ASLAM RIAZ HUSSAIN, AcTG. C. J.-This appeal is directed against the judgment of the High Court, dated 8-5-..1982, dismissing appellant's revision m a case under section 3 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. The facts giving rise to this appeal, as stated in the F.
1. R. Lodged on the statement of Mst.
Parveen Akhtar, prosecutrix (P. W. 1) on the night between 24-25/1979, at Police Station Moghalpura, after 6/7 days of the occurrence are that according to the allegations made by the prosecutrix (complainant) in the F. I. R. She was married to Muhammad Qadeer (D W. 2) about 11/2 menths prior to the lodging of the F.
1. R. He resides in Nasirabad (a locality in Sbahadara Lahore). 6/7 days prior to the lodging of the F. I. R. She and her husband were invited to a dinner by the latter's sister Mst. Kausar (wife of the petitioner) who resides in Fatehgarh (a locality in Moghalpura). They accordingly went to her house and stayed there over night. Muhammad Qadeer (husband of Mst.
Parveen Akhtar) went back next morning but his sister Kausar requested him to leave his wife (Mst.
Parveen Akbtar) with her. He, therefore, left her there. On the next day, she and her husband Muhammad Arif (appellant herein) took her to attend a marriage at the house of their relatives at Ichhra, Lahore, and all of them spent the night there. The next day, Mst. Kausar asked her husband Muhammad Arif to take out Mst. Parveen Akhtar (prosecutrix) for site--seeing. Muhammad Arif thereupon took her with him on his bicycle and started towards his house in Fatehgarh (Moghalpura) Lahore. He kept Mst. Parveen Akhtar there for the night and committed rape on her a number of times during the night. He threatened her that if she refused he would kill her. Early in the next morning he took her back on his bicycle to Ichbra to the house where he and his wife Mst.
Kausar had earlier gone to attend a marriage. Mst. Kausar and Muhammad Arif then took the prosecutrix back to her husband's house in Nasirabad. On their way to Nasirabad both ,of them kept on beating her and telling her that she should not mention ~ this affair to . Any one. The prosecutrix stayed in her husband's house for two days. On the third day her father came there and took her back to his own house in Imamia Colony. On the same evening her husband Muhammad Qadeer and her mother-in---law came over to Imamia Colony, and they disclosed the whole story to her father. Thereafter, at about mid-night, she was taken by her uncle (Muhammad Ri4z P. W.) to Police Station Moghalpura for lodging a report, but Anwar Hussain, A. S. I. (P. W. 8) met them in the way and recorded her statement which was read out to her and then sent to the Police Station for recording the formal F. I. R. After investigation the prosecution put up the challan.
3. At the trial the prosecution produced Mst. Parveen Akhtar (prosecutrix) as the only eye-,vitness in the case in support of the version given by her earlier. It also produced the following witnesses :-
(1) Muhammad Riaz, P. W. 2 (uncle of Mst. Parveen Akhtar) who had taken her to the Police Station for lodging the F. I. R. ;
(2) Lady Dr. Shahda Bokhari (P. W. 3) who had medically examined the prosecutrix but found no injuries on her person ; and
(3) Mst. Noreen Akhtar, P. W. 4 (real sister of the prosecutrix) who has stated that she had seen Arif (accused) taking Mst. Parveen Akhtar (prosecutrix) on a bicycle early in the morning on 24-4-1979 and that she (the prosecutrix) was putting on a burqa and was weeping. She tried to call them but the accused abused both Parveen and Nasreen (P. Ws.) and did not stop ;
(4) Dr. Sabir Hussain (P. W. 5) who examined the accused and found him to be fit to commit sexual intercourse ;
(5) Muhammad Nawaz (P. W. 6) who recorded the formal F. I. R. ;
(6) Abdul Hamid (P. W. 7) who verified the investigation ; and
(7) Anwar Hussain, A. S. I. (P. W. 8) who recorded the statement of Mst. Parveen Akhtar at mid-night between 24-25/4/1979 on the roadside.
4. The appellant-accused denied his guilt and pleaded that he had been falsely involved by the prosecutrix because she was of loose character ; her behaviour was not good and she used to quarrel with her husband constantly. One day he had gone to the house of Muhammad Qadeer with his wife Mst. Kausar when the latter told her brother to divorce his wife as she used to misbehave and that he (Arif accused) also joined her in giving this advice. He stated further that Mst. Parveen Akhtar told tier uncle Muhammad Riaz (P. W. 2) about this incident who concocted a story about the rape and got him falsely involved in this case through Mst. Parveen Akhtar (prosecutrix).
The appellant produced two witnesses in his defence. The first was Fazal Hussain (D. W. 1) the lambardar of Fatehgarh where the occurrence is stated to have taken place. He stated that he had not heard anything about the occurrence in question. The second defence witness was no other than Muhammad Qadeer (D. W. 2) the husband of the prosecutrix. He stated that the whole story was incorrect ; that his wife (the prosecutrix) had never gone to the house of the accused as alleged by her, nor had she gone to Ichhra in connection of any marriage. He stated further that she has gone to her parents' house on 22-4-1979 and before going to her parents she had made no complaint of any kind to him, nor had any assault been committed on her by the accused. He explained that ever since their marriage, he used to object to her standing at the outer door of the house or on the roof of the house but she did not desist and used to quarrel with him on this account. On one such occasion Mst. Kausar sister of Muhammad Qadeer (D. W. 2) and the appellant had also come there and had told him (D. W. 2) that she was not likely to mend her ways and therefore he should divorce her. He stated further that in order to avenge this Mst. Parveen Akhtar (prosecutrix) has falsely involved the appellant in this case.
