' Latif appellant (25) son of Mohammad Ramzan caste Teli, resident of Kot Hara, within the area of Police Station Alipur Chatha, District Gujranwala was tried on two charges of rape and criminal house trespass under section 376/451, P. P. C. Before Mr. Mohammad. Sarwar, Assistant Commissioner and Magistrate Section 30, Wazirabad. By his order dated 4th February, 1978 learned Magistrate held the appellant guilty on both charges and ordered him to suffer rigorous imprisonment for five years plus a fine of Rs, 200, in default further rigorous imprisonment for two months only for the charge of rape under section 376, P. P. C: No separate sentence for the remaining charge of criminal trespass under section 451, P. P. C. Was awarded to the appellant.
2. The appeal was filed through Mr. Shaukat Tarar, Advocate. He left away saying contentiously that he cannot be available for hearing of the appeal today. To my dismay, learned counsel entrusted the brief for representation of the State has also not shown up.
3. The occurrence took place on 19th April, 1973 at Chhah Wela viz. Between 8 a. m. And 10 a. m.
Report (P A) was lodged by Mst. Bashiran next day at 7 p. m. At Police Station distant six miles from the place of occurrence. The report alleges that the family of the prosecutrix was running a public oven in the village. On the day of incident her father had gone away to bring fuel wood for use at the oven and her mother had also gone outside for easing herself. She was left alone inside-the house and engaged in cleaning a room. The appellant entered the room, caught her by her arm, laid her on a cot and committed sexual intercourse with her against her consent placing his hand on her mouth. However, she could raise outcry and mother Mst. Allah Rakhi, Mohammad Ali and Mohmmad Sharif who resided nearby were attracted to the site. ,The appellant made good his'escape. Report could not be lodged earlier as relatives of the appellant, had been pressing, for a patch up. Chaddar (P. 1) which Mst. Bashiran was wearing at the time of incident was taken into - possession same day viz. 21st April, 1974 by Malik Abbas Khan Sub-Inspector (P. W. 9) by means of memo. Exh. P. B. Which was on chemicatexamination found to be smeared with sena,en (P D).
4. Nine witnesses were adduced on the side of prosecution. Mst. Bashiran, her mother Mst. Allah Rakhi and Mohammad Ali (P. Ws. 2/3) are witnesses of occurrence. GLilam Mohammad P. W. 4 is father of Mst. Bashiran. He says that he had returned to the house in the evening on the day of incident and was informed of the occurrence. It may be stated here that statement of Ghulam Mohammad (P. W. 4) which was based on hearsay does not in any way advance the case of the prosecution. Lady Doctor Shaista Akhtar and Dr. Zamin Ali (P. W. 5/7) had examined Mst. Bashiran and the appellant respectively. Khuda Bakhsh Constable (P. W. 6) took sealed parcel to the office of Chemical Examiner. Mukhtar Ahmad (P. W. 8) had recorded F. I. R. (P. A.) on the statement made by Mst. Bashiran, Malik Abbas Khan (P. W. 9) is the Investigating Officer.
' When questioned under section 342, Criminal Procedure Code, the appellant repudiated the charge pleading false implication in the case. No evidence was led in defense.
5. Mst. Bashiran has in her statement reaffirmed the allegation which she had made in her report(P.
A.) to the Police that the appellant entered the room, laid her on a cot and, committed sexual intercourse with her against her will. As she cried out, her mother Mst. Allah Rakhi, Mohammad Ali (P. Ws. 2/3) and Sharif who was not examined and given up rushed to the site. The appellant ran away. Mst. Allah Rakhi (P. W. 2) says that her husband had gone outside to bring fuelwood for burning the oven. She had also left for outside to ease herself. On return to the house she heard alarm and rushed inside the room whereupon the appellant left Mst. Bashiran and ran away. She raised shouts and tried to catch the appellant but she was pushed aside. Mohammad Ali and Sharif had also reached there. Mohammad Ali P. W. 3 who resides in the adjoining house says that he heard shouts of Mst. Allah Rakhi (P. W. 2), ascended the staircase of his house and saw the appellant running away with dhoti in his hand. He went inside the house of the complainant and found Mst. Bashiran stripped of her chaddar. Lady Doctor Shaista Akhtar (P. W. 5) stated that she had examined Mst. Bashiran on 21st April, 1973 and did not find any marks of violence on her person.
Hymen was torn with slight swelling. The vagina admitted two fingers easily. Vaginal swabs were taken and sent to chemical examiner. Result of examination of swabs is not forthcoming on record.
Mst. Bashiran was stated to be 13 years old in the report of Medical Examination (P. C.). The lady doctor has clarified in her statement that the age of Mst. Bashiran was mentioned in P. C. On her statement. Dr. Zan-tan Ali P. W. 7 said that on examination, the appellant was found to be capable of performing sexual intercourse. The remaining two witnesses are police officials and their evidence does not have much bearing on the question of innocence or otherwise of the appellant.
Learned Magistrate has held that both charges under sections 376/451, P. P. C. Were proved against the appellant.
