BASHIR AHMED and 2 others vs THE STATE

ORDER

SH. RIAZ AHMED, J.--Appellants Bashir Ahmad and Nazim were tried along with Ashiq Hussain and Aqeelur Rehman by a learned Special Judge of the Special Court Anti-Terrorism at Bahawalpur for the offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be called as the Ordinance) in pursuance of case F.I.R. No,437 dated 22-12-1997 registered with Police Station Uch Sharif, District Bahawalpur for having committed gang rape with Mst.Kundan Mai and Mst.Shamim Mai and vide judgment dated 27-8-1998 of the learned trial Judge, both the appellants were sentenced to death.

2. After the commission of crime, both co-accused namely Ashiq Hussain and Aqeel ur Rehman, had absconded and were subsequently arrested on 10-6-1999 and separately tried and convicted and sentenced to death vide judgment of the trial Judge dated 6-7-1999.

3. Against their aforementioned conviction and sentences, appellants Bashir Ahmad and Nazim preferred an appeal (Criminal Appeal No,38 of 1998) before the Lahore High Court whereas the learned trial Judge also referred the case to the High Court seeking confirmation of death sentences awarded to the appellants in terms of Murder Reference No,11 of 1998.

4. Both the petitioners namely Ashiq Hussain and Aqeel ur Rehman had challenged their conviction and sentences from jail through Criminal Appeals Nos.37 and 38-J of 1999 and the confirmation of their death sentence was sought by the trial Judge by means of Murder Reference No,13.

5. A Division Bench of the Lahore High Court dismissed the appeals of the appellants and petitioners maintaining their conviction and sentences awarded to them by the trial Court and answered the Murder References against them in the affirmative through judgments dated 4-5- 1999 and 1-2-2000, impugned herein.

6. On 7-4-2000 leave to appeal was granted by this Court to consider whether the principles governing appraisal of evidence laid down by this Court were followed by the Courts below to ensure the safe dispensation ofjustice in criminal cases.

7. Occurrence in this case had taken place during the intervening night of 21st and 22nd of December, 1997 and it was reported at the Police Station on 22-12-1997 at 9-30 a.m. In her statement Exh.PG Mst.Kundan Mai disclosed that on 21-12-1997 at about 3-00 p.m. Both Mst.Kundan Mai and Mst.Shamim Mai had set out for Kherpur Dhaha in order to console the sad demise of one of the uncles of Kundan Mai. At Khanqah Sharif the bus they had boarded, went out of order and thus they sat in a Dala. When they reached near Hamidpur, the driver turned it towards jungle and at one point, he had stopped and alighted, whereafter, Aqeel accused had caught hold Mst.Kundan Mai and Bashir Ahmad subjected her to forcible sexual intercourse. Then, Bashir caught hold of her and Aqeel had committed Zina-bil-Jabr'. Similarly, both Nazim and Ashiq had committed 'Zina-bilJabr" with Mst.Shamim Mai one after the other. Ather commission of the offence, the accused named above had dumped both the victims into the Dala and dropped them at Ada Kher Pur Dhaha. The matter was reported at the Police Station to set the machinery under the criminal law into motion. The Investigating Officer took into possession 'Shalwars' P5 and P6 belonging to Mst.Kundan Mai and Mst.Shamim Mai respectively and were also got medically examined by a lady doctor P.W.1.

8. On 1-1-1998 appellants Bashir Ahmad and Nazim were arrested in this case.

9. Evaluating the pros and cons of the evidence existing on record, learned Judges of the Lahore High Court fully relied on the testimony of both the victims in absence of any element of rancour or malice on their part to falsely rope in the appellants in the instant case entailing capital punishment. It was further held that the appellants could not substantiate the plea of their false implication. As regards credibility of the depositions of both the victims, learned Judges observed that their conduct was quite natural because soon after they were dropped by accused persons at Ada Kherpur Dhaha, they had raised hue and cry which had attracted P. Ws. Farooq Ahmad and Malik Zulfiqar Ali and others who had tried to apprehend the accused but they ran away in their wagon. Whereafter, both the victims Malik Manzoor and Zulfiqar Ali had gone to the Police Station to report the matter and thus the F.I.R. Was lodged. Furthermore, the ocular account directly furnished by both the victims stood amply corroborated by medical evidence P.W.1 lady doctor who had medically examined both the female victims besides the reports of the Chemical Examiner PA, PC and PM showing that vaginal swabs and Shaiwars in respect of Mst.Kundan Mai and Mst.Shamim Mai had been stained with semen. On the strength of consistent and categorical depositions of both the victims and unimpeachable incriminating evidence ibid, learned Judges dismissed the appeals of both the appellants and that of the petitioners.

