IBADAT YAR KHAN, J.---This judgment would dispose of Criminal Appeal No.305/L of 1989 and cross Criminal Revision No.2/L of 1990. The appeal has been filed by Muhammad Yaqoob and three others against the judgment dated 16-10-1989 passed by the Additional Sessions Judge, Sahiwal, convicting appellant Muhammad Yaqoob under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and under section 452, P.P.C.
The revision has been filed by the victim through her father of the victim against the same judgment on the grievance of inadequacy of sentence passed by the ILariied trial Judge. As the two are against the same judgment both of them would be disposed of by a single judgment.
2. Muhammad Yaqoob, the principal accused in this case, was charged for entering the house of victim Mst. Abida, daughter of Abdus Sattar and committing Zina-bil-jabr with her. The remaining three accused/appellant Shadi, Yaseen and Sadiq have been convicted and sentenced under section 225, P.P.C. The allegation against them being that when appellant Yaqoob was captured and caught red-handed these three appellants suddenly reached the place of occurrence and on showing a Chhuri which they were carrying, rescued Muhammad Yaqoob.
3. The brief facts of the case are that on 9-5-1988 at noon time Mst. Abida, a young girl aged 14/15 years, was sleeping in the room of her house in Chak No.109/12-L, Chichawanti. She was all alone in the house. Appellant Muhammad Yaqoob, who is Qasab by caste and also related to the girl, quietly entered into the house. He first closed the door of the room and then mounted on the sleeping girl. He forcibly broke the string of the Shalwar which she was wearing and started sexual intercourse with the girl. The girl raised alarm and on hearing her shouts and cries Muhammad Sharif son of Muhammad Din and Nazir Ahmad son of Karim Bakhsh, who were working in the field nearby, rushed to the spot and after scaling over the boundary wall entered the house and reached the room where appellant Yaqoob was busy in satisfying his sexual urges. They caught him red-handed. Firstly they asked him to cover himself with his sheet. They also asked the girl to wear her clothes and cover up her body. As the two male witnesses were holding appellant Yaqoob, the other three accused/appellants namely Shadi, Sadiq and Yasin entered into the house, one of them was holding a Chhuri. They threatened and overpowered Muhammad Sharif and Nazir Ahmad. After securing the release of appellant Yaqoob all the four accused/appellants escaped from the scene of occurrence, leaving the girl in a miserable plight. When her father returned to the house from his work in the evening, the girl narrated her tale to the father. The father. According to the statement of the girl, wanted to take her to the police station, but the Thanedar met them on the way near Stadium to whom the girl was introduced and the occurrence was narrated. The Thanedar recorded the statement (Exh. PA.) and on the basis of this statement F.I.R. (Exh.PA./1) was recorded in the Police Station Saddar Chichawatni and the investigation was taken in hand by Khadim Hussain, S.I. C.I.A. Staff, Multan.
4. The prosecution has examined six witnesses in all. P.W.1 Mst. Abida and P.W.2 Nazir Ahmad are the witnesses of the occurrence.
5. P.W.4 Lady Dr: Zubeda Khatoon has examined the girl on the next day i.e. 10-S-1988 and on the basis of her clinical examination as well as on the report of the Chemical Examiner (Exh. P.F.) given an opinion that the girl was subjected to sexual intercourse.
6. All the four accused/appellants have denied the charge against them. Appellant Yaqoob in answer to question No.7 has stated that `I have been falsely implicated in this case due to enmity and party faction'. The above is common defence of all and the remaining three accused have also repeated the same sentence in their statements under section 342, Cr. P.C. All the four have declined to be examined under section 340(2). Cr. P.C. And the presumption is that they are avoiding to be subjected to cross-examination.
7. The learned counsel for the appellants has argued before us that the evidence against the accused is very meagre. The learned counsel contended that the statements of only two witnesses of the event namely P.W.1 Mst. Abida and an eye-witness P.W.2 Nazir Ahmad should not be deemed to be sufficient to warrant the conviction. Further, that these two statements are poor in quality and remained uncorroborated. That the Shal of the girl has not been produced in Court and recovered `Chhuri' has also not been produced. That no marks of violence or any injury has been detected by the doctor on the body of the victim, which indicates that no resistance or scuffle had taken place.
As such no Zina was committed. According to the learned counsel the complainant Abdus Sattar and even the victim girl are personal servants of Lambardar Abdur Rashid, at whose instance the whole story has been cooked up to falsely implicate the appellants id this case. The learned counsel points out that the Lambardar had accompanied the complainant to the police station on the very evening but no complaint was lodged. The complaint was lodged on the next day. On the point of presence of semen on the swabs taken from the vagina of the victim girl, the learned counsel has submitted that though the swabs were taken by the doctor at the time of the examination of the girl and the swabs were transmitted to the laboratory and subjected to chemical test, yet the report is of no value as the carrier of the swabs from the hospital to the laboratory has not been examined.
