1985 PLP 1405 (MLD)

5. Mst. Asho (P.W. 5) is the main prosecution witness in this case. She is the victim and the complainant in this case. It is deposed by her that on the day of occurrence before Isha time she went to the fields alongwith her mother-in-law Mst. Ghulam Sakina to obey the gall of nature. Malik Manzur gave her a Soti blow while Nawaz caught hold of her from her arm. Khan Muhammad accused broke the string of her Shalwar and made her to fall on the ground and committed Zina-bil-Jabr with her. Ashiq and Allah Bakhah caught hold of Mst. Ghulam Sakina who raised the alarm which attracted Pir Bakhsh and her husband Ashiq P.W. On their arrival the accused fled away. She went to the police Station Sadar, Bahawalpur alongwith her husband Ashiq P.W, and other persons and lodged the report. The police recorded her statement Exh. P.D. thumb-marked by her. Khan Muhammad accused had been entreating and for that the matter was reported to the police on the third day. In cross-examination she has admitted that Pir Bakhsh P.W. is her maternal grandfather ( NANA ) . She was medically examined on the day when she reported the matter to the police. It is admitted by her that Muhammad Hayat father of Khan Muhammad accused had got registered a case under section 307, P.P.C. against her husband Ashiq P.W. after this occurrence. When that case was got registered Khan Muhammad accused was in judicial lock-up in this case. She has further deposed that Malik Naeem Channar was the, Chairman of her Union Council at that time when the occurrence took place. She has admitted that Khan Muhammad accused belonged to the group of Malik Naeem Chairman while her husband Ashiq, his father and others belonged to the adverse group. Malik Manzur who inflicted the Sota blow on her arm was a member of Union Council. She did not produce the Shalwar and the string before the police. She has denied the defence suggestion that Khan Muhammad did not commit Zina-bil-Jabr with her and that before her medical examination her husband Ashiq Muhammad committed sexual intercourse with her.

6. Mst. Sakina (P.W. 6) is the mother-in-law of the prosecutrix Mst. ASho. She has supported the version of the complainant that she alongwith Mst. Asho P.W. went to the fields to obey the call of nature Manzur. Nawaz, Khan Muhammad accused, Allah Bakhsh and Ashiq came in the field. Manzur gave a Sod blow which hit her leg. Nawaz caught hold o:' her Khan Muh.9mmad accused made Mst. Asho fall on the ground and committed Zina-bil--Jabr with her. She raised alarm which attracted her husband Ashiq and Pir Bakhsh P.Ws. According to this witness Ashiq and Allah Bakhsh accused caught hold of her. On the arrival of Ashiq and Pir Bakhsh P.Ws. the accused fled away. In cross-examination she has admitted that the leg of Mst. Asho was broken. She denied the defence suggestion that she had sworn in her affidavit to the effect that Khan Muhammad accused did not commit Zina-bil-Jabr with Mat. Asho. It is further denied by her that Pir Bakhsh P.W. was her maternal-uncle. However, he was from her brotherhood. She admitted that Malik Iqbal Channar, Advocate accompanied her to the police station. She further admitted that Malik Naeem Chairman belonged to the adverse party of Malik Iqbal Channar, Advocate. She, however, denied the defence suggestion that a false case had been got registered against Khan Muhammad accused as he belonged to the group of Malik Naeem Chairman. According to her the Abadi was at a distance of one square from the place of occurrence towards south and her house was at, a distance of 12 acres from the place of occurrence.

