1998 PLP 796 (MLD)

ABDUL WAHEED SIDDIQUI, J.

Firdaus Begum appellant has assailed a judgment delivered by Additional Sessions Judge, Talagang on 31-1-1995 whereby he has acquitted respondents Nos. l to 3 i.e. all the accused from the charges under articles 11 and 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 hereinafter to be referred to as the said Ordinance.

2. One Mazullah (P.W.10), appeared at Police Station Tamman Tehsil Talagang and filed a complaint Exh. PE stating therein that, his cousin Mst. Firdos Begum (P.W.8) has been residing with his sister Mst. Amir Begum in village Dher Mund in the house of her demised father Charagh Muhammad and his sister is a divorced lady. He himself resides out of the village in some Dhoke. On 13-11-1993 his sister Amir Begum informed him that in the after noon time on the same date both the ladies went out of village to bring fodder for the cattle and that she sent Mst. Firdos Begum back to the village. In the evening time at about 5 p.m. she saw that Mst. Firdos Begum was not present in the house. All of them tried to find her but could not locate her. Since Mst. Firdos Begum has been ailing since many days and has been going for medicine to the Rural Health Centre, Ban Hafiz Ji, Mianwali, so they had a suspicion that a dispensar of the said Rural Health Centre Amanullah and Abdul Ghaffar and Allah Ditta of the said Rural Health Centre might have abducted Mst. Firdos Begum with the assistance of some other persons of the village. Since then they have been trying to find her but could not succeed. Hence the complaint which was moved on 19-3-1993 that is one month and 11 days after the date of the occurrence per Exh. PE. On the basis of this complaint on 24-12-1993 F.LR (Exh.PE/1) was lodged at Police Station Tamman and the police arrested Allah Ditta and Abdul Ghaffar as well as Abdul Sattar and Muhammad Iqbal Shah. They were kept on physical remand for about 14 days, but no evidence could be collected against them. Finally Muhammad Banaras, Inspector/SHO (P. W.11) got discharged all the arrested persons from the Court of Area Magistrate on 24-2-1994.

3. On 25-4-1994 the complainant Mazulah (P. W.10) informed Muhammad Banaras, (P, W.11) Inspector/S.H.O. Police Station Tamman that his cousin Mst. Firdos Begum (P.W,8) had been kept in Darul Aman, Sargodha. On the basis of this information the said S.H.O. reached 'Sargodha on 28-4-1994 and on the following day recorded the statement of Mst. Firdos Begum under section 161, Cr. P. C. in the Darul Aman. He stayed there for sometime to get the said Mst. Firdos Begum transferred from Darul Aman, Sargodha to Talagang but failed. On 14-6-1994, Mazullah the complainant produced Mst. Firdos Begum before the abovementioned SHO to get her statement recorded under section 164, Cr.P.C. in the Court of Area Magistrate who also recorded her statement under section 161, Cr.P.C. Mst. Firdos Begum was got medically examined on 15-6-1994 through Muhammad Zubair A.S.I. The said A.S.I., produced before the abovementioned SHO sealed parcel of vaginal swabs of Mst. Firdos Begum alongwith an envelope. Out of all the present respondent Nos. 1 to 3, Mst. Kousar Sultan was arrested on 21-6-1994 and accused Abdul Sattar produced a death certificate Exh. PJ of his brother and co-accused " Muhammad Yousaf and respondent Muahmmad Iqbal was arrested on 9-8-1994. Accused Abdul Sattar was arrested on 14-9-1994 and all the three accused/respondents were challaned and charged under article 11 and 10(3) of the said Ordinance to which they did not pled guilty.

