1992 PLP 333 (SCMR)

JUSTICE RASHID AZIZ KHAN (MEMBER)‑‑‑Elahi Bakhsh son of Ranjha, Hazoor Bakhsh son of Allah Ditta, Ghulam Farid son of Muhammad Hussain, Jan Muhammad son of Muhammad Nawaz, Nazar Hussain son of Ashiq Muhammad, Ghulam Hussain son of Allah Dawaya, Ghulam Rasool son of Sajjawal, Muhammad Ramzan son of Ghulam Rasool, Rashid Ahmad son of Muhammad Nawaz, Mushtaq Ahmad son of Allah Ditta, Muhammad Nawaz son of Ghulam Sarwar, Abdul Rehman son of Sher Muhammad, Nazar Hussain son of Jan Muhammad, Ranjha son of Ahmad Bakhsh, Ghularn Rasool son of Ghulam Muhammad, Ashiq Muhammad son of Muhammad Yar, Abid Hussain son of Slier Muhammad, Karam Hussain alias Karma son of Ghulam Muhammad, Haq Nawaz son of Allah Ditta, Ghularn Rasool son of Ghulam Sarwar, Khadim Hussain son of Muhammad Nawatz, Ghulam Haider son of Ghulam Muhammad, Bashir Ahmad son of Muhammad Yar, Jan Muhammad son of Noor Muhammad, Gulab son of Raham Ali, and Hazoor Bakhsh son of Ghulam Hussain, 26 in number, all Gamm by caste, residents of Mauza Baitowhai, P.S. Jalalpur Pirwalia, District Multan, were sent up by Police Station Jalalpur Pirwala, to face charges under sections 148, 506, 452, 354‑A/149 P.P.C. read with section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Judge, Special Court for Speedy Trials, Multan, vide his judgment dated 16‑10‑1991 convicted Elahi Bakhsh, Karam Hussain, Ghulam Rasool son of Ghulam Muhammad, Ghulam Rasool son of Ghulam Sarwar, Hazoor Bakhsh and Abid Hussain (six persons) and sentenced each of them as under:‑‑ Under section 148, P.P.C. Three years' R.I. Under section 452/149, Seven years' R.I. and a fine of P.P.C. Rs.5, 000, and in default thereof four Months R.I. Under section 506/149, Two years R.I. and a fine of Rs.4, 000, P.P.C. in default thereof further R.I. for 3 months. Under section 354, P.P.C, Two years' R.I. with a fine of Rs.10,000 or in default to undergo eight months' R.I. Under section 10(3) of the R.I. for 25 years' with infliction of Offence of Zina whipping of 30 stripes, (Enforcement of Hudood) Ordinance VII of 1979: Abid Hussain was further convicted under section 10 of Ordinance VII of 1979, read with section 149, P.P.C. and sentenced to four years' R.I. With whipping of 30 stripes. It was further directed that all the sentences shall run concurrently. The entire amount of fine, if recovered, was directed to be paid to Mst. Allah Wasai by way of compensation under section 544‑A, Cr.P.C. Each of the convicts was also given benefit of section 382‑B, Cr.P.C. The learned Court, however, gave the benefit of doubt to 20 (twenty) accused persons and acquitted them of all the charges. The convicts have appealed. The State has also filed an appeal challenging the acquittal of 20 respondents. Since both the appeals arise out of the same judgment, therefore, they shall ‑be disposed of by this judgment.

2. The prosecution story in brief, as disclosed by Ghulam Sarwar, first informant, in his statement Exh. P.B., was to the effect that on 21‑8‑1991 at about 7/8 a.m., Ghulam Sarwar (first informant) was present in the house of his uncle Ghulam Hussain. Mst. Allah Wasai was reciting the Holy Qur'an. Mst. Gaman, Ghulam Hussain and Muhammad Ramzan were also present. In the meanwhile, Elahi Bakhsh, armed with revolver, Karam Hussain with carbine, Hazoor Bakhsh son of Allah Ditta, Ghulam Rasool son of Ghulam Muhammad, armed with Sotas, and Ghulam Rasool son of Ghulam Sarwar, armed with hatchet, came there. They raised a Lalkara that they had come to avenge the insult of Mst. Aisha Mai, wife of Maqsood Ahmad. Elahi Bakhsh caught hold of hair of Mst. Allah Wasai, the other four accused stripped her naked. Karam Hussain threatened the witnesses to keep quiet. The accused persons took Mst. Allah Wasai outside while she was absolutely naked. While Mst. Allah Wasai was being taken out, the first informant noticed that 21 accused had surrounded the house. Out of them Abid Hussain put his gun on the chest of Ghulam Hussain, father‑in‑law of Mst. Allah Wasai, and threatened him not to raise alarm. Mst. Allah Wasai in that condition was taken to a nearby cotton crop, where she was subjected to Zina‑bil‑Jabr by the accused persons, who had entered the house. The first informant was present at the spot because he had gone to enquire about the health of his uncle Ghulam Hussain. After the commission of the offence, all the accused persons ran away.