7. Muhammad Ashiq (P.W. 7) is the husband of Mst. Asho and claims to be an eye-witness of the occurrence. He has supported the version of his wife Mst. Asho that she alongwith his mother Mst. Ghulam Sakina Mai P.W. went to the fields to answer the call of nature. He heard the alarm of his mother Mst. Sakina and went there. Pir Bakhsh P.W. also arrb ed there. He had deposed that Nawaz co-accused had caught hold of his wife from the arms, while Khan Muhammad accused was committing Zina-bil-dbr with his wife Mst. Asho. Manzur, Allah Bakhsh and Ashiq co-accused had caught hold of his mother. On his arrival Khan Muhammad accused and the other persons went away. According to him he and his wife Mst. Asho reported the matter to the police on 6-8-1981 as earlier Khan Muhammad accused, requested him not to report the matter. In cross-examination he admitted that Pir Bakhsh accompanied him and his wife Mat. Asho to the police station for lodging the report but Malik Iqbal Channar, Advocate did not accompany him. He was confronted with his police statement under section 161, Cr. P.C. where certain things were not mentioned which he had stated before the Court. It was for example not stated in his police statement that Khan Muhammad accused committed. Zina in his presence. He stated that he did not get sworn in his affidavit to the effect that he had not seen the occurrence. He was shown affidavit mark 'A'. According to him he did not get it scribed and attested from an Oath Commissioner and his father Ghulam Haider did not identify him before the Oath Commissioner. He further denied the suggestion t: at after the occurrence and during the medical examination of his wife Mst. Asho, he committed sexual intercourse with her. He stated that leg of Mst. Asho was bleeding after the occurrence, however. the blood did not stain her Shalwar. According to him he was not aware about the enmity of Malik Muhammad Iqbal Channar, Advocate with Malik Naeem Chairman. He has further admitted that at the time of occurrence Manzur co-accused was a member of union council. He denied the suggestion that at the instance of Malik Muhammad Iqbal Channar this false case was got registered and that Khan Muhammad accused did not commit Zina with Mst. Asho P.W. and that after committing sexul intercourse with her he got registered this false case.

8. S.-I. Ahmad Din (P.W. 8) is the Investigating Officer' in this case. In cross-examination this police officer has admitted that there was no sign of struggle at the place of occurrence when Me-made the spot inspection. He got medically examined Mst. Asho on 8-8-1981. He has admitted that Malik Naeem Chairman Union Council Khanuwali, produced Khan Muhammad accused before him. He has admitted that during the investigation 4 accused persons were declared as innocent while Khan Muhammad accused was found as guilty and challan was submitted against him only. He has further admitted that during the police investigation many persons appeared about the innocence of the accused. They appeared before the D.S.P. and not before him. He denied the suggestion that he registered this case falsely at the instances of Malik Iqbal Channar, Advocate. He was not aware of any dispute between Malik Iqbal Channar, Advocate and Malik Naeem, the then Chairman of the union council. He denied the suggestion that he falsely investigated this case.

9. Khan Muhammad accused in his statement recorded under section 342, Cr. P.C. denied the prosecution allegations. He had stated that the P.Ws. were false and inimical witnesses towards him and were related inter se. When asked if he wanted to say anything else, he stated as under:- "I am innocent. Due to political rivalry this false case has been made. I belong to the group of Malik Muhammad Naeem Ex-Chairman of Union Council Khanuwali while the complainant party belongs to Mali k Muhammad Iqbal Channar Advocate Bahawalpur who got registered this false case." He produced one witness in his defence.

10. Allah Bakhsh (D.W. 1) has deposed that he knew Khan Muhammad accused who is son of Malik Hayat. Manzur co-accused is brother of this Malik Hayat. In other words he is the uncle of the accused. He further stated that Khan Muhammad accused is the son-in-law of said Malik Manzur co-accused. This witness has further stated that he appeared before the police about the innocence of all the accused persons. According to him Malik Naeem and Malik Muhammad Iqbal, Advocate head two party factions in the village. Khan Muhammad accused his father-in-law Manzur co-accused and his family members were with Malik Naeem. The complainant party on the other hand, belonged to the group of Malik Iqbal Channar, Advocate. It is further stated by him that the said co-accused Malik Manzur was the member of the union council. The group of Malik Iqbal Channar, Advocate moved no-confidence motion against Malik Naeem Chairman. Khan Muhammad accused and his father-in-law Manzur co-accused were falsely involved in this case so that Malik Menzur voted for Malik Iqbal Channar group. According to the witness the accused was a thorough gentleman. In cross-examination this witness has admitted that. Malik Alif Channar was murdered and the witness was an accused of his murder. Volunteered the case was false against him which was registered 30 years before. He was awarded life imprisonment but was acquitted by the High- Court. He did not state before the police that Khan Muhammad accused committed Zina-bil Jabr with Mst. Asho. He denied the suggestion that he had made a false statement and that there was no party factions.

11. Khan Muhammad accused tendered in evidence certified photostat of affidavit of Mst. Sabina P.W as Exh.D.B and certified photostat of affidavit of Muhammad Ashiq P.W. as Exh. D.D. and closed his evidence.