4. Prosecution examined 11 witnesses and all the three respondents/accused gave statements under section 342, Cr.P.C., but declined to be examined on oath, however, Mst. Kausar Sultan (respondent No.3) tendered some documents in evidence for her defence. Dr. Saeed Ahmed (P.W.1) deposed that he medically examined respondent Abdul Sattar aged 35 years on 6-8-1994 and found him fit to perform sexual intercourse. He also examined respondent Muhammad Iqbal Shah on 9-8-1994 and found him fit to perform the said act. Muhammad Zubair (P.W.2), A.S.I. deposed that on 15-6-1994 he produced Mst. Firdos Begum aged 18 years before W.M.O. D.H.Q. Hospital Chakwal and made an application Exh. PC for her medical examination The lady was examined on the same date and lady doctor gave him a sealed parcel of vaginal swabs which were produced by him before the S.H.O. on the same date who took it into his possession, vide Exh. PD. Malik Fateh Khan, (P.W.3), S.I. deposed that on 8-2-1994 he was posted as S.H.O Police Station Tamman He arrested Abdul Ghaffar and Allah Ditta and after necessary investigation got them discharged from the Area Magistrate as they were found to be innocent. Ch. Muhammad Aslam (P.W.4), S.I. has proved the recording of the F.I.R. Exh.PE/1 on the basis of an application Exh. PE moved by complainant Mazullah on 24-11-1994. Tariq Masud, (P.W.5), Constable has proved that on 16-6-1994 Gulzar Hussain Moharrir gave him a sealed parcel which was said to contain vaginal swabs of Mst. Firdos Begum intact and he delivered the said swabs in the office of the chemical examiner, Rawalpindi on the same day. Gulzar Hussain (P.W.6) H.C. Moharrir has proved that on 15-6-1994 Raja Muhammad Banaras, S.H.0. (P.W.11) gave him a sealed parcel intact which he had kept in police Malkhana and then handed over the same to Tariq Masud constable (P.W.5) intact on 16-6-1994 for its onward transmission to the concerned office. Muhammad Yousaf Chaughtai (P.W.7) Judicial Magistrate 1st Class, Talagang, has proved that on 14-6-1994 Mst. Firdaus Begum was produced before him and he recorded her statement under section 161, CI.P.C. and at that time she was accompanied by her uncle Abdullah and Mazullah complainant. During cross he has admitted that in fact this statement of Mst. Firdaus Begum was not independent. Mst. Firdaus Begum (P. W.8) the alleged victim lady has deposed during her examination-in-chief that her father, mother, brothers and sisters are not in this world. She permanently resides in her own house alongwith her cousin Mst. Amir Begum who is a divorced lady. She has further deposed that about one year back at about Peshi-Wela she returned home after cutting fodder for their buffalo. During those days she was not feeling well and Mst. Kausar accused/respondent No. 3 came to her and asked for accompany to Ban Hafiz Ji for fetching medicines. Consequently, she boarded a Datsun alongwith Mst. Kousar and reached at Bus Stop Dhoke Phullari. Then they came down from the vehicle at late Peshi-Wela and there then accused Muhammad Iqbal (respondent No. l) and Abdul Sattar (respondent No.2) came there. Muhammad Yousaf was also with them but had demised later on. All of them took her in a bus to some unknown destination and kept her in a room in some village for about 2/2-1/2 months. Accused Mst. Kausar (respondent No. 3) asked her to marry with accused Iqbal but she refused to do so. Respondent No. 1 and 2 as well as the demised Muhammad Yousaf remained committing forcible rape upon her during all this period. Mst. Kausar also snatched her ornaments, On one night she opened the door of that room and started running towards as unknown destination. On her way in the same village, an unknown person met her to whom she did not disclose her particulars and he took her to Sargodha in a coach. He produced her before a Magistrate of Sargodha who sent her to Darul Aman where she stayed for about 4/5 months. Thereafter Tamman Police met her at the said Darul Aman but she did not make any statement about this occurrence and refused to accompany with her relations. Lateron, Mazullah and Abdullah contacted her again with police and she decided to accompany them to Talagang where she made her statement before the Magistrate. She was also medically examined in D.H.Q. Hospital Chakwal. During cross she has admitted that first Wagon in which she had boarded from her village was driven by her co-villager. The second bus which she had boarded into the company of the accused persons (respondent No. 1 to 3) was over loaded with passengers. She also admitted that in her previous statement dated 16-9-1994 she had disclosed that the said accused persons/respondents took her in Mianwali bound bus and she also admitted that she was brought down from the bus by the said accused persons at a bus stop of some big city and