RAJA AFRASIAB KHANJ.-1The petitioner,Mst. Roshan, has moved this criminal revision petition under section 439 Cr.P.C, against the Judgment of her conviction under section 326 PPC whereby she was sentenced to four years'R.I. Plus a fine of Rs.5,000/- or in defauIt thereof to suffer further R.I. For six months vide judgment dated 3.1.1988 passed by the learned Judicial Magistrate Section-30, Jhang.
Appeal of the petitioner was heard and dismissed by the learned Additional Sessions Judge, Jhang on 8.5.1988.
2. Briefly stated, the facts are that on the statement of Ismail son of Muhammad, a case under section 326 PPC was registered against the petitioner on 20.12.1985, disclosing that the complainant is a resident of Chah Jhandaywala, Dakhli village Pindi Mahni Beg. On the last night,as usual, Allah yar, the real younger brother of the complainant went to his residential quarter to sleep and similarly, the complainant with his family slept in their room. At about morning prayer time the complainant heard loud cries from the residential room of Allah yar. The complainant immedately came out and saw that the petitioner was coming out from the room of Allah Yar and that she was holding a razor in her hand. In the meantime, Lai son of Manak, the paternal uncle of the complainant also reached the spot after hearing the noise of Allah Yar. The complainant and Lai tried to apprehend Mst.Roshan,however, she issued threats to them that they should not come near her. Both of them identified the petitioner and that she ran away towards her house. She entered into her room and boIted the door from inside. Both the witnesses returned to the romm of Allah Yar and found him seriously injured. It was disclosed by Allah Yar that the petitioner after entering his room has cut his penis with the razor. Many people from the locality also came at the spot.
The motive of the commission of the crime is that the petitioner was married 4/5 year ago with Anwar son of Raja and that Anwar is employed in Karachi. The petitioner often lives with her parents in village Chah Jhandaywala. Her relatives from the side of her parents-in-law used to taunt her that she had developed illicit liaison with Allah Yar injured and because of the taunts, the petitioners after quarreling with her parent-in-law came to live with her parents a few days earlier to the occurrence. According to the prosecution, the offence has been committed by the petitioner in order to please her husband Anwar.
3. Bashir Ahmad SI.PW4, investigated the case. He stated that he went to Civil Hospital, Jhang and recorded the statement Ex.PA of Ismail, complainant. On the basis of the statement Ex.PA of the complainant, F.I.R. Ex.PA/1 was recorded by Mukhtar Ahmad H.C. He recorded the statement of the prosecution witnesses under section 161 Cr.P.C. On the next day, he visited the spot, prepared the site-plan and collected the blood-stained earth from the place of occurrence. He took into possession blood-stained Bed vide memo Ex.PE.The petitioner was arrested by the witness on the next day. The petitioner also produced before the investingating officer the razor PI, the weapon of offence which was taken into possession vide memo Ex.PH.The statement of Allah yar injured PW2 was recorded by the witness on 22.12.1985 while he was admitted in the Hospital.
4. Dr.Shahzad Zafar, M.O.District Headquarters Hospital Jhang P.W. 3, on 20.12.1985 examined Allah yar at 8.30 p.m.He found the following injury on his person:- "An incised wound 3 x 2.5 CM oval in shape due to amputation act the level of base of penis with clotted blood."
The witness opined that the injury was grievous and that the same had been caused within the duration of six hours.
5. Ismail PW1 and Allah yar PW2 have supported the case of the prosecution. Ismail PW1 is the complainant in the case. He stated that he saw the petitioner while coming out of the room of Allah yar PW2 while holding a razor in her hand. Allah yar PW2 also supported the prosecution version.
The petitioner made a statement under section 342 Cr.P.C, and denied that she had illicit relations with Allah yar PW2, sh also denied that she was taunted by her relatives that she had developed illicit relations with Allah Yar, PW2 and that in order to please her husband she had cut the penis of Allah yar. She further stated that early in the morning she was going towards the fields in order to ease herself. Allah yar PW2 was present there and was holding a razor in his hand. He threatened her and forcibly took herto his residential quarter. He placed the razor on his bed and started committing rape with her. While getting an opportunity, the petitioner took out the razor and cut the penis of Allah yar PW2. She stated that she had done this in order to protect her chastity. In the end she stated that she was innocent and that she has committed no offence whatsoever in law.
