P L D 1952 Baghdad﷓ul﷓Jadid 26 (PLP)

ABDUL AZIZ, C. J.‑Hazoori was challaned under sec tion 304 (1) but the trial judge changed the charge and tried him under sections 302 and 376 Pakistan PC. He was acquitted. There is an appeal on behalf of the Crown against the acquittal of Hazoori and a rivision petition for enhance ment of sentence on behalf of Ilahi Bakhsh. The story of the prosecution is to the effect that Mst. Zenab deceased, a girl, of nine of years of age went to the kotha of the accused at mid‑day on the 30th August 1950 and was raped. She was bleeding when she came out of the kotha of the accused and was going towards her house taking hold of her loosened shalwar where she was met by Khair Muhammad P. W. 7 and Umarwada P. W.

8. They took no notice of her when she passed. On reaching her house Mst. Bhirawan P. W. 6 her aunt asked her the reasons of her condition when she stated that she was raped by Bali P. W.

14. Considering that Bali was closely related to her and on account of his age was not fit to commit a rape on such a small girl, Mst. Bhirawan further questioned the girl who stated that virtually she was raped by Hazoori accused and she was induced by him to name Bali. Muhammad Din P. W. 13 brother of the girl was sent by Mst. Bhirawan to Haji Khuda Bakhsh P. W. 5 her husband ; Ilahi Bakhsh P. W. 1 father of the girl and Umarwada P. W. 8 maternal uncle of the girl. As Khuda Bakhsh was praying in the mosque he was asked by Muhammad Din to go to the house where the girl gave him the story of the rape. Haji Khuda Bakhsh returned from the mosque to say his prayer. Muhammad Din went to Umarwada who had gone out with Khair Din P. W.

7. Both of them however came to the house of Bhirawan. They found the girl in a distressed condition and on enquiry the girl gave them the story of rape. Khair Din left the house and Umarwada remained in the house. Muhammad Din then went to inform Ilahi Bakhsh who had gone to Basti Ramzan Bachal to attend the marriage of Mukhtar Machhi. Ilahi Bakhsh met Muhammad Din in the way and was informed of the occurrence. Ilahi Bakhsh however went back to Basti Ramzan Bachal to inform Noor Muhammad Nambardar P. W.

9. The Nambardar directed Ilahi Bakhsh to go to Police Station Shidani. In the evening he met one man on his way who informed him that the Sub- Inspector was in Basti Jhullan. He returned to his village, and informed Noor Muhammad Nambardar that he did not go to the Police Station as the Sub‑Inspector was in Basti Jhullan. Ilahi Bakhsh then spent the night at the dera of Umarwada and on the next day accompanied by Noor Muhammad Nambardar came to Basti Jhullan and made the report Exhibit PA. It was signed by Noor Muhammad and thumb marked by Ilahi Bakhsh. The Sub‑Inspector thereupon proceeded to the spot but before he reached there the girl had expired. The Investigating Officer prepared the inquest report Exhibit P B and the post‑mortem examination was performed by Dr. Kamrud Din P. W.

13. See Exhibit PM. According to his report vagina was injured by rough use. There was penetration and the death took place as the result of the shock suffered by the girl on account of rape. The accused was arrested on 16th of August, 1951, and he was thereupon challaned under section 304 (1) which I have already stated was converted into sections 302/376 P. P. C. The trial judge held that the report was belated, that the F. I. R. did not contain the name of the accused, that the name of the accused was not mentioned in column No. 4 at the back of the inquest report which was signed by Khuda Bakhsh, Noor Muhammad, Umarwada and thumb marked by Ilahi Bakhsh ; that the statement of Ilahi Bakhsh P. W. 1 in the Court is contradicted by the F. I. R. and by the statements of Umarwada P. W. 8 and Khairud Din P. W.

