1992 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN (MEMBER).

The appellants', Muhammad Yaqoob (34) son of Shadi Khan and Mst. Majidan (25) wife of Muhammad Yaqoob, both Meo by caste resident of Haveli Chaituwali, Police Station Kahna, District Lahore, were tried for the offences having been committed by them under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter to be referred as the Ordinance) read with sections 109 and 342, P.P.C. by the learned Judge Special Court for Speedy Trials No.II, Lahore. The learned Judge convicted both the appellants on 23-5-1992. Muhammad Yaqub was sentenced to suffer 25 years' R.I. plus whipping of 30 stripes under section 10(3) of the Ordinance. However, Mst. Majidan was sentenced to undergo S.I. for two years under section 11 of the Ordinance. She was awarded another punishment of 5 stripes plus a fine of Rs.1,000 and in default thereof she was ordered to remain in jail to undergo three months' S.I. She was sentenced under section 10(3) of the Ordinance read with section 109, P.P.C. to two years' S.I. as well. She was further sentenced to three months' S.I. under section 342, P.P.C. The learned Judge ordered that her sentences shall run concurrently. It was observed that a lenient view was taken in awarding lesser sentences to Mst. Majidan, because she had two minor children aged four and two years.

2. The appellants challenged their conviction and sentences by filing this joint appeal before this Court, which shall be decided through this judgment.

3. The prosecution case was that Mst. Zahida Parveen (13/14) an unmarried girl lived with her parents in village Haveli Chaituwali. Her father used to do some business in Kahna Nau while her brothers were engaged in agricultural pursuits in their village. On 2-6-1991, her mother had gone to her fields to work there. She was all alone in the house. At about 12-30 p.m., her neighbour Mst. Majidan, second appellant came to her house and invited her to come to her Haveli. She obliged and went to the house of Mst. Majidan. She straightaway took her to the room where her husband Muhammad Yaqoob was already present. While leaving Mst. Zahida Parveen alone in the said room, Mst. Majidan came out and chained the room from outside. Muhammad Yaqub issued threats to Mst. Zahida Parveen that in case she raised an alarm, she would be done to death there and then. Thereafter, he removed her clothes and committed Zina-bil-Jabr with 'her. She raised hue and cry whereupon Maulvi Abdul Ghafoor son of Budhey Khan, Rashid Ahmad son of Eido Khan and Sajjad Haider son of. Ghulam Muhammad P.Ws. reached there to witness the incident. On arrival of witnesses, Mst. Majidan immediately unchained the door. Muhammad Yaqub left the victim and ran away-from his house. It was disclosed by the girl to the witnesses that Muhammad Yaqub committed Zina bil-Jabr with her after having entered into a criminal conspiracy with his wife Mst. Majidan.

4. On the statement (Exh.P.D.) of the victim, formal F.I.R. (Exh:P.D./1) was recorded by Ahsan Ullah A.S.I. (P.W.6) at 5-40 p.m. on 2-6-1992 at Police Station Kahna. The case was investigated by Ahmad Din, A.S.I. (P.W.11). He took Mst. Zahida Parveen to Lahore for her medical examination on 3-6-1991, Dr. Fakhra Nasreen, Medical Officer examined her. The Police Officer visited the spot. He prepared the rough site plan vide Exh.P.J. He arrested Mst. Majidan from her house on 4-6-1991 while Muhammad Yaqub was arrested by him on 6-6-1991 from Kahna Bus-stop. He was found injured. His injury statement (Exh.P.K.) was prepared. He was medically examined on 6-6-1991. Blood-stained Chaddar of Muhammad Yaqub appellant was taken into possession by the Police Officer vide memo. Exh.P.F. He recorded the statement of the accused.

