1985 P Cr (PLP)

with the direction that the sentences would run concurrently.

2. It was a complaint case. The occurrence took place on 6‑4‑1978 at 10/11 p.m. and the complaint was filed on 5‑7‑1979 before Illaqa Magistrate, Mianwali which was ultimately transferred to the Court of learned Sessions Judge, Lahore vide High Court's order, dated 25‑4‑1981.

3. At the time of occurrence Abdul Wahab Khan was Magistrate Ist Class and Sher Ali appellant was D.S.P. Both were posted at Mianwali. They lived as immediate neighbourers in houses situate in Elementary College, Mianwali. The complainant family consisted of his wife, children and mother. The house contained at least two rooms. The exact accommodation is not on the record. The appellant was living nearby with his family members. The relations of the two Officers were quite cordial. They were on visiting terms. On the eventful night, it so happened, that at about 10/11 p.m., when the complainant was away at Lahore, the appellant in his unifrom, duly armed with a pistol and having wine bottle, criminally trespassed into the house of the complainant and at pistol point committed sexual intercourse with Mst. Amtul. Basit Majida, the wife of the complainant.

4. The appellant was charged under section 452/376, P.P.C. on the allegations that he after having made preparation to cause hurt, criminally trespassed into the house of the complainant and committed rape upon Mst. Amtul Basit Majida. He pleaded not guilty to the charge and claimed to be tried.

5. To prove its case prosecution examined 3 witnesses. Mst. Amtul Basit Majida P.W.2 made statement to the effect that at about 10/11 p.m. she heard a knock on the door of baithak of her house. Telling that he was being chased by some criminals of Jhamra, the appellant D.S.P. asked her to open the door. When the door was opened, the appellant made entry into the room. He was in uniform and was carrying pistol and wine both. He drunk wine there and also offered her to drink but she refused to do so. The appellant then launched criminal assault on her. He did not allow her to raise alarm by threatening her with pistol. He threw her on cot, removed her shalwar as well as of his own and committed rape upon her. On her weeping, her elder son Abdul Quddus aged 7/8 years (as he then was) P.W.3 and her mother -in‑law Mst. Fazal Bibi (since dead) were attracted to the spot. The appellant held out pistol towards them and made good his escape. After the occurrence, she tried to contact her husband, the complainant through telephone but could not succeed. The complainant returned after 2/3 days to whom she described her plight. P.W.2 supported his mother P.W.1. He stated that on the noise of weeping of his mother he awoke his father's mother Mst. Fazal Bibi and accompanied by her proceeded towards the spot and when they reached near the door of the baithak, he found the appellant lying on his mother, beating her and was in the act of sexual intercourse. On seeing them, the appellant held out pistol towards them and ran away to his house. P.W.1 Abdul Wahab stated that on the fateful day, he was at Lahore and returned Mianwali 2/3 days thereafter when his wife, Mst. Amtul Basit Majida narrated to him the entire occurrence of the night between 6/7‑4‑1978. While explaining the delay in filing of complaint, he gave details of the steps taken and efforts made by him for the registration of case against the appellant: e.g. that he called upon the Deputy Commissioner,. Mianwali and apprised him of the commission of the crime by the appellant who promised to think over it but ultimately declined to take action against the appellant because of his close association with him, that he met the S. H. O. concerned who expressed his helplessness to register case against the D.S.P., that he met S. M. L. A. who agreed to initiate action but before the action should be taken, the S.M.L.A. was transferred; that he had been contacting Martial Law Authorities, Mianwali and Sargodha, Home Secretary, Additional Chief Secretary, Chief Secretary, I.‑G. Police, Chief Justice, Lahore High Court, Lahore and Chief Martial Law Administrator for action against the appellant; that ultimately he filed writ petition in the High Court whereon F. I. R. Exh. D. C. was registered against the appellant and that since the police did not take any interest and was siding with the appellant, therefore, he filed the present complaint Exh. P.A. in the Court of Illaqa Magistrate.

6. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He made following detailed statement:‑ "The complainant Abdul Wahab Khan was my next door neighbour at Mianwali and we were living amicably. We had even family relations and were visiting each other. (At this stage, I am afraid, limits have been crossed by the complainant and counsel for defence. I have to remind them to keep themselves within limits). During the course of our relations with each other I came to know that the complainant is not a mentally balanced person. He had strained relations with almost every member of his in‑laws. His brother‑in‑law Mehmood visited Mianwali and on some matters they started fighting inside their house and while fighting came out near my door. I was attracted to the scene and intervened between them. I told Abdul Wahab that he should behave sensibly as he was a Magistrate and he was being watched by people. He insisted that I should arrest his brother‑in‑law Mehmood on some charge and place him behind the bars. I took both of them inside my house and tried to pacify Abdul Wahab advising him not to misuse his own position and not to misuse mine as we might be in trouble on this account. He was annoyed and went away, leaving his brother‑in‑law with me. His brother‑in‑law Mehmood pleaded with me to help him as Abdul Wahab might cause trouble to him. 1 sent him to bus stop in the escort of a constable, who boarded him in a bus. Thereafter, my relations with Abdul Wahab Khan were extremely stained. So much so that he ceased even to talk to me. At one point of time both of us were served with notices for eviction from our respective houses as we were living unauthorizedly in them, the houses being the property of the Education Department. I immediately accepted the notice and started to leave the accommodation but Abdul Wahab being stubborn type refused to comply with the notices despite repeated warning in this respect by the higher authorities, both the administrative and the Education. He wanted me also to join him in getting a stay order against the order of eviction but I refused. He thereafter went to the Civil Court, obtained a temporary stay against his eviction which was ultimately dismissed and he was in execution of the order of ejectment thrown out of his house. I had in the meantime already left my house and was not in possession there when he was ejected. The real trouble started after his ejectment. He tried to kill so many birds with one stone by roping all his enemies in one stick. The alleged occurrence on the night between 6/7‑4‑1978 is a total imagination and concoction of the mind of Abdul Wahab Khan. Therefore, if this occurrence had actually taken place as stated or told he being a Magistrate could have taken legal action against me at that very time. He neither reported the matter to the police nor the Army Authorities nor to his own superior officers such as Chief Secretary, Commissioner or Deputy Commissioner. When he was ejected from his house he immediately filed a writ petition against the defaulting officials. He could have also filed a writ petition against me for registration of the case if the allegations had in fact been true. Even in the writ petition filed against the Deputy Commissioner and others for registration of a case against them in connection with the eviction of Abdul Wahab, my name was not included in the list of the accused persons although a paragraph was, by way of abundant caution, inserted in the writ petition. Even in the prayer in that writ petition it was not mentioned that a case be registered against me for having committed rape on the wife of the complainant Abdul Wahab. If the allegation is true which it is not certainly, it means Abdul Wahab Khan gave more preference to his being ejected from his house than the rape which was committed on his wife because he did not file the writ petition in connection with the rape although he did in connection with his ejectment. On the relevant night and between the relevant hours I was confined in my house and a police guard was posted at the door of my house because there was a threat to my life in connection with a police encounter which had taken place in relation to a case registered at Jhamra, P.S. Sadar Mianwali. During our relations with Abdul Wahab Khan and his family, I received a chit from his wife seducing me and inviting me to visit her house in the absence of the complainant Abdul Wahab. I received this chit through a constable Noor Muhammad my office orderly and when I received the chit. I immediately contacted Abdul Wahab Khan, passed over the chit to him and requested him to take care of his wife. He was grateful to me and desired that I should keep it secret. I assured him that I was a married man and belonged to a respectable family. I did not want to make any fuss and that it was for this reason that I had passed on that chit in original to him. He, however, always suspected that I might inform his colleague about this matter and make fuss of this chit at any subsequent date. It is out of this apprehension that he included my name alongwith those officers and officials who ejected him from his house and he concocted the story of rape after the occurrence of ejectment only to implicate me falsely. He immediately after his return from Multan/Lahore to Mianwali had met the then S.P., Mianwali but did not inform him about the occurrence as no such occurrence had taken place. In this report to the Government, the then S.P., Mianwali, Mr. Zaheer had mentioned this fact. A departmental enquiry was also held against me in which this occurrence was found altogether false, and I was absolved, exonerated and re‑instated. The case, which was registered against me including others on the report of the complaint after disposal of his writ by the High Court, was subsequently found false and I was recommended to be discharged but in the meantime the complaint had been filed so the order could not be obtained from the Court on the recommendation of discharge by the police. This was also re‑investigated by a panel of senior officers of the crimes branch who again found the allegations as totally untrue and exonerated me. The case was on the departmental leval investigated into by Mr. Irfan Mehmood, S.P., Sargodha, who in his report exonerated me. The matter was also got investigated by the Martial Law Authorities by the Senior Police Officers of the rank of S.P., who also found the allegations as totally untrue. I am innocent. Abdul Wahab Khan is in the habit of taking shelter behind his wife when, however, there is no other shelter to take. He himself used the name of his wife even as back as 1973 in connection with an ejectment of a house at Sargodha. He had got a case registered even there against some persons alleging that they molested his wife. The applications which the complainant and his wife had given to the Chief Martial Law Administrator and other Martial Law Authorities were sent to the I.‑G., Punjab for enquiry and report. After thoroughly satisfying himself through various sources of agencies at his disposal, the I.‑G., Police, Punjab agreed with those concurrent reports and informed the Martial Law Authorities that the allegations against me were totally false and mischievous." In defence he produced 4 witnesses. Noor Muhammad Head Constable D.W.1 stated that in the month of January, 1978, Abdul Majid constable came, to him in the Office with a chit and asked if the appellant was in the office and on enquiry he told that he had brought a chit from Mrs. Wahab. He gave the chit which he (witness) gave to the Reader of the appellant and that through this chit, the prosecutrix had invited the appellant to meet her during night as the complainant would be away. He further stated that when the appellant came to the office, he on seeing the chit, send for Abdul Majid. Foot Constable and reprimanded him. Muhammad Hayat D.W.2, a police constable stated that on the night between 6/7‑4‑1978 he was on duty at the residence of the appellant from 9 p.m. to 12 mid‑night. During that period, the appellant remained in his house with his family. Irfan Mehmood, A.I.‑G., D.W.3 stated that I.‑G. of Police Punjab had deputed him to enquire into the complaint made by Abdul Wahab against Sher Ali Khan. He recorded the statement of the complainant and the prosecutrix, which are Exhs. D.A. and D.G. and that after completing his enquiry, he made report Exh. D.1. D.W.4 Faiz Muhammad, S.H.O., stated that the complainant had never appeared before me to report that the D.S.P. had committed rape upon his wife.

