Criminal Appeals Nos. 1146 of 1976, 1147 of 1976, 1149 of 1976, 1149 of 1976 and 1151 of 1976 have arisen out of the same occurrence. 1 propose to dispose them of by a single judgment. All are directed against the judgments of a Magistrate (Section 30), Rawalpindi, dated 30th September, 1976.
2. The trial Magistrate held five different trials in this case. Appellants in Criminal Appeal No. 1151 of 1976, namely Muhammad Riaz son of Muhammad Ibrahim, Muhammad Riaz con of Muhammad Hussain, Gulrez son of Mansibdar Khan and Shabbir son of Karam Elahi were jointly tried and convicted for an offence under section 366, P. P. C. The are sentenced to 7 years' R,
1. And a fine of Rs. 1,000 each and in default or the payment of fine they are to suffer further 1t.
1. For six months.
Each of these appellants has separately been tried for an offence under section 376, P. P. C., and convicted accordingly. Each has been sentenced to 7 years' R.
1. And to pay a fine of Rs, 1,000 or In default of payment of fine to suffer further R. I. For six months. Judgments acre silent If the sentences awarded are to run concurrently or consecutively with the sentences awarded under section 366, P. P. C. Criminal Appeal No. 1146 of 1976 is by Muhammad Riaz son of Muhammad Hussain ; Criminal Appeal No. 1147 of 1976 by Gulrez, Criminal Appeal No. 1148 of 1976 by Shabbir Ahmed ; Criminal Appeal No. 1149 of 1976 by Muhammad Riaz son of Muhammad Ibrahim.
2-A. The prosecution in all the trials have relied on the same set of witnesses and only the sequence in which they were examined varies in one case. In the joint trial under section 366, P. P.
C. The witnesses were examined in the following order : Mst. Hajran Bibi (P. W. 1), Sherdil (P. W. 2), Muhammad Iqbal (P. W. 3), Muhammad Sadiq (P. W. 4); Kbuda Dad (P. W. 5), Ghiasuddin Naseem (P. W. 6), Ghulam Murtaza (P. W. 7), Muhammad Hussain Shah (P. W. 8) and Dr. Miss Najma (P. W. 9).
However, in the remaining four trials, they were examined in a different order. Gist of their evidence however, is identically the same in each trial. For the convenience sake, I will b-, referring to the witnesses .By their names rather than by their numbers.
3. The prosecution as set out in the police report, in brief, is that Mst. Hajran (P. W.) on 4th March, 1972 at about 4-45 p.m. Boarded a bus for Campbellpur. She asked for a ticket but the bus conductor gave her a ticket only up to Hasan Abdal, saying that he would make her board a bus for Campbellpur at Hasan Abdal. Appellant Muhammad Riaz son of Muhammad Ibrahim was the driver ; appellant Muhammad Riaz son of Muhammad Hussain, the conductor ; and appellant Gulrez the helperconductor of this bus. Appellant Shabbir also accompanied them.
4. Reaching Hasan Abdal the bus-men did not help her in getting a bus for Campbellpur and instead returned to Rawalpindi along with her. She insisted on making her board a bus for Campbellpur but two out of the crew caught hold of her forcibly. She tried to have herself released and, in the process. She got her bangles broken and sustained injuries on her wrists and on her forehead. All of them committed rape on her. In the struggle her ring and a sum of. Rs. 50 also dropped in the bus. She became unconscious. In a state of unconsciousness she was left on the roadside by the delinquents. On regaining consciousness, she made hue and cry, which attracted Khuda Dad (P. W.). She narrated the whole story to him. He took her to the Hotel of Sherdil (P. W.), who was a Chairman of the Pakistan People's Party of that area. The police, also, came there.
Ghulaln Murtaza, Sub-Inspector then S. H. O. Police Station Wah Cantt. Recorded the statement of Mat, Hajru, which later formed basis of the p'. I. R. In this case.
5. There had been a protracted trial in this case. The procedure observed, obviously, was that of a warrant case. Law Reforms Ordinance (XII of 1972) was promulgated with effect from the 13th of April, 1972. Some substantial changes were sought to be introduced in the trial of criminal cases; , This was with $ view to obviate delay in the trials. The provisions relating to amendments in the Code of Criminal Procedure, however, were to come into force with effect from such date as the Provincial Government thereof, may by a notification in the Gazette, specify In this behalf. The Government of the Punjab, by notification, enforced the provisions Inter alia relating to the trial of criminal cases with effect from 21st of December, 1975. Under the new procedure, significantly, the distinction between the trial of summon or warrant cases, has been removed. By Law Reforms (Amendment) Ordinance, 1976, some of the pending proceedings were saved. Section 4 of the Amending Ordinance provides that, the trial of a warrant case which was pending before a Magistrate immediately before December 21, 1975 and in which a charge had been framed, or, shall be proceeded with and completed as if the provisions of the Schedule to this Ordinance relating to amendment in the Code of Criminal Procedure, 1898 (Act V of 1898) had not come into force.
