1985 P Cr (PLP)

Dates of hearing: 2nd and 3rd June, 1984. The appellant was sent up in the Court of the Additional Sessions Judge, Bhakkar, by Kallurkot Police Station, to stand his trial under sections 6/11 of the Ordinance of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) on the allegation of abducting Mst. Nawab Bibi wife of Ghulam Muhammad and committing Zina‑bil‑jabr with her on 29‑8‑1982 at about Degarwela, in the area of village Chah Dhudi. The trial Court charged the appellant under section 10(3) of the Ordinance on 21‑9‑1983 but amended the same to section 10(2) of the Ordinance on 22‑9‑1983 and convicted him under that section sentencing him to suffer R.I. for five years and whipping numbering fifteen stripes. The instant appeal has been filed against the aforesaid conviction and sentences.

2. The facts of the prosecution case as briefly stated are as under:‑‑ Mst. Nawab Bibi, wife of complainant Ghulam Muhammad was cutting grass in her field in village Chah Dhudi at about Degarwela, while her husband Ghulam Muhammad alongwith Muhammad Bakhsh was cleaning the watercourse at a distance of about 150 Karams to the south. Mst. Nawab Bibi married Ghulam Muhammad about five years before the incident and had three children from him. The appellant, a young man aged about 20 years, who was admittedly brother of Mst. Noor Bibi, the previous wife of complainant Ghulam Muhammad, came there and after taking her in Japha forcibly lifted her across the watercourse and took her to Bajra crop where he opened her shalwar and forcibly committed Zina‑bil‑jabr with her. It was further case of the prosecution that Mst. Nawab Bibi raised hue and cry on hearing which her husband Ghulam Muhammad alongwith Muhammad Bakhsh, Amir Muhammad and Ghulam Haider came rushing and all the four saw the accused in the very act of committing Zina. The appellant on seeing them took his Chader and ran away. Mst. Nawab Bibi and her husband Ghulam Muhammad went to the Head of the Minnor for taking bus to the police station to report the matter. However, they could not get any bus and went home. The next day at about 'Fajr‑Wela' they left their house for the police station. On reaching there, however, they were made to sit till Degarwela when the police asked Mst. Nawab Bibi to get herself medically examined before the registration of her complaint. She and her husband then went to the Hospital in Bhakkar and met the lady doctor who, however, refused to examine Mst. Nawab Bibi on the plea that there should be a reference from the police or order of a Magistrate before she medically examined Mst. Nawab Bibi. They then went to Kallurkot and made an application to the Magistrate Kallurkot the next day. On the direction of the Magistrate the lady doctor examined Mst. Nawab Bibi that day and after obtaining the medical report she left for police station. However, on the way to Killurkot bus stand they met the Thanedar and a Foot‑Constable. She then made a report which was taken down by the Thanedar, read over to her and she had thumb‑marked. The Thanedar then sent the report for registration to the police station. The S.I.P. directed the case be shown to be under section 354, P.P.C. The investigation continued and it was on 14‑9‑1982 when the Prosecuting Inspector, Bhakkar, pointed out that the case was one falling under section 11/6 of the Ordinance because Mst. Nawab I3ibi had been forcibly taken from the place where she was cutting grass to the Bajra field where she was raped. Accordingly the case was sent back to the S.H.O., Kallurkot who recorded the supplementary statements of the eye‑witnesses on 20‑2‑1983 about having actually seen the appellant with his male organ penetrating the vagina.

3. On behalf of the prosecution 11 witnesses were examined at the trial namely Dr. Mrs. Arjamand Bano Rafi, who examined Mst. Nawab Bibi, Dr. Nazar Hussain, who examined the appellant for potency; and police officials Amanullah Khan, Inspector Police, Sajjad Hussain Shah, S.H.O. Taj Muhammad, H.C. and Ghulam Akbar H.C. who participated in the investigation, Mst. Nawab Bibi, the prosecutrix, her husband Ghulam Muhammad, and alleged eye‑witnesses Muhammad Amir, Ghulam Haider and Muhammad Bakhsh. 4 The appellant in his examination under section 342, Cr.P.C. denied the charges and stated that the witnesses who were near relations of Ghulam Muhammad, husband of the prosecutrix had deposed against him on account of enmity with him. He further stated that his sister Mst. Noor Bibi was formerly married to Ghulam Muhammad and in return Mst. Azmat Khatoon sister of Ghulam Muhammad had been married to his uncle Gulsher. The aforesaid Azmat Khatoon gave birth to child in the fifth month of her marriage. His uncle Gulsher accused Mst. Azmat Khatoon of giving birth to an illegitimate child and, therefore, there was dispute on account of which he had brought his sister Noor Bibi back and had demanded divorce from Ghulam Muhammad. Due to the dispute Ghulam Muhammad had afterwards divorced his sister and his uncle Gulsher divorced Mst. Azmat Bibi. Mst. Noor Bibi before her divorce had accused Nawab Bibi of loose morals and bad character. Due to all these facts Ghulam Muhammad had felt annoyed and had got him falsely implicated.

5. There can be no doubt about the fact that it was sought to make out an offence punishable with Hadd against the appellant as the requisite number of eye‑witnesses namely four had been put forward to make the statement that they had positively seen the appellant committing the act of Zina namely that they had all seen him penetrating into vagina of the prosecutrix with his male organ. However, for reasons given by the learned Additional Sessions Judge, the evidence of the four eye‑witnesses was not believed and the learned trial Judge for the reasons given by him considered Mst. Nawab Bibi to be a consenting party, and, therefore, convicted the accused only under section 10 (2) of the Ordinance.