10. With the assistance of the learned counsel for the appellants, petitioners, and the State, we have thoroughly scanned the entire evidence and have gone through the judgment impugned in both these appeals and petitions. It was argued that identification parade of the accused was a sine qua non to establish the identity of the culprits, evidentiary value of both the prosecutrix could hardly be relied to sustain the conviction of the appellants and the report of the Chemical Examiner could not be treated alone adequately conclusive without determination of the grouping of semen.

It was vehemently argued that appellant Bashir Ahmad was 13 years old at the time of the commission of the crime. In course of the hearing of this appeal, it was vehemently argued that the offence of Zina (Enforcement of Hadood) Ordinance, 1979 is exclusively triable by a Court of Session and not the Court constituted under the Anti-Terrorism Act 1997, therefore, the judgment of the trial Court in this case was coram non judice and the High Court had also no jurisdiction to entertain and hear the appeal because for that matter the Federal Shariat Court was the competent forum, therefore, judgment of the High Court impugned herein was also without jurisdiction. As regards sentence of death provided under section 10(4) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, it was submitted that the same was excessive and the legislation being harsh should be struck down.

11. We, have carefully examined these contentions, but we regret to observe that they are devoid of any force Act VI of 1997 known as Offence of Zina (Enforcement of Hudood) (Admendment) Act 1997 was published in the Gazette of Pakistan Extraordinary, Part I, 21st of April, 1997. By virtue of this Act section 10(4) was amended and the amendment reads as under: "When Zina-biI-Jabr liable to Tazir is committed by two or more than two persons in furtherance of common intention of all, each of such person shall be punished with death".

12. It is manifestly clear that when Zina-bil-Jabr is committed-, no other sentence but death is to be awarded, because the law does not permit the award of any other punishment. Intention of the Legislation is clear, and therefore, the objection as to its being harsh is untenable. Under the principles of tricotomy of powers, this Court cannot encroach upon the field of legislation, therefore, the objection is repelled.

13. As far as jurisdiction to try the offence under the Anti-Terrorism Act, 1997 is concerned, section 12 of the Act is all embracing and by overriding all other laws, jurisdiction exclusively vests in the Court constituted under the Anti-Terrorism Act, 1997 to try the scheduled offence. Section 12 of the Anti- Terrorism Act, 1997 reads as under: "Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a province shall be tribale only by Anti-Terrorism Court exercising territorial jurisdiction in relation to such area."

14. It is further pertinent to mention that Schedule to the Anti-Terrorism Act was amended on 13-12- 1997 and it was provided that for Entry 3, the following shall be substituted: "3. All offences punishable under subsection 4(1) of the Offence of Zina (Enforcement of Hudood)

Ordinance VI if committed after the insertion of this Act."

15. The Anti-Terrorism Act, 1997 was assented to by the President and was published in the Gazette on 20-8-1997. It is thus clear that if the offence was committed after the said date, jurisdiction to try the offence exclusively vested in the Court constituted under the Anti-Terrorism Act, 1997 and no other Court can take the cognizance of the offence. In this case, the offence was committed during the night between 21st and 22nd of December, 1999, therefore, the Court constituted under the Anti- Terrorism Act, 1997 had the jurisdiction to try the offence and obviously the appeal was maintainable before the High Court on a Reference to be made under section 374, Criminal Procedure Code which is applicable to the proceedings by virtue of section 30 of the Anti-Terrorism Act.

16. After careful consideration of this particular aspect of the matter, we are of the view that quantum of sentence of appellant Bashir Ahmad needs consideration because at the time of the commission of crime he was 13 years old and was obviously a minor and not being adult therefore, his case is squarely distinguishable from that of his co-accused. Thus, we reduce his death sentence to 5 years' R.I. With direction that he shall pay an amount of Rs,1,00,000 (Rs,One lac only) as fine or in default, to further suffer R.I. For three years. With this modification in the sentence of appellant Bashir Ahmad, we dismiss Criminal Appeals 216, 217 of 2000 and Jail Petition 38 of 2000 because the conclusion drawn and reasons advanced by learned Judges, are not open to any exception showing absolutely fair evaluation of the evidence in accord with the settled principles laid down by this Court to govern the appraisal of evidence for safe dispensation of justice in criminal cases.