1. ' GHULAM MUJADDID MIRZA, J.-Muhammad Mansha, his brother Ghulam Hussain, father of Muhammad Ismail and sister Mst. Zahida Parveen were tried by the Additional Sessions Judge, Sahiwal ; Mansha on the charge of abduction and rape on Mst. Ghulam Fatima and for murdering Riaz Ahmad ; the rest for the murderous assault on Muhammad Amin and Saeed.
2. ' The trial Judge, by judgment dated 30th September, 1981, convicted Muhammad Mansha under sections 302, 366 and 376, P. P. C. He was sentenced to death plus fine, with one year's R. I. And three year's R. I., respectively. Ghulam Hussain and Muhammad Ismail were convicted under section 302/307/34, P. P. C. They were sentenced to imprisonment for life with a fine of Rs, 1,000 each and one year's R. I. Each, respectively. Mst. Zahida was acquitted.
3. ' The convicts have appealed to this Court. Complainant has filed revision for enhancement of sentence of the appellants under sections 366/ 376 and 307, P. P. C. Murder reference No, 182 of 1981 and Petition for Special Leave to appeal No, 33 of 1982 are also before us. All these matters shall be decided by this judgment.
4. ' The occurrence in which the accused were involved was alleged to have taken place on 25th December, 1978 at 1 p. m. At Chah Araranwala at a distance of hundred karams from Police Station, Gogera, Ghulam Mustafa lodged report (Exh. P. N.) at the aforesaid Police Station. It was recorded by M. H. C. Muhammad Nawaz at 7.30 p. In. On the same day.
5. ' Ghulam Mustafa's statement was that he and his first cousin Muhammad Yar were the residents of Chah Araranwala. His maternal cousins Muhammad Saeed and Riaz Ahmad sons of Sultan and Phuphizad Amin also resided there. Muhammad Yar left for Chak No, 9-G. D. On Thursday in connection with some demise.
6. ' On the day of occurrence at about 12 noon, Mst. Ghulam Fatima and Muhammad Akram, daughter and son of Muhammad Yar, were busy cutting fodder in the field. Muhammad Akram after cutting the fodder loaded the same on a donkey and came to his house whereas Mst.
7. Ghulam Fatima stayed in the field for toilet. While Muhammad Akram was unloading the fodder, Ghulam Mustafa, in his haveli, was feeding his cattle. All of a sudden, he heard the cries of Ghulam Fatima and ran towards that side. In the meanwhile, his cousins Muhammad Saeed, Riaz Ahmad sons of Sultan, Munammad Amin his Phuphizad also came there. They came to the door of the baithak and courtyard of Muhammad Mansha s/o Ismail. It was from the inside of residential house of Mansha that they could hear the cries of Ghulam Fatima. Ghulam Mustafa knocked at the door of the baithak whereas Muhammad Akram the door of the courtyard. Both the doors were closed from inside.
8. Nobody opened them. Riaz Ahmad all of a sudden jumped over the wall and got into the house of Mansha ; pushed the door, abused him and shouted. In the meanwhile Ghulam Hussain and Ismail, brother and father of Mansha, armed with sotas came there, Riaz nimbly opened the door of the courtyard. Then Muhammad Mansha also opened the door and with the hatchet he inflicted a blow on Riaz. He fell down and started bleeding. He was hit in the head. He became unconscious.
9. Ghulam Mustafa, Amin and Saeed fell on him. They thought that Riaz had died. At this Mst. Zahida d/o Ismail caught hold of Amin from his testicles. Muhammad Ismail and Ghulam Hussain also injured Muhammad Amin and Muhammad Saeed, Amin was hit in the head and left leg. Saeed also received injuries on the same parts of the body. In the meantime, Mst. Ghulam Fatima daughter of Muhammad Yar came from inside holding her loin cloth. She said that when she was passing in front of the house of Mansha, he caught her forcibly and dragged her inside the house.
10. Then he locked the door and raped her.
11. ' The occurrence was alleged to have been seen by Muhammad s/o Waryam, and Muhammad Hussain s/o Haji Karam Din Piracha.
12. ' Motive for this incident was that Ali Muhammad Phuphi-zad of Ghulam Mustafa had divorced Mst.
