1. This is an appeal against the judgment of the learned Additional Sessions Judge, Sukkur, convicting the appellant Kaim for an offence under sections 366, 325 and 376, P. P. C. And sentenc--ing him to undergo R. I. For 7 years, 7 years and 3 years respec--tively and convicting appellant Pinjo for an offence under S. 366, P. P. C. And sentencing him to undergo R. I. For 7 years, ordering the sentences passed against appellant Kaim to run consecutively.
2. Complainant Nur Mohammad and deceased Gulshar are brothers inter se and nephews of Kadirbux. Mst.' Sardar Khatoon alias Sardari is daughter of Kadirbux, Mst. Nur Khatoon is wife of Kadirbux and mother of Mst. Sardari while cost. Salima Khatoon is another wife of Kadir bux, Obhayo and Faiz Mohammad are maternal uncles of the deceased and Abdul Haque is son of Faiz Mohammad. Momin is married to the sister of the complainant and the deceased. All the aforesaid persons except Momin lived by the side of the well of Malik Noon in taluka Panu Akil.
3. The appellants are cousins inter se. Miro and Ibrahim are brothers of appellant Kaim. Alimurad and Moghul are brothers inter se.
4. Moghul father of appellant Kaim had approached Kadirbux 'for the marriage of Mst. Sardari with Kaim appellant but his request was not accepted and instead Mst. Sardari was given in marriage to Abdul Fattah, but the `Rukhsati' had not yet taken place and she was still living with her parents.
5. On account of the Nikah of Mst. Sardari having been read with Abdul Futtah the appellants and his relations were annoyed.
6. On 21-5-65 Kadirbux and Malik Dino went to the village of Bagoshar. At about sun set Mst. Sardari, Mst. Nur Khatoon and Mst. Salima Khatoon were sitting in the house when it is stated that the present appellants along with six other person entered the house of Kadirbux. The appellant Pinjo was said to be armed with a single barrel gun while the remaining persons were armed with hatchets and lathis. They forcibly removed Mst. Sardari whereupon cries were raised by the inmates of the house which attracted Gulsher Obhayo, Faiz Mohammad and Nur Mohammad who tried to intervene but the appellant Kaim inflicted lathi blow on the back of the neck of Gulsher who fell down and became unconscious. Injuries were also inflicted to Mst. Nur Khatoon and Nur Mohammad., After inflicting the injuries the woman was taken away. Pinjo appellant was said to have fired gun shots in the air. Thereafter Abdul Haque and others arrived at the scene of offence and he was informed. Abdul Haque was deputed to proceed to village Rogoshar to inform Kadirbux and Malikdino. Consequently Abdul Haque left and brought them to the scene of offence. In the meantime Nur Mohammad, Faiz Mohammad and others carried Gulsher on a cot to Police Station Pano Akil as he was unconscious but on the way 'he died. The party reached the Police Station at 11 a.m. 'hand the first report was lodged by Nur Mohammad.
7. Mr. Mahmood Ahmed S. H. O. After recording the first report resumed the investigation. The statements of the injured persons were recorded and they were sent to the hospital. The dead body of Gulsher was also sent to the hospital. Then the S. H. O. Went to the scene of offence and made further inquiries. Five fired cartridges were lying out side the house of Khadirbux and the same were secured. There was no blood at the scene. The statements of various persons were recorded.
8. It appears that Mst. Sardari was taken away to the Otak of Anwar Din to whom she made a complaint but he on the contrary gave compliments to the culprit for having abducted her. The clothes of the girl were torn and, therefore new clothes were supplied by Anwar Din. The woman was detained there for the night and next day she was taken to the forest. The appellant Kaim remained with Mst. Sardari while the remaining culprits left. Kaim also committed rape on Mst.
9. Sardari. After having learnt that Gulsher had died appellant Kaim in order to remove her was taking her to some other place but in the meantime Mr. Mahmood Ahmed S. H. O. Along with police force.
10. Complainant Nur Mohammad, as well as Mashirs Ahmed Din and Haji overtook them on 23rd May 1966 at 2 p. m. And secured both of them. The loin cloth of appellant Kaim on which there appeared semen stains was secured and sealed. The statement of Mst. Sardari was recorded and her shalwar was secured. Some stains of semen were also found on the shalwar. She was produced before the Head Munshi and 1st Class Magistrate Pano Akil and her statement was recorded. She was not willing to submit to medical examination. On 24th May 1966 Kaim appellant was sent to the Medical Officer. On that day Mst. Sardari also agreed for medical examination and she was also sent to the Civil Hospital, Sukkur. Other culprits were also arrested and one of them was Gulu who produced a single-barrel gun, which was licensed in the name of his brother and he was shown as a retainer. The gun was sealed, and was sent to the Ballistic Expert alongwith the fired cartridges secured from the scene of offence and those cartridges were found to have been fired from that gun. An identification test was also held as some of the culprits were not named by the witnesses and had not been identified at the spot. After further, investigation the appellants along with 8 other persons were challaned. They proclaimed their innocence and ascribed their implication due to enmity. Two witnesses, namely, Din Mohammad and Sachal were examined in defence.
