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Criminal Revision No. 148 of 1950, decided on 28th October, 1950.
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---------S. 2‑Liability to and infliction of punishment‑To be determined by law‑Private individuals not entitled to inflict punishment on supposed offender.
A number of people proceeded to punish a man and a woman supposed to be keeping a brothel and otherwise leading an immoral life, by blackening their faces and parading them in a procession in streets with their hands tied, the man being completely stripped of clothing‑ and the woman deprived of her dopatta.
Held.‑Under ‑no law much less the Islamic Law a person has got a right to inflict punishment on a person supposed to have committed any offence or moral wrong.
Even if they were leading an immoral life, nobody had a right to inflict any punishment on them much less the punish ment of stripping them of their clothes and blackening their, faces.
Under the law of the land as well as under the Islamic Law general disrepute would not entitle anybody to punish the persons complained against.
That those who' took the law into their own hands were led to do so by the instigation of religious leaders was no reason for dealing leniently with them. The offence warranted deterrent punishment.
Malik khuda Bakhsh, for Petitioners.
Chaudhri Muhammad Ali, Advocate‑General, for Respondent.
‑Abdur Rehman, son of Zarif Khan aged about 60 years, Ali Khan, son of Pir Khan, aged about 30 years, Yaqoob Khan, son of Sher Zaman, aged about 30 years, Muhammad Zaman, son of Zarif Khan, aged about 33 years, Kala, son of Isa Khan, aged about 40 years, Miskin, son of Gul Jan, aged about 20 years, Ghulam Hussain, son of Sohbat Khan, aged about 35 years, Arsallah, son of Ahmad Khan, aged about 30 years, Nuranai, son of Wali Ahmad, aged about 25 years, Ghulam Mohayud Din, son of Wali Ahmad; aged about 28 years, and Muhammad Yusaf, son of Maulvi Fakhrud Din, aged about 30 years of Pori and Balakot villages, were convicted by Magistrate, 1st Class, Mansehra, under sections 147 354, ‑and 342 Penal Code; and each of them was sentenced to two years' rigorous imprisonment under the first count, to one year's rigorous imprisonment under the second, and to six months' rigorous imprisonment under the third ; all the three sentences were ordered to run concurrently.
The convicts, appealed against this order, and the learned Sessions Judge, Hazara, by his order dated 17th Jute, 1950, accepted the appeal of Ghulam Mohayud Din and acquitted him. He upheld the convictions and sentences of the other appellants and dismissed their appeal.
They 'have come up on revision to this Court. On the preliminary hearing I gave them notice to show cause why should their sentences be not enhanced.
The brief facts of the case are that Khanizaman (P. W. 2), was living in Balakot village along with his two wives Mst. Zaitoon (P. ‑W. 1), and Mst. Iqbal Jan (P. W. 3). He had been married to Mst. Iqbal Jan since about ten years and had from her two children. On the night between the 7th and 8th of April, 1949, while Khanizaman (P. W. 2), Mst. Zaitoon (P. W. 1),‑ and 141st. Iqbal Jan (P. W. 3) were lying asleep in their house along with their children, they woke up on hearing the footsteps of several people outside. It is alleged that Ali Khan accused‑petitioner shouted from outside, asking Khanizaman P. W. to open the door, which the latter refused to do. The people outside the house, however, continued to be there until the following morning, when the door was opened by Mst. Zaitoon P. W. No sooner the door was opened, it is alleged that the accused‑petitioners along with Ghulam Mohayud Din, the acquitted accused, entered into the house. Khanizaman and Mst. Iqbal Jan P. Ws. were dragged out of it. Khanizaman P. W. was completely stripped of his clothes and made naked while Mst. Iqbal Jan P. W. was deprived of her dopatta. Their hands were tied, their faces were blackened and they were taken in a procession in the streets of Balakot village. Mst. Zaitoon P. W., after Khanizaman and Mst. Iqbal Jan P. Ws. had been taken out in a procession ran to Balakot Police Station, situated at a distance of about two furlongs from Khanizaman P. W's. house, and lodged a report there, giving the above facts.