alt passengers also got down at the bus stop. To a suggestion she has admitted that she had visited Ban Hafiz ii so many times in the company of Mst. Kausar (respondent No. 3) and Sattar (respondent No. 2). She has also admitted that she did not ask driver of the bus or any co-passengers to stop the bus at her destination Hafiz Ban ii and instead continued her tourney without protest upto the bus stop of a big city where they had stepped down from the bus and that there were so many people and vehicles of every type. She has also admitted that she kept quite at the bus stop of that big city and did not seek the help of any one to get rid of the accused persons as they had betrayed higher confidence. She has also admitted that from that bus stop she accompanied the accused persons/respondents in the passenger Van to some unknown place and she did not seek help of any co-passengers to get herself freed. She has also admitted that the place where she was kept for 2/2-1/2 months was surrounded by inhabited houses. She has deposed that she offered maximum resistance whenever- the rape was being committed with her and the last rape which was committed with her was 10/12 days before her escape. She has also stated that she had resisted each and every act of rape. She has also admitted that before the present occurrence accused Mst. Kausar (respondent No. 3) had never asked her to marry with Iqbal accused/respondent No. l despite the fact that she used to visit off and on. She has also admitted that after escape she remained running on the road for about an hour, till she came across an unknown person to whom she did not disclose her particulars. She has denied that in her police statement Exh. D.A. she had stated that accused Mst. Kausar was sleeping in the room of her detention when she made good her escape. When confronted with Exh. D.A. it was found that her denial was a misstatement. She has also admitted that she has stated in her previous statement that after coming from the room she had boarded in a coach where an old man met her and took her to Sargodha and kept her in his house for a night and in that house his wife and daughters were also residing. She-had not disclosed that occurrence to the ladies or that old man nor she told him to take her to the police. She has admitted that she did make the application on the basis of which she was sent to Darul Aman by a Magistrate at Sargodha and an Advocate had also appeared with her before the said Magistrate. She made a statement before the Magistrate at Sargodha wherein she has admitted that she mentioned that her uncle was a cruel man who wished to marry her with an old man and she was not ready to go with that old man but then she voluntarily stated that she had done so out of the fear of the accused persons/respondents. To a suggestion she has admitted that the accused/respondents were not present at Sargodha when she made the statement before the Magistrate at Sargodha. But again she has voluntarily stated that she was forced by the accused to make such statement. But again she has admitted that at time of such statement the accused persons were not present. She has also admitted that she had not seen the accused/respondents after she made good her escape. She has admitted that she made such an application before the Magistrate on 27-2-1994 and on the basis of that application her statement was also recorded on the same day. She has also admitted that on an application of her uncle Abdullah she was summoned from Darul Aman by the same Magistrate Sargodha for recording her statement and she stated in the said statement before the said Magistrate that she apprehended danger to her life from the persons with whom the police proposed to send her and that she also stated that she wished to go to the house of her maternal uncle and maternal grand father and that she should be kept in Darul Aman. She has admitted further that she appeared before the same Magistrate on 7-6-1994 and did not state that she was not abducted by anyone and that she had left the house due to the cruelties of her uncle Sardar Ali. When confronted with this statement it was found that,it was so recorded per Exh. D.B. which reads as under:-- She has also admitted that on 29-5-1994 a. Thanedar of Police Station Tamman met her in the Darul Aman at Sargodha and she stated before the said Thanedar on the same day that she was not abducted by any one. In fact she had stated before him that due to misbehaviour of her cousin Mst. Amir Begum she had left the house for Mianwali after borrowing Rs. 1,000 from her neighbour Muhammad Yousaf. She has admitted that in this statement she had stated that a Pathan met her at Mianwali who took her to his house where she stayed for about 2/2-1/2 months and then one day she made good escape from the house of the said