6. There were admittedly persons working near the scene of offence and, therefore, if in fact Mst. Nawab Bibi had raised hue and cry, it would not have been possible for the appellant to commit Zina‑bil‑jabr. There were no drag marks on the ground and there were no injuries found on the person of the alleged victim, namely the back, elbows etc. which, if she had been thrown on her back should have appeared. The alleged dragging would also have resulted in injuries at least in abrasions and scratches on her back. The learned Judge rightly observed that the place in the Bajra field was only ten 'Karams' away from the place where it was alleged that Mst. Nawab Bibi had been captures, and both the places being too near for others to hear cries and intervene, there could be no sense in taking the victim for those ten 'karms' fort offence of rape.

7. It is also significant to note that S.H.O., Sajjad Hussain Shah, who was declared hostile, had denied the fact that the prosecutrix and her husband had come to the police station on the next day of the occurrence in the morning and he had made them sit till Degarwela and had refused to record her complaint saying that she should first get herself medically examined. He also admitted that there was nothing in the statement of Mst. Nawab Bibi which she had first made to him that the witnesses had seen the penetration. Even the witnesses themselves in their earlier statements had not deposed to that effect. The S.H.O. further admitted that as against the four alleged eye‑witnesses some 40 persons had made statement that Nawab Bibi was woman of bad character and the appellant had been falsely implicated.

8. H.C. Ghulam Akbar who had been deputed by the S.H.O. to investigate the case had gone to the spot and had prepared the site plan. He had admitted that the numbers given in the site plan to places had subsequently been changed. The witness admitted that he did not see any cut grass lying on the spot, where Mst. Nawab Bibi was said to have been cutting it. It is also apparent from the evidence on record that the Chadar used while wading through watercourse and the sickle were never secured by the police as evidence in the case. Ghulam Akhtar also admitted that he had not seen any signs of cutting of grass. He further stated he did not find any drag marks from the point where Mst. Nawab Bibi was captured to the point where she was said to have been raped.

9. It is also clear that the delay in filing of the F.I.R. by the prosecutrix is not adequately explained specially in view of the fact that the police officer concerned denied the fact that the prosecutrix B was made to sit till Degarwela or that he had at any time. demanded medical certificate before registering the case. It may here be observed that according to the prosecutrix order for her medical examination was passed by the Resident Magistrate but no such document has not been brought on the record at all, either by the lady doctor or by the investigating officer. It is also not easily conceivable as to how unless the prosecutrix had been referred to the Magistrate for recording her statement o^ unless a direct complaint had been filed before him, he could record the statement of the prosecutrix or pass orders for her being medically examined.

10. There is allegation of the prosecutrix that she purchased a Shalwar from the 'Landa' bazar as her Shalwar was taken away by the lady doctor for being sent to the Chemical Examiner. The procedure if adopted, would appear to be unprecedented inasmuch as police should have secured the Shalwar of the prosecutrix and sent the same to the Chemical Examiner. In the instant case there is no evidence at all about such recovery and there is no evidence of chain of witnesses to prove that the Shalwar so recovered and swabs were delivered for examination and test to the Chemical Examiner.

11. Tile fact that marks of semen and blood were found on the vaginal swabs and the Shalwar by the Chemical Examiner in itself is not sufficient evidence to corroborate the testimony of the prosecutrix inasmuch as, she is admittedly a married woman, who at the time was lying with her husband and she was menstruating at the time. Mr. M. Bilal, the learned counsel for the appellant, has pointed out that according to Mst. Nawab Bibi she had been menstruating even at the time of the commission of the alleged offence and she further admitted that she was not wearing a wad or dapper. It is, therefore, hard to believe that she must have been wearing the same Shalwar all the time and further there is also no evidence on the record to show the trail of blood she must have left at any place that she had been to, including the scene of offence. The learned counsel for the appellant has further pointed out that the Shalwar was not produced as an exhibit at the trial Court.

12. As already stated the testimony of the four alleged eye‑witnesses was discarded by the trial Court and although the learned Judge made the observation that some of the witnesses might have seen the appellant and Mst. Nawab Bibi together, in the absence of direct evidence and naming of such witnesses, it would be only a matter of surmise or conjucture, which could not be depended upon for sustaining a conviction. Thus, the only evidence against the appellant is that Mst. Nawab Bib' a full grown married woman having three children, who according to the defence plea taken by the appellant, is a woman of easy morals and loose character. As already stated, there is no circum stantial evidence or other independent reliable evidence to corroborate her testimony. The fact that her testimony was disbelieved by the trial court with regard to Zina‑bil‑jabr and also the fact that although she had according to her, a sickle in her hand which she did not only use to save herself there is no allegation that the appellant was armed with any weapon her uncorroborated evidence, as already stated, is not sufficient to prove the guilt of the appellant. Mr. Muhammad Aslam Uns, the learned counsel for the State has indeed contended that any mistake in the investigation of the case by the police should not bel considered sufficient to discredit the prosecution case but it is observed that it is for the prosecution to material the evidence against an accused person and to prove such person to be guilty beyond doubt. If under any circumstances the proof .is not forthcoming to the extent required, the accused shall have the benefit of doubt. Accordingly, I give benefit of doubt to the appellant, allow his appeal and set aside his conviction and sentences. He is in Jail custody and he shall be released forthwith C if not required in any other case. Such short order was directed to be issued to the Jail authorities after hearing the arguments of the learned counsel for the parties and the grounds for the decision have been recorded above. M. A. K. Appeal accepted.