Find a Lawyer

Criminal Appeal No. 35 of 1967((BWP), decided on 31st May 1968.

---

Credibility---‑Relations between accused and witness proved to be strained‑--Not safe to place reliance on testimony of such witness.

S. 376‑--Rape‑--Evidence of prosecutrix and eye‑witnesses corroborated by testimony of independent witnesses and report of Chemical Examiner‑Conviction chid sentence maintained.

Shiekh Nisar Ahmad for Appellants.

M. Mustafa Khan for the State.

Date of hearing: 31st May 1968.

Muhammad Nawaz and Allah Diwaya appellants who are first cousins, were convicted under section 376, P. P. C. and each of them was sentenced to six years' rigorous imprisonment by the learned Additional District Magistrate, Bahawalpur. The appellants against their convictions and sentences have preferred this appeal.

2. On the 23rd of October 1966, Mst. Rajan (P. W., 1), her mother Mst. Allah Bachai (P. W. 2) and her first maternal cousin Mst. Rahim Khatun (P. W, 3) went from their village Badwani wali to Chak No. 27 in order to bring some khasises from a weaver with whom they had placed an order for them. At about Asser time when they were returning to their village from Chak No. 27 and were passing through Dhari Bakhar both the appellants stopped them and started searching them: Muhammad Nawaz appellant forcibly took Mst. Rajan P. W. to some bushes nearby and raped her after removing her ghaghra Exh. P. 1 while his companion Allah Diwaya appellant remained with the other two women in order to stop them from rescuing Mst. Rajan P.W. After performing the sexual intercourse Muhammad Nawaz appellant cleaned his private parts with the ghaghra of Mst. Rajan P. W. and relieved Allah Diwaya appellant who was keeping the other two women at bay. Allah Diwaya appellant then went to Mst. Rajan P. W. and also raped her. After that both the appellants went towards Chak No. 23. Palia (P. W. 8) and His nephew Suba (P. W. 9) were standing near Chak No. 23. From a short distance they saw both the appellants hurriedly walking away. About 3 or 4 minutes later all the three women, who had been following the appellants, came there and related the occurrence to Palia and Suba P. Ws., who went after them in order to catch hold of them but failed to find them. Thereafter both of them took the women to their house in village Badawaniwali. Yar Muhammad (P. W. 5), husband of Mst. Rajan P. W. was away in Chak No. 8‑A in connection with grazing of camels. A message was sent to him about the occurrence on. the following day, i.e. the 24th of October 1966 Yar Muhammad. P. W. returned home on the 25th of October 1966 and learnt about the occurrence from Mst. Rajan P. W. He accordingly, took her to Police Station Yazman where they reached at about 9‑30 a.m. and Mst. Rajan P. W. lodged first information report Exh. P. A., which was recorded at her dictation by Assistant Sub‑Inspector Najam‑ud‑Din (P. W. 7). The Assistant Sub‑Inspector took into his possession ghaghra Exh. P. 1 of Mst. Rajan P. W. vide memo. Exh. P. B. This recovery was witnessed by Ahmad Din Lambardar (P. W. 4) and Yar Muhammad (P. W. 5). According to report Exh. P. G. of the Chemical Examiner the ghaghra was found to be stained with semen.

3. On the 25th October 1966, Mst. Rajan P. W. was examined by Lady Doctor Mrs. Khalida Adib (P. W. 11), who found her age to be about 30 years. She did not find any injury on her person. Her hymen was; however found to be completely torn.

4. On the 9th of November 1966, early in the morning, both the appellants appeared before Ahmad Din Lambardar (P. W. 4) and confessed their guilt before him and asked him to produce them before the police and get them pardoned. Ahmad Din P. W. on the same day produced them before Sub‑Inspector Noor Ahmad, who arrested them and got them medically examined on that very day by Doctor Muhammad Anwar (P. W. 6), who found them to be physically fit to perform sexual intercourse.

5. The appellants denied their guilt. They also denied having made extra judicial confession before Ahmad Din Lambardar, but admitted that it was he, who had produced them before the police. According to them they had been falsely implicated in this case by Ahmad Din Lambardar because they had not voted for him in the last B. D. Election. In their defence they examined Mukhtar Ahmad (D. W. 1), Abdus Sattar (D. W. 2), Noor Muhammad (D. W. 3) and Shah Muhammad (D. W. 4). Mukhtar Ahmad, Abdul Sattar and Shah Muhammad D. Ws. deposed about the previous enmity of Ahmad Din Lambardar with the appellants. The testimony of Noor Muhammad D. W. was based on hearsay and as such was inadmissible in evidence.

6. The prosecution case against the appellants rests on the testimony of Mst. Allah Bachai and Mst. Rahim Khatoon P. Ws., who saw Mst. Rajan P. W. being raped one after the other by the two appellants, the testimony of Palia and Suba P. Ws. to whom the aforementioned women had narrated the incident shortly after the occurrence and the testimony of Ahmad Din Lambardar before whom the appellants are alleged to have confessed their guilt. Ahmad Din Lambardar has given no reason as to why the appellants suddenly appeared before him and confessed their guilt. There is material on the record supplied by the D: Ws. that the relations between the appellants and Ahmad Din Lambardar were strained. Under the circumstances I consider that it will not be safe to place reliance on the testimony of Ahmad Din P. W.

7. The main evidence against the appellants is supplied by Mst. Rajan, Mst. Allah Bachai and Mst. Rahim Khatoon who had no reasons to falsely implicate the appellants. In any case Mst. Rajan being a married woman would not bring a false charge of rape and thereby expose herself to shame and ridicule, s if the occurrence had not actually taken place. Their evidence stands corroborated by the testimony of Palia and Suba P. Ws., who are completely independent and disinterested. The evidence of Mst. Rajan P. W. also stands corroborated by the report of the chemical examiner, according to which semen was found on ghaghra Exh. P. 1 worn by her at the time of the occurrence. Taking all these circumstances into consideration I am satisfied that the prosecution has successfully brought home the guilty to the appellants and that they have been rightly convicted and sentenced. I, accordingly, find no merit in this appeal, which is hereby dismissed.

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.