This jail appeal had been moved by the appellants Azhar Shafiq alias Billu, Ehsanullah alias Nanu son of Sher Muhammad and Falak Sher son of Alimgir against their conviction as recorded by Mr. Muhammad Azam Ali, learned Additional Sessions Judge, Sargodha who were convicted and sentence as follows:--
(i) Azhar Shafiq convicted under Section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced to 10 years R.I with whipping 30 stripes.
(ii) Ehsanullah alias Nanu, convicted under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 10 years R.I. with whipping 30 stripes.
(iii) Falak Sher, convicted under Section 19(i) read with Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 4 years R.I with whipping 30 stripes.
2. The prosecution story as narrated by Mst. Mussarrat Shaheen (PW-9) in the F.I.R. is that on the night intervening 26th and 27th September 2000 at about 1.30 a.m. (night time) she was asleep in a room of her house when her father Abdul Sattar and his uncle were sleeping in the courtyard. Eight persons, who were armed with lethal weapons such as gun and dagger, etc, got opened the outer door and thereafter chained it from inside. Four persons, who were duly armed stood as guards around the beds of her father and uncle in the courtyard and three persons namely Mazhar Ahmad armed with a gun alongwith two others entered her room and threatened her to remove her shalwar and thereafter he (Mazhar Ahmad) committed Zina-bil-jabr with her. After him the remaining two persons also performed the same act with her one after the other. She raised alarm on which her father and uncle broke open the door of the room, she told her father about the sin, committed to her, on which Mazhar and his companion threatened her father that if anyone was informed about the incident they would not be spared. Mazhar kept on entreating that they should be forgiven but the complainant's father did not accede to the same.
3. After recording the F.I.R. investigation ensued during which Mst. Mussarrat Shaheen made a supplementary statement before the Investigating Officer, whereafter she was got examined under Section 164 Criminal Procedure Code. She stated that she was asleep in her house, her father knocked at the door, she was asked to immediately open the door. On opening the door she saw that three persons namely Azhar Shafiq alias Billu. Ehsan Ullah alias Nanu and Falak Sher son of Jehangir were present with her father. All the three hurriedly entered the room. Mst. Mussarrat Shaheen, the complainant, came out of the room and sat on the bed of her father. Ehsan came out and he along-with Azhar accused took her father inside the room, thereafter Azhar Shafiq committed Zina-biljabr with her. After Azhar fulfilled his desire, Ehsan committed Zina-biljabr with her, who silenced the complainant by giving her two slaps and throttling her neck. Her father, who had been kept inside by the accused persons, witnessed the incident.
4. The above said narration of facts depicts a horrible picture and if it is true the accused persons really committed an abhorrent act. In order to ascertain whether the complainant had come with true version or not, her statement has to be very carefully scrutinized and assessed. Although the deposition made by the complainant in Court is in line with her statement under Section 164 Criminal Procedure Code, yet facts given in the supplementary statement, i,e, under Section 164 Criminal Procedure Code and the first version given by her in F.I.R. are contradictory to such an extent that no safe line can be placed on her testimony. Both the versions, i,e, in the F.I.R. and in the supplementary statement, are extremely inconsistent. According to the F.I.R. eight persons committed trespass, they were armed with deadly weapons, four of them stood as guard around cots (beds) of her father and uncle who were asleep in the courtyard, when three persons entered the room and after bolting the door from inside, forcibly committed Zina with her. On her alarm, which apparently was raised after all the three achieved their purpose, her father broke open the door and entered the room. Question arises that, why the alarm was not raised at the time of very entrance of the accused persons in the room, how the father could be allowed by the four armed persons who were guarding him, to break open the door. The story as such does not at all appeal to reason the accused persons who firstly threatened the complainant's father simultaneously started requesting him that no one should be informed about the incident! The story is totally improbable, inconsistent and incoherent.
5. The conduct of the accused persons as stated by the complainant, does not appear .to be normal and as such acceptable. The complainant did not even stick to. this version and came up with an altogether different. story, the names of accused persons were changed, Mazhar was not even mentioned therein and according to new story she was sleeping in the room, her father was awoke and on his knocking and asking she opened the door. She came out of her room and sat on her father's bed. The three accused persons took her to the room inside, two of them committed Zina-bil-jabr and thereafter her father was also called inside the room to witness the incident. This story is equally inconsistent, improbable and unconvincing. Two extremely discrepant and contradictory statements have been Made by the complainant, which renders her testimony unworthy of credit.
6. The complainant's evidence when weighed by keeping in view the medico legal report about local examination and the examination of her private parts, there remains no doubt to infer that she is a girl of easy virtue. She is a grown up girl as her age is recorded in between 17 and 20 years.
The statement of girl with such a character can be believed or relied upon with great care and caution. The mere fact that the swa bs have been reported to be semen stained does not by itself prove that the version given by her is true, The benefit of doubt in any case has to go to the accused persons.
7. I find that prosecution has not been able to discharge its onus and as such it would be unsafe to maintain and uphold the appellants' conviction. The appeal is accepted, the judgment and order of the learned trial Judge is set-aside and the appellants, are acquitted of the charge. They shall be released from jail, if not required in any some other case.