2002 PLP 3643 (YLR)

4. The investigation was taken up Muhammad Ashraf Awan, Inspector P.W.10. He visited the spot, got both the victims medically examined and arrested all the three accused persons on 13‑9‑1999 and 17‑9‑1999. Imran alias Mout led to recovery of Pistol P.3 alongwith two bullets Exh.P.4/1‑2 vide memo. Exh.P.J. The accused‑persons were also got medically examined to ascertain their potency. After performing the usual investigation, all the accused persons were sent up to face trial in the Court of learned Special Judge, under the Anti‑Terrorism Act because the challan had been prepared under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

5. The prosecution examined 10 witnesses in support of its case. Out of them, Dr. Sameena, W.M.O. P.W.1 medically examined on 12‑9‑1999 Mst. Naziran Bibi. aged about 30 years: As per report, she was a married woman with four living kids. She did not observe any marks of violence on her body. She was found to be a lactating mother. Hymen was absent and there was no fresh mark of violence. Vagina admitted two fingers very loosely. She was menstruating at the time of examination. As per, Mst. Naziran Bibi was a married woman, nothing could be suggested with regard to any sexual intercourse. However, on receipt of report of Chemical Examiner, she was found to have been subjected to sexual intercourse in recent past.

6. On the same day, i.e. 12‑2‑1999, this doctor examined Mst. Sakina Bibi aged 35 years. She was a married woman and had two kids. There was no mark of violence on .her body. Hymen was absent. As mark of violence was found on her private parts, therefore, her rectal examination revealed two abrasions at 6 O'clock and 9 O'clock positions. After receipt of report of Chemical Examiner, she was found to have been subjected to sexual intercourse as well as intercourse against the order of nature.

7. Dr. Faran Mehmood Qazi P.W.6 found both the appellants as well as their co accused as potent and capable of performing sexual intercourse.

8. Amongst remaining witnesses, Mst. Naziran Bibi (victim) P.W.4, Mst. Sakina Bibi (victim) P.W.5 and Habib Ahmad complainant P. W .7 are the most relevant witnesses. The remaining witnesses are more or less formal in nature except Muhammad Ashraf Awan, Inspector P.W.10 who carried out the investigation. The three afore‑said prosecution witnesses i.e. P.Ws. 4,5 and 7 supported the prosecution case in substance, however, with certain significant variations made in the story which will be discussed hereunder. Habib Ahmad P.W.7 reiterated the statement made by him before the police: as Exh.P.C/1. Apart from the oral evidence, the prosecution tendered in evidence reports of Chemical Examiner Exhs. P. R, P. S and P. T.

9. After close of the prosecution case, the accused‑persons were examined under section 342, Cr.P.C. Kashif alias Kashi appellant aged 22 years came up with the following plea in answer to Question No.8:‑-- "Billo is the Councillor from our ward and we had political rivalry with him. Habib Ahmad and other P.Ws. of this case has been visiting village Bhopalwala for the last 8/9 years in order to snatch hemp from the banks of Nullah Aik and that is there source of income. The complainant party had been camping at the Dera of said Billo Councillor and enjoyed his patronage the women folk of the complainant family also indulged in begging from houses and have loose morals. About seven days before the lodging of the present case we had a quarrel with said Billo and we had publicly insulted and humiliated him and then the said Billo issued a threat that he would soon take the revenge for the said insult from us and would involve us in some serious case and so the present case has been fabricated by said Billo Councillor in collaboration with the police and he has used the complainant party as his stooges. The present case is false and the medical evidence has also been manoeuvred." A similar plea in defence was raised by Imran alias Mani appellant aged 24 years: Their 3rd co‑accused Imran alias Mout also put up the same plea in his defence. The accused examined two witnesses in defence, namely. Tahir Anwar Cheema D.W.1 and Muhammad Akhtar Cheema D.W.2.

10. The learned trial Judge as detailed above, found all the three accused persons guilty, convicted both the appellants under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced both of them to death. Their co‑accused, however; was found guilty under section 377, P.P.C. and awarded imprisonment for life.

11. The learned counsel for the appellants has argued with vehemence that the appellants have been, falsely implicated. Both the victims are women of easy virtue. According to him, the complainant or the prosecution has not come up with the true story. In fact, the complainant and the victims indulged in prostitution as they supplied call girls. Although the learned counsel made submissions by keeping in view the norms of decency and the professional ethics, as the appellants had been awarded capital punishment, therefore, they could not be sacrificed at the altar of decency and true facts which, according to him, emerge from the prosecution case itself, have to be brought to the notice of the Court.

12. As against the contentions raised by the defence the learned counsel for the prosecution has although, in the first instance, tried to support the conviction yet, during course of arguments, he found it rather difficult to support the conviction under section 10(4) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, which entails imposition of death penalty.

