Muhammad Hussain son of Haji Muhammad who at the the of occurrence was said to be 20 years of age, is convicted by the to Courts below for offences under sections 451 and 354, P. P. C. For having criminally assaulted Mst. Razia Begum, a dumb girl of about 16 years with a view to outraging her modesty. Upon both counts lie was awarded the sentence of six months rigorous imprisonment and five stripes of whipping.
Muhammad Hussain has filed this revision application from jail questioning the legality of his conviction and sentence.
2. T he prosecution case, shortly stated is that at about digarwela on 22-2-1964 the petitioner and his cousin Ghulam Hussain who has been acquitted by the learned Sessions Judge jumped into the house of Mst. Razia Begum by climbing over the common wall which separated their houses. No sooner they entered the house of Mst. Razia they are alleged to have assaulted her with a view to outraging her modesty. During the course of struggle Mst. Razia Begum is alleged to have bitten the petitioner and in the process also suffered bruises and scratches. The occurrence is alleged to have been witnessed by the minor brother of Mst. Razia Begum namely Muhammad Yusaf and both of them are said to have raised alarm which attracted the attention of their father, complainant Muhammad Aslam at a distance of 50-60 yards from his house when he was returning from duty. He therefore rushed to his house and when he entered the compound after opening the door, the petitioner and his co-accused took to their heels jumped over the boundary wall and decamped. P. Ws. Mst. Razia Begum and Muhammad Yusaf who were found by hint crying near the door informed him of .The details of occurrence and thereafter he is alleged to have travelled to Bhakkar Police Station and lodged the F: I. R. The F. I. R. Was recorded by A. S. I. P.
Ghulam Muhammad (P. W. 8) who also investigated the case and later challaned the accused in the Court of First Class Magistrate, Bhakkar.
The petitioner and his co-accused both denied the version of the prosecution. While the acquitted accused Ghulam Hussain completely denied the accusation the petitioner in his statement under section 342, Cr. P. C. Stated that while he and P. W. Muhammad Yousaf were playing in the street the latter abused him upon which he gave him a slap and he started crying. After hearing the cries of Muhammad Yousaf P. W. Mst. Razia Begum who is the real sister of Muhammad Yousaf rushed to the street started struggling with him and in the process bit him. In support of this version the petitioner produced his own aunt Mst. Bakht Bhari as D. W. 1 and one Ghulam Muhammad Machhi a resident of the locality as D. W. 2. .
3. From the narration of these facts it is clear that. The occurrence in this case is not disputed.
Therefore the only question which falls for determination is as to which one of the to versions is believable.
In support of its case the prosecution relied upon the evidence of P. W. Muhammad Aslam his daughter Mst. Razia Begum and his son Muhammad Yousaf. It also relied upon the medical evidence and the recovery of the broken bangles from the compound of his house.
4. I have gone through the evidence on record and the judgments of the to Courts below with the assistance of the learned counsel for the State. By examining the evidence of the P. Ws. I am not inclined to believe them not because that they are inter-related beet. Because their evidence is unnatural.
The prosecution case is that the parties are next door neigh--bours their houses being divided by a common wall. From this the prosecution attempted to establish that the petitioner had the opportunity to satisfy his lust arid no sooner he found that Mst. Razia Begum and her minor brother Muhammad Yousaf were alone in the house then he along with the co-accused jumped over the wall and criminally assaulted Mst. Razia Begum with a view to outrage her modesty. The admitted position, However, is that the houses of the parties arc situated it a well inhabited Mohallah in which there are many other houses occupied by the people. It is in this background that the evidence of the P. Ws. Would have to be scrutinized to see if they can be believed.
