1996 P Cr (PLP)

The learned 1st Additional Sessions Judge determined the following points:-- "(1) Whether accused Saddar had forcibly dragged P.W. Mst. Khudiyat with intent to commit illicit intercourse against her will, near the land of Muhammad Hassan Mangnejo, situated in Deh Saidudero, Taluka Ratodero? (2) Whether the accused had committed offence, if any?" The learned trial Court after hearing the Advocates and after perusal of the evidence, decided Point No. l in affirmative and in Point No. 2 he convicted the appellant/accused under section 366-A, P.P.C. and sentenced him to suffer R.I. for five years and also to pay fine of Rs.1,000 and further decided that the fine, if realized, be given to the victim P.W. Mst. Khudiyat and in default of payment of fine, he awarded R.I. for two months more to the appellant/accused. This case solely rests on the evidence of complainant, his wife Mst. Inayat Khatoon and the victim Mst. Khudiyat and has not been supported by the Mashir of Wardat and arrest of the accused nor the victim was sent for her determination of nor for medical check-up whether any marks of violence were on her body. I have heard Mr. Muhammad Nawaz Chandio, Advocate for the appellant and Mr. Isserdas for the State and with their assistance have gone through the entire record of the case. The learned counsel for the appellant has argued that no attempt was made to commit Zina. He further argued that there are material contradictions on the fatal issue in the evidence of complainant, his wife Mst. Inayat Khatoon and the victim Mst. Khudiyat. He has further argued that though independent witnesses were available but none have been either cited or examined. He has relied on Khaista Muhammad v. The State PLD 1978 Pesh. 116 which reads as under:-- "Prosecution witnesses belonging to same group, two inter-related and third their servant

No independent witness coming to support them-- Such witnesses cannot be believed as trustful witnesses." He has also relied on Raham Ali and 3 others v. The State 1976 PCr.LJ 17 which reads as under:-- "Conviction on capital charge

Ocular testimony must come from unimpeachable source." Mr. Isserdas learned State Counsel has supported the conviction and judgment of the trial Court. According to him, though the Mashir has given complete go-bye to both the Mashirnama viz. Mashirnama of Wardat and Mashirnama of arrest yet the same have been supported by the Investigating Officer. He has further pointed out that no enmity has been shown as to why the accused/appellant has been involved. I have given my anxious consideration to the aspect of the case and the sentence imposed upon the appellant by the trial Court and have also gone through the evidence of the witnesses who are father, mother and daughter and the evidence of these three witnesses is full of contradictions. No independent witness has been examined though admittedly the scene of offence is near the village. Even the important witness Ishaque who is son of the complainant was given up. The prosecution has failed to establish and prove even the attempt as the Mashir of Wardat namely Muharam Ali Exh.10 has not supported the Mashirnama. According to him, he was never made Mashir in this case. He has further deposed that the contents of Mashirnama read over to him in Court, are not correct and the Wardat was never visited in his presence. He has further deposed that he knows the accused but he was never arrested in his presence. He has further denied the Mashirnama of arrest Exh.12 and has even denied his LTI on it and has denied the contents of the Mashirnama in Court. He was declared hostile but the prosecution has failed to examine the other Mashir, as such his evidence has gone unchallenged, it was the duty of the prosecution to have examined the other Mashir to prove its case. The other Mashir Imam Bux was not examined by the prosecution for the reasons best known to them. The prosecution has also failed to refer the victim Mst. Khudiyat to the Lady Medical Officer for determination of her age or for any violence on her part. It is a settled law that slightest dent if caused the benefit always goes to the accused. I feel that it is a fit case where benefit of doubt is given to the accused/appellant. As such, I had allowed the appeal on 27-2-1996 by my short order and these are the reasons for the same. N.H.Q./S-17/K Appeal accepted.