' The Sessions Judge, Faisalabad vide impugned judgment dated 18-2-1983 convicted Muhammad Ashraf and Muhammad Sardar alias Sardara of Zina-bil-Jabr under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each of them to undergo R.
1. For 10 years plus 30 stripes each. The convicts have challenged their conviction and sentences through the present appeal.
2. In support of its case the prosecution produced 8 itnesses. Lady doctor Nafisa Akhtar on 9-11-1981 medically examined Mst. Anwari Bibi and found the following :-
(1) Hymen broken tear old healed, admits freely index finger. Contusion both inner sides thigh 2 cm x 2 c.m. Each.
(2) ,Contusion back of upper chest.
(3) Contusion front of right of left shoulder.
(4) Contusion lower left back 2 cm x 1 cm each.
' The lady doctor also took vaginal swabs, sealed them into parcel and handed over the same to the police for sending them to the office of the Chemical Enaminer, Lahore. Subsequently on 8-2- 1983 supplementary statement of this lady doctor was recorded when she was cross-examined by the defence counsel. She has admitted that her report Exh. P. A. Does not contain any opinion that Mst. Anwari Bibi had been subjected to rape. The lady doctor did notice any blood or semen on the clothes of Mst. Anwari Bibi. It is further admitted by her that her report Exh. P. A. Was subject to the opinion of the Chemical Examiner's report of the vaginal swabs. M. H. C. Khalid Hussain (P. W. 2) on receipt of complaint Exh. P/B recorded the formal F. I. R. (Exh. P. B/I). Mst. Anwari Bibi (P. W. 3) is the complainant and victim in this case. It is deposed by her that she knew both the accused persons.
Muhammad Ashraf, accused lives in her Mohallah and his house is at a distance of 7 or 8 houses from her house Muhammad Sardar, accused also lives in the same Mohallah but at some distance.
She has four brothers named Siddiq, Rafiq, Rashid and Anwar. Siddiq is married and lives with his family in a different Mohallah at a distance of about a furlong from her house. Siddiq was employed in Koh-i-Noor Mills during the days of occurrence. Her father Mehr Din worked his Kohloo {{URDU TEXT}}(J.Lbir-) near his house. On 9th of Moharram at about 8/8-30 p.m. Her brother Rafiq told her that she should go to the house of her brother Siddiq and sleep there because Siddiq's wife was alone with her children as Siddiq had gone to work. Accordingly she started for the house of Siddiq alone. When she reached near the shop of Abdur Rahman alias Mana, sweetmeat vendor, she found a rickshaw standing there. When she passed by that rickshaw, Muhammad Ashraf, accused caught her, lifted her bodily and threw her into the rickshaw. Muhammad Sardar, accused started the rickshaw. She tried to raise an alarm, when Ashraf, accused told her that if she made a noise they would kill her. She also tried to come out of the rickshaw but the accused did not allow her to do so. They took her towards Siddiqia Mills which was a deserted place and they parked the rickshaw under a tree, Ashraf and Muhammad Sardar accused forcibly removed her Shalwar and Muhammad Ashraf committed Zina with her against her will and thereafter Muhammad Sardar committed Zina with her forcibly. They then told her that if she told anybody what had happened, they would kill her. She told them that they should leave her at the place from where they had brought her. They took her in the rickshaw and left her near the shop of Abdur Rehman alias Mana.
When they left her there she fell down there. While she was in that condition, Muzaffar Shah (P. W.) and another person took her to her parents house. At that time the father was not at home as he had gone to Sukheki in connection with a death. He returned home the next evening when she narrated .The whole incident to him. Thereafter she was taken to the hospital where she was medically examined by a lady doctor. It is stated by her that before that the accused persons had threatened her father that if he reported the incident to the Police he would be severally dealt with.
According to the complainant during the course of incident she received injuries on her thighs and other parts of the body. The complainant while going to the police station to report the occurrence, met S. H. 0 near the Gates of the Peoples Colony at Satiana Road, who recorded her statement Exh.
