UNIED ALI SHAH Versus PAKISTAN STEEL MILLS
DECISION
This is an appeal against the order, dated 26-11-1988, passed by learned Presiding Officer, Sindh Labour Court No. IV at Karachi, whereby the grievance petition riled by the appellant was dismissed.
2. I have heard Mr. Ch. Muhammad Ashraf, learned Advocate for the appellant and Mr. S.M. Yaqoob learned counsel for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case, appear to be that the appellant was admittedly skilled worker employed by the respondent and was living in a Quarter in `Steel Town' nearby the Quarter of Complainant Irshad with whom he was on friendly terms. On 21-12-1986 said Muhammad Irshad was on duty in day shift and therefore sent his daughter Miss Sadia Irshad aged about six years with a slip to the house of the appellant for purchasing the provisions mentioned in the slip. It is alleged that at about 12 o'clock the appellant tried to commit rape upon the minor girl said Miss Sadia Irshad. On return to the house Miss Sadia Irshad complained to her mother. (Complainant Irshad, on return from duty, was apprised of the incident who tolok the girl to Dr. Mrs. Bilquis Azam. On the next day i.e. 22-12-1986 Muhammad Irshad, Complainant made Written Complaint' to the General Manager (IR) Pakistan Steel who issued `show-cause notice', dated 31-12-1986 Exh. A/9 and subsequently ordered domestic enquiry. The Enquiry Committee consisted of Messrs Muhammad Deen, Manzoor Ellahi and Ali Raza Shah. Mr. Ali Raza Shah held the charges against the appellant not to be proved whereas two other Members of the Enquiry Committee held the charges as proved and consequ4ently the appellant was dismissed vide order, dated 22-7-1987. He filed Departmental Appeal on 1-8-1987 and then gave grievance notice, dated 14-10-1987. Failing to get any redress he filed grievance petition before the learned Labour Court.
4. The appellant and his learned counsel had attacked the enquiry proceedings on various grounds. The main contention of the appellant is, that he had been implicated at the iun4nstance of Col. Afzal, who was General Manager (IR). It is admitted by R.W. Muhammad Deen, Enquiry Officer that Col. Afzal was General Manager of Steel 11 Mill at the time of the incident and one Chandio, an employee of Steel Mill was 1 killed during the days of Col. Afzal. He has shown his ignorance as to whether Col. Afzal was implicated in that case and as to whether the appellant had tried to see that Col. Afzal be implicated in the killing of Chandio. He has admitted that there was feeling of parochialism amongst workers of different provinces in the Steel Mills. This background would have to be kept in view while assessing the evidence produced before the Enquiry Officer. Even if there was some ill-will between Col. Afzal and the appellant, it cannot be sole ground for rejecting the evidence, d' it proves charges against the appellant.