7. The learned counsel for the appellant, vigorously challenging the conviction of the appellant, submitted that there was an inordinate delay of about one year and 3 months in filing of the complaint; that the P.Ws. are interested witnesses; that the name of Abdul Qadoos P.W. was not mentioned in the F.I.R., which was lodged before filing of the complaint; that Abdul Majid constable and Zaheer‑ud‑Din Babar who allegedly had seen the occurrence were withheld and as such, the presumption would be that had they been produced they might not have supported the prosecution case; that the statement of the complainant with regard to the narration of the incident to him by his wife was inadmissible; that Mst. Amtul Basit Majida is not a dependable witness in as much as, she introduced false witnesses and the story of the incident given by him in the Court is highly improbable that she did not raise hue and cry; that no marks of risistence were found on her person; that there was no independent corroboration of her statement and that it would be unsafe to uphold the conviction on her solitary statement. Conversely, the learned counsel for the State and the complainant not only supported the conviction recorded by the trial Court but also requested for the enhancement of the sentence on the ground that the sentence was disproportionate to the cruelty committed by the appellant.

8. Since the appeal is in continuation of the original proceedings and the entire matter re‑opens, therefore, in order to examine the correctness of the judgment of the trial Court I propose to reappraise the evidence. Keeping in mind the guiding principles laid down by the superior Courts for the appreciation of evidence in rape cases; that it is very easy to concoct a case of rape but difficult to rebut it, that the evidence should be appreciated with more caution; that it should be seen that the statement of the prosecutrix is in consonance with all the probabilities and has appearance of having been honestly made; that for the safe administration of justice, prudence may require independent corroboration of the statement of the victim; that the Court should bear in mind the possibility of the willingness and that corrobora tion may not be essential for sustaining the conviction in case the Court finds the story of the victim to be honest, in consonance with probabilities and confidence inspiring and the Court in such like cases may base conviction or uphold the same even on her uncorroborative testimony, I proceed to assess, weigh and evaluate the prosecution case in the light of the aforesaid guiding principles and for that I would like to discuss the prosecution evidence first so as to come on an independent conclusion on the truth or falsity of prosecution case and its evidence.

9. Starting with the foundation of case, i.e. the complaint, I find that the occurrence took place on 6‑4‑1978 and the complaint was filed on 5‑7‑1979. The delay of more than a year is thus very much obvious. Since delay simpliciter is of no significance and it is the unexplained delay which may matter in the administration of justice in crimina A cases, therefore, two questions may arise; (a) Whether any explanation of the delay has been given? (b) If so, whether the same is reasonable or not? In the case in hand, I find that the complainant has explained the delay in the complaint as well as in his evidence as detailed in para. No. 4 of the judgment which, the defence has not been able to shake In the circumstances of the case that the person sought to be prosecuted was a D.S.P., the explanation given by the complainant for delay and the time of one year and 3 months spent by him to achieve the object, appear to be most convincing. The conduct of the complainant in pursuing the matter before various authorities for about 1 years does not run counter to the natural probabilities. The complainant did all that was possibile for action against the appellant and it was as a last resort that he filed the complaint. I am fully convinced that the complaint does not suffer from unexplained delay and as such it is not a case of deliberate inordinate delay. Even otherwise, the delay is only a suspicious circumstance which puts the Court on guard and by itself is not sufficient to reject the evidence which may otherwise be entitled to credence. For all these reasons, I am of the view that the foundation of the case is concrete.

