' ABDUL KARIM KHAN KUNDI, J.--- By his judgment and order, dated 15-4-1989, learned Additional Sessions Judge-II, Bahawalnagar acquitted Mst. Amiran co-accused of all the charges, extending her benefit of doubt but proceeded to convict and sentence Muhammad Rafique alias Kali and Muhammad Shafique alias Mali brothers inter se appellants to life imprisonment, whipping numbering thirty stripes and fine of Rs,5,000 or in default one year's R.I. Further each on the charge of abduction of Mst. Elahi Sain, P.W. In order to force her to illicit intercourse under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as Ordinance and further convicted and sentenced them to seven years' R.I. With whipping numbering thirty stripes each on the charge of Zinabil-Jabr with Mst. Elahi Sain under section 10(3) of the Ordinance. Yasin appellant was convicted and sentenced to two years' R.I. Whipping numbering ten stripes and fine of Rs,1,000 and in default three months' R.I. Further on the charge of detaining Mst. Elahi Sain in his house with criminal intent under section 16 of the Ordinance. The convicts filed Criminal Appeal No,169/L of 1989 as against their convictions and sentences while the complainant filed Criminal Revision No,47/L of 1989 as against the acquittal of Mst. Amiran co-accused and Criminal Revision No,48/L of 1989 for the enhancement of the sentences of the convicts. We propose to dispose of the three matters by a joint judgment as below.
2. On the charge of abduction under section 11 of the Ordinance, prosecution produced Ali Shaheed (P.W.1) and Aziz-ur-Rehman (P.W.2) who had allegedly seen Mst. Elahi Sain in the company of Shafique, Rafique and Mst. Amiran near railway crossing Ghirdhariwala, boarding a bus on way to Bahawalnagar and that on their inquiry Kali accused had told them that they were taking Mst. Elahi Sain P.W. To meet her ailing mother admitted in the hospital. The two P.Ws. Had allegedly soon afterwards met Sajwar Khan (P.W.9), Abdul Shakoor (P.W.8) and one Ahmad Din (not produced) and had told them about the alleged incident of abduction as witnessed by them. The two P.Ws.
Were disinterested witnesses, neither related to the parties nor inimical to either of them. P.W.1 is also a literate person with a C.Com qualification. Both the witnesses stated on oath at the trial that they had not seen the accused going together at all and that Mst. Elahi Sain P.W. Was not even known to them. They were declared hostile and cross-examined by the A.P.P. But nothing has come out from their statements in support of the prosecution. Sajwar Khan (P.W.9) and Abdul Shakoor (P.W.8) were consequently to furnish hearsay and inadmissible evidence as allegedly reported to them by P.W.1 and P.W.2 who denied the incident at all. Abdul Shakoor (P.W.8) is the son of the complainant (P.W.9). He has also not said a word about the incident of coming across P.W.1 and P.W.2 on the day of occurrence and later reporting them about their alleged encounter with the accused abducting Mst. Elahi Sain P.W. As such on the point of actual abduction we have the only evidence of Mst. Elahi Sain (P.W.10).
3. The alleged abduction took plate on the night of 22-7-1988. She was allegedly recovered on 26- 7-1988 and was examined by the I.O. Under section 161, Cr.P.C. The same day. She was medically examined on 27-7-1988. Her age was reported 22 years. No marks of violence were found on any part of her body. She was menstruating at the time of her examination. Her hymen was found absent, edges healed and vagina admitting two fingers easily. Swabs were taken and sent to Chemical Examiner which were reported stained with semen. The doctor stated that the lady, was habitual to sexual intercourse. She also stated in cross-examination that the Chemical Examiner should have ordinarily reported the swabs stained with blood as well.
4. Mst. Elahi Sain (P.W.10) narrated the overall incident that she had come out of her house at "Isha" time for natural call, leaving her grandfather Sajwar Khan and three brothers sleeping back in the house. Rafique and Shafique brothers appellants, were living at a distance of 2 squares from her house. She had come out of her house only 10/20 Karams that they had closed her mouth and took her to their house first where Mst. Amiran co-accused (acquitted) joined them and afterwards they started towards railway crossing where two persons met them with whom Kali accused started talking. She did not raise alarm at that time. She and the accused boarded into a bus for Bahawalnagar. There were other passengers in the bus besides conductor and driver. She also did not raise alarm in the bus. The accused party alighted from the bus at Bahawalnagar Octroi Post where they went in the house of Yasin surrounded by houses in the neighbourhood. She was kept for four nights in the said house. Mali accused used to commit Zina with her at night time while Kali used to commit Zina with her at day time. Mali accused had brought Sajwar Khan, Muhammad Ashraf, Chiragh Ali and Ahmad Ali Bhatti to the house of Kali. On seeing her relatives Kali, Yasin and Amiran had fled away. She had narrated the incident to her maternal-grandfather and other persons. She was afterwards taken to police station where her statement was recorded. The lady had not raised alarm throughout her journey and also while lodged in the house of Yasin appellant.
