This Jail criminal appeal filed by Liaqat Ali alias Kala son of Asghar Ali is directed against the judgment dated 5.1.2004 passed by the learned Additional Sessions Judge, Karor whereby he has convicted him under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, and,,sentenced him to five years R.I. He has further convicted him Under Section 451 PPC and sentenced him to one year R.I. and fine of Rs. 1000/- or indefault of payment of fine he further undergo 10 days S.I. Both the sentences were ordered to run concurrently. The benefit of Section 382-B, Cr.P.C. has been extended to him.
2. Brief facts of the,prosecution case, as narrated in FIR registered at police station Fatehpur at about 6.45 p.m. on 26.10.2.002 are to the effect that on 25.10.2002 the complainant Nazir Hussain (PW9) alongwith his wife namely Sarwar Begum had gone to Chak No. 296/TDA due to death of his close relative. His daughter Nasim Akhtar (PW8), aged 13/14 years, was alone in the house as the other children had gone to school. When he returned in the night, his daughter informed him that, at about 1.00 p.m., on the same day. Muhammad Hayat, ASI (PW-3) on 26.1'0.2002 recorded the formal FIR (Ex. PB) on the statement of the. complainant without any omission or addition. Dr. Shama Azam, W.M.O. (PW.5) on 26.10.2002 medically examined the victim Mst. Nasim Akhtar aged 15 years and observed as under:-- "General Physical examination B.P. 110/80 pulse regular 78, temperature 98-F. No. any sign of violence and struggle seen.
Per speculum examination.
No bleeding per vagina seen, not any tears or laceration seen on lateral wall of vagina.
Per vaginal examination.
Uterus antiverted normal size. Vagina admits two fingers easily. Hymen showed old healed tags.
However, three high vaginal swa bs were taken and sent to chemical examiner for deduction of Semen and final report will be given afterward.
My report Ex. P-C is in my handwriting and bears my signatures. Police docket is Ex. P-C-1.
Chemical report is before me today and according to which the above swabs are stained with semen."
This P.W. was recalled and examined on 30.10.2003 and she deposed almost the same as mentioned herein above. Muhammad Naseer, Constable (PW.6) is witness to the recovery memo (Ex. PD) and (Ex. PE) whereby the shalwar of victim P/1 and sealed phial and envelope were taken into possession by the investigating officer. Ahmed Bukhsh, SI (PW.7) on when she was all alone in the house, appellant/accused came there and forcibly committed Zina-bil-jabr with her, after lifting her up to room and laying her down of the cot. She alleged that she raised hue and cry which attracted Muhammad Ashfaq and Muhammad Ashraf (PW10). On seeing them the appellant/accused ran away. He further stated that elders tried for a compromise but he did not agree and reported the matter to the police. Ahmed Bukhsh, SI (PW7) arrested the appellant/accused on 25.2.2003 and, after finding him the guilty, challaned him to face the trial.
Firstly he was formally charged on 9.4.2003 but later on the charge was re-framed on 9.10.2003. He did not plead guilty and claimed trial.
