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Criminal Appeal No. 287/L of 1985, decided on 27th May, 1986.

‑‑‑Ss. 10(3) & 18‑‑Ocular evidence, appreciation of‑‑Prosecutrix supported by two witnesses‑‑Union of prosecutrix with complainant admittedly result of civil marriage‑‑Nikah of prosecutrix with complainant, found doubtful‑ ‑Prosecutrix having married previously‑‑ Nikahnama produced in defence‑‑Panchayat convened by accused against complainant‑‑Complainant resenting over convening of Panchayat‑ Witnesses not residents of village of occurrence but were found to be chance witnesses‑‑Material discrepancies found in statements of witnesses regarding place of occurrence and manner of their entering house‑ Witnesses contradicted by prosecutrix on material points‑‑Delay in lodging F . I . R . , not explained‑‑No respectable of village associated in investigation‑‑Prosecutrix of 35 years age whereas accused 20 years old‑‑Held, accused having tried to commit rape with elderly lady, would be improbable‑‑Defence version given by witnesses found quite believable‑‑Accused, acquitted by giving him benefit of doubt in circumstances.

Ch. Muhammad Farooq for Appellant.

Muhammad Naeem for the State.

Date of hearing: 26th May, 1986.

This is an appeal from the judgment of Additional Sessions Judge, Toba Tek Singh, dated 8th December, 1985, whereby the appellant was convicted of offences under section 10(3) read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and section 452, P.P C. and sentenced as under:‑

( ) Under section 10(3) read with section 18 of the said Ordinance to suffer R.I. for ten years and whipping numbering fifteen stripes.

(ii) Under section 452, P.P.C. to R.I., for five years and to pay fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for six months.

2. The allegation against the appellant was that on 8‑3‑1985 at 2 p.m. he had entered the house of complainant Muhammad Ashraf situated in Chak No. 286/G.B., within the area of Police Station Rajana by scaling over the wall of the house and tried to commit Zina‑bil‑Jabr with Mst. Arshad Bibi, wife of complainant Muhammad Ashraf. Mst. Arshad Bibi had children aged 10 years and 8 years etc. The elder children are said to have unchained the door of the house and gone out and raised cries, which attracted P.Ws. Inam Ullah and Mukhtar.

These witnesses have claimed that they had entered the house of Muhammad Ashraf by scaling over the wall and found the appellant sitting over the chest of Mst. Arshad Bibi, whose Shalwar was already removed. These witnesses had tried to catch hold of the appellant, but he managed to escape with a dagger in his hand.

3. Muhammad Ashraf complainant was not in his house at that time. He had gone to pay homage to the shrine of Pir Sahib Kot Khitran. He returned the same evening when his wife Mst. Arshad Bibi informed him of the incident. On the following day i.e. 9‑3‑1985 he started going towards Police Station Rajana. In the way near Adda Rajana he met with Mr. Muhammad Hanif, A.S.I. of the above police station, who recorded the complaint of Muhammad Ashraf and sent it to the Police Station Rajana, which was only one mile away from the scene of offence, for registration, of the case. P.W.4 Abdul Ghafoor had recorded formal F.I.R, and registered the case.

4. Mr. Muhammad Hanif had conducted the investigation. He sent Mst. Arshad Bibi (P. W. 2) for medical examination to District Headquarters Hospital, Toba Tek Singh where Dr. Mukhtar Bibi (P.W.3) had examined her on 12‑3‑1985 i.e. after 4 days of the incident and 3 days of the registration of the case. The lady doctor had found the following injuries on the person of Mst. Arshad Bibi:‑---

(1) An abrasion 9 c.m. into 1/8 c.m. on the right side of back, just below the slapulae.

(2) An abrasion 1.5 c.m. 5 x 5 c.m. on back of right elbow joint.

(3) Multiple abrasions 2 c.m. x 1 c.m., 1 c.‑m. x 1 c.m., 1 c.m. x 0.5 c. m. 0.5 c.m. x 0.5 c.m., 1 c.m. x 1 c.m. within an area of the 10 c.m. x 7 c.m. on the back of the elbow joint.

(4) An abrasion 1 c.m. x 0.5 c.m. on the front of right knee joint.

(5) An abrasion 2 c.m. x 1 c.rn. on the front of the left knee joint.

