### Judgment Summary: Lahore High Court, Lahore - Criminal Appeal No. 1215 of 2014
**Case Title:** Muhammad Mumtaz etc. vs. The State etc.
**Judgment Date:** April 9, 2015
**Judges:** Aalia Neelum, J.
**Case Details:**
- **Appellants:** Muhammad Mumtaz @ Phulli and Ijaz Ahmad
- **Offences:** Initially charged under Sections 365-B and 376 of the Pakistan Penal Code (PPC), later convicted under Section 496-A PPC.
- **Initial Conviction:** Seven years rigorous imprisonment and a fine of Rs. 50,000 each, or an additional six months imprisonment upon default of payment.
### Key Points from the Judgment:
1. **Prosecution's Allegations:**
- The prosecution alleged that Muhammad Mumtaz @ Phulli forcibly committed rape (Zina) with Mst. Adeela after abducting her.
- Witnesses Tariq Mahmood and Zafar Iqbal supported the prosecution's story, claiming to have witnessed the occurrence.
2. **Medical Evidence:**
- Medical examination of the accused confirmed the presence of secondary sexual characteristics and no evidence of violence.
- The medical report of Mst. Adeela also showed no marks of violence and indicated that she was a grown-up girl.
3. **Defense's Arguments:**
- The defense argued that the case was falsely fabricated due to a pre-existing civil litigation for pre-emption between the complainant's family and the accused.
- The defense highlighted contradictions and delays in the prosecution's evidence, suggesting a lack of credibility.
4. **Court's Analysis:**
- The court found significant contradictions in the statements of the prosecution witnesses.
- It was noted that Mst. Saniya Arif, in a related case, had willingly gone with the appellant and had even married him, which she later sought to dissolve without mentioning any rape.
- The conduct of Mst. Saniya Arif throughout the process indicated voluntary action rather than abduction or coercion.
- The prosecution failed to provide substantial evidence to support claims of abduction and rape.
5. **Judgment:**
- The court held that the prosecution failed to prove the case beyond reasonable doubt.
- The conviction and sentences under Sections 365-B and 376 PPC were not sustainable due to insufficient evidence.
- The appellants were acquitted and ordered to be released if not detained for any other case.
### Conclusion:
The Lahore High Court acquitted Muhammad Mumtaz @ Phulli and Ijaz Ahmad, concluding that the prosecution did not provide sufficient evidence to prove the allegations of abduction and rape. The judgment underscored the importance of proving criminal charges beyond reasonable doubt and highlighted discrepancies in the prosecution's case.
Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT.
Crl.Appeal No. 1215 of 2014
(Muhammad Mumtaz etc vs. The State etc)
JUDGMENT
Date of hearing:
09.04.2015.
Appellants by:
Mr. Tahir Ahmad Sindhu and Mr. Ijaz
Khan, Advocates.
State by:
Mr. Muhammad Naseem Akhtar, DDPP.
Complainant by:
Ch. Fayyaz Hussain Dhariwal, Advocate.
------------------------
AALIA NEELUM, J:- Muhammad Mumtaz @ Phulli son
of Dost Muhammad, Caste Rajpoot, resident of Ratto Kala, Tehsil
Bhalwal & District Sargodha and Ijaz Ahmad son of Muhammad
Yamin, Caste Rajpoot, resident of Ratto Kala, Tehsil Bhalwal,
District Sargodha were involved in case FIR No.111, dated
21.05.2011, offence under Sections 365-B/376 PPC, registered at
Police Station Phularwan, Tehsil Bhalwal, District Sargodha and
they were tried by Malik Mushtaq Elahi Bingi, Additional Sessions
Judge, Bhalwal, District Sargodha. The learned trial court seized
with the matter in terms of judgment dated 05.06.2014 while
convicted the appellants under Section 496-A P.P.C and sentenced
them to rigorous imprisonment for the period of seven years each
with fine of Rs.50,000/- each and in case of default thereof, further
undergo six months S.I each. The benefit of Section 382-B Cr.P.C
was also extended in favour of the appellants.
2
2.
Feeling aggrieved by the judgment of the learned trial
court, the appellants assailed their conviction through filing Crl.
Appeal No.1215 of 2014.
3.
Prosecution story as contained in the F.I.R. (Ex.PD)
lodged on the statement of Mst. Adeela daughter of Mukhtar
Ahmad (PW-2) is that on 20.05.2013, she was sleeping in her Dera
and at about 12:30 a.m (night) she went out of from her „Dera‟ to
call for nature, near the gate of the Dera, Muhammad Mumtaz @
Phulli, Zafar, Muhammad Ijaz and Rehma while armed with their
weapons were standing, they forcibly caught her and placed hands
on her mouth and took her at the Dera of Muhammad Mumtaz @
Phulli, where Muhammad Mumtaz forcibly committed „Zina‟ with
her but rest of the accused did not commit „Zina‟ with her rather
they remained watching outside the „Dera‟. All the accused persons
abducted her and Muhammad Mumtaz @ Phulli committed rape
with her. On her hue and cry, PWs came there and witnessed the
occurrence.