Pathan due to the fear that he might sell her but then she voluntarily stated that she had made a false statement before the Thanedar out of fear of the accused persons/respondents. She has also admitted that during her stay at Darul Aman at Sargodha she had not disclosed this occurrence to the Superintendent or to the women kept there. To a suggestion she has stated that till returned to the house from Darul Aman Sargodha she was straight away taken to the Magistrate at Talagang where she made her statement Exh. P.G. She had admitted that she disclosed about the prosecution story for the first time in her statement dated 14-6-1994 Exh. P.G. To a suggestion she has denied that she is a woman of bad character and is capable of making any false charge against any one. Lady Dr. Muneera Jalil (P. W.9) has deposed that on 15-6-1994 she medically examined Mst. Firdos Begum aged 18 years and found her young unmarried girl of average built and no mark of violence was present on any part of her body. On P/V examination the vagina of the alleged victim was found to admit 2 fingers easily. She has further deposed that she took three vaginal swabs of the alleged victim and sealed them in a bottle for their onward transmission to the office of the Chemical Examiner Rawalpindi for detection of semen and grouping and she reserved final opinion in her report Exh. P.H. On the basis of the report of the chemical examiner which was received later vide Exh. P.I. and was to the effect that the swabs were found stained with semen, this witness has given her opinion that the examinee was subjected to sexual intercourse before her medical examination. During cross this witness has admitted that the examinee was habitual to sexual intercourse and that vagina normally retains semen for about 19 days after sexual inter-course. Mazullah (P. W.10) the complainant has proved his complaint Exh. P.E. and has also deposed that Charagh Muhammad, his uncle and the father of Mst. Firdos Begum had died about 8/10 years back and before his death his wife also died. Muhammad Banaras (P. W.11) Inspector/S.H.O. Police Station Tamman has deposed that on 15-4-1994 the investigation was taken up by him. He had taken statement of Mst. Firdos Begum under section 161, Cr.P.C. in the Darul Aman and got recorded her statement in the Court of Area Magistrate later. He had arrested accused /respondents and had got medically examined respondents Nos. 1 to 2 for potency. During cross he has admitted that on 29-5-1994 Mst. Firdos Begum had made statement before him at Darul Aman that she was not abducted or raped by any one and that she had left her house to fetch medicines from a doctor but instead of getting medicines she accompanied with a woman who took her to Mianwali from where an old man accompanied her to Sargodha and got her housed in Darul Aman. He has also admitted that there are two contradictory statements of Mst. Firdos Begum and he also examined the report of the lady doctor according to which no mark of violence was there on the body of Mst. Firdos Begum. Since Mst. Firdos Begum had supported the charge against the present respondents /accused before the Magistrate, therefore, he had given preference to her own statement before him in the Darul Aman. He had thought that this P. W might have suppressed the actual facts out of the fear of police. In their statements under section 342, Cr.P.C. the respondents /accused have denied all the specific questions asked from them. To a question as to why this case was brought against them, Syed Muhammad Iqbal Shah (respondent No. 1) aged 28 years Post Master and being in Government service has replied:-- "Mst. Firdos Begum P. W. is a woman of bad character and she is capable of making any false allegation against anyone. She made contradictory statements before the Investigator. At one time she repudiated the charge before the Investigator but later on supported the charge under some legal advise. The case has not been investigated on facts." Abdul Sattar (respondent No. 2) and husband of Mst. Kausar (respondent No. 3) has replied to the same question as under:-- "I am married. My wife is also my co-accused I have falsely been involved by the complainant and the abductee with ulterior motive." Mst. Kausar (respondent No. 3) has replied:-- "I tender in defence evidence a certified copy of an application of Abdullah addressed to a Magistrate at Sargodha Exh. D.C., endorsement of the Superintendent Darul Aman Sargodha, dated 5-6-1994 recorded at the foot of said application Exh. D.G./1, certified copy of an order of the Magistrate, dated 7-6-1994 Exh. D.C./2, certified copy of an application of Mst. Firdos Begum P. W. addressed to a Magistrate at Sargodha Exh. D.D. and a certified copy of a statement of Mst. Firdos Begum dated 27-2-1994 Exh. D.E. and close my defence."

