PLJ 2009 SC 1134

[Shariat Appellate Jurisdiction]

Present: M. Javed Buttar, Zia Perwez,

Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmood &

Dr. Rashid Ahmed Jullundari, JJ.

NAWAZISH ALI and others--Petitioners

versus

STATE and others--Respondents

Crl. Shariat Petition No. 38 of 2007 & Crl. Shariat Petition No. 39 of 2007, decided on 31.3.2009.

(On appeal from the judgment dated 26.1.2007 of the Federal Shariat Court, Islamabad passed in Criminal Revision No. 114/L of 2005).

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 235 & 239--Respective roles--Each accused would be liable to conviction of proof of charge at trial according to law--In the absence of any prejudice that may be caused to the accused due to joint trial, when a trial arises out of a series of offences during the same transaction the facts relevant to determine whether different acts committed by one or more accused persons arising out of same transaction involve examination of the sequence of facts of the case and, whether or not they are relevant to each of the principle or subsidiary acts resulting in the community of purpose and continuity of action--Held: If a single act or series of acts is of such a nature that it is doubtful each of the several offences, the facts which can be proved will render the accused liable to conviction for having committed all or any of such offences, the facts which can be proved will render the accused liable to conviction for having committed all or any of such offences--Role of one or more of the accused person does not cover the entire series of events has to be considered by the trial Court in the evidence at the trial where each individual link of the chain of evidence has to be considered but it does not make out the ground for framing a separate charge. [P. 1137] A & B

Criminal Procedure Code, 1898 (V of 1898)--

----S. 265-K--Object of exercise of powers is to prevent abuse of law available to the appellate Court, however in a case where sufficient prima facie evidence is available the powers may not be exercised as to throttle the process of justice--Mere availability of defence to a party does not call for exercise of such powers that call for exercise of judicial discretion. [P. 1138] C

P.Cr.L. 2000 SC 1054, PLD 1997 SC 275, 1985 SCMR 257, PLD 1967 SC 317 & PLD 1992 SC 353, ref.

Mian Allah Nawaz, ASC and Mr. Arshad Ali Ch., AOR for Petitioner (in Crl. Sh.P. No. 38/07).

Mr. Zulfiqar Khalid Malooka, ASC for Petitioners (in Crl. Sh. P. No. 39/07).

Mian Asif Mumtaz DPG, Punjab for State (in both petition).

Mian Allah Nawaz, ASC and Mr. M.S. Khattak, AOR for Respondents No. 1 to 4 (in Crl. Sh. P. No. 39/2007).

Date of hearing: 31.3.2009.

Judgment

Zia Perwez, J.--Criminal petitions for leave to appeal No. 38(S) and No. 39(S) of 2007 instituted by Nawaizish Ali and others versus The State and others and Mst. Rukhsana Bibi versus Dr. Amir Masood Nasir and others respectively are directed against the judgment of the Federal Shariat Court in Criminal Revision No. 1 14-L of 2005 dated 26.1.2007.

2. Facts stated are that Mst. Rukhsana on 31.12.2003 moved an application before the SHO of P.S. Thingi on the basis of which FIR

