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Criminal Appeal No.42/L of 1986, decided on 20th October, 1986.

---S.10 (3)--Evidence, appreciation of--Benefit of doubt--F.I. R. lodged with unexplained delay of two days--Story given by prosecutrix about Zina-bil-Jabr unbelievable and all attending circumstances suggestive of fact that she was willing party to sexual act--Version of four prosecution witnesses that when they reached the spot, accused came out of the home after commission of offence and escaped after pushing aside complainant, appearing to be unnatural and improbable- "-1ssibility of false implication of accused on account of prior criminal litigation between parties, not ruled out--Accused given benefit of doubt and acquitted, in circumstances.

.--This is an appeal from the judgment of Additional Sessions Judge, Sialkot, dated 19-1-1986 whereby the appellant was convicted of offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo R.I., for fifteen years and whipping numbering thirty stripes.

2. Allegation against him is that on the night between 17th and 18th of December, 1983 Mst. Amt-ur-Rehman P.W.1 who was sleeping in her house, was awakened by the appellant, who knocked at her door and by show of a dagger, taken her to a room in her house and subjected her to Zina-bil-Jabr. The appellant continued the sexual act for about 10 minutes and thereafter the girl heard noise of some persons approaching the room whereupon she raised alarm, which attracted her father Abdur Rehman.(PW 5), Muhammad Yousaf (PW.6) Muhammad Abdullah (PW.7), Abdul Haque (not examined). On seeing these persons the appellant is alleged to have escaped pushing PW.5 Abdur Rehman aside. According to the prosecution case all the above named PWs. had seen the appellant running away without shalwar which he had left at the spot.

3. No report was lodged on 18-12-1983. On 19-12-1983 the prosecutrix, who is said to be aged 15 years, was taken to the Police Station Phillora, Tehsil Pasrur, District Sialkot, where her FIR was recorded. Investigation was conducted by PW.10 Musharaf Ali, ASI who had also arrested the appellant. The prosecutrix as well as the appellant were sent for medical examination or usual investigation the case was sent up for trial.

4. The defence of the appellant appears to be that the prosecutrix Mst. Amt-ur-Rehman was subjected to rape by somebody else, but he was implicated due to enmity with the prosecution witnesses. It is admitted that there had been criminal litigation between the parties prior to the incident. From the suggestion made to the prosecutrix and other relevant witnesses it appears that according to the appellant the sexual act with the girl was committed by some i known person, but the appellant was implicated due to enmity.

5. In support of the prosecution there is evidence of PW.1 Mst. Amt-ur-Rehman (the prosecutrix, PW 2 Lady Doctor Mrs.. Zahida Mahmood who had examined the appellant and found him potent, PW.5 Abdur Rehman father, of the prosecutrix, PW.6 Muhammad Yousaf, PW.7 Muhammad Abdullah and PW Musharaf Ali, ASI. Other witnesses are formal. The appellant has examined one witness DW.1 Arif in his defence.

6. PW.1 Mst. Amt-ur-Rehman is the main witness in this case. She has stated that on the night of the incident her mother had gone to her relations in village Sialkot, whereas her father had gone to Sialkot for labour and that at mid-night she heard a knock at the door, that she opened the door and found the appellant standing there with a dagger in his hand and that at the point of dagger hr led her to another room of the house and committed Zina-bil-Jabr with her. In cross-examination she stated that he--------to commit the sexual act. She then heard noise of some footsteps, whereupon she raised alarm, which attracted her father Abdur Rehman and PWs. Abdullah, Yousaf and Abdul Haque, who saw the appellant running away without shalwar. The appellant had also left his shoes and woollen chaddar on the spot.

7. In cross-examination she admitted criminal litigation between the main prosecution witnesses and the party of the appellant. It is admitted that PWs. Yousaf, Abdullah and Abdul Haque (not examined) are related to her father, Abdur Rehman. This is what she has stated about the litigation between the parties: -

"The name of my grandfather is Rehmat. The name of Yousaf's father is Yaqub. It is correct that Rehmat is maternal-cousin of Yaqub. It is correct that Abdul Haq, PW, is Gout in of Yousaf, PW, Ishaq and Yousaf PWs. are real brothers. Sufi Muhammad Akbar is a cousin of Rehmat. It is correct that a case a/ss.148, 149 and 325, PPC, was registered against Ishaq, Yousaf PW and Abdul Karim s/o of Yaqub, Arshad s/o Ishaq and Ishtiaq s/o Yousaf, at the instance of Ahmad Bibi, grandmother of the accused. It is correct to suggest that this was registered 5/6 months prior to the present occurrence, It is also correct that Abdul Karim abovementioned instituted a complaint against the accused and his relatives prior to the present occurrence. It is also correct that a case a/s. 13-20-65. was registered against the accused in which Abdul Karim, PW, appeared as PW against the accused.

