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Criminal Revision No. 127 of 1968, decided on 23rd September 1968.
S. 366---Abduction----Prosecution case supported by unimpeachable evidence of eve-witness--- Defence evidence not reliable---Conviction maintained.
S. 376---Rape-Conduct of prosecutrix not shown to he that of a victim subjected to violence much against her will----Solitary statement nr prosecutrix nut corroborated by independent evidence---Conviction of accused, held, not legal and proper, lit circumstances of case.
Muhammad Abdul Khalique v. The State P L D 1960 S C 215 and Gulistan v. State P L D 1953 Pesh. 39 ref.
S. M. Almas Ali for Petitioners.
Ch. M. Abdullah Bajwa for the State.
Sher Zaman (50), Mawara alias Mubarak (30), Habib (40), Mst. Shaho alias Shah Begum (45), Mumtaz (28), Mushtaq (35). Bashir (25) and Ghani (35), were tried by Ch. Jamsheed Ahmad, Magistrate Section 30, Rawalpindi, for commission of offences punishable under section 360 149 376/147, P. P. C. The learned Magistrate discharged Mst. Shaho. By judgment dated the 22nd Of July 1966, he acquitted Mumtaz accused and:--
(1) convicted the remaining accused:
(a) under section 147, P. P. C. and sentenced them to undergo six months' R. I. each,
(b) under section 366 149, P. P. C. and sentenced them to two years' R. I. each and a fine of Rs. 50 each, or in default three months' R. I., and
(2) convicted Mushtaq, Bashir and Ghani accused under section 376. P. P. C. and sentenced them to undergo two years' R. I. each and to pay a fine of Rs. 50 or in default to suffer three months' R. I. each.
He also sentenced Sher Zaman, Mushtaq, Bashir, Habib, Mawara and Ghani to suffer five stripes under section 366/34, P. P. C. read with West Pakistan Whipping (Amendment) Ordinance, 1963.
2. The convict; preferred an appeal to the learned Additional Sessions Judge, Rawalpindi. The Additional Sessions Judge, by judgment dated the 1st of February 1968, dismissed the appeal and maintained the convictions and sentences, except that he set aside the sentence of stripping. On the 6th of February 1968 the convicts preferred the revision petition.
3. The prosecution case, briefly, is as follows: Muhammad Akbar (husband of Mst. Riasat Jan P. W.) abducted a daughter of Habib accused and took her to Karachi. A few days after that occurrence on the 10th of February 1968, at about 7-30 a.m. Mst. Riasat Jan along with her infant daughter and Mst. Malka Khatun, her relative, was returning from Jaewala to village Dan Gali, when Sher Zaman, armed with a hatchet. Habib and Bashir. armed with sticks, challenged them. Mst. Riasat Jan, prosecutrix and Mst. Malka Khatun, entered the close by house of Fazal Hussain P. W. Sher Zaman, Habib and Bashir accused followed them into the house of Fazal Hussain. In the meantime, Mumtaz (since acquitted) and Mushtaq armed with firearms, came and stayed at the door of Fazal Hussain. The said persons bodily lifted the prosecutrix, Mst. Riasat Jan, and took her away Later, Mawara and Ghani joined the culprits. Muhammad Zaman. father-in-law of Mst. Riasat Jan, Fazal Hussain and the inmates of his house witnessed the occurrence but could not rescue her. The culprits took Mst. Riasat Jan to the house of Mst. Taj Bibi, in a different village. The husband of Mst. Tai Bibi was away. Mst. Shaho (since discharged) kept watch. Mumtaz, Mushtaq, Bashir and Ghani accused committed rape on her. On the 6th night. Mst. Riasat Jan slipped out of the house and reached her father-in-law's house in the morning. Muhammad Zaman lodged F. I. R. on 10-2-1966 at 9-15 a.m. The police recorded the statement of Mst. Riasat Jan on the 20th of February 1966. She was medically examined on 22-2-1966.
4. The prosecution examined ten witnesses.
5. The defence plea was that the petitioners had been in volved in this false case in order to forestall the case regarding the prosecution of Muhammad Akbar, for the abduction of Habib's daughter. The accused examined ten witnesses in defence.
