P L D 1993 Federal Shariat Court 12 (PLP)

NAZIR AHMAD BHATTI, J.‑‑‑Complainant Mst. Parveen Akhtar and her mother Mst. Aimna Bibi had gone to Jaranwala City from their village Chak No.23/GB on 6‑1‑1991. In the afternoon they both returned to their village and at about 4‑30 p.m. they passed by the Dera of acquitted accused Muhammad Hussain to go to their house. Accused Abdul Shakoor and accused Muhammad Mansha were ordered by the acquitted accused Muhammad Hussain to catch complainant and to dishonour her whereupon both the said accused forcibly caught the complainant and pushed her in a room of the Dera where accused Muhammad Farooq subjected her to rape without her consent and against her will. Her mother raised alarm whereupon Shabbir Ahmad, Muhammad Ashraf and Muhammad Jamil were attracted to the spot. On seeing them accused Muhammad Farooq fled away. The complainant got herself medically examined on 8‑1‑1991 and then recorded F.I.R. No. 9 in Police Station, Jaranwala, District Faisalabad on 9‑1‑1991 at 3‑30 p.m. However, no action was taken upon the said report whereupon the complainant Mst. Parveen Akhtar filed a private complaint on 20‑2‑1991 which was sent up for trial before Additional Sessions Judge, Jaranwala. The learned Additional Sessions Judge charged all the 4 accused, namely, Muhammad Hussain, Abdul Shakoor son of Muhammad Hussain, Muhammad Farooq son of Muhammad Hussain and Muhammad Mansha under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as also accused Muhammad Farooq under section 10 of the Hudood Ordinance. All the 4 accused pleaded not guilty to the charges and claimed trial.

2. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Muhammad Hussain and convicted accused Abdul Shakoor and Muhammad Mansha under section 11 of the Hudood Ordinance and accused Muhammad Farooq under section 10(3) of the Hudood Ordinance. Accused Abdul Shakoor and Muhammad Mansha were sentenced to undergo life imprisonment, to suffer 30 stripes and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for one year and accused Muhammad Farooq was sentenced to undergo rigorous imprisonment for 20 years and to suffer 30 stripes. All the 3 convicts have challenged their conviction and sentences by the appeal in hand. Complainant Mst. Parveen Akhtar also filed a Criminal Revision No.34/L/92 for setting aside acquittal of accused Muhammad Hussain and for dealing with him in accordance with law. Since the appeal and the revision petition have arisen from the same matter, they are disposed of by the judgment in hand in the aforesaid criminal appeal.

3. Complainant Mst. Parveen Akhtar, appearing as P.W.1, corroborated the contents of her complaint. She charged appellants Abdul Shakoor and Muhammad Mansha for catching hold of her on the orders of acquitted accused Muhammad Hussain and then for forcibly pushing her in the room where appellant Muhammad Farooq forcibly removed her trouser and subjected her to rape. She also stated that on the alarm raised by her mother P.W.2 Shabbir Ahmad, Muhammad Ashraf and Muhammad Jamil (not produced) were attracted to the spot whereupon appellant Muhammad Farooq escaped. Her mother Mst. Aimna Bibi appeared as P.W.3 and she narrated the same story. P.W.2 Shabbir Ahmad also stated that he was attracted to the spot on the alarm raised by Mst. Aimna Bibi mother of the complainant and he and Muhammad Ashraf rushed to the Dera of Muhammad Hussain where they saw appellant Muhammad Mansha and Abdul Shakoor standing at the door of `Dera' that he pushed them aside and entered into the room where he saw Muhammad Farooq committing Zina with the complainant and upon their reprimand he ran away alongwith other accused.

4. Complainant Mst. Parveen Akhtar was examined by P.W.4 lady Dr. Mrs. Nafees Akhtar on 8‑1‑1991 at about 10‑30 a.m. and she found the following:‑‑‑ "Hymen was torn, tears at 6 and 12 o'clock, swelling lower part labia majora and minora. Bleeding per vaginam. Contusion back of middle right arm 2 c.m. x 1 c.m. Contusion back of right upper back 3 c.m. x 4 c.m. Vaginal orifice admits freely one finger." The lady doctor took 2 vaginal swabs which were found stained with semen and blood on chemical analysis. The lady doctor further stated that injuries No. 2 and 4 were simple and caused by a blunt weapon within duration of 2 days.

5. In their statements recorded under section 342, Cr.P.C. all the accused denied the commission of the offence. Acquitted accused Muhammad Hussain stated as follows:‑‑‑ "I am innocent. I had reported to ASP, Jaranwala, alongwith other people of locality in 1978 that Mst. Parveen, and her mother are habitual to give false applications against the people of the locality and are committing adultery in the village. Prior to the occurrence Sadiq, father of Mansha, accused gave an application to police regarding a dispute over a door. I also helped Sadiq in this regard. Due to the aforementioned reason I and my son and Mansha co‑accused have been involved in this case." The remaining 3 accused adopted the same reply when they were asked if they wanted to say anything else.

