' HAZIQUL KHAIRI, C.J.--- Appellants Jehangir and Muhammad Naeem vide Criminal Appeal No,404/L of 2004 and Bashir vide Criminal Appeal No,23/L of 2005 have impugned the judgment dated 26-11-2004 passed by the learned Additional Sessions Judge-II , Pakpattan Sharif, whereby they were convicted and sentenced as under:-- Jehangir (i) under section 324/34, P.P.C. 5 years' R I (ii) under section 452/34, P.P.C. 3 years' R.I. With fine of Rs,5,000 or in default 6 months' S.I. (iii) under section 337-F(i), P.P.C. One year's R.I. As Tazir and Rs,5,000 as Daman (iv) under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as "the said Ordinance") 10 years' R.I. As Tazir with fine of Rs,10,000 or in default 6 months' S.I.
Naeem. (i) under section 324/34, P.P.C. 5 years' R.I. (ii) under section 334, P.P.C. 10 years' R.I. (iii) Arsh one half of Diyat amount (iv) under section 452/34, P.P.C. 3 years' R.I. With fine of Rs,5,000 or in default 6 months' S.I. (v) under section 11 of "the said Ordinance" 10 years' R.I. As Tazir with fine of Rs,10,000 or in default 6 months' S.I .
Bashir alias Ali Gohar. (i) under section 324/34, P.P.C. 5 years' R.I. (ii) under section 452/34, P.P.C. 3 years' R.I. With fine of Rs,5,000 or in default 6 months' S.I. (iii) under section 337-F(i), P.P.C. 1 year's R.I.
As Tazir with Rs,5,000 as Daman (iv) under section 11 of the "said Ordinance" 10 years' R.I. As Tazir with fine of Rs,10,000 or in default 6 months' S.I. (v) under section 10(3) of "the said Ordinance" 15 years' R.I. As Tazir.
' As both appeals arise from the same judgment, therefore, we propose to dispose them by this common judgment.
2. Brief facts of the case are that in the night between 11th and 12th June, 2000, complainant Abdul Majeed (P.W.3) was sleeping in his house along with his parents, when at about 12-45 a.m. (night), seven persons armed with fire weapons (whose names later on were known as (1) Jehangir (2)
Muhammad Naeem (3) Bukhtiar alias Bari (4) Ali Gohar (5) Nazir Ahmad and two unknown persons) entered into his house and started firing with the object to abduct Mst. Kausar Bibi (P.W.2) his sister. First shot was fired by Jehangir appellant which hit at right thigh of Falak Sher (P.W.5), the second shot was fired by Muhammad Naeem appellant which hit at right shin and leg of Ghulam Farid (P.W.10), the third shot was fired by Bashir alias Ali Gohar appellant which hit the left hand of Mst. Sheeman Bibi (P.W.4). Thereafter, the accused made indiscriminate firing and abducted Mst.
Kausar Bibi, extending threats to kill them. However, on hearing the noise of firing, Muhammad Sadiq, Riaz Ahmad (P.Ws. Not produced) and other persons of the village came out rushing towards the spot, saw the occurrence and identified the accused.
3. The appellants were charge-sheeted but they denied the charges and claimed to be tried.
4. The prosecution produced as many as fourteen P.Ws. Dr. Muhammad Younas Rana, P.W.1, proved the M.L.Rs, Mst. Kausar Parveen, P.W.2, Abdul Majeed, Mst. Sheeman Bibi, P.W.4, Falak Sher, P.W.5, Ghulam Farid, P.W.10 furnished ocular account of the incident. Muhammad Ahmad A.S.-I., P.W.6, drew up the formal F.I.R. On receipt of complaint. P.W.7 Muhammad Ashraf 117/C attested the recovery memo. Of pistol of Bashir Ahmad, appellant. Rana Abdul Rauf 359/C, P.W.8, also attested the recovery memo. Of gun .12 bore P. I , Muhammad Akram, S.-I. P.W.9, recover .12 bore gun P.1 from Nazra accused and taken into possession vide recovery memo. He also recorded the statements of the P.Ws. Under section 161, Cr.P.C. And prepared rough site plan, of the place of recovery of gun P.1 which is Exh.P.G./1 and sent accused Nazra to judicial lock-up. Muhammad Ashraf S.-I. P.W.11, proved his investigation.
5. P.W.12 Dr. Muhammad Pervez Khalid carried out potency tests of the appellant Bashir alias Ali Gohar and found him potent and capable of performing sexual act.
