NASIR-UL-MULK, J.--- These three appeals filed by Nadeem alias Dhemu, Munawar Hussain alias Mohnee and Tariq Mehmood alias Tara, with leave of the Court, granted on 14-11-2001, are directed against judgment of the Lahore High Court, Lahore, dated 21-5-2001 whereby the appeals of the appellants against their conviction and sentence by the Judge, Special Court Anti-Terrorism, "Gujranwala, were dismissed and the murder references sent up by the trial Court was upheld. All the three appellants were convicted and sentenced under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereafter referred to as "Zina Ordinance") and each of them was sentenced to death. All of them were also convicted and sentenced to ten years' rigorous imprisonment under section 449, P.P.C. With tine of Rs,20,000 each and similarly under section 337-J, P.P.C. Munawar Hussain alias Mohnee was additionally convicted under section 377, P.P.C. And sentenced to imprisonment for life along with fine of Rs,25,000. The sentences of imprisonment were ordered to run concurrently.
2. The victims of the case were Mst. Razia Bibi, her sister, Mst. Shahida Parveen and brother Shehzad and the F.I.R. Was registered on 20-8-1997 at 9-45 a.m. On the report of Muhammad Ramzan, to whom information was furnished by the brother of his wife, Muhammad Nawaz. Muhammad Ramzan had, on the morning of 20-8-1997, heard that members of the household of his in-laws had been taken to the hospital after they were drugged in their house and, therefore, he also proceeded to the hospital where he met his brother-hi-law, Muhammad Nawaz, who narrated to him that a day earlier on 19-8-1997 his mother Mst. Ghafooran Bibi had gone to Sheikhupura and he in the evening went to work in the power looms where he was employed as a worker. That around 10-00 p.m. He came out to have tea in the shop of one Muhammad Akram, where he met Nadeem alias Dhemu and Tariq Mehmood alias Tara, who showed unusual courtesy to him by paying for the cold drink and tea. That after leaving the shop he went to his house. He was followed by Nadeem alias Dhemu. He found the entrance door to the house locked from outside and with the help of Nadeem alias Dhemu, he climbed on to the roof of the neighbours' house from where he climbed down to his own. That he noticed his sisters, Mst. Razia Bibi, Mst. Shahida Parveen and Mst.
Shazia Bibi as well as his brother Shehzad asleep. He thereafter, left the house to return to his work.
He came home at 3-00 a.m. After work and went to sleep. At about 7-00 a.m. He woke up and found his sisters and brother still asleep. He tried to wake them up but in vain. He found an empty shopping bag with traces of sweets. He took his sisters and brother to the hospital for treatment.
Muhammad Nawaz alleged that his sisters and brother had been subjected to sexual intercourse by Nadeem alias Dhemu, Munawar Hussain alias Mohnee and Tariq Mehmood alias Tara as a day before they were unusually hospitable to him by paying for his cold drink and tea.
3. Since Muhammad Nawaz had no knowledge of the actual incident, the details thereof were later divulged to the police by the three victims. According to Shahzad, on 19-8-1997 when he along with his three sisters, Mst. Razia Bibi, Mst. Shahida Parveen and Mst. Shazia Bibi were watching television along with a neighbourer by the name of Mst. Iqbal Bano, who had come to the house just to care for them as their mother had gone to Sheikhupura, when around 8-00 p.m. There was a knock at the main door of the house. That responding to the knock, he went out and saw one Faisal Musalli, who handed him sweets "(Gulab Jaman)" saying that they were sent by Nadeem alias Dhemu.
That after Mst. Iqbal Bano left the house and locked the main door from outside he and her sisters took the sweets and then went to sleep. Shahzad alleged that around mid-night he felt pain and then realized that Munawar Hussain alias Mohnee was sodomising him. Mst. Razia Bibi after repeating the initial story alleged that about mid-night Munawar Hussain alias Mohnee committed Zina with her, whereafter, Nadeem alias Dhemu and Tariq Mehmood alias Tara also entered the room and raped her sister, Mst. Shahida Parveen. That she tried to resist but failed. The same version was given by Mst. Shahida. There was, however, no allegation of criminal assault on their other sister, Mst. Sajida Bibi.