13. Kariman sister of Mansha accused 10 years prior to the occurrence. Mansha had a grudge over this.
14. ' Ghulam Mustafa, Muhammad Akram and Muhammad s/o Waryam took Riaz, Muhammad Saeed and Muhammad Amin to Civil Hospital, Gogera. The doctor was not available. So they proceeded to Civil Hospital. Okara whereform they obtained medico-legal reports. The doctor admitted Muhammad Saeed and Riaz in the hospital.
15. ' Ghulam Mutafa, Ghulam Fatima and Muhammad Saeed appeared as eye-witnesses. Prosecution also relied on the recovery of crime weapons alleged to have been used in this incident. The medical evidence consisted of the post-mortem report of the deceased and the medico-legal reports of the injured.
16. ' The appellants admitted their relationship inter se. Mansha admitted the factum of divorce to his sister. He also admitted that Ismail his father and brother Ghulam Hussain acted in the right of private defence. He said that his sister Mst. Zahida did not intervene but as a matter of fact she was being abducted and dragged by Riaz Ahmad, Amin and Saeed When questioned as to how he explains the injuries he said that Riaz deceased alongwith Saeed and Amin P. Ws. Trespassed into their house and abducted and dragged his sister Zahida. He tried to save the honour of his sister.
17. Thereupon Riaz, Amin and Saeed inflicted dang blows on him. The last blow was given on his head by Riaz and then in the right of private defence and to save the honour of his sister he caused one hatchet blow to the deceased.
18. ' Suffice it to observe, the appellants denied the allegations, pleaded not guilty and gave their own version of the incident. If need be, reference to their statements in detail shall be made later on.
19. ' Before discussing the contentions of the learned counsel for the appellant, we would first refer to the relevant evidence.
20. ' In this sequence, it is worthwhile to note that as already observed this occurrence was seen by Muhammad s/o Wayam and Muhammad Hussain Piracha, residents of the same village but they were not produced at the trial, ' To begin with, we start with evidence of Ghulam Mustafa, He repeated the same story which he told to the police in his statement_ before the trial Court. According to him, after Riaz had jumped over the wall and went inside the house of Mansha and after the door had been unchained, then Ghulam Mustafa, Saeed and Akram went inside the house. Still, the door of the residential room had been closed from inside. Mansha had done this. Ghulam Fatima was raising alarm. None opened the door. He said that Muhammad Yar and Hussain also reached the spot. Mansha then unchained the door. He had a hatchet with which he inflicted a blow on the bead of Riaz. Riaz fell down. Then Ismail and Ghulam Hussain who were armed with sotis came out of the Kotha. Ghulam Mustafa, Saeed and Amin fell on Riaz. He was then unconscious. Mst. Zahida Perveen also joined the accused party, Ismail and Ghulam Hussain gave soti blows to Saeed and Amir P Ws. While Zahida Perveen held Amin by his genitals. Then Mst. Ghulam Fatima came out of the room holding her loin cloth and said that she had been forcibly taken by Mansha and he raped her. Muhammad s/o Waryam and Muhammad Hussain s/o Karam also witnessed the occurrence.
21. ' Muhammad Saeed said that it was noon time. He and Amin were smoking hukka. They were present in their house when they beard alarm of Mst. Ghulam Fatima from the house of Mansha, at a distance of 10/15 karams. Saeed and Amin rushed to the house. Of Mansha. Riaz, Ghulam Mustafa and Akram had already reached there. Ghulam Mustafa was knocking at the door of the baithak of Mansha, It was locked from inside. Riaz knocked at the door from the side of the haveli. He then jumped over the wall and opened the door of the haveli, When. The door was opened, Saeed, Amin and Ghulam Mustafa went inside the haven. Just after two minutes. Muhammad Hussain and Muhammad Yar also arrived there. Riaz then knocked at the door of the room of Mansha. Mansha opened the door. He came out. He had a hatchet with which he inflicted a blow on the head of Riaz.
22. He was hit in the left-side. He fell down. Saeed, Mustafa and Amin fell over him in order to save him.
23. Mst. Ghulam Fatima also came out. She had her loin cloth in her hand.
24. ' The witness further deposed that when he and others were lying on Riaz, Ismail and Ghulam Hussain came from the adjoining kotha. They had sofas with them. Then they started inflicting blows to Saeed and Amin. Saeed was hit in the head, left arm and left knee. Amin was bit on the head, hand and foot. Mst. Zahida Perveen was also present. "She pulled the testicles of Amin P. W."