4.
On the basis of statement recorded by the complainant,
formal F.I.R (Ex.PD) was scribed by Zulfiqar Ali, S.I, (PW-6) and
thereafter he along with other police officials visited the alleged
place of occurrence and prepared the rough site plan (Ex.PE). He
also recorded the statement of abductee-Mst. Adeela under Section
161 of Cr.P.C on 21.05.2013 and produced Mst. Adeela for medical
examination to RHC Phullarwan and moved an application for her
DNA test. On 30.05.2013 he took the two accused and Mst. Adeela
for DNA test, thereafter, he produced Mumtaz and Muhammad Ijaz
accused at RHC Phularwan for medical examination
5.
Having found the accused guilty, accordingly report in
terms of Section 173, Cr.P.C. was prepared and same was sent to
Crl. Appeal No.1215 of 2014
3
the court of competent jurisdiction. On 03.01.2014, the learned trial
court, formally charge sheeted the appellants to which they pleaded
not guilty and claimed trial, whereas remaining co-accused were
also summoned by the learned trial court inspite of the reasons that
their names were placed in column No.2 of challan by the
Investigating Officer. Prosecution, in order to prove its case
produced as many as seven (07) prosecution witnesses.
6.
Ocular account of first part of occurrence in this case
came out from the statement of Mst. Adeela (PW-2)/complainant
and alleged abductee-victim narrated the entire incident whereas
PW-Tariq Mahmood was given up being unnecessary. Dr. Shahida
Majeed appeared in the Court as PW-1 and deposed that she was
posted at RHC Hospital, Bhalwal and accused Muhammad Mumtaz
and Ijaz Ahmad were produced by the police before her for their
medical examination. She medically examined them and observed
as under:-
1.
Secondary sexual characters were well developed.
2.
Both testis were within scratum.
3.
Axillary and pubic hairs were present.
4.
Moustaches and bears were present on face.
5.
Chrematistic reflex are present.
Zafar Iqbal eye witness of the occurrence appeared as P.W-3 and
deposed that Mst. Adeela is his relative and on the night between
20/21/.5.2013, he along with Tariq Mehmood PW went to the Dera
of Muhammad Mumtaz on hearing the cries of Mst. Adeela and
saw that Muhammad Mumtaz was committing rape with Mst.
Adeela. Dr. Syeda Itrat Batool appeared in the Court as PW-5 and
deposed that on 22.05.2013 she was posted at THQ, Hospital,
Bhalwal and the victim was produced before her for medical
Crl. Appeal No.1215 of 2014
4
examination. She medically examined the victim and observed as
under:-
6.
Secondary sexual characters were well developed.
7.
Axillary and pubic hairs were present.
Per vaginal examination.
1. Vulva vagina healthy.
2. No mark of violence.
3. Vagina admits two fingers easily.
4. Old healed hymen.
5. Unterus ante verted normal size, no abnormality detected.
6. No mark of violence on any part of her body.
7.
Muhammad Zafar 901/MHC appeared in the Court as PW-4
and he stated that the I.O handed over the sealed parcel to him and
he kept intact in the Malkhana for safe custody and handed over
Sajjad Ahmad FC for onward transmission to the office of
Chemical Examiner. Sajad Ahmad 213/C appeared in the Court as
P.W-7 and stated that on 22.05.2013 he was posted at P.S
Phullarwan, Sargodha and on the same day Zafar Iqbal 109/MHC
handed over to him one sealed parcel for onward transmission to
the office of Chemical Examiner.
7.
On 15.05.2014, learned ADPP given up Tariq
Mehmood (PW) being un-necessary and closed the prosecution
evidence.
8.
The appellants were also examined in terms of Section
342, Cr.P.C, wherein they opted not to appear as their own
witnesses in terms of Section 340(2) of Cr.P.C, in disproof of the
allegations levelled against them in the prosecution version. While
Crl. Appeal No.1215 of 2014
5
replying to the question that why this case against them and why
the PWs have deposed against them. The accused replied to the
question.
“The accused stated that they have falsely
been involved in this case. In fact, a civil suit
for pre-emption was pending between
Rehma, Mumtaz and grandfather of the
complainant, due to this, they have falsely
been involved. All the PWs are related to the
complainant, who deposed against me”
9.
Learned trial court after evaluating the evidence
available on record in light of arguments advanced from both sides,
found the prosecution version proved beyond shadow of reasonable
doubt resulting into conviction of the appellants in the afore stated
terms.
