MULTAN, March 9: Following is the complete text of the judgment of the Lahore High Court Multan Bench, Multan, in the Makhtar Mai gang rape case, as released by the court here on Wednesday:
JUDGMENT SHEET IN THE LAHORE HIGH COURT MULTAN BENCH MULTAN. (JUDICIAL DEPARTMENT) Criminal Appeal No .....60.....of.. 2002. Criminal Appeal No .....61.....of.. 2002. Criminal Appeal No .....62.....of.. 2002. Criminal Appeal No .....63.....of.. 2002. Criminal Appeal No .....65.....of.. 2002. Criminal Appeal No .....66.....of.. 2002.
JUDGMENT DATE OF HEARING: 01.3.2005, 02.3.2005 & 03.3.2005. APPELLANTS BY: M/s. Malik Muhammad Saleem and Ch. Pervaiz Aftab. Advocates. RESPONDENTS BY: Mr. Muhammad Qasim Khan, Assistant Advocate-General assisted by M/s. Sheikh Muhammad Rahim, Mehr Muhammad Saleem Akhtar, Muhammad Wasim Khan Babar & Sheikh Imtiaz Ahmad, Advocates (for State) Mr. Muhammad Ramzan Khalid Jovia, Advocate (for complainant).
IJAZ AHMAD CHAUDHARY, J- Vide judgement dated 31.8.2002 rendered by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan six appelant named below were convicted and sentenced as under:-
u/s 7(c) read with S.21(I), A.T.A, 1997 and 149/109, P.P.C.
Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar and Faiz Muhammad alias Faiza were sentenced to imprisonment for life and a fine of Rs.20,000/- each, in default thereof to further undergo six months R.I.
u/s. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sec, 149, P.P.C.
Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz were sentenced to imprisonment for life plus 30 stripes each and a fine of Rs.20,000/- each. In default thereof to undergo six months R.I. each.
u/s. 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 149, P.P.C.
Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz were sentenced to death.
u/s. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 21(1) and Sections 109/149, P.P.C.
Ramzan Pachar and Faiz Muhammed alias Faiza were sentenced to imprisonment for life plus 30 stripes, each and a fine of Rs.20,000/- each. In default thereof to undergo six months R.I.
u/s. 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 21(1) of the ATA, 1997, and sections 109/149, P.P.C. Muhammad Ramzan Pachar and Faiz Muhammad alias Faiza were sentenced to death.
However, they were acquitted of the charge under section 354-A Cr.P.C. and all the remaining accused, namely, Muhammad Aslam, Allah Ditta son of Jan Muhammad, Khalil Ahmad, Ghulam Hussain, Hazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were acquitted of all the charges.
2. Criminal Appeal No. 60 of 2002 was filed by Abdul Khaliq, Allah Ditta (both sons of Imam Bakhsh), Muhammad Fayyaz and Ghulam Farid (convicts) and Criminal Appeal No. 61 of 2002 was filed by Faiz Muhammad alias Faiza and Muhammad Ramzan (convicts) against their aforesaid convictions and sentences.
Criminal Appeal No.62 of 2002 and Crl. Appeal No.65 of 2002 were filed by Mukhtar Mai (complainant-victim) and the State respectively against acquittal of the accused persons from the charges while Crl. Appeals No.63 and 66 of 2002 were filed by the complainant/victim as well as the State respectively against the acquittal of the aforesaid six appellants from the charge under section 354-A Cr.P.C.
Since all these appeals rise out of the same judgment rendered in the criminal case registered against all of them and common questions of law and facts are involved, therefore, we propose to decide the same together.
3. The occurrence took place on 22.6.2002 in the area of Mauza Meerwala District Muzaffargarh, which was at distance of 13 kilometers from the police station Jatoi towards South while the same was reported to the SHO police station Jatoi on 3-06-2002 at 7.30 am when he while present at Chowk recorded statement of Mst Mukhtar Mai under section 154 Cr.P.C on the basis of which formal FIR was recorded at the police station.
4. Briefly the prosecution story narrated in the complaint (Ex.P.I) is that Mukhtar Mai was a divorcee. On 22.6.2002, her brother Abdul Shakoor was suspected of having illicit liaison with Mst Naseem daughter of Imam Bakhsh, Caste Mastoi, resident of Meerwala.
To resolve the dispute a meeting (Akath) was concerned on 22.6.2002. Besides other residents of the village, Ghulam Nabi son of Bahar Khan, Altaf Hussain son of Bahadar Ali, both Jatoi by caste, were also present in the Punchayat.
Muhammad Ramzan son of Karim Baksh, Caste Pachar, Ghulam Farid son of Mahmood, Caste Mastoi, Faiz Bakhsh Khan son of Sher Muhammad, Caste Mastoi were appointed as arbitrators for Abdul khaliq while, Maulvi Abdul Razzaq (PW-11) son of Bahadur, Manzoor Husain son of Noor Muhammad, both jatoi by caste, residents of Meerwala were appointed as arbitrators on behalf of Ghulam Farid (father of complainant).
