2002 PLP 2964 (YLR)

During the trial prosecution examination as many as 12 witnesses to prove the guilt of the accused. Medical evidence was furnished by Dr. Muhammad Fayyaz, P.W.6 who on 26‑7‑1998 examined Sharafat Ali and Amjad Ali accused and found them fit to commit sexual intercourse. Dr. Roohee Yasmin, P.W.7 on 14‑7‑1998 medically examined Mst. Hafeezan, and found abrasion 1/2 x 1/4 c.m. on her left ankle. She also found that her hymen was torn fresh. Her swabs were sealed in parcel and sent to Chemical Examiner and as per report of Chemical Examiner Exh.P.G/1 it was found that she was subjected to sexual intercourse. On the same day, the same witness also medically examined Mst. Kalsoom Bibi aged 16 years and found her hymen torn and swabs were sent to Chemical Examiner and as per his report Exh. P. H/1 the commission of sexual intercourse with her was confirmed. On the same day, she also medically examined Mst. Irshad Bibi aged about 18 years and no redness or swelling was found; hymen was torn old and healed in nature and according to the report of the Chemical Examiner commission of sexual intercourse was proved. The ocular account was furnished by Mst. Hafeezan who was examined as P.W.1. She identified Sharafat accused in Court and stated that at the place of occurrence he was armed with pistol and Sharafat committed Zina‑bil‑Jabr with her, and he snatched Rs.200 from her. While remaining two accused snatched Rs.2600 from her father and mother. She stated that Amjad committed Zina‑bil‑Jabr with Mst. Kalsoom and the 3rd one who was P.O committed Zina‑bil‑Jabr with her sister Mst. Irshad Bibi. She further stated that she had seen Sharafat Ali on the previous day when she went to the roof of her house. Mst. Irshad Bibi was examined as P. W.2. Her statement is also in line with statement of Mst. Hafeezan. She stated that third unknown person who was P.O. had committed Zina‑bil‑Jabr with her while Sharafat accused committed Zina‑bil‑Jabr with her younger sister Mst. Hafeezan and Amjad accused committed Zina‑bil‑Jabr with Mst. Kalsoom. She further stated that Sharafat Ali accused/appellant snatched Rs.200 from her sister Mst. Hafeezan and Rs.2600 were snatched by the accused from her mother Mst. Surayya. Mst. Kalsoom was examined as P. W.3. She stated that accused Amjad Ali committed Zina‑bil‑Jabr with her while his co‑accused Sharafat with her sister Hafeezan and they also snatched amount of Rs.2600 from her mother and Rs.200 from her sister Mst. Hafeezan. Allah Ditta, complainant was examined as P. W.4. He supported the version of his statement got recorded by him vide Exh.P.A and narrated the story as an eye‑witness of the occurrence. He also identified both the appellants in Court having committed Zina‑bil‑Jabr with his daughters Mst. Hafeezan and Mst. Kalsoom and they snatched the cash amount. Muhammad Asghar, HC was examined as P.W.S, who had kept the sealed parcel in Maalkhana in safe custody on 14‑7‑1998 and handed over to Muhammad Siddiq on 16‑7‑1998 for their deposit with Chemical Examiner Punjab, Lahore. Allah Ditta, A.S.‑I. was examined as P.W.8, who had deposited the sealed parcels with Chemical Examiner Lahore after receiving the same from Muhammad Siddiq. Muhammad Siddiq was examined as P.W.10 who received the sealed parcels from Asghar Ali, H.C on 16‑7‑1998 and deposited the same intact with Chemical Examiner, Lahore. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh.PT, PU and PV. The statements of the accused/appellants under section

342. Cr.P.C. were recorded. They denied the charge and claimed their innocence and false involvement. Sharafat Ali accused to the questions No.7 as to why the case against him and the P.Ws. deposed against him, he replied as under:‑ "On the day of alleged occurrence I use to live in District Faisalabad in connection with Labour. I have been falsely implicated in the above‑noted case due to misunderstanding and suspicion. I have been falsely implicated in this case at the asking of inhabitants of the locality who had enmity with me and my father. I did not criminally trespass into the house of complainant. I did not commit the above‑noted offence. I did not commit Zina‑bil‑Jabr with any of the victim. I offered to complainant party to take oath on Holy Quran but he refused. I offered to complainant party that I take oath on Holy Quran that I did not commit the offence mentioned in the F. I. R. but he refused. I have been declared innocent by the Investigating Officer in this case. But I have been challaned in this case only due to the fear of administration by the Investigating Officer. In report under section 173, Cr.P.C. the Investigating Officer particularly mentioned that I have been implicated in this case due to mis understanding. While Amjad Ali appellant to the same question replied as under:‑ "On the day of alleged occurrence I was present in my