3. At the trial, the prosecution examined ten witnesses in all to support its case. (PW1) Dr. Muhammad Azam, Medical Officer on 25.2.2003 medically examined the appellant and found him fit to perform sexual intercourse. (PW2) Muhammad Arshad, HC (PW-2) on 26.10.2002 received envelope containing swa bs for safe custody and on 8.11.2002 handed over to Muhammad Abbas, Constable. (PW.4) for onward transmission to the office of chemical examiner Multan which he delivered the same to the said office 26.10.2002 the investigation was handed over to him by the SHO. He got medically examined the victim from RHC Fatehpur, secured shalwar P/I, one sealed phial and one envelope vide recovery memo (Ex. PD) and (Ex.PF.) He recorded the statements of PWs under Section 161 Cr.P.C. He arrested the appellant on 25.2.2003 and got him medically examined. After necessary investigation he has challaned him to face the trial. Mst. Nasim Akhtar (PW.8) is victim and deposed as under:-- "From today ten months ago I was present in my house and was doing home work and was alone in my house. My parents have gone to the house of my relative in connection with death and my younger sister and brother had gone to school and my youngest sister read in Class three. In the meanwhile the accused Liaqat Ali alias Kala and Razzak entered into my house and the accused Liaqat took me in a room and did not touch my clothes of my upper part of the body but he put off my shalwar forcibly and committed Zina with me on a cot and after committing zina he stood in front of my cot and accused Razzak committed zina with me.on a gun point and threatened me that if I had told any body I would have been murdered. When Razzak was committing zina with me I made hue and cry. On my hue and cry PWs Ashraf and my brother Boota attracted to spot and on seeing them the accused fled away from the spot. When my brother chased the accused persons then accused Razzak asked him that he will kill him if he tried to catch them. After wearing my clothes I narrated all the story to my brother. My parents came at night at 7/8.00 p.m. The occurrence took place at 1.00 p.m. I alongwith my father went to the P.S. on the next day and I got recorded the name of accused Liaqat and then my father told me that the name of accused Razzak had been missed. Police told my father that FIR has been chalked out and the name of other accused cannot be entered. Then my father took me to the Hon'ble High Court and on the orders of Hon'ble High Court Multan Bench proceedings were taken against the accused Razzak by the police. The accused Razzaq was guilty but police declared him innocent in this case. Afterwards the people told us that the police receive bribe from the accused Razzak. (At this stage counsel for the complainant moved an application for summoning the accused Razzak that the victim has involved him in the offence of commission of zina and in view of the findings in the complaint case the accused Razzak has been prima facie involved in this case. Hence in the interest of justice the accused Razzak is summoned).
She again recalled on 24.10.2003 and deposed similarly as mentioned herein above. Muhammad Nazir (PW.9) is complainant who reiterated his statement as mentioned hereinabove. Muhammad Ashraf (PW.10) is son of the complainant and brother of the victim. He deposed as under:-- "One year ago I took the heard of goat about two Killa away from my house, for grazing. I was coming back to my house and near to my house I heard hue and cry of my sister Nasim Mai. I attracted towards the spot where I saw Kala accused was committing zina with my sister Razzak accused put his hand on the mouth of the victim while commission of zina by accused Kala with my sister. After Razzak accused made her to lie in the cot in the room and Razzak committed zina with my sister. Both the accused remained committing zina for one/one and half hour with my sister. Afterwards both the accused in naked condition ran away from the spot alongwith their shalwars. When the accused were running from the house Ishfaq PW also attracted to the spot and saw them while running from the spot. Many people also attracted to the spot at the time of occurrence and the time occurrence is 1/1.30 p.m. in the afternoon and the day was Friday.
The positive of the report chemical examiner (Ex: P-J) is tendered in evidence.
4. The appellant/accused, made statement under Section 342 Cr.P.C. wherein he denied the allegations and pleaded innocence. In reply to Question No, 4 "why the case against you and why the PWs. Deposed against you?" he replied as under:- "I have land adjacent to the land of the father of the alleged victim. I have a "Banna" dispute with the father of the alleged victim and due to this grudge father of the victim has falsely implicated me in this case. The alleged victim was habitual and some one else had committed Zina with her, with her free consent and due to that grudge 'I have been falsely involved. No independent witness has deposed against me except the brother and father of the alleged victim."
He declined to make statement on oath as required under Section 340(2) Cr.P.C. nor lead any evidence in his defence.
5. I have heard learned counsel for the parties and have perused the record with their assistance.
Learned counsel for the appellant submitted that the case of prosecution is fabricated, false as evidence brought on record is discrepant, incredible, having contradictions and discrepancies. He further submitted that eye-witnesses are not independent and their testimony of commission of zina-bil-jabr is not in line with the medical report as, besides other observations, the lady doctor has candidly conceded that Mst. Tasleem Akhtar appears to be habitual. Learned counsel for the State supported the impugned judgment.