6. In the instant cases, in none of the trials charge had been framed before 21st of December, 1975.
However, evidence of some of the witnesses had been recorded by the Magistrate. The Magistrate becoming cautious of the new procedure framed the formal charge in each case on 19th January, 1976. He questioned the appellants if they had any objection to the use of evidence, already recorded under old procedure. The appellants did not object to it. He then proceeded to take the remaining prosecution evidence and concluded the trials under the new procedure. The appellants, as noticed above, were convicted. It will be noticed that material part of the evidence, in each trial, had been recorded before framing the charge under the new procedure.
7. Learned counsel in support of these appeals has raised two-fold contentions. Firstly, that the trial Magistrate in all these cases not having wholly followed the procedure prescribed in Chapter XX of the Code and having based conviction on the evidence recorded under the old procedure, the proceedings stand vitiated on this short ground. It was contended that, as provided under section 4 of the Law Reforms (Amendment) Ordinance, 1976, only those proceedings were to be continued according to the old procedure in which charge had been framed before the 21st December, 1975.
Legislature, therefore, by necessary implication did not intend to save proceedings in which charge had not been framed and in all such cases new procedure, as provided in Chapter XX of the Code was to be followed. The second contention raised was in regard to the merits of the convictions on facts.
8. Under the Code, before the enforcement of the new procedure introduced by Law Reforms Ordinance different procedures were prescribed for the trial of summons and warrant cases, Chapters XX and .'XXI, respectively. Chapter XXI has wholly been omitted. Chapter XX has been titled as "for the trial of cases by a Magistrate". Under the old procedure the trial of warrant-cases, under section 251-A (added by West Pakistan Act XV11 of 1964), in matters instituted upon police reports, except chose tried summarily, copies of statements of all the witnesses recorded by the police under section 161, Cr. P C. And of an inspection note recorded by the Investigating Officer on his first visit to the place of occurrence, were to be supplied to the accused, seven days before the trial free of cost. Under section 252 the Magistrate was to hear the complainant, if any, and take all such evidence as might be produced in support of the prosecution. Under section 253 an accused person could be discharged on taking all the evidence or at any stage of trial. . However, if the Magistrate was of the opinion that there was a ground for presuming that the accused had committed an offence, which the Magistrate was competent to try and in his opinion, could be adequately punished by him, he, as re red by section 255, was to frame a charge against the accused. If the accused did not plead guilty and claim to be tried, the evidence of the remaining witnesses of prosecution was to be examined and the ac.-used called upon to enter upon his defence.
Under the new procedure also, as embodied in section 241-A the accused is to be supplied copies of the statements of all the witnesses re-corded under sections 161 and 164, Cr. P. C. And of the inspection note by the Investigating Officer, in cases instituted on the police report and excepting the cases tried summarily or punishable with fine or imprisonment not exceeding six months. In cases instituted on a complaint the complainant is required to state the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial. Under section 242, Cr. P. C. When the accused appears or is brought before the Magistrate, he is to frame a charge relating to the offence of which he is accused and he is asked whether he admits his guilt or not. On admission of the guilt, the accused, as contained in section 243, can be convicted accordingly. If conviction is .Not recorded as required under section 243, Cr. P. C., the Magistrate, as embodied in section 244, Cr. P. C., shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution and also to hear. The accused and take all such evidence as he produces in his defence. The accused can then be convicted or acquitted as the case may be under section 245, Cr. P. C. This Chapter also deals with ancillary matters, not relevant to the contention raised before me.
Section 4 of the Law Reforms (Amendment) Ordinance, 1976, as noticed above, seeks to introduce two saving clauses. Under clause (a) the trial of a warrant-case which was pending before a Magistrate immediately before December 21, 1975 and in which charge had been framed, shall be proceeded with and completed as if the provisions of the Schedule to this Ordinance relating to amendment in the Code of Criminal Procedure, 1898 (Act V of 1898) had not come into force.
