charge. The impugned order has been issued to subvert and trigger interference in the fair trial with an obvious reason that the Respondent No. 5 is son of an influential police officer of Sindh Police. He further argued that the impugned order is without jurisdiction, illegal and has no legal effect. He also referred to the parawise comments filed on behalf of Respondent No. 3 (Inspector General of PoliceSindh) in which it is clearly stated that the Respondent No. 5 has moved an application to the Chief Minister Sindh in which he requested for reinvestigation of the matter and in compliance of the order of the Chief Minister, a team has been constituted for reinvestigation vide impugned order. Learned counsel for the petitioners further argued that the Chief Minister has no powers under the Sindh Government Rules of Business or otherwise to issue any directions to the I.G. Police for reinvestigation of any matter and on this notch also the impugned order is liable to be set-aside. According to the Entry No. 14 of Schedule-I of the Sindh Government Rules of Business, 1986, the Secretariat Department of Police is Home Department while its head is the I.G. of Police. Learned counsel for the petitioners relied upon the case of RiazHussain v. State, reported in 1986 SCMR 1934 in which the apex Court held that the System of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favorable reports obtained. This in no way assists Courts in coming to a correct conclusion. It rather creates more complications to the Court administering justice. In the case of Muhammad Nasir Cheema v. Mazhar Javaid reported in PLD 2007 S.C. 31, the apex Court held that no power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the Court desired or only with respect to such offences as the Court wished. It was further held that the report under Section 173, Cr.P.C., had already reached to the trial Court where the trial has already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law.

5.  Mr.Abdul Razak, learned counsel for the Respondent Nos. 5 & 6 argued that the Respondent No. 5 has been falsely implicated in the case. The investigation was not properly carried out by the I.O. The alleged crime was committed inside the bungalow while the accused received firearm injuries at his back side while he was sitting at the driving seat of his vehicle parked outside the main gate. Challan does not carry particulars of inquest report of the deceased Suleman Lashari and P.C. ZaheerAhmed Rind. The investigation conducted by the I.O. was mala fide and dishonest. According to post mortem report one S.M.G. bullet was recovered from the body of deceased Suleman Lashari, while in the FSL report one steel core of crime bullet was shown. The Respondent No. 5 arrived at the main gate of bungalow of the complainant and immediately his vehicle was ambushed and on his vehicle “Vigo” various bullets were fired from upper and back side resultantly the accused had received bullet injuries and P.S. Zaheer Ahmed Rind had died. He further argued that criminal misc. application was not dismissed on merits but the I.G. Police had passed an order for re-investigation on 10.9.2014, therefore, the application was withdrawn on 12.9.2014. It was further contended that the I.O. has concealed material piece of evidence therefore, the re-investigation in this case is a fundamental right of the accused in terms of Article 10-A of the Constitution. It was further contended that while accepting the challan, the learned trial Court did not apply its mind properly. He referred to the case of Bahadur Khan v. Muhammad Azam, reported in 2006 SCMR 373 in which the hon’ble Supreme Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173,Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence on which the accused had been tried and the case was finally decided up to the level of the High Court or Supreme Court.

6.  The learned AAG argued that Chief Minister has only passed the order that the reinvestigation may be conducted. He further argued that nothing has been placed on the record by the Respondent Nos. 5 and 6 to show that on what basis the reinvestigation was required to be carried out while the learned APG opposed the order of the reinvestigation on the premise that the Chief Minister has no power to order any reinvestigation and the AIG who issued the reinvestigation order has completely failed to mention any reason in which the reinvestigation is required in this case. The I.O. Muhammad Mubeen stated that the entire investigation was carried out independently and honestly. The identification parade was conducted by the Judicial Magistrate. The eyewitness identified the accused. Empties were also recovered from the place of incident and FSL examination was also conducted. One bullet of SMG was recovered from the dead body of Suleman Lashari while one bullet was passed through his body. No application was made for reinvestigation to the I.O. The challan has already been submitted and the matter is fixed for framing of charge.

