1985 PLP 1802 (SCMR)

?He produced Gulab (D.W.1) in defence who only stated about the earlier marriage of Mst. Sufedan, the mother of the appellant, to a name‑sake of the respondent who was his uncle. He also produced a copy of the mutation of inheritance to prove this fact and also the record to show that Mst. Sufedan was being denied the produce of the land which had fallen to her share of which possession continued to be with the uncle of the respondent. The trial Court by its judgment, dated 15‑10‑1983 held that the offence under section 10 of the Ordinance read with section 18 was not made out. He was, however, found guilty of outraging the modesty of the t under section 354,P.P.C. and sentenced to undergo one R.I. was serve out the remaining of the sentence. The convict‑respondent filed an appeal in the Federal Shariat Court against his conviction and sentence. The appellant filed a revision petition seeking reversal of the order of acquittal of the respondent of the offences under the order. Both these matters were disposed of by the Federal Shariat Court by the judgment under appeal. The learned Judge in the Federal Shariat Court allowed the appeal of the respondent on the ground that the evidence against him did not get sufficient corroboration as neither the appellant had received injury on her person nor were her clothes torn though she had been brought down on a stony ground and there was a scuffle between the two. It was held that "no person could dare to commit such a heinous offence at such a place where evidence was available". The two witnesses were found to be not reliable on the ground that no effort appeared to have been made by any of them to rescue the appellant from the clutches of the assailant. The defence taken by the respondent appeared to the learned Judge plausible. The learned counsel for the appellant contended that the learned Judge had misread the evidence to conclude that there was scuffle such as to leave its marks either on the clothes or on the body of the appellant and that the offence was committed so much in public view as to be unbelievable. According to the learned counsel, the statement of the two eye‑witnesses could not be easily displaced as each had given a different reason for his presence near the spot at the time of the occurrence and had also made it clear that it was their intervention which had saved the appellant. The delay in the F.I.R. had been explained. The learned Judge of the Federal Shariat Court had, according to the learned counsel, correctly held that none of the witnesses was an interested one. In this background, a case was fully made out against the respondent and he was not entitled to acquittal. The learned counsel for the respondent on the other hand pointed out to the relationship of the parties; the dispute over the land and the enmity with regard to it. He has also drawn our attention to the fact that the appellant had taken all the care to suppress her relationship with the witnesses but it was established from the mouth of Ali Bahadur (P.W.3) himself that he was married to the paternal aunt of the appellant. So far as the misreading of the evidence is concerned, we find that the Federal Shariat Court has assumed that there was such a scuffle, which should have left mark on the person or clothes of the appellant, and it being absent the appellant was not telling the truth. The appellant had given the following reply to a question in the cross-examination:‑‑ "My shirt was not torn during the scuffle and I did not catch hold of the collar of the accused". Ali Bahadur (P.W.3) also gave the reply that‑‑ "The clothes of the victim and the accused were not torn during the scuffle". Such replies do not suggest that in fact there was a scuffle and that the clothes ought to have been torn and if they were not found torn the credibility of the appellant or her witnesses got impaired. As a matter of fact, the reply of the appellant that she did not catch hold of the collar of the respondent would indicate that there was no such scuffle. From the very beginning the case of the appellant was that when she had reached Kass Treranwala the respondent had appeared from a hiding. The Kass is the bed of a water channel, a ravine or a depression permitting flow of water natural or artificial. Such a location in Attock District though adjoining a path or close to it, cannot be said to be so exposed to public view that none would dare commit such an act. Ghulam Muhammad (P.W.2) was driving his camel with a load of wheat to his Dhok. Ali Bahadur was grazing his cattle at a distance of sixty paces or so. Ghulam Muhammad was also at the same distance. In cross‑examination Ghulam Muhammad (P.W.2) stated that? "I stood close and saw the accused catching hold of, felling down Mst. Nahid P.W. and then sitting on the chest. Ali Bahadur P.W. was at that time at a distance of about 3 yards from the accused and the victim." Both these witnesses stated that they reprimanded Meharban and Ali Bahadur stated that on seeing them he ran away. Not much does really turn in such cases on the statement of the villagers like Ghulam Muhammad and Ali Bahadur about the exact distance given in yards and paces while explaining their presence at the time of occurrence. What does appear is that they happened to be in the vicinity plausibly for good reason. The earlier marriage of Mst. Sufedan, the mother of the appellant; the inheritance of the estate of Meharban, the uncle of the respondent and the dispute with regard to it were matters so old and past that the appellant having born subsequently may not have known all of it. Such an enmity even if existed could not prompt a false charge involving the dignity and honour of an unmarried girl aged seventeen. We find that there has been misreading of evidence by the Federal Shariat Court on more than one point, which has materially affected conclusions drawn. This does justify the interference of this) Court. As regards the nature of the offence committed by the respondent, we are clear that on account of the improvements appearing at various stages of the statement made by these three witnesses, the trial Court rightly held that offence under sections 10 and 11 read with section 18 was not established beyond reasonable doubt. On the allegations made and the evidence led, the trial Court justifiably held the respondent guilty of the offence under section 359, P.P.C. This appeal is, therefore, accepted; the judgment of acquittal recorded by the Federal Shariat Court is set aside and the judgment of conviction and sentence regarded by the trial Court is restored. The respondent shall be taken into custody and required to undergo the unexpired portion of his sentence. M.I.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.