The criminal case under section 13-20-65 mentioned in the above quotation refers to a case under the Arms Ordinance 1965. About the identity of the culprit it was suggested to the witnesses that somebody else had subjected her to zina, but the appellant was implicated due to enmity, to which the witness replied as under:-

"It is also incorrect that some other person committed zina with me and I have involved him due to the enmity. It is also incorrect to suggest that I let a real culprit go when my mother came in the house and involved the present accused falsely. "

Thus according to the defence the case is of substitution of the y, present appellant for the real culprit.

8- PW.5 Abdur Rehman is father of the prosecutrix. He has deposed that he had gone to Sialkot for labour in the morning. He admitted that- Sialkot is about 35 miles from his village and that he used to go daily to Sialkot and used to return in the evening. But on the day of the incident due to overwork, he returned at mid-night and when he reached his house he did not enter it from the outer door, lest he might disturb the sleep of his children inside the house. He entered the house through the roof of, the neighbouring house of his relation Yousaf, when all of sudden there was an alarm of his daughter Mst. Amt-ur-Rehman and that Yousaf, Abdullah and Abdul Haque, who lived in the neighbourhood had also reached and found the appellant coming out of the room of his house with a 'chhuri' in his hand. He pushed Abdur Rehman, PW, and ran away within the sight the above named witnesses. Presence of this witness at the scene of offence appears to be quite improbable. The usual time of his arrival from Sialkot was 7-00 or 7-30 p.m. as admitted by him.

There was no reason for him to have returned at mid-night and exactly at the time when the alleged sexual act had just been completed by the culprit: PW.10 Musharaf Ali, ASI, has frankly admitted that during his investigation it transpired that PW.5 Abdur Rehman was not present in his house on the night of the incident. The version is supported by the factum of two days delay in lodging the FIR. The offence was very heinous. If it was committed within the view of this witness, he would not, have waited for two days for lodging report at the Police St4tton, which is only six miles away from his village.

9. The other witnesses of the main incident are PW.6 Muhammad Yousaf, and4 1W.7 Muhammad Abdullah. They have admitted their relationship 'with PW.5 Abdur Rehman, the father of the prosecutrix. All these witnesses have further admitted that there is litigate between them and the party of the accused/ appellant. The version given by these witnesses is absolutely unnatural and improbable. They claim to have seen the appellant coming out from the room of the complainant's house. According to them the culprit had run away after pushing away PW.5 Abdur Rehman. The appellant is boy aged 19 years, whereas the witnesses are grown-up and presumed to be healthy. PW.5 Abdur Rehman aged 38 years, a labourer, who has vigour of going to Sialkot daily for labour and returning ;Iie same day. PW.6 Muhammad Yousaf is aged 55 years and Muhammad Abdullah is 48 years. If all of them alongwith Abdul Haque, who has not been examined, were present at the spot when the culprit had one of the room where Zina was committed, then it was impossible for the culprit to have escaped, as he was a young boy aged 19 years. The culprit would have been caught red-handed and would not have been allowed by as many four healthy persons to escape from the noose.

10. The other circumstance which makes the prosecution story doubtful is the criminal litigation between the parties. A litigation has been admitted by all the witnesses including; prosecutrix Mst. Amt-ur-Rehman. From her version it appears that she was a willing party to the zina with the person, whosoever he might be on the night of the incident. If she had been unwilling then she would not have remained quiet for 10/15 minutes, which the culprit took to complete the act. The fact that she raised cries only when she heard footsteps of some persons coming towards the room, shows that she was a willing party to the Zina, which was committed by a person, who must have already been known to her or with whom she must have some prior affair. If the culprit was not having affair with her, then why she alone should have woke-up on the knocking of the door by the culprit. The culprit also knew that father and mother of the girl were not present in the house and that there was a vacant room in the house where she can be taken safely for the purpose of Zina. All these circumstances lead to the inescapable conclusion that the culprit, whoever he might be, had a prior liaison with the prosecutrix and had come at mid-night on the night of the incident by prior appointment. She had raised alarm only when she heard footsteps of the neighbours coming towards the room. Has she not heard the footsteps perhaps she would not have raised alarm.

11. In view of the above circumstances the story given by the prosecutrix about Zina-bil-Jabr is unbelievable. All the attending circumstances show that she was a willing party to the sexual act.., So far as the' identity of the culprit is concerned, we find that if the appellant had been the real culprit it would not have been possible for him to have escaped from amongst the four persons, who are alleged to have reached the house in which the sexual act was committed. The possibility of false implication on account of prior criminal litigation between the parties cannot be ruled out.

12. Consequently we hold that the charge against the appellant is not proved beyond any reasonable doubt. We extend the benefit of doubt to the appellant, allow the appeal, set aside conviction and sentences and acquit him of the offence he has been charged with. He shall be released forthwith if not required in any other case.

S.G.D./340/F.Sh.C. Appeal allowed.

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