GHULAM NABI Versus THE STATE

1. MUHAMMAD MUJEEBULLAH SIDDIQUI, J. ‑‑‑ This criminal appeal is directed against the judgment, dated 11‑5‑2000, passed by the learned Judge, Anti‑Terrorism Court, Hyderabad Division, Hyderabad, in Special Case No.7 of 2000, convicting the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and awarding him sentence to suffer R.I. for 10 years and to pay fine of Rs.25,000 and further convicting‑him under section 6 of Anti‑Terrorism Act, 1997 read with section 7 thereof, awarding him sentence to suffer R.I. for 10 years and to pay fine of Rs.25,000. Both the sentences have been directed to run concurrently.

2. Briefly stated the relevant facts are that on 25‑10‑1999, at about 9‑45 a.m. complainant Muhammad son of Nehal lodged F.I.R. at Police Station Khairpur, Nathan Shah, stating therein that he has a daughter, namely, Benazir, aged about 12 years. She grazes the lambs. As usual she left her house in the morning on 24‑9‑1999, for grazing cattle alongwith Ramzan alias Bohoro nephew of complainant, Huzoor Bux and Allah Bux. In the evening, Ramzan nephew of complainant brought Benazir. Her Shalwar was found stained with blood. On inquiries, Benazir informed that she alongwith Ramzan, Huzoor Bux and Allah Bux was grazing the cattle and all four of them were sitting in the shadow of tree near sugarcane cultivation of Junejos. The cattle was grazing in the jungle. At about 5‑00 p.m. Hassan son of Muharram by caste Junejo resident of Pai came there and told Ramzan, Huzoor Bux, and Allah Bux, that their cattle has trespassed in the crop and they should go to turn out the cattle from the crop. The boys told him that the cattle has not trespassed in the crop, and therefore, they will not go, on which he slapped them. All the three boys went away from there out of fear and thereafter, accused Hassan took her forcibly inside the crop and committed rape on her. He threatened her not to raise cries and, therefore, she kept quiet. After committing rape accused Hasan asked her to go. She thereafter tied her Shalwar and came out of the crop, where all the three boys Huzoor Bux, Ramzan and Allah Bux came there and she narrated facts to them. S.H.O. Abdul Razzaq recorded the F.I.R. Exh.9‑A and examined body of victim Benazir and prepared Mashirnama Exh.13‑D, he then referred Benazir for medical examination. Dr. Yasmin Bughio, Senior Woman Medical Officer examined the victim Benazir and found three abrasions on her right leg knee joint and back. On internal examination, she found that Benazir was bleeding from her private part and according to her opinion sexual intercourse was committed on her. The Investigating Officer examined the place of incident and recorded statements of P.Ws. Ramzan, Allah Bux and Huzoor Bux. On 12‑10‑1999 he arrested appellant Ghulam Nabi. On 13‑10‑1999, he secured Shalwar of victim Benazir which was stained with blood and the same was sent to Chemical Examiner. After completing the usual investigation, the appellant was sent up to face trial.

3. The appellant pleaded not guilty to the charge. During the course of trial, prosecution examined P.W.1 Farhad Baig, Civil Judge and F.C.M. Khairpur Nathan Shah, who conducted identification parade of the appellant on 21‑10‑1999. P.W.2 Dr. Yasmin Bughio, P.W.3 Muhammad Bux complainant P. W.4 Benazir, the victim P. W .5 Ramzan, P.W.4 Huzoor Bux, P.W.7 Mashir Ghulam Nabi and P.W.8 S.H.O. Abdul Razzaq.

4. The statement of appellant was recorded under section 342, Cr.P.C., who denied the prosecution allegations. He stated that he is neighbour of complainant and Benazir knew him. He further stated that P.Ws. are Haris of Amir Bux Junejo and they have deposed against him at the instance of Amir Bux Junejo, as he has dispute with him. In his further statement, he stated that Zamindar Haji Ameer Bux Junejo wanted him to quit his land and house so that his Haris may be accommodated there and on refusal he got him arrested and he secured his liberty after payment of Rs.8,000 to Sobedar. Thereafter, the said Zamindar got him implicated in this‑case falsely. The complainant and witnesses are his Haris and have falsely implicated him at his instance. No witness was examined by the appellant in defence.

5. The learned trial Court framed the following points for determination:‑‑

(1) Whether accused Ghulam Nabi forcibly committed Zina with 12 years old Baby Benazir?

(2) Whether accused has caused fear and insecurity in the complainant party and thereby committed terrorist act?

