' ZAFAR PASHA CHAUDHARY, J.--- Nayyar Abbas and Azmatullah alias Goshi have assailed the judgment dated 10-2-2004 passed by Ch. Abdul Razzaq, Additional Sessions Judge, Mandi Bahauddin whereby he convicted the appellants under section 10(4) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) as well as sections 459, 506 and 337-A(i), P.P.C. And sentenced as under:-- Under section 10(4) of Death sentence.
Under section 11 (ibid) The Ordinance Imprisonment for life and fine of Rs,50,000 each, in default to undergo six months' S.I.
Under section 506, P.P.C. Two years' R.I.
Under section 337-A(i), Two years' R.I. And to pay Rs,5,000 each as P.P.C. Daman to Mst. Wakilan Bibi Under section 459, P.P.C. Life imprisonment. All the sentences of imprisonment have been ordered to run concurrently . Benefit of section 382-B, Cr.P.C. Has been allowed to the appellants
2. The prosecution case as emerged from Exh.P.A. The F.I.R. Registered with Police Station Gojra, District Mandi Bahauddin on the statement of Mst. Asifa, the complainant and victim, is that Mst.
Asifa, student of 7th Class was asleep in her house along with her mother Mst. Wakilan Bibi and brother Muhammad Irfan on the night intervening 26/27-3-2000. The door of the room was open.
At about 1-00 a.m. (mid night), Nayyar Abbas armed with double-barrel .12 bore gun and Azmatullah alias Goshi armed with Sota entered her room after scalling over, the wall. Both Nayyar Abbas and Azmatullah caught hold Mst. Asifa from her arms and warned her that in case she raised alarm she could not be spared. In the meanwhile her mother and brother got up. They tried to make noise on which the accused/appellants tied them with the strings. Mst. Asifa was forcibly taken towards graveyard on the southern side. She was made to lie down in a water course by the side of wheat crop. Nayyar Abbas and Azmatullah both committed Zina-bil-Jabr with her one after the other. On alarm raised by her, Muhammad Arshad (P.W.2) and Wajid Ali were attracted towards the place of occurrence. They witnessed the incident and identified the accused. The accused persons fled away while firing in the air. The accused persons kept on entreating the complainant party for forgiveness, therefore, the matter was not reported to the police promptly.
3. Occurrence took place on the night intervening 26/27-3-2001 whereas the report was lodged on 28-3-2001 at 9-50 p.m. After registration of the case, usual investigation was carried out as a result of which both the appellants were sent up to the Court to face trial. They were initially charged under four heads on 31-1-2002. However, a revised charge was framed on 9-5-2002 that too under four heads i,e, firstly under section 459, P.P.C. For committing trespass by arming themselves with deadly weapons into the house of Mst. Asifa, secondly under section 11 of the Ordinance by arming themselves with deadly weapons to abduct Mst. Asifa with intent that she would have illicit intercourse with the accused, thirdly under section 10(4) of the Ordinance for committing Zina-bil- Jabr with Mst. Asifa one after the other and fourthly for intimidating Mst. Wakilan Bibi and also causing injuries to her which constituted offences under sections 506 and 337-A(i), P.P.C. Both the accused/appellants pleaded not guilty and claimed trial.
4. The prosecution in support of the charges examined 11 witnesses. Mst. Asifa, the victim appeared as P.W.1. She stated that she along with her mother Mst. Wakilan Bibi and brother were sleeping in her house when Nayyar Abbas armed with gun and Azmatullah with Sota entered their house and forcibly caught hold of her. She was restrained, under threat, from making noise. In the meantime her brother and mother got up. The accused persons extended threats of murder to them and tied them with ropes. Nayyar accused gave butt blow on the left side of her face. Azmat accused caused Sota blow on her right shoulder. Both the accused/appellants then forcibly took her towards graveyard. In a Khal (watercourse) both the accused persons committed Zina-bil-Jabr with her. She raised hue and cry on which Wajid Ali and Muhammad Arshad were attracted to the spot. The accused persons started firing in the air. She along with Arshad P.W. Lodged the report Exh.P.A. She was medically examined by the lady doctor. During cross-examination, she stated that she along with his brother and mother were sleeping in one and the same room. The graveyard was situated at a distance of 8/9 acres. She admitted that there were intervening houses in between the graveyard and her house. She also admitted that graveyard was situated at a long distance from the end of the village inhabitation. She explained that she was in fact dragged towards the graveyard. She was medically examined after one day of the occurrence. She denied having made a false statement at the behest of Arshad, P.W.