P. B. The complainant was subjected to lengthy cross-examination by the defence and she also was confronted with her statement recorded by the Police. In cross-examination it is admitted by her that when the accused persons had lifted and put her in the rickshaw near the shop of Abdur Rehman it was dark and before that she had not known the accused persons. Her father had returned home at about 2-00 p.m. On the following day, of the incident. She denied the defence suggestion that the incident had occurred on the 10th of Muharram but she was positive that it was the 9th of Muharram. She was medically examined on the 3rd day of the incident. The house of her brother Siddiq was 10/11 houses away from the shop of Abdur Rehman. It is further admitted by her in cross-examination that during the days of occurrence they had formed a committee and the arrangement was that each member of the committee would get the Ration Cards of the other members and would obtain the ration quota of sugar for all those cards. It is admitted by her that there had been a dispute on whether the father of Sardar accused had obtained sugar against the Ration Cards but that dispute was between Sardar accused's father and one Siraj. She had denied the defence suggestion that Mst. Naziran and Siraj had said they should report against Sardar accused. It is further denied by her that she had told her brothers that she had gone to see Tazia and no such incident had occurred. It is admitted by her that Siddiqia mosque is quite near the shop of Abdur Rehman sweatmeat vendor and that Siddiqia Mills is on the same road as the Siddiqia mosque. After Siddiqia mosque comes a graveyard and then come the Siddiqia Mills and the distance between the Siddiqia Mills and Siddiqia mosque is about 100 yards. It is admitted by her that in front of Siddiqia Mills there is Pan Cigarette shop and that shop is run by Munir. The accused persons had not covered their faces and they had not taken her inside the Siddiqia Mills. It is further deposed by her in cross-examinasion that before that neither of the accused persons had ever tried to talk to her or tease her. She denied the defence suggestion that her father had demanded Rs, 20,000 from the accused persons for not prosecuting the case. She denied the defence suggestion that the accused had not committed Zina with her and that she had falsely implicated them at the instance of Siraj and Mst. Naziran. She was re-called and again cross- examined by the defence but nothing favourable to the accused could be brought out in cross- examination. Dr. Abdul Mannan, Radiologist (P. W. 4) on 10-11-1981 made X-Ray examination of Mst.
Anwari Bibi, prosecutrix. In the opinion of the doctor her age was between 14 and 15 years. Mehr Din (P. W. 5) is the father of the prosecutrix Mst. Anwari Bibi. At the relevant time he had gone to Sukheki.
On his return home on the 10th of Muharram his daughter Mst. Anwiri Bibi told him that the accused persons had forcibly taken her in a rickshaw to a place near the Siddiqia Mills and there they had subjected her to sexual intercourse against her will. On the same day he took her to the hospital and had her medically examined. The next day at about 8-00 p.m. He left for the police station for reporting the incident when the S. H.
0. Met them near Satiana Road. It is further deposed by this witness that before the report Tufail father of Muhammad Sardar accused and Hakim Muhammad Din father of Muhammad Ashraf, accused and many other persons had approached him for not reporting the incident to the Police.
Said Tufail and Hakim Muhammad Din bad also threatened him that if he tried to report the matter they would shoot him. In cross-examination this witness had admitted that he had not appeared before the police to make a statement and he had made no statement before the police. This witness had denied defence suggestion that he had demanded Rs, 20,000 from the father of Muhammad Sardar, accused for compromise. It is further denied by him that he had come to know that Sardar, accused was innocent. He was also re-called and again cross-examined by the defence. He has admitted that when his son Siddiq is not at home his daughter used to go and sleep there. It is submitted by him that Mst. Naziran and her sons were on visiting terms in his house. Ashraf and Sarwar sons of Abdul Sattar also visited his house. He however, denied the defence suggestion that people objected to their visits for his wife had died. He further denied the defence suggestion that people objected to Mst. Naziran's visit to his house. He further denied the defence suggestion that he had falsely implicated Muhammad Ashral, accused because he was an apprentice with Muhammad Sardar, accused, Muhammad Rafiq (P. W. 6) is the owner of rickshaw No, 5795-FDE. He has stated that at the time of present incident Muhammad Sardar, accused used to ply that rickshaw as his employee. The police haJ taken the rickshaw into possession from his house vide memo. Exh. P. D. 1 attested by him. Ghazanfar Ali Shah (P. W. 7) is a Wajtakkar. It is deposed by him that on the 9th of Muharram in the year 1981 he was returning after attending a Majlis at about 8/8-30 p. m. Iqbal (P. W.) also joined him on the way. When they reached near the shop of Abdur Rehman milk vendor, a rickshaw came there from the side of Siddiquia Masjid and stopped there. Ashraf and Sardar accused came out of the rickshaw and brought Mst. Anwari Bibi out of the rickshaw. She was crying at that time. They started making inquiry from her, as to why she was crying. In the meantime the accused persons started rickshaw and went away. Mst. Anwari Bibi told them that the accused persons had committed Zina with her.
