' Petitioner Mubarik Ali and Nazir Ahmed co-accused were tried and convicted on 30th November, 1977 by a Magistrate with enhanced powers under section 30, Cr. P. C., Jaranwala; former was sentenced to four years' R. I. Under section 376, P. P. C. And the latter to two years' R. I. Under section 376/109, P. P. C. On appeal, the learned Additional Sessions Judge, Faisalabad vide his order dated 5th June, 1978, has acquitted co-accused Nazir Ahmad giving him the benefit of doubt and dismissed the appeal of the present petitioner maintaining his conviction and sentence awarded.
These orders have been called in question in the present revision.
2. Facts in brief are that on 6th April, 1977 at about Isha prayer time, Mst. Nazeeran P. W. And her father Ghulam Muhammad P. W. Were present in their house. Ghulam Muhammad deals in the trade of black sugar (Gur). Co-accused Nazir Ahmad took him out of his house on the pretext that the former had some black-sugar to sell. /Wt. Nazeeran was thus left alone in her house. After some time both the accused came to the house of Ghulam Muhammad ; co-accused Nazir Ahmed being armed with a gun. Petitioner Mubarik Ali committed rape on her while co-accused Nazir Ahmad remained at guard in the door, In the meantime Ghulam Muhammad in the company of Nazeer Ahmad p. W. Returned home, Seeing the P. Ws., petitioner ran away by scaling over the wall. Elders of the accused had been trying to persuade the prosecutrix and her father not to report the matter to the Police but they did not agree to it and, long last, report was made by the prosecutrix herself on 8th April, 1977 at 4.30 p. m.
3. Manzoor Hussain A. S. I. Conducted the necessary investigations in the case. He took into possession shalwar P. 1 vide memo. Exh. P. B. He arranged for the medical examination of the prosecutrix and the petitioner.
4. Dr. Nafees Akhtar (P. W. 3) examined Mst. Naziran medically. According to her, hymen of the prosecutrix, was broken and had a bleeding tear at 6 O'clock. It could admit the index finger.
Margins of the vagina were red and swollen. She had a contusion measuring x 1/2" on left inner side of the thigh. Two vaginal swa bs were sent to Chemical Examiner which vide report Exh. P. C. Were not stained with semen ; however, shalwar P. 1 vide report Exh. P. D /1 was'found stained with semen and blood. She admitted that the possibility that the result was achieved by penetrating some foreign body, could not be ruled out and equally the possibility, in view of position of the tears, viz. 6, O'clock, that it was an intercourse With consent couIcl not overruled, ' Dr. Muhammad Asghar Medical Officer (P. W. 6) examined the petitioner on 18th April, 1977, and found nothing preventing him from having a sexual intercourse.
5. Mst. Naziran P. W. 5 and her father Ghulam Muhammad P. W. 2, are star witnesses of the prosecution. They have consistently supported the prosecution version and nothing materially damaging the prosecution case could be brought out in the cross-examination. Both the Courts below have concurrently accepted their testimony.
6. Petitioner and co-accused Nazir Ahmad at the trial, refuted the accusations and pleaded.
Innocence. They examined four witnesses inter alia Nazir Ahmad son of Wazir Ali in their defense.
Defense case is that petitioner Mubarik Ali had enmity with one Anwar Ali. There had been multifarious litigation between the two. Mst. Naziran was working in the house of Anwar Ali. Case has been manipulated by him. Ghulam Muhammad D. W.
1. Ghulam Hussain D. W. 2, Barkat Ali D. W. 3, have been examined in support of the defense case.
Nazir Ahmad son of Wazir Ali, allegedly, was with Ghulam Muhammad, father of the prosecutrix when he came to his house just before the occurrence ; but he has been examined as D. W.
4. He has stated that no such occurrence took place and the case had been fabricated due to party faction in the village.
7. Learned counsel for the petitioner has raised two fold arguments: firstly that the prosecution has failed to bring home the guilt to the petitioner beyond doubt. Prosecution evidence is replete with contradictions. Scene of occurrence though surrounded by houses, not a single witness of the locality has been examined. Prosecutrix appears to be girl of easy virtues and therefore was used by Anwar Ali, a sworn enemy of the petitioner; secondly that the circumstances indicate that it was an affair by consent of the prosecutrix who on being surprised by the father she gave a wrong color' to it. Mst. Naziran, admittedly, is not below fourteen years of age and therefore the act does not fall within the definition of rape as given in section 375, P. P. C.
8. Arguments raised have not impressed me. Courts below have considered the entire evidence on the file and recorded concurrent finding in this regard. This Coin t in revision, generally, does not undertake re-appraisal of the evidence unless it finds it necessary tO A avoid miscarriage of justice or feels that the findings of fact recorded by the Courts below are arbitrary and foolish. The case in hand, I think, is not one of such cues. Suffice it to say that defence case is absurd on the face of it.
No father, even if a Mocen, would risk the honour of his own daughter for others' sake. It cannot easily be accepted that B prosecutrix and her father agreed to sacrifice their honour for Anwar Ali's sake. Keeping in view the status of the complainant's family, it is not far difficult to see as to why Nazir Ahmad son of Wazir All did not support the prosecution and was examined as a defense witness.
' Second contention raised is self-destructive. Petitioner having denied the occurrence, it does not lie in his mouth to say that, it was a consent affair. In any case there is no basis for this supposition that prosecutrix and her father has falsely implicated the petitioner.. Medical evidence belies if the prosecutrix was habitual to sexual intercourse. I feel no hesitation in rejecting the second plea raised before me.
9. For all that has been stated above, this petition has no merit and is dismissed accordingly.
Conviction and sentences awarded to the petitioner are maintained.