1983 P Cr (PLP)

(g) Penal Code (XLV of 1860)‑ ‑‑ S. 376‑Evidence‑Quality and not quantity matters‑Conviction can be based eyen on evidence of a single witness provided it inspires confidence.‑[Ev1qepce‑Witness]. P L D 1982 Lah. 547 and P L D 1980 S C 225 ref. (h) Penal Code (XLV of 1860)‑ ‑‑ S. 376‑Evidence, appreciation of‑Delay in lodging F. I. R. satisfactorily explained‑Recovery of pieces of glass bangles of complainant and injuries on her wrist corroborating main story of incident‑Medical evidence as to complainant raped mentioned in doctor's report‑Evidence of complainant corroborated by independent witness also injured by accused‑Conviction maintained. Kh. Ali Muhammad for Appellants. Raja Muhammad Akram Khan, Advocate‑General for the State. Abdul Khaliq Ansari for the Complainant. SHER ZAMAN CHAUDHRY, J.‑This appeal is directed against the judgment of the High Court dated 11‑5‑1981, whereby the revision petition of the appellants was rejected whereas revision petition by the State was accepted and sentence awarded to the appellants was enhanced. The facts of the prosecution case as disclosed in the F. I. R. are that on the morning of 1st February, 1978, two married women, namely, Mst. Chandni and Mst. Maida and a young unmarried girl Mst. Razia of about 14 years age left their household for a nearby forest known as 'Hussain Barootian' to collect some faggots. Alongwith them went one Kala, a boy of about 12113 years age. At about noon time, after having their job done, they all started back for their homes. While passing through that forest, on‑reaching near a hill top they were waylaid there by Khalid and Ajaib, the appellants, and Muhammad Nasim, the absconder. All of them were armed with hatchets. These helpless ladies were dragged by the appellants and Muhammad Nasim, absconder, little away from the way side toward a depression. The place, these unfortunate women were taken to, was a sort of dry bed of seasonal stream. They cried for help. So did Kala. It was a desolate place. No one could hear the whooping and none came to their rescue. Thus, were they raped. Feeling disturbed by the cries of Kala, Khalid inflicted a blow on his back by the handle side of his hatchet. Kala left the place and went on the hill‑top wherefrom he witnessed the crime. Khalid respondent raped the complainant Mst. Razia, Muhammad Nasim raped Mst. Maida while Ajaib stopped short of penetration on noticing that Mst. Chandni was in state of mensruation. During the struggle the glass bangles worn by the women were broken. There were bruises and scratch marks on various parts of their persons. After having committed the crime the culprits went away from the scene.

2. After having been ravished Mst. Razia was bleeding and due to acute pain was unable to walk back to the village. The ladies asked Kala to go back to home and bring some one. .After a while her brother Qayyum and Aslam the husband of Mst. Chandni arrived at the place and were told about the occurrence. The ladies then were taken back to their homes and finally they all went to Police Station Dudyal and F. I. R. was lodged at about 8 p. m.

3. After investigation the appellants were forwarded to the Court of Magistrate 1st Class Dudyal to stand trial under sections 376/341 and 376/511. Muhammad Nasim during the trial absconded. Later on, the case was transferred to the Court of A. D. M., Mirpur.

4. The learned A. D. M. finding them guilty convicted Khalid appellant under section 376/341, A. P. C. and Ajaib under sections 376/511 and 341, A. P. C. After giving allowance for the period to be taken as an adjustment under the provisions of section 382 (b), Cr. P. C. Khalid was sentenced to 3 years' R. I, and a fine of Rs. 1,000 under section 376 ; in default of the payment of fine to undergo 3 months' R. I. and under section 341 he was sentenced to 6 months' R. I. while Ajaib was convicted and sentenced to 1. year's R. I. under section 376/511 and 6 months' under section 341.

5. The appellants filed appeal in the Court of Sessions Judge Mirpur against their conviction while State went in revision for the enhancement of the sentence. Both the appeal and the revision were dismissed by the learned Sessions Judge, vide his order dated 29‑11‑1980. Not satisfied with the order of the Sessions Judge both the appellants and the State went in revision in the High Court, appellants praying for quashment of their conviction and the State requesting for enhancement. The revision petition of the appellants was dismissed while that of the State was accepted and the learned Judges in the High Court while accepting the revision petition filed by the State and after considering the period of sentence to be adjusted under the provisions of section 382(6) of Cr. P. C. enhanced the sentence of Khalid appellant from 3 years to 5 years' R. I. and amount of fine was enhanced from 1,000 to 3,000, and the sentence of Ajaib was converted from I year to 3 years' R. I. and fine of Rs. 2,000, vide their order dated 11‑5‑1981. It is this order of the High Court the validity of which is now being challenged through this appeal.

6. Kh.. Ali Muhammad, the learned counsel for the appellant, argued that the High Court as well as all the Courts below failed to appreciate the inherent defects and infirmities in the prosecution case. Their findings are liable to be set aside for being based on mere assumption unwarranted by evidence on the record. The conviction of the appellants could not be sustained, he argued, for the following reasons :‑ (a) that there being a considerable delay in filing the F. I. R. which not having been explained was sufficient in itself to destroy the prosecution case. All the Courts below including the High Court, he submitted, failed to appreciate this point ; (b) that all the recoveries were defective and could not be taken into consideration ; and (c) that the medical reports do not support the prosecution case. Besides, the evidence suffers from discrepancies and contradictions.