(3) What conviction if any, should be awarded to the accused?

6. The trial Court decided Points Nos. 1 and 2 in affirmative and awarded the conviction and sentence, as narrated above.

7. We have heard Mr. Allah Bachayo Soomro, learned counsel for the appellant, who volunteered his service to the appellant, on the quest of the Court and Mr. Rashid A. Qureshi, learned Assistant Advocate‑General for State.

8. Mr. Allah Bachayo Soomro, learned counsel for the appellant has submitted that the false implication of the appellant in this case is apparent on the face of record. He has submitted that a bare perusal of the F.I.R. shows that Hasan son of Muharram, by caste Junejo, resident of Pai, was nominated in the F.I.R. for the commission of offence but for the reasons best known to the Investigating Officer and the complainant, he was let off and the appellant was arrested and prosecuted in this case. He has pointed out that F.I.R. was lodged on 25‑9‑1999, and the accused was arrested on 12‑10‑1999 and was put to identification test on 21‑10‑1999. Neither the complainant Muhammad Bux nor the Investigating Officer have given any explanation, as to how and why the person, named in the, F.I.R. was let off and the present appellant was implicated in this case. He has submitted that the name of Hasan transpired at three places in F.I.R. His parentage, caste and place of residence are also given in the F.I.R. but instead the present appellant has been arrested, as a result of collusion between Investigating Officer Abdul Razzaq and Zamindar Amir Bux Junejo. He has submitted that the person, named in the F.I.R. is Hasan son of Muharram, by caste Junejo, and the appellant is Ghulam Nabi son of Mehro, by caste Kathio. There was no question of any mistaken identity. He has submitted that it is a classical case of highhandedness and act of prosecution of poor person at the hands of Zamindar and police officials. He has urged that it is a fit case in which the Court should take notice of victimization of a poor person by letting off, real culprit and substitution of innocent person for fulfilment of nefarious purpose of Zamindar. He contended that the influential Zamindar and police officials are hands in glove with each other and in collusion with each other, the injustice is being perpetrated on the innocent persons. He has vehemently assailed the conviction and sentence of the appellant by the learned Judge, Anti‑Terrorism Court, Hyderabad Division, Hyderabad, Mr. Abdul Ghafoor Memon. He has pointed out that although the complainant, the victim and the prosecution witnesses including the Investigating Officer have not given any explanation for substitution of appellant Ghulam Nabi for Hasan son of Muharram, nominated in the F. I. R. for commission of offence, but the learned trial Court has on its own tried to play the role of prosecutor rather a persecutor by observing that "although in the F.I.R. the name of accused has been given Hasan but present accused Ghulam Nabi has been arrested and tried in this case, because of mistake of name, as explained above. This will not straightaway create doubt in the prosecution story for the simple reason that P.W.7 victim Benazir so also complainant and P.W. Ramzan have identified him to be accused, who had committed Zina with victim.

9. Learned counsel for the appellant has submitted that the victimization of the appellant is very much apparent in record and, therefore, the conviction and sentence is not sustainable in law and the appellant is entitled for acquittal.

10. Mr. Rashid A. Qureshi, learned Assistant Advocate‑General, has candidly stated that in view of nomination of Hasan son of Muharram, by caste Junejo resident of Pai in the F.I.R., which was recorded on the next day of the incident and because of arrest of accused on 12‑10‑1999 and his identification test on 21‑10‑1999, he is not able to support the impugned conviction and sentence. His attention was drawn to the memo of arrest Exh.13‑B, in which it is stated that Ghulam Nabi son of Mehro, by caste Kathio, the accused, is required in Crime No.163 of 1999, and was arrested on the basis of evidence. We asked to explain as to why it was so stated in the Mashirnama of arrest. The learned Assistant Advocate‑General stated that there was nothing on record to show as to why appellant Ghulam Nabi was arrested in this case, when the person for commission of offence nominated in the F.I.R. is Hasan son of Muharram Junejo.