7.  Heard the arguments. All the learned counsel for the parties had mutually agreed the disposal of this petition at katcha peshi stage and they argued their case extensively. The crux of Section 169, 170 and 173, Cr.P.C. is that the I.O. has to submit the final report with regard to the result of his investigation for taking cognizance or passing order under Section 173. The police cannot adjudicate the guilt or innocence of the offender because it is not their duty to decide which party is wrong or right. The investigation is required to be completed without unnecessary delay or impediment and as soon as it is complete the challan is required to be submitted not later than 14 days. Ultimate decision as to whether a person is guilty or not rests with the Court of law and not with the police. Since the Petitioner No. 2 had an apprehension that a fair and impartial investigation would not be conducted due to influence of Respondent No. 6 therefore, he filed C.P. No. D-2667/2014 in this Court which was disposed of in view of the statement of AIG Police (Legal) who assured that the investigation would be carried out in a transparent, impartial and legal manner. On the other hand, the Respondent No. 5 had filed Criminal Misc. Application for the reinvestigation of the Crime No. 235/2014, however, his criminal misc. application was withdrawn on 12.9.2014. The Respondent No. 5 written a letter to the Chief Minister Sindh on 15.8.2014 requesting reinvestigation of the case by an honest, reputable and intelligent joint investigation team headed by senior officer of the department. The AIGP (Legal) submitted comments on behalf of I.G. Police and also attached a copy of letter dated 25.8.2014 communicated by Deputy Secretary, Chief Minister's Secretariat, Sindh Karachi to the I.G. Police with the direction of the Chief Minister which is reproduced as under:--

“May be re-investigated through some
independent Senior Officer

Sd/-
23-08-2014
Chief Minister, Sindh”

8.  While the Respondent No. 4 in his comments stated that the I.G. Police Sindh has jurisdiction and authority under law to pass the order for reinvestigation of a matter in order to reach just and correct conclusion. On the contrary, in the comments filed on behalf of I.G. it is stated that the order for reinvestigation was made to comply with the order of the Chief Minister Sindh, so that fair trial in view of Article 10-A of the Constitution of Pakistan, 1973 may be made. Nothing is transpiring from the impugned order or the comments to demonstrate us whether reinvestigation is required by the police department to unearth the truth because earlier investigation was found defective and not good enough due to visible and seeming lapses on the part of Investigating Officer. We are also fortified by the dictum laid down by the hon’bleSupreme Court in the cases of Riaz Hussain & Muhammad Nasir Cheema (supra) that the system of reinvestigation is a recent innovation which is always taken up at instance of influential people and favorable reports are obtained. This in no way assists Courts in coming to a correct conclusion. Where the trial has already commenced, changing the investigation or ordering further investigation is an exercise unsustainable in law.

9.  Nothing is reflecting to us from the impugned order to decipher that while ordering reinvestigation any independent mind was applied to decide whether the reinvestigation is necessary or not? Whether the I.O. in the earlier investigation ignored or failed to collect material piece of evidence. The trend of directing fresh investigation after submission of challan and taking cognizance is neither warranted nor approved. If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential because the FIR cannot be cancelled nor the accused can be discharged after taking cognizance of the case by the trial Court and the question of guilt or innocence of the accused can only be determined by the Court alone and none else.

10.  The learned counsel for the Respondent No. 5 referred to the case of Bahadur Khan (supra) in which the apex Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but in this very judgment the case of Riaz Hussain (supra) was also quoted in which the system of reinvestigation was considered to be a recent innovation taken up at the instance of influential people. In the case of Muhammad Yousaf v. State reported in 2000 SCMR 453, son of the petitioner died in police custody. His death was caused due to torture by police and the petitioner got registered a case against police officials responsible for the offence, but the investigation agency was not submittingchallan in the trial Court under Section 302. The apex Court held that no legal bar exists on reinvestigation of a case even after submission of final report under Section 173, Cr.P.C. and police could carry out fresh investigation and submit its report to the Court. Consequently, the hon'ble Supreme Court directed the investigation agency to complete reinvestigation and submits its report to the trial Court within a period of four wreeks. At this juncture, we would like to quote the case reported in PLD 1965 (W.P) Lahore 734 (Atta Muhammad v. Inspector General of Police, West Pakistan Lahore & others). In which the learned Court held as under:--

“There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, the corrupt behavior of the police officers concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of crime and lay the whole facts bare for determination by the competent tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous investigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and has himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late.”

