1984 P Cr (PLP)

The two petitioners alongwith Muhammad Hanif were convicted by a Magistrate Ist Class, Multan, under section 354/34, P.P.C and sentenced to 2 years' R.I. each. On appeal the learned Additional Sessions Judge, while acquitting Muhammad Hanif maintained conviction and sentence of both the petitioners, which has been challenged through this revision.

2. Briefly stated facts of the case are that on the night between 11/12th June, 1980, Mst. Ghulam Kubra (P.W.6) was sleeping in her house while her husband Ghulam Farid (P.W.2) had gone to attend his night duty in Allah Wasaya Mills. During the sleep she felt that some body was pressing her mouth. She worke up and saw Muhammad Sharif petitioner gagging her mouth with his hands, Rafiq petitioner was holding her by her arms as a result of which her bangles were broken while Muhammad Hanif (acquitted accused) standing near the wall of the house was exhorting the petitioners not to release her. She raised alarm which attracted her neighbourers namely, Allah Ditta (P.W. 3), Muhammad Yasin (P.W.4), and Muhammad Ramzan (P.W.5). On seeing them the peti tioners took to their heels and disappeared. Both the petitioners and Muhammad Hanif (acquitted accused) were allegedly identified in the light of a lamp. She told her husband about this incident on his return from the duty, who then went to inform father of Mst. Ghulam Kubra P.W. in a village in the jurisdiction of Police Station Jenanian. On 14th June, 1980, she was going to the police for reporting the matter in the company of her father and her husband and met Sahib Dad, A.S.I. (P.W. 1) near B.C.G. Chowk, who recorded her statement Exh. P.A. and sent the same to Police Station Mumtazabad for recording formal F.I.R. The case was investigated and sent up for trial.

3. The petitioners and Muhammad Hanif (acquitted accused) were charged under section 452/354 read with section 34, P.P.C. to which they pleaded not guilty and claimed to be tried.

4. The prosecution relied on the testimony of Mst. Ghulam Kubra (P.W.6) and the eye-witnesses namely, Allah Ditta (P.W.3), Muhammad Yasin (P.W.4) and Muhammad Ramzan (P.W.5) besides the Investigating Officer Sahib Dad A.S.I. (P.W.1). The case of the accused petitioners was one of denial and they called four witnesses in their defence namely, Master Muhammad Yaqoob (D.W.1), Muhammad Yousaf (D.W.2), Haji Abdur Rashid (D.W.3) and Ata Rasul (D.W.4). DW-1 and DW-2 stated that they lived in the neighbourhood of Mst. Ghulam Kubra (P.W.6) and that no occurrence as narrated by the prosecution witnesses ever took place in the house of Mst. Ghulam Kubra P.W. D.W-3 stated that Allah Ditta, Muhammad Yasin and Muhammad Ramzan P.Ws. never resided in Mohallah Haiderpur, a locality where Mst. Ghulam Kubra lived during the days of alleged occurrence. Ata Rasul D.W-4, the Head Time-keeper in Allah Wasaya Mills stated that he knew Ghulam Farid P.W. husband of Mst. Ghulam Kubra P.W. who was not on duty in the night shift on the night between 11/12th June, 1980, rather he used to attend his duties from 6-00 a.m. to 2-00 p.m. in those days. He produced the attendance register in Court, according to which Ghulam Farid P.W was marked present on 11th June, 1980 and 12th June, 1980 from 6-00 a.m. to 2-00 p.m., in the mills.

5. After considering the material on record the learned trial Magistrate held that because the courtyard where Mst. Ghulam Kubra P.W was sleeping on the night of occurrence was in common use of both Muhammad Sharif petitioner and Mst. Ghulam Kubra P.W., therefore, offence under section 452 P.P.C was not made out. However, he held the petitioners and Muhammad Hanif (acquitted accused) guilty under section 354 read with section 34, P.P.C and sentenced them to two years' R.I. each. The convicts/p6litioners preferred an appeal to the learned Additional Sessions Judge who vide his order dated 6th November, 1982, acquitted Muhammad Hanif but maintained the conviction and sentence of both the petitioners. Feeling aggrieved the petitioners have filed the instant revision petition challenging both their conviction and sentence.

6. I have heard the learned counsel for the petitioners as well as for the State and also perused the record.

7. Admittedly the incident was reported to the police after about three days of the occurrence. In the F.I.R. Mst. Ghulam Kubra stated that her husband had gone to inform her father about the occurrence in a village in the jurisdiction of Jehanian Police Station. therefore, the report was delayed.

8. When examined in Court, she stated that on the morning following the day of occurrence at 6.30 a.m. her husband returned from duty and she told him about the occurrence, who went to inform her father. The same evening her husband and her father arrived and after holding consultation for some time, they went for, the report. If it were so, then the case should have been registered on the evening of 12th June, 1980. Contrary to this the case was registered in the evening of 14th June, 1980, therefore this delay of two days remains unexplained, which certainly has cast grave doubt as to the genuineness of the case.

9. The most important witness in this case is Mst. Ghulam Kubra complainant herself. She has made deliberate and irreconcilable improvements upon the story she narrated in F.I.R. Exh. P.A. e.g., she stated at the trial that Muhammad Sharif slapped her in the face, Rafiq and Muhammad Sharif petitioners caught her by her one arm each and pulled her breast; Rafique broke the string of her Shalwar and that when the witnesses reached there the petitioners as well as Muhammad Hanif (acquitted accused) threatened them on the point of knife not to come near them. These assertions do not at all find mention in the F.I.R. The eye-witnesses namely, Allah Ditta (P.W.3), Muhammad Yasin (P.W.4) and Muhammad Ramzan (P.W.5) have further exaggerated the prosecution story by saying that Rafiq accused had lifted the legs of Mst. Ghulam Kubra at the time of occurrence. This allegation has not even been made by Mst. Ghulam Kubra (P.W.6) against Rafiq petitioner either in F.I.R. or in her statement before the Court. These embellishments on the part of the prosecution witnesses unmistakably establish that they have no qualms of conscience and had improved upon the prosecution case in an attempt to make the incident look graver with an intention to obtain conviction of the petitioners at all cost. It is noteworthy that Mst. Ghulam Kubra P.W . whose Shalwar's string was broken and clothes were allegedly torn out, during the scuffle were not identified by her in Court. Again she was not medically examined which means that she carried no injury or mark on her person to show if she was involved in any scuffle with the petitioners as alleged by her.

10. Last but not the least, the story of the prosecution that Ghulam Farid husband of Mst. Ghulam Kubra P.W had gone to attend his night duty in Allah Wasaya Mills on the night of occurrence has been disproved by the Head Time-keeper of the Mills with the help of relevant register. This fact appears to have been introduced to make the Court believe that the petitioners had dared to outrage the modesty of Mst. Ghulam Kubra P.W. when her husband was absent.

11. In view of the unexplained delay of 2 days in making report to the police; deliberate improvements made in the prosecution story by witnesses and also the absence of any mark of violence on the person of Mst. Ghulam Kubra P.W. I find that the prosecution story is not free from doubt. The conviction and sentence of the petitioners cannot therefore be maintained. In result I allow this revision petition, set aside the conviction and sentence of the petitioners and acquit them. They be released forthwith if not wanted in any other case. M.Y.H. Revision accepted.