1984 P Cr (PLP)

5. Dr. Muhammad Rates (P. W. 4) medically examined Muhammad Yousuf appellant on 6th May, 1975 and found him fit for sexual intercourse. On the same day he examined Haider Shah appellant who was also found fit to perform sexual intercourse. . The same doctor on the same day also medically examined Fateh Muhammad appellant and reported that he was fit to perform sexual intercourse. Sahib Khan appellant was also examined by the same doctor on the same day and was found fit to perform sexual intercourse.

6. Mst. Badshahi complainant P. W. was medically examined by Lady doctor Nasreen Kausar (P. W. 5) on 7th April, 1975 who found two injuries on her person. Injury No. 1 was a contused wound 3/4' x 1/8' x 1/4" on the right side of forehead l" above the right eye-brow and injury No. 2 was a swelling 3' x 4' on dorsum of left hand. Injury No. I was simple in nature and No. 2 was declared grievous caused by blunt weapon within the duration of about 12 hours.

7. On the same day the same doctor medically examined Mst. Ghulam Fatima P. W. and found one contusion mark in an area 2 ' x 1" on right deltoid region and a contusion mark 1" x 1" on top of right shoulder. Both the injuries were caused with blunt weapon within the duration of 12 hours and were declared simple in nature.

8. The same doctor on 19th April, 1975 medically examined Mst. Parveen Akhtar abductee and found that her hymen was torn at 7 o'clock position and her vagina admitted one finger. In her opinion the abductee was about 14 years old. She took swabs, which were sent to Chemical Examiner who gave negative result vide Exh. P. L. In the opinion of doctor the abductee had fresh tear, which indicated that the sexual intercouse was performed within seven days of the examination.

9. In the identification parade held by Zafar Ali P. W. on 26th April, 1975, Mst. Parveen Akhtar abductee P. W. rightly identified Fateh Muhammad, Yousuf, Haider Shah and Shaib Khan appellants. Mst. Ghulam Fatima P. W. picked up Sahib Khan and Haider Shah appellants in the same parade. Sher Muhammad (not examined) and Mst. Badshahi P. W. identified Sahib Khan appellant while Dost Muhammad P. W. and Gulla identified Yousuf appellant. Mst. Badshahi P. W. did not identify Fateh Muhammad appellant in the parade. Muzaffar Khan appellant was not joined in the parade because he was previously known to the abductee and the P. Ws.

10. The prosecution case as disclosed in the F. I. R. was that on the night of occurrence Mst. Badshahi complainant (P. W.) slept in the court yard of her house on a separate charpai while her daughters, Mst. Parveen Akhtar (P. W.) abductee aged 14 years and Mst. Ghulam Fatima (P. W.) aged 16/ l7 years, were sleeping together on another charpai. There was no boundary wall on north-west side of her house in village Namewali. On that night, her sons, Muhammad Aslam and Abdul Rehman, had gone to Shahpur to see a Mela and her husband Kabir Khan slept in the separate haveli of cattle shed. At about mid-night Abdul Ghafoor carrying a gun, Nazar Muhammad and Sikandar armed with Lathis, Dost Muhammad with a .2-bore gun, all residents of Khairpur reached there. Nazar Muhammad and Sikandar lifted Mst. Parveen Akhtar from her charpai upon which she raised hue and cry. When the complainant and Mst. Ghulam Fatima intervened to rescue the abductee Nazar Muhammad gave a Lathi blow on the head of the complainant. Sikandar then gave a Lathi blow on the right shoulder of Ghulam Fatima. Nazar Muhammad also gave a Lathi blow on the back of Mst. Ghulam Fatima upon which Mst. Ghulam Fatima fell down. All the three then raised hue and cry upon which Nazar Muhammad again hit the complainant with Lathi, which fell on her left band. Abdul Ghafoor and Dost Muhammad then started firing from their guns. They had surrounded the house. Dost Muhammad P. W. Nazar Muhammad and Gulla (given up) were attracted to the scene of occurrence on hearing cries and witnessed it but did not intervene out of fear. The accused were stated to have been identified in the light of a lantern. It was also stated that other companions of the accused who were waiting on the north side of the village with mares forcibly took away Mst. Parveen Akhtar Gulzar son of Khan was also named as one of the accused persons. It was stated that three accused who were with the horses could not be identified. The motive given by her in the F. I. R. was that her son, Abdul Rehman, was suspected of illicit relations with niece of Abdul Ghafoor accused.

