This criminal appeal filed by Yaqoob and Rajab appellant is directed against the judgment, of Mr. M. S. H. Qureshi, Ses--sions Judge, Hyderabad, dated 30-9-1968 by which he convicted Yaqoob for offences under sections 452, 366, 324, P. P. C. Withan award of one year, 3 years and six months respectively, and convicted Rajab Ali for offences under sections 452, 366, 376/511 and 323, P. P. C.
With an award of one year, 3 years, 3 years and 3 months respectively. The sentences were directed to run concurrently in both the cases.
2. The relevant facts of the case are that on 15-6-1965 at 7-00 p.m. One Loung, a fisherman of village Nahio Aqil contact--ed' A. S. I: Muhammad Laeeq P. W. 11 at. P. P. Ghulamullah of Sakro Police Station and lodged a report Exh. 8-A with him. The allegations contained therein in substance were that on the same morning he (the complainant) along with his son-in-law Jumo P. W. 4 went to harvest Urid crop of Wadero Aqil at some distance from the village leaving his daughter Mst.
Hajiani P. W. 1 and wife Mst. Suhind P. W. 2 in the house. At about 12-00 noon (bipahri the) while both of them were harvesting the crop, they heard cries of Mst. Hajiani and Mst. Suhind and rushed towards the spot. On reaching, they saw that Yaqoob and Rajab appellant had overpowered Mst.
Hajiani who was trying' to rescue herself. Her shirt was torn and the string of the shalwar was broken during the scuffle. In the meantime Rabbu P. W. 7, Khudadino P. W. 6 and Muhammad Hasan P. W. 5 also arrived at the scene being attracted by the alarm and saw the occurrence. Seeing them the to appellants ran away leaving Mst. Hajiani. In their efforts to catch hold of the appellants, Rabbu received to blows at the hands of Yaqoob with his knife on the left ear and shoulder with corresponding cuts in the shirt while Rajab who was armed with a lathi gave blows to Jumo on the back and arms and both succeeded in making good their escape. Mst. Hajiani, the victim of the criminal assault, had sustained scratches on her back as also an injury on the thumb of right foot. It was further alleged by the complainant that the to appellants were friends inter se and had come with the object of making criminal assault on his daughter.
3. At the the of the lodging of the report Loung com--plainant was also accompanied in addition to his wife Mst. Suhind, by Rabbu, Jumo and Mst. Hajiani, whose injury statements Exhs. 14-A, 14-B and 14-C respectively were prepared by Muhammad Laeeq A. S. I. At the police station in the presence of mashir Abdullah P. W.
9. Rabbu was found to sustain to injuries on the left ear and left shoulder with a corresponding cut in the shirt which was blood-stained and was secured by the police.
Jumo was found to sustain to injuries in the nature of swelling on the right and the left arm. The injury statement of Mst. Hajiani revealed a fresh injury on the thumb of the left foot and scratch marks on the back with a torn shirt and a broken string which were secured by the police. The A. S. I.
Then referred the three injured persons to Civil Hospital, Thatta for medical examination where on the same day they were examined by Dr. Muhammad Ibrahim who vide his medico-legal report Exh. 26-A found to abrasions on the right scapula and the left forearm of Jumo P. W. 3" x 1" and 1-- x --" respectively, the injuries being simple caused with a blunt weapon. On the person of Rabbu vide medico-legal report Exh. 26-B, the doctor found a muscle deep incised wound 1" x --" x --" on the left scapula and to abrasions 1" x --" each on the left temporal region and the left ear, the first of which was caused with a sharp-cutting weapon while the other to with a blunt weapon. Although it appears that Mst. Hajiani was also examined by this doctor but the Medical Certificate could not, however, be brought on the record having remained untraceable. The prosecution was further handicapped by the resignation of Dr., Muhammad Ibrahim who could not be examined as a witness and his reports were proved by Dr. Moeenuddin who appeared before the lower Court.
