P L D 1967 Supreme Court 326 (PLP)

Suleman was informed of what had happened, at about 3 p. m., by his son Hanif, who was accompanied by the Police. When he returned to the house, Mst. Hawa Bai had already been taken to the hospital. The same evening, Suleman expressed to the Police a suspicion that Mumtaz Ahmad Khan, who lived in a flat on the second floor of the same building was the culprit. The statement which he made could not be proved in evidence since the investigation had already commenced. The Thanedar Ghulam Rasul, P. W. 12, was careful to say nothing about it, and merely said that the accuied was brought to him at the Police Station by a constable in the evening, and was then arrested. Suleman, however, said in examination‑in‑chief that on the day before the occurrence, the accused Mumtaz Ahmad Khan had interfered with the electric connection of his fiat and when Mst. Hawa Bai had taxed him with doing a wrong thing, he had threatened Mst. Hawa Bai with revenge. His wife had told him this, and for that reason he suspected that Mumtaz was the culprit. Mst. Hawa Bai supported the state ment in her evidence. When arrested, Mumtaz Ahmad Khan was found to have in his possession a key and a laundry receipt. The key was used to open the accused's flat, and from there the Investigating Officer seized also another key, probably in the expectation that it was the key that fitted the lock of flat No. 8, where the crime had been committed. That proved not to be the case and that lock had to be forced open by a locksmith. The key of that lock was never recovered. Its significance would appear from the following passage contained in the order granting leave, viz:‑ "the fact of the flat door being locked on the outside, an action which would more naturally occur to an inmate of the flat than to a casual rapist in a hurry to escape." The address of the laundry was printed clearly on the receipt and therefore, there was no necessity for its location to be pointed out by Mumtaz Ahmad Khan, as is ‑ said by the prosecution. The receipt bore the signature of one Bostan Khan, an employee at the laundry. He was probably available at that time but was never examined as a witness. When the Police Officer came to the laundry, the man in attendance was Jan Muhammad, P. W. 9, who on being shown the receipt, which was for one pair of trousers, one bush shirt and one banyan, took the Police Officer to the workshop in Nazim abad, where he said the clothes had been sent and found that they had not yet been washed. These clothes were handed over to the Thanedar and a recovery list was made, which shows that there were 17 spots of blood and two spots of semen on the trousers; 8 spots of blood on the shirt and some also on the banyan. These clothes were sent to the Chemical Examiner along with a chaddar and a shalwar taken from the flat, which were also blood‑stained. The Chemical Examiner's report was that the blood on the two last mentioned articles was of human origin, but that on the three garments obtained from the laundry, the blood had disintegrated and its origin could not be determined. The difference is remarkable, for if the stains on the clothes from the laundry were made at the same time as the stains on the other clothes, since all were sent with the minimum of delay and at the same time to the Chemical Examiner and since there were ample stains on the clothes from the laundry, the result should have been the same in both cases. A further matter calculated to cast doubt upon whether the clothes from the laundry had any connection with the crime, appears from the evidence of Jan Muhammad. He said that when he went to the Thana with the clothes, Mumtaz Ahmad Khan was present there. The clothes were tried on him and were found to be too tight. Their size was appropriate to a boy of 13 years age, while Mumtaz Ahmad Khan's age as given is 18 or 19 years. Bostan Khan, who has been mentioned above may have been able to identify the person who delivered the clothes at the laundry, but Jan Muhammad had not received the clothes himself and was therefore not able to say anything on the point. It follows that these clothes are neither shown to belong to Mumtaz Ahmad Khan, nor to have any connection with the crime. Mumtaz Ahmad Khan was found by the Thanedar Ghulam Rasul to have some scratches on his face and chest, and was accordingly sent for examination to the hospital. It is note worthy that in the Roznamcha entry relating to the arrest of Mumtaz Ahmad Khan, there was no mention of any injuries. The doctor reported an abrasion on the right side of the back 5` x 1` in length, another on the left side of the chest 2' in length and 5 abrasions on the right cheek, 1/4 x 1/3 in length. The report says that "all the injury has got nail marks" It was made by a Dr. Shahryar Hussain, who was not available at the trial, and therefore his signature was proved by another doctor Major Hasan, P. W.