The arbitrators proposed that the hand of Mst Naseem be given to Abdul Shakoor son of Ghulam Farid and likewise the hand of Mukhtar Mai be given to the son of Imam Baksh. However, Abdul Khaliq, Muhammad Ramzan and Ghulam Farid disagreed to it and demanded that Ghulam Farid should give his daughter to them with whom they would commit zina, which would equalize the incident and then they would compromise.
This was opposed by the other members of the meeting (Akath). Maulvi Abdul Razzaq and Manzoor Husain left the Punchayat. Thereafter, on the coercion and pressure of the accused-party, she was brought to the Panchayat by her maternal uncle Sabir Husain (PW.12) son of Ghulam Qadir for forgiveness according to the custom of Baloch.
She was caught hold by Abdul Khaliq son of Imam Bakhsh, Caste Mastoi, from her right hand, which she got released by force. Faiz Baksh Mastoi also sought forgiveness for Ghulam Farid, but she was forcibly taken into a Kotha by the four appellants, namely Abdul Kaliq, who was armed with 30 bore pistol, Allah Ditta (both sons of Imam Baksh), Fayyaz Husain son of Karim Baksh and Ghulam Farid son of Mahmood, all Mastoi by Caste and she was subjected to Zina-bil-jabar by all of them turn by turn during the course of which she remained crying.
Thereafter, she came out nude and called her father Ghulam Farid. The occurrence was stated to have been witnessed by Ghulam Nabi son of Bahar Khan and Altaf Hussain son of Bahadur Ali, Jatoi by Caste, resident of Meerwala as well besides her father and all the accused/applelants were previously known to her.
5. After recording the statement of Mukhtar Mai (complainant) which was got attested by Nazir Ahmad, Inspector/SHO (PW16), formal FIR (Ex.PI/1) was recorded at 8 pm. at police station Jatoi on 30.6.2002 by Azhar Abbas, Moharror/head constable (PW.6).
Then, Nazir Ahmad, Inspector/SHO sent the complainant with Muhammad Yar, constable to the hospital for medical examination along with an application (Ex.PC). He, himself, inspected the soot and prepared visual site plan (Ex.PV).
On the same day, three sealed phials, one sealed envelope and one unsealed envelope were produced before him by said Muhammad Yar constable, which were taken into possession vide recovery memo (Ex.PW) .On 1.7.2002 he collected the clothes of Mst Mukhtar Mai from Abdul Razzaq and Manzoor Ahmad at the police station, which he took into possession vide recovery memo (Ex.PU).
He also recorded the statements of the witnesses u/s 16, Cr.P.C. On 2.7.2002, accused Qasim etc were arrested by him and he also got recorded their statements.
On 3.7.2002, the investigation was entrusted to Muhammad Saeed Awan, D.S.P. Jatoi, (PW.15) by the D.I.G. Dera Ghazi Khan Range. On 6.7.2002, he recorded the statements of Abdul Khaliq and Faiz Muhammad after their arrest. On 8.7.2002, Muhammad Fayyaz, Ghulam Fareed and Muhammad Iqbal were arrested.
On 9.7.2002, he got conducted the potency test of the accused, namely Abdul Khaliq, Muhammad Fayyaz and Ghulam Farid (accused). On 12.7.2002, the investigation of the case was entrusted to Shaukat Murtaza, DSP, City, Muzaffargarh (PW.8).
On the same day, the SHO produced before him Ramzan Pachar and Allah Ditta accused persons. He got conducted the potency test of Allah Ditta (accused). On 13.7.2002, he recorded the statements of Malik Sultan Hinjra, Zilla Nazim, Muhammad Amjad and Abdul Wahid (Councillors) and Maulvi Faiz Muhammad.
On 14.7.2002, Rafique Constable of Security Branch produced before him the press clippings (Ex.PG/1-6), which were taken into possession vide recovery memo Ex.PH. He then sent the file to the SHO Police Station Jatoi for completion. 6.
After the submission of the Challan, the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan, charge sheeted all the accused under various offences to which they pleaded not guilty and claimed to be tried.
The prosecution examined as many as following 17 PWs in order to prove its case:- PW.1 Dr. Fazal Hussain, SMO, Rural Health Center, Jatoi had verified MLRs (Ex.PB/1, Ex.PB/2, Ex.PB/3 & Ex.PB/4) regarding potency tests of Abdul Khaliq, Fiaz, Ghulam Farid and Allah Ditta (accused), respectively, which were conducted by him on the applications (Ex.PA/1-4) moved by the Police.