10.
Learned counsel for the appellants has contended the
learned trial court had failed to appreciate the evidence in its true
perspective; that there was civil litigation between the parties, due
to this, complainant party involved the accused persons with
planning; that there are clear contradiction in the evidence of the
prosecution; that the prosecution has failed to prove its case against
the accused. Lastly, they prayed for acquittal of the appellants.
11.
On the other hand, learned DDPP opposed the
contentions raised by learned counsel for the appellants. He prayed
for dismissal of the appeal.
12.
Arguments advanced pro and contra have been heard. I
have also gone through the record available on file with the able
assistance of learned counsel for the parties.
Crl. Appeal No.1215 of 2014
6
14.
The alleged occurrence took place on 04.09.2009 at
about 2:00 p.m. According to the complainant, the appellant along
with co-accused persons enticed away daughter of the complainant
(PW-2) namely Mst. Saniya Arif aged about 12/13 years with the
intention to subject her to illicit relation. The victim was medically
examined and as per M.L.C (Ex.PB) her sexual characteristics
(breasts pubic hairs) well developed. As per medical report, she
was quite a grown up girl. The complainant (PW-2) deposed during
examination-in-chief that abductee was of 12 years whereas she
was confronted with (Ex.PA) wherein she specifically mentioned
that abductee was of 12/13 years. On the other hand, as per contents
of affidavit (Ex.DB) and Nikah Nama (Ex.DA) the age of abductee
was mentioned as 18 years old. The victim is more or less of a
grown up girl. The affidavit was put to the abductee and she
deposed that:-
“It is incorrect that I got prepared my affidavit
on white paper. Volunteered my thumb
impression was obtained on blank papers. I can
not read single word of upper portion of
affidavit. My name is written on the affidavit.
No.1215 of 2014
7
Affidavit bear my thumb impression.
Volunteered it was obtained on blank paper. I
can read the contents of the affidavit. However,
the affidavit has been written in urdu (present
before me at this stage.”
15.
The affidavit was not written on “papers” rather it was
written on “stamp papers” dated 25.08.2009 prior to alleged
incident. The snap of abductee is also affixed at the back of stamp
paper along with thumb impression of abductee. As per the contents
of said affidavit, she mentioned her age as 17/18 years old. The
Medico Legal Report (Ex.PB) shows that she is quite a grown up
girl. Although no documentary evidence has been placed on record
to prove the date of birth of abductee-victim. Before the alleged
incident, she executed an affidavit by mentioning her age as 17/18
years.
16.
As per prosecution version, neither complainant (PW-
2)/Khalida Parveen nor other witnesses were the eye-witness of the
alleged abduction. Khalida Parveen (PW-2) had dishonestly
improved her statement by stating that prosecution witnesses
namely Nazar Hussain (PW-3) and Ghulam Sarwar (given up) had
informed her about the abduction which was confronted with
(Ex.PA), wherein it was mentioned that PWs had seen the accused
along with Mst.Saniya Arif while going towards Kharian. Nazar
Hussain, PW-3 deposed that he saw Mst.Saniya Arif along with
accused while proceeding towards Kharian. This witness did not
depose that he saw accused had abducted the victim-abductee
whereas Nazar Hussain (PW-3) deposed that the complainant was
in knowledge of abduction of the victim and in this regard he
depose
No.1215 of 2014
8
“It was also in knowledge of the parents of Mst.Saniya
Arif before giving any information to them”.
17.
The abductee-victim Mst. Saniya Arif (PW-1) deposed
that when she was returning back to her house on the way, the
appellant along with his brother namely Muhammad Yousaf, Falak
Sher, Haleema Bibi (mother) and his wife Kaniz Bibi met her and
asked her to go to the house of abductee‟s maternal grand mother in
Village Mojianwala but the appellant instead of taking her to the
house of her maternal grand mother went to Faisalabad in a car.
The appellant kept her (abductee) in the house of his relative in
Faisalabad for ten days, where appellant committed Zina-bil-Jabr
with abductee. Thereafter the appellant along with Muhammad
Abbas and Fouzia Bibi brought the abductee to Mandi Baha-ud-Din
from where, the alleged abductee rescued herself while boarding on
a bus and came to the village Guliana in the house of her father.
The abductee was not recovered from the custody of the appellant.