4. On the following day A. S. I. Muhammad Laeeq repaired to the spot and prepared Mashirnama Exh. 13-A of the spot which was a dry bed of a watercourse (Nulla) lying at a distance of four hundred yards from Chach Aqil with trees and bushes grow--ing around it. Also visible were marks of struggle and unidenti--fiable foot-prints at the spot. The Mashirnama was attested by one Achar who could not be examined having remained untraceable and Ismail P. W. 8 who did not support the prosecution version. And stated that his thumb-impression had been obtained by the police on a blank piece of paper on the Otak of Aqil Wadero and consequently was declared hostile. When cross-examined by the appellants, he lent support to the defence version, namely, that Rajab appellant and Aqil Wadero had a dispute over their adja--cent lands, and that similarly Yaqoob appellant had a dispute with Aqil over Pher dand, suggesting thereby that Aqil Wadero was responsible for the false implication of the appellants as alleged by them in their .Statements.
He then recorded the statements of the P. Ws. And on 18-6-1966 arrested the to appellants vide memos. Nos. 19-A and 19-B. On the comple--tion of the investigation he handed over the papers to P. W. 12 Ata Muhammad S. H. O., Sakro who visited the spot and after verification of the, investigation sent up the appellants. They were committed by F. C. M., Thatta for trial which was held by the Sessions Judge, Hyderabad, for offences under sections 452, 366, 376/511, 324 and 323, P. P. C.
5. The prosecution version as it finally emerged at the trial on the, basis of the testimony of Mst.
Hajiani P. W. 1, her mother Mst. Suhind P. W. 2, her father Loung complainant P. W. 3, the to injured persons, namely, Jumo P. W. 4 and Rabbu P. W. 7, Muhammad Hasan P. W. 5 and Khudadino P. W. 6 in substance was that on 15-6-1966 at about 12-00 noon in the absence of her husband and father from the house while she was sitting with her mother near the door, the to appellants of whom Rajab was armed with a lathi and Yaqoob with a knife, caught hold of her and dragged her to the bushes about 200 paces away where she was felled in the dry bed of a watercourse when Rajab Ali broke the string of her shalwar, sat on her chest, embraced and kissed her, asking her to let him have sexual intercourse with her; while Yaqoob held her by her hair threatening to kill her with his knife if she resisted. Mst. Hajiani and her mother raised alarm which attracted the other aforesaid P.
Ws. And the appellants fled away after dealing blows to Jumo and Rabbu.
6. Before the committing Magistrate as also at the trial both the appellants pleaded alibi and completely denied the allegations against there or any knowledge of the occurrence. Yaqoob appellant also filed a written-statement Exh. 30 before the lower Court in which he referred to a dispute with Aqil Wadero over the lease of a lake. He further mentioned that to persons Ali Muhammad and Ramzan who allegedly owed him a sum of Rs. 115 and in order to frustrate his demand had taken shelter with Aqil Wadero, the suggestion being that it was at the instance of the latter that he was implicated. He further stated therein that he, was at Sakro at the relevant the and in, support of this plea of alibi produced document Exh. 14 on the lower Court's record which purports to be an agreement indicating an advance payment of Rs. 110 to him by one Juma Churani on promise of supplying peddy to him. This agreement was stated to have been scribed and signed by Muhammad Amin Vendor. He further stated that after the execution of this agreement he went to see Allah Bakhsh Tapedar in connection with the settlement of his land revenue accounts. Having done all this he then started back for his village along with Wadero Sumar. It may be point--ed out that none of. The persons mentioned in the written state--ment, namely Juma Churani, Muhammad Amin Stamp-vendor or Allah Bakhsh Tapedar were produced in defence. At the trial the same position was reiterated by him. He denied having ever met Mst: Hajiani. Likewise the case of Rajab Ali before the Inquiry Magistrate was one of denial simpliciter. He also produc--ed a written-statement Exh. 6/3 before the Inquiry Magistrate wherein he stated that he and Aqil Wadero had a dispute over the grazing of the latter's cattle in his land, they had exchanged hot words and Aqil had threatened him with dire consequences. He