MUHAMMAD ARIF Versus THE STATE

KHAN RIAZ‑UD‑DIN‑AHMED, J. ‑‑-This appeal is directed against the judgment dated 8‑12‑2000, passed by the learned Additional Sessions Judge, Rawalpindi, whereby the appellant Muhammad Arif was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called this Ordinance) for the commission of Zina‑bil‑Jabr with Mst. Kaneez Fatima and was sentenced to undergo rigorous imprisonment for 25 years and to pay compensation of Rs.50,000 to the victim in default whereof to undergo further rigorous imprisonment for 6 months. The appellant was also convicted under section 10(2) of this Ordinance for the commission of Zina with Mst. Safeer‑un -Nisa and was sentenced to undergo rigorous imprisonment for 10 years and to pay compensation of Rs.50,000 to the legal heirs of Mst. Safeer‑un‑Nisa, under section 544‑A, Cr.P.C. In default of the payment of compensation the appellant was to undergo further R.I. six months.

Both the sentences under the two counts were directed to run concurrently. The appellant was, however, awarded the benefit of section 382‑B, Cr.P.C.

2. Briefly the facts of the case, as gleaned from the complaint Exh.P.J lodged by Mst. Kaneez Fatima the victim P.W.10 with S.I., Muhammad Afsar, P.W.11 of Police Post Lahtrar on 27‑2‑1992, which formed the basis for recording F.I.R. Exh.P.J/1 by S.‑I. Muhammad Sarfraz, P.W.9 at Police Station Kotli Sattian, are, that Mst. Kaneez Fatima the complainant was living with her mother Mst. Safeer‑un‑Nisa, and her younger brother Inam‑ul‑Haq aged 9/10 years, while her father Mushtaq Ahmad was away at America to earn his livelihood since 1990. Muhammad Arif accused who was related to her as Phupher was living near their house, and was on visiting term with them. During this period he had developed illicit relations with her mother Mst. Safeer‑un- Nisa and on one occasion, he was seen, by the complainant, in the act of commission of Zina with her mother, where upon both of them had threatened the complainant of ill consequences, if she divulged it to anybody else. It was after about three months of the above incident that Muhammad Arif accused turned up at her house, when her mother was away, and committed Zina‑bil‑Jabr with her on pistol-point and thereafter, he continued to commit Zina‑bil‑Jabr with her under threat occasionally. She told her mother about this incident but she also snubbed her and asked her to keep quite otherwise it would not be proper for her to narrate these incidents to her father. After the lapse of some time the complainant and her mother both became pregnant, and it was then that Muhammad Arif accused maneouvred her abortion by administering capsules through her mother and an unknown lady, which resulted in the premature birth of a child, who was secretly disposed of by both of them. Thereafter, her mother also fell ill due to administration of drugs for abortion and consequently breathed her last during the said process. The complainant victim then told the two incidents to her Maternal uncle Ishtiaq, but subsequent thereto, her father also returned from America, and they on 21‑2‑1991 shifted to a rented house in Rawalpindi, where she narrated these incidents to her father on 26‑2‑1992, who was taking her to the police station, when A.S.I Muhammad Afsar P.W.11 met them at Lahtrar Bazar and recorded her statement Exh.P.J, which was duly sent to Police Station Kotli Sattian for the registration of the case, and the said A.S.I. resumed the investigation. He sent the complainant Mst. Kaneez Fatima P.W.10 for medical examination under the escort of F.C. Ashiq Ali and himself proceeded to the place of occurrence. He inspected the site and prepared the rough site plan, and subsequently got a scaled site plan prepared through Muhammad Akram draftsman P.W.6. He recorded the statements of the witnesses, and proceeded to trace out the accused, who in the meanwhile had gone underground. He got warrants of arrest of Muhammad Arif accused issued from the Court and after complying with the required formalities of law, got the accused declared absconder and submitted his incomplete challan to Court for proceedings under, section 512, Cr.P.C.

The trial of accused was held in absentia which culminated on 28‑5‑1995, in consequence of which perpetual warrants of arrest were issued.

3. The accused Muhammad Arif was, however, arrested by S.I. Muhammad Sadiq P.W.12, who took his custody from Police Station Rawalpindi and obtained his physical remand. The accused thereafter led to the recovery of 32 bore revolver P.6 and a live cartridge P.7 which was taken in possession and sent a separate complaint under section 13/20/65 Arms Ordinance to the Police Station. The accused was challaned to Court to face his trial under sections 10(2) and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 338, P.P.C.

4. The prosecution produced as many as 12 P. Ws. to prove the guilt of the accused at the trial, where-after five Court witnesses were recorded by the learned trial Court as those were found necessary for the just decision of the case.