These witnesses took Mst. Anwari Bibi to her house. In cross-examination it is admitted by tnis witness that no Majlis was held in Siddiquia mosque on 9/10th of Muharram. He denied the defence suggestion that Ghazanfar, Shahbaz, Talib Abbas, Khadim Hussain and the witness on the one side and Muhammad Sardar accused on the other side were proceeded against under section 107, Cr.
P. C. The witness had denied the defence suggestion that Mehr Din and Mst. Anwari Bibi did not enjoy good reputation in the Mohallah. The witness did not know that the sons of Abdul attar visited the house of Mehr Din and people objected to it. The witness has further denied the defence suggestion that he had seen nothing and that he had falsely deposed on account of enmity with Sardar, accused. It is further admitted by this witness that Muhammad Ashraf, accused is an apprentice driver with Muhammad Sardar, accused. Tufail Ansari is the member of the Union Council of that area and there is a common wall between the house of Ghazanfar Ali (P. W.), the house of Muhammad Sardar accused and the latter had demolished that wall for the reconstruction of his house and he had demanded money from him for his share of the wall, but the witness had refused saying that he had no money at that time and subsequently.He had paid the money. It is further admitted by him that it was on the interpression of Tufail, Municipal Councillor that he had paid Rs, 900 to him. He, however, denied the defence suggestion that on account of this grouse against Muhammad Sardar accused that he was falsely deposing against him and Ashraf accused. A. S.-I Khurshid Alam (P. W. 8) is the Investigating Officer in this case. On 10-11-1981 at about 10-30 p. m. He was patrolling the area when at Satiana Road Mst. Anwari Bibi complainant accompanied by her father Mehr Dinmeat him and she made a statement (Exh. P. 8) before him. She also produced report of medical examination before the Police Officer. The next day the Police Officer inspected the spot arrested the accused persons on 2-11-1981 and got them medically examined. Rafiq (P. W.) produced before him -rickshaw No, 5795-FDE and he took the same into possession vide Exh. P. D. After completing the investigation he challaned the accused persons. In cress-examination he denied the defence suggestion that he had found the accused persons innocent. However, it is admitted by him that about 15 or 20 persons had appeared before him in support of the innocence of the accused persons. He further denied the defence suggestion that he had falsely challaned the accused persons to oblige the complainant party.
3. The accused persons in their statements recorded under section 342, Cr. P. C. Denied the prosecution allegations. Muhammad Ashraf, accused has stated that he did not know Mst. Anwari Bibi at all and the story was untrue. However, he admitted that Rickshaw No, 5793-FDE was owned by Muhammad Rafiq (P. W.) and was driven by Muhammad Sardar, accused as an employee of said Rafiq during the days of incident and Ashraf accused was the apprentice of co-accused Muhammad Sardar. When asked why the case was made against him. Ashraf accused stated as under :- "Muhammad Sardar had enmity with Ghazanfar All Shah (P. W.) Mehr Din (P. W.), Siraj Din and Mst.
Naziran and since I was apprentice driver with Muhammad Sardar accused, I have been falsely implicated to prevent me from helping him in the prosecution of this case."
Muhammad Sardar, accused made a similar statement denying the prosecution allegations. When asked why this case made against him he stated as under :- "I had a dispute with Ghazanfar Ali Shah P. W. Over a common wall between our houses and he was inimically disposed towards me. Mehr Din and his daughter Mst. Anwari Bibi are bad characters.