further suggested that Loung complainant and his daughter were the henchmen of Aqil Wadero and had played into his hands to trump up a false case against him. In support of this allegation he also produced statement Exh. 17/34 made by Loung complainant presumably in some proceedings under the Control of Goondas Ordinance, the details of which are not clear from the record. In these proceedings dated 29-9-1967 which were perhaps in pro--gress in the Court of the District Magistrate, Thatta functioning as a tribunal under the aforesaid Ordinance. Loung complainant had admitted in cross-examination that he had lodged the report in the present case at the instance of Ata Muhammad S. H. O., Sakro under duress. Another relevant point that needs mention in this context is that this statement appears to have been record--ed on a printed form prescribed for the deposition of witnesses under section 164, Cr. P. C. A possible explanation could be found in the improper and indiscriminate use of such printed forms in criminal proceedings of all kinds for recording evidence which becomes rather misleading. Rajab Ali stuck to this post--tion at the trial and further stated that he was at Karachi on the relevant date and that a false case had been trumped by against him at the instance of Aqil.
7. Having considered the evidence on the record including the pleas of alibi raised by the appellants, the documents relied upon by them in this regard, the so-called discrepancies and inconsistencies in the statements of the P.Ws., the learned Sessions Judge in his elaborate judgment came to the conclusion that the offences had been fully brought home to the appellants and accordingly convicted them as detailed earlier. Hence this present appeal.
8. The learned counsel-for the appellants after taking me through the record raised the following contentions :-
(1) that the learned trial Judge had not catalogued the points for determination in the impugned judgment giving specific findings on each one of them and as such the impugned judgment -did not fulfil the legal requirements of section 367, Cr. P. C.
(2) that the alleged choice of the and .Place of occurrence strongly suggested inherent improbabilities in the prosecution case.
(3) that there was an-unexplained delay of seven hours in the lodging of the report which was not considered by the learn--ed Sessions Judge.
(4). That the place of occurrence as alleged by the prosecu--tion had not been established for the reasons, firstly that of the to mashirs of the wardat Ismail P. W. 8 did not support the prosecution and Achar was not examined at all, secondly that the evidence on the point was considerably discrepant.
(5) that the inconsistencies and discrepancies in the state--ments of the witnesses who were otherwise interested being related inter se, were not fully discussed by the learned Sessions Judge.
(6) that no incriminating recoveries of weapons of offence had been made from the appellants.
(7) that at any rate from the own showing of Mst. Hajiani and her mother Mst. Subind, the occurrence had taken place outside the house and as such the question of conviction for house- trespass under section 452 did not arise.
9. (i) The first contention raised by the learned counsel may be straightaway overruled as being misconceived. Having gone through the judgment I am convinced that the judgment reveals a thorough appreciation and assessment of the entire evidence and no relevant point falling for determination has been omitted or ignored. The law does not insist on a particular form in which the judgment must necessarily be written or the arrangement in which the points for determination may be tabulated. As such, considered from this point of view, the judgment is quit sound and unexceptionable. (ii) The next point is equally devoid of force. In the first instance, there appeared to be no good reasons to discredit; the prosecution witnesses particularly Mst. Hajiani and her mother on the point of the place of occurrence simply because the mashirnama wardat i. e. The memo of the description of the place of occurrence, was not supported by Ismail P. W. 8 who was declared hostile and the non-availability of the other witnesses Achar. The learned Sessions Judge who had the advantage of seeing the demeanour of the witnesses had placed complete reliance on their statements which received full corrobora--tion from the testimony of Muhammad Laeeq A.