13. These injuries form the sole piece of circum stantial evidence that can possibly serve to connect Mumtaz Ahmad Khan with the crime. Immediately following the arrest of Mumtaz Ahmad Khan, the Police made inquiries and developed a complete case, which, however, is not spoken to by any Police witness. It comes from the mouth of Qamarul Islam, P. W. 4, a boy then aged about 17 years, who stated that he used to give tuition to Mumtaz Ahmad Khan and was engaged in doing this at 5‑30 p. m., on the 26th January 1961, when Salim, a close associate of Suleman's family, came to the flat and said that the two of them were wanted at the Thana. They went there with Salim and all three were detained. Qamarul Islam was only allowed to go on the 28th January 1961, that is two days later after he had made a statement before a Nlagi‑strate, which he said was dictated to him by the Police. This statement has not been proved on the record, but its contents appear from a series of contradictions in the cross‑examination of Qamarul Islam, which are reproduced below:‑ " It is not correct that I was with the accused at the time of the occurrence. It is not correct that the accused with me had gone to the house of Hawa Bai at 9‑30 a.m., same day. It is not correct that the accused entered the house when she opened the doors and I went away. It is not correct that the accused returned after 20 minutes there from and his clothes were blood‑stained. It is also not correct that he told me that he had raped Hawa Bai and that he bad stabbed her." This witness said that he was threatened with prosecution for the crime, if he did not make such a statement to the Magis trate. He also made a statement favouring the defence, when recalled for further cross‑examination, viz., that he had gone to Mumtaz Ahmad Khan that day at about 2‑30 p. m., and saw Mst. Hawa Bai being carried to the ambulance, that she was then in her senses and was saying that her husband had beaten her. He supported the defence of Mumtaz Ahmad Khan in another respect, namely, that at the Police Station there was a clash between the aforesaid Salim and Mumtaz Ahmad Khan in which the latter had received injuries. The Thanedar Ghulam Rasul denied this, but it is noteworthy that he did not say a word about Qamarul Islam being taken to the Thana or later before a Magistrate to make a statement. It may not be possible to place total reliance on every thing said by Qamarul Islam in favour of the defence, but what is of importance in his statement is the fact that by the 28th January 1961, the Investigating Officers had already in their possession practically direst evidence to connect Mumtaz Ahmad Khan with the crime. At that time, Mst. Hawa Bai was still unconscious. She is said by her mother, her husband and her daughter to have regained consciousness after 2 or 3 days. These witnesses also said that they used to visit her in the hospital. There is on the record a paper sent by the Police to the hospital enquiring about the medical report of Mst. Hawa Bars injuries. It is dated the 31st January 1961 and bears the reply that Mst. Hawa Bai was still in the ward and far from full recovery, but her general condition was fair and that the medical report would follow in due course. There is no expert medical evidence to show when she recovered consciousness. Her statement was recorded for the first time by a Police Officer on the 2nd February 1961, that is to say on the seventh day after the occurrence. This officer said he had visited the hospital once before for that purpose, on a date which he could not remember, and that 4Ist. Hawa Bai was not in a fit condition to make a statement. The importance of these details lies in the consideration that for about 4 days before her first official statement was recorded, Mst. Hawa Bai was conscious so that she could be spoken to. By the 29th January, the Police already had made out a case supported by evidence against Mumtaz Ahmad Khan. Another consideration which has been stressed by the defence through the cross‑exmination of the principal witnesses needs to be mentioned. The defence allegation was that Mst. Hawa Bai was a woman of loose character, who used to be visited by men during her husband's absence, and one of those who was intimate with her was the aforesaid Salim, who was also a friend of the family and treated Mst. Khadija Bai as his own mother. Mumtaz Ahmad Khan in his first statement to the Magistrate said that he himself had been taking a prominent part in a campaign to force Suleman and his family to leave the flat on account of Mst. Hawa Bai's bad behaviour. A day before the incident, a quarrel had taken place over this very matter, and this was why he was falsely implicated. Salim, one of her visitors, was present when the Police arrested Mumtaz Ahmad Khan and he charged that Salim got him falsely arrested. Thereupon, Salim had beaten him with a stick and scratched his face. In his written statement, Mumtaz Ahmad Khan said that he had come to know that "as a matter of fact, the husband of the prosecutrix having seen the prosecutrix along with Salim alone, had wounded her and then to save his honour and life having pacified her, after seven days of the alleged incident has got a statement made against me and got me implicated." It is in this connection that importance attaches to the statement of Qamarul Islam that in a semi‑conscious state, when she was being taken to the hospital, Mst. Hawa Bai said that she was beaten by her husband. Qamarul Islam is not the only witness, who said this. Another is Constable Allahdad, D. W. 1, who was in the Police party, which took Mst. Hawa Bai to the hospital, and said that at that time, people were asking the woman what had happened, and she said that her husband had beaten her. The Police report shows that Mst. Hawa Bai was semi‑conscious at that time. In cross‑examination, this witness made a slight slip by saying that the woman had mentioned her husband's name also, but he corrected himself later and said that she had mentioned the husband, but not by name. A further point which may be mentioned again is that the flat was found locked from the outside at the time when the crime was discovered and the key of that lock was. never found. By the time the husband Suleman came on the scene, the lock had probably been already forced open, and if he himself had the key he would naturally not have come forward with it, since such an action would by itself have been sufficient to condemn him, and as for his wife, the chances then were that she would not survive. A number of defence witnesses were called to prove that Mst. Hawa Bai had a had reputation not only at this place, but at other places, where she lived before and after. Suleman left this flat