2017 PLP 58 (YLRN)

MAZHAR IQBAL SIDHU, J.

Khalid Mehmood, appellant in the appeal, as mentioned above, has impugned the punishing judgment handed down by the learned Additional Sessions Judge, Sangla Hill on 13.02.2010, having been tried along with his co-accused Shakil Muhammad and Hanif in a case registered vide FIR No. 316 dated 17.08.2007 under sections 365-B/ 376, P.P.C. at Police Station Sadar Sangla Hill, District Nankana Sahib sentenced as follows:-- "Convicted under section 365-B, P.P.C. and sentenced to undergo life imprisonment with fine of Rs.10000/- and in default whereof to further undergo two months simple imprisonment. Convicted under section 376, P.P.C. and sentenced to undergo ten years rigorous imprisonment with fine of Rs.10000/- and in default whereof to further undergo simple imprisonment for two months. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C."

2. Complainant Mohary Khan (PW-2) submitted complaint (Exh-PB) on 17.08.2007 at 02:15 p.m. before Muhammad Ikhlaq, SI, P.S., mentioned op-cit on the basis of which formal FIR (Exh-PB/1) was chalked out.

3. Facts abbreviatio disclosed by the complainant in complaint (Exh-PB) are that he was resident of Balochan Gharbi and cultivator by profession. On 14.08.2007 he was coming back to his house after watering his fields, when he reached nearby his house at 11:30 a.m., he witnessed that Khalid Mehmood, appellant and his two brothers namely Hanif and Shakil were forcibly kidnapping his daughter namely Mst. Sughran Bibi aged 18 years and on raising hue and cry Asghar Ali and Khursheed neighbors reached there and also witnessed the occurrence. The appellant with the assistance of his said brothers and two unknown companions abducted his daughter for the purposes of zina.

4. The investigation in this case was conducted by Muhammad Yaqoob, SI, who while appearing as (PW10) deposed that on 17.08.2007 he visited the place of occurrence; after inspecting the place of occurrence, he prepared un-scaled site plan (Exh.PF) and recorded statements of the PWs; on 22.08.2007, he along with other police officials was present at Kot Nacca Phatik, a motorcycle No. 5906/ GAL towards Marh Balochan which was driven by a man and on the rear seat of the motorcycle a woman was sitting; he stopped the said motorcycle for checking, the whereabouts of the driver were known as Khalid Mehmood whereas name of woman was told Sughran Bibi. After knowing the whereabouts of the said persons, he recognized that they were accused in case FIR which was registered at PS Sadar Sangla Hill; he arrested both of them and the motorcycle was taken into possession under section 550 Cr.P.C. vide recovery memo (Exh.PC) which was attested by Muhammad Alam 391-C and Liaqat Ali 290- HC. After interrogation of the above said persons namely Khalid Mehmood and Sughran Bibi it was found that Khalid Mehmood had abducted Mst. Sughran Bibi against her will. So, he recorded statement of Mst. Sughran Bibi under section 161, Cr.P.C. and on the same day, produced her before the learned Illaqa Magistrate for recording her statement under section 164, Cr.P.C. whereas physical remand was requested for Khalid Mehmood accused. The learned Illaqa Magistrate recorded the statement of Mst. Sughran Bibi under section 164, Cr.P.C. and also granted the physical remand of Khalid Mehmood till 28.08.2007; after getting permission of the learned Illaqa Magistrate, abductee Mst. Sughran Bibi was medically examined by lady Dr. RHC Warburton; after medical examination of Sughran Bibi Lady doctor handed over to him a sealed parcel said to contain swabs along with one sealed envelope as well as medical report of Mst. Sughran Bibi; he handed over the said sealed parcels to the Moharrar. On 27.08.2007 on his disclosure and pointing out, the appellant got recovered pistol 30 bore from a residential room of his house lying in a a paiti, took the same into possession vide recovery memo (Exh.PE) attested by the PWs, recorded his statements, prepared un-scaled site plan of the place of recovery (Exh.PG), after recovery proceedings the case property was handed over to the moharrar for safe custody. On 28.08.2007, the appellant was sent to judicial lock up. On 01.09.2007 he recorded the statements of the PWs regarding the parcels. During the investigation, he found the appellant guilty of the offence. Jahangir Khan, SI also investigated the case. He while appearing as (PW09) stated that he joined Hanif and Shakil in the investigation and found them innocent.

5. Learned trial court after observing all the pre-trial codal formalities, indicted the appellant to which he pleaded non-culpabilis and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case. The prosecution to prove its case produced 11 prosecution witnesses.

6. Medical evidence was adduced through the statement of Lady Dr. Tahira Abbas, WMO. (PW11), who medically examined Mst. Sughran on 22.08.2007. She deposed that at the time of examination, Mst. Sughran was in the menstruation, pubic hair previous shaved. Clitoris, labia majora and minorae were well developed. Forcette torn, posterior, commissure present. Hymen was torn, posteriorly and laterally, tears were healed completely and the vagina was three finger admitting easily. OPINION "In her opinion, she might be subject to the sexual intercourse and final opinion will be expressed on receipt of the report s from the Chemical Examiner and the Serologist. Exh.PH was correct carbon copy of the MLR.".

7. Thereafter learned ADPP renounced PW Khalid, Muhammad Alam 391-C as being de-trop and by tending reports of Chemical Examiner (Exh.PJ) and that of Serologist (Exh.PK) closed the prosecution evidence.