4. Mr. Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court entered appearance for the appellants and contended that the very nomination of the appellants as accused in the F.I.R.
By the complainant, Muhammad Nawaz, was simply on account of suspicion because of the unusual courtesy shown to him by the appellants on the eve of the occurrence and that the statements of the victims, recorded belatedly three days later, were tailored to fit into the allegations in the F.I.R. It was pointed out that the effect of drugs could not have lasted three days so as to postpone the recording of their statements by the police. Referring to the statements of the three witnesses, the learned counsel argued that they were inconsistent regarding the disclosure by Shahzad to his sisters of the name of a person who brought the sweets. He submitted that the allegations of Zina-bil-Jabr made by Mst. Razia and Mst. Shahida, who claimed to have been sleeping in the same room at the time, is inconsistent with the statement of Mst. Razia Bibi who stated that after leaving the house Mst. Iqbal Bano locked the house from outside and she (the 'witness) chained the door from inside and further, in cross-examination that the door of the room where she and her sister were sleeping was chained from inside. Pointing out to the timing given by the three victims of the incident, the learned counsel argued that inconsistency therein shows their unreliability. It was further maintained that in the absence of any marks of violence or resistance on the persons of the victims and their admission of going back to sleep after the incident is not in consonance with the allegation of rape. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court appearing for Tariq Mehmood alias Tara, appellant, adopted the above arguments.
5. Mr. Ch. Munir Sadiq, learned Advocate Supreme Court, contended on behalf of the State that there was no allegation, or even suggestion of false implication of the accused by the victims. That in view of their state of intoxication, the victims could not be expected to observe or remember the incident very clearly and slight inconsistencies in their testimony are understandable. He referred to the evidence of the doctor and the Serologist's report confirming that the three witnesses were drugged and criminally assaulted. The victims were taken to the hospital after they were found by their brother Muhammad Nawaz in unconscious state.
6. The doctors who examined the three victims found that they were in semi-conscious state and had been subjected to sexual intercourse. The vaginal swabs taken from Mst. Razia and Mst.
Shahida upon chemical examination were found to be stained with semen. Similar was the report of the anal swa bs taken from Shahzad. The blood and urine sample taken from all the victims were found to contain traces of tranquilizer. In the light of the statements of the three victims together with the reports of doctors, Chemical Examiner and Serologist, two facts undoubtedly stand established, that Mst. Razia Bibi, Mst. Shahida Parveen and Shahzad, were drugged and then subject to sexual intercourse. This part of the evidence has also not been seriously questioned either in the cross-examination of the witnesses nor at the bar.
7. The question that remains to be resolved is whether it was the appellants who had committed the dreadful crime. In a case of rape the primary and the most credible testimony is that of the victim. Though in the present case the appellants were named in the F.I.R. By the brother of the victims, who had not himself witnessed the incident, his suspicion came out to be true after the victim confirmed the allegations made against the appellants in the F.I.R.
8. Taking up the first contention raised on behalf of the defence, true that the appellants were nominated in the F.I.R. By the complainant on suspicion, as by then he had no knowledge of the actual facts. However, finding his sisters and brother in the morning in a state of intoxication and having been subjected to sexual intercourse, it was not too far-fetched for the complainant to suspect that the appellants were the perpetrators of the crime in view of the unusual hospitality shown to him by the appellants an evening before the incident and one of the appellants, Nadeem alias Dhemu, following him thereafter to his house. The actual story of the incident was disclosed later by the victims in their statements made to the police. Undoubtedly, these statements were made two days after the incident but in view of the special circumstances of this case, the facts narrated in the statements cannot be looked at with suspicion because of delay in their recording.
The victims were not only raped but drugged and it would have taken some time not only for the influence of drugs to fade away but for the victims to recover from the trauma they underwent by the rapes. They were not just eye-witnesses but victims of the horrible crime and any delay in recording their statements by the police cannot be examined on the touchstone of standards applied generally to delay in recording the statements of witnesses by the police.
