Syed SAEED MUHAMMAD SHAH and anothers vs THE STATE

' SAJJAD ALI SHAH, J.---Above-captioned two appeals are filed under section 13 of the Special Courts for Speedy Trials Act, 1992, calling in question judgment dated 23-11-1992 of the Special Court for Speedy Trials, Tando Muhammad Khan, whereby Special Case No,1 of 1992 is disposed of convicting appellant Syed Saeed Muhammad Shah under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979 (to be referred hereafter as the Zina Ordinance) and sentencing him to R.I. For 15 years and 30 stripes. Appellant Khuda Bakhsh Sheedi having been found guilty of abetting the offence committed by Saeed Muhammad Shah is convicted for offence under section 10(3) of the Zina Ordinance read with section 109/34 P.P.C. And is sentenced to R.I. For 3 years. Both appellants have been absolved of charges under section 11/12 of the Zina Ordinance and offences under sections 342, 336, 504 and 323, P.P.C. Since impugned judgment and evidence recorded is common, we propose to dispose of both these appeals by single judgment.

2. Briefly stated the relevant facts giving rise to these appeals are that as per the case of the prosecution Mst. Sahiba aged about 12 years daughter of complainant Jaffer was raped twice by appellant Saeed Muhammad Shah on 10-10-1992 at about 3-00 p.m. In the old and abandoned school building situate in the land of Syed Zulfiqar Ali Shah at Jarra canal in Dch Dhandli. Appellant Khuda Bakhsh alias Khudoo Sheedi, who is servant of Saeed Muhammad Shah was instrumental in bringing Mst. Sahiba and her mother and father to the scene of offence by overawing them with threats and stood guard with hatchet in his hand outside the room while rape was carried on. Rape took place while mother and father of Mst. Sahiba were kept at bay under the tree near the spot by appellant Khudoo Sheedi. After the rape Mst. Sahiba and her parents were sent in a vehicle and left outside Saeedpur town. They went to their house and in the morning apprised Saleh Mirbahar, Achar Patel and Hassan Mirbahar and others who informed Syed Qabool Muhammad Shah on telephone who advised to lodge complaint with police. On 11-10-1992 at 19 hours (7-00 p.m.) complainant Jaffer lodged report at Police Station Tando Muhammad Khan which was registered as report in Crime No,115 of 1992. Complainant was not satisfied with this report for the reason that according to him name of Saeed Muhammad Shah as rapist was not mentioned in it by the police and it was recorded therein that Khuda Bakhsh Sheedi and one other unknown man had committed rape with Mst. Sahiba. Secondly, jungle was shown as place of rape. Clothes of Mst.

Sahiba were recovered and she was referred to the hospital for medical examination. Not satisfied with the report complainant complained to high officers of the police and with their help was able to file second F.I.R.

3. D.S.P. Noor Ali Mari of C.IA. Deposed before the trial Court that on 14-10-1992 on the direction of S.S.P., Hyderabad, he recorded fresh F.I.R. In accordance with information given by complainant Jaffer. He did so and made such entry in the station diary. He forwarded that station diary to S.H.O.

P.S. Bulri Karim Shah for incorporating it in 154, Cr.P.C. Register and in the result F.I.R. No,71 of 1992 was registered. He sent Mst. Sahiba for medical examination. He arrested Khuda Bakhsh who was already in lock-up and Saeed Muhammad Shah. He visited abandoned school where rape was committed as claimed by the complainant and prepared such Mashirnama. He recorded 161, Cr.P.C. Statements of P.Ws. Hassan, Haji, Saleh, Mst. Basra (mother of victim) and Achar Patel. He made recovery of clothes of Mst. Sahiba which were already sealed in the investigation of previous F.I.R. The packet was opened in front of complainant who identified the clothes and then resealed.

He filed case against D.S.P. Qamaruddin and S.H.O. Younus of P.S. Tando Muhammad Khan for recording incorrect F.I.R. He got recorded statements of witnesses under section 164, Cr.P.C. On 18- 10-1992 he handed over investigation to Crime Branch. D.S.P. Mian Masud Hayat of Crime Branch, Karachi, took over investigation on 18-10-1992 and produced Saeed Muhammad Shah before the doctor in L.M.C. Hospital, Hyderabad for examination and it was reported that he was fit to commit sexual intercourse. D.S.P. Further caught hold of drivers of Suzuki Pick-up and private taxi used in the commission of crime and recorded statements of drivers Muhammad Khan and Bholoo. After transfer of this D.S.P., investigation was taken over by D.S.P. Nizamuddin of Crime Branch who brought appellants to Karachi and got 164, Cr.P.C. Statements of Mst. Sahiba and complainant Jaffer recorded through A.C.M. At Karachi in presence of the appellants. After completion all steps in the investigation, challan was presented.

