1968 P Cr (PLP)

Major Waheed-ud-Din for A.G. for the State. Date of hearing: 9th July 1968. The appellants in this case are seven. They are Amira (29), Farid (32), Ramzan (27), Ghulam (32), Allah Wasaya (42), Ashiq (23) and Pir Bakhsh (46). They are inter-related. Amira, Ramzan and Farid are real brothers. Ghulam and Allah Wasaya are also brothers. Ashiq is son of Pir Bakhsh. The appellants were tried by Mr. M. Y. Bajwa M I. C. with section 30 powers, Multan, and were convicted under sections 148/458 and 366 read with section 149, P. P. C. They were sentenced under section 148 to one year's R. I., under section 458, P. P. C. to six years' R. I. and under section 3,66, P. P. C. to six years' R. I. The sentences were made to run concurrently.

2. The incident took place on the 25th December. 1964, in the early hours of the morning at about 4-00 a.m. in the limits of Sultanpur Humber, inside the residential house of. Khuda Bakhsh P. W.

2. The version of incident, as furnished by P. W. Khuda Bakhsh in the F. I. R., which he lodged with Police Station Sadar, Multan, on the 26th December 1964, at 12-15 p.m., was that on the night between 24 /25th of December 1964, complainant Khuda Bakhsh with his wife Mst. Nuran, his father Ghulam Rasool, his brother Rarnzan were sleeping inside their house. The door of their house was broke open and the appellants along with discharged accused Nabi Bakhsh entered the house. Ghulam Rasool, Khuda Bakhsh, Ramzan and Sultan were injured by the appellants who were armed with hockey sticks, and dangs while Mst. Nuran was removed forcibly having caught hold by Farida and Pir. Bakhsh. She was taken away and at some distance from the place of the incident she was put into a tonga belonging to Muhammad Hussain. At some distance, the tonga got broken and then she was put into the tonga of Din Muhammad P. W. She was taken to Mumtaz Abad, Multan City, where she was kept for some time in the house of Nabi Bakhsh ail Ust. Elahi (discharged accused). She was from there taken to Tatepur on a camel and once again. from there she was taken to the dera of one Haq Nawaz Sangi and was detained there for one or two days. It was there that Farida appellant subjected her to rape, according to the testimony of Mst. Nuran P. W.

3. From there Allah Wasaya and Pir Bakhsh appellants took her into a jungle where she was detained for about ten days and it was from there that she got an opportunity of slipping away She succeeded in her attempt and returned to her house on the 15th of January 1965, and the next day she was examined by the Police. The injuries on the person of Khuda Bakhsh, Ghulam Rasool, Muhammad Ramzan and Sultan, according to P. W. 21 Dr. Imtiaz Ahmad, Medical Officer Civil Hospital, Multan, who had examined them on the 25th December 1965, were simple and in the opinion of the doctor were caused with blunt weapon. The case was investigated by Muhammad Sadiq A. S. I. P. W. 12, who recovered tonga from near the place of the incident. Appellant Ramzan was arrested on the 11th January 1965, Ghulam on the 30th May 1965, Allah Wasaya and Pir Bakhsh on the 23rd July 1965 while Ashiq was arrested on the 25th July 1965. They all pleaded not guilty to the charge and stated that they were falsely involved in the case. Here it may be added that it was the prosecution case that the wife of Pir Bakhsh appellant was abducted some - time before the occurrence and she was detained in the house of Ghulam Rasool father of Khuda Bakhsh P. W. 2 and that on this account the appellants nursed the grudge against him. On another occasion when the wife of Khuda Bakhsh was missing from his, house he suspected once again that the complainant party may have given shelter to her. In the wake of this suspicion, it is the prosecution case that the appellants attacked the house of Khuda Bakhsh and abducted his wife Mst. Nuran.