11. At the trial the prosecution case was supported by the ocular testimony of Nur Mohammad, Mst.
12. Sardari, Mst. Nur Khatoon and Momin, corroborated by the evidence of Abdul Haque and Kadirbux.
13. Then there was the recovery of the gun produced by Gulu. The learned additional Sessions Judge on appraisal of the evidence found that it was interested and as a rule of prudence this evidence required corroboration before establishing the guilt of the accused persons. Since he was unable to find any corroboration with regard to the 8 persons other than the present two appellants he gave them benefit of doubt and acquitted them. But with regard to the present two appellants corroboration was found and they were convicted. So far appellant Kaim is concerned corroboration was found in the recovery of the girl from his possession, while so far appellant Pinjo is concerned the corroboration was found in the recovery of the gun secured from the possession of Gulu who has since been acquitted.
14. There can be no manner of doubt that the incident had taken place and Mst. Sardari was abducted as well as rape was committed on her and injuries were inflicted upon Gulsher, Mst. Nur Khatoon Nur Mohammad and Mst. Sardar Khatoon and as a result of the injuries Gulsher died. The medical evidence shows that Gulsher has a faint contusion 3" x 3/4" on the left side of neck, Mst. Nur Khatoon had one contusion 2" x 1" on the left loin, Nur Mohammad bad one contused wound 3/4" x 1/6" scalp deep on the frontal region. All the injures on them were caused by blunt weapon such as lathi. According to the medical officer the injury on Gulsher was ante-mortem and the death was due to shock as a result of the injury, which was sufficient in the ordinary course of nature to cause.
15. It is further in the medical evidence that rape had been committed upon Mst. Sardari and she was aged about 17 years. The act of rape is further supported by the presence o--- semen on the shalwar of Mst. Sardar Khatoon and loin cloth of appellant Kaim as proved by the report of the Chemical Analyser Exh.
52. It has been deposed by Mst. Sardar Khatoon, Nur Mohammad Mst. Nur Khatoon and Faiz Mohammad that on the night of the incident 8 persons entered the house and forcibly took away Mst. Sardar Khatoon after inflicting injuries upon Nur Mohammad and Mst. Nur Khatoon. All the culprits were armed with hatchets and lathis. The first report of the incident was lodged promptly and there has been no delay. It is further in the evidence of Mst. Sardar Khatoon that she was taken from place to place and during that period she was also raped by Kaim appellant and, finally she was recovered by the police from the forest when she was being taken away by appellant Kaim. This is also established by the evidence of the S. H. O. And the mashir corroborated by the Mashirnama. There is no reason to disbelieve the evidence, which has been produced by the prosecution to establish this fact. As already pointed out their evidence also finds ample corroboration from the medical evidence, both as regards the injuries and the rape upon the girl.
16. As regards the identity of the appellants with the crime I will first take up the case of Pinjo appellant.
17. It has already been pointed out that the learned Additional Sessions Judge was not prepared to accept the prosecution evidence with regard to the persons who had abducted the girl unless there was corroboration. Applying this rule to the case of appellant Pinjo the only corroboration which was sought was the recovery of the gun but I must say that the learned Additional Sessions Judge clearly erred in using this piece of evidence as corroboration to the case against the appellant. This gun was not recovered from him nor it was borne on his licence. It was recovered from Gulu who has been acquitted. The licence of the gun stood in the name of Muhammad Hussan and Gulu was the retainer. Gulu had produced the gun from his own house. Thus this circumstance was not available against the appellant. It may also be pointed out that Gulu was one of the persons said to have participated in this crime. The mere fact that the gun produced by Gulu was A fired at the time of this incident would not lend support to the evidence of the witnesses that the appellant was the persons who had fired the gun. Thus the case against appellant Pinjo is not free from doubt and he is entitled to receive its benefit.
18. As regards appellant Kaim there is ample evidence to establish his guilt. Firstly there is the evidence of Mst. Sardar Khatoon, Nur Mohammad, Mst. ' Nur Khatoon and Faiz Mohammad who had also unanimously implicated the appel--lant. He was also secured along with the girl from the forest by the police on 23-5-66 i.e. On the third day of the incident far away from the scene of crime. The medical evidence, as regards the injuries on various persons as well as rape com-- mitted upon the girl lend considerable support to the allegations made by the prosecution. The appellant had also motive to abduct the girl. Approaches had been made to the parents of the girl to give her in marriage to him but that proposal was not accepted and her Nikah has been read with another person. So the various circumstances conclusively establish the case against the appellant. He had offered no explanation about those circumstances. When certain circumstances appear in evidence against an accused) person it become incumbent upon him to offer explanation and B when he makes no attempt it is fairly reasonable to presume his complicity in the crime. Thus the case against him has been fully established.
19. In the result I allow the appeal of appellant Pinjo and set aside the conviction and sentence passed against him and acquit him, while I maintain the conviction and sentence passed against appellant Kaim, but I order that the various sentences should run concurrently and with this modification his appeal is dismissed.