7. After hearing the learned counsel on both sides I am of opinion that there was no inordinate delay in making the F. I. R. The statement of Ilahi Bakhsh gives the circumstances under which the report was made on the following day and it is need less for me to deal with the statement of Ilahi Bakhsh in detail on this point. The most important question for my considera tion is whether the evidence proved that the culprit was Hazoori and that the name of Bali was given by the girl to Mst. Bhirawan as the result of the inducement on the part of Hazoori. In order to determine this question it is necessary to bear in mind the most important document on the file Exhibit PA which was prepared by the Sub‑Inspector at the statement of Ilahi Bakhsh the father of the deceased girl and in the company of Noor Muhammad Lambardar. The statement of Ilahi Bakhsh P. W. 1 in this connection is very significant and definitely goes against the contention of the Crown that the name of Bali was given by the girl at the instance of Hazoori. Now this is a fact as has appeared from the statement of Ilahi Bakhsh that after the occurrence and when he was informed of it by his son Muhammad Din and before going to the police he had spent the major portion of the night in house. Mst. Bhirawan's statement in the trial Court was that Mst. Zenab immediately on her arrival in the house and on enquiry by her had told her that Hazoori had raped her. It is absolutely clear from the statement of Mst. Bhirawan that Bali's name was falsely given by Mst. Zenab to her but in the F.

1. R. Hazoori's name does not appear while the name of Bali alone finds its place. Ilahi Bakhsh had deposed that he had given the name of Bali on the information of his son Muhammad Din. Muhammad Din had told him that Mst. Zenab's statement was that she was raped by Hazoori and she had named Bali as she was tutored by Hazoori to say so. He further stated that he made similar statement in the F.

1. R. It is a fact that such a statement does not exist in the F. I. R. Ilahi Bakhsh alone had not gone to the Police Station. He was accompanied by Lambardar Noor Muhammad who had also gone to the Police Station after meeting Mst. Bhirawan. It is, therefore, inconceivable that such a mistake would have been committed by the Sub Inspector intentionally in the presence of a literate Lambar dar. In addition to this fact the statement of Ilahi Bakhsh Exhibit DA is a strong factor against the prosecution. If in the F. I. R. his statement was not correctly recorded by the Sub‑Inspector the statement DA equally does not contain the name of the accused. Now two factors therefore are present before us. Firstly that the name of the accused Hazoori was not mentioned in the F. I. R. and secondly it was not men tioned in the statement before the police Exhibit D A. The statement of Noor Muhammad Lambardar is to the effect that when he, Ilahi Bakhsh and the Sub‑Inspector were going to the spot one Fazal Ahmad P. W. met them who had said that the real culprit was Hazoori and that Bali's name was falsely mentioned. Noor Muhammad had very clearly stated that no one had mentioned the name of Hazoori before they met Fazal Ahmad. Now this is a fact as already stated that he had first gone to the house of Mst. Bhirawan and after that he had gone in the company of Ilahi Bakhsh to make the F. I. R. This fact therefore that the deceased girl before her death had named Hazoori becomes absolutely false. It should also be kept in view that Noor Muhammad, prosecution witness, was attending the same marriage which was being attended by Ilahi Bakhsh. He was there when Muhammad Din went to inform his father about the occurrence. It is said by Ilahi Bakhsh that Muhammad Din had informed him that Mst. Zenab had accused Hazoori of the commission of the offence but this fact is contradicted by the statement of Noor Muhammad because according to him the name of Hazoori fell to their ears for the first time only when after the F. I. R. was recorded and 'they were going in the company of the Sub‑Inspector to the village of Ilahi Bakhsh. It proves beyond doubt that till the F. I. R. Hazoori's name was unknown to Mst. Bhirawan, Muhammad Din, Ilahi Bakhsh and Noor Muhammad. It was for this reason that his name was not mentioned in the F. I. R. If that be the fact then the statement of Mst. Bhirawan on the face of it becomes unbelievable and the irresistible conclusion would be that it is wrong that the girl told Mst. Bhirawan that Hazoori had raped her. Mst. Bhirawan further stands contradicted by her statement made before the police. She describes in the portion A to A of her statement Exhibit DB the manner in which Mst. Zenab had told her the offence was committed. The details which find place of the occurrence in that statement leave no doubt to my mind to hold that the name of Hazoori was not given to her by Mst. Zenab. Muhammad Din P. W. 13 in the Court of the Committing Magistrate had deposed that he never mentioned the name of Bali to his father. Now the evidence of Bhirawan which is the most important testimony in the case does not show at all whether the deceased girl immediately on her arrival in the house mentioned the name of Hazoori. There were no reasons for Ilahi Bakhsh to omit the name of the accused in the F. I. R. Nor there were any reasons for Mst. Bhirawan to implicate Bali and Bali alone on the statement of Mst. Zenab in her first statement before the police. The learned Sessions Judge had disbelieved the statement of Khair Muhammad and Umarwada. Both are interested witnesses. The learned counsel for the respondents has criticised the evidence at a considerable length but in an appeal against acquittal I do not think it necessary to deal with their evidence at a length. It is sufficient for me to state that their evidence is self‑contradictory. They have made different statements at different occasions. It is not proved from their evidence that the deceased girl was seen coming out of the house of Hazoori or they had seen Hazoori, either locking his door or close to his house. Rejecting this evidence I have to look to the extra‑judicial confession alleged to have been made before Khan Muhammad P. W.