A.S.‑I. Javed Iqbal appeared as P.W.1 and deposed that he had recorded the death report of Mst. Safeer‑un‑Nisa Exh.P.A at the instance of one Ishtiaq Ahmad. He prepared injury statement Exh.P.C and had despatched the dead body for post‑mortem examination under the escort of H.C. Muhammad Khan, who brought back the last worn clothes of the deceased, which were duly taken in possession vide recovery memo. Exh.P.D. One sealed envelope handed over to him by the said H.C. which was taken in possession vide memo. Exh.P.E, and was subsequently handed over to him for its onward transmission to the office of Chemical Examiner.

Inam‑ul‑Haq the brother of the victim Kaneez Fatima and son of the Safeer‑un‑Nisa deceased appeared as P.W.2, and deposed that Muhammad Arif accused had administered poison to her mother and took him to Lahore. He also stated that the accused used to beat him and his sister and had not allowed them to go to school. This witness was not cross- examined by the defence on 26‑10‑1998, but was recalled on 1‑7‑1999 and was cross‑examined by the defence. He admitted therein that Mst. Kaneez Fatima had not told him that the accused Muhammad Arif had ever subjected her to illicit intercourse or that the accused had illicit relations with his mother.

P.W.3, H.C. Muhammad Khan deposed about escorting the dead body of Mst. Safeer‑un‑Nisa to the mortuary for her post‑mortem examination and bringing back her last worn clothes and an envelope, which were produced before A.S.I. Javed Iqbal, who subsequently on 31‑1‑1992 handed over these parcels to him for onward transmission to the office of Chemical Examiner, which were delivered safely in the said office on 1‑2‑1992.

H.C. Mukhtar Khan No.2844 P.W.4 deposed about the recovery of pistol P.6 and one live cartridge P.7 at the instance of Muhammad Arif accused.

Muhammad Sarwar Zia Medical Officer Rural Health Centre Kotli Sattian appeared as P. W. 5 and stated to have examined Muhammad Arif accused on 19‑1‑1998, and found him capable to performing sexual intercourse. Medico- Legal Report Exh.P.F, was the correct carbon copy of the original, which bear his signature.

P.W.6 Muhammad Akram draftsman had prepared the site plan in duplicate Exh.P.G and Exh.P.G/1 of the place of occurrence, which were in his hand and bear his signature.

A.S.‑I, Muhammad Yousaf, P.W.7 deposed about his efforts to execute the warrants of arrest of Muhammad Arif accused, but these were returned un-served on 24‑3‑1992 and the same day proclamation were got issued against the accused which were affixed accordingly.

P.W.8 Tariq Mehmood, Dispenser had brought the original record of the Medico‑Legal Report of the victim Kaneez Fatima, issued by Dr. Salina Akram, and identified her handwriting and signatures on the M.L.R. Exh.P.H which was stated to be correct carbon copy of the original.

S.I, Muhammad Sarfraz appeared as P.W.9 and stated that on 27‑2‑1992 while posted as Police Station Kotli Sattian, complaint Exh.P.J drafted by S.I. Muhammad Afsar was received, upon which he registered the formal F.I.R. Exh.P.J/1 which was in his handwriting and bear his signature.

