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Criminal Appeal No. 577 of 1969, decided on Ist November, 1982.
---S. 376/149--Rape--All accused not playing any active role at time of commission of rape by non-appealing co-accused--Prosecution witnesses confronted with their earlier statement, wherein they had absolved these accused--Statements of eye-witnesses at trial not found to be worthy of any credit qua these accused--Participation of accused in crime found to be doubtful in circumstances--Accused acquitted.
Nemo for Appellant.
Javed Aftab for the State.
Date of hearing: 1st November, 1982.
This appeal has been filed by eight appellants against their convictions and sentences recorded by Magistrate Ist Class empowered under section 30, Criminal Procedure Code, Lodhran District Multan, dated 15-7-1.969 whereby he convicted and sentenced them as under: --
(i) Under section 148, P.P.C.-- One year's rigorous imprison
ment each.
(ii) Under section 452/149, P.P.C.-- One year's rigorusimprison
ment each.
(iii) Under section 376/149, P.P.C.-- Nur Muhammad accused five years' rigorous imprison ment all others two years' rigorous imprisonment each.
2. The facts giving rise to this appeal are that the complainant Allah Bachaya and his wife Mst. Noor Khatoon were present in their house at Rasoolpur during forenoon of 12-7-1967 while their 8 years old daughter Mst. Sakina laid asleep in the compound under a Shisham tree. Noor Muhammad, Ibrahim, Nazar Muhammad, Najam, Shafi, Ramzah, Allah Bakhsh and Bashir appellants arrived there armed with sticks. Noor Muhammad caught hold of Mst. Sakina and committed rape with her. Nazar Muhammad,- Najam, Allah Bakhsh and Bashir kept the complainant at bay while the remaining appellants restrained his wife from rescuing his. unfortunate daughter. Nabi Bakhsh and Sadiq P.Ws. were drawn to the scene who interceded with the appellants and consequently they decamped.
3. The cause of the occurrence was stated to be that the appellants had entertained a suspicion that Mehar Hussain son of the complainant who was employed as a Telephone official elsewhere and was on a visit home the preceding night had an illicit connection with Mst. Tajan daughter of Ibrahim appellant.
4. Mst. Sakina was taken to the hospital at Dunyapur the next morning for examination and treatment. Allah Bachaya lodged the first report at Dunyapur Police Station. The appellants were arrested and after usual investigation the challan was put in Court for-their trial. It may be stated that appellants Shafi, Ramzan, Allah Bakhsh and Bashir were placed in column No.2 by the police but they were called later by the Court to stand trial, with other appellants.
5. To prove its case the prosecution produced all told 11 witnesses. All Bachaya, Noor Khatoon, Nabi Bakhsh and Sadiq as the eye-witnesses of the alleged occurrence who supported the prosecution case as above. They testified that Mst. Sakina was raped by Noor Muhammad appellant while the remaining 7 appellants prevented her parents from rescuing their daughter. Mst. Sakina too was put in the witness-box. She also implicated the appellants for all the criminal acts laid to their charge.
6. Dr. Abdul Sattar who examined Mst. Sakina at 9-20 a.m. on 13-7-1967 found the lower part of her vagina bleeding and ruptured. The hymen, too was ruptured. It admitted one finger. The swabs taken from the vagina were sent to the Chemical Examiner who found them semen-stained. Noor Muhammad was also examined medically on 14-7-1967 and the doctor found him fit to perform the sexual intercourse.
7. Asghar Ali, Sub-Inspector deposed about the different stages of the investigation. He arrested Noor Muhammad, Ibrahim, Nazar and Najam accused on 14-7-1967 and secured the blood-stained shirt and Chadar EXh3.P.1 and P.2 from the person of Noor Muhammad, appellant. The remaining appellants were placed in column No.2 under the order of Ch. Nisar Ahmad, D.S.P. who re-investigated the case on the spot on 7-8-1967 under the orders of D.I.-G. Police.
8. All the appellants in their statements denied the allegations levelled against them in toto. The explanation was that Noor Muhammad appellant's wife was sterile, therefore, he wanted to re-marry and was offer the hand of one of his daughter by the complainant. Noor Muhammad rejected the offer and this motivated the complainant to engineer the instant case against the appellants. The appellants examined 5 witnesses namely, Khan Muhammad, Ahmad Bakhsh, Faiz Bakhsh, Ghulam Mustafa and Ghulam Muhammad, Patwari in their defence. The former 3 witnesses supported the defence plea that the appellants had been criminated because Noor Muhammad had declined to marry the complainants' daughter while Ghulam Mustafa D.W. proved the plea of alibi of Nazar Muhammad appellant saying that he was present at Kotli Najabat Tehsil Shujabad at the time of occurrence. Ghulam Muhammad Patwari stated from the record that the complainant was not the tenant of Noor Muhammad appellant in the year 1966-67 as asserted by the former.
9. The learned trial Court held that the evidence in the case was indeed overwhelming in character which according to him remained entirely unexplained and unrebutted. Consequently the learned trial Court convicted and sentenced all the appellants as indicated above who have challenged their convictions and sentences by filing the instant appeal.
10. This appeal was filed on 26-7-1969, alongwith an application for suspension of sentences on behalf of all the appellants except Noor Muhammad (the principal accused). It came up for hearing on 28-7-1969 before the learned Single Judge of this Court who while suspending their sentences was pleased to observe as under: -
In the F.I.R. Noor Muhammad alone unprotected and unaided is reported to have committed rape and the associates are said to have appeared on the scene after the event to rescue him. In the circumstances the implication and liability of the petitioners will require examination."
11. The appeal has come up before me after about 13 years. It appears from the record that Noor Muhammad appellant's sentence was not suspended who would have served out his total sentence and as such his appeal to this extent has become infructuous and is resultantly dismissed.
12. As for remaining appellants, it may be observed that the record of the lower Court is not available. However, I have gone through the memo of appeal as well as the copy of the judgment attached with it with the assistance of learned counsel for the State fearing that if a search for the record is made now, it would take few years more to decide the matter. It is apparent from the judgment of the lower Court that Nazar Muhammad, Ibrahim and Najam appellants were neither named in the F.I.R. nor their statements recorded by the police under section 161, Cr.P.C. with the result that they were placed in column No.2 by the police. According to para. 3 of the petition made under section 426, Cr.P.C. Mst. Sakina the prosecutrix when examined by the police, stated that she was raped by Noor Muhammad, who was apprehended and thereafter, Ibrahim and Nazar Muhammad appellants came there and took him away but she did not name any other appellant. Nabi Bakhsh and Sadiq Muhammad also made similar statements before the Police. All these witnesses were confronted with their earlier versions at the trial.
13. From the above discussion it follows that Nazar Muhammad, Najam, Shafi, Ramzan, Allah Bakhsh and Bashir appellants did not play any active role at the time of the commission of rape by Noor Muhammad appellant. Their participation therefore, in the crime appears to be doubtful because the prosecution witnesses when examined at P the trial were confronted with their earlier statements wherein they had absolved them. As their statements at the trial cannot be worthy of any credit qua these appellants, therefore, I have no alternative but to acquit them.
14. The result is that the appeal of Noor Muhammad is dismissed and qua other appellants is accepted. Their convictions and sentences are set aside. Consequently the appellants namely, Ibrahim, Nazar Muhammad, Najam, Shafi, Ramzan, Alla Bux and Bashir are acquitted.
H. A. K. Order accordingly.
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