11. In her supplementary statement recorded by the police under section 161, Cr. P. C. on 7th April, 1975 Mst. Badshahi complainant gave the same statement as in the F. I. R. to the effect that two persons with a gun each and one with a Lathi after trespass into her house carried away her daughter Mst. Parveen Akhtar, and caused injuries to herself and to her daughter Mst. Ghulam Fatima. She had seen those three persons in the light of the lantern and could identify them but did not know their names and address. After the three accused had taken away abductee towards north of her house she saw two more accused waiting outside with three horses and all accused fled away on horses with the abductee. The accused also fired from their guns due to which no one pursued them. She explained that since enmity existed between her family and Sikandar Khan etc., she had wrongly named the accused in the F.I.R. at the instance of her husband because her son, Abdul Rehman, was suspected of illicit liaison with niece of Sikandar Khan and Sikandar Khan, etc., had been planning to murder Abdul Rehman and their girl for that reason but their plan had become known to public. Muhammad Ismail P. W. told her that Muzaffar Khan appellant was also standing with a horse at some distance from her house upon which she became sure that it was Muzaffar Khan appellant who abducted Mst. Parveen Akhtar P. W. with the help of his friends because her husband had refused to give hand of the abductee in marriage to Muzaffar Khan appellant. The police had made investigation and put up challan against the appellants according to this version in the supplementary statement of Mst. Badshahi P. W. which version was adopted at trial as well. Mst. Parveen Akhtar (P. W.) after her recovery from Muzaffar Khan appellant from the dera of Haider Shah appellant made statement under sections 161 and 164, Cr. P. C, in which she gamed all the appellants and Nazra acquitted accused consistent with supplementary statement of her mother, Mst. Badshahi P. W.

12. The prosecution examined Mst. Parveen Akhtar abductee (P. W. 1), her real sister Mst. Ghulam Fatima (P. W. 2), her mother Mst. Badshahi (P. W. 3), her relation Muhammad Ismail (P. W. 7) and Dost Muhammad (P. W. 6) who gave ocular account of the occurrence a 4d former three gave the motive. All of them fully supported the prosecu tion case against the appellants. Zafar Ali (P, W, 8), Naib-Tehsildar, proved identification parade held in his presence on 26th April, 1975. Haq Nawaz A. S. I. (P. W. 10) had investigated the case and proved his investigations. Fazal Hussain A. S. I. (P. W. 9) had registered the F. I, R, at the Police Station and proved it. The recoveries from the spot and from Muzaffar and Sahib Khan appellants were proved by Dost Muhammad (P. W. 6) and the Investigating Officer Haq Nawaz (P. W. 10).

13. The appellants pleaded not guilty to the charge and denied the allegations including the recoveries at the instance of Muzaffar and Sahib Khan appellants. Muzaffar appellant pleaded in defence that brother of the abductee, Abdul Rehman, had illicit relations with sister of one Dost Muhammad and since the appellant and Abdul Rehman were close Abdul Muhammad compelled the appellant to leave friendship of Rehman due to which the appellant left Abdul Rehman. Muzaffar Khan appellant further pleaded that Dost Muhammad and Nazar Muhammad, etc, six persons, abducted Mst. Parveen Akhtar and Muzaffar Khan appellant went with the complainant to get the case registered against them due to which Dost Muhammad, etc., who were influential persons collaborated with the police and got the appellant falsely impli cated in the case. The other appellants pleaded that they had been falsely implicated by post Muhammad, etc., who bad abducted Mst. Parveen Akhtar but falsely involved them alongwith Muzaffar Khan appellant because of their friendship.