Apart from the discrepant testimony of the P. Ws to which I would refer a little later, I would first deal with the evidence of P. W. Muhammad Aslam. His evidence before the trial Court was that at about Digarwela on the day of occurrence he was returning from the duty when he heard an alarm at a distance of 50-60 yards from his house. He therefore rushed towards his house and when he opened the door he saw the petitioner and his co-accused took to their heels and decamped. This being the substance of his evidence it is clear that before be heard the alarm the petitioner and his co-accused must have already remained engaged in molesting P. W. Mst. Razia Begum for some-- the and further that Mst. Razia Begum must have been raising an alarm in protest. If this be so then it is difficult to believe that no one from the surrounding houses should have been attracted to the wardat if for no other reason at least as a matter of curiosity. Seen-in this contest the very foundation of the prosecution case appears to be doubtful. Particularly this appears to be so when notice is taken of the evidence of P. W. Muhammad Aslam that after he heard the alarm at a distance of 50-60 yards and rushed to his house he not only found the petitioner and his co- accused still engaged in molesting his daughter but also that no one from the adjoining houses was attracted to the wardat. The other reason for which the evidence of P. W. Muhammad Aslam appears to be doubtful is that he happened to be returning from his duty just about the the when the petitioner and his co-accused were criminally assaulting his daughter. However by this I do not mean that this can never happen but in the peculiar circumstances of. This case it was the burden of the prosecution to prove the duty hours of P. W. Muhammad Aslam (who was employed as a chowkidar in a local office) to show that there was nothing abnormal about his returning from duty when he heard the alarm. In this respect there is no evidence on record and consequently I cannot but hold that Muhammad Aslam was only a chance witness. In support of this conclusion reference may be made to the evidence of P. W. Muhammad Yousaf according to whom no alarm was raised by him and his sister when the petitioner and his co-accused were engaged in the commission of the crime as they had been threatened with death.
5. I would now refer to the discrepancies in the evidence of P. W. Muhammad Aslam. In cross- examination he stated that when he reached his house P. Ws. Muhammad Yousaf and Mst. Razia Begum both informed him the latter by gestures, that the accused had kissed her, embraced her, held her breasts and had attempted to open her nala but he had made no mention of these facts in his police statement with which he was duly confronted. Similarly in the F. I. R. He had stated that when he entered his house he found P. Ws. Muhammad Yousaf and Mst. Razia Begum crying near the door but in his examination-in-chief in the trial Court he stated that he had found Mst. Razia Begum lying on the, ground and his son Muhammad Yousaf standing by her almost frozen due to fear. Surely these discrepancies, in the contest of this case cannot be said to be trivial.
6. The evidence of P. W. Mst. Razia Begum and Muhammad Yousaf also does not advance the case of the prosecution. So far as Mst. Razia Begum, is concerned the learned trial. Judge did not record her gestures by which she conveyed her story and therefore it is difficult to appreciate his conclusion. In any case these to P. Ws. Cannot be believed as their evidence is in conflict with the evidence of their father. I have already pointed out that P. W. Muhammad Aslam had not mentioned in his police statement that Muhammad Yousaf and Mst. Razia Begum had informed him that the accused had kissed her, embraced her, held her breasts and attempted to open her nala and yet he deposed to these facts in his cross-examination. The facts that he had clearly told lies is proved the evidence of Dr. Miss Surayya Jabin according, to whom she had found no marks of violence on any of these parts of Mst. Razia Begum.
7. Considering the over all effect of the evidence of the P. Ws. I am clear in my mind that the prosecution has not only failed to prove its case but also that the evidence which was adduced supports the defence version. As already noted the petitioner produced to witnesses namely Mst.
Bakht Bhari D. W. I and Ghulam Muhammad Machhi as D. W.
2. The learned trial Judge disbelieved both on the ground that Mst. Bakhat Bhari was the aunt of the petitioner and P. W. Ghulam Muhammad had not appeared before the police. This reasoning of the learned trial Judge when seen in the context of the prosecution case and the medical evidence on record seems to be erroneous. According to Dr. Muhammad Latif P. W. 7 he had examined the petitioner and found upon his right forearm to scratches each measuring -- x 1/8". If the version of the prosecution was true it would be difficult to believe that the petitioner would only suffer these to minor scratches on account of the long struggle in which he and his co-accused were engaged with Mst. Razia Begum with a view to opening her nala. Similarly the shirt which Mst. Razia Begum was wearing should have been torn but there is no evidence on record to show that this bad happened. Under these circumstances there was no plausible reason upon which the D. Ws. Should have been disbelieved as their evidence is supported by the medical evidence.
8. The learned trial Judge seems to have laid much emphasis on the recoveries of the broken bangles from the compound of the house of Mst. Razia Begum but he appears to have omitted to notice that the statement of the petitioner was not recorded by the police during the course of investigation. Had his statement been recorded the petitioner would have informed the Investigating Officer that the occurrence had taken place in the street and consequently the Investigating Office would have inspected the wardat to look among others for the broken bangles of Mst. Razia. I have searched the original record of this case with the assistance of the learned counsel for the State and have not been able: to find the police statement of the petitioner. In these circumstances no reliance could be placed upon the pieces of broken bangles recovered from the house of Mst. Razia Begum.
9. In view of this discussion this revision application is allowed the convictions and sentences of the petitioner are set aside and it is ordered that if in custody he shall be released forthwith unless required in some other case.