3. The appellants denied that anything of the sort had happened between them.

4. It will also be material to state that on four different occasions the different appellants were paraded before the different prosecution witnesses with a view to identifying them. The first parade was held on the 22nd January 1965. It was supervised by P. W. 13 Nurullah Khan, Naib-Tehsildar in which P. W. Khuda Bakhsh, P. W. Mst. Nuran, P. W. Muhammad Hussain and P. W, Din Muhammad correctly picked up Ramzan appellant. The memo is Exh. P. W. 13/13. Later, on the 17th May 1965, once again Nurullah Naib-Tehsildar supervised the identification parade in which Sultan and Ramzan p Ws. picked up Ramzan. The memo. is P. W. 13/A. On the 11th June 1965, Ghulam appellant was identified by P. Ws. Khuda Bakhsh, Mst. Nuran, Ghulam Rasool, Sultan, Ramzan and Din Muhammad. The memo is Exh. P. W. 13/C. Syed Shahid Hussain, Naib-Tehsildar, supervised an identification parade on the 3rd August 1965, in which P. W. Mst. Nuran and Khuda Bakhsh correctly identified Nabi Bakhsh, Pir Bakhsh and Allah Wasaya appellants. Ghulam Rasool P. W. identified Nabi Bakhsh only. Din Muhammad P. W. also identified Nabi Bakhsh while Muhammad Hussain P. W. identified Pir Bakhsh. The memo is Exh. P. W. 17/A. P. W. 20 Khan Abdul Qayyum Khan M. I. C., Multan supervised the parade on the 21st August 1965 in which Mst. Nuran picked up Ashiq appellant. The memo is Exh. P. W. 20/A. Another parade was held by P. W. 22 Said Ahmad Leghari Naib-Tehsildar, on the 29th August 1965 in which Farida and Amira were picked up by Mst. Nuran. The memo is Exh. P. W. 22/A.

5. It is apparent from the record that the occurrence took place in the darkness of the night and that none of the appellant was named in the F. I. R. by the informer. All that was stated in the F. I. R. giving a clue of the culprits was that the wife of Pir Bakhsh had remained in the house of complainant Khuda Bakhsh and that on account of suspicion he had entertained that the offence may have been committed by the family members of Pir Bakhsh. It can therefore, be nobody's case that the appellants in the darkness of the night could have been identified at the spot, This view is fortified by the fact that the appellants were not made to be identified by the inmates of the house who were subjected to beating soon after their arrest, and it is well established that where the identification parade is not held soon after the arrest of the accused it loses all its value. In the present case, as shown earlier, none of the identification parades was held soon after the arrest of the appellants. Therefore, the fact that the appellants were identified by the respective prosecution witnesses is not in itself sufficient to connect the appellants with the crime. However, there are three important witnesses in this case whose testimony cannot be rejected outright. They are Mst. Nuran, the abductee, Din Muhammad and Muhammad Hussain, the two tonga drivers. Mst. Nuran, as her statement would show, had the chance in broad day-light to have seen from very close quarters appellants Ashiq, Pir Bakhsh, Allah Wasaya and Farida. Muhammad Hussain, according to his statement, knew Pir Bakhsh, Ashiq and Ramzan, but then he failed to have identified Ashiq and, therefore, he can be said only to be telling the truth when he stated that he knew Pir Bakhsh and Ramzan, whom he correctly picked up in the identification parade. Din Muhammad lends support to Muhammad Hussain by saying that their tongas were employed by the appellants and they took them to the scene of the incident and then in the way back the Conga of Muhammad Hussain got broken and his tonga was used up to Mumtazabad where the appellants left him. Muhammad Hussain and Din Muhammad are disinterested witnesses and the appellants were notable to have said a word against them that they were in any way interested in the prosecution or inimical towards them.

6. P. W. 15 Hasan Raza is another good witness in the case inasmuch as it was he who established the motive by saying that the wife of Pir Bakhsh remained in the house of Ghulam Rasool and Pir Bakhsh had complained to him that his wife was detained by Ghulam Rasool father of Khuda Bakhsh .P. W., but on the enquiry the accusation turned out to be wrong. In this way it can be said that there was a motive for the appellants to have committed the offence, but then ac earlier stated it is only in the case of Ashiq, Pir Bakhsh, Allah Wasaya and Farida and Ramzan appellants that one can say with certainty that the charge has been brought home to them without any reasonable defect. In the case of the remaining appellants, naively, Ghulam and Amira the benefit of doubt should go to them for the reason that Mst. Nuran had, according to her own statement, not seen them in broad day-light and, therefore, the mere fact that later she had picked them up in the various identification parades held would not connect them with the crime. It can be said; as to was all along claimed by the appellants, that they were shown to the respective prosecution witnesses before the parades by the Police and in this connection it can be repeated again that the parades were not held soon after the arrest of the appellants and, therefore, the possibility is there that they were shown to the witnesses.

7. The result is that the conviction of Ashiq, Pir Bakhsh, -Allah Wasaya, Farida and Ramzan is maintained and that of Ghulam and Amira is set aside. They are acquitted of the charges. In the case of Ashiq, Pir Bakhsh, Allah Wasaya, Farida and Ramzan, they have spent almost two years by now in jail and to be exact they have undergone one year ten months- and nine days' imprisonment. The petitioners were sentenced to one year's R. I. under section 149, P. P. C. which they have already undergone. Under sections 458 and 366 read with section 149, P. P. C. they were sentenced to six years' R. I. under each count. These sentences are reduced to those already undergone by them. With this modification the appeal is dismissed. Sentence reduced.