house. I have been falsely implicated in the above noted case due to misunderstanding and suspicion. I have been falsely implicated in this case being first cousin of Sharafat accused who has been involved in this case at the asking of inhabitants of the locality who had enmity with him and his father also. I did not criminally trespass into the house of complainant. I did not commit the above‑noted offence. I did not commit Zina‑bil‑Jabr with any of victim. I offered to complainant party to take oath on Holy Quran but he refused. I offered to the complainant party to take oath on Holy Quran that I did not commit the offence mentioned in the F.I.R., he refused. I have been declared innocent by the Investigating Officer in this case. But have been challaned in this case only due to the fear of administration by the Investigating Officer. In report under section 173, Cr.P.C. the Investigating Officer particularly mentioned that I have been implicated in this case due to misunderstanding. " The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No. 865 of 1999 while the trial Court has sent up Murder Reference No.488‑T of 1999 for confirmation of their death sentence. Both the matters are being decided by this judgment. Learned counsel for the appellants has argued that from the statements of the P.Ws. the appellant Sharafat Ali had committed Zina‑bil‑Jabr with Mst. Hafeezan while Amjad Ali with Mst. Kalsoom and this case is of not gang rape; and provision of section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are not attracted and the conviction against the appellants under section 10(4) ibid is illegal and not sustainable. It has been further argued that during the investigation conducted by Syed Baqar Hussain Shah, Inspector P.W.12, they were found innocent, therefore, the case against the appellants is doubtful and they be acquitted from the charge. It has been further argued that they were aged less than 18 years and are not adult, therefore, they cannot be sentenced for more than five years under section 7, of Hudood Ordinance, being not adult; that the recovery of notes of Rs.50 and Rs.100 has been planted to strengthen the prosecution case; that the conviction and sentence under section 458, P.P.C. is also illegal. Conversely, the appeal has been opposed by the learned counsel for the State and he supported the impugned judgment. Heard. Record perused. The occurrence took place during the, night and the statement Exh.P.A was got recorded by the complainant next morning at 9.00 a.m. Both the appellants ware duly identified by the prosecution witnesses in the Court. There is no question of mistaken identity or substitution by letting off the real culprits by the complainant and other prosecution witnesses. Sharafat Ali appellant was nominated by Mst. Hafeezan, P.W.1 with whom he committed Zina‑bil‑Jabr and her statement has been corroborated by her sister Mst. Irshad Bibi, P.W.2 and Mst. Kalsoom P.W.3 and the complainant. Likewise, Amjad Ali appellant had committed Zina‑bil‑Jabr with Mst. Kalsoom and he was duly identified by the victim in the Court. He was also nominated in the F.I.R. and statement of Mst. Kalsoom has been corroborated by Mst. Hafeezan, P.W.1 and Mst. Irshad Bibi P.W.2 and the complainant. The statements of the victims have also been corroborated by the medical evidence. There is no reason for their false implication or substitution. However, as per statements or the victim each of the appellants committed Zina‑bil‑Jabr with Mst. Hafeezan P.W.1 and Mst. Kalsoom P.W.3 and we agree with the contention raised by learned counsel for the appellants that it was not a case of "gang rape" to attract the, provision of section 10(4), ibid, therefore, the conviction is altered from section 10(4) to section 10(3) ibid. As far as the age of appellants is concerned, they never, took this objection and produced any documentary evidence before the trial Court to show that they were less than 18 years of age, the contention of the learned counsel fore the appellants that they were minor is repelled. The offence under section 458, P.P.C. is also attracted to the circumstances of the case and has been proved by the prosecution through ocular account corroborated by recovery of amount from both the appellants of Rs.50 and Rs.100 as looted amount, therefore, their conviction under section 458, P.P.C. is also maintained. However, the accused being teenager and first offenders, they are sentenced to 10 years R.I. on each count which will meet the ends of justice. However, the punishment of fine or in default thereof is maintained. The sentences shall run concurrently. Benefit or section 382‑B, Cr.P.C. will also be available to the appellants. The appeal is dismissed with the above modification. Their death sentence is not confirmed. Murder Reference is answered in the negative. H.B.T./S‑352/L Order accordingly.