6. All the 4 accused did not make any deposition on oath but they produced 4 defence witnesses and their defence plea was that there was dispute about door between the parties and arbitrators were appointed but the complainant party did not accept the decision of the arbitrators. It was also stated by D.W.1 Manzoor Khan Sub‑Inspector that D.S.P., Jaranwala had investigated the matter and had appointed 3 arbitrators to effect a compromise between the parties but the complainant party did not accept their decision. D.W.2 Nazir Ahmad and D.W.3 Muhammad Ayub had stated that they were appointed arbitrators in the matter of the complaint but the complainant party had refused to accept their decision. D.W.4 Channan had stated that in the year 1976 as well as the complainant and her mother Mst. Aimna Bibi had obtained a false medical certificate against Noor Ahmad and Muhammad Ali but he had effected a compromise between them.

7. During the course of arguments before us the learned counsel for the appellants wanted to produce certain documents as additional evidence. His contention was that the complainant party was in the habit of obtaining false certificates and then charging persons for subjecting them to sexual offences and then starting efforts to obtain money from them. In this connection a medical certificate alleged to have been issued on 12‑7‑1978 pertaining to one Mst. Parveen Akhtar daughter of Rashid, caste Rajput was produced. It was alleged that his medical certificate pertained to the complainant. We have very minutely seen the certificate dated 12‑7‑1978. The mark of identification on this certificate is mole on the left side of neck and mole on the right side of neck while the column of age of examinee is blank. The Medico‑legal Report issued by the lady doctor on 8‑1‑1991 shows the identification mark of mole on inner side of right eye and mole on right neck and age of the complainant is shown as 20/21 years. The lady doctor was not put any question about age of the complainant mentioned in the Medico‑legal Report of this case. The appellants have also produced a birth certificate of a girl named Nistar Bano having been born to the wife of Rashid Ahmad on 9‑10‑1961 but no effort was made to show that the girl Nistar Bano was the same girl as is now complainant. In so far as the aforesaid 2 medical certificates are concerned, we have considered them very anxiously but we are unable to accept the plea that they belonged to the same woman because marks of identifications of the woman on both the certificates are different. We do not accept the contention that the complainant was born in the year 1961 and that she had given her age wrongly because no attempt was made to prove that the complainant and Mst. Nistar Bano were one and the same woman.

8. A lot of material was brought on the record to show that there was long‑standing previous enmity between the complainant party and the accused party, some time with regard to opening of door, some time with regard to the theft of goats and some time with regard to other altercations between them and it was argued that the present case was falsely made up against the accused party. No doubt there was previous enmity between the parties but the medical certificate issued on 8‑1‑1991 clearly shows that the complainant had been subjected to sexual intercourse and previous to that she was virgin and the complainant had charged appellant Muhammad Farooq for subjecting her to rape. It is also interesting to note that the lady doctor was not cross‑examined about her opinion given about the complainant in this case. The defence evidence also shows that there was dispute between the parties about the allegation of the complainant against the accused party for which arbitrators were appointed.

9. The learned Additional Sessions Judge did not accept the prosecution version with regard to acquitted accused Muhammad Hussain. We are also of the opinion that the allegation of abduction of the complainant by appellants Abdul Shakoor and Muhammad Mansha appears to be an exaggeration. The path and the `Dera' are adjacent to each other and few steps had to be taken from the path to enter the `Dera' of the accused and even if any part had been played by appellants Abdul Shakoor and Muhammad Mansha for dragging the complainant towards the `Dera' that would not tantamount to abduction.

10. In so far as the offence of rape alleged against appellant Muhammad Farooq is concerned we are convinced that the medical evidence brought on the record sustain this charge. According to the complainant the occurrence took place on 6th January, 1991, she was medically examined on 8th, according to which she had been subjected to sexual intercourse and since vagina did not admit 2 fingers, the complainant was subjected to rape for the first time and she had charged appellant Muhammad Farooq for the commission of the said offence. We are of the considered opinion that this was not a false allegation.

11. For the aforesaid reasons the appeal is partly accepted. The conviction and sentence of appellants Abdul Shakoor and Muhammad Mansha are set aside and they are acquitted of the charge for which they were convicted and sentenced by the learned Additional Sessions Judge, Jaranwala on 4‑2‑1992. They shall be set at liberty forthwith if not wanted in any other case. In so far as appellant Muhammad Farooq is concerned, his appeal is dismissed on merit and conviction under section 10(3) of the Hudood Ordinance is maintained, However, since he is a young man and first offender, the sentence of imprisonment is reduced to rigorous imprisonment for 7 years with no change in the number of stripes. No action can be taken in criminal revision filed by the complainant because we have arrived at the conclusion that acquitted accused Muhammad Hussain was appropriately acquitted by the learned trial Court. Even otherwise in exercise of revisional powers we cannot record conviction of acquitted accused. The revision petition is dismissed. N.H.Q./790/FSC Order accordingly