12. The trial Court convicted and sentenced Khan Muhammad accused as mentioned above.

13. He has challenged his conviction and sentences through the present appeal.

14. I have heard at length the counsel for the parties who have also taken me through the entire material available on the record.

15. It is vehemently contended by the learned defence counsel that the delay in lodging the F.I.R. and delay in the medical examination of Mst. Asho has not been satisfactorily explained by the complainant party. As regards the delay in medical examination of Mst. Asho prosecutrix it is suggested that during this period her husband Ashiq P.W. might have committed sexual intercourse with her, therefore, her medical examination and the report of the chemical examiner regarding vaginal swabs, have no significance. Another argument advanced by the defence counsel is that the broken string of the Shalwar of the prosecutrix was not taken into possession by the Investigating Officer and no explanation has been offered for having done so.

16. The most important arugment advanced in this case is the improbability of the story that Khan Muhammad accused would commit Zina-bil-Jabr, not only in the presence of, but with the help of his own father-in-law. According to the defence counsel this was most unnatural for the accused to commit Zina-bil-Jabr with the help of 4 other accused persons who were found innocent even by the police during the investigation and were placed 'in column No. 2 of the Challan. The Investigating Officer has further admitted that during the investigation many persons appeared before the D.S.P. regarding innocence of the accused. The learned State counsel could not satisfy me whether an ordinary man, would dare to commit Zina-bil-Jabr with the help of his own father-in-law or conversely would any father-in-law be a party in such a crime. In this connection it is worth mentioning that another eye-witness Pir Bakhsh who is closely related to the prosecutrix Mst. Asho did not support the prosecution version. As mentioned above he is real maternal grand-father of Mst. Asho and was cited as an eye-witness but was declared hostile and cross-examined by the public prosecutor. The learned State counsel again could not offer any statisfactory explanation why such a close relation of the complainant did not support the prosecution although he was cited as an eye-witness.

17. As mentioned above the complainant initially involved 5 persons out of whom 4 were found innocent during the investigation. It is surprising that the complainant and her husband even in their statement before the trial Court have stuck to the same position namely i.e. that even those 4 accused persons had participated in the occurrence, but the trial Court did not believe that part of their statement, otherwise no legal bar for the trial Court to summon the said other four persons as accused persons. Finding those 4 accused persons as innocent by the investigating agency and non-summoning of them by the trial Court as accused persons shows that even the trial Court did not believe that part of the prosecution evidence. The grievance of the defence counsel is that the same set of the prosecution witnesses has been relied upon against the present appellant although the said witnesses have clearly been disbelieved by the trial Court. According to the defence counsel the case of the present appellant stands at par with those four persons and is not in any way distinguishable from them. According to him the same benefit should have been extended to the present appellant as well. The Investigating Officer has admifted that many respectables of the village appeared before the D.S.P. regarding the innocence of all the accused persons including the present appellant.

18. The defence counsel has also argued that the present case is the result of political rivalry between Malik Naeem Exh. Chairman of the union council and the present Chairman Malik Muhammad Iqbal Channar, Advocate. It is an admitted fact that the accused party belongs to the group of Malik Naeem while the complainant party is the supporter of Malik Muhammad Iqbal Channar, Advocate. It is also not denied that Malik Manzur one of the co-accused is member of local union council and there was no-confidence motion against the Chairman Muhammad Iqbal Channar, Advocate. This political rivalry is not only suggested by the defence but is also admitted by the complainant party.

19. As regards the medical examination of Mst. Asho Mai prosecutrix the case of the complainant party was that she was given a stick blow by one of the accused persons i.e. co-accused Manzur Ahmad and due to that leg was broken and was bleeding. However, her medical examination Exh. P.A. by the lady doctor is completely silent in this behalf. The learned State counsel did not seriously press the report of the chemical examiner regarding vaginal swabs because the possibility of Mst. Asho having sexual intercourse with her own husband during the period of occurrence and her medical examination cannot be ruled out.

20. After taking into consideration the relevant facts and circumstances of the case I have reached the conclusion that the prosecution has not been able to establish the guilt of the accused beyond reasonable doubt. The case of the prosecution suffers from so many infirmities which create serious doubts. Accordingly, while giving the benefit of doubt to the appellant, I accept this appeal, set aside the conviction and sentences of Khan Muhammad appellant and acquit him of the charge. He shall be released forthwith if not required in any other case. S. G. D. Appeal accepted.