Allah Ditta, aged 42 years, was tried shy Syed Sajjad Hussain Naqvi, Magistrate Section 30, Jhang, for an offence under section 376, P. P. C. For committing rape on Mst. Nasim Akhtar 'P. W. 2, wife of Muhammad Ramzan, complainant P. W. I. He was found guilty by the learned trial Magistrate vide his judgment dated 11-5-1971 and was sentenced to five years' R. I. And a fine of Rs. 2,000 (or two years' R.
1. In default of payment of fine), under the said section. He has come up in appeal against his conviction and sentence.
2. The facts of the prosecution case briefly stated are that on 22-11-1969 at about 2 p.m. Mst. Nasim Akhtar, the prosecutrix, aged about 20/22 years. Went out for picking cotton in her field in the area of village Dhoriwala, District Jhang. Her husband had gone to Jhang in connection with some work.
When she reached near the jugi of Tarkhan Muhammad, the appellant emerged from bebind some bushes;fell down Mst, Nasim Akhtar P. W. 2 on the ground; took off her chadar and started committing rape on her. She raised an alarm. Mst. Fateh Bibi P. W. 3, her husband's brother's wife, who was proceeding ahead of her at a distance of I J killas was attracted by the alarm.
Muhammad Nawaz P. W. 4 and Muhammad Hayat P. W. 5 also turned up on hearing the noise. On seeing them, the appellant ran away and made good his escape. Mst. Nasim Akhtar P. W. Came back to her house and when her husband Muhammad Ramzan P. W. 1 returned from Jhang in the evening, she told him the whole story. Next morning the latter took her to Civil Hospital, Jhang, where she was examined by lady Dr. Safia Chandbry P. W.
7. Thereafter he proceeded to Police Station Qadirpur and lodged the report Exh. P. A. At 2-30 p.m. On 23-11-1969. It was recorded by Abdul Hakim Khan S. H. O. P. W.
8. The S. H. O. Arrested the appellant and conducted the investigation. No recovery was made during the investigation. The appellant was subsequently sent up for trial, the result of which has already been mentioned above.
3: The posecution produced eight witnesses in support of its case. Muhammad Ramzan P. W. 1 is the complainant while Mst. Nasim Akhtar g. W. 2 is the prosecutrix. Mst. Fateh Bibi P. W. 3, Muhammad Nawaz P. W. 4 and Muhammad Hayat P. W. 5 were produced as eye-witnesses. Out of them, the first mentioned supported" the prosecution case while Muhammad Nawaz and Muhammad Hayat P.
Ws. Did not support the prosecution case. Muhammad Nawaz P. W. Was declared hostile and cross-examined by the P. S. I. Muhammad Hayat P. W. Was not even declared hostile
4. Dr. Ghulam Mustafa P. W. 6, who examined the appellant, found him capable of having sexual intercourse.
5. Lady Dr. Safia Chaudhry P. W. 7 examined Mst. Nasim Akhtar P. W. 2 on 23-11-1969 at 10 a.m. She found no marks of violence on her person but there was a whitish stain of semen on her pubic hair and there was a swelling 3" x 3", on the upper portion of her buttocks, in the middle, which as stated by Mst. Nasim Akhtar P. W. Was painful to touch. The hymen was torn but the tags were old healed up. The vagina was petulous and admitted two fingers easily. Two swabs were taken from inside the vagina, which were stained with blood and semen. The Chemical Examiner's report shows that the swa bs were stained with semen. Abdul Hakim Khan S. H. O., P. W. 8 is the Investigating Officer.
6. The accused when examined simply denied his guilt and pleaded innocence. He produced two witnesses in defence, who deposed that the appellant was a person of good reputation and was a married man with two or three children and that he had been involved due to enmity between the parties.
7. I have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the entire record with their help.
The learned counsel for the appellant submitted that the case is a mere fabrication and the appellant has been involved due to previous enmity. He submitted further that the prosecution case against the appellant has not been satisfactorily proved. Out of three eye-witnesses two have refused to support the prosecution case while the third, namely, Mst. Fateh Bibi P. W. 3 is closely related to the complainant party, between whom and the appellant there is previous enmity and her statement, therefore, ought not be accepted without independent corroboration. .