Mst. Kaneez Fatima the victim appeared as P.W.10 and deposed that during the year 1990 her father had gone away to America leaving herself, her mother and her younger brother Inam‑ul- Haq at home. She further stated that Muhammad Arif accused was residing near their house and was on visiting terms with them. On one occasion she saw Muhammad Arif accused committing Zina with her mother. She told her mother and Muhammad Arif accused that she would tell this incident to her father but both of them had threatened her that she will not be left in a position to tell this incident to her father. She further narrated; that on one day when she was alone at her home, Muhammad Arif accused entered her house armed with a pistol, and directed her to remove her Shalwar but she refused. On her refusal the accused forcibly removed her Shalwar sand subjected her to sexual intercourse on pistol point. She told this occurrence to her mother, who said that how she would narrate‑the incident to her father. After some period she and her mother both became pregnant because of Zina committed by accused Muhammad Arif, who subsequently arranged the services of a mid‑wife and got her and her mother's pregnancy aborted, in consequences of which her mother died while she became sick. The victim narrated this occurrence to her maternal uncle, who informed the same to her father at America. On receipt of that information her father returned home and was told the whole incident. They were then shifted to a rented house in Rawalpindi. Thereafter, her father took her to Police Post Lehtrar where her statement Exh.P.J was recorded, which was read over to her and was signed by her in token of its correctness. She was subjected to lengthy cross‑examination but nothing favourable to the accused could be brought on record on 13‑5‑1999 when the Court time was over and with the consent of the parties remaining cross‑examination was postponed to the next date. The victim was produced in Court for further cross‑examination on 27‑5‑1999 when she was subjected to a grueling cross- examination, till the Court time was over but with no success and the matter was adjourned for the next date. It was on 1‑7‑1999 that she appeared before the Court and was further cross‑examined by the defence, wherein she stated, that it was correct that person who committed Zina with her mother was having a mask and his face was completely hidden and that she had viewed the said occurrence through the cleave of the door. The person who was committing Zina with her mother was about six feet high and, she could not say with certainty that who was that person. She also admitted it correct that on the day of occurrence she was alone in her house and was busy in her thoughts when a person six feet high, all of a sudden grappled her from her back and after falling her on the ground committed zina with her. That person had completely masked his body and face and was unidentifiable. She also admitted it as correct, that before committing zina with her the accused came from her back and wrapped her eyes with a cloth due to which she was not able to see anything. She further stated it to be correct that Muhammad Arif accused present in Court had not administered any medicine nor had provided any midwife for her abortion. She also stated it to be correct that she had never seen Muhammad Arif accused in person participating in the abortion of her mother. She admitted it correct that she had involved the accused Muhammad Arif present in the Court on the basis of doubt and under the pressure of his opponents. She also stated, that she cannot deny that Muhammad Arif accused was innocent in the case.

S.‑I., Muhammad Asfar appeared as P.W.11 and deposed about recording of the statement Exh.P.J of Mst. Kaneez Fatima, the victim, which was sent to the police station for the formal registration of the case. He also verified the contents of the inquest report Exh.P.M. He further stated that he had got Mst. Kaneez Fatima medically examined by submitting an application Exh.P.L which was in his handwriting and bear his signature. He also deposed that Muhammad Arif accused had gone underground and could not be arrested by him and thus was declared absconder after adopting the legal process.

S.I., Muhammad Sadiq appeared as P.W.12 and stated that he arrested Muhammad Arif accused, who after interrogation got a revolver‑32 bore and one live cartridge recovered at his instance.

Javed Iqbal, Constable No.2217 was summoned as C.W.1 who deposed that Dr. Salina Akram had gone abroad and was not available in the country as such her summon was returned with the report Exh.C.W.1/1 which was in his hand and bear his signature.

Dr. Muhammad Ayaz, Assistant Director Health appeared as C.W.2 and deposed about the non‑availability of Dr. Muhammad Qamar Khan, whose services were placed at the disposal of the Medical Superintendent Holy Family Hospital Rawalpindi vide Government Order No.SOII/1980/R/87 dated 23‑6‑1997 and he had relinquished the charge from GRD Sargodha District Rawalpindi on 7‑7 -1997.

Dr: Syed Sohail Ahmad, Deputy Medical Superintendent, District Headquarters Hospital, Rawalpindi appeared as C.W.3 and stated that Dr. Muhammad Qamar Khan was not available in the country as he was deputed to foreign service to Malaysia for two years.

C.W.4 Mehmood Ahmad, Dispenser identified the hand‑writing and signature of Dr. Qamar Khan on post mortem report Exh.P.N prepared in respect of Mst. Safeer‑un‑Nisa, as he had worked under his subordination during the year 1991‑1992.

Nadeem Aslam, Constable No.3866 appeared as C.W.5 and stated that he was deputed to effect service on Mushtaq Ahmad and Mst. Azra Bibi P.Ws. but both of them were not available in the country.

5. After close of the prosecution evidence the accused was called upon to make a statement under section 342, Cr.P.C. wherein he denied all the allegation levelled by the prosecution and professed his innocence.

In reply to the question, as to why this case against you and why the P.Ws. have deposed against you, the accused stated:‑

"P.W.2 and P.W.10 disowned the version of the prosecution and categorically stated in their cross- examination that I am innocent and the person who committed Zina with Mst. Kaneez Fatima and with her mother Safeer‑un‑Nisa was not identified by P.W.2 and P.W.10, therefore. I have no concern whatsoever with the instant crime. She further stated that neither I arranged midwife for the purpose of abortion, nor having any knowledge.

It is pertinent to mention here, that the said midwife was not produced by the prosecution to establish their case. The case was registered against me on the basis of doubt, surmises, and on the pressure of my opponent of the village. I am innocent."

6. The accused, however, declined to make a statement on oath under section 340(2), Cr.P.C. and refused to produce any defence evidence.