5. Dr. Fakhra Nasreen conducted the medical examination of the victim vide Medical Report No.162/1991. She observed as follows:-- "Multiple contusions on the right and left breasts. No evidence of injury on the external genitalia. Hymen not intact. Tear is fresh. Slight oozing of blood while taking swabs. Vagina is tight." The lady doctor took two vaginal swabs; kept them in a sealed parcel and sent them to the Chemical Examiner for detection of blood and semen therefrom. Report of the Chemical Examiner, (Exh.P.N.) on the vaginal swabs was positive inasmuch as it was opined by the expert that they were stained with semen and blood. Dr. Fakhra Nasreen had reportedly gone on ex-Pakistan leave for two years. Syed Khalid Hussain Shah Record Keeper, Sir Ganga Ram Hospital, Lahore (P.W.8) produced a copy of an order (Exh.P.9) of the Government of the Punjab to show that two years leave was granted to the said Medical Officer. Noor Muhammad Record Keeper, Office of Surgeon Medico-Legal Report. Lahore (P.W.9) deposed that he had seen the writing and signatures of Dr. Fakhra Nasreen, who remained attached as Medical Officer in his office for some time and that he could identify them. He produced the original register of medico-legal report No.162/FN/1991. He testified that the said medico-legal report was written by Lady Doctor Fakhra Nasreen and that she had signed it as well. He further stated that Exh.P.H. was the correct carbon copy of the report. Abdul Hameed, Secretary Union Council Kachha (P.W.10) appeared to prove the birth certificate of Zahida Parveen, which showed that she was born on 3-12-1977.

7. Eye-witness account was furnished by Mst. Zahida Parveen (P.W.3) Maulvi Abdul Ghafoor (P.W.4) and Ahdul Rashid (P.W.5).

8. Muhammad Yaqoob appellant while making his statement under section 342, Cr.P.C. stated that his house was situated in the middle of several other inhabited houses in the village and that none from the nearby houses appeared to witness the occurrence. He deposed that Liaqat, Sahib Khan, Suleman Baber; Haji Shatab and Nabi Khan were his immediate neighbours and that they did not come to the spot. He also stated that family of the prosecutrix consisted of persons of bad character. He added that he as well as his wife Mst. Majidan saw Abbas teacher while staying in the house of Mst. Zahida Parveen. He went on to disclose that he once saw Mst. Zahida Parveen with Abbas teacher in the, sugarcane field of the village. He also stated that said Abbas used to come in the morning to visit Mst. Zahida Parveen and that he also saw her while waiting for him on the road of the local canal. The appellant claimed that Abbas might have committed the act of Zina with Mst. Zahida Parveen in order to implicate the appellant falsely in this case. The appellant disclosed that at one occasion, Mst. Majidan openly declared that illicit liaison of Zahida Parveen with Abbas would be disclosed to her parents whereupon she requested her not to do so. While answering another question, regarding injury on his person, the appellant stated that he fought with Rashid P.W. on 2-6-1991 at about 7-45 a.m. and in consequence he received the said injury. The cause for the fight was that Rashid P.W. suspected that the appellant was acting as an informer of the police against him. The appellant further mentioned that on 2-6-1991 he was attacked by Rashid and Niamat and that he was injured by them with their weapons. The appellant went on to say that he was falsely involved in the case a: the instance of-Rashid P.W. Similarly, Mst. Majidan denied in her statement all the allegations levelled against her and pleaded that she was falsely involved in the case. The appellants produced Muhammad Ashraf D.W.1, Abdul Rehman D.W.2, Mashooqa D.W.3 and Niaz Ahmad D.W.4 in support of their defence. Muhammad Ashraf D.W.1 stated that he dressed up the wound of the appellant having been found on his left leg on 3-6-1991, when he was produced before him by the police. Abdul Rehman D.W.2 is the real brother of Muhammad Yaqub appellant. The witness deposed that Rashid and Niamat while armed with fire-arms attacked and injured the appellant Yaqub. Mashooqa D.W.3 also deposed to the same effect that Rashid and Niamat while armed injured the appellant. To the same effect was the statement of Niaz Ahmad D.W.4.

9. The learned trial Judge believed the testimony of Mst. Zahida Parveen, victim. He also observed that her statement was substantially corroborated by the evidence deposed by Maulvi Abdul Ghafoor and the medical evidence. Accordingly, he convicted and sentenced the appellants as already mentioned above.