Mst. Anwari Bibi was intimate with the sons. Of Abdul Sattar and as we objected to their relations Siraj Din, Mst Naziran, Mehr Din and Mst. Anwari Bibi have joined together to falsely implicate us."
' The accused persons produced 5 witnesses in defence, Muhammad Munir (D. W. 1) was at the relevant time the Assistant Officer, Kohinoor Mills, Faisalabad. According to him all production departments and offices of the Kohinoor Textile Mills remained closed on 7/8th November, 1981 on account of Asmara-e-Muharram. In cross-examination however this witness admitted that the employees of the Mills concerned with the Watch and Wards remained on duty even on public holidays. Rashid Ahmad (D. W. 2) claims to be a neighbour of Mehr Din (P. W.) as his house is at a distance of 2-3 houses from Mehr Din (P. W.). According to this witness after the registration of this case a Punchait was constituted in the Mohallah and he was a member of that Punchait. It was decided that Muhammad Tufail and Hakim Muhammad Din should give Rs, 10,0,0 to Mehr Din if the accused were guilty. Mehr Din however backed out and did not agree to the decision and he demanded more than Rs, 10,000 but as the accused party was not in a position to pay more than Rs, 10,00) the matter was dropped. In cross-examination this witness has admitted that the Punchait was constituted to bring out a compromise between the parties and it was in that connection that Rs, 10,000 was placed with Fateh Muhammad. It is further admitted by this witness that his thumb-impression was obtained on a paper in connection with this case but did not know that it was on an application to the Martial Law Authorities that the accused persons had committed crime. Muhammad Afzal Raja (D. W. 3) is the Municipal Councilor, Municipal Corporation, Faisalabad and lives near Siddiquia Mills. According to him there are residential houses all around Siddiquia Mills. According to his knowledge no incident of Zina-bil-jabe or Zina had occurred near Siddiquia Mills in the month of Muharram, 1981. It is further deposed by him that there is a mosque in the Saddiquia Mills where Majlas-e-Shabina is held.
' According to this witness he appeared before the Police during investigation in this case and made a statement in support of the defence. Fateh Muhammad (D. W. 4) has deposed that a month after the registration of the case a Punchait consisting of as many a 50-60 persons collected at the house of Mehr Din (P. W.) and there it was decided that Hakim Muhammad Din and Muhammad Tufail fathers of the accused persons would give proof of the innocence of the accused persons and as a guarantee they would place Rs, 10,000 with him (the witness).
Accordingly he was given Rs, 10,000 and the matter was adjourned for a week. On the 5th day Mehr Din (P. W.) met him and told him that decision was not acceptable to him. It is further stated by this witness that Hakim Muhammad Din and Tufail gave them Nian that the accused persons were innocent. The witness claims to have appeared before the police and told them that the accused persons were innocent. In cross-examination this witness had admitted that his wife is sister of Abdul Rashid (P. W.) who was also a member of the Punchait. He denied the suggestion that they continued with the proceedings in order to favour the accused persons and that the real object of the Punchait was to bring about a compromise between the parties. Abdul Rehman (P. W. 5) runs shop of milk and Burfi in Siddiqia Chowk, Peoples Colony No, 2, Faisalabad. According to him he keeps his shop open till about 10-11 p. m. Every day. On the 9th and 10th of Muharram 1981 his shop remained open as usual till about '10 p. m, It is further deposed by him that on 9-10 of Muharram, 1981 no incident of any girl having been lifted by rickshawala had occurred in front of his shop. The road in front of his shop remains busy throughout the night. At a distance of 10-20 yards from his shop is Saddiquia mosque where on the 9th of Muharram a Jalsa was held. On the 9th and 10th of Muharram, 1981 also there was a Jalsa in the said mosque which continued till about 12 in the night.