On the application of the Police (Ex.RX), he also conducted medical examination of Abdul Shakoor and verified copy of MLR (Ex.P.X/1). PW.2 Dr. Shahida Safdar, WMO, RHC Jatoi, on 30.6.2002 at 10.30 a.m. had conducted medical examination of Mukhtar Mai (complainant) on the application of the Police (Ex.PC).
Ex.PO is the MLC. The opinion of the lady-doctor is in the form of a report Ex.P.E. According to the lady doctor, she medically examined Mst. Mukhtar Mai for rape who was previously married/divorced woman with history of rape of week back.
On general physical examination she was found conscious and well orientated in time and space. The lady doctor recorded the following findings:- (1) A healed abrasion 3 cm x 1 cm on the right buttock.
(2) A healed abrasion 1 1/2 cm x 1/2 cm on the perienal area. According to her 9 swabs (three each from posterior fornix, vaginal canal and external vaginal area) were also taken for its chemical analysis.
The report of the Chemical Examiner is Ex.PF according to which the swabs were found stained with semen and on the basis of the same the lady doctor formed the opinion through Ex.P.E that rape was committed with Mst. Mukhtar Mai.
PW.3 Rafique Ahmad, FC, Security Branch, SSP Office, Muzaffargarh, stated that he produced the press-clippings of different newspapers (Ex.PG/1-6) to Shaukhat Murtaza Malik, D.S.P. (PW.3), which were taken into possession vide recovery memo Ex.P.E. PW.4 Ali Muhammad, FC; was handed over three sealed phials and two sealed envelops on 4.7.2002 by the Moharror of the Police Station Jatoi for its delivery in the office of Chemical Examiner, Laboratory of Government at Multan.
On 30.6.2002, he delivered the statement of the complainant, recorded by the SHO to the Moharror. PW.5 Muhammad Yar, Head Constable, got conducted the medical examination of Mukhtar Mai from the lady-doctor and handed over the report of MLC along with two sealed envelopes and three sealed phials to the SHO at Meerwala.
PW.6 Azhar Abbas, Head Constable, deposed that on 22.6.2002 at 5/6 p.m. two persons came to him. They asked about Iqbal, ASI. Later on, the said ASI accompained by two Constables went away along with them and returned at about 9.00 p.m. with Abdul Shakoor, who was in injured condition.
Till 12.00 midnight he remained in his room and then slept. In the morning, he was told that Abdul Shakoor was taken from the Police Station by two persons at about 2.00 a.m. He also deposed that on 30.6.2002 at about 8.00 a.m.
Ali Muhammad Constable brought the complaint (Ex.P/1). In the evening, he was handed over three sealed phials one sealed envelopes and one unsealed envelope by the SHO for keeping the same in safe custody in Malkhana.
On 1.7.2002, he was handed over Kamiz (P/1), Shalwar (P/2) and Dopata (P/3) by Nazir Ahmad, Inspector/SHO for safe custody in the Malkhana. PW.7 Rana Muhammad Ishfaq, Civil Judge/Magistrate, 1st Class, Alipur stated that on 8.7.2002, he was posted as Civil Judge.
On the same day at about 5/6 p.m. Ghulam Fareed, S.I. moved an application (Ex.PJ) for recording the statement of the PWs under section 164. Cr.P.C., who recorded the statements of Mukhtar Mai (Ex.PK), Ghulam Fareed (Ex.PL), Ghulam Nabi (Ex.PM) Abdul Razzaq (Ex.P.N.) Sabir (Ex.PO) and that of Abdul Shakoor (Ex.PP). PW.8 Shaukat Murtaza, D.S.P. City, Muzaffargarh, had conducted the investigation w.e.f. 12.7.2002.
PW.9. Abdul Latif Khan, Inspector/SHO, Police Station Jatoi on 9.7.2002 got recorded the statements of the witnesses under section 164, Cr.P.C. On 12.7.2002, Abdul Khaliq (accused led him to the recovery of pistol (P/4) and two live cartridges (P/5 and P/6) from his house situated in Mauza Meerwala, which were taken into possession vide recovery memo Ex.PR.
He also prepared the visual site plan of the place of recovery of pistol Ex.PT. On 15.7.2002, he prepared the challan and sent it to the Court on 18.7.2002. PW.10. Abdul Shakoor (brother of complainant) deposed about the factum of sodomy committed with him by Manzoor, Punno and Jamil in the Sugarcane field.
PW.11 Abdul Razzaq has deposed about the background and the facts leading to the occurence. PW.12 Altaf Hussain, PW. 13 Sabir Hussain and PW. 14 Mukhtar Mai (complainant-victim) have given the ocular account of the occurence.
PW.15 Muhammad Saeed Awan, D.S.P. Jatoi District Muzaffargarh and PW.16 Nazir Ahmad, Inspector, deposed about the different steps taken by them during the course of investigation of this case.