5. It will be evident, tha6t the only and the main witness of the incident is minor girl Miss Sadia Irshad. She was examined before the Enquiry Committee on 17-3-1987. She r, has stated that she took the slip for purchase of provisions to the house of the a, appellant who locked the door and then committed some mischief at the place from where she passes urine and then threatened her not to intimate the incident at It her house. She states that in the evening her father took her to Lady Doctor who hl had examined her. The appellant who alleges that her statement was not audible does not cross-examine her. Dr. Mrs. Bilquis Azam was also examined before the Enquiry Committee. She states that Muhammad Irshad had brought his daughter for examination at 6-30 p.m. on 21-12-1986 and that the girl complained that somebody tried to commit mischief with her. She examined the girl superficially and found that her vagina was slightly reddish and lacerated. She told her father that this was medico-legal case which could be examined by medico-legal Officer. The report of the Lady Doctor was also produced before the Enquiry Committee and is at page 155 of the R & P. It shows "that external genitals were clean. There were abrasions. Only small Laceration of human with redness were marked". This report also shows that this examination was superficial examination and that Dr. had told the father that it was medico-legal case and required chemical examination and clinical examination by Medico-legal Officer. It may be pointed out that the victim was examined on 21-12-1987. The Medical Report bears the date 28-12-1987. From the evidence of lady doctor it is also clear that the victim did not tell her as to who lead tried to commit mischief. Neither in the report nor in the examination-in?-chief the lady doctor has given opinion, that there was any attempt to commit the rape upon the victim. However, in the cross-examination to the appellant, she states that attempt was made. To a question whether there was any possibility Other than unnatural act, she replied that she was sorry to say anything further. It may also be pointed out that in the complaint made by Muhammad Irshad to the General Manager on the next day there was no mention of the name of the lady doctor who examined (he minor but only name of Dr. Mukhtar Hussain was mentioned. Dr. Mukhtar Hussain also was examined before the Enquiry Committee and stated on 22-12-1987 Muhammad Irshad came' to him and informed about the incident and he confirmed from Dr. Mrs. Bilquis that she had examined the girl. Alter four or five days Col. Afzal came to him and thereafter he obtained report from Dr. Bilquis which was received on 28-12-1986 which he then sent to the Colonel.
6. The other main evidence before the Enquiry Committee was that of Muhammad Irshad, complainant. He had admitted that he owed some amount to the appellant. Vic stated that child Miss Sadia Irshad came after long delay therefore her mother rebuked her, when girl told her about the incident. The mother was not examined. The appellant was also examined before Enquiry Committee. He alleges that he has been implicated at the instance of Col. Afzal, that Dr Mrs. Bilquis Azam had issued Medical Report under pressure on 28-12-1986 and that because there was no evidence therefore the case was not referred to m2di;:o-legal expert nor to the police. He has examined three witnesses in defence. Ghulam Hussain, Mechanical Fitter, states that at about 11.00 he was sitting with the appellant on 21-12-1986 when at about 11-45 a girl came with slip to the house. Where after the appellant asked him to go as he wanted to go to market for purchases. He stated that in his presence the appellant locked the house and went to the market. Haji Muhammad Mubeen, Vegetable-Seller has stated that at about noon time the appellant came with one girl and made purchases and then he left the appellant and the girl at the house alongwith Manzoor. Manzoor Hussain, Security Supervisor has also supported Haji Mubeen. It may be pointed out that victim Miss Sadia Irshad also stated that she went with the appellant to the market to make purchases.
7. It is argued by Mr. Ch. Muhammad Ashraf that had the appellant attempted to commit rape upon the minor girl the appellant, who is of heavy built, would have caused serious injury to the genital of the girl and therefore could have not taken her to the market. He further argues if the appellant committed offence, it was purely criminal offence but it is not explained as to why case was not referred to the police and why medico-legal expert was not contacted to examine the victim and give his expert opinion, even when the lady doctor so advised. It is further contended that such a vague medical certificate issued by lady doctor after seven days on superficial examination which neither gave the definite opinion about the cause of injury nor the age of injury could not be relied upon to come to the conclusion, that any attempt of rape was committed upon the girl. He further argues that interest shown by Col. Afzal in personally going to Dr. Mukhtar Hussain and obtaining report of Dr. Mrs. Bilquis Azam after seven days shows that he was interested in implicating the appellant in view of the previous enmity between them. He further argues that R.W. Fayyaz Ahmed, Assistant Manager, Administration of the respondent had admitted. in the cross-examination that Colonel Afzal and Irshad, complainant, belonged to Punjab, whereas appellant belongs to Province of Sindh. It Was further argued that in view of admission of another witness Muhammad Deen who was also Enquiry Officer that there was feeling, of parochialism amongst the workers of different provinces in the Pakistan Steel Mills, the evidence of If-shad and his daughter is to hp taken into account with great care and caution. It is also admitted by Fayyaz Ahmed, Assistant Manager, Administration that Col. Afzal who was General Manager (IR) was no more in the service of the respondent.