The occurrence took place on 22-7-1988. The F.I.R. Was lodged on 26-7-1988 by her maternal- grandfather after the recovery of the abductee. In the F.I.R. Besides abduction there were also made allegations of Zina. The police has, however, registered only a case of abduction under section 11 of the Ordinance. She was medically examined on 27-7-1988 only a day after her recovery. She was, however, to make statement on oath at the trial that she was not medically examined after third day of her recovery. It appears to be a case fhat F.I.R. Was registered with inordinate delay after deliberation and Mst. Elahi Sain was also medically examined with delay. She was menstruating at the time of her medical examination. Her vaginal swabs were to be reported stained with blood with certainty and possibly with semen also but the Chemical Examiner reported her vaginal swa bs only stained with semen without mentioning blood to which even the lady doctor took exception. The abductee remained in the custody of the appellants for four days and she was allegedly subjected to Zina day and night and on recovery a day afterwards she was medically examined and was found menstruating. In case her menstruation had started earlier she would not have been subjected to Zina day and night as alleged. The medical examination further reported her habitual to sexual intercourse with no marks of fresh violence on any part of the body and her hymen was reported absent and edges healed, suggesting that perhaps she was not subjected to Zina in the immediate past period as alleged.
5. Coming to the other evidence furnished by Muhammad Ashraf (P.W.3), Abdul Shakoor (P.W.8) and Sajwar Khan (P.W.9) the latter two are the close relations of the abductee while Muhammad Ashraf (P.W.3) claimed to be a witness of the recovery and convening of Punchayat but was not examined under section 161, Cr.P.C. He is a school teacher and claimed to have been made a statement of confession before him by Shafique appellant that he and Rafique appellant had been committing Zina-bil-Jabr with Mst. Elahi Sain. Neither such extra-judicial confession was put to the appellants for their explanation under section 342, Cr.P.C. Nor this fact was mentioned in his statement under section 161, Cr.P.C. He has further not stated in his police statement that Muhammad Rafique, Mst. Amiran and Shafique accused were present at the house of Yasin at the time of recovery of Mst. Elahi Sain and that all the four accused had fled away from the spot. It was also not recorded in his police statement that thereafter they had taken Mst. Elahi Sain to the police station. Actually he has furnished no legal evidence to place reliance on for the proof of the charges of abduction and Zina.
6. Appellants professed innocence throughout and produced Ramzan (D.W.1), Muhammad Ramzan (D.W.2) and Muhammad Riaz (D.W.3) that in fact Mst. Elahi Sain was abducted by Qazi Shafique and lqbal and some other persons who had left her later on at night in the village that she was roaming in had trespassed into a bungalow in Defence Area and on pistol point they had snatched away some ornaments and other articles from the lady. On 1-3-1991 they led the police party to Bungalow No,1190 in Defence Area and indicated that they committed the offence in that house. On 2-3-1991 they led to their respective houses in Uhena Abad, Lahore. Karamat Masih alias Jagga petitioner got recovered from his house a golden watch and a bangle made of gold, while Ilyas Masih alias Sohny appellant got recovered ear-rings and a bangle made of gold from his house.
The police seized these articles. On 3-51991 these were shown to Mst. Mahmooda Begum complainant, who identified the same as her own. Salim Masih alias Salimi petitioner could not be arrested and the police, ultimately showing him as absconder, sent up Karamat Masih alias Jagga and Ilyas Masih alias Sohny petitioners to the Court of Illaqa Magistrate for trial. It appears that Salim Masih alias Salimi petitioner was later arrested and he also joined the trial.
4. On the commencement of the trial they were charged under section 382, P.P.C. And, on their pleading not guilty, the prosecution led evidence against them. A.S.I. Asghar Ali (P.W.1) had recorded the formal FIR. (Exh.PA./1) on the basis of written complaint (Exh.P.A.). He deposed accordingly. A.S.I. Muhammad Zia-ul-Haq (P.W.2) gave the details of initial investigation of the case conducted by him. He added that before his transfer he had got the details of the articles of theft in this case circulated in the police gazette. A.S.I. Ata Muhammad (P.W.3) deposed as how on 27-2- 1991 a Nakabandi party of the police, of which he too was a member, apprehended four suspects, out of whom two were Karamat Masih alias Jagga and Ilyas Masih alias Sohni, petitioners, who, as a result of interrogation, on 2-3-1991 led to the recovery of some stolen articles of Mst. Mahmooda Begum complainant. According to him, the former got recovered a golden wrist watch and a golden bangle, and the later ear-rings and a bangle made of gold; from their respective houses, which were seized by him, vide recovery memo. (Exh.P.E.) and (Exh.P.F.), respectively. These articles were identified by Mst. Mehmooda Begum complainant on 5-3-1991 as her own, he added. He proved the site plans (Exh.P.J.) and (Exh.P.K.) of the places of recovery of these articles. Mst.
