1993 P Cr (PLP)

"About 5/6 months back at about 2-00/2-30 a.m. (night) it was raining. I was asleep in my house when Sikandar Hayat accused sat on my cot. He tried to unfasten the string of my Shalwar. I resisted and grappled with him. In that process I and Sikandar Hayat accused got out of the room and I started raising hue and cry. Amin and Akbar P.Ws. arrived there. On seeing them, the accused while leaving his clothes fled away. My shirt and Shalwar were torn in that process. My husband was asleep in the Dera at that time in order to guard the cattle and I was alone on the place of occurrence. I went to the police station where I reported the matter and the police recorded my statement Exh.PA. which was read over to me and I thumb-marked the same in token of its correctness. When the police arrived on the spot to investigate the case I produced the clothes of the accused Parna P.I, shirt P.2 and woollen Jarsi P.3 and identity card of the accused P.4 which were taken into possession vide recovery memo. Exh.P.B. attested by me, my husband Faqir Sain and Muhammad Akhtar P.W. I also produced my torn clothes shirt P.5 and Shalwar P.6 to the police which were taken into possession vide recovery memo. Exh.P.C. attested by me, my husband Faqir Sain and Muhammad Akhtar P.W. P.W.4 Faqir Sain, recovery witness of the production of clothes of the appellant by Fatima Bibi. P.W.5 Abdul Rashid, Head Constable. He recorded formal F.I.R. on the statement of Mst. Fatima Bibi at the police station. P.W.6 Fazal Hussain, S.I. the Investigating Officer. C.W.1 Muhammad Khan, L.H.C. formal witness. On his examination under section 342, Cr.P.C. the appellant took his defence as under:-- "I have been falsely involved in this case. As a matter of fact two days prior to the alleged occurrence, Muhammad Afzal son of Faqir Sain came to me and asked me to hand over some photograph of his sister Mst. Yasmin with me. I declined to have any such photograph whereupon he made a quarrel with me. On 12-2-1992 at about 6-00 p.m. I came across Mst. Fatima Bibi, P.W., the mother of said Afzal. She talked to me about the said quarrel and asked me to visit her at about 8/9 p.m. on the same day when Muhammad Afzal would also be present and that she would get the matter patched up. I went in the street in front of the house of the said Faqir Sain. I knocked at the door. Mst. Yasmin aforesaid came outside. I asked her to call her mother Mst. Fatima Bibi and she informed me that her mother was in the Haveli. In the meanwhile Afzal aforesaid came there. On seeing me in the street, he grappled me, torne my clothes. My identity card fell on the ground when my front pocket was torn. He took the identity card in his possession and Mst. Fatima Bibi fabricated this entire case against me at the instance of Muhammad Afzal aforesaid. The P.Ws. are relatives and party-men of Faqir Sain, husband of Mst. Fatima Bibi and father of Muhammad Afzal. They supported the false allegation just because of party faction. I respect Mst. Fatima Bibi P.W. She is my mother-like lady." Muhammad Tufail was examined in defence and appellant also produced a copy of newspaper Millat dated 13-8-1992. However, the learned Additional Sessions Judge, Sialkot found him guilty for the offence and convicted him for the same as mentioned hereinabove. Hence this appeal.

3. Ch. Muhammad Nawaz Sulehria, Advocate, appeared for the appellant and Mr. Masood Sadiq Mirza, Advocate, appeared for the State. The learned counsel for the appellant in support of his appeal took the following grounds:-- (i) The incident has taken place on 13-2-1992 whereas the report has been lodged on the same day at about 5-00 p.m. Hence there is inordinate delay in lodging the F.I.R. (ii) There is material contradiction in respect of the recovery of the identity card of the appellant. According to P.W. Muhammad Amin it was lying outside the shirt whereas Mst. Fatima Bibi has said that it was lying outside it. (iii) The night was dark and raining, hence identification of the appellant was not possible. (iv) A dispute between Muhammad Afzal son of Mst. Fatima Bibi and the appellant over a joint photograph of Mst. Yasmin had taken place. Thus, Mst. Fatima had called him for settlement in the late evening where a scuffle between him and Muhammad Afzal took place and the case was registered against him. (v) The sentence is severe.

4. To support his contentions the learned counsel for the appellant took me through the F.I.R., the statements of the prosecution witnesses, the appellant and the defence. It may be pertinent to observe that the appellant has admitted for having gone to the house of complainant, scuffle had taken place between him and Muhammad Afzal and leaving of his identity card there. Witness Mst. Fatima Bibi has stated that the appellant trespassed into her house and attempted to commit rape upon her. She has further deposed regarding her scuffle with the appellant and recovery of his clothes and identity card at the spot. P.Ws. Muhammad Amin and Akbar Ali have fully supported her version. The witnesses reside within the vicinity. Their presence at the place is natural. Their positive evidence will not suffer from any' defect if no one else from the locality was examined. The identity card of the appellant was recovered from the place. Whether it was inside the pocket or outside it makes no difference. Admittedly the appellant was already known to the witnesses prior to the incident. Complainant had grappled with him. She had the full opportunity of identifying him at that time. Witnesses Muhammad Amin and Akbar Ali had positively identified him. In such view of the fact there cannot be any mistaken identification. No doubt there is a few hours delay in lodging of the F.I.R. In such cases where an honour of a female member of a family is at stake the complainant party takes some time to report. Only one person has been implicated. No enmity existed between the parties prior to the incident. The delay of few hours, therefore, is not fatal to the prosecution.

5. In cross-examination to the witnesses the appellant has tried to scandalize Mst. Yasmin a young daughter of complainant Mst. Fatima Bibi. Even in his statement recorded under section 342, Cr.P.C. he has taken the same stand. It was the onerous duty of the learned trial Court to have given full protection to witness Mst. Fatima Bibi during cross-examination. The learned trial Court should have taken aid of Articles 144, 145 and 146 of the Qanun-e -Shahadat,1984, in that respect. The Articles reads as under:-- "

144. No such question as it referred to in Article 143 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.

145. If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any Advocate, report the circumstances of the case to the High Court or other authority to which such Advocate is subject in the exercise of his profession.

146. The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they, relate to facts in issue, or to matter, necessary to be known in order to determine whether or not the facts in issue existed."

6. Even through defence witness the appellant had tried to scandalize the complainant. The learned trial Court has, indeed, rightly rejected his defence. The copy of the newspaper is of the date much later than the incident hence it has no relevancy with the case.

7. The grounds taken by the appellant in his appeal, therefore, fail, besides, no benefit of doubt can be extended in favour of the appellant.

8. Even otherwise, I have gone through the evidence of P.Ws. Muhammad Amin, Akbar Ali and Mst. Fatima Bibi. Their evidence inspires confidence. The learned Judge rightly relied upon the same. The learned Additional Sessions Judge has properly assessed the evidence and has arrived at right conclusion. I see no reason to take a different view than that. The appeal is dismissed accordingly. There is no mitigating circumstance to reduce the sentence of the appellant. The appellant is present on bail. He be taken into custody to serve out his sentence.

9. Appeal disposed of accordingly. N.H.Q./808/FSC Appeal dismissed.