11.  A visit to the precedents quoted above and the law expounded therein unequivocally shows that the reinvestigation may be conducted by the police in peculiar circumstances of the case and this can also be directed by the superior Courts but not at the instance of influential people to obtain favorable reports which may create complications to the Court, while administering justice. One more significant facet which we cannot ignore at this echelon is Section 18 of the Police Order, 2002 which was relevant to the posting of head of investigation in which under sub-section (6) it was provided that investigation shall not be changed except after due deliberations and recommendation by a board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendent of Police, one being Incharge of the investigation of the concerned district. The first proviso attached to this section enumerated that final order for the change of investigation shall be passed by the head of investigation in the general police area who shall record reasons for change of such investigation. One more proviso was also attached that the second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer as the case may be. At this point in time, it is necessary to point out that Police Order, 2002 to the extent of its application to the Province of Sindh was repealed on 15.7.2011 by Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act 1861) Act, 2011, which means that from the date of aforesaid repeal, Police Order, 2002 is not applicable to the Province of Sindh.

12.  Notwithstanding the repeal of Police Order, 2002, there is no absolute bar in Cr.P.C. which debars the I.O. from submitting fresh report in supersession of his earlier one either on his own endeavor or on the direction of the superior police officer but there are certain conditions and the limitation which may include the visible defects in the first investigation or flaws in the final report detected subsequently or the first investigation is unsatisfactory for many reasons including non-availability of the evidence or the successful induction of false evidence during the investigation or the corrupt behavior of the police officer. What we find out in this case is neither the I.O. has made any request for the reinvestigation, rather he robustly argued before us that he has completed the entire investigation with utmost care nor anything is available on record to show that the superior officers or the I.O. feel reinvestigation necessary. The reinvestigation may be conducted to unearth the truth where the fairness, rectitude and impartiality demands but it does not mean that after submission of challan; reinvestigation should be ordered denovo in a routine or as a custom without any rational or articulated justification. The reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation. The defect in the investigation or the challan if any can be easily examined by the trial Court and it is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all the accused will be afforded ample opportunity to defend the indictment so in our view non-allowance of the reinvestigation in this case does not mean the deprivation of the right of fair trial of the accused persons as envisioned under Article 10-A of the Constitution. On the contrary if the trend of applying or directing reinvestigation in every case is promoted or permitted as a fashion without any rational or pressing need then there will be no end to it rather it would amount an invitation to every person to apply for reinvestigation in order to drag and delay the proceedings and being aggrieved with the result of reinvestigation, the other side feeling as a victim of reinvestigation may also move similar applications for another investigation. This marathon will have no end but it will indeed create chaos and deteriorate the criminal administration of justice. So in our view the exercise of jurisdiction of passing orders for reinvestigation should not be taken so casually, callously and or offhandedly at the whims or aspiration but application of impartial and independent mind of the authority concerned is indispensable. Recently, in the case of Raja Khursheed Ahmed v. Muhammad Bilal reported in 2014 SCMR 474 the hon'ble Supreme Court held that for changing of investigation, the head of the investigation in the general police area shall record reasons for the same which means that such

officer is not merely a post office but has to apply his mind in order to reach correct conclusion.

13.  In the wake of above discussion, the petition is admitted to regular hearing and allowed. Consequently, the impugned order dated 10.9.2014 issued for reinvestigation of Crime No. 235/2014 is set aside.

(R.A.)  Petition allowed

Before recording conviction Section 367 of CRPC is important

PLJ 2011 FSC 155
[Appellate Jurisdiction]

Present: Syed Afzal Haider, ACJ and Shahzado Shaikh, J.

MUHAMMAD YOUNIS--Appellant

versus

STATE--Respondent

Crl. Appeal No. 266/L of 2005, decided on 10.2.2011

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

----S. 367--Judgment--Ingredients & requirements--Before a conviction is recorded under any offence the trial Court invariably examines very carefully whether the ingredients of the alleged offence have been proved--Section 367 of the Code of Criminal Procedure that not only a judgment shall contain the point or points for determination but decision and reason for the decision on those points must be part of the judgment.           [P. 159] A

High Court Rules--

----Rule 1, Chapter 1-H, Volume III--A written judgment should be evidence of the fact that the conclusions arrived at in the verdict are duly supported by evidence on record and the contentions raised by the contending parties have been duly considered--In other words the judgment should clearly reflect due appreciation of the facts and evidence on record as well as the fact that the Court has applied his mind Judicially in arriving at the conclusion of guilt or otherwise.       [P. ] B

1996 SCMR 1368, rel.

Mr. Walayat Umar Chaudhry, Advocate for Appellant.

