1998 PLP 437 (MLD)

(2) Complaint of pain in right knee. (3) Complaint of pain in right foot little toe. (4) Complaint of pain in left knee. (5) Complaint of pain and tenderness in chest, more in front of lower half of left half of chest. The injuries were kept under observation and the same were caused by some blunt object. Probable duration of injuries was within 24 to 48 hours. " He issued medico-legal report Exh.PE in his hand, duly signed by him. He also medically examined the appellant/accused on 29-6-1992 and found nothing to suggest on his person that he was inapplicable of performing the sexual act. P.W.2 is Mst. Gulshan Nisa. She is the complainant, who with slight addition reiterated her statement as mentioned herienabove. P.W.3 is Manzoor Hussain. He is husband of the complainant. He made a deposition in the following words:-- Mst. Gulshan Nisa complainant of this case is my wife and we used to reside in England. On 28-1-1992, I alongwith my wife arrived in Pakistan and we had to go back on 9-6-1992. We had to go to Rawalpindi, on 8-6-1992 in connection with the shopping. At about 8.30/9.00 a. m. on the same day some of my friends had come to see me at my house and I went outside of my house to see them off. My phophi Mst. Sahib Bibi and my wife Mst. Gulshan Nisa and my brother-in-law Zafar Iqbal were also accompanying me. Guests as mentioned above went away meanwhile my Phophi told me that there is some noise coming from the house of the accused. My phophi went towards the house of the accused and myself, and Zafar Iqbal also followed her, I also saw that sister-in-law of the accused and her daugtlter aging about 13 years were also running towards that side. When I reached the outer gate of the house of accused I saw that some children and number of ladies were pushing the door of the room of the accused by force. I and Zafar lqbal also forcefully pushed the door alongwith those ladies as a result of that the door was opened. We all went inside the room. I saw my wife's shalwar was upto knee and was semi-naked whereas the accused was holding the string of his shalwar in his hand. My phophi Mst. Sahib Ji made my wife to wear her shalwar and at that time I was present nearby. We brought out Mst. Gulshan Ni,isa from the room and were going out at the main gate of the ' Have~lt' when the accused shouted to the ladies of his house who were admoitdishing him that there is no need to worry as the complainant and her hwtshand would be going to England the next day, and that they will not naruz'ate the occurrence to any one. I asked my wife as to what happened withh her and she narrated the whole occurrence to me. On the next morninhg we were present in our home when some persons approached me for i compromise with the accused but I refused. On 9-6-1992, we went to tloe P.S. Gujar Khan, where my wife Mst. Gulshan Nisa lodged the t r0port. Thereafter, I joined police investigation and the 1.0 had recordedd my statement." P.W.4 is Manawar Khan, S.I. On 9-6-1992, he recorded the statement made by Mst. Gulshan Nisa on the basis of her statement he recordedd F. I. R. Exh.PA. He carried out the investigation of the case, arrested the appellant/accused and got him medically examined and after completion of investigaticon, challaned him to face the trial.

4. The appellant/accused made a statement under seection 342, Cr.P.C. wherein he denied the allegation and pleaded innocence. Repplying to a question, "why the P.Ws. have deposed against you and why this Qcsse has been made against you", he made a statement in the following words:-- "I have been falsely implicated in this case due tto enmity with the complainant party. I had gone to London illegally for which Manzoor Hussain P.W.3 husband of the victim made a comprllzint against me in London before the competent authorities due to whiic:h I was sent hack in Pakistan. I and my brothers own land around( the house of the complainant in which her drain water falls we resttfained them for a doing which eventually caused enmity in between uas. To avenge this, the instant false case has been registered against me." He neither made a statement on oath in disproof of the allegation made against him by the prosecution nor led any evidence in his defence.