5. P.W.2 Muhammad Arshad is an eye-witness. According to him, on the night between 26/27-3- 2001 at about 1-30 a.m. On hearing the noise from the side of Bazar, he immediately rushed towards the side of noise and saw that a number of persons including Wajid, Aleem, mother and brother of the victim had gathered. They stated that the accused persons had trespassed into their house. They entered the house and caught hold of Mst. Asifa. In the meantime, Mst. Wakilan Bibi woke up but she was threatened to be silent. Nayyar gave her butt blow while Azmat gave a Sota blow. They further told that the accused persons then tied them with ropes. After hearing the story from Mst. Wakilan, the people set out in search of Mst. Asifa. When they reached near graveyard, they saw that Azmat was committing Zina-bil-Jabr with Mst. Asifa and Nayyar was standing as a guard. On seeing them the accused persons started firing and as such succeeded in fleeing away.
He gave the number of people associated there as 10-15. During cross-examination, a suggestion was made to him that Azmat alias Goshi had been fired at, he did not deny the suggestion rather admitted that he had heard so. He added that Mst. Asifa was naked and Azmat was committing Zina-bilJabr with her.
6. Mst. Wakilan Bibi, mother of Mst. Asifa, P.W.3 narrated the story of trespass of the house by the accused persons similar to that of the aforesaid two witnesses. She also stated that her daughter was taken by the accused/appellants. She was tied with ropes in her house by the accused. After about 30 or 45 minutes she succeeded in untying and came out in the Bazar. She raised noise which attracted a number of persons including Arshad, P.W. After about 1/2 hour, .Arshad and Wajid left in search of Mst. Asifa. Asifa was brought back to the house. This witness i,e, Mst. Wakilan Bibi was medically examined for the injuries she received.
' P.W.4 Muhammad Halim is a witness to the recovery of strings from the house of the complainant.
P.W.5 Muhammad Hanif attested the recovery of Sota P.4 from Azmat alias Goshi accused which was secured vide memo. Exh.P.E. He also witnessed the recovery of .12 bore gun P.5 from the house of Nayyar Abbas, accused which was taken into possession through memo. Exh.P.F.
7. P.W.6 Dr. Aneela Anjum medically examined Mst. Asifa. She recorded her age as 15 years, She observed that no marks of violence were seen on her body, her secondary sexual characters were in developing stage. On local examination, no marks of violence on external genitalia, hymen freshly torn and menstrual blood was oozing out of the vagina of the victim. In her opinion, the clinical findings suggested that act of Zina had happened with the victim within 72 hours, Vaginal swa bs were found to be stained with semen by the Chemical Examiner. The two swabs and sample of blood were sent to Serologist for semen and blood grouping.
8. Muhammad Nawaz, P.W.7 carried out the investigation. He performed all the necessary functions to effect recoveries and got the victim medically examined. This witness also effected recoveries at the instance of the accused persons. On completion of the investigation, he submitted the report on which the S.H.O. Submitted challan against the accused/appellants. P.W.8 Khalid Parvez and P.W.9 Muhammad Yamin are formal witnesses from police.
9. P.W.10 Dr. Manzoor Rasool examined Mst. Waldlan P.W.3 and observed the following injuries on her person:--
(1) A contused swelling around left eye extending below eye in the area of 8 x 6 c.m. Bluish and tender.
(2) A contused swelling left to mouth extending upto 6 x 5 c.m. Bluish and tender. This doctor also examined the accused/appellants Nayyar Abbas and Azmatullah and found both of them as potent. Azmatullah was also examined for injuries sustained by him which are described as under:- -
(1) A pointed wound healing (under process) bone top of skull 11 c.m. Above right mastoid, also a foreign body 2 c.m. Front of it.
(2) A pointed wound in healing process along with a small palpable foreign body left postorerio- latera latter view of neck. Advised X-ray skull, X-ray of left side of neck.
' Final report was not given for want of result of X-ray examination.
' P.W.11 Ghulam Abbas is a formal witness who recorded the formal F.I.R. And sent the swabs to the office of the Chemical Examiner.
10. Both the accused were examined under section 342, Cr.P.C. Nayyar Abbas gave his age as 15 years, He denied the allegations and stated that he and Azmatullah had seen Mst. Asifa and one Muhammad Haleem in a compromising position. Azmatullah was inflicted injuries by the complainant party. Therefore, in order to save their own skin, the complainant party falsely implicated him in this case.