Muhammad Azim Khan, S. H. O., Balakot (P. W. 12), and Abdullah Khan F. C. (P. W. 13) along with some other Police Constables, ran towards the village. They saw the procession near the hujra of Muhammad Aslam Khan. (D. W. 2). The Police. Sub‑Inspector with the assistance of Maulvi Noor Muhammad Jan (D. W. 4) had the crowd dispersed, and got Khanizaman and Mst. Iqbal Jan released from it. The latter were given clothes by the Sub‑Inspector to put them on.
All the accused‑petitioners along with Ghulam Mohayud Din, the acquitted accused, were arrested and challaned.
Except Yaqoob Khan and Kala accused‑petitioners, the rest of the accused denied having taken any part in the procession. Some of them said that they had been falsely charged because they had made applications against Khanizaman and 61st. Iqbal Jan P. Ws. that they were run6ing a brothel in the village. Yaqoob Khan and Kala admitted having joined the procession, but denied that they had either dragged Khani zaman and Mst. Iqbal Jan P. Ws. out of their house, or blackened their faces.
As regards the actual occurrence, the learned counsel appearing for the accused‑petitioners, did not deny that Khani zaman and Mst. Iqbal Jan P. Ws. were in fact dragged out of their house, they were stripped of their clothes, their faces were blackened and they were taken in a. procession in the streets of Balakot village. Apart from that, these facts are proved not only by the prosecution evidence but also by the testimony of the witnesses produced in defence. Besides the statements of Mst. Zaitoon (P W. 1) Khanizaman (P. W. 2) and Mst. Iqbal Jan (P. W. 3), there is the evidence of Gul Aman (P. W. 6), Ghulam Rabbani (P. W: 8), Wali Rahman (P. W. 9), Muhammad (P. W. 12), and Abdullah Khan F. C. (P. W. 13), on the point.' Out of these witnesses Gul Aman, Ghulam Rabbani, Wali Rehman and Abdullah Khan are absolutely disinterested. Their evidence is very strongly corroborated by that of Muhammad Aslam Khan (D. W. 2), Ali Akbar Khan (D. W. 3), Maulvi Noor Muhammad Jan (D. W 4;, Maulvi Azizur Rehman (D. W. 5), Mau7vi Muhammad Hussain (D. W. 6), Maulvi Atta Muhammad (D. W. 8), Maulvi Ghulam Rabbani (D. W. 11), and Gihlab Khan (D. W. 15), and by the statement of the Lady Doctor (Miss .A. Diyal Chand P. W. 11), who said that she found a‑ scratch and a bruise on Mst. Iqbal Jan P. W. and four scratches and two lathi marks on the person of Khanizaman .P. W. All the witnesses, prosecution as well as defence, are one on the point that the people who took part in dragging Khanizaman and his wife out of their 'house and in stripping them of their clothes and blackening their faces were more than five in number. That the object of these people from the 'very beginning was to 'disgrace Khanizaman and his wife and take them through the streets of the village most probably towards the Jumma Mosque has been proved .by their own conduct as well as by the statement of Maulvi Noor Muhammad Jan (D. W. 4); who deposed that on the Friday preceding the day of occurrence one Kazi Yunas, the President of the Prayer Committee of the village,, had asked his audience to get hold of Khanizaman and Mst. Iqbal Jan P. Ws. and bring them to the mosque as there was a general complaint against them that they were leading an immoral‑ fife. However laudable the persons, who participated in the ,crime, consider their act was, the fact remains that these persons had formed into an assembly the common object of which was to outrage the modesty of Mst. Iqbal Jan P. W. by depriving her of her head‑wear, and blackening her face and taking her through the streets, and by confining her as well as her husband Khanizaman wrongfully. These facts would constitute offences under sections 147, 354 and 342 Penal Code. Under no law much less the Islamic Law a' person has got a right to inflict punishment on a person, supposed to have committed any offence or moral wrong. The people of the new but the great State of Pakistan must exercise the virtue of tolerance and revive the old get‑together spirit of those great Muslim conquerors, who not only conquered half the world, but retained it. We must make our Pakistan a great country, where all human beings, good or bad, and of all shades of opinion can live with utmost security without being interfered by anybody, except under the, lave of the country and that only by the persons entrusted with the duties of maintaining law and order therein.