Mehmooda Begum complainant appearing as (P.W.4) reiterated the contents of her complaint with more details. She claimed to have identified all the three appellants during the course of her deposition before the trial Court. According to her, they were the same persons who had a few months earlier on pistol point snatched away her ornaments besides other articles, including prize bonds of Rs,10,000 and Rs,1,000 in cash after trespassing into her house and roaming about leisurely and eating eatables from her freezer. In reply to a question of the cross-examination, she stated that the accused had got certain other articles manufactured from the stolen bangles and the same were not handed over to her.
5. The next witness was A.S.I. Noor Ahmad Naik (P.W.5). He deposed that during the days of occurrence he was posted at Police Station Wandat Colony and this case was being investigated by A.S.I. Ata Muhammad P.W. And in response to his interrogation Karamat Masih and Ilyas Masih petitioners first led to the house where they had committed the crime and then leading to their own houses at Uhena Abad got recovered the stolen watch, which were seized by A.S.I. Ata Muhammad. He proved the recovery memo. Signed by him as an attesting witness.
6. On the completion of the prosecution evidence, the petitioners, in their respective statements recorded under section 342, Cr.P.C. Denied all the incriminating circumstances and alleging their false implication, professed innocence. They produced no defence.
7. On the conclusion of the trial, they were convicted by the trial Court in the manner aforesaid and their appeal also failed. So they invoked the revisional jurisdiction of this Court.
8. It was argued on behalf of the petitioners that they were poor labourers and were falsely implicated in this case by the police and certain articles were planted on them merely to please the complainant, who happened to be the wife of a senior Army Officer and the police wanted to justify that they were able to detect the crime and recover some stolen articles. It was urged that the petitioners were arrested quite a few months after the incident taking place in the house of the complainant and since they were not previously known to her, it was necessary for the police to have arranged their identification parade for their identification by the complainant but they did not resort to this process and the identification of the petitioners during trial by the complainant was not enough for basing their conviction under section 382, P.P.C. According to the learned counsel, as per statement of the complainant in the cross-examination, the petitioners had entered her house by following her two young maid-servants, which indicates that at the time of commission of the crime those two girls were present but they were not cited as prosecution witnesses, nor the people of locality, who had seen the 4th culprit standing outside the bungalow on a vigil, had been mentioned as prosecution witnesses and in these circumstances when the material evidence had been suppressed, her solitary statement was not enough to prove her allegations against the petitioners. Finally it was urged that Mst. Mehmooda Begum complainant, in reply to a question of cross-examination, had admitted that her bangles had been substituted by the accused as they got manufactured some other articles from them and in these circumstances it was not possible for the prosecution to claim that she had identified her stolen bangles after their recovery from the petitioners.
9. In the opinion of the learned State counsel, the case stood amply proved by the prosecution against the appellants and they were rightly convicted and sentenced. According to him, the statement of Mst. Mehmooda Begum by itself was enough to sustain their conviction as she had no previous enmity against them, nor there was any reason for her to falsely implicate them for snatching her ornaments and other articles, including prize bonds and some amount in cash.
10. It is an admitted position that neither the police nor Mst. Mehmooda Begum complainant had any animosity, rancour or illwill against the petitioners and there was no reason that they should have falsely implicated them in this case. There is no substance in the contention that the police wanted to show some performance in this case under the pressure of the complainant, who happened to be the wife of a senior Army Officer. The incident took place in the area within the jurisdiction of Police Station Defence Area, while the petitioners were apprehended by the Police of Wandat Colony, Lahore, which was under no obligation to detect the crime of Police Station Defence Area and as such there was no question of their showing any performance in this matter under the pressure of the complainant or her husband.