25. Saeed admitted that he alongwith Amin gave sota blows to Ismail and Ghulam Hussain but this was done in the right of private defence. The accused ran away. Ghulam Fatima told Saeed that Mansha had raped her.
26. ' Mst. Ghulam Fatima is the star witness in this case. She was the wife of Nausher Ahmad. Her statement is very important. According to her, it was noon time. She and her brother Muhammad Akram were going to their house on a she-donkey loaded with fodder which they had taken from their field. Ghulam Fatima staved in the field for toilet Akram went to his house with the donkey.
27. When she finished with the toilet she started for her house. When she was present near the house of Mansha, he caught hold of her; took her to his baithak and the dragged her from the baithak to another room in his house, Bot grappled, She was criminally assaulted. She raised alarm on which he relatives came there, She heard some one knocking at the door, The Mansha left her. He picked up a hatchet ; opened the door and came out. He was followed by Ghulam Fatima. She was holding her loin cloth. Riaz was standing there. Mansha inflicted a hatchet blow on his head. He was hit in the left side. He fell down. Then Ghulam Mustafa, Saeed, Amin, Akram and Hussain Piracha also came there. They saw the occurrence. Saeed and Amin laid on Riaz Ahmad who was lying injured. While Amin and Saeed laid on Riaz, Ismail and Ghulam Hussain inflicted soti blows. She also accused Mst. Zahida of holding Amin by his testicles.
28. ' The important aspect of her evidence is that she said that she was virgin at the time of occurrence.
29. ' Now, that we are at the evidence of Ghulam Fatima, we would like to discuss her medical examination.
30. ' On 26th December, 1978 at 6.25 p. m., Dr. Mrs. Farhat Athar, Senior Women Medical Officer Civil Hospital, Okara, examined her. She had no mark of injury on her person. Her examination revealed that she was a grownup girl young, well, built and had all the symptoms of a full-fledged youngwomai. Her pelvic examination revealed the Labia well-developed and apart ; pubic hairs were dark black not matted together ; Hymen and Forchette were old torn and she was found menstruating. The doctor said that according to the statement of the prosecutrix, it was the first day of her menses when she was examined. The doctor further observed that she had no mark of injury on her private part and could admit two fingers easily in vagina. She was not pregnant Two swa bs taken from her vagina were sent to the Chemical Examiner. Again, the lady doctor said that according' 'to Ghulam Fatima the sexual intercourse took place a day before her examination at 10/12 a. m. However, the lady doctor was of the view that the girl was a habitual case.
31. ' On 25th December, 1978, at 3 p. m. Dr. Safdar Ali, Senior Medical Officer, Civil Hospital, Okara examined Riaz Ahmad. He had an incised wound 2-i" x X bone deep on the left side of head parietal region, above the inner ends of left eye-brow.
32. ' Muhammad Saeed had a lacerated wound, one contusion mark and two abrasions. Muhammad Amin had a lacerated wound and an abrasion.
33. ' Post-mortem examination of Riaz deceased was conducted on 28th December, 1978 at 10.45 a. m.
34. He had the same injury which he doctor noticed while the was medically examined.
35. ' Ghulam Hussain and his father Isma il were also examined by the same doctor. The former had three lacerated wounds and an abrasion whereas the latter had a lacerated wound 1/2" x 1/4" scalp deep on the back of left side of head.
36. ' Learned counsel appearing on behalf of the appellants contended that the prosecution has not been able to prove its case beyond doubt. It was next ' contended that the mere injuries on the person of the two witnesses was not a guarantee of their being truthful witnesses especially when the appellant Mansha admitted to have hit Riaz in the exercise of right of private defence. Learned counsel further submitted that when the prosecution case is examined in juxtaposition with the defence version there will be no room for doubt that the version of the appellant is more probable and the incident took place in the manner in which the defence alleged and as alleged by the prosecution.
37. ' We shall first take up the statement of Mst. Ghulam Fatima. A portion of it has been referred to above but there remains yet a lot more to be examined. Her statement was recorded by the police on the day of occurrence at evening time. Before the trial Court she changed her stance materially.