Ch. Muhammad Ishaque, D.P.G. for State.

Date of hearing: 7.2.2011.

Judgment

Syed Afzal Haider, ACJ.--Appellant Muhammad Younis has through this appeal challenged the judgment dated 26.05.2005 delivered by the learned Additional Sessions Judge, Pakpattan Sharif whereby he was found guilty on three counts. He was convicted firstly under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to life imprisonment with fine of Rs. 50,000/- and secondly his conviction was recorded under Section 10(3) ibid and sentenced to twenty five years rigorous imprisonment while the third conviction was recorded under Section 16 ibid and he was sentenced to seven years rigorous imprisonment with fine ofRs. 25,000/-. The appellant was directed to be kept in jail till the payment of fine. All the sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure. However his co-accused namely Muhammad Yousif and Yaseen were acquitted by the trial Court whereas the co-accused Mst. Irshad Bibihad died during the trial.

2.  The prosecution case in brief is that complainant Mst. Maryam Bibi PW.2 filed a private complaint under Sections 16 & 10(3) of the Offence of Zina (Enforcement ofHudood) Ordinance, 1979 read with Sections 382/109 of the Pakistan Penal Code wherein she alleged that during the night between 3rd and 4th November 2001, at about 10.30 p.m, she woke up on account of knocking at the door. On her inquiry, Mst. Irshad responded by saying that she wanted to get `Lassi'. She, therefore, unbolted the door whereupon accused Muhammad Younis and Yousaf armed with pistols and empty handed Yasin forcibly entered into the house. Younis accused put his hand on her mouth while the other accused put her in a car. Younis accused threatened her on pistol point that in case she raised alarm she would be killed. The accused personsalongiwth an unknown driver took her towards Depalpur. Sikandar and Maulvi Yar Muhammad had seen her being carried away by accused in the car. At DipalpurChowk the accused administered juice and she became unconscious. On gaining consciousness she found herself on a cot in a room. Younis accused told that since her father had not supplied electricity to them so they had abducted her out of this grudge. On the next day accused Younis committed Zina-bil-Jabr with her. He would thereafter commit Zina-bil-Jabr with her during the night time while she was kept locked during the day for almost a month. After 2/3 days the accused snatched her golden ear-rings and nose pin. She proceeded to allege further that Yasin accused in the absence of Younis accused used to commit Zina-bil-Jabr with her. One day accused Younis accused alongwith his friend Maqbool came there. She requested Maqbool to get her released from the clutches of accused. Maqbool informed her father who alongwith Maqbool arranged a raid and recovered her. The complainant alongwith her father submitted application for registration of criminal case against accused persons at police station Chakbedi but the police in connivance with the accused persons did not register the case. However the police registered a crime report of the father of the complainant on 18.12.2001 without recording the correct version. During investigation the police in connivance with the accused persons declared accusedYounis and Yousaf accused innocent of the charges and involved instead the complainant in the case. The complainant also stated that the motive of the occurrence was that her father Manzoor Ahmad had supplied electricity connection to the accused but due to non-payment of bills he disconnected the electricity due to which a dispute developed between the parties and due to this grudge she was abducted.

3.  As a consequence of filing of private complaint, the matter was entrusted to Magistrate Section 30, Pakpattan Sharif for conducting inquiry under Section 202 of the Code of Criminal Procedure. The learned Magistrate after recording cursory statements of the witnesses submitted a report on 23.01.2003 whereafter the learned trial Court summoned accused persons Muhammad Yousaf, Muhammad Younis, Muhammad Yasin and Mst. Irshad Bibi to face trial. However co-accused Mst. Aisha was not summoned by the learned trial Court. The learned trial Court framed charge against accused persons under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Accused Muhammad Younis and Muhammad Yasin were also charged under Section 10(3) of the Ordinance ibid. The accused did not plead guilty and claimed trial.