PW.17 Dr. Fazal Hussain was re-examined, who deposed about the medical examiantion of Abdul Shakoor conducted by him. Prosecution tended in evidence the news clipping of Daily Khabrain dated 23.7.2002 (Ex.PY) and closed the same.
CW.1 is Malik Sultan Mahmood Hinjra, Zilla Nazim, who deposed about the hearing of the occurence through newspapers. CW.2 Muhammad Amjad, CW, 3 Abdul Wahid who are Councillors and CW.4 Maulvi Faiz Muhammad deposed that a heinious offence was committed by the accused party.
CW.5 Abdul Majeed Constable deposed that on 22.6.2002, he went in the company of Iqbal ASI to the house of Abdul Khaliq and brought Abdul Shakoor to the Police Station where he was confined.
CW.6 Abdul Latif Khan, Inspector was only deputed for service of summons Mark-A & B. CW.7 Ghulam Shabbir, SI, Police Station Jatoi deposed about the service of summons upon Fayyaz Hussain.
Abdul Latif Khan, Inspector/SHO Police Station Jatoi, was examined as CW, 8, CW.9 and CW.10, who deposed about the service of the summons and warrants. 7. The accused/ appelants when examined under section 342, Cr.P.C. refuted the allegations and pleaded innocence. They also produced the following witnesses in their defence.
DW.1 Muhammad Younas, Manager National Bank of Pakistan, Alipur deposed about different Accounts opened in the Bank by the complainant as well as her father Ghulam Fareed in the Bank after registration of the case and different amounts were deposited therein.
DW.2. Nadeem Saeed, Correspondent Daily DAWN Lahore produced the news clipping dated 12.7.2002 of Daily DAWN (Ex.DK). DW.3. Akbar Ali, Head Constable produced Rapt No.6 dated 26.3.2002 (Ex.DL).
DW.4. Muhammad Ashraf, SI, Police Station City Muzaffargarh.
DW.5. is Ghulam Hussain who depsoed that it was informed to him by Abdul Khaliq that Abdul Shakoor brother of the complainant was nabbed with Salma sister of Abdul Khaliq.
Thereafter as a compromise Nikah of the complainant was performed with Abdul Khaliq and it was also agreed that Nikah of Mst. Salma would be performed with Abdul Shakoor, but thereafter the complainant backed out from their promise and on 27.6.2002 performed Nikah of Salma with Khalil which led to the registration of the present case.
DW.6 is Mirza Muhammad Abbas, S.P. Range Crimes, Dera Ghazi Khan, who conducted fact finding inquiry against the local Police and recorded the statements of witnesses.
8. The learned trial Court, after taking into consideration the entire material brought on record, convicted and sentenced the six convict-appellants, as detailed above and acquitted rest of the accused.
9. Learned counsel for Abdul Khaliq (appellant) has contended that solitary statement of Mukhtar Mai, which is full of contradictions and not corroborated by any independent piece of evidence is not sufficient to prove the commission of gang rape committed with her by the four accused.
The first argument for disbelieving her statement is that the FIR, in the present case, has not been lodged immediately after the incident as the occurence alllegedly took place on 22.6.2002 but the FIR was lodged on 30.6.2002 without any reasonable explanation.
It is further contended that the manner in which the statement of the complainant under section 154 Cr.P.C. was recorded is doubtful, as according to the Police the statement of the complainant was recorded at Chowk Jhuggiwala on 30.6.2002 at 7.45 a.m. when the complainant and other witnesses came and met Nazir Ahmad, Inspector/SHO but on the other hand, PW.
14 Mukhtar Mai made a statement before the Magistrate, which is Ex.P.K, in which she had stated that she was taken to Police Station where the case was already registered and she thumb marked the same.
It is also contended that Maulvi Abdul Razzaq, in his statement under section 164, Cr.P.C., stated taht he had gone to the Police where representative of the Press also came and complaint was prepared on 29.6.2002 but the case was registered on 30.6.2002, which was thumb marked on the said date by the complainant.
According to the learned counsel Naulvi Abdul Razzaq also made a statement before the S.P. Range Crime to the effect that father of the complainant was not ready to get lodged the FIR and he told him that his statement was already recorded in the tape-recorder and if he failed to lodge the complaint, he would take action against the complainant.
He and Mureed Abbas, News Reporter, informed the Police about the incident. Abdul Ghaffar, ASI, went to the house of Ghulam Fareed where from he brought Mukhtar Mai and Abdul Shakoor to the Police Station and legal proceedings were initiated.
Ghulam Fareed was not ready to get recorded the statement and he talked to Mukhtar Mai in privacy and on the asking of Abdul Razzaq the case was registered. It is also contended that Ghulam Fareed was not produced in the Court and was given up, who was the main witness of the alleged occurence and his non-production creates sufficient doubt in the prosecution story.