9. Coming to the infirmities pointed out by the defence in the testimonies of the three witnesses, the same' have to be examined from the perspective that the details furnished by the witnesses is of an incident which occurred when they were intoxicated and in semi conscious, if not fully unconscious, state of mind. The statements of ,Mst. Iqbal Bano and Mst. Razia Bibi read together, show that the mother of the three victims had gone to Sheikhupura and had requested Mst. Iqbal Bano, a middle aged neighbour and a family friend, to take care of the households while she was away. Mst. Iqbal Bano after visiting the family that evening locked the main entrance door to the house from outside whereas, Mst. Razia Bibi, bolted it from the inside. The contention of the learned counsel for the defence that since the door was locked from both outside and inside, it was not possible to enter the house, is explained in the testimony of Muhammad Nawaz, who, while reiterating the contents of the F.I.R. Stated that when going to his house in the evening and finding the door of the house locked, Nadeem alias Dhemu, appellant, who was following him helped him into his house by scaling on to the roof of the adjoining house of Nadeem's aunt, Mst. Shahida.
Thus, the appellants knew how to get into the house of the victims by means other than through the entrance door. As to the statement of Mst. Razia Bibi, that the door of the room in which she and her sister, Mst. Shahida Parveen were asleep was chained from inside, it can be best explained as stated above that by the influence of intoxication her memory regarding minor details such as bolting the door from inside could have been blurred. In any case, this argument is of no consequence to the defence as rapists did enter the room where these two ladies were asleep and subjected them to sexual intercourse.
10. The contentions of the learned defence counsel having been met the prosecution case otherwise stands proved. The story set up in the F.I.R. By the brother of the three victims receives support from their testimony, who are the most credible witnesses of the occurrence. Their being drugged and sexually abused is confirmed by the medical evidence, the reports of the Chemical Examiner and the Serologist. Further corroboration is provided by Zafar Jamal (P.W.13) and Muhammad Ramzan (P.W.14) of purchaser of Ativan tablets by the appellants from their Drugs Stores. In view of this overwhelming evidence, the trial Court and the Appellate Court have rightly found the appellants guilty of the crime.
11. However, there is one aspect of the prosecution case of which we have some reservations. There are three accused of whom, according to the testimony of Mst. Razia. Bibi and Mst. Shahida Parveen, Munawar Hussain alias Mohnee, committed Zina-bil-Jabr with Mst. Razia Bibi and other two Tariq Mehmood alias Tara and Nadeem alias Dhemu raped Mst. Shahida Parveen. Shahzad, then aged 13/14 years, according to his statement was sodomized by Munawar Hussain alias Mohnee. Thus, Munawar Hussain allegedly raped Mst. Razia Bibi and sodomized Shahzad, one after the other. Considering that age of Munawar Hussain, recorded in his statement under section 342, Cr.P.C. Was thirty years and the entire episode according to the evidence on record had not taken too long, most likely he had committed sexual intercourse only once. In this view of the matter there being three victims and three accused, each of the victims was raped only once. Thus, the provisions of section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which pertains to commission of Zina-bil-Jabr with one victim by two or more persons would not be attracted. The conviction and sentence of death of the appellants under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are, therefore, set aside. The appellants Tariq Mehmood alias Tara and Nadeem alias Dhemu are however, convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and each of them is sentenced to twenty-five years rigorous imprisonment. The conviction and sentence of Munawar alias Mohnee, under section 377, P.P.C. Shall remain intact. The conviction of all the appellants under sections 449 and 337-J, P.P.C. And the sentences of fine are upheld, however, the sentences of imprisonment for each of the offence is reduced to five years imprisonment. In view of the heinousness of the crime, all the sentences of imprisonment are directed to run consecutively. They are however, granted the benefit of section 382-B, Cr.P.C.
12. With the above modifications, the appeals are dismissed.