5. We have heard the learned counsel for the respondents and State. The counsel for the appellant has contended that F.I.R. Exh. P.E./1 and complaint Exh. P.E. were lodged at a time when victim lady was missing, and was not in contact with the complainant and therefore the names of the proper accused persons could not be mentioned and the names which were mentioned in the F.I.R. were given on suspicion and, therefore, in the circumstances of the case no allegation is maintainable so far as the bona fides of the complaint is concerned and that victim lady became totally clear about the guilt of the accused/respondents when she made her statements under section 164, Cr.P.C. before the Magistrate Exh. P.C. Before this statement she had made statements under section 161, Cr.P.C. due to apprehension and that she was constrained by sufficient cause not to have disclosed the real facts earlier and that she is corroborated by medical evidence. The learned counsel for the respondents has contended that the statement under section 164, Cr.P.C. is an allegation of abduction on 13-11-1993 and she escaped from the alleged confinement of two and half months after which she got herself lodged in the Darul Aman for about 4 or 5 months. Last rape, according to her, was committed upon her 10 or 12 days before her escape. According to him semen could not be detected from the swabs which could have its origin amongst the appellants. Counsel for State has also adopted the contentions of the counsel for respondents and has supported the impugned judgment.

6. At the outset we are bound by the ruling of the Supreme Court of Pakistan concerning criminal acquittal appeals/revisions. Inter alia, a ruling appearing at placentium A of 1994 SCMR 1928 is hereby quoted:-- "Consideration for interference in an appeal/petition against acquittal and in an appeal/petition from conviction are altogether different. The well-settled principles for the appreciation of appeals against acquittal are: (i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial that till found guilty he is innocent, and two that after his trial a Court below has confirmed the assumption of innocence; (ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion: (iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same the Supreme Court, would not interfere; (iv) that unless the judgment of acquittal is perverse and the reasons therefore are artificial and ridiculous, the Supreme Court would not interfere; and (v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too with a view only to avoid grave miscarriage of justice and for no other purpose." Keeping in view the principle of law enunciated by the apex Court, we have considered the contentions and arguments addressed by the learned counsel for the parties with caution and have carefully appreciated the impugned Judgment. The deposition of alleged victim Mst. Firdos Begum (P. W.8), as summarised in para. No. 4 of this judgment, is a clear piece of anomalies, and there are so many somersaults and self-annihilating statements that it is not possible for us to believe her as a trustworthy witness. She is not at all corroborated by any one and even the medical examination is coming up against her. According to lady Dr. Muneera Jalil (P. W.9) the alleged victim Mst. Firdos Begum was examined medically on 15-6-1994 and was found to be a habitual to sexual intercourse. The three vaginal swabs taken on this date i.e. 15-6-1994 were found to be stained with semen by the chemical examiner vide Exh. P.I. According to the opinion of the lady doctor vagina retains semen for about 19 days after sexual intercourse. It is the case of the alleged victim that after having escaped from illegal confinement, she was kept at Darul Aman, Sargodha for about 4 or 5 months and the last time she was subjected to rape was 10 or 12 days before her escape. He has herself deposed that during all this period no male had ever contacted her except her own uncle and right up to the day on which she was medically examined. In view of this fact we are clear that the positive report of the chemical examiner per Exh. P.I. is not pertaining to the appellants. The victim lady seems to have been indulging in the sexual inter course with her own consent at various intervals of time and to the extent that B her vagina could admit two fingers easily. Again, the alleged victim lady has deposed that she remained resisting assault of rape upon her but medical evidence, per deposition of P. W.9, is clear that no mark of violence was on any part of her body. We are not satisfied with the explanation of the alleged victim lady that her earlier misstatements before the police officials were due to the fear of the appellants especially when she has admitted that after escape from the clutches of the appellants she had not seen them nor were they coming after her. She was kept in the Darul Aman Sargodha and she could have easily stated of the real factual position before the Investigating Officer, We have also noted with concern that on different occasions she has been changing her position while giving statements under section 161, Cr.P.C. It appears, prima facie, that this case is based on criminal conspiracy against the appellants. We have not found any perversion in the impugned judgment and reasons given in the said judgment are neither artificial nor ridiculous. We had already dismissed this Criminal Acquittal Appeal by our short order and these are the reasons for the said short order. H. B. T./1176/FSC Appeal dismissed.