10. This brings me to the main pillar of prosecution case, i.e. the ocular evidence. Examining the prosecution evidence a bit more carefully than has been done by the trial Court I find that as far the actual occurrence, since the complainant had not witnessed it and there was an interval of 2/3 days between the occurrence and narration by his wife to him, therefore, that part of the statement wherein he stated that the prosecutrix had narrated the occurrence to him would not be relevant under section 6 or 157 of the Evidence Act and as such cannot be taken into account.. So far as P.W.2 is concerned, he being the son of the complainant and living in the same house had a probable cause to be present in the house on the night of occurrence. Despite that, since his name as an eye‑witness of the occurrence was not mentioned in' the F.I.R. lodged by the complainant who by that time was fully aware of the entire occurrence including the names of the witnesses, therefore, without disbelieving Abdul Qadoos P.W.3, I propose to exclude his evidence from consideration as a matter of abundant caution. Now the statement of Mst. Amtul Basit Majida, the victim remains in the field. It is well‑settled that no particular number of witnesses shall in any case be required for the proof of fact. Finding may be based on testimony of a single witness because Evidence Act attaches more importance to the qualities than quantities. Further, the victim of rape being not an accomplice, there is no legal impediment to conviction of accused on her solitary statement. Corroboration of her statement is not a statutory requirement. If there is any such rule, it is Rule of prudence and prudence alone. Whether this rule should be aded or not, will depend on the circumstances of each case. That bein, the legal aspect of the matter, the questions for determination in the instant case are; Firstly. Whether Mst. Amtul Basit Majida is an absolutely dependable witness, if so whether conviction can be sustained on her statement alone? Secondly. If not, whether there is satisfactory corroboration of her statement? Dealing with the first question, I find that Mst. Amtul Basit Majida had no illwill against the appellant. She is not a lady of easy virtue but a lady of status. In her statement she stated that she used to treat the appellant as her father. Her husband was also not on inimical towards him. No enmity of the prosecutrix or of her husband with the appellant was even suggested. She stood the test of cross‑examination. She gave consistent statement and that too in a straightforward manner. Sh did not hesitate to answer the indecent questions put by the defence counsel. Her statement does not suffer from inherent infirmities. Despite lengthy cross‑examination, the defence could not impeach her character. Her statement does not suffer from dishonest improvements, material discrepancies or major contradictions. Her statement is in consonance with probabilities, fits in with the circumstances and is confidence inspiring. The imminent jurists have classified the ocular testimony into three categories, (1) wholly reliable, (2) wholly unreliable, (3) Partly reliable and partly not reliable. In the first category of proof, the conviction may safely be sustained on uncorroborative testimony. In the second category, even strongest corroboration may not rehabilitate such evidence. I am of the view that the testimony of Mst. Amtul Basit Majida falls within the first category and as such conviction can safely be upheld on her statement alone because her statement is in consonance with all the probabilities and gives appearance of truth. To hold that in no case, conviction can be based on the uncorroborated testimony of prosecutrix would tantamount to laying down a very dangerous rule.

11. In case the prudence still insists on the corroboration of the statement of the prosecutrix, the same is also available in the shape of circumstances which may satisfy the mind of the Court that the prosecutrix has told the truth and the appellant was very much connected H with the offences. The circumstances are No.1, as stated in statement under section 342, Cr.P.C. the criminals of Jhamra were inimical towards appellant and were after his life and that Mst. Amtul Basit Majida also stated that when the appellant knocked at the door, he asked her to open the‑door on the pretext that he was being chased by the criminals of Jhamra. The other circumstance is the trend of the cross‑examination of the defence counsel. In reply to the questions of the defence counsel, Mst. Amtul Basit Majida stated: "It is correct that the accused soon after entering my room caught my breasts, kissed me, caught me in his arms and manhandled." Further; "It is correct that on my refusal to take wine at the instance of the accused he slapped me heavily on my face." The trend of the cross‑examination and the suggestions made by the learned defence counsel not only connect the appellant with the crime but also eliminate the possibility of her being a consenting partner. No doubt, the suggestions unless admitted are no proof of the facts suggested but when the suggestions are admitted the same do tentamounts to proof of the facts and that in the case in hand the suggestions given by defence counsel have been admitted, by the witness. The defence evidence is not strong enough to rebut prosecution case and belie its evidence. For all these reasons I am of the view that there is no force in the submissions made by the learned defence counsel and case for acquittal of the appellant is not made out. I am satisfied that the trial Court has rightly found the appellant guilty of offence punishable under section 452/376, P.P.C. The sentence awarded by the trial Court to the appellant is also legal and proportionate to the crime committed by him.

12. For what has been stated above, the appeal filed by Sher Ali Khan against his conviction and the revision petition filed by Abdul Wahab Khan for the enhancement of sentence are dismissed. M. Y. H. Appeal dismissed.