7. After the conclusion of the trial arguments were heard by the learned trial Court and the accused was convicted and sentenced as stated above in the opening para. Hence this appeal.

8. Learned counsel for the appellant after arguing for some time on the merits of the case by referring mainly to the cross‑examination of the victim dated 1‑7‑1999, wherein she had exonerated the accused by stating " that the accused who committed Zina with her mother and Zina‑bil‑Jabr with her could not be identified, as he had masked his face," but after realizing the fact that in her examination‑in‑chief, she had fully inculpated the accused for the commission of Zina‑bil‑Jabr with her on pistol point, and her consistent replies during the grueling cross‑examination for two days, in which she had not given a single favourable answer to exculpate the accused, learned counsel decided not to press the appeal on merits and opted to take refuge under the compromise deed duly executed by the victim Mst. Kaneez Fatima, who had forgiven the accused in the larger interest of saving the family from the future disaster effects, and prayed for the reduction in the sentence of the appellant on the basis of the said document. He candidly submitted that although the offence was non -compoundable, but the superior Courts of the country including this Court, have taken into consideration favourably the compromise deed and have been pleased to reduce the sentences to the minimum provided for such offences and even in some cases, the sentence already undergone was considered sufficient to meet the ends of justice.

Reference in this respect was made to the case of Mst. Sughran etc. v. The State (Cr. As.Nos.189/I, 193/I and 206/I of 1999), wherein the sentence was reduced to already undergone by the Division Bench of this Court in the wake of compromise deed.

9. Learned counsel for the State frankly conceded for the reduction in the sentence of the appellant, keeping in view the peculiar circumstances of this case.

10. We have considered with concern the submission made by the learned Court for the parties and have also gone through the case‑law cited at the Bar and the impugned judgment.

11. The prosecution has mainly kept its reliance on the solitary statement of Mst. Kaneez Fatima P.W.10 the victim, who had at the stage of examination‑in -chief had consistently and categorically stated that she had seen the accused committing Zina with her mother, and subsequent thereto, she herself was subjected to Zina‑bil‑Jabr at pistol point by the accused, so as to shut her mouth for disclosing the earlier incident to her father, she stood the, test of cross -examination for two longs days, but ultimately succumbed to the pressure on the third occasion, when she gave replies exonerating the accused form the crime committed by him.

This statement of the victim coupled with the medical evidence, which was positive, was considered to be sufficient for conviction of the accused before the learned trial Court.

12. We have dispassionately considered the testimony of the victim in its totality and as a whole. It makes us believe that the coherent and consistent version given by Mst. Kaneez Fatima, P.W.10 before the learned trial Court was the truthful deposition of the facts, which inspired confidence and was worth reliance. Besides, it stands duly corroborated by the medical evidence furnished through secondary evidence consisting of the statement of Tariq Mehmood, dispenser P.W.8, who proved the Medico‑Legal Report of the victim Exh.P.H, which was stated to be in the hand writing and under the signatures of Dr. Salma Akram who had gone abroad and was not available in the country.

13. We are, therefore, of the considered view that the prosecution has proved the guilt, of the accused Muhammad Arif beyond any reasonable doubt, and he stands rightly convicted by the learned trial Court.

14. So far the quantum, of sentence in concerned, we feel that the same requires interference by this Court, keeping in view the peculiar circumstances of this case, particularly when the matter has been compromised between the parties.

15. Although the, compromise deed tendered by the prosecutrix/victim, duly placed on record, would legally be not a relevant document, as the case in hand is non‑compoundable but keeping in view the fact that the accused, was repentant, and through the efforts of the elders of the family has successfully prevailed upon the complainant party and was forgiven by the victim in the name of Almighty Allah, we feel constrained to consider it a mitigating circumstance to reduce the sentence of the appellant appropriately, as it was so done in the case cited‑supra.

16. We, therefore, while maintaining the conviction of the appellant under section 10(2) of the Ordinance, reduce his sentence from 10 years Rigorous Imprisonment to Rigorous Imprisonment for 5 years with fine of Rs.5,000 in default whereof he shall undergo Rigorous Imprisonment for 6 months. We also reduced the sentence of 25 years Rigorous Imprisonment awarded to the appellant under section 10(3) of the Ordinance to rigorous imprisonment for 5 years. Both the sentences are directed to run concurrently.

17. The appellant shall also be entitled to the benefit of section 382‑B, Cr.P.C.

18. The order of the learned trial Court in respect of the amount of compensation to be paid to the victim is set aside, as the victim prosecutrix has forgiven the accused without any monetary considerations.

19. Resultantly this appeal stands partly accepted with the above modification in the sentence.

N.H.Q./85/FSC Sentence reduced.