The witness claims to have appeared before the police and made a statement in support of the defence. In cross-examination this witness has stated that he had appeared before the police on the 2nd or 3rd day of the alleged incident and his statement was recorded by the police. He denied the suggestion that he had not appeared before the police at all and that he had gone to hear Majlis after closing his shop on the day of occurrence. He volunteered that he is a Sunni. He admitted that he knew the accused persons very well. Both are rickshaw drivers and they also some times parked their rickshaw before his shop. He, however, denied the suggestion that his shop was closed at time of incident and that he was out to help the accused persons because they are men of bad reputation. After the registration of this case the witness had not made any complaint to any authority in support of the accused persons.
4.. The trial Court convicted and sentenced the accused persons as mentioned above.
5. I have beard at length the counsel for the parties and have also perused the entire material available on the record.
6. It is vehemently contended by Mr. All Ahmad Awan the learned counsel for the appellants that there is inordinate and unexplained delay in lodging the F. I. R. In reply the State counsel and the counsel for the complainant have argued that in the circumstances of the case the delay stands fully explained. According to the prosecution the father of the prosecutrix Mehr Din (P. W.) was not present in the village at the relevant time. In the absence of their father, his children could not decide whether the matter is to be reported to the police or not. It is not denied that in our society in a case of this type the parents of the prosecutrix have to think seriously whether the report should be lodged with the police or not because an allegation of Zina adversely affects both the families of the victim and the accused. In the instant case there is another circumstance which is relevant in this behalf. The accused party from the very beginning was putting pressure for the compromise and even a Punchait was convened for such settlement, Mst. Anwari prosecutrix as well as her father Mehr Din have clearly stated that the accused party had approached them not to lodge the report with the police. In these circumstances I find that the trial Court has rightly held that the delay in lodging the F. I. R. Has been satisfactorily explained.
7. The main question which arises for consideration in this case whether the occurrence as alleged by the prosecution at all took place or not. According to the learned defence counsel no such occurrence took place and reliance in this behalf is mainly placed upon the statement of Abdul Rehman (D. W. 5) in front of whose shop the prosecutrix was allegedly lifted in rickshaw and then subjected to Zina. This defence witness no doubt ha deposed that on the night of occurrence his shop was not closed but remained open as usual upto 10-11 p. m. And no incident of any girl having been lifted by rickshawala, had occurred in front of his shop. Now there are two versions-one alleged by the prosecution that Mst. Anwari Bibi was furcibl lifted in the rickshaw in front of the shop of Abdul Rehman (D. W.) and B the other complete denial by the defence. In such a situation the Court has t apply the principle of sifting of evidence in order to find out the truth out of the falsehood. Mst..Anwari Bibi is the victim in this case. According to her birth certificate (Exh. P. C.) her date of birth is 25-1-1969. According to this be age on the day of occurrence would be 12 years 9 months and 13 days. She was also medically examined on 10-11-1982 by Dr. Abdul Mannan, Radiologist, who found her age between 14-15 years. Thus, at the time of occurrence she was of tender age. The defeoce has not brought any material on the record to show her enmity or motive to falsely depose against the accused persons in a case where her own chastity is at stake. It is contender by the learned counsel for the complainant that in our society howsoever poor or low a person may be he would not involve the chastity and honou of his unmarried daughter/sister unless it is true or there is strong motive or serious enmity between the parties. The defence has not been able to point out any such enmity or motive on the part of the complainant or her father to falsely implicate the accused persons. This inference is further supported by the circumstances of the case. It is the defence case that there was Punchait convened for the settlement of the dispute in this case. In other words there was a move for a compromise. The mere fact there was such a move between the parties, is sufficient indication that such occurrence hay taken place otherwise there would be no justification for any compromi or convening a Punchait, etc. Further, the trend of cross-examination of the prosecutrix also indicates that the defence was not denying the occurrence. It was suggested to Mst. Anwari Bibi, prosecutrix that the incident had occurred on the 10th of Muharram and not on the 9th of Muharram an alleged by the prosecution. Further, she was asked in cross-examination that her father had demanded Rs, 20,000 from the accused persons for not prosecuting this case. This is a clear indication that the defence was not denying the occurrence.
