1993 PLP 2361 (MLD)

"I am teachers in Girls Primary School, Chak No. 139/W.B. About 11 months ago, at about 2‑00 p.m. on Friday, I was returning to my house after picking Sagg from our lands. When I reached near the wheat crop of Ghulam Muhammad, Maqsood Ahmad alias Sooda, accused present in Court, suddenly emerged from the wheat crop and caught hold of me from my right hand. I was frightened. He dragged me in the wheat crop at a distance of about 2/3 Karams. He put his hand on my mouth. He felled me on the ground and sat on my chest. He forcibly tried to open string of my Shalwar, for the purpose of committing forcible Zina. I forcefully caught hold of string of my Shalwar with my both hands. He gave me two slaps on my face. He tore my shirt and molested my breasts. When the hand of the accused was removed from my mouth, I raised alarm. On my raising alarm, Manzoor Ahmad and Ghulam Rasul, P.Ws. were attracted at the place of occurrence. They raised Lalkara. The accused then after leaving me succeeded in fleeing from the spot. I narrated the whole occurrence to the P.Ws. Since my shirt was torn, therefore, Ghulam Rasul, P.W., gave me his Safa so that I should put it on my body. I was taken to my house by the P.Ws. She confirmed production of the torn shirt, Exh. P.1 (which she was wearing and which had been torn by the appellant at the time of occurrence), before the police and taking possession thereof through the memorandum, Exh. P.B., which she signed.

4. Ghulam Rasool, P.W. 3, deposed that during last Ramzan‑ul‑Mubarik at about 2/2‑30 p.m., he alongwith Manzoor Ahmad had been going from his Basti (Daispur) to Chak No. 139/W.B, and when they had reached near the land of Ghulam Muhammad they had heard hue and cry raised by a girl coming from the wheat crop. He added that they had stepped forward and had raised Lalkara and had seen that the appellant had been grappling with Mst. Tasneem Akhtar who had been lying on the ground. He further stated that seeing them the appellant had fled away towards his Basti. He said that they had inquired from Mst. Tasneem Akhtar and she had narrated the occurrence. He maintained that her shirt was torn and he had given her his Safa to put it on her body. According to him the appellant had been having his hands on the breasts of Mst. Tasneem Akhtar. He asserted that if they had not reached the place of occurrence the appellant would have succeeded in 'committing Zina with Mst. Tasneem Akhtar. He concluded that they had taken her to her house but her father had not been present there, as he had gone out of Chak for some condolence purposes.

5. The appellant, while giving evidence on oath and his two defence witnesses, namely Abdul Rahman D.W.1 and Muhammad Shafique, D.W. 2, blamed Ghulam Mustafa Jat for promoting the instant case as a measure of vengeance. They asserted that the occurrence as claimed by the prosecution had not taken place. Basing their information on hearsay they indulged in mud stinging upon the character of Mst. Tasneem Akhtar. However, none of the insinuations touching her character was ever put to her. They appear to have been manufactured just to malign her.

6. As the perusal of the record indicates Mst. Tasneem Akhtar belongs to a noble family with flawless character. She is not related to Ghulam Mustafa Jat. Neither her father nor the appellant was a contestant in the election. It is inconceivable that she or her father would have gone to the extent of inviting indelible stigma upon their honour and the honour of their family by involving themselves in such an ugly affair just to appease Ghulam Mustafa Jat. The testimony of Mst. Tasneem Akhtar inspires confidence and is worth believing A and placing reliance upon. It is corroborated by the evidence of Ghulam Rasool, P.W.

3. The minor channel dispute which Ghulam Rasool, P.W.3 had had with the appellant's father was settled as far back as in 1978. It is not acceptable to reason that he would have been motivated by that old dispute of somewhat insignificant nature to come forward after fifteen years to give false evidence. His presence at the scene of occurrence at the, relevant time could not be unnatural. His independent testimony has rightly been considered truthful by the learned trial Court and there is no reason to take a different view.

7. Delay in lodging the report with the police, absence of medical examination of Mst. Tasneem Akhtar, non‑noticing of marks of dragging in the wheat crop by the Investigating Officer and non‑production of Safa given by Ghulam Rasool to Mst. Tasneem Akhtar, stressed upon by the learned counsel for the appellant, do not affect the authenticity of the prosecution version of the case in face of the conclusion touching truthfulness of the testimony of Mst. Tasneem Akhtar and Ghulam Rasool. Delay in registration of cases in the present day rural society is not uncommon. There may be various reasons for such delay. Attempts to dissuade the complainant party from having recourse to the process of law are usually resulting in delay in lodging report with the police and the instant case was no exception. The effect of physical manhandling of the body of Mst. Tasneem Akhtar by the appellant and of the slaps given by him to her must have disappeared by the time the matter was reported to the police. In such a, situation her medical examination would have been of no use. Similarly marks of dragging in' the wheat crop field would not have been visible after the lapse of more than ten days of the occurrence when the Investigating Officer visited the spot. The production of Safa made over by Ghulam Rasool to Mst. Tasneem Akhtar to cover up her body was not at all necessary; its non‑production does not affect the merits of the case:

8. Without conceding the truthfulness of the prosecution version of the case the learned counsel for the appellant, relying upon what had been laid down in Javaid v. The State 1985 SCMR 1443, Yasecn v. The State PLD 1983 FSC 53, Anwarul Haq alias Anwar v. The State PLD 1983 FSC 234 and Muhammad Sharif v. The State 1986 PCr.IJ 2496, contended that even if Mst. Tasneem Akhtar were to be believed the appellant's action amounted to commission of offence envisaged by section 354 of the Pakistan Penal Code as he would be taken to have done no more than using criminal force to her to outrage her modesty. The facts of the precedents are somewhat distinguishable from those of the case in hand. In Javaid v. The State 1985 SCMR 1443, the Shariat Appellate Bench of the Supreme Court of Pakistan accepted the statement of the prosecutrix that the offender had come upon her and caught hold of her breasts and held that his action merely amounted to outraging her modesty covered by section 354 of the Pakistan Penal Code.

9. In Yaseen v. The State PLD 1983 FSC 53, the offender, Yaseen, and the victim, namely, Mst. Sardaran, aged about 12 years, were real cousins. The prosecution version was that Yaseen had made Mst. Sardaran lie on the ground in the maize field of her father and had un-successfully tried to remove her Shalwar. On the hue and cry raised by Mst. Sardaran her father and others had been attracted to the spot and their arrival made Yaseen run away.

10. The facts of the prosecution version of the case reported as Anwarul Haq alias Anwar v. The State PLD 1983 FSC 234, were to the following effect. The offender, who was not an adult, caught hold of Mst. Majeeda Bibi, a girl of about 10/11 years of age, when she was on her way back home after casing herself on a nearby sand mound, and took her by force to a room and from there to the kitchen whose door he bolted from inside. He tied her hands and mouth with her Dopatta and tried to untie the string of her Shalwar. She raised alarm which brought her grandmother and others to the spot. The offender feeling perplexed came out of the kitchen and bolted it from outside. The door was opened by Mst. Majeeda Bibi's grandmother who untied her hands and mouth.

11. The victim of the case titled Muhammad Sharif v. The State 1986 PCr.LJ 2496, was a seven years old girl and was caught by the offender, Muhammad Sharif, and taken to a Chowbara where he untied the string of the Shalwar. The Shalwar fell down on the ground but had not been removed from her person. She started weeping. Her father and others arrived at the scene and caught hold of Muhammad Sharif. The accused did not do anything more.

12. The situation obtaining in Muhammad Ashraf v. The State 1991 PCr.LT Note 71 at p.50, cited by the learned counsel, is wholly off the mark. As the note indicates the accused allegedly caught hold of the girl and dragged her inside the Havcli and during the scuffle the shirt of the victim was alleged to have been torn on the chest and left arm. The shirt was not produced and the victim was not medically examined. The investigating officer did not find any injury on the person of the victim. The statements of the witnesses were contradictory and discrepant and did not inspire confidence. In such a state of affairs the case of prosecution was held not proved.

13. The appellant's action, consisting of a series of acts, constituted a concentrated effort towards the fulfilment of his nefarious design of committing Zina‑bil‑jabr with Mst. Tasneem Akhtar; what he did was not just an assault or use of criminal force to outrage her modesty. To recapitulate he forcibly caught hold of her by the arm, placed his left hand with force on her mouth, dragged her into the wheat crop field for a distance of about 2/3 Karams, felled her on the ground, sat upon her chest, threatened her not to make noise, desperately tried to open the string of her Shalwar for the purpose of committing Zina‑bil‑jabr and when she resisted by forcefully catching hold of the string tightly with her hands he gave her slaps on the face. He tore off her shirt making bare her breasts, which he molested. All along she continued making efforts to extricate herself from his clutches. During the resistance offered by her the grip of his hand on her mouth became loose and she uttered a cry hearing which Ghulam Rasool and Manzoor Ahmad, who were passing by, ran towards the spot and gave a Lalkara to the appellant whereupon he ran away. But for the timely arrival of Ghulam Rasool and Manzoor Ahmad he would have in a few more moments gone through the process of committing Zina‑bil jabr with her. He was a young man of twenty‑two years of age and she was no match to his might. His attempt to commit Zina‑bil‑jabr was frustrated only because of the appearance of Ghuiam Rasool and Manzoor Ahmad at the 8 scene. His action seen in entirety accumulates in none other than an attempt to commit Zina‑bil‑jabr with her and amounts to commission of offence for which' 1 he has been punished.

14. Mst. Tasneem Akhtar was a member of noble profession of teaching. She was normally expected to be respected by the public and the taught alike: She was keeping fast and it was Juma prayer time when the appellant indulged in the commission of detestable time. He had scant regard for the sanctity of the holy month of Ramzan‑ul‑Mubarak. He deserves no leniency in matter of sentence. The penalty imposed upon him by the learned trial Court needs n0, reduction. The appeal is found to be without any force and is dismissed. N.Q.H./834/FSC ??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.