14. The trial Court believed the ocular account and found that medical evidence supported it while the recoveries and motive established by the prosecution corroborated it. The defence plea was rejected by the learned trial Magistrate. Nazra, co-accused of the appellants was acquit ted because his name was known to the abductee only, nobody identified him at the time of occurrence and he was not joined in the identification parade.

15. Before me lengthy arguments were addressed by learned counsel for the appellants. It was argued that there were three versions before the trial Court and the version in favour of the accused ought to have been accepted out of it. It was also argued that if the version given out by Mst. Badshahi P. W. at the instance of Ismail P. W. is adopted as was done by the trial Court then Ismail P. W. was not examined by the police at an early stage as police recorded his statement after 15 or 16 days and the version was contradicted by the medical evidence which disclosed that no rape was committed on the abductee according to the negative result of swabs by the Chemical Examiner. Learned counsel submitted that it was a case of no evidence and that the recoveries from the spot and at the instance of Muzaffar Khan and Sahib Khan appellants have not been established by an independent evidence and did not connect the appellants with the crime. As against it learned counsel for the State argued that sequence given by the eye-witnesses is consistent and there is one version of the prosecution, that Mst. Badshahi complainant P. W. named the appellants as accused in her supplementary statement record soon after on the very day of occurrence, that story of the prosecution is corrobora ted by the motive given by Mst. Badshahi, Mst. Ghulam Fatima and the abductee, that Ismail P. W. identified Muzaffar Khan appellant at the spot as he was on visiting terms being friend of Aslam, brother of the abductee, that there was no reason to falsely implicate the appellants and that the abductee was medically examined and according to the medical evidence she was proved to have been subjected to sexual intercourse.

16. I have been taken through the entire evidence in this case which has been read and considered by me in the light of submissions made by the learned counsel for the parties.

