2001 PLP 3274 (YLR)

Mian Jamil Akhtar for Appellant. Nazar Abbas Syed and Muhammad Gulzar Ahmad Khan Lashari for Respondents. Date of hearing: 17th July, 2001 This appeal has been directed against the judgment, dated 7‑10‑1997 passed by the learned Sessions Judge, Jhang in case F. I. R. No. 54 registered on 9‑4‑1996 under section 354‑A, P.P.C. at Police Station Qadirabad, District Jhang on the complaint of Khan Muhammad P.W.3, who is father of Mst. Shamim and Mst. Nasim, P.W.1 and P.W.2 respectively, whereby respondents 1 and 2 were acquitted.

2. Brief facts of the case are that on 8‑4‑1996, at about 12‑00 noon, Mst. Shamim P.W.1 and Mst. Nasim P.W.2 daughters of the complainant were washing clothes at Ahmadwala Watercourse, near the machine of one Allah Bakhsh in open place. All of a sudden, there came accused namely; Sajjad and Muhammad Riaz, armed with dagger and pistol respectively. Accused Sajjad caught hold of Mst. Shamim and started dragging her while Muhammad Riaz respondent tore open her shirt and Shalwar and also broke open the string of her Shalwar and made her naked. According to the complainant all of her private parts were exposed. They raised Lalkaras hence nobody came near the victims. The occurrence according to the complainant has been witnessed by him who is father, Allah Dad and Muhammad Bakhsh and many other persons. As has been alleged, motive of the occurrence according to the complainant is that the accused suspected Ghulam Muhammad son of the complainant was carrying on illicit relations with their sister Mst. Maryam and on this suspicion they had committed this occurrence.

3. Inspector Muzammal Hayat P.W.5 recorded the F.I.R. and visited‑ the place of occurrence, recorded the statements of the witnesses and after arresting the accused, submitted the challan in the Court and the Court framed the charge under section 354‑A, P.P.C. against the accused which was denied by them.

4. The prosecution in support of its case, produced as many as five witnesses, Mst. Shamim P.W.1 who is victim of the crime and her sister Mst. Nasim as P. W .2 and their father Khan Muhammad complainant as P.W.3, P.W.4 Muhammad Younis, Head Constable who recorded the formal F.I.R. and P.W.5 Inspector Muzzamil Hayat, Investigating Officer.

5. In their statements under section 342, Cr.P.C. the accused refuted the allegations levelled against them and took plea of innocence and when they were questioned that why this case has been made against them, they stated that Ghulam Muhammad son of the complainant and brother of victim committed Zina‑bil‑Jabr with Mst. Maryam their sister and this case was registered to foreclosing initiation of any criminal action against them. They stated that the total story was baseless and concocted one.

6. The learned trial Court after hearing the arguments of both the parties acquitted the accused of the charge framed against them. The complainant Khan Muhammad P. W has filed this appeal against the impugned judgment and prays for setting aside of same and for the conviction of respondents Nos. 1 sod 2.

7. Learned counsel for the petition has contended that the prosecution ha succeeded in proving the case against respondents Nos. 1 and

2. The statements of eye‑witnesses P. W. 2 and P. W. 3 have supported the version of the victim and there is no material contradiction in their statements. The learned trial Court has acquitted the accused without discussing the evidence. He has further contended that bare perusal of their statements would show that they have supported each other on the material points and there is no contradiction and discrepancy. He further contends that there was no previous enmity between the petitioner and respondents Nos. 1 and 2.

8. On the other hand learned counsel appearing on behalf of the respondents Nos. l and 2 has contended that the judgment is based on record and evidence and is liable to be upheld in the circumstances of the case. He further contends that there are material contradictions in the statements of the eye witnesses and the case had been got lodged on the critical enmity of respondents Nos. 1 and

2. He also contends that according to the witnesses P.W.1 Mst. Shamim was caught hold and was dragged but no injury has been mentioned anywhere on her body by the eye witnesses, no injury during the occurrence. He further contends that it was claimed by the complainant that the string of her Shalwar was broken and the clothes were torn which were produced before the police which had not found that the clothes were torn and the string of the Shalwar was broken. He further contends that no witness has been produced to prove the recovery of the clothes of the victim. He further contends that Mst. Shamim and Mst. Nasim P.W.1 and P.W.2, respectively were produced in the Court by the Investigating Officer after 14‑15 months of the occurrence, hence their statements are not worthy and their statements are liable to be brush aside on this score. He relied upon 1994 SCMR

570. He further contends that nothing was taken into possession by the Investigating Officer at the spot to prove the version of the complainant that they were washing clothes. It is also contended that P.W.3 in his examination‑in‑chief has stated that he produced clothes at the police station but in his cross‑examination he took different stand. Learned counsel for the respondents further contends that the judgment is based on evidence and is well‑reasoned and is liable to be maintained in the circumstances of the case.