10. Learned counsel contends with vehemence that it was the duty of the prosecution to have collected the semen and blood-stained clothes of both the appellant Muhammad Yaqub and the victim Mst. Zahida Parveen and that it failed to do its duty under the law. It was maintained that omission to do so would create doubt in the story of the prosecution. It is added by the learned counsel that the occurrence might have taken place earlier to the date mentioned in the F.I.R. because the medical evidence does not support the case of the prosecution regarding the date and time at which Zina-bil-Jabr was allegedly committed by the appellant. Learned Law Officer supported the conviction and sentence of the appellant by adopting the reasons already given/ by the learned Judge in the judgment under challenge. 10-A. We have heard the learned counsel for the parties at considerable length and have also gone through the entire record with utmost care. We find that the evidence of Mst. Zahida Parveen is natural, consistent and does inspire confidence in the given facts and circumstances. According to the birth certificate proved by Abdul Hameed, Secretary Union Council, the victim was born on 3-12-1977. She was, therefore, hardly 13/14 years old when she was ravished by Muhammad Yaqub. According to her evidence she was persuaded by Mst. Majidan to come to her house on 2-6-1992. She was taken to a room of her house where Muhammad Yaqub appellant was already present. The room was chained from outside by Mst. Majidan m furtherance of her common, intention. Thereafter Mst. Zahida Parveen was subjected to Zina-bil-Jabr by Muhammad Yaqub in the room by issuing threats to kill her. She raised hue and cry whereupon Maulvi Abdul Rashid P.W.4 and Abdul Rashid P.W.5 reached the spot. On their arrival Muhammad Yaqub ran away from his house while leaving behind the victim. Obviously, the intention on the part of Mst. Majidan was to provide an opportunity to her husband to rape the girl. She, therefore, actually participated in the commission of the crime. The conduct of Muhammad Yaqub that tie ran away from his house would further corroborate the allegations of Zina-bil-Jabr having been levelled against him by Mst. Zahid Parveen. The girl was medically examined on 3-6-1991. The report shows beyond doubt that she was subjected to Zina-bil-Jabr. The report of the Chemical Examiner having been given by him on the vaginal swabs also shows that they were stained with semen and blood. The report of the Chemical Examiner (Exh.P.N.) and the medical evidence would lend considerable a support to the statement made by Mst. Zahida Parveen that she was raped by the appellant. Mauhi Abdul Ghafoor and Abdul Rashid deposed that they saw the appellant Muhammad Yaqub while running from his house when they reached the spot after hearing the hue and cry of the victim.

11. The plea taken by the appellant in their defence is definitely afterthought and would not lend any support to them. The evidence of the D.Ws. is wholly irrelevant inasmuch as it did not touch the main occurrence of rape having been committed by the appellant. The stand taken by the appellant Muhammad Yaqub was that it was Abbas who performed the sexual intercourse with the girl because both of them were carrying on illicit liaison with each other since long. The defence story appears to be false on the face of it. The defence version is not plausible and-as such it is kept out of consideration.

12. Having regard to the evidence deposed by Mst. Zahida Parveen coupled with the medical evidence and the report of the Chemical Examiner, L3 we are of the opinion that she was subjected to Zina-bil-Jabr by Muhammad Yaqub on 2-6-1991 in his own house with the assistance of his wife Mst. Majidan. It is proved that Mst. Majidan brought Mst. Zahida Parveen to the room of Muhammad Yaqub where she was ravished by him. This being so, we hold that both the appellants were rightly convicted on the basis of overwhelming evidence available on the record. Muhammad Yaqoob does not deserve any leniency inasmuch as he committed Zina-bil-Jabr with an innocent minor girl of his neighbour in the presence of his wife. The offence committed by him is undoubtedly gruesome, heinous and alarming in nature. In the result his conviction and sentence are hereby maintained.

13. However, we are persuaded to take a lenient view about the sentence awarded to Mst. Majidan. It is in the evidence that-she has two minor children aged 4 and 2 years who are also living with her in jail. This being so, keeping in view the welfare of the minors, we take a lenient view and sentence her to the period already undergone by her. Her sentence of 5 stripes is also remitted. She is, however sentenced to pay a fine of Rs.500 within next two months. With this modification in the sentence of Mst. Majidan, there is no substance in the appeal which is dismissed.

14. Vide our short order, dated 5-7-1,992, the appeal was dismissed and Mst. Majidan was ordered to be released forthwith, for the reasons to be recorded later. These are the detailed reasons for the said order. N.H.Q./53/SAC Order accordingly.