6. The case can easily be discussed in two parts, namely, (a) abduction and (2) rape.
7. The eye-witnesses are, Mst. Riasat Jan (P. W. 1), Fazal Hussain (P. W. 2), Malka Khatun (P. W. 3), Zaman, father-in-law of Mst. Riasat Jan. (P. W. 4), Allah Ditta (P. W. 5) and Muhammad Azam (P. W. 6). The appellate Court declined to accept the statement of Muhammad Zaman (P. W. 4). Muhammad Zaman stated that the culprits, in his view, took away his daughter-in-law and he did not intervene as Mushtaq and Mumtaz were armed with firearms. He stated that about 30/25 other people had arrived on the spot, still nobody rescued the victim. No such person was examined either. Even immediately thereafter, he did not take steps, privately or with the assistance of the police, to recover Mst. Riasat Jan. The Courts below were justified in not accepting his evidence. Mst. M Malka Khatun is the mother-in-law of Muhammad Akbar's brother. She belongs to a different village and did not know the accused persons individually. She continued to stay in the house of Fazal Hussain and was unable to say what happened to the prosecutrix outside. Allah Ditta P. W. 5 claimed to have witnessed the occurrence while standing in his courtyard. In cross-examination he admitted that he was a collateral of Muhammad Zaman (P. W. t). He also admitted that he gave his statement after fifteen or sixteen days of the occurrence and that in between he did riot mention it to anybody. Similarly Muhammad Azam P. W. 6, a collateral of P. W. 4. made his state ment to the Police after 8 or 9 days of the occurrence. The Statements of P. W. 5 and P. W. 6 could hardly be reliable. Fazal Hussain P. W. is not connected either with the complainant party or the accused party. He described that he was inside his house when Mst. Riasat Jan and Mst. Malka Khatun entered his house and that Habib, Shera and Bashir followed them. Habib and Bashir were armed with sticks while Shera was armed with a hatchet. These three persons dragged Mst. Riasat Jan out of the house. Mumtaz accused armed with pistol stood at the door. He, however, admitted that he did not see Mushtaq and Mumtaz fire at the spot. He also admitted that he did not see Abdul Ghani accused on the spot. Of course Mst. Riasat Jan as (P. W. 1) described how Shera, Habib and Bashir followed her into the house of Fazal Hussain. She state) that Mushtaq while armed with a gun stood at the door. She also stated that Ghani and Mawara joined them on the way. The Courts below believed the evidence regarding abduction. The testimony of Fazal Hussain, at any rate, is unimpeachable. The defence evidence is not reliable. The conclusion reached by the Courts does not .A appear to be unreasonable or perverse. It is remarkable that Fazal Hussain referred only to the commission of this offence by Shera, Bashir. Habib and Mushtaq. This conclusion is accepted.
8. As regards rape there is the solitary statement of Mst. Riasat Jan. It is remarkable that no injury was caused to her although she alleged that each one of Mumtaz, Mushtaq, Bashir and Ghani, individually, committed rape on her during the four nights following the occurrence, The house of Mst. Tai Bibi was situated within the ahadi of the village. The accused used to be absent during the day time. There is no evidence to suggest that the prosecutrix made any attempt to raise an alarm or to seek release. In short, she appears to have completely submitted 8 and resigned to her fate. Her conduct is not shown to, be that of a victim subjected to violence much against her will. There is no corroborative evidence. It has been held in P L D 1960 S C 235 and P L D 1963 Pesh. 38 that prudence and caution require that the statement of the prosecutrix should not be acted upon unless it is corroborated by independent evidence. In the instant case, there is no corroborative indepen dent evidence. The report of her medical examination after days of alleged rape, is of little avail. I am satisfied that the conviction of the accused persons under section 376, P.P.C. is not shown to he legal and proper.
9. In view of what has been stated above, the conviction of the accused-petitioners under section 376, P. P. C. is set aside and they are acquitted of this charge. As stated above, Mst. Riasat Jan was abducted by Habib, Shera, Bashir and Mushtaq. They did not constitute "unlawful assembly" within the meaning of sec tion 141, P.P.C. The conviction of the accused under section 147. P. P. C., therefore, is unsustainable. Accordingly the conviction and sentences under section 147, P. P. C. are also set aside. The conviction of Mawara and Ghani petitioners under section 366. P. P. C. is not sustainable. Accordingly, their conviction and sentences are set aside and they are acquitted of the charge. So far as Sher Zaman. Habib, Mushtaq and Bashir are concerned, their conviction under section 366, P. P. C. and sentences are maintained.
Petition partly accepted.
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