11. As regards the omission on the part of the police to arrange for the identification parade of the petitioners by the complainant, this too does not adversely affect the prosecution case. Ordinarily, when the persons committing the crime are strangers to the eye-witnesses, on the arrest of the former, the police arranges an identification parade in the jail under the supervision of a Magistrate. This is more a rule of prudence than a statutory obligation. Due to certain malpractices creeping in its procedure with passage of time, it has, to a greater extent lost its efficacy. For instance, when an accused previously unknown to the eye-witnesses is arrested by the police, the rule requires that his face should be immediately covered and, after obtaining his judicial remand from the Magistrate, he should be promptly sent to the judicial lock-up for identification parade, but in the majority of cases the police would never care to cover up his face from the public and the eye-witnesses and to claim compliance of requirements of the rule, they would allege that his face was covered. After the arrest, he in the normal course, is to be kept for some time at the police station for completing papers and then he is taken to the Magistrate in the Court premises for obtaining his judicial remand and then he is taken to the judicial lock-up. Even if the police takes some precaution to cover up his face, which by itself is a cruel and derogatory act, being against human dignity, the eye-witnesses, either on account of their own anxiety or with the connivance of the police, have the chance of seeing him after his arrest and before his confinement in the judicial lock-up. In some cases, where the police is in closer liaison with the complainant party, it affords an opportunity to the witnesses of seeing him. If the police takes all these precautions, the complainant party even through the Jail authorities manage to see the accused beforehand to identify him. The other side of the picture is that even if the police and the Magistrate take fool- proof precautions to conceal the identity of the accused from his arrest till the identification parade, the accused even then generally allege that they have been shown to the witnesses, because with the passage of time they have come to know the beneficial legal implications of raising such objections before the Magistrate at the time of identification parade. So the whole process of identification, on account of its cumbersome, rather, to some extent, impracticable procedure, coupled with certain malpractices mentioned above, has become a futile exercise.
Therefore, its omission in this case should not adversely affect the prosecution case, moreso when its observance more depends upon the honesty and efficiency of some official agencies and they are failing in the performance of their functions. For their failure, the aggrieved person cannot be allowed to suffer. For example, in the instant case if the police has failed to arrange the identification parade, why the complainant lady, who has been wronged so much in her house in the broad daylight, should suffer by refusing to redress her grievances on account of the fault of the police? She had no control over the police. Therefore, in the instant case, the omission on the part of the police to arrange identification parade of the petitioners is not injurious to the prosecution case. The complainant was the wife of a senior Army Officer and being a respectable and educated lady, having no axe to grind against the petitioners, her statement about the identification of the petitioners, which inspires confidence, cannot be discarded.
11. The next contention of the learned counsel was also without force. No doubt, Mst. Mehmooda Begum complainant admitted in her statement in the cross-examination that the petitioners had immediately followed her two young maid-servants into the house but no further explanation was sought from her as where those two girls had gone when the occurrence began, nor did she further elaborate this fact herself. It is obvious that when the petitioners pulled out their pistols and started removing the ornaments of Mst. Mehmooda Begum complainant, her two young maid-servants, who were not permanent occupants of the house, must have slipped away. In any case, the statement of the complainant did not require any corroboration by those girls nor from the people of locality, who had allegedly been seeing the fourth culprit keeping vigil outside the house. Due to frequent incident of robberies, dacoities and house trespass, even in broad daylight, as in this case, people feel terrified and nobody is ready to come to the rescue of the victims nor to depose in their favour. If Mst. Mehmooda Begum complainant could not produce her two maid-servants and the people of locality as her witnesses, she is not to blame.
12. As regards the last contention, this too did not cut much ice. It may be kept in mind that it was not a simple case of theft or recovery of stolen property. In fact it was a case of robbery and it was not necessary for the prosecution to prove the recovery of the snatched away articles, though some portion of the stolen articles was recovered and could serve as a corroboration. The complainant has clearly deposed as to how on pistol point the three petitioners removed her ornaments Trom her person besides taking away some other precious articles, including prize bonds and, currency notes. These were the necessary ingredients of the offence under section 382, P.P.C. And stood duly proved from her solitary statement. Thus, even if there was any deficiency in the recovery proceedings of the stolen property or there was any doubt in the identification of such property after its recovery, it did not adversely affect the prosecution case with regard to the commission of offence under section 382, P.P.C.
13. For various reasons stated above, there is no substance in this revisioniF and the same is dismissed.
14. Before parting with this order, it may be mentioned that it was obviously a case of robbery, punishable under section 392, P.P.C. And house trespass punishable under section 452, P.P.C. Both triable by a Magistrate Section 30 and should have been registered as such but Defence Area Police, in order to lay down a serious crime, which affects their performance, deliberately registered it as the one under section 382, P.P.C. In order to show it as a lesser offence and submitted the challan purposely to the Magistrate 1st Class who could not award more than three years' imprisonment. A copy of this judgment should, therefore, be sent to S.S.P. Lahore for initiating suitable departmental action against the S.H.O. And other police officials concerned, for suppressing a serious crime and to save the petitioner, from adequate punishment.