1980 P Cr (PLP)

The appellant, Muhammad Rafi (aged 35 years) was convicted by a ,Magistrate at Toba Tek Singh of offences under sections 454 and 354 of the Pakistan Penal Code on the allegations that on 26‑6‑76, at about 11 a. m. he trespassed into the house of Muhammad Shafi (P. W. 1,) and outraged the modesty of his wife Mst. Ishrat (P. W. 2). For the offence under section 454 he was sentenced to undergo rigorous imprisonment for a period of three years and for the offence under section 354' he was ordered to suffer rigorous imprisonment for a period of two years. The two sentences were ordered to run consecutively. In addition, in respect of the offence under section 354 he was directed to receive ten lashes under the Whipping Act. The appellant has filed this appeal against his conviction and sentence.

2. According to the prosecution on the day of occurrence Muhammad Shafi (P. W. 1) had gone to Lahore to attend to some business. His wife Mst. Ishrat (P. W. 2), was washing clothes in the courtyard of her house. Suddenly, the appellant scaled over the wall of the house and jumped into the courtyard. He grabbed Mst. Ishrat (P. W. 2) by her breasts and felled her on the ground. He then started kissing her. She raised an alarm which attracted Mukhtar Masih (P. W. 3) and one Ghulam Muhammad to her house. They caught hold of the appellant who was then given some Sol! blows by Mst. Ishrat (P. W. 2). Muhammad Shafi (P. W. 1) returned to his house on 29‑6‑

76. On the following day A. S. I. Muhammad Yasin (P. W. 4) visited his Chak on patrol duty. Muhammad Shafi (P. W. 1) met A. S.

1. Muhammad Yasin (P. W. 4) at 6 a: m. and lodged the F. I. R. (Exh. P. A.).

4. The appellant pleaded not guilty to the charges against him. He denied that he had trespassed into the house of Muhammad Shafi (P. W. 1) or outraged the modesty of Mst. Ishrat (P. W. 2). He alleged that he had been falsely implicated on account of enmity. He examined three witnesses in his defence.

5. At the trial the main evidence against the appellant was provided by Mm Ishrat (P. W. 2) and Mukhtar Masih (P. W. 3). Another person cited in the F. I. R. as eye‑witness, namely, Ghulam Muhammad, was given up on the ground that he had been won over by the defence. Mst. Ishrat (P. W. 2) described how the appellant entered into the courtyard of her house, then grabbed her by the breasts and pulled her down. Mukhtar Masih (P. W. 3) supported her testimony. He stated that he heard the alarm and went to the house of Muhammad Shall (P. W. 1). On reaching there he saw that the appellant had felled Mst: Ishrat on the ground, was holding her by the breasts and kissing her on the face.

6. Mukhtar Masih (P. W. 3) was entirely an independent witness. He had no enmity. whatsoever with the appellant and there was no reason why he should have chosen to perjure himself against the appellant. His house was at a distance of one killa from the house where the occurrence took place and as such his presence at the scene of occurrence was not unnatural. I can find no justification whatsoever for throwing out his testimony. In my opinion his testimony by itself is sufficient to establish the case of the prosecu tion against the appellant.

7. It appears from the evidence of Muhammad Shall (P. W. 1) and Mst. Ishrat (P. W. 2) that on two occasions earlier also the appellant had assaulted Mst. Ishrat (P. W. 2) to satisfy his lust and as a result two criminal cases were registered against him. However, as at the trial he was not given any opportunity to explain his position with regard to the said incidents I shall exclude the evidence relating to them from consideration.

8. The appellant produced an affidavit (Exh. D. A.) allegedly sworn by Mst. Ishrat (P. W. 2). This affidavit contained an admission on her part that one of the earlier cases initiated by her was false. At the trial she denied that she had sworn any such affidavit. The appellant examined Mian Muhammad Yaqoob (D. W. 3), a local Advocate, to prove the affidavit. It is apparent from his testimony that he was not well acquainted with Mst. Ishrat (P. W. 2) for in his cross‑examination he was not certain if he could still identify her. The exact words used by him were: Although, later on he did take the position that he had seen her without the veil also but, this was quite clearly in conflict with his earlier stand. I am therefore not prepared to accept. his statement that the affidavit (Exh. D. A.) was in fact sworn by Mst. Ishrat (P. W. 2).

9. The other two witnesses produced by the appellant, namely, Ghulam Mohyuddin (D. W. 1) and Muhammad Rafiq (D. W. 2), deposed about his good character and alleged that the appellant had been falsely implicated by the local Chaudharis who were annoyed with him over his refusal to work for them without wages. Both witnesses admitted that the appellant had been convicted earlier also. This does not speak well of his antecedents. The allegation that the Chaudharis were annoyed with the appellant is too vague to be taken seriously. The witnesses did not care to indicate what were the links between Muhammad Shafi (P. W. 1), Mst. Ishrat (P. W. 2) and Mukhtar Masih (P. W. 3) with the Chaudharis. 1 therefore find the defence evidence most unconvincing.

10. Admittedly there has been a delay in the lodging of the F.I. R. but here as the ocular evidence is otherwise credible the said delay does not in a way compromise the case of the prosecution.

11. For the reasons stated above 1 am satisfied that the appellant was rightly convicted by the learned Magistrate of offences under sections 454 and 354 of the Pakistan Penal Code. The sentences awarded to him are, however, excessive. I can see no justification for directing that the sentences under sections 454 and 354 should run consecutively. In my opinion the interest of justice would be better served if they are made to run concurrently. I order accordingly. As the appellant has already been awarded‑ fairly substantial sentences of imprisonment I 'set aside the order with regard to the infliction of lashes. With these modifications the appeal is dismissed. Appeal dismissed.