::Anti-Terrorism case Law and court judgement in Pakistan

::Anti-Terrorism case Law and court judgement in Pakistan

IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH

Criminal Appeal No. 02-J-2011/BWP

(Jahangir. Vs. The State)

JUDGMENT

This jail appeal is directed against the judgment dated 11.12.2010

passed by learned Judge Anti Terrorism Court,

Bahawalpur, Division Bahawalpur, in case FIR

No.22/2010, dated 23.1.2010, in the offences under

Section 376 PPC & 6/7 Anti Terrorism Act, 1997,

police station City C-Division, Rahimyar Khan,

whereby the appellant Jahangir was convicted under

section 376 PPC and sentenced to 25 years rigorous

imprisonment with fine of Rs.1,00,000/- and in default

of payment of fine to further undergo two years simple

imprisonment. He was further convicted under section

7(1) Anti Terrorism Act, 1997 and sentenced to suffer

Crl.A.No.2-J-2011/BWP 2

10 years rigorous imprisonment with fine of

Rs.50,000/- and in default of payment of fine to

further undergo one year simple imprisonment. The

benefit of section 382-B Cr.P.C. was also extended to

him.

2. Epitome of the prosecution case is that on

23.1.2010, at about 7.00 p.m. in the bushes near the

railway line Habib Colony, Rahimyar Khan accused

Jahangir committed sexual intercourse with Mst.Rabia

Bibi a minor girl aged about 5/6 years and

commission of said act created fear, panic and

insecurity amongst the public in general.

3. After having completed legal formalities

including the medical examination of the victim, the

challan was submitted against the accused before the

learned trial court, where he was charge sheeted

under section 376 PPC and 7(1) of Anti Terrorism Act,

1997. The accused pleaded not guilty and claimed to

be tried.

4. To prove the charge, the prosecution produced

as many as 13 witnesses including Dr.Muhammad

Crl.A.No.2-J-2011/BWP 3

Siddique Hamid (PW-1), who medically examined the

accused, Dr.Khizra Akram (PW-3) who conducted the

medical examination of the victim, Hafiz ur Rehman

(PW8) complainant/eyewitness and father of the

victim, Jalil ur Rehman (PW-9) eyewitness/brother of

the complainant, Tariq Mehmood (PW-10) resident of

locality i.e. Habib Colony Rahimyar Khan and Ghulam

Mohy-ud-Din ASI (PW-13) the Investigating Officer of

this case. The prosecution also brought on record

application (Ex.PE) on the basis whereof formal FIR

(Ex.PE/1) was recorded, injury statement of the victim

(Ex.PF), site plan (Ex.PG), medico legal report of

Jahangir accused (Ex.PA), medico legal report of

Mst.Rabia Bibi victim (Ex.PC) and report of chemical

examiner (Ex.PH).

5. In statement under section 342 Cr.P.C. the

accused pleading his innocence denied the

allegations and stated his version as below:-

“I have falsely been involved in this case. My

uncle Ghulam Mustafa alias Nannah was

murdered by Fazal Elahi, Karam Elahi, Manzoor

Elahi and Mst. Mansooran Bibi and in this regard

case F.I.R.No. 61/2002 was registered at Police

Crl.A.No.2-J-2011/BWP 4

Station City C-Div. Rahimyar Khan on 9-3-2002

and in said case Ghulam Dastgir complainant

was my real father and in that murdered case

Fazal Elahi has been sentenced to death

whereas remaining accused are undergoing

imprisonment while appeal is still pending in the

August Supreme Court of Pakistan. Fazal Elahi

etc are the friends and relatives of Hafeez ur

Rehman and only in order to save them in the

murder case of Ghulam Mustafa alias Nannah,

this false case has been registered against me.

No independent person has been produced in

the witness box and the witnesses have deposed

against me as they are related inter se.”

However, he neither opted to make statement on

oath under section 340(2) Cr.P.C. nor produced any

defence.