9. From the survey of these statutory provisions it becomes manifest that some fundamental changes have been introduced in the trial of criminal cases by a Magistrate. At the time of the enforcement of this policy, therefore, pending warrant-cases can broadly be categorized thus
(i) Cases in which after recording some evidence formal charge, as required under section 254 had been framed and the remaining prosecution and the defence evidence only remained to be recorded ;
(ii) Cases in which evidence had been partly recorded, but formal charge was not framed ;
(iii) Cases in which the challans had been submitted in Court but the trial bad not yet commenced.
Cases at Nos. (1) and (iii) do not pose any difficulty. If the charge had been framed before the enforcement of the new procedure, the trial would conclude under the old procedure as contemplated in section 4 of the Law Reforms (Amendment) Ordinance, 1976. In cases, where trial had not commenced, there would be no difficulty in following the new procedure. However cases indicated at No. (ii) may, ex facie, create some difficulty. Legislature does not seem to have taken note of the difficulty. In this category of cases, I think, the trial Magistrate may ignore the evidence already recorded and proceed to follow the new procedure. He can frame the charge-sheet and then taken all such evidence as may be produced in support of the prosecution and by the accused in defence. This is one, way of resolving the difficulty. Question, if the Magistrate, as was done in the instant case, doss not follow the new procedure and rely on the evidence recorded under the old procedure, should it vitiate the whole proceedings or it is only an irregularity in the mode of trial as indicated in section 537, Cr. P. C., still remains to be answered.
10. I feel this does not vitiate the trial as such. Evidence recorded before the charge is framed under the new procedure is legal evidence as it was recorded under the existing procedure in the trial of warrant cases. Law Reforms Ordinance does not provide that such evidence is to be discarded. The phrase "and take all such evidence as may be produced in support of the prosecution" used in section 244, Cr. P. C. Cannot be interpreted to convey that the prosecution is required to produce even the evidence which had validly been recorded under the old procedure. In accepting this interpretation one is to read into the section which is not there. It is well established that, in the matter of procedure, what is not expressly prohibited, is impliedly Permitted. The appellants were asked if they) ~ had any objection to the use of the evidence already recorded to which their reply was in the negative. The evidence was, thus, used with the consent of the appellants.
11. There is yet another aspect of the matter. Section 537, Cr. P. C. Has been substituted (vide Schedule to the Law Reforms Ordinance, item 175). Under clause (b) of this section, no sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the mode of trial including any misjoinder of charges, unless such error, omission or irregularity has, in fact, occasioned a failure of justice. The explanation to this section provides that in determining whether any error, omission or irregularity in any proceedings under the Code, has occasioned a failure of justice, the Court shall have regard to the fact whether the objection should have been raised at an earlier stage in the proceedings. The error, if any, in not taking all such evidence including evidence already recorded after framing the formal charge under section 242, Cr. P. C., is, at best, an error in the mode of trial. The error will affect the judgment only if it is shown that, in fact, there has occasioned a failure of justice in the commission of this error. While examining this aspect one is to see whether any objection in this regard was raised at an earlier stage in the proceedings. As noticed above, appellants, on the contrary, were asked if they had any objection in the use of the evidence already recorded and it was only with their consent that the evidence was considered and final judgment passed. In this view of the matter I am fully satisfied in holding that in fact, there has not occasioned any failure of justice in these cases. The first contention raised therefore, has no merit.
12. Now adverting to the merits of these appeals, learned counsel for the appellants mainly contended that the prosecution case hinges on the solitary statement of the prosecutrix and the same is not corroborated by any independent source: Referring to some case-law, it was contended that it would not be safe to record conviction, on an uncorroborated testimony of a person victim of a sexual violence. Such an allegation is easy to level and difficult to refute. He then argued that offence under section 366, P. P. C. Is, in any case, not made out. Mst. Hajran Bibi P. W.
Had boarded the bus of her own free-will, question of abduction therefore, in the circumstances, does not arise. He pointed out to certain discrepancies in the statement of Mst. Hajran Bibi obliquely arguing that she is a woman of ill repute which is suggestive of the fact that she might have subjected herself to sexual intercourse with her own consent. There was therefore, no justification for convicting the appellants for an offence of rape.