However, in his statement under section 164, Cr.P.C. he stated that for four days they were not allowed to come out of their house and he asked Abdul Razzaq and Murred Abbas for their support and on 30.6.2002, they informed the Police who took them in the van to the Police Station, where the case was registered.
He also stated before the S.P. Range Crime that Maulvi Abdul Razzaq, who is his foster brother, came to him along with Mureed Abbas Baloch, Press-Reporter, and on their asking, the case was registered at Police Station Jatoi, where SHO was also present.
It is also contended that in the above circumstances the registration of the FIR as claimed by the Police has been faisified. It is also contended that the FIR has no authenticity and cannot be given any weight. The names of the accused and the story of the FIR is not believable.
The learned counsel has argued that if the occurence had taken place in the night in such a matter, why Sabir Hussain (PW-12), maternal uncle of the complainant, who had gone to the Police Station to get released Abdul Shakoor, brother of the complainant, informed the Police about the incident and according to the complainant, he was present in the Punchayat at the time when she came out of the room after she was subjected to Zina-bil-Jabr by the convicts.
It is further contended that the complainant stated in the FIR that Ghulam Nabi and Altaf Hussain were also present outside the room, when she came out after commission of Zina by the convicts with her whereas Ghulam Nabi, in his statement (Ex.P.M) before the Magistrate denied that he had witnessed the occurence and this was the reason that he was not produced at trial.
It is also a fact that Altaf Hussain is the brother of Maulvi Abdul Razzaq, who is the chief architect of the present case. It is also contended that the mentioning of the witnesses by the Police and the Police KARWAI is in complete contradiction with each other.
It is further contended that the prosecution story itself is doubtful as there was no reserach to call the complainant specifically in the Punchayat, when she had other sisters, who were virgin and she was not at fault.
It is also contended that if the convicts had decided to commit Zina with her and said so in the Punchayat then why Sabir Hussain, the maternal uncle of the complainant, had taken her to the Punchayat without disclosing this fact to her and why the honour of the complainant was not tried to be saved.
It is further contended that the story of the prosecution is further belied by the contradictions made in the statement of the complainant and the statement which she made before the S.P. Range Crime.
In her complaint she stated that Abdul Khaliq armed with pistol, Allah Ditta, Fayyaz Hussain and Ghulam Farid had taken her into the room. But in her statement, which she made with the S.P Range Crime, she stated that Abdul Khaliq (convict) had caught hold of her by her arm and taken her to his house which is situated at a distance of two kanals.
Ghulam Farid (convict) also followed them. Abdul Khaliq had taken her into the room, where Allah Ditta and Fayyaz were already present. But in her statement under section 164, Cr. P.C before the magistrate, she stated that Abdul Khaliq (convict) while armed with pistol caught hold of her by the wrist and she was taken into the room by Abdul Khaliq, Allah Ditta, Fayyaz and Ghulam Farid while dragging.
It is also contended hat Allah Ditta is brother of Abdul Khaliq, who is the main accused and that both brothers allegedly committed zina with her at the same incident in the manner narrated by the complainant.
It is also contended that it was omitted by the complainant to mention that the children and other persons were present in the house or not, as Allah Ditta (convict) was married person and had four children and her wife and children also resided in the same house.
It is also contended that Abdul Khaliq had five brothers as well and it was not possible for the two brothers to commit Zina with the complainant in the same room in presence of their female family members present in the house.
It is also contended that she had also made contradictory statements regarding coming out of her from the room after commission of zina, as in the FIR she had stated that she came out in nude position but in her statement with the SP Range Crime, she stated that she was wearing the shirt while shalwar was in her hand and she put dopatta around her body.
In another statement before the magistrate under section 164. Cr.P.C she had stated that her shirt was torn from the front, while her dopatta and shalwar were in the hands of Fayyaz, which he threw upon her.
She stated that when they to the their house Ghulam Nabi and Haji Altaf were already present there. However, in the complaint she stated that Altaf Husain was eyewitness of the occurrence while Ghulam Farid in his statement under section 164, Cr.P.C stated that he was alone and had mentioned the names of other witnesses.
It is further contended that in the court the complainant deposed that besides her father, Ghulam Nabi and Haji Altaf were also present, who witnessed her in nude position. It is contended that these contractions in her statements made at different forums are on material points and are sufficient to prove that she was not a truthful witness.
It is also contended that there the ocular account was also in contradiction with the medical evidence, as it was claimed by the complainant that she was dragged up to a considerable distance and she also received bruises but the doctor had not found any mark of violence on her body.
