007 S C M R 437

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan
Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed
Jullundhari, Members

MUHAMMAD ZUBAIR----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.8(S) of 2005, decided on 14th November, 2006.

(On appeal from the judgment, dated 29-1-2005 passed by the Federal Shariat Court,
Lahore, in Jail Criminal Appeal No.224/I of 2003 and Criminal Suo Motu No.4/I of
2004).

(a) Constitution of Pakistan (1973)---

----Arts. 203-F(2-B) & 185(3)---Constitutional jurisdiction of Supreme Court---

Concurrent findings of fact by the Courts below---Interference by Supreme Court---
Principles---Normally, Supreme Court does not interfere with findings of fact arrived
at by the Courts below, while exercising constitutional jurisdiction after its satisfaction
that findings of the Courts below are on the whole reasonable and are not arrived at by
disregarding any provision of law or any accepted principle concerning appreciation of
evidence---If finding is on the face of it against evidence or so patently improbable, or
perverse that to accept it could amount to perpetuating a grave miscarriage of justice,
or if there has been any misapplication of principle relating to appreciation of evidence,
or finally, if finding could be demonstrated to be physically impossible, then it is the
duty and obligation of Supreme Court to interfere in concurrent conclusions arrived at
by the Courts below.

(b) Criminal trial---

---Delay in registration of F.I.R.---Effect---Generally delay in lodging F.I.R. cannot in

all cases lead to the inference that the cases set up in F.I.R. is necessarily true or false,
however it is relevant circumstance to be considered.
(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

---S. 10---Qanun-e-Shahadat (10 of 1984), Art.129 (g)---Withholding of evidence---

Presumption---No report of Chemical Examiner regarding swabs of victim was
available, in spite of the fact that according to prosecution, the parcel was sent to
Chemical Examiner---Effect---Such piece of evidence having been withheld by
prosecution, therefore, adverse inference could be taken against the prosecution.

Abdul Khaliq v. The State 1995 SCMR 1412 and Abdul Waheed v. The State 1995
SCMR 1498 rel.

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10, 11 & 16---Penal Code (XLV of 1860), S.338-F---Reappraisal of evidence---

Unexplained delay in F.I.R.---Benefit of doubt---Acquittal of co-accused---Accused
along with two co-accused was charged with offence of abduction and committing
Zina-bil-Jabr with the victim---Trial Court convicted the accused only under S.16 of
Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to
seven years of imprisonment, whereas both the co-accused were acquitted---Conviction
and sentence awarded by Trial Court was maintained by Federal Shariat Court---
Validity---If contents of F.I.R., statements of complainant and that of prosecution
witness and victim were put in a juxtaposition, then their statements were not consistent
with one another on material points---Trial Court had disbelieved the statement of
prosecution including victim while acquitting two co-accused, therefore, it was
necessary for Federal Shariat Court to re-examine the evidence with due care and
caution to maintain the conviction of accused but Federal Shariat Court failed to
examine the evidence---Person making contradictory statement could not be held
worthy of credence---Accused was convicted under the provision of Offence of Zina
(Enforcement of Hudood) Ordinance, 1979, wherein it was the duty and obligation of
the Courts to give reasons for awarding conviction under S.338-F, P.P.C.---Reasons for
conviction were fancy and a result of misreading and non-reading of record---Supreme
Court converted petition for leave to appeal into appeal and set aside the conviction and
sentence awarded to accused by the Courts below---Appeal was allowed.

Aminullah's case PLD 1982 SC 429 and Muhammad Shafique Ahmad's case PLD 1981
SC 472 rel.