8. The above contentions casually looked at seem to be quite attractive, but on closely examining the case they hold no water. It should be remembered that this uncouth and simple village-maid had no benefit of university education. She was not capable of articulating her version in a sophisticated and refined manner. Indeed the simplicity and plainness is the strength of her statement. There seems to be no earthly reason why this unmarried girl should stake her future and tar her reputation by making a false charge against innocent young man of her village.
Further, why the father Abdus Sattar should involve his young unmarried daughter in such a dirty affair which would not only ruin the life of his daughter I but incur the displeasure and acrimony of the residents of the village.
9. It is to be noted that none of the four appellants has suggested what enmity there was and with whom. Whether there was enmity between the appellants and the victim's family or between the appellants and Lambardar Abdur Rashid. Mere allegation, without any proof of enmity or any particulars of the enmity, would not be enough to discredit the statements on oath and offset the effect of the statements of independent witnesses.
10. So far as the number of witnesses is concerned, it cannot be conceived that there would be large number of witnesses to witness such occurrences. Moreover, in the situation of the case absence of so many witnesses is quite understandable. It was hot summer month of May, the time was 12 noon and it was also the fasting month of Ramazan. At such an hour during Ramazan one should not expect people on the road. They are mostly indoors. Consequently the contention that no passerby on the road was attracted on the shrieks of the girl has no substance. So far as the objection to the non-filing of the report on the same day is concerned, it would amount to closing our eyes to the conditions in the village, nay even in towns. It is a matter of common knowledge that the police do not usually record the F.I.R, of the crimes easily. Perhaps this practice of avoiding to record F.I.R. Explains the presence of Lambardar Abdur Rashid at the time when the statement/complaint (Exh. PA.) was made to the police by Abdus Sattar. Abdus Sattar is a poor man serving this Lambardar and the least he could expect from his employer was that he should at least get the F.I.R. Registered by using his good offices in the police station.
11. In the present day situation of the society when influential of the village possessing all the means and the might are at large to successfully obstruct the passage of underdogs to the portals of justice, to insist for a litmus test proof of the crime is apt to result in miscarriage of justice. In many a case it so happens that though the witnesses have seen the occurrence, yet they hesitate to turn up and state the truth because the instinct to keep the body and soul together rule stronger than to become a martyr in support of the truth. Similarly to expect the turning of the wheels of the existing investigating machinery according to the log--book would mean closing eyes from the realities of life. If the sanctity o1 `Chaddar' and `Chardevari' is to be preserved and rising rate of crimes in the society is to be controlled the exercise of thrashing the truth from the corn is to be brought in accord with the prevailing present day situation. Remaining glued to the procedure in disposing of cases would result in their whole sale dismissals. The best that can be done in the situation is to make an honest effort to search the truth giving all allowances for the rot that has permeated in the system. In most of the cases the sentences have got to be passed although much remains to be desired when the performance of the prosecuting agencies are put to test.
12. Viewed in the above context the learned Judge has seen the demeanour of the. Witnesses, the victim girl has appeared in the Court and has withstood the lengthy cross-examination, So is the case with P.W.2 Nazir Ahmad. We do not find any reason to disagree with the findings of the learned trial Judge and convert the conviction to acquittal. The sentence awarded under section 10(3) of the Ordinance in the case of appellant Yaqoob is also appropriate rather lenient. Appellant Yaqoob was caught red-handed violating the chastity of the girl and the compensation of Rs.5,000 allowed to the victim is not too much. We confirm the sentences passed against appellant Yaqoob under both counts and dismiss his appeal.
13. The sentence under section 225, P.P.C. Awarded to the remaining three appellants are also appropriate. And their appeal is also dismissed. Appellants Shadi, Yasin and Sadiq are on bail, their bail bonds are cancelled and they shall be taken into custody to serve out the remaining sentence.
Appellant Sadiq is present in Court. He shall be arrested forthwith. Non-bail-able warrants be issued to other convicts namely Yaseen son of Shadi and Shadi son of Fazal Din and they shall be arrested to serve out the remaining sentence. Benefit of section 382-B, Cr .P.C. Stands maintained.
14. Turning to the revision filed by the victim through her father we do not feel inclined to enhance the sentence under section 10(3) of the Ordinance. We are informed that this appellant is first offender and is not very advance in his age. These two factors are usually taken to be a circumstance for not inflicting harsher punishments on the offenders. With the above observations both the appeal and the revision are dismissed.