8. If no occurrence had at all taken place, as suggested by the defence, then accused persons were falsely dragged into this case. It is not denied that if there had been any substance in such allegation, the higher authorities could redress the grievance of the accused party and at least the investigation could be changed and entrusted to some other independent agency likes C. I. A. The record however is silent whether the accused party had taken any such step in that direction or not. Thus, even the conduct of the accused party goes against them.
9. It is not disputed that Mo. Anwari Bibi was subjected to sexual intercourse at the relevant time.
Her medical examination coupled with the report of the Chemical Examiner has established this fact. According to the prosecution she was unmarried at that time. The defence suggestion that she was a girl of easy virtue and might have been subjected to sexual intercourse by someone else is not believable. The complainant party will have no soft-corner for letting off the real culprit and falsely involving the present accused persons. It is not disputed that in this age of awakening substitution is rather difficult.
10. I have given my anxious consideration to the defence plea but find no substance in it. As mentioned above Muhammad Sardar accused in his statement recorded under section 342, Cr. P.
C. Has alleged that he had a dispute with Ghazanfar Ali (P. W.) over a common wall between their house and he was inimically deposed towards him. Ghazanfar Ali (P. W.) in his statement has admitted that there is a common wall between his house and the house of Muhammad Sardar, accused and that Muhammad Sardar, accused had demolished that wall for the construction of his house and be had demanded money from him for his share to the wall but first he had refused saying that he had no money at that time, however subsequently Ghazanfar Ali (P. W.) had paid that money i. e. Rs, 900 on the intercession of Tufail, Municipal Councillor. He has categorically denied that on account of this grouse against Muhammad Sardar accused he falsely, deposed against the accused persons. Further it is highly unbelievable that Mehr Din (P. W.) in order to oblige Ghazanfar Ali (P. W.) would falsely involve the accused persons in a case where the chastity and honour of his own urmarried young daughter would be at stake. No such dispute is alleged against the other accused Muhammad Ashraf. Similarly, there is no substance in the allegation that Mehr Din (P. W.) and his daughter Met. Anwari Bibi are bad characters and she was intimate with the sons of Abdul Sattar and as the accused had objected to their relations, Siraj Din Mst. Naziran and Mst. Anwari Bibi had joined together to falsely implicate them. This is a general and vague type of allegation having no direct bearing with the present occurrence. If the sons of Abdul Satter had committed the present occurrence, the complainant party could not have any soft corner for them to allow them to go scotfree and falsely implicate the present accused persons. I have also considered the statements of the D. Ws. Munir (D. W. 1) has admitted that all production departments and o ti aces of the Kohi-Noor Textile Mills remained closed on 7th and 8th of November, 1981 on account of Ashoora-eMuharram. He however in cross-examination has admitted that the employees of the Mills concerned with the Watch and Ward remain on duty even on public holidays. The defence has not point out in what particular department of the Mills Siddiq brother of the prosecutrix was employed whether in the Watch and Ward Department or in the Production Department. Rashid Ahmed (D. W. 2) has stated that after the registration of the case a Punchait was constituted in the Mohallah and he was a member of that Punchait. It was decided that Muhammad Tufail and Hakim Muhammad Din should pay Rs, 10,000 to Mehr Din, if the accused were guilty.
' However Mehr Din backed out and did not agree to the decision and demanded more than Rs, 10,000 and as the accused party was not in a position to pay more than Rs, 10,000, the matter was dropped. Muhammad Afzal Raja (D. W. 3) is the Municipal Councillor of Faisalabad Municipal Corporation and lives near Siddiquia Mills, Faisalabad. To his knowledge no incident of Zina-bil- Jabr or Zina had occurred near Siddiquia Mills in the month of Muharram 1981. Fateh Muhammad (D. W. 4) has stated that a month after the registration of this case a Punchait consisting of as many as 50-60 persons collected at the house of Mehr Din and it was decided that Hakim Muhammad Din and Muhammad Tufail fathers of the accused persons would give proof of the innocence of the accused persons and as a guarantee they would place Rs, 10,000 with him.
