1995 P Cr (PLP)

Prosecutrix Mst. Irshad Bibi wife of Faqir Muhammad was asleep in her house on the night of 15-10-1989. Her cousin Mst. Zainab Bibi aged about 10 years was also sleeping with her. At, about one in the night appellant Mushtaq Ahmad, who was neighbour of the prosecutrix, entered her house, and woke her up. The prosecutrix tried to rise alarm but the appellant put his hand on her mouth and forcibly took her to his house where in a room he subjected her to rape. The prosecutrix struggled to save herself and during that she sustained injuries on left shoulder and right cheek. Upon her alarm, the aforesaid Mst. Zainab Bibi, her mother Mst. Seema, Inayat Ali and Nadir Khan reached the spot but the appellant escaped. The prosecutrix went to her house but the relatives of the appellant beseached her not to make report to the police. The prosecutrix got herself medically examined on the same day. In the evening she was proceeding towards the police station when she met A.S.I. Ghulam Muhammad of Police Station, Saddar Burewala to whom she reported the matter orally who wrote the same and sent it to the police station for registration of the case.

2. The appellant was arrested on 22-10-1989 and after investigation he was sent up for trial before Additional Sessions Judge, Vehari. The learned trial Judge charged the appellant under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 451, P.P.C. The appellant pleaded not guilty to the charges and claimed trial.

3. Eleven witnesses were produced by the State in proof of the prosecution case whereas the appellant made a deposition under section 342, Cr.P.C. but he neither produced any defence nor made any deposition on oath.

4. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant under section 10(2) of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 5 years, to suffer 30 stripes and to pay a fine of Rs.2,000 or in default to further undergo rigorous imprisonment for 3 months. The convict has challenged his conviction and sentence by the appeal in hand.

5. Appearing as P.W.1 the prosecutrix corroborated the contents of her written report forming basis of F.I.R. She deposed that she was asleep in her house and her husband Faqir Muhammad was away as he had gone to Lahore to inquire about the health of her aunt who was ailing, that the appellant entered her house at one in the night, forcibly took her to his house and subjected her to Zina-bil-Jabr. She had also deposed that during the struggle she sustained some injuries on her left shoulder and right cheek. She was medically examined by P.W.8 Lady Dr. Samina Zubair at 14-30 hours on the same day. According to which the prosecutrix was having three abrasions on left side of her neck, front of lower neck and on the right of the front of neck, one contusion on the back of the left shoulder and one swelling on her cheek below right eye. The lady doctor also took vaginal swabs, which were found stained with semen on chemical analysis. At 6-00 p.m. on the same day the prosecutrix recorded F.I.R. Although Mst. Zainab Bibi, who was also sleeping in the same room with the prosecutrix, was not produced in evidence as she was of tender age but her mother Mst. Seeman appeared as P.W.7 and deposed that her daughter Mst., Zainab Bibi had informed her that the appellant had abducted the prosecutrix. This witness further stated that she and other persons immediately went to the house of the appellant and saw him committing sexual intercourse with the prosecutrix.

6. In rebuttal the appellant only made a deposition under section 342, Cr.P.C. where his defence was as follows:-- "I am innocent. The P.Ws. are interested and inimical towards me. Actually Hanif and Jana residents of Chak No.285/EB who are sons of Suleman used to visit the house of Mst. Irshad Bibi P.W. having bad intention. Being neighbour I objected to it and forbade her about their visit at which she fell annoyed to me and fabricated false case against me in connivance with the Ms."

7. The testimony of the prosecutrix was entirely corroborated by her medical examination conducted after about 13 hours on the same day and the report of the occurrence made by the prosecutrix 3-1/2 hours after the medical examination. Her husband was away out of the village and had gone to Lahore. The prosecutrix directly charged the appellant for subjecting her to sexual intercourse. The learned Additional Session Judge came to the conclusion, after analysing and appreciating the entire evidence, that the prosecutrix had voluntarily accompanied the appellant to his house where she was a consenting party to the sexual intercourse committed with her by the appellant. The circumstances, which came to light during the trial, also pointed out to the same conclusion. The prosecutrix was awaken up at one in the night, she wore her foot wear and went with the appellant to his house. Had it been a case of forcible abduction, she would have definitely raised alarm and would have tried to rescue herself from the clutches of the appellant. In such view of the matter the learned Additional Sessions Judge rightly came to the conclusion that there was neither any element of abduction of the prosecutrix, nor was it a ,case of house trespass.

8. It was contended by the learned counsel for the appellant that the learned trial Judge had improperly convicted the appellant because for the other offences he had not believed the testimony of the prosecutrix and the other prosecution evidence. His contention was that the same evidence was relied upon for convicting the appellant for one offence while it was not believed in respect of the other offences. I have considered this aspect of the matter very anxiously but I do not see eye to eye with the learned counsel. Although the prosecutrix had charged the appellant for forcibly taking her to his house but the circumstances clearly pointed out that she had voluntarily accompanied him. It is the duty of the Court to sift grain from chaff and the Court may discard some evidence and may accept some evidence and it is not legally necessary that the Court should entirely accept or reject any evidence. The Court has to arrive at a truthful conclusion and for that purpose after analysing and appreciating evidence, the Court may reject a portion of the evidence and may simultaneously accept a portion of the evidence.

9. It was also contended by the learned counsel for the appellant that the evidence showed that investigation had preceded the report. In this connection he pointed out the factum of medical examination of the prosecutrix 3-1/2 hours before recording of the F.1.R. This contention of the learned counsel also does not require any serious consideration. Except the medical examination of the prosecutrix no other circumstance was brought on the record to show that any investigation had preceded the recording of the F.I.R. Even otherwise the factum of medical examination before recording F.I.R. would not tantamount to investigation by the police because the prosecutrix had herself approached the lady doctor and had got herself medically examined without any assistance from any police official or Investigating Officer.

10. In the end the learned counsel for the appellant prayed for some reduction in the sentence on the ground that the prosecutrix was also a consenting party to the offence for which the appellant alone had been convicted and sentenced. There appears to be some justification in this contention of the learned counsel because the evidence produced during the trial clearly indicated that the prosecutrix had been subjected to sexual intercourse with her own consent.

11. The aforesaid discussions would clearly indicate that the appellant had subjected the prosecutrix to sexual intercourse but the latter was also a willing party to that ad. Consequently the appeal is partly accepted. The conviction of the appellant under section 10(2) of the Hudood Ordinance is maintained but he is sentenced to undergo rigorous imprisonment for 3 years, to suffer 30 stripes and to pay a fine of Rs.1,000 or in default to further undergo rigorous imprisonment for 2 months. He shall also be entitled to the benefit under section 382-B, Cr.P.C. N.H.Q./967/FSC Sentence reduced.