' SALAHUDDIN MIRZA, J.--- The facts of the case as revealed in F.I.R. No,693 of 2004 recorded at Thana Kuthiala Sheikhan District Mandi Bahauddin on 7-11-2004 at 2-30 p.m. Are that complainant Rani wife of Amir Khan had gone to ease herself on 6-11-2004 at 5-00 p.m. And when she reached near the sugarcane crop of Ghulam Mustafa, accused Shahbaz alias Shahid son of Manzoor and Liaquat son of Nazir suddenly appeared from the sugarcane crop. They were armed and they forcibly committed Zina-bil-Jabr with her one after the other and on her hue and cry her husband Amir Khan and Nasir Iqbal, who were passing through the passage, were attracted and saw that occurrence whereupon both the accused persons ran away.
2. After necessary investigation both the accused were sent up for trial before learned Additional Sessions Judge, Mandi Bahauddin, who charged them on 5-7-2005 under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. HA/ever, accused Shahid alias Shahbaz, who was on bail, absconded during the trial of the case and was declared a proclaimed offender.
On the basis of the evidence recorded before 'him, the learned Additional Sessions Judge convicted appellant Liaquat under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, and sentenced him to undergo three years' R.I. Liaquat has not come to appeal against his conviction and sentence.
3. I have gone through the record with the help of the learned counsel of the State.
4. The prosecution has examined, in all, eight witnesses P. W.1 to Dr. Nazli Saleem Wyne had examined prosecutrix Mst. Rani on 8-11-2004. She did not find any mark of any fresh injury on the private part. State nevertheless obtained the vaginal swabs and sent them to the Chemical Examiner for examination who found stained with semen. P.W.2 Dr. .Khalid Javed Ranjha had medically examined the appellant and the absconding accused (who at that time under arrest) for determination of their sexual potency and his finding in respect of both of them in positive. P.W.3 Faiz Ahmad is the Ex-Moharrir of Police Station Kuthiala Sheikhan who had obtained the vaginal swa bs from Sub-Inspector Manzoor Hussain on 8-11-2004 and handed them over to Arshad constable on 10-11-2004 for delivery to the Chemical Examiner. P.W.4 constable Muhammad Arshad had duly delivered them to the Chemical Examiner to same day. P.W.5 Allah Ditta constable had accompanied the prosecut-ix to the Civil Hospital Mandi Bahauddin for the medico-legal examination in 8-11-2004. The prosecutrix Mst. Rani and eye-witness Nasir Iqbal were examined as P.W.6 and P.W.7. They are the main witnesses. In whose evidence the outcome of the case depends.
5. Mst. Rani stated that she went out of her house at Sham Wela for easing herself in the sugarcane field of Ghulam Mustafa and just as she approached the sugarcane field, the appellant Liaquat and his co-accused Shahid emerged from the crop, both armed with pistol, who forcibly took her in the field of sugarcane and warned her to keep quiet and threatened her with death and both of them raped her. She stated that she raised hue and cry whereupon Nasir Iqbal and her husband Amir Khan were attracted and saw the occurrence whereupon the appellant and his co-accused ran away. She stated that she had gone to police station for the registration of the F.I.R., which she produced as Exh.P.D. The eye-witness Nasir Iqbal supported the version of the story as given by Mst.
Rani. P.W.8 Manzoor Hussain, S.-I. Is the Investigation Officer who stated that on 7-11-2004 he was posted at Police Station Kuthiala Sheikhan when Mst. Rani and her husband came to the police station and Mst. Rani got recorded her statement and that he inspected the place of Wardat where he also recorded 161, Cr.P.C. Statements of the witnesses and also prepared the rough site plan of the place and then forwarded Mst. Rani to the hospital for her medico-legal examination. He further stated that he arrested both the accused persons on 16-11-2004 and got them medically examined for determination of their sexual potency whereafter they were sent to the judicial lock- up.
6. 342, Cr.P.C. Statement of accused Shahid could not be recorded because he had absconded and declared as proclaimed offender before the stage was reached. However, appellant Liaquat Ali denied the prosecution case in his 342, Cr.P.C. Statement and claimed that it was false, fictitious and fabricated due to previous enmity and political rivalry between his family on one hand and the family of Nawaz son of Malu, Shaukat son of Atta Muhammad and Iftikhar son of Ghulam Muhammad on the other. He also stated that his uncle Manzoor Ahmad was well-reputed political person in the village and surrounding areas and he had contested election of Naib-Nazim of local Union Council in the year 2001, along with his running mate Muhammad Aslam Raika for the post of Nazim of the Union Council Chak No,40 in which Iftikhar Ahmad was his rival candidate and his uncle had won the election. He further stated that above-said Iftikhar had political rivalry against his uncle and his family. Nawaz son of Mulu of his village had contested election of Councillor but had lost the same and the said Nawaz was under the influence of Iftikhar. Liaquat Ali further stated that Mst. Rani and her husband are personal servants of the said Nawaz and reside in his residential house. According to appellant Liaquat Ali, Iftikhar and Nawaz planned to defame him and his uncle and his other family members and hatched a criminal conspiracy to involve him and his co-accused Shahid who is his first cousin in this false case. He was-alleged that the complainant was a woman of bad character. He also claimed that his uncle was also involved in a murder case by the said Iftikhar and Nawaz. Liaquat Ali further stated that during the election of local bodies of 2005 his uncle was also candidate of Naib-Nazim against the brother of said Iftikhar. He claimed that he was innocent and notable persons of his village had appeared in defence of both the accused and the two senior Police Officers, D.S.P./S.D.P.O. Of the area and D.S.P.
