1984 P Cr (PLP)

Muhammad Ramzan son of Muhammad Bakhsh was tried under section 451/376/511, P.P.C, by the learned Magistrate Section 30, Sahiwal. He was convicted on 30-6-1980 and sentenced under section 376/511, P.P.C. to four years' rigorous imprisonment and a fine of Rs. 1,000 or in default of payment of fine to suffer further rigorous imprisonment of six months. He further convicted him under section 451, P.P.C. and sentenced to two years' R.I. and a fine of Rs. 500, or in default thereof to undergo further R.I. for six months. The sentences, however, were ordered to run consecutively.

2. The appellant has assailed the order of his conviction and sentences by means of this appeal.

3. The prosecution version of the case is that the complainant Nizam Din P.W.6 who was resident of Chak No. 98/9-L, on 24-3-1978 had gone to Sahiwal and his wife Mst. Hajiran left for cutting fodder from the field. The complainant's daughter Mst. Bakht Bibi P.W.3, aged 11 /12 years, and his son Muhammad Siddique, aged about 10 years, PW.5, were left alone in the house. At about mid-day, Mst. Bakht Bibi, while she was alone in the house, Muhammad Ramzan, appellant, trespassed into the house, caught hold her and took her to a Kotha, pulled out her Shalwar and was about to commit rape upon her when she raised alarm, which attracted her brother Muhammad Siddique P.W.5 and Nazir, a neighbourer, P.W.4. They tried to apprehend the appellant but he made good his escape. The complainant came back to his house at about night and he was told about the occurrence by his daughter and the P.Ws. He proceeded to lodge the report at Police Station on the following day when he came across on his way Niaz Muhammad A.S.I., before whom he made statement about the occurrence, which was recorded by him vide Exh. P.B and formal F.I.R. was drawn at Police Station as Exh. P.B/1.

4. The police officer visited the spot, took into possession Shalwar P.1 and shirt P.2 of Mst. Bakht Bibi through memo. Exh. P.A. investigated the case and prepared the site-plan Exh. P.C. He arrested the appellant and submitted the challan in the trial Court.

5. The prosecution relied on ocular version and evidence of recoveries for corroboration. The appellant, when examined under section 342, Cr.P.C. pleaded his innocence and explained his involvement in the case on account of enmity. He, however, led no evidence in defence. The ocular version was furnished by Mst. Bakht Bibi P.W.3, Muhammad Siddique P.W.5 and Nazir P.W.4. The prosecution produced Nawab P.W.1 and Muhammad Rafique P.W.2, in whose presence Shalwar P.1 and shirt P.2 were taken into possession by the Investigating Officer. The recovery memo. Exh. P.A of the above-mentioned articles was attested by both of them.

6. Mst. Bakht Bibi P.W.3, victim in this case, gave details of the occurrence and stated that the appellant had overpowered her, took her to a Kotha where he pulled out her Shalwar and despite her resistance was about to commit sexual intercourse with her, when on her alarm her brother Muhammad Siddique P.W.5, who was present outside the house, and Nazir P.W.4, a neighbourer, were attracted. The appellant ran away. She was fully corroborated by the testimony of Muhammad Siddique P.W.5, a young boy of ten years old, who narrated the occurrence as witnessed by him. Both these P.Ws: were subjected to lengthy cross-examination, but their evidence could not be shattered by the defence. Nazir P.W.4, a neighbourer, also supported the prosecution version, but he denied to be relation of the victim, when she had admitted the relationship with him. The torn shirt and Shalwar taken into possession by the Investigating Officer in the presence of the witnesses also gave support to the prose cution case.

7. Learned counsel for the appellant contended that there was consider able delay in lodging the F.I.R. and that the prosecution witnesses are related to the victim, thus no reliance can be placed on their evidence. It was submitted that there are discrepancies in the statements of the eye-witnesses, which go along way to prove the falsity of the prosecution case. It was also submitted that there is no medical evidence which may corroborate the ocular version in this case. He criticised the evidence of recoveries mainly for the reason that no independent witness was associated at the time of recovery, when admittedly Lambardar of the village was available at the spot. It was lastly submitted that the entire prosecution story is highly improbable, as it was not possible for the appellant to have entered into the Haveli of the complainant at noon time and to commit rape upon a girl of tender age.

8. Learned counsel appearing on behalf of the State, on the other hand, stated that the prosecution in this case has succeeded to bring home the guilt to the appellant and the delay in lodging the F.I.R. in such cases was not material. It was also submitted that the evidence of recovery fully proves that the appellant had made an attempt to commit rape upon the victim.

9. I have heard learned counsel for the parties and perused the relevant record in the light of their submissions. The eye-witness account furnished by Mst. Bakht Bibi P.W.3, who was victim 3t the hands of the appellant and the details of the occurrence narrated by her not only inspire confidence in her deposition but her testimony rings to be true. She was subjected to searching cross-examination but the manner she stood the test of the questions put to her in cross-examination, clearly shows that she spoke nothing but the truth. Her statement was also supported on all material points by the evidence of her brother who was younger to her and who also gave correct version of the occurrence. I am left with least doubt in my mind regarding the occurrence as described by these two P.Ws. and full reliance can be placed on their evidence for the purposes of assessing the truth or falsehood of the case. Even if the evidence of Nazir P.W.4, who consciously suppressed his relationship with the complainant, or the victim, is taken out of consideration and the evidence of recovery is also discarded, the prosecution has succeeded, in my view, to establish its case against the appellant beyond reasonable doubt. The evidence of Muhammad Nazir and other P.Ws. lends some support to the ocular version given by Mst. Bakht Bibi P.W.3 and Muhammad Siddique, her brother, P.W.5. No enmity whatsoever was attributed to the prosecution witnesses to have falsely implicated the appellant in this case. It is true that no one would be prepared to involve someone with whom he had no serious enmity at the cost of degrading the honour of his unmarried daughter. The delay in lodging the F.I.R. in the circum stances of the instant case, would not be fatal and was reasonably explained as well, by the prosecution. The occurrence had taken place in the noon time when the victim was alone in her house. The possibility of the mistaken identity of the appellant was, therefore, beyond comprehension. The discrepancies pointed out by the learned counsel for the appellant in the prosecution evidence were minor and were not sufficient to dismantle 5 the prosecution case.

10. After scanning the evidence on the record and hearing learned counsel for the parties at length, I am satisfied that the prosecution has established the case against the appellant beyond reasonable doubt and he was rightly convicted by the trial Court.

11. As regards the quantum of sentence, I feel that the sentence or four years' rigorous imprisonment and the amount of fine imposed by the trial Court for the offence under section 376/511, P.P.C. was adequate but the punishment awarded to the appellant under section 451, P.P.C. to undergo rigorous imprisonment for two years in addition to fine of Rs. 500 was excessive, in the circumstances of the instant case. I reduce his sentence under section 451, P.P.C. to one year's R.I. and a fine of Rs. 500 and further order that both the sentences imposed upon the appellant under section 376/511, and under section 451, P.P.C. would operate concurrently. The amount of fine, if realized from the appellant, shall be paid to the complainant by way of compensation. In case of default in the payment of fine, as ordered by the learned trial Court, the appellant shall undergo the period of imprisonment as already mentioned in the impugned judgment of the trial Court. In the result the orders of conviction of the appellant under section 376/511, P.P.C. and under section 451, P.P.C. are maintained and his sentence is reduced as indicated above. The appeal is disposed of accordingly. M. Y. M. Order accordingly.