38. When she was confronted with her statement under section 161, Cr. P. C. The defence did succeed to a great extent in proving that what she said before the police was materially different to what she deposed on oath before the trial Court. For instance, she stated before the police that Ghulam Mustafa, Amin, Saeed, Muhammad Hussain Piracha and Muhammad Yar were present at the place of occurrence but this was not recorded in Exh. D. A. Nor was the fact that Amin and Saeed laid on Riaz when he was injured, nor did she mention in Exh. D. A. That Ghulam Hussain and Ismail inflicted soti blows to them. Similarly, she admitted before the trial Court that she stated in Exh. D. A. That Mst. Zahida Parveen had held the testicles of Amin P. W. But it was not so recorded in her statement before the police. She did not even mention in her statement under section 161, Cr. P. C. That when she heard the knocking at the door she was released by Mansha. She stated that when she came out of the room she had her loin cloth in her hand and her brother Akram was unloading the green fodder at a distance of 10115 karams from the baithak of Mansha.
39. ' She said that she tried to get herself released from the clutches of Mansha when be lifted her from the land. Nevertheless she resisted while she was being raped. She went on trying to get herself free. She further deposed that first she was taken to the baithak, then to the courtyard and then to another room but she did not see Mst. Zahida, Ghulam Hussain and Muhammad Ismail in the courtyard while passing through the courtyard. She further said that while she was being raped, she struggled during which her back and lower parts of the body struck the ground yet she received no injury on her back. After she had been set free, she admitted to have cleaned her private part with the chadar which was not produced before the police though stained with semen.
40. The explanation given was that the police did not demand the same. She was then put the defence case but she denied that.
41. ' Ghulam Mustafa the first informant admitted that he was challaned under section 307, P. P. C. And 13-20-65, Mins Ordinance and those cases were pending and that Ghulam Hussain was a prosecution witness in the said cases, although according to the witness Ghulam Hussain deposed in his favour. He further admitted that 10 years ago. Ali Muhammad divorced Mst. Kariman sister of Mansha and that there were two young daughters and two minors from the second wife of Ali Muhammad. He further deposed that he did mention in Exh. P. N. That Muhammad Akram had arrived at the spot and had seen the occurrence It was not recorded nor was recorded that he was putting fodder to the cattle at a distance of 20 karams from his ahata.
42. ' Muhammad Saeed's statement before the trial Court was full of contradictions. He deposed that he stated in Exh. D. B. That Riaz, Mustafa and Akram had already arrived at the spot but it was not so recorded. Similarly, the fact of knocking at the door of the baithak by Mustafa was also not mentioned in Exh. D. B. It is unbelievable that a brother whose sister was being raped at a distance of 10/15 karams from him would stand stile and would make no effort to save her from the clutches of a man who wanted to ravish her.
43. Surprisingly enough, Akram though an important witness in this case, his name having been mentioned in the. Calendar of witnesses, was given up by the prosecution as unnecessary.
44. Similarly, two other independent witnesses whose names were mentioned in the F. I. R. And their presence was admitted by the first informant were also not examined.
45. ' On top of it, the version of Ghulam Fatima is hardly believable. The story she gave as to how she was criminally assaulted, and was taken from one place to another is not acceptable. She said that she was virgin before she was raped. This is belied by the medical evidence. The lady doctor said that she was used to sexual intercourse.
46. ' Moreover, Ghulam Fatima said that her chadar was stained with semen but the police did not take it into possession. This was an important piece of evidence. It would have provided necessary corroboration to the statement of Ghulam Fatima. The absence of this evidence case serious doubt on the prosecution case. The first informant and Muhammad Saeed cannot be treated as independent witnesses. They are interested.
47. ' Taking all the important aspects into consideration we are of the view that the prosecution evidence does not inspire confidence. It is unsafe to rely on such evidence to maintain conviction on the capital charge as well as other counts.
48. ' This appeal is accordingly allowed. The appellants are acquitted. They shall be set at liberty, forthwith, if not required in any other case.
49. ' Criminal revision filed by the complainant is dismissed. So is the position with P. S. L. A. Filed by Mst.
50. Zahida (acquitted accused) against the dismissal of her complaint. .