11. Khan Muhammad is a chaukidar and is working under Noor Muhammad Lambatdar. He did not inform the Lambardar before he appeared before the S. I. This chaukidar tried to catch Hazoori after the said confession was made by him but he kept silent and opened his mouth when he was sent for by the police. The last question urged was that Bali was unfit to commit rape on such a young girl. The doctor's opinion was that he is potent and fit for sexual intercourse. I think it was rightly argued by the learned counsel for the respondent that in the presence of these factors it was nothing but a conjecture on the part of the doctor to say that Bali was unable to commit rape on the girl, Illahi Bakhsh admitted his long standing enmity with Bali because he was carrying on with the wife of Bali. Bali therefore with intent to retaliate may have taken the opportunity to commit this diabolical act on a small innocent girl. It is contended that there was no enmity between the family of Ilahi Bakhsh and Hazoori but that fact alone could not be treated as sufficient to go against the decision of the learned Sessions judge and to convict the respondent. The medical evidence was that Hazoori's genital organ was found swollen when he was examined after his arrest. But unhappily no opportunity was given to Hazoori by the Court to explain it. Unless an opportunity is afforded to the accused to explain certain evidence .against him it should not be taken against him. The overwhelming evidence in the case does not establish the guilt of the respondent and consequently I should hesitate to interfere with the order of acquittal passed in his favour. The learned Sessions Judge had carefully considered the entire evidence on the file and had come to the conclusion in favour of the accused. In such like cases even if the High Court comes to a different conclusion the principle of law is that the order of acquittal should not be interfered with unless it is proved that the judgment of the trial Court was manifestly wrong. See in this connection, Emperor v. Aftab Ahmad Khan A I R 1940 All. 291 where the learned judges had held that "in the case of an appeal at the instance of the Government under section 417, as a matter of jurisdiction, the whole case is at large before the High Court both as to the facts and as to the law. But the appellate Court will be slow to disturb a finding of fact arrived at by a judge who has had opportunities for assessing the value of evidence which the appellate Court has not had. An appellate Court pursuing this principle will be slow to substitute a view of the facts of its own for an opposite view of the facts held by the Judge below where the latter are, upon the evidence, reasonable views, even though the judges in the Appellate Court might have preferred a view of their own if the matter had been res integra. Moreover, the presumption of innocence and the title of the accused to the benefit of any doubt are certainly not lessened by the fact that they have been acquitted at their trial. To a similar fact is Emperor v. Ghulamali Bhawal 1938 Sind 67 and Emperor v. Muzaffar 1931 Lah.

465. With these observations I would dismiss the appeal as well as the revision petition. A. H. Appeal dismissed.