8. Afterwards the statement of the appellant under section 342, Cr.P.C. was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He, however, neither opted to adduce evidence in his defence not to appear as his own witness under section 340(2), Cr.P.C.

9. The appellant in reply to a question "why this case against you" answered as follows:-- "The complainant victim and PWs are closely related to each other, who after consultation registered the false case and deposed falsely against me because they demanded rishta of Saima for their son Imran. Saima is my real sister Imran like he Saima we refused to give the Rishta of Saima. They compelled us on our refusal of Rishta they made the false story regarding abduction and zina. I am innocent and falsely implicated in this case."

10. Upon conclusion of the trial, appellant was convicted and sentenced as mentioned op-cit by the learned trial Court whereas his co-accused Shakil Muhammad and Hanif were acquitted of the charges. Hence, the appeal.

11. Contends that the case was registered against the appellant along with his two brothers namely Hanif and Shakil Muhammad as well as two unknown persons who were never traced out; Hanif and Shakil were not only found innocent partway investigation but the learned trial court had disbelieved the prosecution evidence qua them and they have been acquitted; no eye-witness of the incident of zina exists except statement of Mst. Sughran Bibi, alleged victim but her statement has not been found corroborated by her medical examination reason being that her vagina admitted three fingers easily as per observation of the woman medical officer; her private parts demonstrated exercise of multiple intercourse and the seminal positive report has no help with the prosecution because the incident was reported after three days of its coming-off whereas her medical examination was carried out after eight days of the incident. Learned counsel has submitted that the prosecution has cooked up a story, in fact the complainant party demanded hands of Mst. Saima, real sister of the appellant for Imran who the son of Manday Khan complainant, in these circumstances it has been submitted with vehemence that learned trial court has erred in holding the appellant guilty and for convicting him, therefore, appeal may be accepted.

12. Learned Additional Prosecutor General has opposed the arguments and by referring contra arguments submitted that the statement of the alleged victim solo is sufficient as the report of the Chemical Examiner as to vaginal swabs is positive and law does not permit any person to commit forcible zina even against a prostitute and that learned trial court has rightly come to the conclusion in convicting and sentencing the appellant.

13. Heard intently. Record perused.

14. The incident allegedly took place on 14.08.2007 11:30 p.m. (night) when victim Mst. Sughran Bibi, daughter of the complainant was alone whereas the matter was reported on 17.08.2007 at 02:15 p.m. against a delay of three days. The time of incident is very crucial almost mid of the night was chose for the alleged abduction and this time is interpreted by innocence of two nominated accused persons namely Hanif and Shakil and non-tracing out of two unknown persons then no other inference is construed except that the appellant was alone and Mst. Sughran Bibi alleged victim did not resist her abduction or enticing or taking away. Even alleged witnesses mentioned in the FIR including Manday Khan did not try to rescue the befalling of incident. In these circumstances, the Court has inferred irresistible output that the charge under section 365-B, P.P.C. has not been proved by the prosecution even otherwise no evidence has been brought on the record whether the alleged victim was found to reside with the appellant during the period of her abduction/zina. Both the appellant and the victim were captured by the police but the victim did not raise any hue and cry by facing the police and it was the police who after interrogation captured both of them. Even there is nothing on record to indicate that she ever tried to free herself from clutches of the appellant.

15. Now coming to the indictment of zina-bil-jabr (PW01) Mst. Sughran Bibi is the sole witness of this incident. During her cross-examination, she has categorically admitted that she nominated Khalid appellant only claiming having caused her injuries while forcibly committing zina with her. Her clothes were torn but nothing of any sought has been found available on the record. To appreciate this allegation, statement of the woman medical officer Ms. Tahira Abbas is very crucial. She observed as follows while examining her:-- "GENERAL PHYSICAL EXAMI-NATION She was a girl aged approximately 18 years having medium physique with blood pressure 120/80, Temp 98-F*, pulse 68 per minute and respiration 14 per minute. EXTERNAL EXAMINATION Breasts well developed, firm nipples small, areole brown in colour with no oozing in passing. EXAMINATION ON PRIVATE PARTS At the time of examination, she was in the menstruation, pubic hair previous shaved. Clitoris, labia majora and minorae were well developed. Forcette torn, posterior, commissure present. Hymen was torn, posteriorly and laterally, tears were healed completely and the vagina was three finger admitting easily. INTERNAL EXAMINATION On P/V examination uterus was antiverted, and of normal size with normal mobility. Cervix and nulliparous. Three vaginal swabs were taken, sealed and handed over to the police to get examined by the Medical Examiner, Lahore for detection of semen, and one swab for grouping of the semen by the Serologist, Govt. of the Punjab, Lahore. OPINION "In her opinion, she might be subject to the sexual intercourse and final opinion will be expressed on receipt of the reports from the Chemical Examiner and the Serologist. (Exh.PH) was correct carbon copy of the MLR.".

16. She further admitted in her cross-examination that the signs of vaginal canal proving undergoing of multiple intercourses. In these circumstances, physical situation of the private parts of the body of the victim could not depict these signs within a period of week. So, imprisonment for life under section 376, P.P.C. appears to be inadequate as well as excessive, therefore, by maintaining the conviction of the appellant under section 376(1), P.P.C., his quantum of sentence is reduced to ten years from imprisonment for life by extending benefit of section 382-B, Cr.P.C., whereas the appellant is acquitted under the charge of section 365-B, P.P.C. The amount of fine shall remain intact and in its lieu the period of further sentence. Modifying the impugned judgment, appeal stands partly allowed and partly dismissed. HBT/K-30/L Sentence reduced.