IBRAR HUSSAIN and others vs THE STATE and another

ORDER

JUSTICE CH. IJAZ AHMED (MEMBER).---We intend to decide the captioned appeals by one consolidated judgment arising out of the common impugned judgment of the Federal Shariat Court dated 2-5-2005.

2. Appellants/petitioners sought leave to appeal against the judgment of the Federal Shariat Court wherein the appeals filed by them before the Federal Shariat Court against their conviction were dismissed qua their sentences under section 11 of Offence of Zina (Enforcement of Hudood)

Ordinance , 1979. However, their sentences under section 10(4) of the said Ordinance were set aside. The petition filed by the appellants/petitioners before these courts were fixed before this Court on 23-11-2005 and leave was granted.

3. Brief facts giving rise to this petition are that appellants/ petitioners were involved in a case F.I.R.

No,299 dated 15-7-2002 registered at Police Station Qureshi under sections 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the complaint of Mst. Rashidan/the victim and thereafter committed Zina-bil-Jabr. The investigating agency after investigating the matter submitted challan against them for trial. The complainant party was not satisfied with the police investigation and filed private complaint in the Court of Additional Sessions Judge, Muzaffargarh on 2-11-2002. The trial Court proceeded with the direct complaint and framed charges against the appellants. The learned Additional Sessions Judge vide its judgment dated 30-8-2003 convicted and sentenced the appellants as under:-- Name of accused/ appellants Under sections Sentence Ibrar Hussain Rashid 11 of Of fence of Zina (Enforcement of Hadood)

Ordinance, 1979Life imprisonment each.

Haqnawaz Muhammad Siddique 10(4) of Of fence of Zina (Enforcement of Hadood)

Ordinance, 1979Sentenced to death each.

4. The appellants being aggrieved filed Criminal appeal Nos.196-I and 199-I of 2003 before the Federal Shariat Court which was partly allowed and party dismissed as mentioned above.

5. The learned counsel for the appellants submit that initial F.I.R. Was lodged by victim Mst.

Rashidan on 15-7-2002 under sections 10/11 of the said Ordinance whereas her brother Ijaz Ahmad filed private complaint on 2-11-2002 wherein the version has been changed and improved. They further submit that victim Mst. Rashidan had implicated all the appellants to have committed Zina with her during the whole night. They further submit that victim had changed versions four times and this fact was not considered by the Courts below in its true perspective. The learned Courts below had failed to take into consideration defence version at all. The statement of the victim was not corroborated by any other strong piece of evidence.

6. The learned counsel for the complainant submits that both the Courts below had concurrently come to the conclusion after proper appreciation of evidence that appellants had committed the offence under section 11 of said Ordinance. He further maintains that learned Federal Shariat Court erred in law to set aside the conviction under section 10(4) of the said Ordinance without justification as evident from the para 22 of the impugned judgment of the Federal Shariat Court. He further submits that victim had specifically admitted that she had not given any statement before the police, therefore, her statement inspires confidence.

7. The learned State counsel has supported the impugned judgment.

8. We have considered the submissions made by learned counsel for the parties and perused the record. It is an admitted fact that in case the contents of the F.I.R., statement of the victim dated 5- 9-2002, contents of the complaint and her statement before the Court are put in a juxtaposition then it is crystal clear that her statements are not in consonance with each other coupled with the fact that there were contradictions, discrepancies, improvements and omissions on material points. It is a settled law that person making contradictory statements cannot be held worthy and credence as law laid down by this Court in Muhammad Shafique Ahmad's case PLD 1986 SC 471. It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness. It is pertinent to mention here that victim initially reported the matter to the police on 15-7-2002 which reveals that she was abducted by Muhammad Siddique appellant on pistol point and took her on bicycle to Godar Chowk and thereafter she was taken by force in a car in which three unknown persons were also present. They committed Zina-bil-Jabr with her turn by turn. It is pertinent to mention here that this statement also show that her brother Muhammad Ijaz had seen the occurrence when they had taken her in a car but he had not reported the matter to the police or to any other authority. Her statement under section 161, Cr.P.C. Before the police on 5-9-2002 reveals that she was abducted by Ibrar Hussain, Rashid and Haqnawaz whereas Muhammad Siddique was exonerated by her. The police had submitted the challan before the Court against the accused mentioned in the F.I.R. The Court had also taken cognizance of the matter. It appears that complainant party was not satisfied with the police investigation in the case and brother of victim filed a private complaint against the present appellants including Muhammad Siddique who was exonerated by the victim in her statement under section 161, Cr.P.C. Recorded by the police on 5-9-2002. She appeared before the Court in a complaint case as P.W.3 but her statement as mentioned above was not in consonance with her earlier statement and was not in consonance with her earlier stand. Even otherwise in case her examination-in-chief and cross-examination are put in juxtaposition then it is crystal clear that she is not truthfulness witness. It is a settled law that in rape/Hudood cases conviction can be awarded on the sole testimony of the victim subject to the condition that the statement of victim must inspire confidence. In the present case as mentioned above the statement of the victim is not inspiring-confidence at all and this fact was not considered by both the Courts below in its true perspective and the principle laid down by this Court in various pronouncements. We are pained to note that both Courts below had given benefit of doubt to the prosecution in violation of principle laid down by this Court in various pronouncements. It is a settled law that benefit of doubt always be given to the accused and this principle was violative by the Courts below. In the contents of the complaint the prosecution had taken a stand that victim was abducted in a car from her house.

According to the site-plan there was no way to reach in the house of victim on car as evident from site-plan and the statement of the Investigating Officer. The site-plan was prepared by the draftsman on the pointation of the prosecution witnesses. It could, therefore, well referred to for determining the respective positions of the assailants and victim to the extent that appellants were in a position to abduct on car from her house. It is pertinent to mention here that the statement of the victim was not corroborated with the medical report as evident from the cross-examination of the doctor which is to the following effect:- "It is correct in case of forcible rape/Zina, the victim receives marks of violence on different parts of body including breast, elbows and other private parts. I cannot say that the victim was habitual of intercourse."

9. It is a settled law that in a criminal case when two explanations are equally possible in a given situation the one in favour of the accused should normally be accepted meaning thereby benefit of doubt is always given to the accused but in the present case as mentioned above benefit of doubt was given to the prosecution. See Tariq Pervez's case 1995 SCM R 1345 and Ghulam Ali's case PLD 1986 SC 741.

10. We have also re-examined the evidence on record with the assistance of the learned counsel for the parties. We are of the view that the findings of the Courts below qua the conviction of the appellants 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. Therefore, it is difficult to avoid the impression that the conclusions reached at by the Federal Shariat Court and the trial Court suffer from serious errors of law and fact which unless set right or likely to result in miscarriage of justice and liberty of the appellants are involved coupled with the fact that Federal Shariat Court had set aside their conviction under section 10(4) of the said Ordinance, 1979. The learned Federal Shariat Court had maintained their conviction under section 11 of the said Ordinance without application of mind, therefore, same is not sustainable in law. See Khudadad's case 2004 SCM R 425.

11. For what has been discussed above, these appeals are allowed. Appellants be released immediately if not involved in other criminal case.