during the trial. It is against this background that the Courts below should have considered the question whether Mst. Hawa Bai's statement, practically unsupported as it was by any circumstantial evidence connecting the accused with the crime, was sufficient for establishing the charge beyond reason able doubt. The motive for the crime was of the weakest possible kind. Mst. Hawa Bai is again the sole witness to the holding out of a threat by Mumtaz Ahmad Khan for so small a matter as the blame Mst. Hawa Bai had placed on him for interfering with the electric connection to her flat Mumtaz Ahmad Khan had his own explanation for that quarrel, which is somewhat better supported by other evidence. The defence took some pains to show that the fuses could not have been interfered with by Mumtaz Ahmad Khan, because the room where they were situated was kept locked, and the key was kept by the proprietor of the hotel on the ground floor. That is one reason for exercising caution in receiving Mst. Hawa Bai's statement. Another is that she had her own character to preserve at the trial. A third is that by the time that her first statement was recorded by the Police, a strong pressure had developed upon her to support the case, which the Police had already prepared, against Mumtaz Ahmad Khan, based on direct as well as circumstantial evidence. The alternative being, as indicated by the statements of Qamarul Islam and constable Allah Dad, that the true criminal was the husband, it was necessary to take into account all the forces operating on the mind of Mst. Hawa Bai when the occasion for recording her statement arose. Firstly, to go against the fully prepared Police case was difficult. Secondly, to have named her husband then would have meant the ruin of her own life and that of her children. Bearing this in mind, significance attaches to the fact that four days were allowed to elapse before her first official statement was recorded by the Police. That statement was to the effect that being alone in the flat at about 9‑30 a. m., she heard a knock on the door and on opening it found Mumtaz Ahmad Khan there, who pushed his way in after asking a question about the lamps. He then closed the door from the inside and took out a knife from a trouser pocket with which he threatened her with death, if she raised cries. He then pulled and carried her to the second room and throwing her on a cot removed her trousers as well as his own and committed rape on her, after which he was trying to run away, when she grappled with him and raised cries. He then injured her with the knife and escaped. She became unconscious. At the trial, she was examined at length and supported the story in further detail, saying that the accused gave her a fist blow on the face as well and loosened her teeth. She was quite clear that he effected penetration into her private part, while she was still offering resistance, that he continued the intercourse for two or four or five minutes, and she was certain that he had discharged semen inside her. Being a married woman, she should be entirely familiar with these matters, so that a statement of this kind by her would be worthy of acceptance. It is a statement which is disproved by the evidence of Dr. Nafisa Khatun, for there was no semen fund inside her vagina, nor any signs of fresh intercourse, That again is a circumstance, which supports the defence version to some extent. Supposing the husband to have returned to the flat unexpectedly and found his wife entertaining a male visitor, he might be gravely provoked into making a grievous attack on his wife, but he would not necessarily be moved also to have intercourse with her. In fact, the inclination would be to the contrary. The husband might well in such circumstances, if he found that the wife was wearing her trousers, pull them off by way of an indication what she had been up to. It would be natural also for the husband to lock the door on the outside with his own key, when he was leaving. The evidence of the prosecutrix in a rape case is customarily received by Courts with some suspicion. In certain jurisdictions it is the rule that the solitary evidence of the prosecutrix being a woman of full age, is not accepted as sufficient, but requires corroboration by independent evidence, in order to be believed. That is precisely the case here, and in addition, there is a series of circumstances appearing from the facts of the case, which require that Mst. Hawa Bai's evidence implicating Mumtaz Ahmad Khan should not be accepted at its face value. These circumstances have already been dealt above, namely, the extreme slightness of the motive shown. the fact that suspicion was cast on Mumtaz Ahmad Khan by the husband, who is said by at least one reliable witness to have been named as the assailant in the first instance, the long delay before Mst. Hawa Bai's statement was officially recorded, the fact that by that day, the Police had already prepared a complete case against Mumtaz Ahmad Khan and finally the circumstance that to name the husband at that stage was a practical impossibility for a woman situated as Mst. Hawa Bai was, in particular that to do so would have meant ruin for the entire family. Another slight circumstance leading in the same direction may also be mentioned here. Mst. Tahira Bano said that during the period of an hour or so that she waited outside the flat, the accused Mumtaz Ahmad Khan came there with a letter for her. She told him he ought not to interfere with her letters, where upon, he said he would stab her with a knife if she argued with him. When later people gathered at the flat after it was known that Mst. Hawa Bai was lying wounded inside, one of these persons was Mumtaz Ahmad Khan, who produced a key and asked the people to try it in the lock, but the key did not fit. There was no mention in Tahira Bano's statement to the Police of the threat to stab her with a knife and perhaps this was introduced in order to show that Mumtaz Ahmad Khan had a propensity for using a knife. There was no mention either of the accused having produced a key, but it was a natural enough action by a person living in the same block of fiats, and accepting this statement, it indicates conduct, which was not to be expected of the very man who had stabbed Mst. Hawa Bai. She was then making sounds and could well have been conscious, and if he had appeared in her presence and was indeed the guilty person, she would have at once cried out to that effect. Bearing all these circumstances in mind, we consider that the case affords plenty of room for entertaining reasonable doubt whether Mumtaz Ahmad Khan was in fact the assailant of Mst, Hawa Bai. We accordingly allow this appeal and acquit him. K. B. A. Appeal allowed.