4.  The complainant produced four witnesses to prove the case. The gist of the deposition of the witnesses is as follows:--

(i)         Muhammad Ashraf Head Constable appeared as PW.1 to identify the signatures of Abdul Hamid Head Constable who had formally recorded FIR Ex. PA.

(ii)        Mst. Maryam Bibi complainant appeared as PW.2. She endorsed the contents of her private complaint Ex.PB.

(iii)       PW.3 Muhammad Yar stated that on 3rd November at 10.45 p.m. he was present at Adda Bonga Hayat when he had seen Younis, Yousaf, Yasin and Mst.Maryam Bibi in a white coloured car going towards Depalpur. He tried to stop the car but to no avail. He informed Manzoor Ahmed father of Maryam Bibi.

(iv)       PW.4 Manzoor Ahmed supported the version of her daughter Mst. Maryam Bibi complainant PW.2.

5.  The complainant closed the evidence on 11.03.2005. The learned trial Court thereafter recorded statements of three Court Witnesses. The gist of statements of these witnesses is as under:--

(i)         CW.1 Abdul Hameed Assistant Sub-Inspector stated that he was posted as Moharrar/Head Constable at Police Station Chakbedi. On 01.12.2001 he formally recorded FIR Ex.CW.l/A on receipt of complaint.

(ii)        CW.2 Dr. Muhammad Siddique had medically examined Muhammad Younis accused on 11.01.2002 and found him sexually potent.

(iii)       CW.3 Khadim Hussain Assistant Sub-Inspector stated that on 18.12.2001 he alongwith police officials was present at Adda Chakbedi on official duty whereManzoor Hussain got his statement Ex.CW.3/A recorded which was sent to Police Station Chakbedi for formal registration. He then proceeded to the place of occurrence, recorded statements of witnesses under Section 161 of the Code of Criminal Procedure, prepared site-plan Ex.CW.3/B. He arrested accused Muhammad Younis on 10.01.2002 when his pre-arrest bail was dismissed. He got accused Younis medically examined and sent him to judicial lock up. During investigation he found Younisaccused guilty.

6.  The learned trial Court recorded statements of the accused under Section 342 of the Code of Criminal Procedure on 15.03.2005. The accused denied the allegationslevelled against them. Appellant Muhammad Younis in reply to the question "Why this case is against you and why the PWs have deposed against you?" stated as under:

"I am innocent. Case against me is based on concocted story and the PWs deposed against me due to close relationship with the complainant and PWs are inter-related with each other."

7.  The learned trial Court after completing the codal formalities of the trial and hearing arguments of the contending parties returned a verdict of guilt. Convictions and sentences under various counts were recorded against the appellant as mentioned in the opening paragraph of this judgment.

8.  We have gone through the file. Evidence of witnesses of prosecution and statement of accused have been perused. Relevant portions of the impugned judgment have been scanned.

9.  Learned Counsel for the appellant has raised the following points for consideration:--

(i)         that the element of abduction alleged by prosecution has not been proved;

(ii)        the allegation of rape has neither been corroborated medically nor by any direct evidence;

(iii)       the witnesses of the prosecution are related inter se;

(iv)       that there is enmity between the parties and a false case has been concocted by prosecution against the appellant; and lastly

(v)        the appellant has already suffered incarceration for a period of more than nine years.

10.  Learned D.P.G. appearing on behalf of the State urged as under--

(i)         that the impugned judgment does not merit interference;

(ii)        that the oral statement of the victim is sufficient to establish the guilt of appellant; and lastly that the

(iii)       deficient investigation or unnecessary concessions by Investigating Officer cannot destroy the effect of direct evidence of the victim.

11.  We have examined the impugned judgment. The reasons that prevailed upon the learned trial Court to record convictions on various counts may be summarized as under--

(i)         that the evidence of witnesses for the prosecution cannot be discarded merely on the ground of mutual relationship;

(ii)        absence of medical examination of victim is not fatal because medical examination is merely corroborative piece of evidence and furthermore the victim was a married woman;

(iii)       The witnesses for the prosecution are independent and had no enmity to involve the appellant in a false case; and

(iv)       Appellant was found guilty in police investigation.

