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Petition for Special Leave to Appeal No. 63 of 1972, decided on 28th June 1972.

(On appeal from the judgment and order of the Lahore High Court, dated the 22nd December 1971, in Criminal Appeal No. 446 of 1970).

Penal Code (XLV of 1860),

S. 376‑Rape‑Prosecution case supported by evidence of woman raped, her husband, extra‑judicial confessions made by accused and by Chemical Analyser's report Conviction, held, rightly upheld by High Court.

Ch. Muhammad Sadiq, 'Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner:

Nemo for the State.

Date of hearing : 28th June 1972.

The petitioner was tried along with one Sultan Shah for offences under section 376 read with section 114 and section 392 read with section 34, P. P. C. and was convicted and sentenced to six years and two years' R. I. each on each count to run consecutively, by a learned Magistrate Section 30, Rawalpindi, by judgment dated the 23rd July 1970. The petitioner filed an appeal against the said judgment and a learned Single Judge of the High Court upheld the conviction but reduced the sentence of the petitioner to five years' R. I. and awarded him a sentence of Rs. 1,500 which was directed to be paid as compensation in equal amounts to Mst. Maqbool Jan and Mehrban P. Ws. In default of payment of fine, Shafqat petitioner was to suffer further R. I. for one year. In this way, the appeal of the petitioner was partly accepted by judgment dated the 22nd December 1971. The petitioner seeks permission to file an appeal against the said judgment.

The prosecution case is that P. W. 2 Mehrban Khan, a police constable posted at Hyderabad, had come on leave to his native village in District Rawalpindi and on his way back to Hyderabad, stayed with his wife Mst. Maqbool Jan P. W. 8 and a child aged 6 years in Zafar Hotel, situated in Raja Bazar, Rawalpindi. It is alleged that at 9‑00 p.m., Mehrban Khan P. W. 2 went in the Bazar to fetch some fruit and medicine for the child. In his absence, the petitioner and Sultan Shah, who was working as a Munshi in Zafar Hotel, entered the room of the hotel where the wife and child of Mehrban Khan were staying. Sultan Shah caught hold of Mst. Maqbool Jan P. W. 8 from her hair and threw her on the bed and slapped the child on refusal to allow him to have sexual intercourse with her. It is further alleged that the petitioner committed the sexual intercourse with P. W. 8 Mst. Maqbool Jan while Sultan Shah was holding her by the hair. Mehrban Khan P. W. 2 returned to the hotel and when he entered the room, the petitioner was alleged to have finished with the act of sexual intercourse and Sutlan Shah was still holding her by the hair. Both the petitioner and his co‑accused Sultan Shah scuffed with Mehrban Khan during which the petitioner alleged to have taken out the Identity Card containing Rs. 80 from his pocket. Both the accused then ran away and they were subsequently apprehended by the police.

The prosecution case is supported by the ocular evidence of P. W. 8 Mst. Maqbool Jan, the statement of her husband Mehrban Khan and the extra‑judicial confessions made by both the petitioner and accused Sultan Shah before Qamar Nizami P. W. 10. The Chemical Analyser's report indicated that the shalwar of the petitioner and that of Mst. Maqbool Jan and the swabs taken from vagina contained semen.

Ch. Muhammad Sadiq, learned counsel for the petitioner, has contended that the conviction of the petitioner is based of solitary statement of Mst. Maqbool Jan. According to the learned counsel, her statement was recorded next day. She was also examined by the Medical Officer next day. In these circumstances, the possibility that Mst. Maqbool Jan had sexual intercourse with her husband cannot be ruled out. The contention of the learned counsel has not impressed us. The evidence of Mst. Maqbool Jan shows that she is a truthful witness. The semen found on the shalwar of the petitioner is a circumstance which shows that the petitioner had sexual intercourse with Mst. Maqbool Jan. There is overwhelming evidence about the guilt of the petitioner. The learned counsel for the petitioner was unable to satisfy us that the petitioner has not been guilty. The High Court has properly appreciated the evidence against the petitioner and has, come to the right conclusion. No case has been made out to further appreciate the evidence against the petitioner. The petition is dismissed.

Leave refused.

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