7. Elaborating on the first point it was submitted that occurrence is alleged to have been taken place at about noon yet the F. I. R. is claimed to have been lodged at about 8 p. m. The delay of about 7/8 hours, according to him, has not been explained which itself is sufficient to make the prosecution case doubtful. The learned Advocate‑General while replying on the point argued that there was no appreciable delay which has not been sufficiently explained. We have given our serious consideration to the point and find no substance in the argument. One of the victims was hardly 13/14 years of age. Besides being in mental agony and in state of nervous wreak the girl was bleeding and unable to walk. No one but only the concerned could feel the magnitude of disgrace and humiliation to which the were put to by these appellants. First they had to wait at the place o occurrence for the arrival of their relatives as complainant Razia could not walk. After they were taken to their homes people gathered there. All these explanations are there mentioned in the F. I. R. police station wart also at considerable distance. No reason has even been suggested to any of P. Ws. as to why these appellants were implicated falsely. Parents and relatives under such like situation are caught in a dilemma, because of the stigma and disgrace which the publicity of the act would cause. Of late a there has, developed a tendency to lay too much importance on the point of delay. Delay no doubt in some cases causes a cloud of doubt but only where circumstances suggest that time has been used to concoct a story to rope ire the innocents or where identity of the culprit is in doubt. Beyond that delay, per se is never a ground for making prosecution case doubtful. We the mortals must have a reasonable approach and the circumstances of each case are to be kept in consideration. It will be wrong to expect things happen in a mechanical fashion in such like situation. Similar was the view expressed by the learned Judges of the Federal Shariat Court in case titled Iqbal Shah v. State (P L D 1981 F S C 284). So finding no force in the argument we reject it.

8. On the point of recoveries the learned counsel for the appellants submitted that recoveries of Shirt, and "Tehbunds" (lion clothes) alleged to have been recovered from the appellants have no legal sanctity as these were neither made from the persons of nor at the instance of the appellants. On this point we are in agreement with the learned counsel and hold that recoveries of these articles have no legal value and cannot be used as evidence against the appellants. But then the fact of there being nor recoveries or that these being defective in itself is not sufficient to destroy the prosecution's case if otherwise on evidence it is proved. Besides no defect has been pointed out with regard to the recoveries of broken pieces o glass bangles from the place of occurrence, which were worn by the victor, at the time of the incident. These recoveries of broken pieces of bangel considered in the light of the evidence of injuries on the wrists of the victims caused by the broken bangles during the scuffle are corroboration of the main story. Apart from the medical evidence there is evidence of the v investigating Officer to the effect that he observed these injuries while, preparing the injury forms. There is not a slight suggestion by the defence of his being partial or inimical to the appellants. His evidence, therefore, is as good and reliable as that of any other witnesses. This principle has been accepted in a number of cases. Reference P L D 1982 Lah. 547 (b).

9. On the point of medical report it was contended that since Mst. Chandni and Mst. Maida were not medically examined the whole case, therefore, was doubtful. With regard to Mst. Razia the submission is that medical report even to her extent is pretty doubtful as the medical report does not show the date she was examined on and also that it was lacking in necessary details. No doubt the date of examination is not entered in the report but apart fro that presence of injuries on the wrist, back and legs of the complainant are clearly mentioned. It also mentions of her having been raped and vigina bleeding. Lady Doctor who appeared as P. W. stated in her evidence that she could not conduct viginal examination of Mst. Maida as she was under menstruation. Mst. Chandni declined to get herself examined. But then it is not claimed by the prosecution that she was actually raped. There do, not exist sufficient and cogent reason to discard the medical evidence.

10. Last point of attack was that prosecution's case suffers from discrepancies going to the root of the case. All the P. Ws. are interested and there is no corroboration. All these factors put together, according to the learned counsel's submissions, are sufficient to cast serious doubt on the veracity of the prosecution story.

11. We have carefully gone through the evidence. Apart from the minor discrepancies the evidence is clear and convincing. We could not find any defect in the evidence nor any such was pointed out by the learned counsel which could be of any consequence. Besides, discrepancies on minor points are not really a proof of case being false, instead these are bound to happen in case of truthful witnesses. Parrot like narration of the story can only be expected of from the tutored witnesses. Minor discrepancies are bound to be there as the power of observation, perception and retention varies in case of each individual. If the evidence on material particulars is clear and convincing then misdescription or misstatement on minor point are really of no significance. Similar view was taken by the learned Judge of the Supreme Court. Reference P L D 1.975 S C 227.

12. The submission with regard to the P. Ws. being closely related, w find, is not well‑founded. Three victims of this brutal crime are not inter related. Their evidence can safely be relied upon. Besides, it is corroborated by Kala who too is not related to the complainant or the other two victims, and is also an injured witness. P. Ws. Qayyum and Aslam who arrived at the place of occurrence soon after the incident are no doubt related. P. W. Qayyum happens to be the brother of Mst. Razia, complainant, and Aslam the husband of Mst. Chandni. But mere relationship is no reason sufficient enough to discard their evidence. Without being inimical or hostile to the accused their evidence cannot be discarded. No such hostility or reason for their implicating the appellants falsely had even been suggested to them. Mere relationship is not a disqualification. Reference P L D 1982 F S C 8 and P L D 1982 Lah.

141. As already stated the evidence of these 3 ladies, and that of Kala, an injured eye‑witness, is of a quality that safe reliance can be placed on it. Besides, it is a quality and not the quantity that matters Conviction could be based even on evidence of a single witness provided o course it inspires confidence. All that the law requires is the quality and not the quantity. Reference P L D 1982 Lah. 547, P L D 1980 S C

225. After careful examination of the evidence and having given our earnest consideration to all the material points involved we could find no justification for interference with the finding arrived at by the High Court which is well considered and supported by cogent reasons. The appeal is, therefore, dismissed. Appeal dismissed.