13. We have very carefully gone through the record and have attended to the arguments addressed at the bar. To start with the prosecution version as revealed from the statement of Habib Ahmad complainant, he alongwith other members of his family was asleep in tents. The complainant and the witnesses are all gypsies and had visited village Bhopalwala during harvesting season of paddy crop. The appellants accompanied by their co‑accused Imran alias Mout came to their camp, they were awakened and threat was extended by Imran alias Mout who fired in the air with a pistol. Whether they were really subjected to any threat is not supported by any physical evidence such as recovery of any empty from the place of occurrence indicating that the some shot had been fired. The assertion is based merely on oral statement made by the complainant and by Mst. Naziran Bibi and Mst. Sakina Bibi. The allegation that the accused‑persons escaped while tiring from their respective guns is not supported by recovery of any empty. Be that as it may, according to the complainant, the appellants demanded that he should provide them three girls, obviously, to satisfy their lust. Had the appellants come to forcibly take away the two victims, they would not have made all the inmates to get up from their sleep and thereafter they would have asked the complainant to provide three girls. This demand of girls as put up by the prosecution itself is suggestive of the fact that the appellants did not intend to forcibly take away the women‑folk of the complainant to subject them to rape. The demand was not made in the tent in front of the members of the family; rather the complainant was taken aside. This is a usual mode for asking to supply some call girl. It is further stated that thereafter the complainant removed his two unmarried women i.e. sister and daughter who were nearby asleep at the place which, obviously, out of access of the appellants. It means that the complainant had an opportunity to remove his two unmarried women i.e. sister and daughter to nearby safer place and thereafter these two victims who both are married and mothers of 4 and Z kids respectively were allowed to accompany the assailants. Not only the complainant was present, the two neighbours, namely, Goga and Boba were also present in the adjoining tent or hut. The complainant as per his own showing remained present nearby the place of incident from where he could easily hear the shucks of the victims. The victims, according to them, were subjected to rape twice each by both of the appellants. When, according to complainant, Mst. Sakina Bibi wife of the complainant, was forcibly subjected to sexual intercourse against the order of nature, she could not bear the pain and her shrieks that she would die were heard by the complainant on which he raised alarm which attracted other inhabitants or residents of the locality on which the assailants fled away. The question arises as to why the complainant did not raise alarm when both the women were being subjected to sexual intercourse, one after the other by the two appellants and their co‑accused. It appears that so long as the victims were subjected to sexual intercourse in the natural way, no resistance was made nor any alarm was raised. When the victim Mst. Sakina Bibi was subjected to sexual intercourse against the order of nature, it would have caused an unbearable pain on which she made cries and thereafter alarm was raised by the complainant. When the defence version is adjudged by keeping in view this aspect of the case, the same does not appear to be improbable. The possibility that the victims were consenting party and they were allowed to join the appellants party cannot be ruled out.

14. Apart from the aforesaid suspicious circumstances, the prosecution story suffers from serious discrepancies and inconsistency. According to the complainant, Mst. Sakina Bibi, his wife, was menstruating at the time of incident, therefore, she was subjected to sexual intercourse against the order of nature which caused severe pain on which she raised cries and uttered shrieks. According to medical evidence, it was not Mst. Sakina Bibi who was menstruating rather it was Mst. Naziran Bibi who was having menses but she was not subjected to any indecent assault i.e. any intercourse against the order of nature. As to how this inconsistency or material discrepancy has arisen, cannot be exactly ascertained. However, it is indicative of the fact that the prosecution has not come forward with true narration of the incidents. This inconsistency is further aggravated of the fact that Mst. Sakina Bibi (P.W.5) at page 27 of the paper book stated that she had told the Investigating Officer that the accused committed unnatural offence with her and also subjected her to Zina but in her statement before the police i.e. Exh.P.B, she was subjected only to unnatural offence and there, was no mention of commission of any Zina. The improvement made by the witness during the statement before the, Court in order to aggravate the nature of offence reflects upon her testimony and truthfulness. After going through the statements of the three main witnesses and by also assessing the attending facts and circumstances it would be hard to believe that the victims were subjected to intercourse against their Will. To bring the case under section 10(4) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, it is absolutely essential that the prosecution must prove the case against an accused person to the hilt and beyond any shadow of doubt. The offence is punishable with death, therefore, direct proof incapable of any suspicion or, circumspect must have been brought on record. In our view, the prosecution has not been able to bring home the guilt of both the appellants under section. 10(4) of the Ordinance. However, the statements of. Mst. Naziran Bibi and Mst. Sakina Bibi P. Ws.4 and 5 respectively where considered alongwith the medical evidence as well as the reports of the Chemical Examiner, there remains 'no doubt that sexual intercourse was committed. The offence then at the best would be covered by section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The maximum punishment prescribed under sections 10(2) (ibid) is 10 years' R.I. We, accordingly set aside the conviction of the appellants under section 10(4) of the Ordinance and in view of what has been discussed above, the conviction is recorded under section 10(2) of the Ordinance. We accordingly sentence them to imprisonment for 10 years' R.I. each. Benefit of section 382 B, Cr.P.C. is hereby extended. THE SENTENCE OF DEATH IS NOT CONFIRMED. Murder Reference is answered in the negative. The appeal is disposed of in the above terms. H.B.T./K‑158/L Order accordingly.