1984 P Cr (PLP)

The two appellants (1) Zahid Hussain son of Qurban Hussain Awan, then aged 20 years and (2) Mukhtar Ali son of Ali Muhammad Awan, then aged 40 years, both residents of Wazirke Chatha, Police Station, Alipur, District Gujranwala, challenged their convictions under sections 366. 342 and 376, P. P. C. as recorded by Khan Muhammad Yousuf Khan, Magistrate Section 30, Wazirabad in his judgment, dated 9-2-1970 awarding them each R. I., respectively for five, one and six years under those counts. All sentences were ordered to run concurrently.

2. Mst. Bashiran P. W. then an unmarried girl of 14/15 complained in her statement Exh. P. B. made to the Police on 10-1-1969 that a couple of days earlier at sunset, when she went out to piss near a Chhapper, the appellants forcibly took her away into their Haveli situated nearby under a threat, committed rape upon her one after the other and confined her there till next evening when her father and uncle Ramzan got her, released through the aegis of Khadim Hussain, Allah Ditta Lambardar and Allah Ditta Kashmiri. Explaining the delay, she stated that the accused had been trying to compromise but her relatives did not accept it.

3. The appellants denied the charges. The prosecutrix's father Muhammad P. W. 1 testified that she had not come back when she went to ease herself at Ishawela. Her uncle Ramzan, Allah Ditta Lambardar and Allah Ditta Kashmiri turned hostile. She herself however, reiterated her version. The doctor P. W. 6 opined that both the appellants were fit to commit sexual act, where as the lady doctor P. W. 7 found that the com plainant was accustomed to sexual intercourse as her vagina admitted two fingers easily and her hymen was torn off.

4. The accused/appellants explained under section 342, Cr. P. C. that they had been falsely involved due to party faction which, however, they did not elucidate. They examined five witnesses in defence to prove that no such occurrence had happened; that the prosecutrix was lady sane character inasmuch as she had illicit relations with Karmoon and Anwar with whom she had eloped once or twice.

5. The crucial question was if the prosecutrix's own statement was not enough to rely on: Her father corroborated at least the fact that she had gone out at Ishawela for easing herself and did not come back till next day when lot of efforts were made for her recovery through different persons. Apparently there was no reason to doubt her version in implica ting the appellants. Their Haveli was close to the Chhapper where she was nabbed. This location suggests such a possibility. Why neighbours like D. Ws. were not attracted, was explained on the ground that the appellants threatened her to be killed. After all being a daughter of a moeen (Kumhar), she may not have just conceptually mustered courage to offer resistance. This may be the reason why her father and uncle became luke warm at the trial. That she was already used to sexual intercourse may not afford justification on the part of the appellants to appease their own lust on her. There should have been strong reason to explain why after all she chose the appellants for such an indictment. Earlier she had no grudge against them, nor had they annoyed her otherwise. In fact the defence plea that there was party faction was something utterly vague. Who was pitted against whom? And how was Muhammad Kumhar P. W. 1, the father of the girl, involved in it? It called for something searching but was left unanswered. Equally was not inspiring the suggestion that since the uncle of the appellants did not help in her restoration (from Anwar) she falsely involved them out of vengeance. For a fault of an uncle, his nephews are rarely victimised. Why not directly the uncle himself or his own sons? It was too far-fetched.

6. The testimony of D. Ws. was stereotyped. One of them was a mirasi and the other a cobbler, and subservient to the influence of the appellants who was Zamidar of the village. Others pointed out that lady was of loose character, whilst the appellants were noble persons. Such an evidence was inadmissible. Lastly, she was claimed to have been recovered from a heap of pirali of Anwar. It was not put to her, and hence entirely a new figment.

7. I agree with the learned Magistrate in his appreciation of evidence and hold that the charges were quite adequately proved counsel prayed to reduce their sentences to the imprisonment already undergone particularly because they are on bail for last 13 years, and were justified in entertain ing an expectancy to liberty. They were convicted, on 9-3-1970; were released on bail on 12-3-1970, and had undergone imprisonment only for three days which was absolutely not commensurate to the charges. Even otherwise for such a brazen-faced offence, there is little occasion for show ing any clemency.

8. I, therefore, maintain their sentences as well and those shall run concurrently as ordered. Of course, their detention as under trials shall be counted towards the main sentence under section 382-B, Cr. P. C.

9. Since they have not turned up personally, warrants be issued to the District Magistrate, Gujranwala, trial Court Wazirabad, for their arrest and committal to jail to undergo the remaining portion of the sentence. S. G. D. Appeal dismissed.