' To say the least the impugned judgment is wholly unsatisfactory, slipshod and not a valid judgment in the eye of law. The first twelve paragraphs of the judgment are devoted to mere narration of facts and statements of witnesses. The finding of guilty against the appellant was recorded in the concluding para with a cryptic observation : "the statement of Mst. Bashiran, was corroborated by evidence of Mst. Allah Rakhi (P. W. 2), Mohammad Ali (P. W. 3), Ghulam Mohammad (P. W. 4) as well as by medical evidence and report of chemical examiner. There was no enmity between the parties. The prosecution had thus proved the case against the appellant beyond any reasonable doubt." Evidently, this judgment does not satisfy necessary requirements of law. The main requirementslA of section 367, Cr. P. C. Are that the judgment must be lucid, should!
Contain discussion of evidence, reasons for the decision and not merely the conclusion. A judgment written without discussion of evidence of witnesses or the effect of corroborative evidence, if any, and without giving any cogent reasons, is not a proper judgment. However, it would be improper to remand the case to learned Magistrate for re-writing the judgment and thus prolong the agony of the appellant who had to wait for final judgment at the trial for a long period of about five years. The question if the appellant could be held guilty on the evidence examined at the trial can be decided by this Court.
6. On a careful consideration I am led to the view that prosecution had failed to prove the charge against the appellant beyond all shadows of reasonable doubt. The report was lodged at Police Station after 33 hours of the incident which is at a distance of six miles and connected with the village by a metalled road. A common-place explanation that report was delayed due to efforts by certain relatives of the appellant that the matter should be hushed up is not much convincing. The names of the persons who had tried to prevail upon the family of the prosecutrix are not disclosed.
The appellant is also a menial. His relatives were not in a position to prevail upon the relatives of the prosecutrix to drop the matter or keep them from timely report of the matter to the police.
Delay in the report when convincing explanation thereof is not forthcomingig has to be viewed seriously and is fatal to the prosecution.
' Besides, there are several other circumstances which reflect adversely on the veracity of charge against the appellant. As said above lady doctor Shaista Akhtar (P. W. 5) had said that she had not determined the age of Mst. Bashiran and' had mentioned her 13 years old in the report (P., C.) on latter's statement. It is in the evidence of Mst. Allah Rakhi (P. W. 2) mother of Mst. Bashiran that the latter was 21 years old. When an accused person is charged with a rape on a grown-up young woman, prosecution has to show that sexual intercourse with her was without her consent and against her will. I will show presently that there are indications that probably Mst. Bashiran was a consenting party. She was expected to offer full resistance which was natrually expected from a woman of her age unwilling to yield to sexual intercourse, forced upon her. Such resistance may lead to the tearing of clothes and infliction of personal injuries etc. Mst. Bashiran has said that she was laid on bare cot by the appellant. She had offered resistance during which she had sustained scratches and her bangles were broken. The chaddar (P. 1) which she was wearing as well as cot were stained with blood. These assertions are not borne out by medical evidence or the statement of Investigating Officer. When there is no evidence of any struggle having taken place nor marks of injuries found on the person of a woman aged 21 years alteged to have been ravished, the accused cannot be said to have a forcible intercourse with her. Mst. Bashiran had admitted that the appellant had already committed sexual intercourse with her and she was lying by his side on the cot when her mother entered inside, The-witness has further admitted that the appellant used to visit their house which was looked upon with disapproval by her parents. Mohammad Ali (P. W. 3) whose house is separated by the house of prosecutrix by a common wall has said that he did not hear any commotion or shouts before Allah Rakhi (P. W. 2) had raised alarm. Ghulam Mohammad (P. W. 4) fathe of Mst. Bashiran had admitted that she was reputed to be immoral in the c village.
According to medical evidence she was not a woman of virtue.
' Absence of marks of resistance on her person lead to the one conclusion and no other than Mst.
Bashiran was a consenting party. She had levelled allegations of rape when she was surprised in the company of the appellant by her mother and the latter had raised alarm. This conclusion is not in any way negatived by the fact that Lady Doctor Shaista Akhtar (P. W. 5) had noticed slight swelling on the vagina or Mohammed Ali (P. W. 3) had seen the appellant running away from the house of Mst. Bashiran with dhoti in his hand when Mst. Allah Rakhi was raising shouts or the chaddar (P. 1) of Mst. Bashiran was found to be stained with semen.
7. As a result of the above discussion, I accept the appeal, set aside conviction and sentence of the appellant and acquit him of the charge extending to him benefit of doubt. He shall be released forthwith if not wanted on any other count.
8." Before closing I have to point out a further lacuna in the impugned judgment of learned Magistrate which equally merits disapprobation. Penalty had to be executed from the appellant on the charge of criminal house-trespass under section 451 which in the view of learned Magistrate was also proved. Proper sentence has to follow finding of guilty against the accused and Court does not have any discretion in the matter for the reason that sentence was awarded to the accused for one of the several offences established against him. Learned trial Magistrate exercising important powers under section 30, Cr. P. C. Was expected to know such elementary principle of law.