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Criminal Appeal No. 82 of 1969, decided on 15th October 1973.

(On appeal from the judgment and order of the former High Court of West Pakistan Lahore, dated the 6th March 1967 in Criminal Appeal No. 743 of 1963).

‑‑‑ Ss. 354/34 & 148‑Complainant stating that three accused com mitted crime while rest three only accompanied them and did not participate in crime‑Accused‑appellants inter‑related‑Possibility of innocent persons being roped in‑Accused not alleged to have participated in crime acquitted, while conviction of others maintain ed‑Sentence under S. 148 in respect of convicted‑accused, however; set aside.

Muhammad Aslam Mian, Advocate Supreme Court instructed by Raja Abdul Razzaque,

Advocate‑on‑Record for Appellants.

M. Abdus Samad Hashmi, Advocate Supreme Court instructed by Sh. Ejaz Ali,

Advocate‑on‑Record for the State.

Date of hearing: 15th October 1973.

This appeal by special leave is directed against the judgment of the High Court of West Pakistan, Lahore, dated the 6th March 1961, in Criminal Appeal No. 743 of 1963. By this judgment, the acquittal of the appellants was set aside and they were convicted to suffer one year's R. I. each under section 354/149, P. P. C. and one month's R. I. each under section 148, P. P. C. The sentences were to run concurrently.

The appellants were tried by Ch. Mohammad Said Akhtar, Magistrate Section 30, Lahore under sections 354 and 342 read with section 149 and 148, P. P. C. They were acquitted by order dated the 29th June, 1965. The local Government file an appeal against the order of acquittal in the High Court of West Pakistan, Lahore. The appellants were convicted by a Division of the High Court under sections 354/149 and 148, P. P. C. and were awarded sentence of one year's R. I. each under section 354/149, P. P. C. and one month's R. I. each under section 148, P. P. C. Both the sentences were to run concurrently. The appellants challenged this order in petition for Special Leave to Appeal No. 97 of 1967 and they were granted leave to re‑examine the evidence for safe administration of justice.

The prosecution case is that on the 18th October 1901, at about degarwela, Mst. Sakina Bibi complainant, Mst. Amina Bibi P. W. and Mst. Bashiran were returning from village Thethar after getting their paddy husked. When they were about 2/3 fields from the village, the appellants appeared from the village side armed with dangs, spears and take was. Muhammad Shafi and Muhammad Latif appellants caught hold of com plainant's arms and Muhammad Tufail tore off her shirt and shalwar thus making her naked. The appellants Muhammad Shad, Muhammad Latif and Muhammad Tufail pushed her towards the village and the remaining appellants also joined them. On the way, the appellants hit her on her breast and private parts. Mst. Aisha Bibi, mother of Mst. Sakina Bibi also came there and intervened. She was pushed and felled to the ground by appellant Said. P. Ws. Inayat, Ibrahim and Mst. Amina rescues Mst. Sakina Bibi, The occurrence was witnessed by many persons in the village.

The prosecution produced 8 witnesses in all including the two lady Aoctors who deposed about the injuries on the complainant and Mst. Aisha Bibi P. W. Six injuries were discovered on the person of the complaint. It was stated that the parts where the injuries were found on the person of Mst. Sakina Bibi were, outer surface of the right chin, left thigh and left buttock. Three simple injuries were found on the body of Mst. Aisha Bibi P. W. One of them was on the back of the left hand. Other on the outer ,part of the left knee and third on the back of the left elbow‑joint.

The motive which is responsible for the occurrence was that a few days prior to the occurrence, the complainant's brother Mohammad Ashraf slapped Mst Rani, daughter of Khushi appellant for removing a sugarcane from his field.

The defence of the appellants was that Mohammad Ashraf, the brother of the complainant outraged the modesty of Mst. Rani, daughter of Khushi appellant. The matter was taken up by a panchayat and was com promised. After that Khushi brought his daughter to Lahore for leaving her in the custody of her mother. Mohammad Ashraf suspected that he wanted to lodge a report. Thereupon, they made arrangement and set up a false case.

In defence three witnesses were produced who were Lambardars of the village. They supported the evidence of defence. Mr. Muhammad Aslam Mian, learned counsel fir the appellants, has contended that the Magistrate who acquitted the appellants was right in holding that the prosecution case could not be accepted as the witnesses were closely related and none of them was disinterested. He contended that the learned Magistrate rightly preferred the defence witnesses. He .further contended that the High Court has rejected the defence evidence after taking into consideration the judgment in Cases Nos. 73/1 and 59/2 .(Mst. Rani v. Mohammad Ashraf), on the ground that the present occurrence took place prior to the incident relied upon by the defence. He contended that all the prosecution witnesses have stated that the present occurrence took place after Rani's incident took place. The contention of the learned counsel so‑far as his complaint against the reliance of the High Court on the above judgment is concerned, is well founded. We have gone through the evidence of the prosecution witnesses, namely, P. W. 2 Mst. Sakina Bibi, P. W. 4 Mst. Aisha Bibi, P. W. 5 Inayat Ali, P. W. 6 Mst. Amina and P. W. 7 Ibrahim, who have deposed about the occurrence and described the manners in which the modesty of Mst. Sakina Bibi was outraged. These witnesses have admitted that the occurrence in question took place after the incident of Mst. Rani, daughter of Khushi, took place. Besides this admission, they appear to have stated the truth. They are natural witnesses of the occurrence as they are the residents of the village and had given a coherent version of the occurrence. There are no discrepancies in their statements, and their testimony inspires confidence. The defence witnesses have only stated that the case was concocted by the prosecution on account of the suspicion that Khushi Mohammad had lodged a report about the outraging of modesty of his daughter Ust. Rani. They have no knowledge of the incident itself. In our opinion, the learned Magistrate was not right in preferring defence evidence on the prosecution evidence. In these circumstances, the conclusions reached by the High Court are correct, and' no exception can be taken to the fact that the occurrence took place in the manner in which it has been described by the prosecution.

The learned counsel for the appellants contended that only three appellants have been attributed the important role played by them and the rest have been falsely implicated. Mst. Sakina Bibi has stated that Muhammad Shafi, Muhammad Latif and Tufail came near her and started abusing her. Muhammad Shafi and Latif appellants caught hold of her arms and Tufail appellant tore off her shirt and shalwar. They also pushed, her towards the village. So far as the rest of the appellants are concerned, they only accompanied Mohammad Shafi, Latif and Tufail and did no participate in It is admitted by the learned counsel for the respondent that the appellants are inter‑related and possibility of roping more persons than those who actually participated in the crime cannot be ruled out. We would, therefore, dismiss the appeal of Muhammad Shafi, Latif and Tufail and uphold their conviction under section 354/34, P. P. C. Their sentence under section 148, P. P. C. is set aside. The rest of the appellant are given benefit of doubt and are acquitted. They will be set at liberty, if not wanted in any other case. In the result, the appeal of Haider, Said, Arif, Khushi Mohammad and Mehr Din is allowed and the appeal of Muhammad Shafi, Muhammad Latif and Muhammad Tufail is dismissed, with the modification mentioned above.

Appeal partly allowed.

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