Apart from, the distance in between the place of occurrence and the
house of victim, another important factor is that Mst. Saniya Arif
through out the process of her abduction neither offered any
resistance nor she raised alarm qua her abduction. She deposed that
she made hue and cry when the accused asked her to sit in car
whereas she did not depose that she was under constant threats on
behalf of the appellant. The abductee through out the process
moved at different places with the appellant and did not try to raise
hue and cry to attract the others. Even she did not depose that she
was forcibly detained by the appellant although she deposed that
when accused were busy in shopping with her she managed to
escape from Mandi Baha-ud-Din. It is necessary to mention here
that abductee had not stated a single word that she was restrained
under threat to raise hue and cry. The abductee deposed that she
No.1215 of 2014
9
remained in her village since her birth and never visited any other
village out of her village whereas she easily travelled on bus from
mandi Baha-ud-Din to her father‟s village i.e. Guliana. The conduct
of Mst. Saniya Arif, therefore, renders her version as full of doubt.
18.
The matter was reported to police through a written
application dated 10.09.2009 (after six days of alleged occurrence)
by the mother of abductee-Mst. Saniya Arif. The delay in lodging
the matter is not explained plausibly. The abductee deposed that she
remained with appellant for ten days and when she returned back to
the house of his father, case was registered. This fact was not
mentioned in the FIR or written complaint (Ex.PA/1 & Ex.PA). In
view of the statement of abductee date of alleged occurrence also
becomes doubtful. Mst. Saniya Arif (PW-1) during crossexamination deposed that “it was about 8:00 p.m. when we reached
Faisalabad without any stop in the way, and remained there for
abut ten days”. The contents of (Ex.PA) reveals that appellant had
developed illicit relations with Mst. Saniya Arif and mother of
abductee was aware about it, whereas Khalida Parveen-mother of
abductee had improved her statement by stating that she did not
mention in (Ex.PA) that Mst. Saniya Arif prior to her abduction had
illicit relations and she also denied that she ever met with the
appellant prior to lodging of the F.I.R. which were confronted with
(Ex.PA). Thus Mst. Saniya Arif evidently left her house as per her
own wish and before leaving her mother‟s house, she had
contracted marriage with appellant on 25.08.2009. She also
deposed that she had filed suit for dissolution of marriage on the
basis of khula. In this regard she deposed as under:-
“I filed a suit for dissolution of marriage in
District M.B.Din. Factum of Zina has not been
mentioned in my suit for dissolution of
0
marriage. Suit for dissolution of marriage was
decreed in my favour vide order dated
03.04.2010.”
19.
As per the contents of suit for dissolution of marriage
(Ex.DC), she stated that she developed extreme hatred for the
defendant (appellant) and it was not possible for her to live with the
defendant (appellant) within the limits prescribed by the Almighty
Allah. The said suit was decreed on 03.04.2010. The abductee was
directed to return dower amount i.e. (Rs.1000/-) to the defendant
(appellant). Sequence of these averments had completely
discredited the story of abduction and rape that Mst.Saniya Arif
was forcibly abducted.
20.
The Investigating Officer (PW-6) deposed that during
his investigation, he concluded that Mst. Saniya Arif was not
abducted and she had left the house of her parents with her own
will and had solemnized Nikah with Muhammad Younas
(appellant) with her consent.
21.
From the above stated facts, an offence under Section
365-B P.P.C., is not established. If a person is sought to be
prosecuted for the offence under Section 365-B of P.P.C., must
have kidnapped or abducted any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled to
marry any person against her will or in order that she may be forced
or seduced to illicit inter course or knowing to be likely that she
will be forced or seduced to illicit inter course whereas from the
Nikan Nama dated 25.08.2009 (Ex.DA), it reveals that the abductee
entered into Nikah with the appellant prior to alleged incident.
22.
The alleged victim admitted that she filed a suit for
dissolution of marriage in District Mandi Baha-ud-Din wherein
Crl. Appeal No.1215 of 2014
11
factum of Zina is not mentioned. The said suit was decreed in her
favour vide order dated 03.04.2010. From the above discussion of
the evidence, I am of the considered opinion that no offence as
contemplated under Section 365-B, 376 P.P.C is made out as the
prosecution has miserably failed to bring on record the evidence
that abductee-Mst. Saniya Arif was abducted or induced to compel
for marriage against her will or she was forced for illicit intercourse
or that there was even likelihood of her being forced or seduced to
illicit intercourse. Even no case under Section 376 P.P.C., is made
out. Thus the conviction and sentences under Section 365-B and
376 P.P.C., are not sustainable in law.
23.
For what has been discussed above, I am of the view
that prosecution has not been able to prove its case beyond any
shadow of doubt. Resultantly, Criminal Appeal No.144-2013
against the conviction and sentence of appellant namely
Muhammad Younas in case FIR No.306, dated 10.09.2009, offence
under Sections 365-B, 376 PPC, registered at Police Station, Saddar
Lalamusa is hereby accepted. The appellant be set at liberty
forthwith, if not required to be detained in any other case.
(Aalia Neelum)
Judge.
No comments:
Post a Comment