The above injuries were simple in nature and appeared to be caused by blunt weapon. Their duration would be 4/6 days. The appellant was arrested but was not sent to the doctor for medical examination regarding his fitness to commit sexual intercourse.

5. The case of the appellant was that he has been implicated falsely in this case because he had convened a Punchait and summoned Muhammad Ashraf for settlement of the incident of enticement by him of Mst. Arshad Bibi about ten years back. This Mst, Arshad Bibi, who was admittedly also known as Hadayat Bibi, was in fact wife of Anwa (D.W.1). Anwar had searched for his wife and ultimately come to know that she has been residing with Muhammad Ashraf in Chak No. 286/G.B. The appellant alleged that the complainant had threatened him of dire consequences because the appellant had humiliated him by dragging him before the Punchait. The appellant has examined D.W.1 Muhammad Anwar and D.W.2 Bashir Ahmad Lambardar Chak No, 286/G.B, in whose Dera the disputed Punchait was held. The appellant himself had also appeared as his own witness and given evidence on oath.

6. In support of the prosecution case there is evidence of P.W.1 Muhammad Ashraf, complainant, P.W.2 Mst. Arshad Bibi the prosecutrix, P.W.3 Dr. Mukhtar Bibi, W.M.O. P.W.5 Inamullah, P.W.6 Mukhtar and P.W.7 Mr. Muhammad Hanif, A.S.I.

7. So far as Muhammad Ashraf, complainant (P.W.1) is concerned he is not an eye‑witness. He has stated that when he returned to his house in the evening his wife had told him as to what had happened during the day. He has proved his complaint which was recorded by Muhammad Hanif, A.S. I., on 9‑3‑1985. He has denied in cross‑examination that he had abducted Mst. Arshad Bibi or that she was earlier married with D.W.1 Anwar, but he has made a very significant admission about his marriage with Mst. Arshad Bibi, which is as under:‑----

"My marriage with Mst. Arshad Bibi is an incidence of civil marriage."

It is, however, on the record that he and Mst. Arshad Bibi had been living together for ten years in different villages. Lastly they had settled in Chak No. 286/G.B., District Toba Tek Singh since four years before the incident. He has admitted that Mst. Arshad Bibi is also known as Hadayat Bibi.

8. P.W.2 Mst. Arshad Bibi has given the story as stated above. From her statement it appears that the appellant was armed with dagger and had entered the house by scaling over the wall at 2 p. m. in the day when her children were also present in the house. It further appears that on the point of dagger he had made Mst. Arshad Bibi to lie down and remove her Shalwar and just at that time her children had rushed out of the house after unchaining the outer door of the house and made noise, which attracted P.Ws. Inamullah and Mukhtar, who had rescued her from the appellant. It is admitted that one of the children was aged 10 years and another 8 years. It also appears from her statement that her shirt was torn during the incident and her trouser string was cut by the appellant with his dagger. In cross-examination it was suggested to her that she was enticed away by the complainant from the house of her former husband Anwar and that a Punchait was convened in this connection. Her reply to the above suggestion was as under:‑---

"It is incorrect to suggest that I was ever married with Muhammad Anwar and that I engaged a marriage with Ashraf without obtaining divorce from Anwar. This is incorrect to suggest that no occurrence took place and I have falsely implicated the accused. This is incorrect that a quarrel between the women took place two/three days before the occurrence."

9. P.W.5 Inamullah and P.W.6 Mukhtar have deposed that while passing by the house of the complainant they heard noise inside the house, that they entered the house by scaling over the wall and found the appellant sitting over the chest of Mst. Arshad Bibi with a dagger in his hand. Both witnesses admit that they are not residents of this village. P.W. Inamullah has shown himself to be in Pakistan Arm,I posted at Abbottabad in Baloch Regiment, while Mukhtar is resident of the same Chak, but resident about one Acre away from the house of the complainant and was just passing by the house. Both these persons are chance witnesses and there are several discrepancies in their statements. They have stated that as soon as they entered the house by scaling over the wall, they found the appellant sitting over the chest of Mst. Arshad Bibi but he unchained the door of the house and escaped. Inamullah states that house of the complainant consisted of two rooms and the place where the appellant was sitting on the chest of Mst. Arshad Bibi was courtyard of the house. P.W. Mukhtar states that there were three rooms in the house and that the incident had taken place in one of the three rooms. However, Mst. Arshad Bibi herself states that there is only one room in her house. In view of these discrepancies both Inamullah and Mukhtar appear to be unreliable witnesses. However, it is not understood why they had scaled over the wall in order to enter the house, when according to Mst. Arshad Bibi, the door of the house had already been unchained by her children immediately after the incident and they had gone out raising cries. In the context of the evidence of Mst. Arshad Bibi that her children had unchained the door and gone out of the house the version of P.W.5 Inamullah and P.W.6 Mukhtar that the appellant had escaped by unchaining the door of the house, also appears to be unbelievable. All these discrepancies make the story highly doubtful.