6. Learned counsel for the petitioner forcefully contended that the facts, circumstances and the evidence available on record show beyond any shadow of doubt that the petitioner has committed no offence inasmuch as she was forced at razor's point by Allah yar PW2 to come to his living room wherein he started committing rape upon her, and that she inflicted injury on the private part of the witness in order to save her honour. Learned counsel submitted that Lai, another important witness in the case has not been produced by the prosecution. Learned counsel maintained that it is established that nobody has seen the occurrence and that the prosecution version has been fabricated in order to involve the petitioner in the case. It is next urged by the learned counsel that the occurrence was reported to the Police after considerable delay and that no plausible explanation in that behalf has been offered.
Learned counsel stated that from the evidence of Allah Yar PW2 it is clear that he remained unconscious for three days and as such the prosecution version given by Ismail PW1 on the basis of which FIR Ex.PA/1 was recorded becomes highly doubtful.
Mr. Muhammad Akhtar Shabhir, learned Additional Advocate General and Sh.Afzal Hussain learned State counsel are present. The learned Law Officer categorically stated that there is nothing on record to provide justification to defend the conviction and sentence of the petitioner. He said that the fact and circumstances of the case will show that the defence version being reasonable and plausible is nearer to truth then the one offered by the prosecution.
7. I have heard the learned counsel for the parties and have perused the record. The facts of the case are short and simple inasmuch as the prosecution version is that it is the petitioner who duly armed with a razor in the dead of night came to the room of Allah Yar PW2 and committed the offence. Allah yar PW2 in his evidence disclosed that he was sleeping in his room when he feIt that somebody was holding his penis and that he realised that his penis been cut with some weapon.
When he woke up, he found the petitioner while holding the razor in her hand. 1 am not prepared to believe this type of evidence deposed by Allah Yar PW2. There is no other evidence having been produced by the prosecution in support of the witness mentioned above. Lai, another witness has not been produced by the prosecution to substantiate its allegation and the non-production of this witness will create doubts in the truthfuIness of the prosecution story. The presumption is that if the witness had been produced, he would not have supported the case of the prosccution.Ismail, complainant PW1 who reported the incident to the police says that he saw the petitioner while coming from the room of Allha Yar PW2 while holding the razor in her hand. It is not possible in the facts and circumstances of the case to give any cradibility to the evidence of this witness. If it is accepted as true then Ismail PW1 and Lai (not produced) came at the spot immediately after the occurrence had taken place and that they were definitely in a position to apprehend the petitioner there and then. It cannot be believed that the petitioner could not be apprehended by them at the spot because she issued threats. The petitioner being a woman could easily be over-powered by two young and heaIthy people like Ismail PW2 and Lai (not produced). The inference under law is that Ismail PW1 and Lai did not come at the spot and did not see the petitioner while coming out of the room of the injured witness Allah yar. Additionally, as observed earlier, Allah Yar PW2 clearly stated in his evidence that he remained unconscious for three days. If the statement of the witness is accepted as true then how he was able to disclose to Ismail PW1 about the offence having been committed by the petitioner in his residential room. The circumstances of the case are such, which persuade me to come to the conclusion that it was Allah Yar PW2 who had an eye upon the petitioner and wanted to develop illicit liaison with her on account of absence of her husband who is stated to be employed in Karachi. It cannot be believed that the petitioner was carrying on with Allah Yar PW2. It is in the evidence of Allah yar PW2 that the petitioner has given birth to a child about 4/5 months earlier to the occurrence. It is also conceded by Allah yar PW2 that the petitioner is living with her husband Anwar. The evidence of Allah Yar PW2 will amply demonstrate that the petitioner was living with her husband happily. It may be noted that the witness did not say that her husband used to taunt her about her illicit relationship with Allah Yar PW2. It is, therefore clear that in the statement Ex.DA made by Allah Yar PW2 before the police no such taunts were mentioned therein and that this is clear improvement having been made by the witness before the learned trial court. Thus, the statement of Allah Yar PW2 cannot at all be accepted as reliable and trust- worth) piece of evidence. It is common that in villages all people including the women folk will go out to answer the call of nature in the fields early in the morning. The defence version, therefore, appears to be nearer to truth and as such should be accepted and the version of the prosecution should be discarded oulrighlly. It is in the evidence that the parties live in the same locality and that husband of the petitioner was out of village at the time of occurrence and as such I am persuaded to accept the version given by the defence that it was Allah Yar PW2 who stood in the wav of the petitioner while holding a razor in his hand and forcibly took her to his residential quarter where he started committing rape upon ner. In the circumstances,the petitioner was justified in inflicting injury upon the private part of Allah Yar PW2. Additionally, it may also be observed that the learned Law Officer supported the defence version and was not prepared to defend the judgments of conviction and sentence recorded by the learned courts below against the petitioner.
8. The upshot of the above discussion is that the petitioner is honourably acquitted In accepting this revision petition. The petitioner is on bail and as such she shall be discharged of her bail bonds.