It is also contended that the external and internal swabs were also taken by PW. 2 Dr Shahida Safdar WMO, RHC, Jatoi after seven days of the incident, which were found stained with semen in spite of the fact that the lady doctor stated that she did not see semen present on the external part during examination.
The WMO, in her cross-examination also stated that the complainant had appeared before her and on he asking. Mukhtar Mai told that she had washed the clothes, she was wearing at the time of occurrence.
The WMO explained that sperms remained motile in the uterine cavity for three to five days and even non-motile sperms could be found in the genital tract up to weeks, but according to the learned counsel no evidence has been produced by the prosecution that swabs were stained with non-motile sperms. It is contended that the report of the Chemical Examiner was fabricated one and it alone is not sufficient to corroborate the prosecution version.
It is contended that why the Lang out, shalwar and shirt were not sent to the office of Chemical Examiner and what was the need of washing the torn clothes, when the complainant did not take bath for nine days, which is sufficient to prove that the story of torn clothes were introduced later on and no such occurrence had taken place.
It is further contended that the extreme penalty cannot be awarded on the statement of the complainant as she is not proved to be a truthfulness witness and was playing in the hands of the enemies of the accused party.
It is further contended that the vast publicity was given to this case in the daily newspapers and in the international press and the Supreme Court of Pakistan has held that in such like cases the evidence has to be looked into with due care and caution.
Reliance has been placed on AIR 1952 Supreme Court 159 and 1985 MLD 604. It is further contended that the appellant was a divorcee woman and it was not a case of fresh rape and hymen was old torn but no effort was made for DNA test which could have been effective to detect the real culprit and could support the evidence of the prosecution regarding the commission of Zina.
It is further contended as far as Faiz Muhammad Mastoi (appellant) is concerned, he had only uttered that Gulam Fareed might be forgiven and on this single sentence, he has been convicted and sentenced to death.
It is further contended the Muhammad Ramzan has been convicted only due to the allegation that he had gone to the house of the complainant and asked to bring her to the Punchayat for seeking forgiveness.
It is also contended that in the FIR, complainant had not named Muhammad Ramazan, the person, who accompanied her maternal uncle Sabir at the time of taking her from the house to the place of occurrence.
It is further contended that during the cross-examination the complainant also admitted that Ramazan was friend of Hazoor Bakhsh, her brother, and in order to get released Abdul Shakoor, brother of the complainant, he had taken Rs10,000/- from them.
It is also contended that no allegation of commission of Zina was leveled against him. It is further contended that Fayyaz (appellant) was not related to the other accused and on the other hand, the name of Fayyaz has been mentioned in the FIR with parentage of Karim Bakash and resident of Meerala but he is resident of Raampur.
It is also contended that in the complaint. Fayyaz is not mentioned and he is the person who has been wrongly arrested and has been convicted as the Governor of Punjab met the complainant and it was published in the newspaper Daily Nawa-i-Waqt dated 14-7-2002 (Ex.DZ) that wrong person by the name of Muhammad Fayyaz has been arrested while the real culprit was set at liberty by the complainant.
It is contended that in the daily DAWN the same news was flashed. it is further contended that DW.2 Nadeem Saeed, Reporter also appeared and he claimed that he met the brother of the complainant, who had told him that wrong person was arrested by the Police with the name of Fayyaz.
It is contended that since the Governor had directed for completion of the investigation within shortest time, Muhammad Ashraf, SI, (DW.4) took out Fayyaz on physical remand in an untraced case and address of Fayyaz was mentioned as Meerwala.
It is contended that according to the documents Ex.DX,. Ex.V (identity-card) the address of Fayyaz has been shown as resident of Raampur instead of Meerwala, as claimed by the complainant.
It is contended that the complainant claimed that she was observing Burqa for the last 15/20 years but on the day of occurrence, she was having a Dopatta around her. It is also contended that in the above circumstances the occurrence had taken place in the room in the night and it was a case of misidentify of the accused.
As far as Ghulam Fareed is concerned, his parentage is mentioned as Mahmood but in the supplementary statement his parentage was changed as son of Alah Bakhsh. It is contended that the father of the complainant and other witnesses were also present at the time of the registration of the FIR and the FIR was read over to her but no correction was made by the complainant at that time.
She also did not mention the parentage of Ghulam Fareed. It is also contended that the supplementary statement was not recorded on the said date. Her statements before the SP Range Crime and the Magistrate also did not final mention Ghulam Fareed and only Fareed was written.
It is also contended that one Karam Hussain filed a Writ Petition No. 2949/1995 titled Maji Karam Hussain v. Mulvi Abdul Razzaq regarding the allotment of State land in the High Court.
Karam Hussain is the father in-law of Ghulam Farid (convict), who died before the occurrence. It is also contended that Ghulam Farid, father of the complainant, in his statement (Ex.PD) stated that Ghulam Farid remained present at the time of occurrence but he did not commit Zina with his daughter.