Accordingly he was given Rs, 10,000 and the matter was adjourned for a week. On the 5th day Mehr Din met him and told him that the decision was not acceptable to him. Hakim Muhammad Din and Tufail gave the Nian that the accused persons were innocent. Abdul Rehman (D. W. 5) has stated that he keeps his shop open till about 10/11 p. m. Every day and on the 9/10th of Muharram, 1981 the shop had remained open as usual till about 10-00 p. m. It is further stated by him that on 9th or 10th no incident of any girl having been lifted by rickshawala had occurred in front of his shop. After taking into consideration the relevant facts and circumstances of the case I am satisfied that the occurrence did take place as alleged by the prosecution and the defence plea is totally false and highly unbelievable.
11. Alternatively it is contended by the learned defence counsel that solitary statement of Mst.
Anwari Bibi prosecutrix is not sufficient to maintain the conviction of the appellants. It is true that the only direct evidence regarding Zina is that of the victim, Mst. Anwari Bibi. No particular number of witnesses is prescribed by the Evidence Act to establish a particular fact. It is the quality and not the quantity of witnesses which matters. In the instant case as observed above the defence has not shown any enmity or motive on the part of Mst. Anwari Bibi to falsely involve the appellants in this case. It is a case of Zina committed with her. She would, therefore, be most natural and important witness for such offence. Her statement is corroborated by her medical examination and the report of the Chemical Examiner. No doubt her M.L.R. Is silent regarding the commission of offence of Zina but the mere perusal of her medical examination is sufficient to show that Mst.
Anwari Bibi was subjected to recent sexual intercourse.
12. The next question which falls for consideration is about the nature of the offence committed by the accused persons. According the learned counsel for the State it is a case of Zina-bil-Jabr falling unde subsection (3) of section 10 of the Ordinance. On the other hand th alternative plea of the defence counsel is that offence, if any, falls unde subsection (2) of section 10 of the Ordinance, being a simple Zina with consent. I am inclined to agree with this defence plea. The first circumstance pressed into service by the defence is that parking rickshaw at that late hour in front of the shop of Abdul Rehman when the shop was closed and going of the prosecutrix there, was arranged meeting and not a mere chance. Although Mst. Anwari Bibi has alleged that when she was caught by the accused she was threatened not to make noise otherwise she would be murdered yet even her subsequent conduct shows that she was a consenting party. When she was placed in the rickshaw she raised no alarm or otherwise made any attempt to run away in order to save herself from the clutches of the accused persons who were not alleged to be armed with any deadly weapon like pistol, etc. After the commission of the offence her request to leave her at the same place in front of the shop of Abdul Rehman (D. W.) is also an indication which supports the inference of consent otherwise the accused persons after committing sexual intercourse would have run away leaving her there. If the shop of Abdul Rehman (D. W.) was closed then there could be no justification for the accused persons to stand in front of that shop with their rickshaw. Their standing with their rickshaw in front of the shop is also an indication that it was an arranged affair.
Even after leaving her in front of the shop of Abul Rehman the prosecutrix did not raise any alarm to attract other people but it was due to the presence of Ghazanfar Ali (P. W.) and Iqbal (given up P.
W.) that she had to narrate this incident to -them. It is suggested by the learned defence counsel that if these Wajtakkar witnesses had not reached the place of occurrence and had not seen Mst.
Anwari Bibi there with the accused persons, she perhaps would not have disclosed this affair to anyone. It seems that because the Waj-takkar winesses had seen her in that position, she in order to save her own skin raised the plea of Zina-bil-Jabr against the accused persons. After taking into consideration the facts and circumstances of the case I have reached the conclusion that Mst.
Anwari Bibi was a consenting party and consequently the offence would fall under subsection (2) of section 10 of the Ordinance.
13. The learned deferce counsel has also pointed out certain discrepancies and contradictions in the statements of prosecution witnesses. However such discrepancies and contradictions are of minor nature which do not affect the main issue involved in the case. The defence counsel further tried to raise some other minor points which he did not seriously argue and, therefore, need not be discussed.
14. For the foregoing reasons I alter the conviction of the appellants from subsection (3) to subsection (2) of section 10 of the Ordinance and! Reduce the sentence to 5 years' R. I. Plus 15 stripes.
15. This appeal stands disposed of in the above terms.
Conviction and sentence altered.