The opinion of police is of course not binding upon Court yet it is a relative piece of evidence.

12.  After going through the entire record and considering the points raised before us and examining the manner in which the judgment has been recorded, our observations are as follows:--

(i)         That before a conviction is recorded under any offence the trial Court invariably examines very carefully whether the ingredients of the alleged offence have been proved. Section 367 of the Code of Criminal Procedure lays down that not only a judgment shall contain the point or points for determination but decision and reason for the decision on those points must be part of the judgment. The mere mention in this case that the accused was charged under Sections 10, 11 or 16 of Ordinance, VII of 1979 would not amount to compliance with legal requirements. The point to be determined under Section 10 of Ordinance, VII of 1979 is to see whether the charge of Zina orZina-bil-Jabr liable to Tazir has been made out clearly against the accused and in cases covered by the mischief of Sections 11 and 16 ibid is the point for determination is whether kidnapping/abduction or for that matter enticing or taking away  a  woman  with  the  criminal  intent  of marrying the woman against her will or subjecting her to illicit intercourse has been established. The element of abduction or inducing the victim to compel her for marriage against her will or that she may be forced or seduced to illicit intercourse as visualised by Section 11 or for that purpose the element of enticing away or taking away or detaining Mst. Maryam Bibi with criminal intent as required by Section 16 of Ordinance, VII of 1979 have not been discussed for arriving at the verdict of guilt. There are no reasons given in the judgment for convicting the appellant simultaneously under Section 11 as well as Section 16 of Ordinance, VII of 1979 in the same transaction. A discussion on the ingredients of both the offences is lacking. We do not know on what basis the components of these two distinct offences have been proved beyond shadow of reasonable doubt.

(ii)        It is not enough that justice is dispensed by Courts. It is equally important that justice appears to have been done. A written judgment should be evidence of the fact that the conclusions arrived at in the verdict are duly supported by evidence on record and the contentions raised by the contending parties have been duly considered. In other words the judgment should clearly reflect due appreciation of the facts and evidence on record as well as the fact that the Court has applied its mind judicially in arriving at the conclusion of guilt or otherwise. The High Court Rules have defined the scope of the term judgment in Rule 1, Chapter 1-H, Volume III as follows:--

1.  Contents of a judgment.--(i) In all cases a judgment must be drawn up containing (1) the point or points for determination, (2) the decision thereon, and (3) the reasons for the decision. In case of a conviction, the offence, the law applicable, and the punishment awarded, must be entered in the judgment. In case of acquittal, the offence must be specified and (if the accused is in confinement) a direction given that he be set at liberty. When there are more than one accused, the case of each should be dealt with separately.

The Supreme Court of Pakistan in the case of Shahid and
2 others Vs. The State and others 1996 S.C.M.R 1368 held as under:--

            "The other contention of the learned Counsel for the appellants is that the High Court could not interfere with the acquittal judgment unless the judgment was found to be foolish, perverse or based on misreading or non-consideration of material evidence on record. With the assistance of the learned counsel for the appellants we have gone through the judgment of the learned Trial Court and are constrained to observe that the learned Judge while evaluating the prosecution evidence in the case neitheranalysed the evidence on record nor gave its own reasons for rejecting the same. The Trial Court in its judgment simply noted the criticism of defence counsel to the evidence of eye-witnesses and then disposed of the same with the observation that the State Counsel was.unable to make satisfactory reply to the contention of the defencecounsel. It need not be stressed here that presence of a counsel in a case is only meant for facilitating the trial of the case before the Court. Failure of the counsel to render proper assistance in a case, therefore, cannot absolve the Court from its primary duty to decide the case in accordance with the law. Section 367, Cr.P.C. requires that the judgment of the Court should contain the point or points for determination, the decision of the Court on such points, and reasons for the decision. Therefore, failure of the State Counsel to offer satisfactory reply to the criticism of the defence counsel to the prosecution evidence could not result in the acceptance of the contention of thedefence counsel, thereby absolving the Court from its duty to examine and evaluate the evidence in the case and recording the reasons for acceptance or rejection of the evidence as required by law. We are sorry to say that the Trial Court while dealing with the prosecution evidence in the case did not record his own reasons for rejecting the prosecution evidence. Mere reproduction of the criticism of the defence counsel to the prosecution evidence in the case was not sufficient to absolve the Court from its duty to record its own reasons for acceptance or rejection of the prosecution evidence. In these circumstances, the learned Judge in Chambers was fully justified in interfering with the judgment of acquittal which was passed by the learned Trial Court without evaluating prosecution evidence in the case." (Emphasis added)

(iii)       In our view there is no evidence on record in this case to establish the element of abduction or enticing away Mst. Maryam Bibi.