It is contended that PW.8 Shaukat Murtaza, D.S.P. City, Muzaffargarh, in his cross-examination, stated that Allah Ditta (convict) admitted that only Abdul Khaliq (convict) put off the Shalwar of Mst. Mukhtar Mai and kissed her.
He also stated that no body committed Zina with the complainant and that it was Ghulam Farid (convict), who rescued her. It is contended that the complainant herself deposed in her statement as PW.14 that Allah Ditta is elder brother of Abdul Khaliq (convict), who is a married man having four children and his family as well as their mother, sisters and five other brother were living in the same house where the occurrence allegedly had taken place and it does not seem probable that such an incident could be committed by two brothers jointly.
Learned counsel for the appellants has also relied upon 1989 CSMR 1851 to contend that in that case, there were three brothers and a cousin who were convicted and sentenced under Section 354-A, P.P.C. for the abduction and commission of Zina-bil-Jabr, but the Federal Shariat Court accepted the appeal of the convicts and convicted them under section 354, P.P.C. which sentence was upheld by the apex Court. It is further contended that the complainant in her examination-in-chief deposed that when she came to know that her brother Abdul Shakoor had been confined by Abdul Khaliq (convict) in a room along with his sister Mst. Salman alias Naseem, she along with her mother went there to rescue his brother with Holy Quran in her hand, where Abdul Khaliq and his other relatives were also present then why he did not commit this heinous offence with the complainant and why the accused-party chose the subsequent event to do so, when a sufficient period was already elapsed and elders of both the parties were also involved in the matter.
It is contended that Sabir Hussain (PW.13) stated before the S.P. Range Crime that Mukhtar Mai narrated the commission of Zina by the four persons after reaching home.
It is also contended that it is in the cross-examination of Sabir Hussain (PW.13) that he did not go to the house to Ghulam Farid (father of the complainant) after Mukhtar Mai was taken there and reached the Police Station at 2.00a.m. on the same night but did not lodge any report with the Police that Mukhtar Mai was subjected to Zina and that the occurrence was not disclosed to any body till 30.6.2002.
It is contended that Maulvi Abdul Razzaq (PW.11) stated before the S.P. Range Crime that he was not aware of the commission of Zina by the accused-party and it was on 28.6.2002 when he come to know of the occurrence from some other person.
It was Friday and he gave sermon on the occurrence at Juma prayers, upon which the Tatla Brotheri showed their annoyance and on the same day after Asar prayers he met Ghulam Farid, father of the complainant, who refused to admit the occurrence.
He also stated that on 29.6.2002 Mureed Abbas, News Reporter, approached him and enquired about the occurrence whereupon they both went to Ghulam Farid, who denied the occurrence and said that one mishap was happened and it should not be repeated, but Ghulam Farid was promised to be helped whereupon he admitted the occurrence, and this talk was recorded by the News Reporter in his tape-recorder, hence it is sufficient to prove that Ghulam Fareed was terrified to get registered the case, otherwise he was not willing to initiate legal action and they, both pressurized Ghulam Farid while stating that his talk had been so recorded in the tape recorder and pressurized him that if he still insisted on not to lodge any report, they would initiate legal action against him where after Mureed Abbas News Reporter reported the matter at the Police Station and Abdul Ghaffar, ASI, accompanied by other Police officials brought Ghulam Farid, Mukhtar Mai and Abdul Shakoor to the Police Station.
Ghulam Farid also refused to admit the occurrence at the Police Station whereupon Abdul Razzaq (PW-11) talked to Mukhtar Mai in seclusion and she conceded to lodge the report.
It is further contended that Abdul Razzaq has enmity with the Mastoi tribe and there was a motive behind this bitterness which he had narrated in his statement with the SP Range Crime in the manner that he obtained two square of land on lease falling in Lot No. 189 of Sardar Kouray Khan from the District Council Muzaffargarh, but in spite of the decision in his favour by the High Court, the Mastoles did not give him the possession of the said land and subsequently, this land was obtained by the Mastoies for a sum of Rs.100,000/-.
He also stated that the Mastoi tribe belonged to Qabza Group who had illegally occupied the different Lots. It is also contended that Abdul Khaliq (convict) is Kharadia by profession, whereas Allah Ditta is a mechanic of tube-well. It is also contended that it is in the evidence of PW.16 Nazir Ahmad, Inspector, that the complainant-party was financially sound than the accused-party.
He also stated that when the complainant came out of the room after the commission of Zina, her father was standing at a distance of two Kanals and it was night time and that the facility of electricity was also not available in the village of the complainant.
It is contended that Abdul Razzaq (PW.11) admitted during cross-examination that Altaf is his real brother who lives with him at the same place but it is strange that the latter did not disclose him about the occurrence even up to 30.6.2002.
