NASREEN Versus FAYYAZ KHAN

ORDER

1. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑ Criminal Petition No.102 of 1990 calling in question grant of bail by the High Court to the respondent No. 1/accused in a case of Zina‑bil‑jabr, was dismissed by this Court on 21‑10‑1990 as time‑barred. No good ground for condonation of delay h d then been made out by the counsel appearing for the petitioner the prosecution/complainant who has since died. A pathetic application for investigation and re‑opening of the case in the Supreme Court, was made by Sultan Khan the grandfather of Mst. Nasreen the victim of the crime through a letter dated 7‑11‑1990 addressed to the Chief Justice. It reads as follows:‑‑

2. On this the following order was passed by the Chief Justice on 8‑11‑1990:‑‑

3. "Registrar to deal with the matter on two sides:

(1) Complaint against Mr. Khalil.

4. (1‑A) Report about the conduct of Mr. Uns and Mr. Ejaz in the entire episode‑‑why did they lend their services to Mr. Khalil in prosecution of the alleged fraud.

(2) Suo Motu review before CJ. for first opinion."

5. In pursuance of the directions at 1 and 1‑A the action regarding the Advocates involved in this case, has been initiated separately. On the direction No.2 the matter having been placed before the Chief Justice for suo Motu examination of the case for review, the following order was passed:‑‑

6. "Yes, as at `A' ‑‑ But before that he be summoned and asked why a case be not registered/reported against him, of fraud.

(2) The role of the other two also does not seem to be above suspicion. Why did they act without instructions from the client. Mr. Khalil was not the authorised attorney himself. If not gross misconduct, it might be a case of gross negligence. Put up the case for taking action against them under the Rules.

(3) On account of what is stated in the application and in the report of the Registrar 1 consider it a fit case for review on the question of limitation. Suo Motu order accordingly."

7. In pursuance of the aforequoted opinion for review of the order of dismissal of the original petition for leave to appeal, the office has fixed this case before this Bench for examination: whether, the said order should or should not be reviewed and if reviewed; whether it is a fit case for grant of leave to appeal.

8. After examining the complaint of the grandfather of the prosecutrix/petitioner and the action so far taken in respect of the conduct of the three lawyers involved in this case, we consider this case amply fit for review. Accordingly, the order of dismissal of petition for leave to appeal dated 21‑10‑1990 is reviewed and recalled with the result that Criminal Petition No.102 of 1990 is revived and restored.

9. On the merits of the case it would be proper to reproduce the narration of facts of the case in the F.I.R. lodged by the prosecutrix herself.

10. There are two elements in the case which have pronouncedly been taken note of by the High Court. One, that the complainant/prosecutrix's testimony alone against the accused in a case of Zina would not be enough to deny the concession of bail as it would not be enough for conviction. And secondly, that there was unexplained delay of about 2/3 months in the lodging of the F.I.R. Accordingly, it was treated as a case for "further inquiry" and the respondent was allowed bail.

11. Prima facie, none of the two main grounds already noticed were available to the accused at the bail stage. This Court has in a large number of cases arising out of convictions under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 considered the sole testimony of victim as enough for conviction in case it inspires confidence. The second ground regarding delay is also, prima facie, not tenable because it was not unexplained delay. The victim's husband being insane was in a jail. He was not available to impregnate her. Obviously the pregnancy mentioned in the F.I.R. had resulted A out of third party copulation. There was enough reason for the prosecutrix to keep quiet on the direction and threats of the accused but when after few months the circumstantial evidence of Zina started showing itself, she divulged the secret to her mother. There is no need to probe this question any further at this stage. The, prima facie, explanation for delay being on record, the learned Judge in the High Court seems to have ignored or misread it. Lastly, the question of prima facie, opinion about the guilt of the accused under subsection (1) of section 497, Cr.P.C. or subsection (2) thereof has not been properly examined in the impugned order. The easy contrivance of "the further inquiry" against positive rulings of this Court explaining the provisions of section 497(2), Cr.P.C. was pressed into service. It has been observed time and again that there would hardly be a case which would not require "further inquiry", therefore, this element by itself is no ground for granting bail under subsection (2) of section 497, Cr.P.C. Such orders are on the very face illegal which do not fulfil the second condition regarding tentative opinion about the prima facie, guilt or otherwise of the accused.

12. The learned Judge while exercising discretion, it is to be further remarked, did not apply mind; whether, it was a fit case for exercise of discretion in favour, allegedly, of a person who ruined the life of a young girl, impregnated her with an illegitimate child, and we have been told by the grandfather of the, victim that she died, according to his accusation, on account of this case.

13. Be that as it may, the fact remains that according to the medical certificate produced, the petitioner/complainant/prosecutrix in this case already met her death which occurred on account of the act complained of in this case; namely, the forcible sexual intercourse and the child birth.