Investigation had also supported them. According to him, he was falsely implicated due to this political rivalry and personal enmity. The appellant examined these two Police Officers D.W.1 Zia Ullah Khan Niazi, D.S.P. And D.W.2 Muhammad Javed Baryar, D.S.P., C.P.O., Lahore who were during those days D.S.P. Investigation at Mandi Bahauddin and both of them stated that a lot of persons appeared before them during the investigation of the case, pleading the innocence of the appellant and his co-accused 100 persons as per D.W.1 Zial Ullah Khan Niazi. Appellant Liaquat Ali also tendered in his defence copies of F.I.R. 496 of 2002 under sections 324/148 and 149, P.P.C. Of Police Station Kuthiala Shaikhan and another F.I.R. No,483 of 2002 under sections 334/337- A/148/149, P.P.C. Of the same police station and Photostat copy of what he claimed to be bail order dated 8-4-2005 which is actually, a copy of an application for bail and it does not bear any date.
7. The first contention of the learned counsel of the appellant is that there was delay in recording of the F.I.R. And therefore, the prosecution case, based on the delayed F.I.R., is suspect and cannot be believed. I note that the incident is stated to have been committed at Sham Wela on 6-11-2004. By the term "Sham Wela" we may assume the offence was committed around sun set time. The F.I.R.
Was lodged on the very next day (7-11-2004) at 14-30 hours. The complainant is the resident of village Jia which is at a distance of about eight miles or 12 kilometers from the police station as per coulmn 4 of the F.I.R. And it is therefore, reasonable to expect that the complainant should have rushed to the police station the same night to lodge the report. Besides, the complainant belongs to a very lowly class and according to the learned counsel of the appellant himself she is Kammi of one Nawaz and lives on his land whereas the appellant and his co-accused belong to the privileged class of society. A man of such a lowly origin would think not only twice but a dozen times before making his mind to lodge a report against any person belonging to an influential family which enjoys superior status in the society. In fact, most of such cases go unreported in our rural areas because aggrieved person, who is socially inferior, cannot dare to lodge the report. In this regard learned counsel for the appellant relied upon.The judgment of this Court in the case of Allah Bakhsh v. The State PLD 1986 FSC 144 in which it was held that a person of weak status comes forward and lodges report against a person of some influential family on when he is forced to do so and therefore, if a person of lowly status lodges the F.I.R. After some delay, such delay by itself is not sufficient to hold that the allegations made therein are false. As a matter of fact, this reported case goes against the argument of the learned counsel of the appellant. Khan Muhammad v. The State PLD 1986 FSC 262 is the second judgment, which had been relied upon by the learned counsel of the appellant. This judgment supports the argument of the learned counsel of the appellant to some extent inasmuch as in this case it has been held that it is not valid justification for lodging a delayed F.I.R. That the parties were trying to compromise. However, in this reported case the delay was of 13 days. While a delay of 13 days may not be explained by saying that the parties were trying to compromise the matter, the delay of a few hours can certainly be so explained. Moreover, I have ' already pointed out that the night had commenced shortly after the commission of the offence. It was winter season and the distance of the police station was about 12 kilometers and therefore, if complainant did not immediately lodge the report the same night, she can be excused. For the same reason another reported judgment Muhammad Nawaz v. The State 1985 PCr.LJ 761 is of no help to the appellant. The delay in filing of F.I.R. Is fatal only when it is not adequately explained to another reported case on which reliance was placed by the learned counsel of the appellant is the case of Muhammad Akbar v. The State 1985 PCr.LJ 2826 but in this report case the F.I.R. Was held unreliable mainly because most of the investigation was conducted before it was lodged. Learned counsel of the appellant had also relied on Ghulam Ghous v. Muhammad Amin and others 1997 SCM R 37 but this is in respect of a totally different subject and has no relevancy whatsoever in the present case before us. I would therefore, reject the contention of.The learned counsel of the appellant that there was unexplained delay in the lodging in the F.I.R. And therefore, the very basis of the prosecution case is weak and conviction of the appellant cannot be sustained.
8. So far as the medical evidence is concerned there is force in the contention of the learned counsel of the appellant that the prosecution does not get any support from it. As per deposition of P.W.1 Dr. Nazli Saleem Wyne no sign of any injury was found on the person of the complainant and the complainant being a married woman no positive inference could be drawn from the examination of her private parts. No doubt, the report of the Chemical Examiner is in affirmative but complainant was living with her husband and passed the night with him in their house and it cannot, therefore, be said with certainty that no sexual intercourse had taken place between them during the night prior co the recording of the F.I.R. Under these circumstances, if the vaginal swabs had been sent to Serologist along with the specimen of the semen of the appellant and the two had matched then the report of Chemical Examiner would have made some sense. In the present case the discovery of semen on the vaginal swabs is of no evidentiary value because the semen could as well have been that of her husband.
