This is a revision petition by Mst. Aisha, petitioner, against the judgment of an Additional Sessions Judge of Sargodha, dated 4-8-1970, acquitting Maqbool Hussain and six others, respondents, of the charges under section 354/148/149, P.P.C. Earlier, a First Class Magistrate of Shahpur, by his judgment, dated 19-2-1970, had convicted the said respondents under section 354/149,P.P.C. To undergo rigorous imprisonment for one and a half years each with ten stripes each, subject to their being medically fit and under section 148,P.P.C. To undergo six months' rigorous imprisonment each.
2. The prosecution story in brief is that on 28-7-1968, Mst. Aisha had gone to Town Jhawrian for condolence with her nephew Ramzan P.W. 3 on a cycle. At about Peshiwela both started back, but when they reached the tonga stand they found one Yaqub Khan Makan sitting on a tongs, which was bound for Kot Bhai Khan. On his advice, Mst. Aisha also boarded the same tonga. Feroze Tongs Driver P.W.6 and Yaqub Khan occupied the front seat. Ramzan P.W.3 started ahead of the tongs on his cycle. When the tongs reached at the first turn of Kot Bhai Khan, Shabbir Mirasi, accused, also sat in the tongs. When the tongs reached the second turn of the village, Shabbir Mirasi, accused, got down. All the remaining six accused were sitting there at one place, hiding themselves. Shabbir Mirasi, accused, informed them that Mst. Aisha was proceeding in the tongs. At this signal the accused emerged and came near and encircled the tongs. Mamoo, Ataya and Maqbool, accused, dragged down Mst. Aisha P.W.4 from the tonga. Mamoo, accused, then Exhorted his companions to take of the Chaddar and shirt of Mst. Aisha P.W.4, in order to dishonour her. Upon this, Ahmad and Ghulam Hussain, accused, caught hold of Aisha P.W.4 from her legs. Maqbool and Ataya, accused, took of her Chaddar, leaving Mst. Aisha P.W.4 naked. Mamoo, accused, dragged Mst. Aisha on the ground by catching hold of her pigtail. Abid and Shabbir Mirasi, accused, pulled her breasts. The prosecutrix raised alarm. Yaqub Khan and Feroze P.W.6 entreated the accused, but they did not bother. Ramzan P.W.6 tried to help, but he too was threatened with dire consequences.
Muhammad Khan Qassi and Dadoo P.Ws. Were also attracted to the spot and rescued the prosecutrix and gave her clothing and took her to her house. The motive for the offence was that Maqbool, accused, had suspected illicit connections between his were Mst. Amiran and Abdul Khaliq, son of the prosecutrix. Abdul Khaliq had taken an oath upon the Holy Quran in the mosque, but the accused kept nursing a grudge against him and wanted to take revenge. The prosecutrix lodged F.I.R. Exh. P.F. With the police on the following day and produced her torn clothes i.e. Chaddar and shirt, before the police.
3. The learned trial Magistrate held that though the F.I.R. Was delayed, but the prosecutrix being a woman and reluctance of her family members to immediately rush to the police station, did not make the delay fatal to the case. The trial Magistrate found the direct evidence natural, convincing and conclusive and convicted and sentenced the accused as stated above.
4. The learned appellate Judge, however, held that there was party faction in the village and the witnesses and the accused were divided into groups and the delay in the F.I.R. Was fatal to the case. The learned appellate Judge found the following contradictions, defects and discrepancies in the evidence. First, that Mst. Aisha P.W.4 had stated that she had gone to Jhawrian on a cycle, whereas her nephew Ramzan P.W.3 had stated that she had gone to Jhawrian on a tonga. Second, that the evidence of Muhammad P.W.1 and Allah Dad P.W.2 residents of the village Abadi where the occurrence took place, was that of chance witnesses. Third, that there was discrepancy in the statement of Muhammad P.W.1 and Allah Dad P.W.2 as to where they were going when they saw the occurrence. Fourth, that Allah Dad P.W.2 did not even know the location of his own house and the house of Muhammad P.W.1. Fifth, that Sardar Muhammad Yaqoob, Zamindar, who was travelling in the tongs, was not produced. Sixth, that Mst. Aisha P.W.4 did not have any injuries like abrasions on her person to show that she had been dragged from the tonga. Seventh, that in view of previous enmity, Mst. Aisha P.W.4 could not have travelled in the same tonga with Shabbir, respondent. Eighth, that the respondents could have attacked Mst. Aisha P.W.4 at some place more convenient to their choice, instead of near the village Abadi. Ninth and last, that Mst. Aisha P.W.4 appeared to be a woman of loose character since Rahim, a brother of her former husband, had assaulted her once.
5. I have heard the arguments of the learned counsel for the petitioner and the respondents and have perused the evidence. There is delay in the judgment of the F.I.R. For which there is no explanation, but as held by the trial Magistrate it would appear that the family A would have felt some reluctance in filing a case against the residents of the village, who were higher in status than them, and some appreciable time must have been taken in discussion before lodging the F.I.R.
However, the evidence on the record is that of disinterested witnesses. There appears to be party faction in the village, but there is nothing on the record to indicate that the present case is a cooked up case and that Mst. Aisha P.W.4 had offered herself to be the subject of calumny and disgrace in public, to support one of the parties. The discrepancies in the statements of the witnesses as how Mst. Aisha P.W.4 had gone to Jhawrian or as to where Muhammad P.W.1 and Allah Dad P.W.2 were going when they saw the occurrence, are natural discrepancies that appear in the statements of truthful rustic witnesses. The fact that Allah Dad D.W.2 could not even give the location of his own house or that of Muhammad P.W.1, illustrates this forcefully. The finding that it was unlikely that Mst. Aisha P.W.4 would have gone in the same tonga with Shabbir, respondent, stands negative by the fact that there were other people also in the tonga, including Sardar Muhammad Yaqoob, a well-known Zamindar, who was also travelling in the same tonga. Since the said Zamindar refused to give evidence in order to be drawn into the dispute between the Powelies and the Syeds, does not lead to any inference that had the said Zamindar been produced he would have testified against the complainant's case. The other findings appear to be of hypothetical nature, which need not detain me any further. For all these reasons, the acquittal of the respondents appears to be against the evidence on the record and the circumstances of the case. The judgment of the learned Additional Sessions Judge, therefore, deserves to be set aside.
6. For Vie foregoing reasons, the judgment of the Additional Sessions Judge, Sargodha, dated 4-8- 1970, acquitting Maqbool Hussain and six others, respondents, is set aside. The case is remanded to the Magistrate at Shahpur for re-trial of the said respondents. The District Magistrate, Sargodha, shall now mark the case to a competent Magistrate for re-trial. The parties shall appear before the District Magistrate, Sargodha, on 10-12-1985,