The next question, which is to be decided in the case is as to who took part in the crime.
Muhammad Yusaf accused‑petitioner's name was not mentioned in the F. I. R. by Mst. Zaitoon P. W. He was also not named as the person, present in the procession by Abdullah Khan (P. W. 13). I am, therefore, of the opinion that he should be given the benefit of ,doubt and acquitted of the charges. He is ordered to be released forthwith.
As regards the rest of the accused‑petitioners I am convinced that they were in the procession from the beginning till the end, and the common object of the procession was to outrage the modesty of Mst. Iqbal Jan P. W. and wrongfully confine her, as well as her husband Khanizaman P. W.
It was argued by the learned, counsel for 'the accused petitioners that Muhammad Zaman accused had personal enmity with Khanizaman (P. W. 2), and Muhammad Azim Khan, S. H. O. (P. W. 12), and it was on account of that reason that his name was included in the list of the culprits.
It is true that there had been civil and criminal litigation between Muhammad Zaman accused and Khanizaman P. W., and also that he had made certain complaints against Muhammad Azim Khan,. S. H. O., but I am not prepared to believe that his name was included in the charge as a result of these reasons. Mst. Zaitoon P.W. lodged the report no sooner Khanizaman and Mst. Iqbal Jan were taken away from the house and Muhammad Zaman's name, was mentioned therein. She had till then no opportunity to meet Khamzaman or concoct a false case against anybody. Besides Mst. Zaitoon, Khanizaman and Mst. Iqbal Jan P. Ws. Muhammad Zaman, accused's name was mentioned by Abdullah Khan F. C. (P. W. 13) who appears to be quite a disinterested witness.
It was stressed that Muhammad Zaman accused petitioner was ill on the day of occurrence, and therefore, he could not be present in the procession. This fact was attempted to be proved by the statement of Ibrahim (D. W. 17), and Ali Gohar (D. W. 18). The former stated that after Muhammad Zaman accused petitioner was arrested and sent to the jail he was also there, and he found Muhammad Zaman's lips blistered one account of malarial fever. The latter deposed that he was the Jail Warden, and that when Muhammad Zaman was brought there he was down with malarial fever.
I am afraid, the evidence of both these witnesses does not prove that on the day of occurrence Muhammad Zaman accused petitioner had fever and was confined to bed. Malarial fever is not a continuous malady; a person may be confined to bed one day and may be looking hale and hearty on the other. Consequently, I am not prepared to hold on the evidence of Ibrahim and Ali Gohar D. Ws. that Muhammad Zaman accused‑petitioner did not participate in the crime on the day of occurrence, because of his illness.
As regards the other accused petitioners, I have very carefully gone through the prosecution as well as the defence evidence and I see no reason to disagree with the two Courts below that they did participate in the crime. All of them were by name mentioned in the F. I. R. by Mst. Zaitoon P. W. Their names were also specifically mentioned by Khanizaman and 51st. Iqbal Jan P. Ws. in their evidence, and. there does not appear to be any reason why should these persons have named them, if they had in fact not taken part in disgracing them.
I consequently, hold that except Muhammad Yusaf, all the accused‑petitioners have been proved beyond a reasonable doubt to have committed the offences they were charged with.
It was submitted by the learned counsel for the accused‑peti tioners that if they participated in the crime they did so, because they had been instigated to do so by the religious leaders of the village, and hence they should be treated leniently in the matter of sentence.