9. I have heard the learned counsel for the parties and also perused the record carefully. The prosecution has produced Mst. Shamim P.W.1 and Mst. Nasim P.W.2 and Muhammad Khan P.W.3 to prove the case against the respondents. The learned trial Judge has acquitted the respondents by dis believing the evidence produced by the prosecution and has found that the prosecution evidence is not trustworthy and cannot be believed without any corroboration which is not available in this case. I have noticed that Mst. Nasim P.W.2 claims that she was caught hold and was dragged by the accused persons. On the other hand Mst. Shamim P.W.2 stated that no injury was received during the occurrence. No medical examination was conducted of the victim to corroborate this portion of statement of the victim and receiving of the injuries. Both the eye‑witnesses are contradictory on this portion of the statement. Similarly the victim and the complainant claimed that the shirt of the victim was torn and string of the Shalwar was also broken by the accused upon which she became naked. The colthes were produced before the Investigating Officer and it has been noticed by the trial Court while passing the judgment that string of the Shalwar was not borken and the cothes were not torn. P.W.1 claims that clothes were taken by his father immediately after the incident. Hence this fact is not supported by the other piece of evidence produced by the complainant during investigation before the police. Similarly P.W.2 is the younger sister of the victim. She also claims that the string of the Shalwar was broken. It is strange that P.W.2 was also present at the spot and she was also a young girl. Some motive was available against her but she was not treated in the like manner by the accused. P.W.1 has stated that accused Riaz was standing on their head brandishing his pistol and Sajjad accused had a Chhura in his hand. P.W.3 father of both the victims was present but was not given any injury during the occurrence by the respondents who had allegedly had taken the law in their hands and had committed such a heinous offence. The presence of the complainant at the spot at the time of occurrence has not been duly explained by him. The presence of P.W.2 at the spot is doubtful because she was also a young girl but had not even been touched by the accused who had allegedly come to damage the honour of complainant's family due to suspicions of illicit relations with their sister of the brother of the victim and they had not caught hold of her and had not dragged her. The presence of both the witnesses at the spot as the accused had not taken any action against both of them cast doubt regarding their presence at the spot. The story narrated by P.W.1 Mst. Shamim is not corroborated by any piece of evidence. All the three witnesses are consistent on the view that this occurrence had taken place as the accused suspected that their brother had illicit affair, with their sister Mst. Maryam and had committed the ciriminality due to this reason. The accused when were asked that why this case is against them had taken a stand that the complainant party had got lodged this criminal case to foreclose the lodging of criminal action at the instance of the accused against Ghulam Muhammad brother of the victim Mst. Shamim who had subjected the sister of the accused Mst. Maryam to Zina‑bil‑Jabr. Their stand is that the registration of the case is due to the reason to save the skin of the brother by the victim and all the family members had stated against them due to this reason. The admission the accused about the commission of Zina‑bil‑Jabr by Ghulam Muhammad with their sister Mst. Maryam cannot be taken lightly as due to this stand their honour a respect has been lower down and they cannot take this stand just in order to sa themselves from punishment. This fact has also been admitted by the complainant and other witnesses that the accused suspected illicit relations with their sister by Ghulam Muhammad hence all the three witnesses who are father and the daughters alone are not sufficient to connect the accused with the commission of the cirme and their evidence has to be taken into consideration with due care and caution. Their statements required to be corroborated on each and every point through an independent source which is lacking in this case. The stand taken by the three P.Ws. that string of the Shalwar had been broken has not been found to be correct rather it has been found to be false. Similarly the non‑production of the victim before the doctor after the incident of dragging seems that the occurrence had not taken place in the manner as narrated by the complainant party. There is no evidence on the record to support the statements of three witnesses hence their statements are not sufficient to connect the', respondents with the commission of the crime. I have perused their statements which' are not confidence‑inspiring and I find that these are not sufficient for the conviction of the respondents without any independent corroboration. Even otherwise this is an appeal against acquittal which can only be accepted if the judgment is perverse and against the evidence on the record. The reasons given by the trial Court for the acquittal of the respondents from the charge in this case have been borne out from the evidence on the record and it cannot be said that the judgment has been passed on surmises and conjectures. The principle laid down in judgments reported as " 1992 SCMR 489", and "1995 SCMR 635", in which it has been held that the standard for appreciation of evidence while hearing the appeal against acquittal is differnet than the hearing of~ appeal against conviction. This view has also been taken in "PLD 1992 SC 254", "PLD 1992 SC 336", "PLD 1992 SC 863" and "1998 SCMR 1281". Now it has been finally settled that in appeal against acquittal the judgment can be set aside and conviction can be based on different principles of appreciation of evidence which is usually considered during the hearing of appeal against conviction. The evidence produced by the prosecution has rightly been disbelieved by the trial Court and the learned counsel for the appellant has failed to point out any illegality or impropriety in the impugned judgment.

10. For the foregoing reasons this appeal has no merit and is dismissed and the impugned judgment passed by the learned trial Court is maintained. H.B.T./K‑88/L Appeal dismissed.