S. I. On the point of wardat who had himself prepared the mashirnama. (i.e) As regards the choice of the place of occurrence, unfortunately, it does not seem to be the practice with the Investigating Officers in this part of the country to prepare a site-plan in each and every case showing the relevant points and their distances etc. Except in murder cases. Nonetheless, however, from the description of the locality given by the P. Ws., the existence of scattered hutments lying apart, the growth of bushes and trees around the dry bed of a watercourse, does not point out any mistake or improbability in the choice of site. It was argued by the learned counsel for the appellants that the proximity of the spot to the lake where Muhammad Hassan P. W.'5 and Khudadino P. W. 6 were fishing made it more risky and exposed to-.Danger. According to him the house of the complainant itself would have perhaps offered a com--paratively better and safer choice. This suggestion seems to have overlooked the significant fact of the presence of Mst. Subind, the mother of Mst.
Hajiani, which in all probability would have deterred the appellants from choosing the house as the venue of offence. But even otherwise so' varied is human experience in such matters that accused persons have occasionally placed themselves in more precarious situations where they are exposed to more serious and immediate dangers. Once the the and place of occurrence Which are essentially questions of fact are established by unimpeachable evidence, the question of preference or choice of the nature of offence would become irrelevant.
10. As regards the question of delay in lodging the report is concerned, the contention may be straightaway overruled on the short ground that not a single question was put to the complainant or to any other witness in this regard which could possibly have afforded them an opportunity to explain the reasons for not lodg--ing the report earlier. There is not an iota of evidence to suggest the the of the complainant's departure for the police post along with his daughter, wife and the to injured P. Ws., the mode of their-travel, the route they took anti the the when they, actually arrived at the police post. In the circumstances, therefore, no adverse presumption could be raised against the prosecution for the so-called delay.
11. The learned counsel took -pains in pointing out the discrepancies on the order in which the P. Ws.
Arrived at the scene, and the distance between the house of the complainant and the place of occurrence. He also referred to the inconsistencies in the statements of the P. Ws. Before the to Courts below. Reference was made in this regard to Mst. Hajiani's statement before the Court of Inquiry where she stated that she was unmar--ried and that Jumo was not her husband and her statement before the trial Court where she acknowledged Jumo as her husband. Similarly mention was made of the inconsistency in the to statements of Mst. Suhind P. W. 2 on the question whether the appellants were previously known to her or not. Likewise it was pointed out that contrary to the F. I. R. The complainant stated at the trial that he did not see who had injured Rabbu P. W. Although from his own showing he had arrived much earlier than Rabbu. Arguments were also sought to be raised on some improvements made by the complainant at the trial. From, the statement of Muhammad Hassan P. W. 5, an isolated sentence was picked out to the effect that he was not sure whether on his arrival he had seen Mst. Suhind at the place of occurrence. Having considered the so-called discrepancies and inconsistencies; some of which have already been fully dealt with by the learned Sessions Judge, and particularly keeping in view the the-lag and the type of witnesses with which we are concerned one of whom Mst. Suhind had no clear concept of distance as observed by the learned Sessions Judge, I am convinced that these are wholly immaterial and insufficient to shake or damage the prosecution version so as to render it incredibly false. No doubt except Khudadino and Rabbu the other witnesses are closely inter-related yet this per se would not be good enough to warrant the rejection of their testimony unless there are other reasons to do so.
The injuries on the persons of. Mst. Hajiani, Jumo and Rabbu positively excluded the possibility of their absence from the place of occurrence. Mst. Hajiani and Mst. Suhind have given quite a natural and consistent account of the incident which carries conviction. In this they were fully supported by Loung, Jumo and Rabbu, the latter to having unsuccessfully tried to grapple with the appellants. To this further corroboration is lent by the testimony of Muhammad Hassan and Khudadino, which is in the nature of res gestae. The injured persons were examined by the A. S. I. In the first instance who prepared their injury statements, which were further corroborated by medical evidence. On the top of it all, as stated earlier, the learned Sessions Judge had the additional advantage of studying the demeanour of these witnesses. All these facts taken together, coupled with the hollowness of the suggestion that the appellants were falsely implicated at the instance of Aqil Wadero, lead to the irresistible (conclusion that the prosecution version stands fully established in all its material aspects notwithstanding some minor discrepancies. In the first instance, although a situation where a poor dependant might be prepared to play in the hands of his master at the cost of his honour may not be altogether inconceivable, yet in the circumstances of the instant cage there is nothing to show that it was one of those rare and exceptional phenomenon contrary to the normal course of human conduct. Again from the perusal of the record one cannot avoid an impression that the appellants were quite influential persons having made serious attempts to win over the prosecution witnesses including the complainant himself and that to not without success.
