' RIZWAN ALI DODANI, J.---We intend to dispose of both the Criminal Appeal No.6/P of 2013 and Jail Criminal Appeal No.29/I of 2013 filed by the appellants Zakirullah and Fazal Aziz respectively against one and the same judgment dated 9-10-2013 passed by Sessions Judge/Zillah Qazi Malakand at Batkhela in Hadd Case No.9/2012, whereby both the appellants have been convicted and sentenced as under:--
(i) Under section 395, P.P.C. Sentenced to life imprisonment each, fine of Rs.1,00,000 each or in default to further undergo 6 months' imprisonment each.
(ii) Under section 376, P.P.C. Life imprisonment each, fine of Rs.1,00,000 each or in default to further undergo 6 months' imprisonment each.
(iii) Under section 457, P.P.C. 5 years imprisonment each, fine of Rs.20,000 each or in default to further undergo 2 months' imprisonment.
(iv) Under section 337-A(i) one year imprisonment each and to pay Rs.20,000 each as Daman. The amount of Daman if recovered to be distributed equally among Mst. Safia and Mst. Neelam victims.
' All the sentences were ordered to run consecutively. Benefit under section 382-B, Cr.P.C. Has been extended to both the appellants only in the first punishment i.e. Under section 395, P.P.C.
2. Brief facts of the case as contained in the crime report are that on 22-4-2012 complaihant Mst.
Safia Bibi and her Family members were sleeping in their house when at about 3-00 a.m. Some one knocked at the door and they woke up. They saw that accused Zakir alias Zakoory son of Abdul Mastan, Fazal Aziz son of Asmatullah along with four unknown persons armed with weapons were standing in the courtyard of her home. The accused persons tied the hands of complainant and her brothers namely Iftikhar and Dilawar and forced them to sit in a room and were guarded by two persons and the other two accused had started searching the rooms of the house. After that accused persons forcibly took her niece Mst. Neelam to another room and committed zina with her.
During search they took from her possession jewellery i.e. Two pairs of ear-ring, one locket weighing three tolas and from box lying in the room seven (7) tolas jewellery of different kinds, cash amount of Rs.3,50,000, snatched one mobile set from her, her mother and brothers Iftikhar and Dilawar.
During search the accused beated them on their resistance due to which she and her niece were injured. At 4.30 the accused persons made their escape good with all the said articles and cash amount.
3. After registration of the case and completion of investigation, challan under section 173, Cr.P.C.
Was submitted against the appellants/accused for trial. The learned trial Court formally charge sheeted the appellants/accused under sections 376, 457, P.P.C. And under section 17(3) of the Offences Against Property Ordinance, 1979 to which the appellants/accused pleaded not guilty and claimed trial.
4. During trial, the prosecution in order to prove its case examined Faridullah, Naib Subedar/post commander as (P.W.1), who has submitted supplementary challan. Gul Nawaz Khan Moharrir (P.W.4) registered the F.I.R. Exh.P.W.4/1.Zia-ur-Rehman, Moharrir (P.W.5) witness of recovery memo Exh.P.W.5/1. Azam Khan, Moharrir (P.W.6) witness of recovery memoes Exh.P.W.6/1 to Exh.P.W.6/5. Mst.
Safia Bibi (P.W.7) complainant of the case who inter alia narrated the story of F.I.R. Mst. Neelam (P.W.8) she is the victim of the occurrence of zina and eye-witness of dacoity. She was forcibly raped by the appellants/accused. Iftikhar (P.W.9), he is another eye-witness of the occurrence and brother of complainant (P.W.7). Lady Dr. Raishma Jamal, Medical Officer (P.W.10). She medically examined Mst. Neelam on 22-4-2012. Saif-ur-Rehman, IHC appeared as (P.W.11). He is the Investigating Officer of the case, and arrested the accused Zakirullah and Fazal Aziz on 15-7-2012 and 18-7-2012 respectively. Umar Ali, Moharrir (P.W.12) is the witness of recovery memos Exh.P.W.11/14 and Exh. P.W.5/1. Thereafter, the prosecution closed its side on 9-7-2013.
5. After conclusion of the trial, the appellants/accused were examined under section 342, Cr.P.C.
They denied all the charges of the prosecution levelled against them in the evidence; however, they neither opted to record their statement on oath under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
6. The learned trial Court after concluding the formalities of trial returned a verdict of guilty.
Conviction was recorded and awarded as mentioned in the, opening part of this judgment.