5. I have heard learned counsel for the parties and have I perused the record with their assistance.

6. Learned counsel for the appellant submitted that the waontents of F.I.R. lodged with inordinate delay do not disclose that the complainant had sustained injuries at the time of occurrence and that the appellant/accuse had also untied his string but subsequently she made improvement in her statement which render the credibility of her statement doubtful. The learned counsel further submitted that the alleged occurrence in the circumstances do not appear to be truthful as according to the statement of complainant, the guests were pre-,sent in her house and there was no occasion for her to go out and meet the villlagers. Regarding place of occurrence, the learned counsel submitted that it was jointly owned house and commission of offence of this nature was not possible therein. The learned counsel for the State vehemently supported the impugned judgment.

7. I have thoroughly perused the entire record in the light of submissions made by learned counsel for the parties. In fact, the case of prosecution mainly rests on the statements of P.W.2 Mst. Gulshan Nisa, complainant, and P.W.3 Manzoor Hussain, her husband. So far as the testimony of complainant is concerned, she has come out with a detailed account of what had happened with her when she went to the house of complainant in order to see his family members before leaving for England. Her statement contains some additional details, however, the same cannot be termed as improvement in the early version. It may be mentioned that even at the time of recording her statement in the F.I.R., she has not only complained about some injuries on her neck and knee but also of some pain on her left side. Moreover, P.W.4 Manawar Khan, S. I. who recorded F. I. R. Exh.PA on her statement recorded that he prepared her also and sent her for medical examination. Thus, it is apparent that at the time of recording F.I.R., she had mentioned about her injury and pain and therefore, it cannot be called improvement in her statement when she disclosed further details in her statement before the learned trial Court. Regarding the untying of string of the appellant also the context of her statement before the police shows that he had done so. Though the F.I.R. was lodged with delay but in the circumstances, the explanation given for the delay is plausible and natural. As the complainant and her husband were leaving for England on the next day and there were also some efforts going on to effect a compromise between the parties, the delay of about one day is not fatal to the case of prosecution. The complainant has also mentioned in the F.I.R. about the visit of some guests and she had given their names as Zafar Iqbal and Mst. Sahab Ji and it is in this context that she had referred to the visit of some guests. Regarding the injuries ,on her body, it may be mentioned that her statement finds full corroboration from medico-legal report. The clothes though torn were not delivered to the :Investigating Officer and were taken along by her to her home. Non-produuction of the same has no bearing on the veracity of her statement as the medico-legal report about the injury and pain on her body by supports her version. The clothes were not a material piece of evidence. Regarding the opinion of the door, she had given explanation that neither the door nor the bolt was broken but the door was opened due to force from outside. She volunteered that in a hurry, the accused had might not shut the door completely. Although the house was jointly owned and the children of appellant and his wife were living in the same house, there is no suggestion to the P.Ws. about their presence at that time. The swatements of P.W.2 and P.W.3 are consistent and inspire confidence. After thorough perusal of the entire evidence on record, I feel that in the facts and circumstances of the case, the statement of Mst. Gulshan Nisa inspires ctmfidence and rings true. Her statement has found corroboration from the medico-legal report also. However, her statement only reveals that the appellant had untied her shalwar and was still grappling with her when the door was forcibly opened and in the meanwhile, the complainant sustained injury and pain. Therefore, it is difficult to agree with the learned Trial Court that this case is a case in which the appellant is to be convicted of attempting to commit zina bil jabr. The aforementioned situation actually brings the case under the ambit of section 354, P.P.C., that is outraging modesty of Mst. Gulshan Nisa. Therefore, the conviction of appellant under section 18 read with section 10(3) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 cannot be sustained and has to be altered to section 354, P.P.C.

8. Consequently, this appeal is allowed only to the extent that the conviction and sentences of the appellant under section 18 read with section 10(3) of the Ordinance are set aside. The appellant is instead of that i section convicted under section 354, P.P.C. and the sentence of his imprisonment is reduced to two years R.I. He is also sentenced to fine of Rs.20,000 or in default thereof to undergo further six months R.I. In case of payment of fine, the whole amount will be paid to Mst. Gulshan Nisa as compensation. The appeal is disposed of in the above terms. The benefit of section 382-B, Cr.P.C. extended by the learned Trial Court shall remain intact. N. H. Q./1118/FSC Order accordingly.