14. For all the aforestated reasons we consider it a fit case for grant of leave to appeal. Order accordingly. Non‑bailable warrants of arrest shall issue against the accused/respondent No.l, for appearance in this Court. Delay is condoned.

15. It is to be remarked that all the foregoing observations marshalling the prima facie elements of crime against the accused/respondent are, only tentative in nature and in the context of bail proceedings and they shall not influence the respondent's trial on merits.

16. Copies be sent to the major Women's Social Organizations and the Bar Councils for instrospection, vis‑a‑vis, the rights and plight of some less fortunate rural classes particularly the womenfolk‑‑ See also suggestions for improvement through these organizations in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 Supreme Court 1 at pages 26 and 27.

17. Regarding Women's Social Organizations (at page 26).

18. In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct Rules. But it is a wide guess as to how many females take the courage of initiating or continuing the legal battle with their close ones in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations includin g those in the legal field are yet to show up in the rural areas. They are mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an urbanised brother. who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws: which sometimes, even Courts find it difficult properly to count‑right from the definition of 'rights. upto the enforcement even in homes, through `Social Security' Laws, with web of network of `Inspectorates' etc. who are supposed to be helping him at every step, his unfortunate sister. who is deprived of her most valuable rights of inheritance even today by her own kith and kin‑‑sometimes by the urbanised brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone.

19. Regarding Organizations of the Bar (at page 271.

20. A large number of members of the legal fraternity have live contacts with the rural life from where the majority of them come. They also are aware of the malady and many may be involved in the tragedy. They can carry this burden adequately. While the Bar always seeks the protection of its rights through legislation, an amendment therein to honour the honourable members thereof with the duty of the protection of the rights of (if not all the deprived classes of society) at least the womenfolk of rural areas to start with, will not be out of place. There can be statutory committees for this purpose of the Pakistan and Provincial Bar Councils with the collaboration of the Local Bar Association. They can be headed by the Judges of the Superior judiciary as it is for the other existing committees and tribunals. A network can be created with the inclusion of the lawyers who belong to the respective localities as also the departmental representatives of education, health, labour., social welfare and revenue departments. They can also point out prospective and actual cases of infringements of rights ‑ failure to do so might also incur penalty, even for the lawyer. before his domestic disciplinary tribunal. of the respective Bar Council, The finances cannot be a problem. The Government, the legislature, the tax‑payer and the Urban elite will not grudge this small facility for 80% of these have‑nots of the Social Sector, while 20% get all the other facilities of the urban paraphernalia. which includes amongst others, better facilities and services in nearly all fields.

21. See also for general remarks in Oazilbash Waqf v. Chief Land Commissioner P L D 1990 SC 99 at 115.The Labour Legislation , which admittedly in this part of the world only looks after vocal and fortunate sector of society‑‑the Urban labour (which is also a strong political element) has by and large, so far ignored more than 70 per cent of the rural population. It mostly consists of the poor, self‑employed, and the small peasant ‑ proprietors. This unfortunate rural sector including womenfolk, are living a life of toil mixed with poverty and lots of misery: both social and economic . The comment on prevalent labour legislation: therefore, would not be different from what has been stated about general welfare legislation.

22. The afore reproduced general remarks about the rights, living conditions and plight in our rural life when read with the facts of the case stated in and remarks made thereon by the Supreme Court in the case of Mst. Zubaida v. The I State 1990 S C M R 895, in a matter dealing with the offence of Zina but in a matter different from the present case, would also be noticeable in the foregoing . context. Accordingly, those remarks are also reproduced from the said case:

23. Mst. Zubaida v. The State 1990 S C M R 895 at pages 896 and 898.

24. "This is a classic example visualised in Muhammad Azam v. Muhammad Iqbal and others P L D 1984 Supreme Court 95 wherein only passive participation in the trial by the Presiding Officer. it seems. has resulted in miscarriage of justice . The story is usual. Zubaida petitioner was betrothed to Yaqoob her co‑convict‑‑a relative. Munir complainant ultimately got promise of her hand. Before marriage, she ran away to Yaqoob and married him in May, 1973. She was inveigled and brought back on promise of regular Rukhasti to Yaqoob. But was married off to Munir ante‑dating this Nikah by a week before Yaqoob's Nikah. There were Habeas Corpus proceedings :‑‑‑‑‑‑."

25. "Before parting with the matter it needs to be noticed that prima facie the trial defence‑lawyer acted carelessly and lawyers' firm which undertook petitioner's defence at appeal stage, seems to have left her in the lurch and she tiled this jail petition without legal assistance in such a complicated case . It can be due to the mistaken belief that she was a had woman having given up her children for lover's sake : It might also need examination:‑‑

(1) whether rules of profesional conduct were not violated; and

(2) how to eradicate these shortcomings where rustic poor ladies are involved in such like cases when they are forsaken by their kith and kin ."

26. M.BA./N‑281/S Order accordingly.