6. We have heard Syed Munawar Hussain Bukhari,

Advocate learned defence counsel for the appellant

on state expenses and Mr.Muhammad Ali Shahab,

DPG. Record is carefully perused.

7. Hafeez ur Rehman (PW-8), the complainant and

father of Mst.Rabia Bibi reiterating his version as set

forth in the FIR deposed that on 23.1.2010, at about

7:00 p.m., his daughter Mst.Rabia Bibi aged 5/6 years

went out to get sweets from a shop in the street of his

Crl.A.No.2-J-2011/BWP 5

house but did not turn up for 10/15 minutes,

therefore, he set out in her search; that in the street

his brother Jalil ur Rehman informed him that he had

seen Mst. Rabia Bibi in the company of accused

Jahangir present in the court proceeding towards

railway line; that he along with his brother Jalil ur

Rehman and Khalid Mehmood went towards the

railway line where they heard shrieks and noise of

weeping of his daughter Mst. Rabia Bibi from the

bushes near the railway line; that when they reached

the spot accused Jahangir having sight of them fled

away by lifting his shalwar; that Mst. Rabia Bibi was

found subjected to forcible zina by the accused; that

she was in fainted condition and her shalwar was

stained with blood; that they took her to police station

where application Ex.PE was made for registration of

case and then she was carried to Hospital for medical

treatment.

8. Jalil ur Rehman (PW-9) the other eyewitness

stated that on 23.1.2010, at about 7:00 p.m. he was

coming home from work when he saw his brother

Crl.A.No.2-J-2011/BWP 6

Hafiz ur Rehman standing in the street out of his

house in perturbed condition; that on his asking Hafiz

ur Rehman told that Mst. Rabia Bibi had gone to get

sweets but has not turned up; that he informed him

that he had seen the accused Jahangir present in the

court taking away Mst. Rabia Bibi towards railway

line; that after five minutes his brother Khalid

Mehmood also reached in the street and they all went

towards railway line in search of Mst. Rabia Bibi; that

when they crossed the railway line they heard the

noise of weeping and shrieks of Mst. Rabia Bibi from

bushes; that when they reached near Mst. Rabia Bibi

the accused Jahangir while lifting his shalwar fled

away; that they attended Mst. Rabia Bibi stained with

blood due to forcible zina; that they went to police

station and reported the matter and then carried Mst.

Rabia Bibi to the hospital for treatment.

9. Bare reading of examination in chief of both the

eyewitnesses mentioned above makes it clear that

their statements on the vital dimensions of the

prosecution case i.e. time and place of occurrence,

Crl.A.No.2-J-2011/BWP 7

nomination of the accused, particular attribution of

commission of rape with the minor victim are in line

and corroborative to each other. Both the

eyewitnesses have also furnished probable and

plausible reasons of their presence at the time and

place of occurrence. The testimonies of both the

witnesses bear intrinsic value and inherent worth of

truthness and are safely reliable. Despite searching

cross-examination upon both the witnesses nothing

material elicited in favour of the defence.

10. Dr.Khizra Akram (PW-3) examined the minor

victim on 23.1.2010 at about 10.24 p.m. In her report

the victim was found fully conscious, oriented with

time place and person (in accordance with her age)

but frightened and in psychological stress however

vitally stable. On external examination she observed

that inspection of vulva and vagina was not possible

as the child victim was agitated and frightened,

therefore, examination was conducted under general

anesthesia whereby she found blood stains in both

inguinal area and vulva. Fresh blood oozing from

Crl.A.No.2-J-2011/BWP 8

vagina. Hymen freshly torned with irregular ragged

margins and absent at 6’ O clock position, permitting

tip of little finger. External and internal swabs were

taken and sent for chemical examination. After

obtaining the reports of ultra sound and report of

chemical examiner she recorded her final report that

sexual assault has been done to victim. Her medical

reports are Ex.PC and Ex.PC/1. Dr. Muhammad

Siddique Hamid (PW-1) examined the accused

Jahangir aged about 24 years and found him

physically capable of performing sexual act in his

medico legal report (Ex.PA). The above referred

medical evidence produced by the prosecution,

therefore, furnishes sufficient corroboration to the

ocular account.