11. In the above circumstances, we are constrained to observe that the conduct of police is shocking to say the least and the conduct of learned trial Judge is more shocking and deplorable. A senior Judge of the status of Sessions Judge and presiding over Anti‑Terrorism Court for Hyderabad Division is not supposed to behave in a manner as he has done. It appears that the learned trial Judge Mr. Abdul Ghafoor Memon has not taken trouble of going through the contents of challan, otherwise he would have clarified the position from the witnesses, because the accused/appellant being a poor person was not able to afford any Advocate and remained throughout un-represented. He being an uneducated and illiterate person was not able to defend himself and it was the duty of learned trial Court, in the interest of justice, to come to the rescue of the appellant who, on the face of record, was victimized at the hands of the police and the local Zamindar. A perusal of the challan shows that an explanation has been given by S.H.O. to the effect that accused Ghulam Nabi is the real offender and complainant at the time of lodging F.I.R. had, by mistake given the name of his brother Hasan instead of accused Ghulam Nabi and that on interrogation from the complainant, he had stated that due to mistake he had given the name of his brother Hasan instead of accused Ghulam Nabi in the F.I.R., and the actual offender is Ghulam Nabi.

12. It is a statutory principle that the falsehood leaves its terms. The S.H.O. while giving this explanation in the challan failed to realize that the person named in the F.I.R. cannot be brother of F.I.R. is son of Muharram and his caste is Junejo, while Ghulam Nabi is son of Mehro, and his caste is Kathio. The persons having different castes cannot be brothers inter se, and, therefore, the false implication of the appellant in this case by substituting his name in place of Hasan, is very much apparent. During the course of trial, the S.H.O. Abdul Razzaq and complainant Muhammad Bux have not stated even a single word about nomination of Hasan son of Muharram Junejo in the F.I.R. by mistake or that Hasan nominated in the F.I.R. is brother of Ghulam Nabi.

13. We are satisfied without any scintilla of doubt in our mind that the appellant has been falsely implicated in this case by the then S.H.O. Police Station Khairpur Nathan Shah, Abdul Razzaq, and his subordinate police officials for the reason best known to them. The conviction and sentence is, therefore, set aside. The appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case.

14. After hearing, the learned counsel for the parties on 21‑5‑2001, the appeal was allowed by a short order. The conviction and sentence was set aside and the appellant, who was produced in custody was remanded back with direction to release him forthwith, if not returned in any other case. These fare the detailed reasons in support thereof.

15. Before parting with this judgment, we would like to pose few questions as to:‑‑

(1) How long, the poor and innocent person, in this country shall suffer at the hands of police and Zamindar?

(2) How long the real culprits shall be let off and innocent persons shall be prosecuted?

(3) How long these injustices shall continue and the abuse of process of taw and flagrant violation of the fundamental and human rights of innocent citizen shall persist unabatedly?

(4) How long these atrocities and cruelties, misuse of power and abuse of authority shall be countenanced and shall be allowed to be perpetrated with impunity?

(5) How long the innocent, illiterate and poor citizens of this country, who are as much human beings as wealthy, so‑called might and his citizens and perhaps in so many cases more respectable than them and in any case are entitled to enjoy equal rights; shall be treated at subhuman level and victimized at the hands of the persons/authorities, who are required to protect their life, liberty, honour, property and beliefs?

16. The judiciary, the Executive, the Police Department and all other concern owe a satisfactory reply to these questions.

17. A copy of this judgment should be sent to Home Secretary, Government of Sindh and Inspector‑General of Police Sindh. They should institute Enquiry through a responsible Officer, preferably through some Deputy Secretary in the Home Department, against the then S.H.O. Abdul Razzaq, Police Station Khairpur Nathan Shah and all other police officials in league within, who substituted appellant Ghulam Nabi Kathio for Hasan son of Muharram Junejo, named in the F.I.R. If no plausible explanation is given by the concerned police officials, then strict disciplinary action should be taken against them and they should be made to pay reasonable monetary compensation as well to the appellant for the ordeal he has to undergo from the year 1999, when he was arrested up to his acquittal by this Court. The result of the enquiry and the action taken should be reported to the Registrar of this Court within four months of receiving of this judgment.

18. We are of the considered view that the learned trial Judge ignored the established principles of justice while proceeding with the case and simply failed to appreciate the rule that the doubts, if any, are to be resolved in favour of an accused person. Obviously while occupying an important and sensitive assignment, he acted in an imprudent manner and proceeded to convict an innocent person without his guilt being established beyond reasonable doubt, on the basis of concocted version supported by surmises, but not substantiated by evidence.

19. Certainly the learned trial Judge needs/deserves a note of caution to be careful in future and refrain from deciding the matters on the whims of prosecution.

20. Let a copy of this judgment be sent to Mr. Abdul Ghafoor Memon, Judge Anti‑Terrorism Court, Hyderabad Division, Hyderabad.

21. Copies of this judgment be sent to the Registrar and M.I.T. High Court to ensure compliance of the above directions.

22. S.A.K./G‑123/K Appeal accepted.