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Criminal Appeal No. 1296 of 1980, decided on 7th March, 1983.

‑‑‑Ss. 363, 366 & 376‑‑Compromise in non‑compoundable offence‑ Effect‑‑ Prosecutrix and her mother, supporting prosecution‑‑Two eye witnesses named in F.I.R. given up as won‑over‑‑Complainant, father of prosecutrix resiling from his previous version given in F.I.R. and private complaint and also filing application for withdrawal of complaint on basis of compromise between parties‑‑Refusal of complainant to support prosecution story even though it involved his daughter, held, would adversely affect case of prosecution in circumstances.‑‑[Compromise].

‑‑Ss. 363, 366 & 376‑‑Evidence, appreciation of‑‑Prosecutrix and her mother supporting prosecution story‑‑Witnesses alleging commission of rape by one accused and presence of all at spot‑‑Witnesses having no motive to falsely implicate at least two of accused‑ ‑Statement of prosecutrix finding support from medical evidence‑ ‑Delay in examination of prosecutrix and lodging of F.I.R. explained in F.I.R.‑ Mother of prosecutrix having motive against other two accused, reacting both ways‑‑No evidence of any relationship between two sets of accused Defence witnesses admittedly not present at spot, stating of their participation in Panchayat proceedings‑‑Statements of defence witnesses found insufficient to rebut case of prosecution‑‑By way of abundant caution and in absence of any corroboration, presence of two accused having no motive, held, was not established beyond all reasonable doubt‑ Accused were, therefore, acquitted while other two accused found to have forcibly dragged prosecutrix to sugarcane field where one of them committed rape with her were convicted accordingly.

‑‑‑Ss. 71, 363, 366 & 376‑‑Conviction under Ss. 363 & 366 both. whether ,maintainable‑‑Offence under S. 366, aggravated form of offence under S. 363‑‑Accused, held, could not be convicted for both offences and offence under S. 366 being graver, conviction under S. 363 was set aside‑ Conviction under Ss. 366 &376 was maintained in circumstances.

Zakaur Rehman and Qazi Umar Draz for Appellants.

S. Zulfiqar Haider for A.‑G. for the State.

Dates of hearing: 16th and 21st February, 1983.

The appellants, Lashkar (aged 35 years), Ghulam Farid (aged 50 years), Shamir (aged 45 years) and Falak Sher (aged 22 years), were convicted by a Magistrate exercising enhanced powers under section 30 of the Code of Criminal Procedure at Faisalabad of offences under sections 363 and 366 of the Pakistan Penal Code. For the offence under section 363 they were directed to suffer rigorous imprisonment for a period of three years and to pay fines in the sum of Rs. 500 each, or in default thereof to undergo further rigorous imprisonment for a period of three months. For the offence under section 366 they were ordered to undergo rigorous imprisonment for a period of five years and to pay fine of Rs. 500 each or in default thereof to undergo further rigorous imprisonment for a period of three months. Lashkar was further convicted of an offence under section 376 of the Pakistan Penal Code and in respect of this offence he was directed to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 500; in default of payment of fine he was to receive further rigorous imprisonment for a period of three months. All the substantive sentences of imprisonment were directed to run consecutively. The appellants have filed this appeal against their convictions and sentences.

2. Mst. Niamat Bibi (P.W.5), a young girl of 13 years of age, resided with her parents in a Dhari in the outskirts of Chak No. 280/R.B. of Tehsil Faisalabad. According to the prosecution on the morning of 2‑9‑1975 her father, Ahmad Khan (P.W.1) had gone to the Chak. At about 9/10 a.m. she went to the nearby garden of one Abdul Hamid to buy some guavas. Suddenly, all the four appellants came there. At that time Lashkar was armed with a pistol, Shamir and Ghulam Farid were carrying guns and Falak Sher had a Lathi with him. On the Lalkara raised by Ghulam Farfd they caught hold of the girl, lifted her and took her to a sugarcane field. In the field Lashkar committed rape upon her. The alarm raised by the girl attracted her mother and two other persons to the spot. They saw Lashkar in the act of committing rape upon the girl. On their protest the appellants left the spot with their weapons. When Ahmad Khan (P.W.1) returned to his Dhari, he was informed of what had happened to his daughter. He proceeded to the police station to lodge an F.I.R. The appellants stopped him on the way. On 5‑ 9‑1975 he took his daughter to the Civil Hospital at Faisalabad where she was examined by Dr. Nafees Akhtar (P.W.4). The doctor found two marks of injuries on her body. These consisted of contusions on the back of the right upper arm and on the inner side of the left upper lip. The doctor also noticed that the hymen had old tears which had healed. She opined that the injuries were 4 days old and that it was a case of rape.

3. On 8‑9‑1975 Ahmad Khan (P.W.1) sent a complaint to the Superintendent of Police in which apart from narrating the incident he stated that the local police had sided with the culprits and had refused to register a case. Under the direction of the Superintendent of Police the F.I.R. was recorded at Police Station Dijkot on 9‑9‑1975 at 7 p.m. The local police conducted the investigation and found that the appellants were innocent. However, the Superintendent of Police did not agree with the said finding and at his instance a challan was submitted in the Court.