This is amply demonstrated by the latter's own statement before the District Magistrate relied upon by the defendants, the failure of Ismail P. W. To support the prosecution and the. Volts-face of Rabbu who made conflicting statements before the to Courts below, the earlier against the prosecution and the subsequent in its favour. This would partly explain some of the weaknesses pointed out by the learned counsel in the prosecution version including the non-availability of the Medical Certificate of Mst. Hajiani.
11-A. Learned counsel also made a reference to a conflict between the prosecution version and the Medical evidence in the sense that of the three injuries sustained by Rabbu P. W., the witness had ascribed only to injuries to Yaqoob, one on the should--der and the other on the ear whereas medical evidence revealed only one incised wound in addition to to swellings. Likewise an argument was sought to be raised that having received to simple abrasions at the hands of Rajab appellant Jumo could not become unconscious as he would have us believe. Nothing in my view would turn upon this so-called conflict which is trot wholly incapable of resolution and in fact can be reasonably explained away. Likewise, the non-recovery of the weapons of offence would be equally immaterial and in fact it is not always a sine qua non of conviction if there is otherwise sufficient evidence to warrant this
12. The learned counsel also made a grievance of the dismissal of an application made by Rajab appellant under section 540, Cr. P. C. During the trial for recalling Loung complainant so as to confront him with his previous statement before the District Magistrate functioning as Tribunal under the Control of Goondas Ordinance. I have already referred to the partly successful efforts of the appellants to win over some of the witnesses and since the statement of Loung before the Tribunal was complete--ly at variance with the F. I. R. Lodged by him his statement before the lower Court and his subsequent statement at the trial, even if allowed to be confronted with it, he could only have sought to give an explanation for his softened attitude as happen--ed in the case of Rabbu which could not have improved the case of the defence. The dismissal of this application has not, there--fore, caused any prejudice to Rajab appellant.
13. The last contention raised by the learned counsel is not, however, without force. From the statement of Mst. Hajiani appearing as P. W. 1 at the trial, it is abundantly clear that at the relevant the she and her mother were sitting outside the door and it was from there that she was dragged to the bed of the watercourse. Obviously, therefore, the question of house trespass did not arise in the case. This position was frankly conceded by the learned counsel for the State. As an inevitable consequence it follows therefore that the conviction of the appellants under section 452 cannot be sustained and is accordingly set aside.
14. There is, however, another aspect of the matter. From the facts as found by the learned trial Judge, it is quite clear that the appellants had "acted in concert" as stated in paragraph No. 14 of the impugned judgment. Although the allegations of attempting forcible sexual intercourse which was exclusively level--led against Rajah appellant, who embraced and kissed Mst. Hajiani, broke her shalwar's string and sat on her chest, yet an equally active part was attributed to Yaqoob who in the meantime held the poor victim by her hair threatening to kill her in case she resisted. The question of the application of section 109 would legitimately arise in a case like this which seems to have been overlooked by the learned trial' Judge inasmuch as conviction under section 376/511 was only recorded against Rajah. Although Yaqoob appellant was also found to have abetted the offence. Since no notice of this was given to Yaqoob appellant earlier, I do not propose to proceed with it at this stage.
15. The upshot of the discussion is that the conviction of the appellants under section 452 is set aside while the conviction and sentences on the remaining counts are maintained. The appeal is partly accepted to the extent indicated above.