6. Dr. Shamim Farooq, W.M.O. (P.W.13) appeared on behalf of Dr. Fazeelat Parvaiz who conducted the medical examination of Mst. Kausar Sajid. As per M.L.R. Signed by her she observed as under:-- "She was a young girl of healthy built, well-oriented in time and space, give her history of rape. No marks of violence seen on her body."
' Keeping in view the report of the Chemical Examiner, Exh.P.M., sexual intercourse has been committed with Mst. Kausar Sajid.
7. Dr. Waseem Safdar (P.W.14) deposed that on 15-6-2000 at 3-00 p.m. a patient namely Ghulam.Farid was admitted in the Surgical Ward referred from D.H.Q. Hospital Pakpattan, with history of fire-arm injury to his right leg, involving knee and lower thigh. He was taken to operation theater the same evening and debriment was performed but his leg was badly infected and gangrenous, so he was advised to have his amputation of his leg. His above knee amputation of right leg was performed on 17-6-2000 and he was discharged on 7-7-2000. P,Ws.- 13 and 14 were cross-examined by the appellants but could not shake their depositions. It was reiterated by them that Zina was committed on the abductee Mst. Kausar Parveen.
8. P.W.2 Mst. Kausar Parveen, the alleged abductee, in her deposition had stated that she along with her father Falak Sher, Mst. Sheeman Bibi, Majeed, Ghulam Farid, Allah Yar, Mst. Manzoor Bibi, her mother, and other persons were present in the house when 7 persons forcibly entered there, 5 of whom Were identified as Jehangir who was armed with .12 bore gun, Bakhtiar with Pakki rifle, Nazir Ahmad with .12 bore gun, Ali Gohar with .12 bore pistol and Naeem with .1/ bore pistol. They forcibly tried to abduct her and her father came to rescue her whereupon accused Ali Gohar fired shot upon her father which hit his right thigh and he fell down on the ground. Meanwhile her uncle Ghulam Farid tried to rescue her and her father whereupon appellant Jehangir fired shot at his right leg which was later cut down by the doctor. Nazir Ahmad accused gavebutt blow to Mst.
Sheeman Bibi her paternal-aunt which hit her arm. Naeem appellant gave butt blow on the head of her mother which resulted into her head injury. While she was making hue and cry, the neighbours were attracted to the spot and saw the occurrence. The accused persons took her to some distant place, got her boarded in a white car and threatened her not to make .Any noise.
They took her to some unknown city. Appellant Jehangir and Naeem returned back and two unknown accused persons also came back. Bashir alias Ali Gohar and Bakhtiar committed Zina- bil-Jabr with her whereas Nazir Ahmad guarded the occurrence. After three days she was recovered from accused.
9. In cross-examination, she 'denied that she had left her house with her free consent accompanying Ali Gohar accused. However, when she was confronted with Exh.D.A., it was so recorded. She also denied for want of knowledge that Mst. Daran Bibi, a relative of Ali Goliar accused, was abducted by her family. She also denied that in her statement before the police she did not mention abduction of Mst. Daran Bibi by her party. When confronted with Exh.D.A. It was so recorded. According to her the occurrence took place in moon-light, there was also an electric bulb of 100 watts at the corner of her Haveli. The whole occurrence lasted for about 20 minutes till her abduction from her house. Naeem accused made a fire upon Ghulam Farid while standing at a distance of four feet. Jehangir accused fired. At Mst. Sheeman Bibi from the distance of six feet. She admitted that she was recovered from appellant Bashir alias Ali Gohar and that he had committed Zina' with her.
10. P.W.3 Abdul Majeed testified that the appellants and Nazir and two unknown persons forcibly entered into the house. On hearing the noise of their foot-steps, they woke up and saw the accused in the courtyard. Bakhtiar was holding .12 bore gun, Nazir armed with .7 mm rifle, Ali Gohar with .12 bore pistol and the two unknown persons were armed with Sotas. They started firing and tried to abduct his sister Mst. Kausar Parveen. When his father tried to rescue her Jehangir fired at his father which hit his right thigh, as a result of which he fell down. His uncle Ghulam Farid also stepped forward to rescue his niece Mst. Kausar Parveen, P.W.2' but appellant Naeem gave a fire shot with .12 bore pistol which hit on the knee joint of his right leg due to which his leg was amputated. Mst. Sheeman Bibi also tried to rescue P.W.2 Mst. Kausar Bibi but she received fire from Ali Gohar with his .12 bore pistol which hit on the right side. Bakhtiar accused gave butt blow with his gun to Mst. Sheeman Bibi on her left arm and also on the head of P.W. Allah Yar and P.W. Mst.