11. Accumulating appraisal of the confidence

inspiring ocular account having reliable corroboration

of the medical evidence, therefore, leads us to the

conclusion that the prosecution has sufficiently

established the charge of commission of rape with

minor Rabia Bibi against the accused Jahangir.

Crl.A.No.2-J-2011/BWP 9

Subsequent conduct of the accused in fleeing away

from the place of occurrence along with his shalwar

having sight of the witnesses also indicates his guilt.

12. It is pertinent to mention that ordinary criminal

assault and physical violence to a victim do not fall

within the purview of ‘terrorism’ as defined under

section 6 of Anti Terrorism Act, 1997. To take

cognizance under the Act (ibid) it remains incumbent

upon the court to examine impact of alleged violence

and also to see as to whether alleged criminal act

was designed to create a sense of terror, fear and

insecurity in the mind of general public creating panic

in the society. Existence of above parameters is vital

to bring the offender within the purview of the

offences under the Anti Terrorism Act, 1997.

13. As regards the charge under section 7(1) of Anti

Terrorism Act, 1997 in this case both the

eyewitnesses i.e. Hafeez ur Rehman (PW-8) and Jalil

ur Rehman (PW-9) have not uttered even a single

word in their examination-in-chief with regard to

striking of any panic, terror, fear or insecurity in the

Crl.A.No.2-J-2011/BWP 10

public or locality in result of the alleged occurrence.

Singular statement of one Tariq Mehmood (PW-10)

that after the incident of molestation there was panic

all around the area of Habib Colony is neither reliable

nor confidence inspiring for the simple reason that

while facing the cross-examination he stated that the

occurrence came to his knowledge on 23/24.1.2010.

Admittedly, he is a motor mechanic and leaves the

house for work at 8.00 a.m. and remain at his place of

work till night. The above noted solitary statement of

Tariq Mehmood (PW-10) lacking inherent worth

without any further corroboration is totally insufficient

to prove the charge that the alleged occurrence

resulted into striking terror, fear or sense of insecurity

among the public in the relevant vicinity, therefore,

we are of the considered opinion that the provisions

of section 6 and 7 of the Anti Terrorism Act, 1997 are

not attracted at all in the peculiar circumstances of

this case and thus the charge under section 7(1) of

Anti Terrorism Act, 1997 is not proved against the

accused. Therefore, to this extent appeal is accepted

Crl.A.No.2-J-2011/BWP 11

and the appellant is acquitted in the charge under

section 7(1) of the Anti Terrorism Act, 1997.

14. The arraignment of accused Jahangir in the

charge under section 376 PPC, however, is

established to the hilt with the help of ocular account

and medical evidence. The defence side has

miserably failed to create any dent or doubt in the

prosecution evidence with any speck of material,

therefore, we have no reason to take exception to the

conviction of the accused under Section 376 PPC as

judged by the learned trial court. However, the

quantum of punishment awarded by the learned trial

court deserve some consideration by this Court. It is

evident on the record that accused is unmarried

young person aged about 24 years. He has no

criminal history of involvement in any case of like

nature. Since the accused is not a habitual offender,

therefore, chances of his rehabilitation cannot be

ruled out. Keeping in view the tender age of the

accused with genuine hope that he can come up as a

useful member of the society, a lenient view is taken,

Crl.A.No.2-J-2011/BWP 12

and thus maintaining the conviction under section 376

PPC the sentences are modified and reduced to

20 years rigorous imprisonment with fine of

Rs.50,000/- and in case of default in the payment of

fine to further undergo one year simple imprisonment.

He will be also entitled to the benefit under section

382-B Cr.P.C.

15. Appeal is partially accepted accordingly.

(Sh.Najamul Hasan) (Abdus Sattar Asghar)

JUDGE

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