4. Apprehending that the police was not likely to take any action on his report Ahmad Khan (P.W.1) lodged a complaint in the Court of the Ilaqa Magistrate. However, after the submission of the challan in the Court the proceedings on the complaint were dropped.

5. The appellants pleaded not guilty to the charges against them. They denied that they had abducted Mst. Niamat Bibi (P.W.5) or subjected her to rape. They examined two witnesses in their defence.

6. The case of the prosecution rests entirely upon the statements of two witnesses, namely, Mst. Niamat Bibi (P.W.5) and her mother Mst. Sammon (P.W.3). In the F.I.R. and the complaint two other persons, namely, Abdullah and Abdul Hamid, were also cited as eye‑witnesses of the occurrence but they were given up on the ground that they had been won over by the defence.

7. At the trial Ahmad Khan (P.W.1) went back on the version given in the F.I.R. and the complaint and stated that the appellants had done nothing to his daughter. Upon this he was declared hostile by the prosecution. It may be mentioned, that in the complaint case he had made an application in the Court to the effect that he had entered into a compromise with the appellants and that as the parties belonged to the same brotherhood, he should be permitted to withdraw the complaint. Presumably, as the complaint disclosed non‑compoundable offences no order was made on his prayer. However, that may be, in view of this background his refusal to support the story of the prosecution at the trial even though it involved his own daughter cannot be taken as a circumstance adversely affecting the case of the prosecution.

8. Mst. Niamat Bibi (P.W.5) deposed at the trial that on the day of occurrence when she had gone to buy some guavas the appellants forcibly dragged her to a sugarcane field where Lashkar committed rape upon her. Mst. Summon (P.W.3) alleged that she was attracted by the alarm raised by her daughter and that she had herself seen all the appellants present at the scene of occurrence and Lashkar committing rape upon her daughter. So far as Lashkar and Falak Sher are concerned neither Mst. Niamat Bibi nor her mother Mst. Sammon had any motive at all to falsely accused them of such serious charge. The statement of Mst. Niamat Bibi (P.W.5) that she was subjected to intercourse finds support from the statement of Dr. Nafees Akhtar (P.W. 4). No doubt the medical examination of Mst. Niamat Bibi took place three days after the alleged occurrence but in the circumstances described in the F.I.R. I am not prepared to attach any importance to this delay.

9. It appears that a few months prior to the occurrence a daughter of Ghulam Farid was abducted and raped. A criminal case was registered as a consequence thereof. In that criminal case very close relatives of Mst. Sammon (P.W.3) were involved. They were facing trial at the time when the present occurrence took place. There is a possibility that the assault upon Mst. Niamat Bibi (P.W. 5) was motivated by a desire to take revenge for the humiliation brought upon Ghulam Farid on account of the abduction of his daughter but then it is also not unlikely that Mst. Sammon (P.W.3) might have falsely involved Ghulam Farid and Shamir who were closely related inter se in order to put pressure on them to withdraw from their case. Therefore, by way of abundant caution and in the absence of any corroborative evidence, I would hold that their presence at the spot is a matter not established beyond all reasonable doubts. It may be mentioned that there is no evidence on the record which may indicate relationship between Lashkar and Falak Sher on the one hand and Ghulam Farid and Shamir on the other.

10. The two defence witnesses produced by the appellants were admittedly not present at the time of occurrence. They stated that after the registration of the case by the police they had participated in the proceedings of the Punchayat. Falak Sher (D.W.1) stated that after being assured by the appellants he had sworn at a Darbar that they were innocent. Mumtaz Hussain (D.W.2) deposed that in his presence Lashkar appellant had taken the oath that he was innocent. In my opinion the statements of these two witnesses are entirely insufficient to rebut the case set up by the prosecution.

11. In the complaint which Ahmad Khan (P.W.1) had submitted before the Ilaqa Magistrate he had given the name of the father of Falak Sher as Sarang whereas in the F.I.R. he had described him as son of Abdur Rehman. I do not think that this discrepancy is sufficient to cast any doubt with regard to the participation of this appellant in the occurrence.

12. On the basis of the statements of Mst. Niamat Bibi (P.W.5) and Mst. Sammon (P.W.3) I am satisfied that both Lashkar and Falak Sher had lifted Mst. Niamat Bibi (P.W.5) and forcibly dragged her to a sugarcane field where Lashkar committed rape upon her.

13. The learned trial Magistrate has chosen to convict Lashkar and Falak Sher of offences under sections 363 and 366 of the Pakistan Penal Code. It is to be noticed that the offence under section 366 is an aggravated form of the offence under section 363 and by operation of section 71 of the Pakistan Penal Code, they could not be convicted in respect of both the offences. Since the offence under section 366 is a graver one I would set aside the conviction and sentences of these two appellants for the offence under section 363. Their convictions under section 366 are maintained. Considering all the circumstances of the case, I reduce their sentences in respect of this offence to rigorous imprisonment for a period of 2‑1/2 years. The sentences of fine in respect of this offence are, however, maintained. The conviction and sentence of Lashkar for the offence under section 376 does not require any interference. I also direct that the two substantive sentences of imprisonment in the case of Lashkar shall run concurrently. Ghulam Farid and Shamir are acquitted of all the charges against them. They shall be set at liberty forthwith if not required in any other case.

S.A./L‑4/L Appeal partly accepted.

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