No. 1 of 2004 was registered. In her complaint, she stated her age to be about 14/15 years. About two months prior to lodging of FIR she was alone in her house. Her parents had gone to the city when at about 1.00 p.m. Baggi, Kalu and Malangi, all sons of Taj Din, came in a car driven by a person not known to her. They asked her about her father. She informed them that her parents were out of city, while she was saying so, those persons forcibly threw her in the car and drove away. She tried to raise cry but Baggi and Kalu put their hands on her mouth and threatened to kill her if she tried to make noise. Accused then took her to Multan at the house of Ghanwar Baloch where Mst. Shahnaz and Zafar, wife and son of Ghanwar respectively, were present. Kalu and Malangi went away from the house of Ghanwar Baloch but Baggi stayed there for three days. During this period, Baggi and Zafar repeatedly raped her. Thereafter, Baggi also went away, leaving her in the custody of Ghanwar etc. Ghanwar kept her confined in his house for about ten days, during this period Zafar repeatedly raped her. After ten days Ghanwar, his wife Mst. Shahnaz and son Zafar told her that they were taking her to Data Darbar in Lahore but, in fact, they took her to the house of Dr. Nawaizish in Lahore. Mst. Samina wife of Dr. Nawaizish, was present in the house. Complainant was kept at the house of Dr. Nawazish for three or four days. Then she was told that she was ill and needed medical treatment. On this pretext her blood samples were drawn many times for testing purposes. Thereafter, she was a taken to "Maqsood Hospital" near Kalma Chowk in Lahore. (She named the Hospital as "Maqsood Hospital" although later on it transpired that its name was "Masood Hospital"). There some injections were given to her and she was made to smell something where after she went unconscious. After three days she regained consciousness. Then she came to know that she had been operated upon. Two days thereafter, when she was still in a room in the Hospital when she heard Dr. Nawazish and Ghanwar Baloch talking in the room. She heard that Dr. Nawazish informed Ghanwar Baloch that her kidney was sold for Rs. 1,40,000/-. Ghanwar was demanding two lac rupees for the kidney. She remained in `Masood Hospital' Lahore for about fifteen days. After that Ghanwar Baloch, his wife Mst. Shahnaz and son Zafar brought her in a car to his house in Multan and confined her there for about 10 or 12 days. During this period, Ghanwar Baloch and his wife use to quarrel about the amount for which her kidney had been sold and, as a result, Mst. Shahnaz, after quarreling with her husband left the house. Ghanwar Baloch rushed after her thus complainant got an opportunity, she escaped from the house, she waived to a car, the car owner stopped, he heard her ordeal and gave her lift up to the bus stand. He even paid her for the fare to her village. After she returned to the house of her parents she narrated the entire incident to them. As to the motive on the part of the accused persons, she stated that her parents used to live in Garh More and Baggi also belonged to the same place. Baggi had turned out his wife due to some quarrel. He wanted to marry the complainant but her parents refused to marry her to Baggi, they instead married her to one Mazhar son of Muhammad Ali about five months prior to the incident. Her rukhsati had not taken place. About 15 or 20 days before the occurrence, her parents had moved away from their village and had settled in Chak No. 93/WB and at this the accused persons were annoyed. On account of this grudge she was abducted taken to Multan where Baggi and Zafar had raped her and then her kidney was removed and sold with the help of the doctors at Lahore.

3. Respondents moved two separate applications under Section 265-K Cr.P.C. seeking acquittal and the second against the framing of a single charge with three heads to stand joint trial with respect to the respective offences committed by them with respect to the individual roles all the accused. The applications were dismissed by the learned Additional Sessions Judge, Vihari vide his order dated 21.11.2005 in Hadood Case No. 19 of 2004. The order was challenged before the Federal Shariat Court in Criminal Revision No. 114-L of 2005 followed by the above judgment impugned before us.

4. The series of events shows that from the date of abduction till the time when Mst. Rukhsana Bibi succeeded to escape from the detention she was subjected to different offences forming a chain of events for which the various accused have been assigned their respective roles. Each such accused would be liable to conviction of proof of the charge at the trial according to law. In the absence of any prejudice that may be caused to the accused due to joint trial, when a trial arises out of a series of offences during the same transaction the facts relevant to determine whether different acts committed by one or more accused persons arising out of same transaction involve examination of the sequence of facts of the case and, whether or not they are relevant to each of the principle or subsidiary acts resulting in the community of purpose and continuity of action. Different acts committed by the accused in the instant case prima facie make out a series of events linked in a manner so as to constitute a single transaction commencing with the abduction of complainant. The question as to whether the abduction took place with knowledge or connivance of co-accused and whether the motive for abduction was to remove the kidney are relevant and are to be examined on the basis of evidence before the trial Court in support of charge. The provisions of Sections 235 and 239 of the Code of Criminal Procedure are attracted to such cases that provide that if a single act or series of acts is of such a nature that it is doubtful each of the several offences, the facts which can be proved will render the accused liable to conviction for having committed all or any of such offences. Mere facts that the role of one or more of the accused person does not cover the entire series of events has to be considered by the trial Court in the evidence at the trial where each individual link of the chain of evidence has to be considered but it does not make out the ground for framing a separate charge. The trial under such circumstances attracts the provisions of Section 239 (d) Cr.P.C. reproduced as under:--

Section 239. What persons may be charged jointly.--The following persons may be charged and tried together, namely:

(a)......