' Statement of Azmatullah was also recorded. He also gave his age as 15/16 years, He denied the allegations and put up the plea in answer to Question No,7 as under:-- "An F.I.R. No,116 dated 18-6-2002 was lodged by Mst. Naziran Bibi widow of Soeni/my mother under section 324/34, P.P.C. That on 28-3-2001 Muhammad Haleem, Muhammad Arshad, Muhammad Hanif, Mian Muhammad Haleem son of Muhammad Sharif and Muhammad Irfan (P.Ws. Of the instant case) while armed with weapons had caused injury on my person. The motive narrated in the F.I.R. Was that Muhammad Haleem son of Abdul Wakil had illicit relations with Mst. Asifa, complainant daughter of Abdul Rashid. I and my co-accused Nayyar Abbas witnessed them in compromising position and to save their skin they launched attack on me and my co-accused and I received injury. Since I along with my co-accused had seen Muhammad Haleem and Mst.
Asifa in compromising position so to save themselves the complainant had got lodged instant case and that was why the P.Ws. Have deposed against me."
' On conclusion of the trial, both the appellants were convicted and awarded sentences as detailed above.
11. As it is evident from the charge, the allegations against the appellants are of committing house trespass and thereafter abducting Mst. Asifa, P.W.1. Mst. Asifa, according to her, was subjected to Zinabil-Jabr by Nayyar Abbas and Azmatullah, appellants. Evidently the most important witness is Mst. Asifa herself. She is the alleged victim. She was abducted in the first instance, then removed to the place of occurrence located at a distance of 10-12 acres. Her most supporting witness is Mst.
Wakilan, P.W.3 her mother, who according to her, was present in the house at the time of abduction.
Both Mst. Asifa and Mst. Wakilan have stated that Mst. Wakilan was given butt blow on her face on resistance. Further Mst. Wakilan and her son who was also present in the house were tied with ropes so that they may not interfere and obstruct the abduction. Both the witnesses have also stated that the appellants entered the house by scalling over the wall meaning thereby that they committed trespass into the house in order to abduct Mst. Asifa. Prosecution has also examined Muhammad Arshad, P.W.2 who was attracted towards the house of victim Mst. Asifa and Mst.
Wakilan. He saw that a number of people had gathered where Mst. Wakilan narrated the incident to him as to how her daughter had been abducted by Nayyar Abbas and Azmatullah alias Goshi, the accused/appellants. Although the said prosecution witnesses have supported the prosecution version and Mst Wakilan sustained injury on her face as well, yet it would be necessary to assess the attending circumstances and examine the veracity of prosecution witnesses in the light of admitted circumstances and facts brought on record.
12. The offence, according to the prosecution, commenced from the trespass committed by the appellants at night. The trespass has been committed in order to commit Zina-bil-Jabr with Mst.
Asifa. Before appraising the evidence of Mst. Wakilan Bibi who was present in the house at the time of occurrence, the injuries received by her have to be examined whether the same could have been caused by a butt. According to the medical evidence furnished by Dr. Man7oor Rasool, she had a contused swelling around left eye extending below eye in the area of 8 x 6 c.m. And she had also a contused swelling left to the mouth extending upto 6 x 5 c.m. Whether these injuries could be caused by a longish weapon such as Sota or by a butt which is too a longish article. If a Sota blow is given on the face, the contusion as occurred and noted by the doctor on the face of Mst. Wakilan Bibi would not have caused the swelling as occurred in this case. These injuries appear to have been caused with severe fist blow or a punch on the left eye and the face. This injury according to the prosecution lends support to the prosecution version that Mst. Asifa was forcibly abducted.
Resistance was made but it was averted by causing injuries to Mst. Wakilan Bibi. Mst. Wakilan Bibi apart from resisting the abduction was disabled because she was tied down with strings. No doubt the evidence of injuries to Mst. Wakilan Bibi and her being tied down with strings show that she resisted the abduction of her daughter Mst. Asifa. It can also not be ignored that Mst. Wakilan is a natural witness in the sense that she being resident of the house would be present in her house especially during night. This evidence, however, has to be weighed and assessed by keeping in view the admitted circumstances of the case. The occurrence took place at about 10-12 acres from the house of Mst. Wakilan. I Mst. Asifa was taken upto the place of occurrence and there she was subjected to sexual intercourse. The doctor has given the age of Mst. Asifa as about 15 years, It means that she was quite a grown up girl. The age of Nayyar Abbas, appellant is recorded as 15 years and Azmatullah alias Goshi as 15/16 years in their statements under section 342, Cr.P.C.
