2006 P Cr (PLP)

ZAFAR PASHA CHAUDHARY, J.

Riaz Ahmad appellant has assailed his conviction passed by Mr. Ikram Ullah, Additional Sessions Judge-I, Alipur, Camp at Jatoi, whereby he was convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to suffer seven years' R.I. with fine of Rs.5,000 and in default to undergo six months' S.I. under section 10(3) of the Ordinance to suffer ten years' R.I. with fine of Rs.25,000 and in default to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. has been extended. Vide impugned judgment, dated 20-10-2004, three accused persons namely Riaz Ahmad appellant along with Amir Bakhsh and Nazik were sent up to face trial in case F.I.R. No.404 of 2002 registered with Police Station Jatoi on 29-6-2002 under section 10 of the Ordinance. The learned trial Judge acquitted Amir Bakhsh and Nazik accused, however, Riaz Ahmad appellant was convicted and sentenced as detailed above.

2. The prosecution version, as has been detailed in F.I.R. registered at the instance of Rab Nawaz P.W.2, father of' Mst. Nasim deceased, is that on the previous night Rab Nawaz complainant along with his family members was asleep in the courtyard of this house. At about 1-00 a.rn. (mid-night) he noticed that Mst. Nasim, his daughter was not present in the house. He awoke Munir Ahmad, his son and Abdul Aziz, his brother-in-law, who were also sleeping in the courtyard and informed them. They saw in the light of torch that Riaz Ahmad appellant, who was armed with kalashnikov, was forcibly committing Zina-bil-Jabr with Mst. Nasim. Nazik, who too was armed with pistol, was standing as his guard. There was a third person as well, but he had covered his face, therefore, he could not be recognized, however, the complainant could identify him. When the accused persons saw the complainant and witnesses approaching them, they all succeeded in escaping away. The occurrence i.e. commission of Zina-bil-Jabr was seen by Rab Nawaz complainant P.W.2 as well as his accompanying witnesses. The complainant attended Mst. Nasim. She was made to wear her Shalwar. She informed the complainant that she had left the house to answer the call of nature. when Riaz Ahmad (appellant), Nazik along with one unknown person suddenly emerged therefrom and overpowered her, Her mouth was gagged by Nazik, therefore, she could not raise alarm. Riaz Ahmad committed Zina-bil-Jabr with her with the help of' his companions. The occurrence took place on the night between 28/29-6-2002 at 1-00 a.m. (mid-night) and the report was lodged on the following day i.e. 29-6-2002 at 4-45 p.m. The police station was located at the distance of 16 k.m. from the place of occurrence. Some delay was caused because relatives of the accused were compelling the complainant to effect a compromise and forgive the culprits.

3. Muhammad Iqbal, A.S.-I. appeared as P.W.5 and stated that he was posted in Police Station Jatoi where Rab Nawaz complainant along with his daughter Mst. Nasim (victim) got his statement Exh.P.B. recorded before him. Exh.P.B. was forwarded to the police station where formal F.I.R. Exh.P.B./1 was registered by Azhar Abbas M.H.C. This witness sent Mst. Nasim for medical examination. She was medically examined and thereafter three sealed phials and medical report etc. were handed over to him, which he delivered to the M.H.C. for their safe custody in the Malkhana. This witness proceeded to the place of occurrence where he recorded statements of witnesses. Thereafter, the investigation was handed over to Imam Bakhsh S.-I. P.W.6. He, after initiation of the investigation, received information that Mst. Nasim, victim had committed suicide, therefore, he on 2-7-2002 proceeded to the place of occurrence in order to initiate proceedings under section 174, Cr.P.C. The post-mortem report of the victim Mark "C" was obtained.

4. The main Investigating Officer is Ghulam Akber Khitran S.-I. P.W.7, who was entrusted with the investigation on 5-7-2002. He arrested Riaz Ahmad appellant on 8-7-2002. He recorded the statements of .two witnesses on 10-7-2002. Nazik accused got recovered .12 bore pistol from iron box placed in the residential room of his house vide memo. Exh.P.D. On 21-7-2002 Riaz Ahmad accused made a disclosure and thereafter led the police party to the `Baithak' of Qurban Hussain from where he got recovered .30 bore revolver P.9 along with three live bullets. The revolver had been buried in the ground, which he took out after digging earth. The revolver P.9 along with bullets P.3 to P.5 were taken into possession vide memo. Exh.P.E. This witness, on completion of the investigation, found the accused persons guilty and challaned them to Court.