7. Heard learned counsel for the appellants and the State and perused the impugned judgment and relevant record.
8. It has been observed that the F.I.R. Was promptly lodged within an hour of the incident. The names of the appellants/convicts have categorically mentioned in the F.I.R. By the complainant out of the alleged six culprits who stormed in the house of the complainant in late hours of the fateful night. The statements of three star witnesses i.e. The complainant Mst. Safia Bibi, P.W.7, Iftikhar, P.W.9 and Mst. Neelam, P.W.8 have also remained consistent in material particulars with regard to the alleged offences of dacoity and rape of Mst. Neelam, P.W.B. That all the said three eye- witnesses have been subjected to cross-examination but they could not be shaken in any manner in respect of what they have stated before the Court in their examinations-in-chief. That the suggestions made by the counsel for the appellants/convicts in their defence are not worthwhile to be considered being general in nature and as such, could not put any dent on the prosecution story. As regards the offence of Zina, the statement of Mst. Neelam who is the victim of the said offence has categorically named both of the appellants for commission of Zina with her and the said statement remained consistent for all material aspects. The defence side tried to allege the victim as married woman but they failed to prove said claim as she unequivocally denied the said suggestion and finally the defence side could not materialize the same. The defence side also tried to put an element of enmity between the complainant and the culprits especially the appellants but also could not have been able to make it substantive as no any serious nature of enmity was alleged that could have prompted the complainant side to involve the appellants and other culprits into such heinous offences of dacoity and especially of zina to put their honor at stake. That the medical examination which was conducted on the same day of the occurrence is also supportive of the fact that the virginity of victim Mst. Neelam was not intact at the time of medical examination and the redness was seen at the lower volva and trouser was also showing multiple stains on it. However, it was stated by the doctor that no fresh laceration or bruises or other signs of violence were seen. This piece of evidence was vehemently emphasized by the defence counsel.
But on the other hand the Chemical Examiner report in respect of vaginal swabs came with the positive results as being stained with semen. The said report, which has not been made disputed anywhere on the record, showing fresh semen, renders such statement of lady doctor immaterial which says no fresh bruises/injuries or mark of violence found on her person. Above all the statement of prosecutrix alone is sufficient to prove the commission of offence of zina by the appellants.
9. That as observed the promptly lodged F.I.R. And medical examination of victim which has also been carried out immediately after the occurrence and the statement of victim Mst. Neelam in respect of offence of zina committed with her by the appellants, which has been corroborated by the medical and Chemical Examiner's report, leave no room for any doubt and deliberation for false implication of appellants in commission of Zina.
10. As regards the arguments advanced by the counsel for the appellants such as, no identification parade was conducted by the prosecution, is devoid of any force under the circumstances when the appellants have been named in the F.I.R. Which was lodged within the hour after the incident for inter alia commission of offences of dacoity and zina, therefore it was not imperative for the prosecution to get conducted identification parade as far as appellants are concerned. The other argument that since no specific role was assigned to each of the culprits renders the prosecution case doubtful. We are of the view that this argument has no legs to stand as the appellants/convicts before us along with other four persons have categorically been assigned with the role of commission of dacoity and zina as well in the house of complainant in the F.I.R. And subsequently by the prosecution witnesses in their respective testimonies. Another argument which was taken by the defence counsel was that since the three accused have been acquitted vide impugned judgment, therefore, the appellants could not be convicted under the offence of dacoity inasmuch as requisite number of culprits to constitute an offence of dacoity has not been fulfilled This argument of the defence counsel is devoid of any force because the fact as to number of culprits alleged to have participated in the offence has to be proved and determined from the evidence available on record in this regard and not by the number of persons having been convicted by the Court. The case-law PLD 1967 Dacca 528 referred to by the counsel also does not in any way supportive of his contention, in fact it is other way around and goes against it. The number of persons alleged to have participated in offence have sufficiently been proved in the instant case by the evidence brought on record therefore, the conviction for dacoity has rightly been recorded by the trial Court. Likewise the arguments regarding no identification of the recovered gold ornaments and no matching of semen are not material under the circumstances of the case as discussed above when the names of appellants have been mentioned promptly with the specific roles for all the offences they have been charged with, however, these arguments at the most could be termed as inefficiency on part of the prosecution, but these deficiencies are not of that nature which could damage the prosecution case in the given circumstances. It was also argued that no recovery of stolen articles was effected from appellant/convict Fazal Aziz except from appellant/convict Zakirullah and that too only Rs.10,000 (Rupees ten thousand) out of alleged stolen amount of Rs. 3,50,000 (Rupees three lac fifty thousand only). That record has been perused which revealed that both the appellants have been arrested after the considerable period of three (3) months, which is a sufficient time to have disposed of the stolen articles.
11. That what has been discussed above we are of the view that prosecution has adequately and beyond reasonable doubt proved the charges against the appellants. Consequently, the Criminal Appeal No.6/P of 2013 and Jail Criminal Appeal No.29/I of 2013 are dismissed. The convictions recorded and sentences awarded by the trial Court are maintained except alteration in the sentence awarded under section 457, P.P.C., which is hereby enhanced to ten (10) years from five
(5) years inasmuch as the house trespass has been committed by night in order to commit heinous Offences. Moreover, all the punishments as awarded to both tide appellants are ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Is also extended to both the appellants in respect of all the sentences.
' These are the reasons of short order dated 13-2-2014.