6. It transpires from the record that the case of prosecution was initiated by PW9 Nazir Hussain who is father of Mst. Tasleem Akhtar. He registered FIR at police station, Fatehpur on 26.10.2002 at 6.45 p.m, for an occurrence which took place on 25.10.2002 at about 1.00 p.m. The delay in registration of the case was natural as, according to the evidence, the complainant had gone to some other chak to condole the death of his near relative and had returned in the night when he was informed by his daughter Naseem Akhtar about the occurrence. However, the contents of FIR only shows that the appellant/accused Liaqat Ali alias Kala had committed zina, however, in their statements before the Court P.W.8 Naseem Akhtar, victim, and PW9 Nazir Hussain, complainant, both have improved their version and have added the name of acquitted co-accused Razzaq for committing zina with her. PW8 when cross-examined on this point, stated that at the time of her statement before the police she had 'only recorded the name of Kala accused and, after sometime, mentioned the name of accused Razzaq at police station. She clarified that she had recorded her supplementary statement before the police where she had mentioned the name of both the accused who committed zina-bil-jabr with her but, on confrontation with Exh. DB, it was found that same was not so recorded. PW9 Nazir Hussain, on this point, when suggested, stated that he had recorded to the police in the FIR that at the time of occurrence Abdul Razzaq was armed with pistol and was present at the time of occurrence, but, on confrontation with Exh, P13, it transpires that it was not so recorded. Not to speak of commission of zina by Abdul Razzaq with his daughter, even his presence has not been shown. This material discrepancy in both the statements made by these PWs cannot be easily overlooked. Moreover presence of Muhammad Ashraf at the place of occurrence is also highly doubtful. In his deposition he has deposed that when he was attracted to the spot, he saw that Kala (Liaqat Ali) accused was committing zina with his sister and Razzaq accused had put his hand on her mouth and afterwards Razzaq accused made her to lay on the cot in the room and subjected his sister to zina. He added that both the accused remained committing zina for one and half hour with his sister and afterwards both the accused ran away in naked condition from the spot alongwith their shalwars. In cross-examination he further confirms that while both the accused were committing zina-bil-jabr with his sister for one and half hour, he remained witnessing the occurrence but on confrontation with the statement before the police (Exh. DA) the name of Razzaq was not included. It is strange that this statement was recorded about ten days after the occurrence. These glaring material discrepancies make the case of prosecution in the given set of circumstances highly doubtful, improved and incredible. PW-10 was confronted with Ex. DB, which is his statement before Inquiry Magistrate wherein he had stated that when they reached the spot the accused had fled away. He also stated that there was one living room and one kitchen in their house where the occurrence took place and that he was standing at about two acres when he saw of the accused running from the spot. This clearly establishes- the fact that (PW-10) has not seen the occurrence. Similarly (PW-9) is also not an eye witness to the occurrence and he simply registered FIR according to the information given to him by his daughter.
In this context initial omission of the name of Razzaq as co-accused while armed with pistol speak volumes about the credibility of these two witnesses. It may be mentioned that although even a solitary statement could be sufficient to warrant conviction of any accused if it inspires confidence and finds necessary corroboration from some independent source, it is worth-mentioning that in the instant case PW8 Mst. Nasim Akhtar being the victim of the case is solitary witness of the case but she has not come out with truth. She has improved her initial version and has thus rendered her testimony doubtful in the manner alleged. In her cross-examination by stating that when her brother Ashraf came at the spot, Kala accused was standing in the room near her cot and Razzaq accused was busy in committing zin-bil-jabr with her and also by stating that Razzaq accused remained committing zina with her in the presence of her brother Ashraf for 5/6 minutes further weakens the intrinsic worth of her statement. The MLR submitted by PW5 Shama Azam, reproduced hereinabove is also making the case of prosecution, as alleged, highly doubtful. The defence plea taken by the appellant/accused has been duly suggested to PWs and although PW8 and PW9 have denied to have dispute of land, PW 10 has admitted that they have a dispute of Banna with the accused Liaqat alias Kala.
7. The upshot of above discussion is that the case of prosecution against the appellant is highly doubtful and the appellant/accused is entitled to its benefit.
8. Consequently for the reasons stated above, I allow this appeal. The conviction and sentences of appellant Liaqat Ali alias Kala son of Asghar Ali vide judgment dated 5.1.2004 passed by learned Additional Sessions Judge, Karor are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.