17. The prosecution case is that the appellants alongwith Nazra since acquitted formed themselves into an unlawful assembly for the common object of kidnapping Mst. Parveen Akhtar from the lawful guardianship of her parents for the purpose of marrying her with Muzaffar Khan appel lant and committed rioting after trespass into the house of her parents and after she was kidnapped Muzaffar Khan appellant committed rape upon her. Fateh Muhammad appellant had a stick with which he caused two simple injuries to Mst. Ghulam Fatima P. W. Haider Shah appellant had a gun and caused one simple and one grievous injury to Mst, Badshahi complainant P. W. with butt of his gun. Sahib Khan appellant also carried a gun. All three of them trespassed into the house of Mst. Badshahi complainant P. W. and after causing injuries as mentioned above forcibly lifted away Mst. Parveen Akhtar P. W. on the night between 6th and 7th April, 1975 outside the house where Yousaf appellant and Nazra acquitted accused were waiting with two mares and one horse, Muzaffar Khan appellant was also waiting outside the house at some distance. Mst. Parveen Akhtar P. W. was put on a horse back and was forcibly taken away and after being illegally detained at various places she was eventually recovered from the custody of Muzaffar Khan appellant from the Dera Haider Shah appellant on 17th April, 1975. During this Khan appellant committed rape upon her. The appellants except Muzaffar Khan were not previously known to any member of the complainant party including the prosecutrix. It is not disputed that Muzaffar Khan appellant was a friend of the brother of Mst. Parveen Akhtar abductee P. W. also because they were together in the Army and both had remained prisoners of war. The argument of learned counsel for the appellants in substance is that it is a case of no evidence against the appellants because originally Mst. Badshahi complainant P. W, named a different set of six persons as accused and it as subsequent to it that she mentioned names of the appellants as accused at the instance of Muhammad Ismail P. W. Mst. Parveen Akhtar P. W, was a virgin minor girl born on 1st October, 1961 and a student of 10th class. She deposed in Court that she was forcibly taken away from the house of her parents by the appellants and was illegally detained by them during which period Muzaffar Khan appellant alone committed rape with her. The medical evidence fully supports her testimony according to which she had been subjected to sexual intercourse and fresh tear allowing one finger entry in the vagina indicated that rape had been committed upon her. There is no reason why she should substitute the real accused who committed sexual intercourse with her against her wishes. She was not inimical towards Muzaffar Khan and other appellants nor there is an iota of evidence to show that her parents were inimical towards the appellants so as to falsely implicate them for the offence alleged against the appellants. She correctly identified Haider Shah. Sahib Khan and Yousaf appellants in the parade while Muzaffar Khan appellant was previously known to her. The testimony of Mst, Parveen Akhtar P. W. is corroborated by Muhammad Ismail P. W, who saw Muzaffar Khan standing near house of the complainant at the time of occurrence. He is an independent witness who had no ill-will against the appellants. His testimony cannot be discarded merely because the police delayed recording of his statement. The motive alleged was established b the prosecution and further corroborated it. The parents of the prosecutrix had not agreed to marriage of the abductee with Muzaffar Khan appellant due to which Muzaffar Khan appellant kidnapped her with the appellants. Her mother, Mst. Badshahi, and her sister, Mst. Ghulam Fatima. P. Ws., fully corroborated the event of her abduction from the house and also proved that three persons two of us carried at home outside the house each trespassed into their house while three others stood house with mares on which the prosecutrix was carried away by the appellants. However, in the identification parade could identify Sahib Khan alone and failed to pick up Haider Shah appellant but Mst. Ghulam Fatima identified Sahib Khan as well a Raider Shah appellants in that parade. Mst. Parveen Akhtar was recovered from the custody of Muzaffar Khan appellant when she was being detained at the Dera of Haider Shah appellant. Out of three appellants Who waited outside the house Yousaf appellant was identified by Dost Muhammad P. W. in the light prosecutrix, The testimony of Mst. Parveen Akhtar Mst. Badshahi and Mst. Fatima as also of 'Ismail and Dost Muhammad P Ws, is consistent, uniform and confidence inspiring. The discrepancies pointed out in their testimony are not on any material point and are natural. The motive alleged by the prosecution has also been established. The recoveries from the spot and at the instance of Sahib Khan and Haider Shah do not connect them with the offence and are ruled out of consideration. Therefore, I am satisfied that the case against the appellants except Fateh Muhammad stands proved beyond reasonable doubt. The case of Fateh Muhammad appellant is distinguishable. He allegedly tres passed into the house and caused injuries with his stick to Mst. Ghulam Fatima P. W. but was not identified by her and by Mst. Badshahi P.W. in the parade because the prosecution did not get Fateh Muhammad identified by these P. Ws. to the identification parade. The failure of Mst. Badshahi and Mst. Ghulam Fatima P. W., to identify Fateh Muhammad appellant makes the case against Patch Muhammad appellant doubtful and in the safe administration of criminal justice I find that he is entitled its benefit.

18. The defence plea has no force. It was rightly rejected by the trial Court. The plea that Muzaffar Khan appellant way falsely involved by one Dost Muhammad and Sikandar, etc. originally tamed as accused because of his friendship with Abdul Rehman, brother of the prosecutrix and rest of the appellants were implicated only because they were friends of Muzaffar Khan appellant, is not probable. No enmity existed between the parties so as to prompt the complainant to substitute the appellants for the real culprits. Mst. Badshahi did not know the appellants except Muzaffar Khan and mentioned different persons as accused on account of her enmity with residents of village Khairpur. The appellants were accu sed of the offences by Mst. Badshahi P. W. in her supplementary statement recorded on the same day which version was proved by all the witnesses including the prosecutrix who had the opportunity to come in contact with the appellants for a number of days during which she was detained by them.

19. On the evidence on record and in the circumstances of the present case I agree with the findings of the trial Court except -qua Fateh Muhammad appellant. I find that Fateh Muhammad is entitled to benefit of doubt, which is allowed to him and rest of the appellants were rightly convicted and sentenced.

20. For the foregoing reasons the convictions and sentences of Patch Muhammad are set aside and he is acquitted of all the charges while the convictions and sentences of the remaining appellants are upheld tad their appeal is dismissed. Fateh Muhammad appellant be set at liberty .if not required in any other case. M. A. K. Order accordingly.