I am afraid, I am not prepared to accept this contention. On the contrary, I 'am of the opinion that the accused‑petitioners com mitted the offences for which they should be very deterrently punished.
Khanizaman and Mst. Iqbal Jan P. Ws. had been living in this village since a very long time. No doubt there is the evidence of Muhammad Aslam Khan, Ali Akbar Khan and Maulvi Noor Muhammad Jan D. Ws. that there was a general complaint that Khanizaman and Mst. Iqbal Jan P. Ws. were running a brothel, but under the law of the land as well as under the Islamic law this general disrepute would not entitle anybody to punish the persons complained against. Nobody had seen Khanizaman and Iqbal Jan P. Ws. actually running a brother, or leading an immoral life. Even under the Koranic law a person can only be dubbed guilty of an offence after unimpeachable and reliable evi dence is produced against him. In this particular case no such evi dence has been produced in Court, and the facts proved on the record show that no such evidence was in fact forthcoming. My attention has been drawn to the statement of Mst. Iqbal Jan P. W. who stated that a few days prior to this occurrence she had been arrested by the Haripur Police, and confined in the lock‑up for 4‑5 days. My attention has also been drawn to the admission of Khanizaman and Mst. Zaitoon P. Ws.‑that prior to the occurrence in question a complaint against them that they were leading an immoral life had been made to a certain Minister, who had the occasion of visiting their village. Be that as it may, the mere fact that Mst. Iqbai Jan P. W. was arrested by the police, or that a complaint was made against Khanizaman and1Mst.'Iqbal Jan P. Ws. to the Hon'ble Minister would not prove that Khanizaman and Mst. Iqbal Jan were leading an immoral life. I am consequently constrained to hold that there is no material on the record on which it can be found that the accused petitioners had any justifica tion to disgrace Khanizaman and Mst. Iqbal Jan P. Ws. in such a way. Even if Khanizaman and Mst. Iqbal Jan were lending an' immoral life, I do not think anybody had a right to inflict any punishment on them much less the punishment of stripping them of their clothes and blackening their faces, as it has been done in this case. This punishment is provided by no law for any offence ; particularly Islam could not have justified this punishment, because it has a great respect for humanity and it does under no circum stance permit anybody to disgrace any human being, however, bad he may be. I must warn the so‑called religious leaders of the country to have great control over what they say and not by indiscreet preaching create a condition which may jeopardize the safety of the country, which I am confident they love as intensely as anybody also does.
Kala and Yaqoob Khan accused‑petitioners have been consist ently charged for blackening the faces of Mst. Iqbal Jan and Khani. zaman P. Ws. Ali Khan and Muhammad Zaman accused‑petitioners have been charged for outraging the modesty of lost. Iqbal Jan, while Miskin accused‑petitioner is charged for holding her and giving her blows. Nuranai accused‑petitioner has been charged for holding Khanizaman P. W. All these accused seem to have taken very conspicuous part in the shameful drama, and, I, therefore, while maintaining their convictions, enhance their sen tences as under :‑---
(a) under section 147 Penal Code each one of them will undergo two .years' rigorous imprisonment and also pay a fine of Rs. 500, or in default to undergo further rigorous imprisonment for a period of six months, and
(b) under section 354 Penal Code, each one of them will undergo one year's rigorous imprisonment, and pay a fine of Rs. 1,000, or in default to undergo further rigorous imprisonment for a period of six months.
The sentences awarded to them under section 342 Penal Code are hereby maintained. The sentences on all the three counts would run consecutively.
As regards the rest of the accused‑petitioners their sentences on all the three counts will run concurrently, but under section 147 Penal Code, each of them would be liable to pay a fine of Rs. 3ri0, or in default of payment of fine to undergo rigorous imprisonment for a further period of six months.
The revision petition is decided accordingly.
Orders announced.
A. H. Sentences enhanced.
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