F.K. Butt, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq Advocate Supreme Court for the State on Court call.
ORDER

JUSTICE CH. IJAZ AHMED (MEMBER).--- The petitioner has sought leave to
appeal against the judgment of the learned Federal Shariat Court, dated 19-1-2005
wherein the appeal filed by the petitioner against his conviction was dismissed. The
brief facts out of which the present petition arises are that petitioner along with his
acquitted co-accused were involved in a case F.I.R. No.39 which was registered at
Police Station Naushera, District Khushab on 20-6-2002 under sections 11/10 of
Offence of Zina (EOH) Ordinance, 1979 on the complaint of Sher Muhammad P.W.10.
The contents of the F.I.R. reveal that Sher Muhammad alleged that his daughter. Mst.
Kausar Naheed aged 16/17 years has been abducted by the petitioner who was once his
neighbour. The contents of the F.I.R. further reveal that Mst. Nasreen sister of the
petitioner and one Muhammad Ramzan facilitated the commission of the offence. It is
further alleged that during the night between 24/25-5-2002 Mst. Kausar Naheed
daughter of Sher Muhammad was found missing and in the morning he came to know
through P.W.8 about abduction of his daughter Mst. Kausar Naheed by the petitioner
and his acquitted co-accused with the intention to seduce her to illicit intercourse and
the complainant after his failure to get back his daughter from the petitioner, lodged
report on 20-6-2002 against the petitioner and his acquitted co-accused. The police
investigated the case and sent the accused to face trial before the competent Court. The
trial Court completing legal formalities such as recording of evidence and statement of
the accused. Consequently, learned Additional Sessions Judge vide its judgment, dated
27-8-2003 convicted and sentenced the petitioner as under:---

Name of accused Under section Sentence

Muhammad Zubair 16 of the Offence of 7 years' R.I. with fine of Rs.10,000
Zina (EOII) Ordinance, in ease of default of payment of
1979 fine to further suffer 3 months' S.I.
Sentence of fine of Rs.40,000 as
compensation under section 544-A,
Cr.P.C. to Mst. Kauser Naheed
victim and in default to further
suffer six months S.I. Benefit of
section 382-B, Cr.P.C. was also
extended.

It is pertinent to mention here that trial Court had acquitted his co-accused namely Mst.
Nasreen and Muhammad Ramzan by giving benefit of doubt. Petitioner being aggrieved
filed Jail Criminal Appeal No.224/I of 2003 before the learned Federal Shariat Court.
The learned Federal Shariat Court issued suo motu notice to the victim Naheed Kausar.
The Federal Shariat Court vide impugned judgment dismissed the appeal of the
petitioner and also had withdrawn notice issued to Mst. Naheed Kausar vide impugned
judgment, dated 19-1-2005. Hence the present petition.

2. The learned counsel of the petitioner submits that prosecution had failed to prove the
case against the petitioner beyond shadow of doubt. He further submits that, prosecution
witnesses had improved their statements and contradicted each other on material points
which were not considered by both the Courts below. Therefore, judgments of both the
Courts below qua guilt of the petitioner were not sustainable in the eye of law. He
further maintains that the petitioner is involved in this case on account of enmity and
this fact was not considered by both the Courts below in its true perspective. He further
urges that on the basis of the same evidence his 2 co-accused were acquitted but both
the Courts below erred in law not to give benefit of this fact to the petitioner and
convicted the petitioner on the same evidence which was not believed by both the
Courts below against the acquitted co-accused.

3. The learned State counsel has supported the impugned judgment. He further submits
that the statement of the victim was duly supported by the medical evidence and both
the Courts below after proper appreciation of evidence have come to the concurrent
conclusions qua the guilt of the petitioner, therefore, the petition is liable to be
dismissed.