8. I am inclined to agree with the learned counsel for the appellant. It is stated in the F. I. R. Itself while giving the motive for the offence that Muhammad Ramzan complainant had taken the land of Fateh Muhammad, the uncle of Allah Ditta appellant on lease; the appellant had resented this very much and that a week prior to the occurrence he had threatened the wives of the complainant and his brother that they, i.e. Complainant party, should leave the land in question, otherwise he would insult them. Muhammad Ramzan P. W. 1 reiterated these facts in his statement during the cross-examination. The two defence witnesses also mentioned this fact in their statements. Muhammad Ramzan D. W. 1, who is a Lambardar of the village, has stated that the appellant holds land jointly with his uncle Fatah Muhammad. The latter however leased out the .Same to Muhammad Ramzan complainant. The appellant resented this and asked the latter to leave the land and subsequently when Muhammad Ramzan complainant did not leave the land, the appellant did not allow him to lift the crop. Ahmad D. W. 2 also supported this version. It is, therefore, evident that there was previous ill-will between the parties. The contention that a false charge of rape has been brought against the appellant, by Muhammad Ramzan complainant, as a result of the above--mentioned grievance, appears to be correct. The prosecution case is supported only by Muhammad Ramzan P. W. 1 himself, his wife Mst. Nasim Akhtar P. W. 2 and his brother's wife Mst. Fateh Bibi P. W.
3. All of them being closely related and there being previous enmity between the parties, their testimony naturally requires independent and positive corroboration before it can be relied upon for maintaining the appellant's conviction. But as already mentioned, no incriminating recovery was made during the investigation of this case, which could be used to connect the appellant with the crime. The only piece of evidence, which could serve as corroboration to their testimony, is the report of lady Dr. Safia Chaudhry P. W. 7, who examined Mst. Nasim Akhtar P. W.
2. She has, of course, stated that semen was found on the pubic hair of Mst. Nasim Akhtar P. W. And the hymen had an old tear. But this does not necessarily lead to the conclusion that she had been subjected to rape. Admittedly she is a married woman and lives with her husband Muhammad Ramzan P. W. It was therefore not unnatural o extraordinary that semen should have been found on her private parts This is specially so if the complainant party had decided to fabricate a case against the appellant and show the presence of semen in support of the allegation: The only point that could be urged in favour of the prosecutrix is that there was a swelling on the upper portion of her buttocks which, she claimed, was painful. But the absence of any scratches or marks of violence either on the body of the appellant or on the body of Mst. Nasim Akhtar prosecutrix negatives the allegation of rape in the present case. It is understandable that in some cases where a woman is overpowered by one or more persons and in a lonely or desolate place and is made to submit to sexual intercourse at a gun point or under the threat of death, the woman concerned may not put up much resistance. But in the present case the rape seas admittedly committed in the broad daylight, within a short distance of the village abadi. The place where the rape is said to have been committed is situated on a path (Pagdandi), and near the main road going from Jhang to Sargodha. Mst. Fatah Bibi P. W. 3 has stated during her cross- examination that the place of occurrence is at a distance of 1J killas from the village abadi. It is also the prosecution case that she herself (Mst. Fateh Bibi P. W. 3), was present at a distance of killa from Mst. Nasim Akhtar P. W. The other two eye-witnesses, namely, Muhammad Nawaz P. W. 4 and Muhammad Hayat P. W. 5 are also said to a have been near about. Allah Ditta appellant was alone and had no companion to help him in overpowering Mst. Nasim Akhtar. Under these circumstances, it cannot be believed that the latte would have allowed herself to be subjected to rape without an struggle. The prosecution intends to show by the swelling on he tack, above the buttocks, that force was used on her; that the intercourse was against her will and that she had put up some resistance or struggle. She is admittedly a girl of 22 years of age with normal health and it is difficult to believe that if she had really put up resistance, she would only have come out of the situation with only a swelling on the back. . I am of the view that it is extremely difficult for a single man to commit a sexual intercourse with a healthy adult female in full possession of her sense against her will or consent. Had there been any struggle, Mst. Nasim Akhtar would have resisted ferociously. In the process, not only would she have received some injuries herself, but she would also have scratched out the appellant's eyes.
9. As a result of the above discussion, I am inclined to feel that from the evidence on the record the prosecution case has not been established beyond reasonable doubt. The appeal is, therefore, accepted, the impugned judgment is set aside and the appellant is acquitted. He should be set at liberty unless he is wanted in any other case.