9. We would, under the circumstances, have to fall back upon the ocular testimony of the prosecutrix Mst. Rani and of Nasir Iqbal. Mst. Rani has been subjected a very lengthy cross- examination. In cross-examination she states that Nasir Iqbal is her paternal-cousin and that appellant Liaquat Ali and co-accused Shahbaz also belonged to her village and were closely related inter se, being maternal-cousins. She admits that she is tenant of Nawaz son of Maula Dad for a long time and she and her husband were living as Moeen of Nawaz who is residing in an adjacent Haveli and that there is no partition wall between her house and the house of the said Nawaz who also provides them "ground food" and they quite often work for him. However, this only shows that lowly social status of Mst. Rani and her husband. I wonder if the learned counsel of the appellant wants the Court to hold that a person of such a lowly social status has no right to complain if a person of higher status violates their rights to the extent of committing rape. The appellant had also placed on record copies of two F.I.Rs, One of them, which was lodged by Muhammad Nawaz son of Maula Dad against Shahbaz and other on 19-10-2002. The other F.I.R. Is lodged. By one Manzoor son of Roshan on 30-4-2002 against Shaukat and Nawaz. The political rivalries between two groups of influential persons of the village or criminal litigation between them are totally irrelevant so far as a poor landless peasant is concerned. I cannot for a moment, believe that due to political rivalry' or criminal litigation between Muhammad Nawaz and the family of the appellant. Muhammad Nawaz could persuade the prosecutrix Mst. Rani and her husband to concoct a false case against the appellant and his co-accused. As such the prosecution case must rest on the genuineness or otherwise of the ocular evidence of the two witnesses. As has been already noted above, the prosecutrix had been cross-examined at length but nothing incriminating has been brought on record which could shatter the prosecution case. The deposition of P.W.7 Nasir Iqbal fully supports the prosecutrix. He conceded that the complainant party was Moeen of the village while the accused persons were the "Chaudhry". He also conceded that the police had not supported the complainant's case. In cross-examination he explained the absence of other persons. He explained the failure of any other person to rush to the scene of occurrence on hearing hue and cry of Mst. Rani by saying that on that day Malik Yara had expired and therefore, all persons of the locality had gone to attend his funeral or mourning. Coming, as it does in cross-examination, the explanation seems to have some force.
10. It is interesting to note that the defence was no desperate while defending the appellant that some very contradictory question were put to various witnesses. For example a suggestion was put to Dr. Nazli Saleem Wyne that victim was not even produced before her and some other lady was produced instead, whereas a suggestion was put to Mst. Rani that she had performed sexual intercourse with her husband on the night between commission of the offence and the lodging of the F.I.R. And had gone for her medico-legal examination on the following day.
11. As a matter of fact, there is no discrepancy in the contents of the F.I.R. And the evidence of the two relevant witnesses, that is, the prosecutrix Mst. Rani (P.W.6) and P.W.7 Nasir Iqbal. The relationship inter se between the prosecutrix and Nasir Iqbal does not make Nasir Iqbal an interested witness. On the contrary, it shows that Nasir Iqbal and Amir Khan, being related to each other were coming together to the house of the complainant and this is quite logical. I have examined the evidence of the two defence witnesses, D.S.P. Zia Ullah Khan and Muhammad Javed Baryal. Quite naturally, they have supported the village elite as against a village "Kammi". The appellant concedes in his 342, Cr.P.C. Statement that, apart from other criminal cases and litigation, his uncle was also involved in a murder case which is another way of saying that his uncle was an accused in the murder case. This circumstance does not go in favour of the appellant but rather shows that desperate nature of his family. The appellant could not show that the family of the complainant was involved in any aggressive activity or in any criminal case and this is natural because being a "Kammi" they could not think of indulging in criminal activities. The evidence shows that the complainant was a married lady who was married only about a year before the present incident. It is not possible to believe that she or her husband would play in the hands of Muhammad Nawaz or anyone else and falsely implicate the appellant and his co- accused. As a matter of fact, the record shows that the said Muhammad Nawaz has not even helped the complainant in the present case which would not have been the case if the complainant had lodged a false case at his instance. A perusal of the impugned judgment shows that the learned Additional Sessions Judge has dealt with the case of the appellant in accordance with law.
12. The upshot of the above discussion is that evidence on record proves beyond any shadow of doubt that appellant is guilty of the offence with which he is charged. Absconsion of co-accused during the course of trial also supports this view. As a result, the appeal fails and is dismissed and the impugned judgment is maintained. As far the sentence, it would appear that the facts of the case would rather attract section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, which carries for heavier punishment and the appellant has already been dealt with quite leniently.
13. Appellant Liaquat is on bail. His bail bonds are cancelled and he shall be taken into police custody to serve out his remaining sentence of imprisonment.