2002 PLP 1142 (YLR)

During the trial prosecution examined as many as 12 witnesses to prove the guilt of the accused. The medical evidence was furnished by Dr. Javed Khalid Mehmood P.W.1 who on 8‑9‑1999 medically examined Muhammad Boota and Muhammad Riaz accused. They were found fit to perform sexual intercourse. On 1‑9‑1999, Dr. Kalsoom P.W.10 had medically examined Mst. Latifan Bibi but found no mark of violence or suspicious stains on her body and clothes were found. She took vaginal swabs of detection of semen and grouping and dispatched the same to Chemical Examiner and according to the report of Chemical Examiner Exh.P.G, she was of the opinion that sexual act has not been proved with victim. The ocular account was furnished by Noor Muhammad P.W.7 who was complainant of the case. He supported the version of the F.I.R. Mst. Latifan Bibi, victim of the occurrence was examined as P.W.8. She supported the prosecution story and narrated the occurrence that she had gone in the fields to ease herself alongwith her son and all of a sudden accused Muhammad Boota and Muhammad Riaz abducted her on pistol-point and took her to the Girls High School where Muhammad Riaz was serving as Chowkidar and had the keys of the building where Muhammad Riaz and Muhammad Boota committed Zina‑bil‑Jabr with her one by one and took naked photographs while committing Zina and she was also threatened for dire consequences in case of disclosure and her naked photographs would be displayed in the chowk of the village. She in order to save her family honour and married life remained silent. Muhammad Bashir P.W.9 was an eye‑witness of the occurrence. He supported the prosecution case by stating that he had seen both the accused committing Zina‑bil‑jabr with Mst. Latifan and they also took her naked photographs. Sanawar Hussain A.S.I. P.W.2 had registered the formal F.I.R. Exh.P.D/1. Ahmad Iqbal A.S.I. P.W.5 had recorded the statements of Rab Nawaz HC and Shan Muhammad, HC under section 161, Cr.P.C. who had kept the sealed parcels in safe custody and delivered to the office of Chemical Examiner Rawalpindi, Javed Amir FC P.W.6 had got Mst. Latifan medically examined on 31‑8‑1995. Muhammad Khan PC P. W. 11 had attested the recovery memos. Exh.P.H and Exh.P.I whereby Muhammad Riaz had got recovered Camera P.5 and the negatives of the film/photos and Muhammad Riaz got recovered photographs P.1 to P.4. Muhammad Ashraf A.S.I. had investigated the case and submitted the challan of the case its mentioned above. The statements of the accused were rerecorded under section 342, Cr.P.C, towards the end of the trial. They had denied the allegations and claimed their innocence and false involvement. Muhammad Boota in reply to Question No 7 as to why the case against him and the P.Ws. deposed against him he answered as under:‑ "I am a poor man. I have been involved in this case due to friendship with my co‑accused Muhammad Riaz, who was injured by complainant party while demanding back Rs.9000 of loan. I and my family members supported opponents of Mirza Younas Baig Ex Member Zila Council as well as Muhammad Ashraf Kalyyar, Ex.P.M.A. I have been made escape-goat at the behest of said Mirza Younas Baig and Ashraf Kalyyar, Ex.M.P.A." While Muhammad Riaz replied to the same question as under:‑ "No such occurrence ever took place. I run a Karyana shop in Chak No. 122/SB. Mst. Latifan alongwith her brother Muhammad Siddiq used to take articles from my shop on loan. Rupees nine thousand were due against Mst. Latifan Bibi. Prior to registration of this caw I demanded my loan from Mst. Latifan Bibi and her brother Muhammad Siddiq upon which Muhammad Siddiq attacked and injured me from which F.I.R. No.254 of 1998 was registered against staid Muhammad Siddiq who was found guilty and was challaned, Before registration of instant case evidence was summoned in that case against above said Muhammad Siddiq. Mst. Latifan Bibi got this false case registered against me to force the to defect compromise and desist front claiming outstanding loan of nine thousand. Due to intervention of respectables while I was in custody in this case I forgave Muhammad Sidique brother of Mst. Latifan in the name of Almighty Allah and my statement in this regard was recorded by the Court on 20‑4‑2000 upon which Muhammad Sidique abovesaid was acquitted. I am innocent. The P.Ws. have falsely involved me due to above said grudge and further to take money for blackmailing." Muhammad Riaz produced in his defence copies of order of Court Exh.DC and Exh.DD. The trial culminated into conviction of the appellants as mentioned above. Both of them have filed Criminal Appeal No. 1373 of 2000 challenging their conviction and sentence while the trial Court has sent upon Murder Reference No.560‑T of 2000 for confirmation