MIAN BURHANUDDIN KHAN, J.-- The accused /appellants were tried by a learned Magistrate 1st Class, with powers under section 30, Cr.P.C. For committing rape on Mst. Lal Begum village Kotewali within the limits of Police Station Makhad. Both were found guilty, convicted under section 376, P.P.C.
And were sentenced to seven years' R.I per judgment of the trial Court dated 16-11-1980. On appeal the sentence of Raees Khan was reduced to to years because of his young age while the sentence on Nisar accused /appellant was maintained by the learned Lahore High Court vide the impugned judgment dated 31-5-1981.
2.' Mst.Lal Begum, prosecutrix aged about 20 years and her younger sister Mst. Iqbal Begum had gone out to Kotewali in the morning to condole the death of their cousin on that day. The to girls returned to their home while their father Isa Khan remained there until the end of the funeral ceremonies. Mst. Iqbal Begum went to the Jangal for grazing the cattle while Mst. Lal Begum went to her field in Gujarwali the same day i.e. 31-3-1978, for cutting the grass. It was in the field that the accused /appellants appeared and forcibly took Mst. Lal Begum to their Dhok. On her alarm Omar Khan and Khushmir Khan, who were grazing their cattle at some distance on the hillock, saw the to- accused/ appellants having lifted Mat. Lal Begum and being carried towards their Dhok. It is alleged by the prosecutrix that on reaching their Dhok the accused /appellants confined her in a room both of them committed rape on her, after threatening her with a knife. After ravishing her they turned her out saying that they have avenged the abduction of their cousin Mat. Noor Numan alias Makhan Bibi. On her back, she informed Omar Khan about the incident because her father was not present at that the and had come home late in the evening. The next day she was taken to the Police Post and her statement was recorded by Muhammad Banaras P.W.5 then Incharge of the Police Post Injra whereafter the formal F.I.R. Was registered.
3. Mst. Lal Begum the prosecutrix was examined by Lady Doctor Hamida Khatoon on 2-4-1978 at about 2-15 p.m. According to her hymen of the prosecutrix was found torn and it admitted to fingers loose; there were several abrasions on the right side of her face to an area of 3" x 1". Three vaginal swa bs were sent to the Chemical Examiner and as per his report Ex.P.B. The same were found stained with semen. For determining her age the lady doctor advised X-Ray but in her opinion the prosecutrix was subjected to sexual intercourse.
4.At the trial the accused /appellants denied the charge and stated that they have been implicated in the case due to enmity.
5. In her statement the prosecutrix Mst.Lal Begum stated that her maternal-cousin Muhammad Khan had died on the day of occurrence and she and her sister Mst.Iqbal Begum were asked to attend his funeral ceremonies. They returned to their Dhok at about morning the the following day while their father remained behind in the house of Muhammad Khan. Mst. Iqbal Begum took the cattle for grazing while she went to the field for cutting the grass where Rais Khan and Nisar Khan came to her. Nisar Khan had a knife in his hand while Rais Khan was empty-handed. They caught hold of her and dragged her towards their Dhok and on the way Nisar Gul gave her a knife blow on her arm and thereafter Nisar lifted her on his shoulder and threatened her not to make noise. On reaching their Dhok they confined her in a room where Nisar Gul committed rape on her and then the other accused/ appellant Rais Khan also committed rape on her. At about evening prayer the they opened the door of the room and kicked her out saying that they have avenged the abduction of their cousin Mst. Noor Numan alias Makhan Bibi. On her way back she met Omar Khan and Khushmir Khan and on their enquiry, she informed them about the incident. In cross-examination she stated that she was dragged by the accused /appellants for about to miles on the way to the Dhok of the accused /appellants and she got scratches on her feet, legs and on her back and she had pointed out these scratches to the lady doctor. She also admitted that the family of the accused /appellants lives in the same house in the same Dhok. ""
6. Omar Khan was examined at the trial and he stated that on the day of occurrence he alongwith his nephew Khushmir Khan, was grazing camels when he met Mst. Lal Begum who was weeping and she informed him that the to accused /appellants had forcibly taken her to their Dhok and they had raped her. In the cross-examination he admitted that his mother is real aunt of Isa Khan father of the prosecutrix Mat Lal Begum. He stated that he had not seen Mat. Lal Begum being forcibly taken by the accused /appellants to their Dhok.
7. Learned counsel for the appellants contended that this case against the accused /appellants has been concocted on account of enmity between the parties due to the abduction in the past of a lady belonging to the family of the accused /appellants, by a relative of the prosecutrix; and that the medical evidence shows that Mst. Lal Begum was not a virgin and bore no injuries on her arm or legs etc. 8.We have gone through the evidence on record and we find material contradictions in the statement of Mst. Lal Begum and her own story as given in the F.I.R. And statement in the Court during the trial. In our opinion the evidence on the record is inconclusive and it is impossible to hold that the accused/ appellants are guilty of the offences they have been charged with. There is no independent evidence in support of the statement of the complainant/prosecutrix and it would be unsafe to base a conviction on her uncorroborated testimony alone. The first and foremost circumstance that can be looked for in cases of this kind is the evidence of resistence which one would naturally expect from a woman unwilling to yield to sexual intercourse forced upon her. Such a resistence may lead to the tearing of clothes; the infliction of personal R injuries and even injuries on her private parts. In the present case there is absolutely no evidence on the record of any struggle having taken place nor were there any marks of injuries, except a few scratches on the face of the complainant but none on other parts of her body or on the accused/ appellants.
Moreover, in the F.I.R the complainant stated' that Omar Khan and Khushmir Khan saw her being forcibly taken by the accused /appellants towards their Dhok. At the trial she changed the course of events by stating that on her way back to her Dhok she met Omar Khan and Khushmor Khan and informed them that the accused/ appellants had taken her to their house and committed rape on her. Had this been so, Omar Khan, who is related to her, would have tried to rescue her from the clutches of the accused /appellants; or at least he would have taken her to her father to facilitate notifying the Police about the incident. The delay in lodging the report is another factor which casts doubt on the prosecution case. Her own father Isa Khan has not uttered a single word about the incident when examined at the trial. He appeared just as a recovery witness of the articles such as sickle and shoes of the complainant from the field where she was cutting the grass and that to long after the incident. Therefore, we allow this appeal; set aside the conviction and acquit both the accused/ appellants.
M. Z. M.