Manzooran Bibi. On hearing the noise of firing, Said and Riaz came rushing towards the spot. All the accused -took away his sister along with their weapons.
11. In cross-examination, he denied that he came to know the names of the accused after recording of F.I.R. He also denied that prior to this occurrence, his sister was taken away by Ali Gohar accused.
It was also denied by him that Mst. Daran Oadh was abducted by them. He also denied that with the intervention of Panchayat, both the abductees were returned.
12. P.W.4 Mst. Sheeman Bibi, P.W.5 Falak Sher and P.W.10 Ghulam Farid received injuries on account of firing by the appellants and were. Eye-witnesses. Their evidence is also in line with P.W.2 and P .W .3 .
13. The appellants were examined under section 342, Cr.P.C. And denied the allegations. According to appellant Naeem he was found innocent during the investigation by the police and due to previous enmity with the complainant party he had been falsely implicated in the case. He opted not to produce any defence evidence. Appellant Jehangir also came out with the same story in his defence but stated that he would produce evidence in his defence. Appellant Bashir alias Ali Gohar denied recovery of Mst. Kausar Bibi from him, so also recovery of .30 bore pistol from him. When asked as to why the prosecution witnesses had deposed against him he stated as under:-- "All the P.Ws. Are closely related to each other. They are all interested witnesses. It is a blind occurrence. I have no concern about the occurrence. Some unknown dacoits during dacoity during resistance from complainant side injured complainant. Due to previous longstanding enmity with complainant party because Mst. Nusrat alias Noshi was murdered and some Riaz Ahmad the husband of Sheeman Bibi P.W.1 informed the police about this incident. Post-mortem was also conducted. I supported Bhatti Family against complainant party of one criminal case. As a result of which I have been involved by the complainant party in this case. I never abducted Mst. Kausar Bibi or not any rape to be done. Police tortured me chronically with connivance of complainant party, my arm was fractured and a medical board was conducted by the orders of learned Illaqa Magistrate and M.L.C. Was issued."
14. The plea taken by appellant Jehangir through production of D.W. Azmat Ali, S.D.O., WAPDA Rural Sub-Division, Arifwala was that there was electricity, connection provided upon the premises of the complainant as per report of the concerned Line Superintendent. This report was called for in response to an application dated 3-11-2004-made by one Ahmad Yar. However, in cross- examination, he admitted that "Usually in rural areas villagers obtain many extensions from one meter installed nearby their houses".
15. Learned trial Court one by one dealt with the case of all the accused persons. Appellant Jehangir and Naeem (convicts) were declared innocent by the first Investigating Officer but subsequently challaned along with the appellant Bashir alias Ali Gohar, all of whom were found guilty and are before us in this appeal.
16. Learned trial Court did not believe that there was absolute darkness on the night of occurrence or there was no electricity in and around the premises where the heinous crime was committed as D.W. 1 himself had admitted that in rural areas villagers obtain many extensions from one another installed nearby their houses. This plea was also not raised by the appellants in their statements under section 342, Cr.P.C. The next question obviously would be whether the deposition of eyewitnesses to the crime was true, free from ambiguity and confidence-inspiring. What may not be overlooked is the fact that the testimony of all the eye-witnesses including female witnesses (P.W.2 Mst. Kausar Parveen and P.W.4 Mst. Sheeman Bibi) appears to be tutored as each one of them while giving account of trespass, kidnapping and causing hurt not only named all the seven accused persons but had also given full description of arms each one of them was carrying with him. Nevertheless so far as commission of multiple crime by the appellants is concerned, there is no ambiguity as per record. The eye-witnesses have truthfully stated what role each appellant had played in the commission of crime and how the victims had suffered at their hands giving minute detail of events subsequent thereto. The overwhelming evidence of the complainant, three injured P.Ws. And the abductee Mst. Kausar Parveen fully corroborated the prosecution story and has remained irrebutable despite lengthy cross-examination by the defence. We find no cracks, loopholes or discrepancies in the commission of crime so as to upset the conviction of the appellants. The prosecution case is further established by medical evidence of the injured persons which has nexus with the arms used by them. Similarly, the medical and chemical report of the abductee and the potency test of appellant Bashir alias Ali Gohar fully support the deposition without any iota of doubt. In this backdrop, the further plea of delay in lodging F.I.R. Pales into insignificance.
17. Accordingly we maintain the conviction and sentences of the appellant and dismiss both the appeals. The sentence of the appellants shall run concurrently and they will also be entitled to the benefit of section 382-B, Cr.P.C. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.