4. We have considered the submissions made by learned counsel for the parties and
have perused the record. Normally this Court, does not interfere with the findings of
fact arrived at by the Courts below while exercising constitutional jurisdiction after its
satisfaction that the findings of the Courts below are on the whole reasonable and are
not arrived at by disregarding any provision of law or any accepted principle concerning
the appreciation of evidence meaning thereby in case the finding is on the face of it
against the evidence or so patently improbable, or perverse that to accept it could
amount to perpetuating a grave miscarriage of justice, or if there has been any
misapplication of principle relating to appreciation of evidence, or, finally, if the finding
could be demonstrated to be physically impossible, then it is the duty and obligation of
this Court to interfere in the concurrent conclusions arrived at by the Courts below. In
the present case, however, it is difficult to avoid the impression that the conclusions
reached by the Federal Shariat Court and the trial Court suffered from serious errors of
law and fact, which unless set right are likely to result in miscarriage of justice. The
petitioner had taken a specific plea in reply of question No.7 in his statement under
section 342 of Cr.P.C. that the petitioner was involved in a case on account of enmity
and both the Courts below had not scrutinized properly defence version in the impugned
judgment. It is an admitted fact that the occurrence took place according to the
prosecution on the' night between 24/25 May, 2002 at 2-30 a.m. whereas the F.I.R. was
lodged on 20-6-2002 after a considerable delay without explanation. Generally delay in
lodging F.I.R. cannot in all cases lead to the inference that the case set up in the F.I.R.
is necessarily true or false, however, it is relevant circumstance to be considered. In the
present case this piece of evidence qua delay of recording the F.I.R. without explanation
creates doubt qua the prosecution story meaning thereby such unexplained delay of
almost 26 days makes the investigation of the case doubtful and this fact was not
considered by both the Courts in its true perspective. According to the statement of the
victim petitioner had abducted her along with Mst. Nasreen Akhtar real sister of the
petitioner and Muhammad Ramzan. This fact alone is sufficient to discard the statement
of victim to the extent that petitioner had abducted her by force by closing her mouth
with her Dupatta and he threatened her that he would kill her if she raised alarm. She
remained with the petitioner for a considerable time more than a month as evident from
the statement of the abductee. She could not try to get rid of from the clutches of the
petitioner in spite of the fact she had got various opportunities to raise hue and cry at
public places when the petitioner had taken her from one place to another specially
when her age was 16/17 years. It also does not appeal to common sense that the
petitioner had abducted the victim along with her sister to illicit intercourse. The
contents of the F.I.R. clearly show that complainant found the victim in the morning
missing from his house, therefore, Sher Muhammad complainant was himself not a
witness of abduction whereas Zahoor Ahmad P.W.8 had failed to show his presence at
the Adda Ucchali at the time of alleged abduction. It is pertinent to mention here that
there is no direct evidence of Zina-bil-Jabr against the petitioner except the sole
statement of the victim. Even otherwise in case the evidence of the victim be read as a
whole then ingredients of Zina-bil-Jabr are not attracted. It is pertinent to mention here
that there was no report of Chemical Examiner regarding the swabs of victim in spite
of the fact according to the prosecution the parcel was sent to the Chemical Examiner.
This piece of evidence was withheld by the prosecution, therefore, adverse inference
could be taken against the prosecution. See Abdul Khaliq v. The State 1995 SCMR
1412 and Abdul Waheed v. The State 1995 SCMR 1498.

5. It is pertinent to mention here that in case the contents of F.I.R., the statement of
complainant, statement of Zahoor Ahmad, statement of victim are put in a juxtaposition
then their statements are not consistent with each other on material points coupled with
the fact trial Court had disbelieved the statement of prosecution including victim while
acquitting two co-accused of the petitioner, therefore, it was necessary to re-examine
the evidence by the learned Federal Shariat Court with due care and caution to maintain
the conviction of the petitioner but the learned Federal Shariat Court failed to examine
the evidence keeping in view this principle. See Aminullah's case PLD 1982 SC 429. It
is a settled principle of law that person making contradictory statement cannot be held
worthy of credence as law laid down by this Court in Muhammad Shafique Ahmad's
case PLD 1981 SC 472. The petitioner was convicted under the provisions of
Enforcement of Hudood Ordinance wherein it is the duty and obligation of the Courts
to give reasons for awarding conviction in view of section 338-F. Reasons as mentioned
above are fancy wind-result of mis-reading and non-reading of record.

6. For what has been discussed above, this petition is converted into appeal and same is
allowed as a result whereof the petitioner is ordered to be released forthwith if not
required or involved in any other criminal case.

M.H./M-209/SC Appeal allowed.