(iv)       The allegation of rape was challenged in the cross-examination by way of a suggestion which suggestion was however denied. There remains only the statement of complainant in which she has alleged rape not only to the appellant but also to the acquitted co-accused Muhammad Yousaf. The allegation was neither supported by medical examination nor report of the Chemical Examiner. Of course direct evidence of illicit intercourse is usually not available and hence reliance has to be placed on what the victim has to say subject of course to the principle that Courts are cautious in accepting uncorroborated testimony of the prosecutrix. Of course there is no legal bar in accepting solitary statement of the victim. The Courts however exercise caution in this matter in the larger interest of justice.

(v)        The victim had specifically stated that she managed her escape through the intervention of one Maqbool. This allegation was not challenged by the appellant but the prosecution failed to produce the said Maqbool at the trial. He was the most relevant witness not only to prove the element of wrongful confinement of Mst. MaryarnBibi at a place in occupation of the appellant but his evidence would have supported the allegation of Zina-bil-Jabr. Additionally the question of recovery on a given date and from a particular place would also have been established. Maqbool was allegedly a neutral person because he was reportedly known to both the parties. The statement of victim that it was with the assistance of the said Maqbool that a police raid was arranged would have been corroborated conclusively. The police officer denied having recovered the victim as alleged by her.

(vi)       We are conscious of the fact that the investigation undertaken in this case was certainly below standard if not tainted. The absence of medical examination, non-availability of the time and place of recovery, inability to procure the evidence of Maqbool are some of the factors which are conspicuous by absence. The Investigating Officer Khadim Hussain Assistant Sub-Inspector CW.3 did concede that "it is correct that Mst. Maryam Bibi was not recovered through police". It was an otherconcession that the police officer gave to the accused. The statement of this police officer as well as the mode and manner of his investigation including the delay on the part of staff of Police Station Chakbedi, District Pak Pattan to formally register the crime report reflects upon the lack of responsibility on the part of investigating and prosecution agency. Conscious effort appears to have been made on the part of police in this case to cause damage to the complainant. Such a course does create hurdle in deciding a criminal case because the evidence and material relevant for the decision of the case is denied to the Courts.

(vii)      It has also been brought on record that the police found the complainant guilty under Section 10 of Ordinance VII of 1979 but the judgment is silent on this aspect of the case. Why was not Mst. Maryam Bibi sent up for trial? What is the mystery and why discriminate between the accused if it was a simple case of Zina with the consent of parties.

(viii)      In this case even the judgment recorded by learned trial Court was not of the standard that is expected from an Additional Sessions Judge. The result of these two defects is that the very convictions become doubtful.

(ix)       The number of contradictions in the statement of Mst. Maryam herself and the number of persons involved by her in this case does not inspire confidence. We feel that it was a case of consensual relationship but in order to record conviction we have to be convinced that appellant alone was guilty. Mere feeling on our part is not a safe substitute for a firm conclusion.

13.  In view of what has been stated above we hold that--

(i)         the ingredients of the Offence under Section 11 and Section 16 of Ordinance, VII of 1979 have not been proved; and

(ii)        the ingredients of the offence under Section 10 of Ordinance, VII of 1979 has also not been proved.

Consequently the convictions and sentences recorded thereunder by learned trial Court in the impugned judgment dated 26.05.2005 in Private Hudood Complaint No. 52 ASJ of 2003, State Case No. 58 ASJ of 2003 are set aside and extending benefit of reasonable doubt the appellant Muhammad Younis is acquitted of the three charges. The appellant is in jail. He shall be set at liberty forthwith unless required in any other case.

(M.S.A.)           Appeal accepted.