10. The most important factor which has rendered the story doubtful is the manner in which the appellant is alleged to have acted. The time of the incident was 2 p.m. in the month of March. Children of the complainant aged 10 years and 8 years were present in the house. In these circumstances only an insane person would have dared to enter the house by scaling over the wall and try to subject a woman to rape in presence of her children.

11. The Police Station Rajana was only one mile away from Chak No. 286/G.B. Still the complainant did not lodge report immediately on the same day i.e. 8‑3‑1985. Even on the next day he did not go to the police station immediately. He started going towards the police station in the afternoon and accidentally came across 'A.S.I., Muhammad Hanif at Adds Rajana at 5‑45 p.m. This Adda must be not very far away from the Rajana Police Station. There was no reason for the complainant to have lodged report at the Adds instead of the police station nearby. It may be stated that a dagger is alleged to have been secured from the appellant for which a separate case under the Arms Ordinance was registered, but the Investigating Officer does not state as to when the appellant was arrested and when the dagger was secured. However, copy of the judgment in the case under Arms Ordinance has been tendered in evidence by the appellant as Exh .‑D . B . , whereby he was acquitted of the charge.

12. It is also surprising that no respectable person of village including Lumbardar and councillor were associated with the investigation. One respectable person was Bashir Ahmad Lumbardar, who has appeared as D.W.2 and who has deposed that no incident, as alleged by they complainant, had taken place in his village.

13. Although Mst. Arshad Bibi has denied that she was married to one Anwar, but the appellant has produced certified copy of Nikahnama showing that she was formerly married to Anwar. In this Nikahnama she has been described as Mst. Hadayat Bibi. She has admitted that her name is Mst. Hadayat Bibi also. This Nikahnama is dated 17‑7‑1974 in which her age is given as 17 years. However, in her statement as P.W.2 she has given her age as 35 years. The appellant is aged about 20 years. It is improbable that the appellant would have tried to commit rape upon an elderly lady.

14. In the context of the prosecution evidence, the defence version which transpires from the evidence of D.W.1 Anwar and D.W. 2 Bashir Ahmad appears to be quite believable. The Nikah of Mst. Arshad Bibi with complainant according to Islamic Law is doubtful. Complainant Ashraf has stated that his union with Mst. Arshad Bibi is result of a civil marriage. It is unbelievable in our country, where persons, who are Hanfi Muslims, as Muhammad Ashraf and Mst. Arshad Bibi are to contract civil marriage. Nothing prevented them to enter into a valid Nikah according to Islamic Law if they actually wanted to live as husband and wife. In the context of the above admission of complainant Ashraf the version of D.W.1 Anwar that he was formerly married with Mst. Arshad Bibi appears to be quite plausible. The version of Anwar is also supported by the Nikahnama (Exh . D . A .) and by the evidence of D.W.2 Bashir Ahmad, who was Lumbardar of the village of the complainant. It was the Dera of this witness where the appellant had convened a Punchait for the benefit of Muhammad Anwar. Both Muhammad Anwar and Bashir Ahmad have stated that the complainant was summoned in the Punchait and he was asked as to why he had been keeping Mst. Arshad Bibi with him, whereupon the complainant was annoyed and left the Punchait holding out threat of dire consequences to Muhammad Akram appellant, who was instrumental in convening the Punchait.

15. In view of the above circumstances, we hold that the case against the appellant is doubtful. Consequently we give benefit of doubt to the appellant, allow the appeal, set aside the convictions and sentences and acquit him of the offences he has been charged with. He shall be released forthwith if not required in any other case.

S.A./306/F Appeal allowed.

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