5. The prosecution, including the above said police officials, examined seven witnesses in all. P.W.2 Rab Nawaz complainant is an important and relevant witness especially for the reason that the victim Mst. Nasim, as noted above, committed suicide on account of the severe trauma she suffered due to insult and disgrace meted out to her by accused by committing rape. Rab Nawaz reiterated the statement already made by him in the F.I.R. He described the incident in detail before the Court. After the offence was committed by the appellant with the help of his co-accused, Mst. Naseem, victim was rescued. The victim was trembling and weeping. She narrated the incident to the complainant that she had left the house to ease herself' where the accused persons .were hiding themselves. They suddenly emerged and overpowered her. Riaz Ahmad appellant committed Zina-bil-Jabr with her. His companions helped him in commission of the rape. Nazik accused gagged her mouth so that she might not raise alarm. Rab Nawaz attested the F.I.R. lodged by him and affirmed the contents of the F.I.R. on oath. The victim was got medically examined by the police. According to this witness, Riaz Ahmad was taken to custody but he was let off on the third day. The victim Mst. Nasim could not bear the shock of release of the accused and committed suicide. This witness was cross-examined iii detail. Various details about inmates of the house were asked. He satisfactorily answered all the questions. A number of questions were asked about the location of the place of occurrence etc. The witness answered all the questions correctly, which indicated that he had, in fact, seen the occurrence and had been cited being a truthful as a natural witness. Even otherwise, the presence of Rab Nawaz in the house being. father is absolutely natural. A number of suggestions were made to him but he did not concede to any of the suggestions. The witness stated that Mst. Nasim had been medically examined and also she had made statement under section 161, Cr.P.C. before the Investigating Officer herself. Even from the lengthy cross-examination, nothing could be elicited, which would have damaged or belied the prosecution case in any manner.

6. P.W.3 Munir Ahmad is an eye-witness. He is brother of Mst. Nasim, victim and son of Rab Nawaz, complainant. He made statement on the same line as has been made by his father Rab Nawaz. He supported and corroborated the statement of the complainant in all respects. This witness also stated that Mst. Nasim committed suicide after three days of the occurrence. The defence subjected him to a detailed cross-examination but failed to extort any material even to indicate that the prosecution version was false or fabricated in any manner. P.W.4 is a police constable, who carried the parcels to the office of the Chemical Examiner for their examination.

7. After complainant Rab Nawaz, the second most important witness is lady Dr. Shahida Safdar, P.W.1. She medically examined Mst. Nasim on 29-6-2002. According to her, she was unmarried woman of about 28 years. She examined her private parts and observed as under: "hymen was not intact. It admitted two lingers without pain and nine swabs were taken from vaginal canal. Three swabs were taken from posterior fornix and sent for examination, three swabs were taken from the middle part of vaginal canal and sent to the Chemical Examiner, Multan. Three swabs were taken from external vaginal area and sent the same to the Chemical Examiner." She received the report of the Chemical Examiner Exh.P.A./II according to which the victim had been subjected to sexual intercourse.

8. The learned trial Judge, after appraising and weighing the prosecution evidence, convicted the appellant and awarded sentence as noted above. However, the learned trial Judge extended benefit of doubt to appellant's co-accused i.e. Nazik and Amir Bakhsh and they were acquitted of the charges.

9. The learned counsel in support of the appeal, mainly argued that the victim being the most important witness has not been examined by the prosecution, therefore, the benefit of the same should accrue to the appellant. During the course of his arguments, he referred to the statement of Rab Nawaz, complainant, P.W.2, wherein Rab Nawaz admitted that one Khamees was his relative and his niece Mst. Faiza Mai, who was daughter of Khuda Bakhsh, had been abducted. The case was registered regarding her abduction against him i.e. Rab Nawaz. According to the learned counsel, the parties were inimical to each other because Rab Nawaz complainant, who is father of Mst. Nasim had abducted Mst. Faiza Mai. Riaz Ahmad, appellant is a close relation of Mst. Faiza Mai, abducted by Rab Nawaz, therefore, the appellant was implicated in retaliation. This circumstance that the complainant party had abducted a girl belonging to the family of the accused rather supports prosecution version because abduction of Mst. Faiza Mai by Rab Nawaz would furnish a motive to the accused party i.e. Riaz Ahmad etc. to forcibly abduct and ravish a girl from the complainant party. Mst. Nasim, according to the prosecution, was forcibly abdui;te. d and was thereafter, subject to Zina-bil-Jabr by Riaz Ahmad, appellant, makes the prosecution story more reliable and trustworthy.

10. The learned counsel has also referred to various suggestions made by him that in fact, Mst. Nasim had developed illicit liaison with one Ghulam Farid and in fact, she had been subjected to sexual intercourse by Ghulam Farid and instead Riaz Ahmad, appellant was implicated as accused. This suggestion does not appeal to reason. If Ghulam Farid had committed the offence then why the prosecution should have spared him and falsely implicate the appellant, who was innocent. Moreover, the prosecution version is supported by another strong circumstance that Mst. Nasim committed suicide. According to the complainant, she was driven to commit suicide on account of severe trauma suffered by her. Riaz Ahmad appellant was taken into custody but was let off 2/3 days afterwards. Mst. Nasim could not bear the same and committed suicide. This unfortunate incident cannot be ignored. Had Riaz Ahmad been implicated innocently or Ghulam Farid would have been exonerated of the main offence then there was no reason for Mst. Nasim to commit suicide. Although commission of suicide does not provide direct evidence to the incident but this circumstance does lend a substantive support to the prosecution version vis-a-vis implication of Riaz Ahmad, appellant.