5. The learned trial Court, however, believed the prosecution evidence and. Convicted the appellant and sentenced him to 3 years' R. I. And 5 stripes. He filed an appeal which was dismissed by the learned Additional Sessions Judge, Lahore on 26.4-1982. He then filed a revision which too was dismissed vide the impugned judgment. Thereafter, he filed a petition for Leave to Appeal whereupon Leave was granted to him on 7-6-1982.
6. We have heard the learned counsel for the appellant and the learned State counsel at considerable length and have gone through the entire evidence from end to end.
7. It is apparent from what has been stated above that the prosecution case rests mainly on the statement of the prosecutrix '(Met. Parveen Akhtar who is the only witness who has stated something about the alleged rape. It is not supported either by any recovery or any other evidence in support of the actual occurrence. We notice that the story given by her is ratherabsurd and does not stand to reason. Moreover, there are several contradictions in her statement made at the trial and the version given by her in the F. I. R. In the first place it is not believable that Mst. Kausar could have asked her husband (Arif appellant) to take her newly-wedded sister-in-law for site-seeing, all by himself. Secondly, it is also strange that although the appellant took the prosecutrix straight to his house at Fatehgarh in Moghalpura ; opened the lock of the front door of the house which was closed and she then quietly accompanied him inside. She has stated at the trial that when they , reached the house of Muharhmad Arif appellant, she was wearing a burqa and while he was opening the door she stood quietly by his side and when they entered the house she saw nobody therein ; after entering the house she took off her burqa ; she was wearing the same colourful clothes which she was wearing at the marriage ; the accused first took off her shirt during which process sleeves of the shirt were torn. (This shirt was, however, never produced before the Police).
When the accused took off her clothes he had threatened her with dire consequences and committed sexual intercourse with her several times during the night but she did not make any noise, because each time the accused had told her not to do so. She stated further that they went to sleep thereafter and got up early in the morning at Azaan's time. It was still dark at that time. The accused took her on his bicycle to lchhra. When they came out of the gall no one saw them, except a single person, who by a strange accident, happened to be her real sister living in the same vicinity, who would have us believe that she had come out at that early hour of the morning in order to take water, which she could have easily taken from her own have where there is a well as also water-tank. It is also strange that on the return journey from Ichhra to the house of Muhammad Qadeer (D. W. 2), not only the appellant-accused but even as his wife Mst. Kausar kept on beating the prose--cutrix asking her not to mention this affair to anyone. They left the prosecutrix at the house of her husband in Nasirabad (Shabdra), where she stayed for two days but did not make any mention of the matter to her husband: On the third day her father came and took her away to his own house. In the F. I. R. She has stated that her husband and mother-in-law also turned up to her father's house on the same evening but in the statement at the trial she has stated that they (her husband and mother-in-law) had come to her father's house after 2 days. As already mentioned she had been taken to lodge the F. I. R. By her uncle Muhammad Riaz (P. W. 12).
In her statement at the trial she has stated that she lodged the report at 12 noon, while according to the F. I. R. She had made a statement to Anwar Hussain, A, S. I. At about 12 o'clock mid-night; while on her way to tile Police station. Muhammad Riaz. P. W., deposed at the trial that when Mst.
Parveen Akhtar returned from . Her husband's house she started weeping bitterly and that there were scratch marks on her face. She told him the whole story and on the same night he took her for lodging the report, but strangely the lady doctor who examined her found no such injuries on her face. In his cross-examination Muhammad Riaz (P. W. 12) has denied that on that very, evening the husband and mother-in-law of Mat. Parveen Akhtar also came to her father's house. This clearly contradicts Mst. Parveen Akhiar who stated about their visit on the same evening in the F. I: R. As well as in her statement at the trial. The statement of Mst. Nasreen (P. W. 4) the sister of the prosecutrix is equally unbelievable. In the first place she had no business to come out in the street allby herself so early in the morning. According to the prosecutrix she (Mst. Nasreen Akhtar P. W. 4) was the only person present in the street at that time. She has tried to explain her presence by saying that she bad come out for taking water but admitted that there is a well and a water-tank in the haveli where she resides. She has stated that at that time the prosecutrix was wearing a burqa but she recognized her .Because of her clothes. Mst. Parveen Akhtar (prosecutrix) stated during her cross-examination that her sister Mst. Nasreen Akhtar was married 3/4 years . Prior to the occurrence but she had never visited her house even once. Mst. Nasreen Akhtar .Could not, therefore, be so familiar with her clothes so as to recognise Mat. Parveen Akhtar by a glimpse of the portion of her dress visible through the burqa. She tried to improve her statement later and stated that on . Seeing her Mst. Parveen Akbtar had lifted her burqa and she had thus been able to see her face. She stated further that Mst. Parveen Akhtar was weeping at that time. But strangely enough, as admitted. By her,, she never mentioned this to her own husband, nor informed her parents about this when she went to their house. She has stated that she was present in her parent's house when Mst. Parveen Akhtar came there (on 24-4-1979) but added that she (M;t. Parveen Akhtar prosecutrix) had come there in the company of her husband (Muhammad Qadeer D. W. 2), which is contrary to the version given by the prosecutrix herself.
In view of the aforementioned contradictions in the statement of the solitary witness of the occurrence, her sister Mst. Nasreen Akhtar (P. W. 4 her uncle Riaz (P. W. 2) and the absurd nature of the story given by her, o as well as the fact that her own husband has appeared as a D. W. And contradicted her,. We feel that the prosecution version is 'not worthy of reliance and therefore appellant's conviction cannot be based on the solitary statement of the above-mentioned prosecution witnesses.
We are of the view that the learned courts below have misread the evidence on the record and have drawn incorrect inferences therefrom.
We, therefore, accept the appeal and ,set aside the appellant's conviction. He shall be released forthwith if not required in any other case.