3. Dr. Shazia Zubair (P.W.3), Women Medical Officer, T.H.Q. Hospital, Shujabad, on 22‑8‑1991 examined Mst. Allah Wasai and found no marks of violence. Hymen had old tears. She was pregnant of 36 weeks. In cross- examination, she stated that time of delivery is from 38 to 42 weeks. She further stated that because of violence at such an advanced stage of pregnancy, abortion, miscarriage and damage of foetus can occur. P.W.4 Dr. Muhammad Akbar Javed, Medical Officer, Rural Health Centre, Pirwala, examined the convicts and gave his report that all of them were capable of committing sexual intercourse. Ocular account was furnished by Ghulam Sarwar, Ghulam Hussain and Mst. Allah Wasai, P.Ws.7, 8 and 9, respectively. Muhammad Ramzan, Allah Nawaz and Rab Nawaz, eye‑witnesses, were given up as unnecessary.

4. It was contended by learned counsel for the appellants that the conviction could not be sustained on the statements of the witnesses who were interested and untrustworthy. Argued that the prosecution version is highly doubtful because no marks of violence were found on the body of Mst. Allah Wasai. It was asserted that the case was got registered with an unexplained delay of one day, which created doubt about the truthfulness of the prosecution case. The contentions were opposed by learned counsel for the State.

5. We have heard the learned counsel and gone through the evidence with his assistance. The prosecution to establish its case has mainly relied upon the statements of Ghulam Sarwar, Ghulam Hussain and Mst. Allah Wasai, P.Ws. 7, 8 and 9, respectively. Mst. Allah Wasai has given a detailed account of the occurrence. She was put to lengthy cross‑examination but nothing could be brought on the record which could shake her credibility. She is a young lady, who would not have exposed her honour had it not been the truth. No enmity was suggested to her. She was not even questioned that she was not present at the spot. The learned trial Court in order to verify about the truthfulness of the witness asked her to recite the Holy Qur'an, which she accordingly did. After going through her statement, it is held that it inspires confidence and can safely be relied upon. Ghulam Sarwar and Ghulam Hussain, P.Ws. 7 and 8 have fully corroborated the statement of Mst. Allah Wasai. Ghulam Hussain is father‑in‑law of Mst. Allah Wasai and lives in the same house, therefore, he was a natural witness. Ghulam Sarwar, P.W. 7 was nephew of Ghulam Hussain and had come to enquire about his health as he was suffering from some ailment. We have noticed that Ghulam Hussain could not be cross‑examined as he was not feeling well, therefore, his statement was rightly ruled out of consideration by the trial Court. Ghulam Sarwar was cross‑examined at length. He has supported the prosecution case. He had witnessed the occurrence which took place inside the house as well as in the cotton crop. He was cross‑examined at length. He was not even suggested that he was not present at the spot. The main emphasis in cross‑examination as well as in the arguments of the learned counsel for the appellants was `false involvement'. As has already been discussed that in such like cases chances of false involvement, especially against those who are alleged to have committed rape, can safely be ruled out. About election rivalry, it was not the case of the defence that any of the P.Ws. or their relations has contested elections. The witnesses were simply voters, and it is difficult to imagine that a voter would level such allegations by exposing his own womenfolk because of political rivalry. The contention of the learned counsel for the appellants that the case was got registered with an unexplained delay of one day is incorrect. The delay has been convincingly explained. After the commission of the offence, the accused party kept on trying to effect a compromise which caused the delay. The explanation is convincing, therefore, it can be relied upon. The contention that if the occurrence had taken place, there should have been some marks of violence on the body of Mst. Allah Wasai is also repelled. It is in evidence that she was surrounded by so many accused and in such circumstances, it was virtually impossible of her to resist. In the absence of any resistance, there could not be any marks of violence. It is further pointed out that even the witnesses at the spot could not gather courage to interfere, then how could a helpless woman resist. In these circumstances, we hold that the prosecution has succeeded in establishing its case beyond doubt. In support of the State appeal challenging the acquittal of 20 respondents, learned counsel for the State submitted that they were also present at the scene and guarded the place, therefore, their involvement was also established by virtue of application of section 149, P.P.C. No overt act. is ascribed to any of the respondents. They were simply present at the spot. The occurrence took place in the village and in such circumstances, even if they were present, it cannot mean that they had come in furtherance of their common object. They had not threatened or intimidated any witness. The reasons given by learned trial Court for the acquittal of the respondents are cogent, to which no exception can be taken. Resultantly, the appeal fails which is, accordingly, dismissed. For what has been discusses above, both the appeals fail, which are, accordingly, dismissed. The convictions and sentences of the appellants are maintained. N.H.Q/ 14 SA.C. Appeals dismissed.