11. The learned counsel has quite forcefully argued that the learned trial Judge while convicting the appellant placed reliance on the statement of Mst. Naseem made by her under section 161, Cr.P.C. It is true that the learned trial Judge has referred to the statement of Mst. Nasim made by her before police under section 161, Cr.P.C. and treated her statement as admissible in evidence. The contention of the learned counsel that statement made by Mst. Nasim under section 161, Cr.P.C. cannot be read in evidence against the appellant and the observation made by the learned trial Judge that the same is admissible under Article 46 of the Qanun-e-Shahadat Order, 1984 (previously section 32 of the Evidence Act, 1872), is not tenable, has substance. Evidence of a person, who cannot be found or available, can be treated as evidence but the same must fulfil one of the eight conditions laid down under Article 46 of the Order. The statement must relate to the cause of death or should have been made in course of business or should be against the interest of maker or relates to information as to public right or custom or relates to existence of relationship or is made in will or in any document relating to any transaction as mentioned under Article 26 or is made by several persons and express feelings relevant to the matter in question. In absence of any or the conditions or circumstances, statement under section 161, Cr.P.C. before the police cannot be admitted in evidence against the accused. None of the aforesaid ingredients or requirements is fulfilled in the present case. To my mind, statement cannot be considered even by keeping in view the provision of Article 47 of the Order because any statement made before the police cannot be treated as a statement made during judicial proceedings.

12. Be that as it may, even if Mst. Nasim could not be examined as a witness because she was dead, the prosecution evidence is sufficient to prove beyond doubt that Riaz Ahmad appellant in fact committed the offence, alleged against him. P.W.2 Rab Nawaz is complainant and father of the deceased, similarly P.W.3 is brother of the deceased. Both the witnesses are absolutely natural witnesses. Their presence in the house at the time of occurrence cannot be denied or doubted. Both the witnesses themselves saw the appellant committing the rape. Their statement is fully supported by the medical evidence. The medical evidence is further supplemented and strengthened by the report of the Chemical Examiner whereby vaginal swabs obtained from the victim were found to be stained with semen. The victim was undoubtedly an unmarried girl. The appellant would have committed the offence because the previous incident in between the parties with regard to abduction of Mst. Faiza Mai is manifestly supportive of the prosecution version.

13. As discussed above, the fact that Mst. Nasim committed suicide and that her statement before the police may not be strictly admissible in evidence but it does provide a circumstance in favour of the prosecution. It is inconceivable that in such circumstances, the complainant or witnesses would have spared or exonerated the real culprit and would have falsely implicated Riaz Ahmad, appellant. As noted above, the learned counsel laid much emphasis on non-production of the victim as witness. It cannot be denied that in case of Zina-bil-Jabr the victim of course is quite an important witness. The learned counsel has cited in support of his contention, the case of Ghulam Rasool v. The State 2005 PCr.LJ 397 (FSC). It was held there in that the abductee is a star-witness. There is no cavil with the proposition but this authority would not be applicable to the facts of the present case because the victim was not withheld by the prosecution but she was not available as having committed suicide. Then case of Qalb-e-Abbas alias Nahola v. The State 1997 SCMR 290 wherein the Honourable Supreme Court did not accept the evidence of the eye-witness recorded in absence of the evidence of main witness holding it being corroborative in nature. But in the instant case there is direct evidence of two eye-witnesses of the occurrence. The other case of Zahoor Ahmad v. The State NLR 1995 SD 608 is again on the same subject i.e. the important piece of evidence is that of the victim. The medical evidence is only corroborative in nature. Another case from Peshawar High Court i.e. Nisar Muhammad-v. Khanzali and another PLD 1959 (W.P.) Pesh. 115 relates to the statement made by witness under section 164, Cr.P.C. It was held in the cited case that the statement does not become admissible merely because a question in this behalf had been asked from the Investigating Officer and he admitted that the witness had made a statement. Another judgment he. Abdul Ghani v. The State PLD 1963 (W.P.) Lah. 445 is also op the same point. Lastly, the case of Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State PLD 1994 SC 31 has been quoted. Their Lordships observed that when there are two conflicting versions i.e. one by the prosecution and the other by the accused then both versions have to be placed in juxta-position. The benefit of doubt has to be extended to the accused.

14. The above mandate of Honourable Supreme Court has been consistently followed by the Courts in the country but in the instant case, there is no defence version capable of being placed in juxtaposition -with the prosecution case. Mere suggestion that the victim Mst. Nasim Mai deceased committed sex act with one Ghulam Farid cannot be termed as counter-version. No doubt the learned counsel for the appellant has done good deal of labour but unfortunately, none of the authorities cited by him advances his case in any manner.

15. In view of what has been discussed above, the prosecution has successfully proved its case against the appellant. The appellant's conviction recorded by the learned trial Judge vide impugned judgment dated 20-10-2004 is upheld, however, the imposition of fine of E Rs.25,000 cannot be maintained because the same is not permissible under section 10(3) of the Ordinance. The same is converted to compensation and after recovery, Rs.25,000 shall be paid to Rab Nawaz, father of the victim as compensation for the mental torture he suffered. The appeal subject to this modification is dismissed. H.B.T./4/FSC????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.