of death sentence of the appellants, Both the matters are being disposed of by this judgment. Learned counsel for the appellants has argued that the case is false that the victim Mst. Latifan Bibi was married lady and case has been got registered with an unexplained inordinate delay as a counter-blast to the case got registered by Muhammad Riaz, appellant against Muhammad Siddiq son of the complainant (brother of the victim) in which Muhammad Riaz appellant had forgiven Muhammad Siddiq accused in the name of Almighty Allah by waiving right of qisas and diyat, due to intervention of the respertables but the complainant refused to compromise the instant case that the testimony of thaw victim has not been corroborated by any other independent source; that the medical report is in negative, therefore, the case of the prosecution has not been proved against the appellants and their appeal be allowed and they be acquitted of the charge. Conversely, the appeal has been opposed by the learned counsel for the State who has supported the impugned judgment. Heard. Record perused. It is correct that F.I.R. was lodged with delay of 15/16 days but the explanation furnished by the complainant is reasonable as Mst. Latifan, victim was married and the accused had taken naked photographs while committing Zina with her and in order to save her honour and married life she did not disclose this fact to any other member of the family. She also requested Muhammad Bashir who was eye‑witness of the occurrence to be silent. Her conduct was natural. The accused had taken the photographs in order to blackmail her. They had also threatened her, therefore, she disclosed this fact to her mother in confidence who informed the complainant. We do not find this delay fatal to the prosecution cases. The motive as alleged for false implication by Muhammad Riaz appellant that it was as a counter‑blast to the case he got registered against Muhammad Siddiq, brother of the victim does not appeal to common sense, as nobody how so poor may be, will not involve his daughter to pressurize the complainant of a case of assault, The negative report of Chemical Examiner is also of no use to the accused. As Mst. Latifan was admittedly a married lady and mother of two children. She was medically examined after a period of more than two weeks. Even without medical report the photographs got recovered by the accused themselves is sufficient proof of committing Zina by the accused with the victim Although they have denied for having these photographs and it has been argued that recovery has been planted but this argument has also no force. The stand of the learned counsel that from the photographs it appears that Mst. Latifan victim was wearing warm clothes which shows that the photographs were taken in winter while the alleged occurrence took place in the month of August, therefore, these photographs were not taken as alleged by the prosecution but we find that no such objection was raised during the trial and no question in this regard was put to the victim. Therefore argument is repelled. After reappraisal of evidence that the accused/appellants have committed the alleged offence of Zina with the victim and also taken the photographs to blackmail her even in future which is highly immoral act. There is no reason for their false implication or substitution. The statement of victim stands corroborated by the photographs. It is correct that Muhammad Bashir P.W.9 has narrated the story as told to him by the victim but even without taking into consideration his statement the prosecution has successfully proved its case against the appellants beyond any reasonable doubt. However, we find that it is not proved that both the appellants have committed Zina one by one at the same time and took the photographs. The photographs P.6/1‑4 do not indicate that those were of both the accused taken on the same day and time and the statement of the victim (Mst. Latifan) in this regard has not been corroborated by any other independent evidence. The swabs were not found or sent for grouping/comparison, therefore, in safer administration of criminal justice we find that their case falls under section 10(3) ibid instead of 10(4) ibid and also section 11 ibid has been established. We accordingly alter the conviction from section 10(4) to section 10(3) ibid and reduce the sentence to 10 years' R.I. on each count. The punishment of fine is also reduced to Rs.10,000 each in default thereof to undergo six months' R.I. each. Both the sentences will run concurrently. Benefit of section 382‑B, Cr.P.C. will be available to them. The appeal is dismissed with the above modification. Death sentence of appellants is not confirmed. Murder Reference is answered in the negative. N.H.Q./M‑1074/L Order accordingly.