13. All these points were raised before the learned trial Magistrate and have been fully dealt with in the impugned judgments. The lady had boarded the bus for Campbellpur. She was given ticket for Hassanabadal and was assured that she would be helped in boarding a bus for Campbellpur from there. This was not done. She was forcibly taken back to Rawalpindi in the same bus and, clearly, with a motive to subject her to sexual intercourse against her will. Therefore, if once the prosecution story is accepted, no exception can be taken to the conviction of the appellants under section 366, P. P. C.
14. Prosecution's main witness in the case is Mst. Hajran Bibi prosecutrix herself. Her evidence is corroborated by some circumstantial evidence. She was examined by Lady Doctor Miss Najma Fazal. She found six injuries on her person. There was an abrasion on the innerside of right wrist ; abrasion on the back of right palm ; abrasion on the lateral side of wrist ; abrasion on left wrist dorsal surface ; swelling on the right side of forehead and a bruise over the swelling 1" x 1" on right side of forehead. In her opinion, she had been subjected to sexual intercourse "repeatedly". She became unconscious and was spotted out on the road side by Khuda Dad P. W.
6. Mst. Hajran Bibi is resident of Peshawar and had no connection of any kind with Khuda Dad P. W. He took the lady to Sher Dil P. W. To whom she narrated her woeful tale. She stated that all the four appellants had committed rape on her and then pushed her out of the bus. Ghulam Murtaza S. L. P. W. 3 conducted investigation in the case. He took into possession Dopatta P. 1, ticket P. 2 vide recovery memo. Exh. P.
B. She was found injured. Her injury statement was also prepared.
15. Prosecution case is consistent and inspires confidence. Mst. Hajran Bibi P. W. Immediately after the occurrence narrated the story to Khuda Dad and Sher Dil P. Ws. Their evidence is therefore, relevant and can be used as necessary corroboration to the statement of Mst. Hajran Bibi.
Corroboration is also afforded by the medical evidence. She resisted the attempt and had suffered injuries in the struggle. Her statement that she had been raped by the appellants who were four in number, is further corroborated by the medical evidence in that in the opinion of the doctor she had been subjected to "repeated sexual intercourse". The submission of the learned counsel on the merits of the case, therefore, has not impressed me.
16. There is yet another aspect of the case and the same, in my view, is of fundamental importance to the decision of these appeals. Mst. Hajran Bibi P. W. Is resident of Peshawar. She is a middle-aged woman and mother of six children. She has stated that her elder daughter was married. She had come to Rawalpindi to see her acquaintances here. She had therefore, obviously no motive whatsoever to implicate the appellants in a false case. Similarly, the defence has not suggested that Khuda Dad and Sher Dil P. Ws. Had any animus against the appellants. The prosecution therefore, has been able to establish its case against the appellants beyond any shadow of doubt.
17. In the end I may advert to another submission of the learned counsel. In the case of Muhammad Riaz son of Muhammad Ibrahim appellant in Criminal Appeal No. 1149 of 1976, it is contended that in his case even Mst. Hajran Bibi bad not charged him with the commission of rape on her person. She was not sure if he had committed sexual intercourse with her. She stated that three persons committed rape first and then she became unconscious. He was driver of the bus. In the F: I. R. It has expressly been stated that even he committed rape on her. In any case, even if it be assumed that there was any doubt in this regard he is equally liable as an abettor. It was be who drove the bus back to Rawalpindi and did not afford any chance to the prosecutrix to leave the bus, at Hassanabdal. He has already been convicted under sections 376/109, P. P. C. It would therefore, be difficult to accept that he is entitled to acquittal of the charge under section 376, P. P. C.
18. For all that has been stated above, I am of the view that n exception can be taken to the conviction of the appellants in these cases. Accordingly, their conviction on all the charges is maintained. In the matte of sentence, however, I am inclined to take some lenient view. Occurrence took place in the year 1972. Trial was completed in the year 1976. Keeping this long delay in view, I feel ends of justice would be met if the sentences awarded to each of the three appellants under section 376, P. P. C. And to appellant Muhammad Riaz son of Muhammad Ibrahim under section 376/109, P.. P. C. Are reduced to five years' R. I. In each case. I order accordingly. The sentence of fine or rigorous imprisonment in default thereof, in each case, is maintained. Similarly, I reduce the sentence of the four appellants under section 366, P. P. C. (Criminal Appeal No. 1151/76) to a term of five years' R. I. In each case. The sentence of fine or the sentence in default of the same is however, maintained. The substantive sentences, under section 376 or 376/109 as the case may be shall run concurrently with the sentence awarded under section 366, P. P. C.
19. All the five appeals stand disposed of in the above terms.