(b)......

(c)......

(d) "persons accused of different offences committed in the course of the same transaction;"

(e).......

(f).......

(g).......

5. In the case of Shah Nawaz vs. The State (1968 SCMR 1379) It has been laid down that when two offences are obviously linked together, the second having been committed to cover the first. Both were complementary to each other and therefore fell in the same series of acts which constituted two different offences. The principle is attracted to the facts of the present case involving trial for a charge with three distinct heads.

6. Criminal Petition for leave to Appeal No. 39(S) of 2007 is directed against the impugned order to the extent that proceedings were quashed against Respondents No. 1 to 4 in exercise of powers under Section 265-K Cr.P.C. by the learned Federal Shariat Court. Perusal of the available record in the light of the argument advanced before us shows that evidence, both oral as well as documentary is available with respect to the allegation of removal of her kidney after abduction of the complainant. In view of the available evidence prima facie case is made out against the said respondents. The object of exercise of powers is to prevent abuse of law available to the learned appellate Court however in a case where sufficient prima facie evidence is available the powers may not be exercised as to throttle the process of justice. Mere availability of defence to a party does not call for exercise of such powers that call for exercise of judicial discretion. The prosecution evidence is not to the sifted at the out set as laid down in the case of Mst. Kalsoom v. Bashir Ahmed and 2 others (P.Cr.L. 2000 SC 1054), Such exercise of power under Section 265-K are similar to and can be equated to the proceedings under Section 561-A Cr.P.C. as held in Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A) (PLD 1997 S.C. 275) and Mian Munir Ahmed v. The State (1985 SCMR 257). The exercise of such powers is an exception rather than a rule. In Sheikh Mahmood and other vs. Amir Nawaz Khan and another (1996 SCMR 839) it was observed as under:--

"Suffice it to say at this juncture that the ground urged before us hardly furnished a valid ground for the quashment of the proceedings under Section 145, Cr.P.C. Even otherwise, normally every case should be allowed to proceed, according to law and resort to the provisions of Section 561-A Cr.P.C. should not be lightly made, as this would tend to circumvent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muhammad Khan (PLD 1967 SC 317). Nonetheless, we may express a word of caution that each case must be judged on its own special facts and circumstances. We are of the considered view that power vests in the High Court to quash criminal proceedings, if it is satisfied that a false complaint had been brought and the process of Court is, therefore, being abused not to advance the cause of justice but to subject the accused persons to unnecessary harassment."

7. In the case of Yasin Siddiqui v. The State (2001 P.Cr.L.J 1337) it was observed as follows and it was also appears as under:--

It was further urged before this Court, that, in the said case the High Court has not only acted in disregard of these principles but has, indeed, by interfering at this intermediate stage with the usual course of the administration of criminal justice in the manner provided by the Criminal Procedure Code interrupted the course of justice and set up a wrong precedent by which the cause of justice instead of being advanced has really been stifled.

"The inherent jurisdiction given by Section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this Section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute."

8. The same principle was attracted to the cases of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353, Abdur Rehman Bajwa v. Sultan and 9 other PLD 1981 SC 522, Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 and Muhammad Aslam v. The State 1991 SCMR 600.

9. For the foregoing reasons, Criminal Shariat Petition No. 38 of 2007 is dismissed. Criminal Shariat Petition No. 39 of 2007 is converted into appeal and allowed. The impugned judgment of the Federal Shariat Court, dated 26.1.2007 in Criminal Revision No. 114-L of 2005 is set aside and the order of the trial Court dated 21.11.2005 is restored.

(M.S.A.) Order accordingly.