SALAHUDDIN MIRZA, J.---Appellant Ajab Khan has come in appeal against the judgment dated 17- 4-2008 of learned II-Additional Sessions Judge Mirpurkhas, Mr. Manthar Ali Jotoi, under which the learned Judge has convicted him under section 10(3) of the Offence of Zina Ordinance and has sentenced him to five years' rigorous imprisonment while acquitting co-accused Niaz, his driver.
Learned II-Additional Sessions Judge seems to have forgotten to give any verdict, either of acquittal or conviction, in respect of offences under sections 324, 459, 506(ii), P.P.C. With which, also, the appellant was charged.
2. This judgment arises out of the private complaint filed by Krishan Kohli sometime before 12-6- 2003 in the court of Joint Civil Judge Mirpurkhas which was later transferred to the Court of learned II-Additional Sessions Judge Mirpurkhas. The averments made in this complainant are rather, confused but may be paraphrased and summarized as follows: Krishan and his brother Bhirno moved along with their families to the land, of Accused No. 1 Qazi Malook as his haris some 12 years before June 2004 (i.e., In June, 1996). Mst. Jaiti, daughter of Krishan, and Mst. Jammi, daughter of his brother Bhimo, are unmarried (however, their ages have not been disclosed). Accused No. 2/appellant is son of Accused No. 1 Qazi Malook while Accused No. 4 Niaz is their driver whereas relationship of Accused No. 3 Anwar with the rest of the accused is not disclosed. It was alleged that the treatment of Qazi Malook was not good with his haris and he always defaulted in the payment of the dues to the complainant and his brother and even took away their cattle from them when they raised hue and cry for the payment of their dues. About six months prior to the lodging of the private complainant, accused Ajab Khan, while drunk, trespassed into his house and committed Zina-bil-Jabr with his daughter Mst. Jaiti and repeated the offence several times, allegedly at the instance of his father and accused Anwar. Surprisingly enough, the complainant says he complained to the same Qazi Malook and Anwar on whose instance the crime was committed. Mst. Jaiti became pregnant whereupon, to save his honour, he married her (not disclosed to whom) two months prior to the filing of the complaint but when his daughter was on a short visit to his house, Ajab Khan and his driver Niaz (Accused Nos. 2 and 4 respectively) again trespassed into his house on 19-5-2003 and committed Zina-bil-Jabr with his daughter as well as with his niece Mst. Jammi in the presence of the entire family. He and his family raised hue and cry upon which neighbours collected, including one "Mst. Jamna" who tried to apprehend the culprits but they beat the neighbours as a result Mst. Jamna received injuries on her head and they also made aerial firing and went away. The complainant again complained to Qazi Malook and Anwar (Accused Nos. 1 and 3) on whose instance the crime was committed but they ordered him to keep quiet on threats of dire consequences and even booked them with police in non-cog cases. The complainant and others approached police but it did not take any action whereupon they agitated and the matter was even reported in the press. Hence the undated private complaint.
3. The trial Court vide order dated 11-8-2004 dismissed the complaint as against Qazi Malook and Anwar, but registered the complaint "as a sessions case" against appellant Ajab Khan and Niaz and on 27-4-2005 charged them under sections 324/459 and 506(2), P.P.C. And section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. Accused Niaz absconded shortly after the framing of the charge.
4. In the course of the trial, both the girls as well as the complainant and his brother were examined and a neighbour `Devji' was also examined besides the lady doctor who had examined both the girls on 5-7-2003.
5. In his 342. Cr.P.C. Statement appellant Ajab Khan conceded that the complainant party was hari of his father and of Anwar Khan but claimed that the complainant and his brother had taken huge loans from them and had defaulted in payment and the complainant had implicated him and others first in a police case which was filed as false and then they were involved in this false case just to avoid re-payment of loans.
6. I have heard learned counsel of the appellant and learned State Counsel and have gone through the evidence on record.
7. The case of the complainant is that appellant used to come to his house and commit Zina-bil- Jabr with his daughter as a result of which she became pregnant but he did nbt complain to anyone except to his. Landlords Malook and Anwar, appellant being son of Malook Khan, and after his daughter became pregnant he married her (he did not, disclose to whom she was married) and on 19-5-2003, when his daughter was on a short visit to his house, appellant Ajab Khan and his driver Niaz trespassed into his house and committed Zina-bil-Jabr with his daughter and niece (Mst Jaiti and Jamna). However, while appearing in the Court as P.W.2, complainant Krishan does not say anything about the events prior to 19-5-2003 and, about his daughter 'becoming pregnant and her subsequent marriage and commenced his deposition with the event occurring on 19-5- 2003 and, contrary to what he stated in the complaint about the marriage of his daughter, he now stated that his daughter was unmarried on 19-5-2003 and now did not say anything about the rape committed by the appellant and his driver with his niece. He stated that the police did not register the case when he approached it. However, in cross-examination he conceded that he had moved an application to DSP Mirpurkhas but it was disposed of as false and he was challaned under section 182, P.PC. The complainant gives the time of the commission of rape on 19-5-2003 as "12 noon". However, his brother Bheemoon P.W.2 gives the time of the commission of offence as "10- 12 of night". Both the girls also say that the time was midnight (and not noon). Moreover, the complainant had also stated (as P.W.) that his daughter was alone in the house whereas all others had gone to the land for doing work there. So the time of occurrence should be noon as stated by the complainant but the two girls say it was midnight. If it was midnight, the complainant and his brother should have been present in the house but the complainant says that he was informed of the incident by his daughter and mohalla people. In view of this contradictory statements of the prosecution witnesses the evidence of the complainant, of his brother and the two girls becomes suspect. The evidence of P.W.5 Devji also does not inspire confidence. His evidence is obviously hearsay as he did not say that the offence had been committed in his presence. Further, whereas according to the private complaint both the girls were raped in the house of the complainant but the complainant did not say anything in his deposition about the rape of his niece whereas Devji says that the niece of the complainant was raped in her own house and not in the house of the complainant and, besides, his evidence in this regard is also hearsay as he does not say that this part of the offence was committed in his presence. The evidence of the lady doctor (P.W.6) also leads 'us to nowhere. She examined both the girls' on 5-7-2003, nearly two months after the event, and found both of them used to sexual intercourse, and while Mst. Jammi herself gave her age as 30 years the lady doctor found her only 15 years old though the age of the other girl as given by her her deposition is nearly the same as found by the lady doctor. Naturally enough, no mark of violence was found on the person of both the girls as two months had passed since the occurrence.
8. In my opinion, it is not safe to rely on the prosecution evidence due to serious contradictions in the deposition of the various witnesses. Besides, it is a strange story that, Qazi Malook Khan and another Zimindar would instigate Malook Khan's son (the appellant) to commit not just Zina but Zina-bil-Jabr with the daughter of the complainant. Half the story of prosecution case had already been disbelieved by the learned trial Court when it did not issue process against Haji Malbok Khan and Anwar Khan and I find it difficult to believe the rest of the complainant story, as well, that the appellant was persistently coming to the house of the complainant and committing Zina-bil-Jabr with his daughter but neither any preventive action was taken by the complainant nor the matter was reported to police in time but after colossal delay. The reasoning given by learned trial Judge in the last but one paragraph of his judgment for believing the prosecution case is unreasonable.
The case of prosecution is thus not free from-doubt and benefit of such doubt must go the accused/appellant. I would, therefore, set aside the impugned judgment, accept the appeal and acquit the appellant. He is on bail and his bail bond stands discharged.