8. Thus the case against the appellant stands or falls depending on the reliance or evidence that can be put upon the evidence of Miss Saida Irshad. She is minor girl aged about 6 years. In Principles and Digest of the Qanun-e?-Shahadat by Mr. Justice Khalil-ur-Rehman Khan in which commentary has been adapted from Justice Munir's Principles and Digest of the law of Evidence, at page 77 in Commentary under Article 3, the learned author has observed "Children are most untrustworthy class of witnesses, as they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward, and by desire of notoriety. Evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. In another case it has, however, been held that the mere fact that the evidence of the only eye-witness of a crime is that of a child six years of age is not a ground for not relying upon it, especially when the evidence is given without hesitation and without the slightest suggestion of tutoring or anything of that sort and there is corroboration of the evidence is so far as it narrates the actual facts, and of the child's subsequent conduct immediately afterwards.
9. The subsequent conduct of the child after the alleged act of misconduct shows that she went with the appellant to the market to make purchase without making any complaint to anybody. Two witnesses hive been examined by the appellant before the Enquiry Officer namely Manzoor Hussain and Haji Mubeen but they do not state to have seen anything amiss in the walking or posture of the girl. The third defence witness of the appellant Mr. Ghulam Hussain has stated that in his presence the appellant locked his house and took the girl to the market. The child did not tell Dr. Bilquis Azam as to who had committed the mischief. No doubt the appellant has not cross-examined the child, when she was examined before the Enquiry Officer, but he complains that her evidence was inaudible. The appellant has cross-examined all the other witnesses. The fact that he did not cross-examine the only main witness would indicate that either the evidence of the child was inaudible as alleged by the appellant or he had such regard for the feelings of the child that he did not want to put her to embarrassment by the cross-examination. Even otherwise there is no definite medical evidence whatsoever to the effect that any attempt of rape was made upon the child. It may also be pointed that evidence of the girl was recorded in the enquiry proceedings after nearly three months of the incident and therefore the possibility that she might have been coached cannot be ruled out.
10. I have already discussed the evidence of Medical Officer, strangely the child was not referred to the Medico-legal Doctor for medical examination as advised by the lady doctor. The charge against the appellant is that he attempted to commit rape upon the child and therefore that charge has to be proved before he could be punished. For such proof proper Medical examination/Evidence was very essential.
11. What makes the accusation more suspicious is that though it was criminal offence of highest magnitude, no report was made to the police, who would have taken care to have the girl medically examined by the Medico-legal Expert and also would have got chemical examination of her clothes and swab from vagina.
12. Admittedly, though it is very unfortunate, but parochial feelings were prevalent in the Steel h1ill. It appears there was some ill-will between Colonel Afzal and the appellant. Colonel Afzal admittedly took interest in the matter and done the lady doctor issue medical report after seven days. Admittedly one Chandio was killed in which, either Colonel Afzal was implicated or efforts were made by the appellant or his party to implicate him. Admittedly Colonel Afzal subsequently left the service of Steel Mill.
13. I have already pointed out that the appellant was found not guilty by one member of Enquiry Committee. His report is at page 223. Mr. Ali Raza Shah, Member of Enquiry Committee, has observed that "after having examined the witnesses and statement, of concerned persons it is confirmed beyond any iota of doubt that Mr. Umaid Ali Shah, Skilled Worker, P. No.182176 is not guilty of the charge as levelled against him in the show-cause notice".
14. Considering all the facts discussed above, in my opinion, the charge against the appellant that he attempted to rape Miss Sadia Irshad is not proved. As such I allow the appeal, set aside the order passed by learned Labour Court as well as order of dismissal passed by the respondents and direct the reinstatement of the appellant with full back benefits. Order to be implemented within two months.
H.B.T./1986/Lb. S ????????????????????????????????????????????????????????????????????????????? Appeal accepted.