Approximately the accused/appellants and victim Mst. Asifa are more or less of the same age. The lady doctor has very conspicuously observed that no marks of violence were seen on her body. The question arises that if the intention of the appellants was to commit rape with Mst. Asifa and for that purpose, according to the prosecution, they committed trespass into the house then they could very conveniently accomplish their desire by removing Mst. Asifa in a room of the house or other part of the premises by locking Mst. Wakilan in some other room. To carry or to drag Mst. Asifa upto the distance of 10-12 acres and that too after passing through a number of houses in the village, does not appeal to reason. Apart from the distance in between the place of occurrence and the house of the victim, another factor is also important that Mst. Asifa throughout the process of her abduction did not offer any resistance because neither her clothes were torn nor there appeared any signs of scuffle on her person. She did not raise alarm and the reason for not doing so has been given that she was under constant threats on behalf of the accused/appellants. If the threat had been extended it must have continued upto the last moment. According to Mst. Asifa she raised alarm which attracted the witnesses and they saw that Azmat alias Goshi was committing rape with her. The question arises if alarm could be raised when Azmat was committing rape and Nayyar Abbas was standing as a guard then why she could not do so earlier i,e, at the time of carrying her from her house all the distance upto the place of occurrence. The conduct of Mst. Asifa, therefore, renders her version as full of doubt.
'Apart from the abovesaid circumstances, the learned counsel has very intelligently pointed out that when she lefr her house she put on her shoes. According to the learned counsel, it is inconceivable that a person would be sleeping in the bed with her shoes on. It is an undeniable fact that Mst. Asifa was wearing shoes when she went upto the place of occurrence. Had she been abducted forcibly and against her will then there was no occasion to put on her shoes. This circumstance very vividly indicates that the victim had not been removed from her house against her will rather she appears to be a willing partner. This circumstance may appear to be a trivial but when accumulative effect of the circumstances is assessed then it cannot be ignored that most probably the victim accompanied the appellants with her consent.
' The learned counsel for the State to rebut this impression has pointed out that Mst. Asifa appears to have been subjected to sexual intercourse for the first time in view of the observation recorded by the lady doctor about fresh tears in the hymen. The learned counsel for the appellants has anyhow explained that any girl when subjected to this act for the first time this symptom would occur. The explanation cannot be considered as unreasonable or unacceptable.
' The appellants have been convicted under section 10(4) of the Ordinance and have been awarded extreme penalty of death. To prove an offence entailing extreme penalty of death, every possible care and caution has to be adopted. If the accumulative effect of the facts and circumstances leads to two probabilities then one in favor of the accused has to be adopted. The aforesaid circumstances lead to a probability that Mst. Asifa would have accompanied the accused/appellants and thereafter subjected herself to the commission of sexual intercourse. If this probability is available on the record, then the benefit should be extended to the accused.
13. In the light of the above discussion, we are of the view that it will be unsafe to sustain conviction under section 10(4) of the Ordinance. In case it appears that the offence could have been committed with the consent of the victim then section 10(2) would be applicable. We accordingly alter the conviction from section 10(4) to D section 10(2) of the Ordinance. Consequently, the sentence of death awarded to the appellants is set aside and each of the appellants is sentenced to suffer 10 years' R.I. Each under section 10(2) of the Ordinance. Each of the appellants will pay Rs,10,000 as fine, in default thereof to suffer one year's R.I. Benefit of section 382-B, Cr.P.C. Will be extended.
' The conviction has also been recorded under section 11 of the Ordinance as well as sections 459, 506 and 337-A(i), P.P.C. For the aforesaid reasons it cannot be believed beyond doubt that the appellants had committed trespass or extended threats or intimidated the victim. As regards conviction under section 337-A(i) and sentence thereunder, as noted above, the manner in which the injuries are alleged to have been sustained is found to be rather contradictory with the medical evidence. The conviction of the appellants for these offences is, therefore, set aside. The appeal is partly accepted in the above terms.
' The sentence of death is not confirmed. Murder Reference No,1/L of 2004 is answered in negative.