It is further contended that if such a heinous offence had been committed, Altaf would have narrated it to his brother, who was an arbitrator on behalf of the complainant party and had left the Panchayat/meeting as the accused party had not acceded to his proposal of exchange marriages between the parties.
It is also contended that the appellants could not be convicted for the abduction of Mukhtar Mai, as there is nothing on the record to suggest so. It is further contended that Mukhtar Mai herself stated that it was only Abdul Khaliq (convict) who caught hold of her from the arm and taken her into the room and Fareed (convict) followed them.
It is further contended that the punishment for whipping of stripes in Ta'zir has been omitted under the Abolition of Whipping Act, 2000, although it is provided in Hadd, therefore the sentence of stripes to convicts is unwarranted by law.
It is further contended that the alleged occurrence had never happened and it was the local Pressman who along with PW-11 first of all concocted a false story and then flashed it sensationally. In the end, learned counsel for the appellant has contended that the prosecution has miserably failed to establish its case therefore, the appellant be acquitted.
10. Learned counsel for rest of the appellants has contended that the initiative taken by Mukhtar Mai (complainant) is doubtful, that the occurrence was false, so it was unreported but it was the Press which flashed it and gave international coverage; that there were two separate meetings (Akath) and 200/250 persons were gathered there, but it is strange that no one from the Punchayat took courage to intervene the occurrence, that Maulvi Abdul Razzaq (PW) belonged to a sectarian group, who is in the habit to create sensation and he did so in this case due to his personal grudge against Mastoi tribe; that the medical evidence did not corroborate the ocular account as PW.2 Dr. Shahida Safdar, WMO, did not clinically observe the commission of rape with the complainant but she formulated her opinion keeping in view the report of Chemical Examiner; that Mukhtar Mai (complainant) stated in her evidence that she was laid rest on Kachcha floor and was allegedly subjected to Zina-bil-Jabr by the four adult persons and it is in the evidence of the complainant that she was dragged by Abdul Khaliq (convict) in side the room but it is strange that the WMO did not observe any scratch or bruise on the person of Mukhtar Mai (complainant), or marks of violence on her private parts, which, itself falsified the story of commission of Zina; that Mukhtar Mai (complainant) was married 10 years ago and now she was living with out husband for the last seven years and there is no medical evidence on record that whether any damage was occurred to the private parts of the complainant that if the clothes, which the complainant wore at the time of occurrnece, were torn then those were not required to be washed that the Police took into possession the Dopatta, Shalwar and shirt of the complainant but these articles were not sealed or sent to the Chemical Examination; that there was complete silence uptil 29.6.2002 but subsequently there opens a Pandora box and that speaks the volume of the innocence of the convicts.
11. Learned counsel for the complainant contended that all the contradictions pointed but above had occurred only with the statements recorded during the fact finding inquiry by S.P. Range Crime who visited the spot under the directions of DIG, Dera Ghazi Khan; that Nazir Ahmad Inspector/SHO did not conduct the investigation of the case properly and for this reason he was suspended; that the SP Range Crime was not assigned with the task of investigation, so his fact finding inquiry could not be made part of the investigation of this case; that these statements were recorded by the Reader/Inspector, which were disowned by the witnesses and the S.P. Range Crime had specifically given a certificate with every statement that those were disowned by the witnesses; therefore, these were inadmissible in evidence; that the defence has produced DW. 8 Mirza Muhammad Abbas, SP, who was later on declared hostile; that the copies of these statements were not required to be supplied to the accused-party but those were made available to them on their application; that the incident of the commission of Zina by Abdul Shakoor with Salma alias Nasim never occurred, and had any such incident happened, it would have been reported to the Police; that it was Abdul Shakoor with whom sodomy was committed and it was for this reason hat the Akath/Panchayat was convened; that the Mastoi tribe is dominant in the area whereas the complainant-party are living with few families, hence financial position of the parties did not matter, but in fact the whole Mastoi bratheri had gathered against the complainant party; that the place of occurrence; time of occurrence and the mode of occurrence were proved on the record and the delay in lodging the FIR was sufficiently explained, which even otherwise is not sufficient in discard the prosecution version in such like cases; that the prosecution evidence was consisted of independent, trust-worthy and natural witnesses and sufficient to bring home guilt to the appellants; that presence of the witnesses at the place of occurrence was not doubtful; that the prosecution witnesses were independent and not interested having no enmity to depose against the convicts falsely and that there was ample corroboration to the statements of Mukhtar Mai (complainant).
Also contends that offence under section 354-A PPC was also proved against the appellants as Mst. Mukhtar Mai complainant/victim had come out of the room after commission of zina bil jabar with her in a naked condition and all the eight acquitted accused had also shared common intention in the commission of the crime, but they have been acquitted on surmises and conjectures.