4. In the trial Court prosecution examined 16 witnesses in support of its case. P.W.1 is Jaffer complainant and P.W.2 is Mst. Sahiba, who is victim of rape. P.W.3 is Porho who is brother of Mst.

Sahiba and step-son of Jaffer. P.W.4 Muhammad Khan and P.W.5 Bholoo are drivers of vehicles used in the crime. P.W.6 Dr. Farhana Qureshi examined victim on 15-10-1992 in L.M.C. Hospital, Hyderabad and found no marks of violence on her body. According to her hymen of victim was torn and slight bleeding was detected. In The opinion of the doctor the girl was subjected to sexual intercourse and on radiological examination was found between 13/14 years of age. She took vagina slides and sent them to Chemical Examiner. P.W.7 is Dr. Manzoor Shaikh who examined Saeed Muhammad Shah and found him capable of committing sexual intercourse. P.W.8 is Dr. Farida Jabbar who examined victim on 11-10-1992 at Taluka Hospital, Tando Muhammad Khan in connection with investigation of first F.I.R. (Crime No,115 of 1992). According to the doctor" victim was 13 years old and was not virgin as her hymen was ruptured. She was subjected to sexual intercourse between 30 to 40 hours.

5. P.W.9 is Ghulam Mustafa A.S.I. Of C.IA. Who arrested Khuda Bakhsh on 14-10-1992 who was already in custody. P.W.10 is Qamaruddin, P.C. Who attested Mashirnama of Vardat Exh.14/1 prepared on 15-10-1992. He also attested Mashirnama of recovery of clothes Exh.14/2. P.W.11 is Sultan Badshah A.S.I. Who attested Mashirnama of arrest of Saeed Muhammad Shah on 14-10-1992 vide Exh.15/1. P.W.12 is Dr. Irshad Memon, who examined complainant Jaffer and found two. Bruises on him of simple nature. P.W.13 D.S.P. Noor Ali Mari, and P.W.14 Mian Masood Hayat have taken part in the investigation of the case as stated above. P.W.15 Ghulam Muhammad S.I.P. And Additional S.H.O. Of P.S. Tando Muhammad Khan cancelled F.I.R. In Crime No,115/92 on the direction of S.S.P., Hyderabad. He submitted final report to S.D.M., Tando Muhammad Khan for orders. He produced such order dated 5-14-1992 as Exh.20/1. P.W.16 is D.S.P. Nizamuddin of Crime Branch who also dealt with investigation as stated above. Prosecution produced two reports from Chemical Examiner.

According to the report Exh.21/1 human semen belonging to Group "0" detected in the sealed test tube.

' According to report Exh.21/2 human semen belonging to Group "0" detected in Shalwar and shirt of victim and human blood belonging to Group "B" detected on the vaginal slides. Vide statement dated 11-11-1992 Special Public Prosecutor gave up P.Ws. Achar, Haji, Saleh, Hussain for the reason that they were not eye-witnesses and further had been won over. P.W. Mst. Basra (mother of victim) was given up on the ground that she was an old lady physically and mentally unable to give evidence. P.W. Mr. Ghulam Mohiuddin, A.C.M. Was given up for the reason that he had only recorded statements of Mst. Sahiba and complainant Jaffer under section 164, Cr.P.C.

6. In the trial Court in his statement under section 342, Cr.P.C. Appellant Saeed Muhammad Shah denied prosecution allegations and proclaimed false implication due to conspiracy of Mirs and Pirs who are inimical to him. He denied having committed rape or sexual intercourse with Mst. Sahiba.

He filed statement in writing giving background of enmity. According to this statement Syed Qabool Muhammad Shah maternal uncle of this appellant defeated Mir Aijaz Ali Talpur and Mohsin Shah defeated Mir Mumtaz Ali Talpur. Pir Saeed Jan Sarhandi acted as Chief Election Agent of Mir Group. After dissolution of District Council, Hyderabad, Syed Zulfiqar Ali Shah, elder brother of appellant was likely to be appointed as Administrator for which post Khalid Jan Sarhandi was aspirant. It was further stated by Saeed Muhammad Shah that Khuda Bakhsh Sheedi no more worked with him and was employed by Khuda Dino Tangri as labourer in the brick kilns. Prime Minister of Pakistan was assured that the ease was true and he awarded an amount of Rs,1 lac in cash and land admeasuring 16 acres to Mst. Sahiba. Witnesses in the case were taken in protective custody and were tutored.

7. Appellant Khuda Bakhsh alias Khudoo Sheedi in his statement under section 342, Cr.P.C. Denied prosecution allegations and disclaimed any knowledge about the incident. He further stated that he left service of Saeed Muhammad Shah six months prior to the incident. He filed statement in writing in which it was stated by him that he was employed by Khuda Dino Tangri in his brick kilns and was implicated in this case on account of his past service with Saeed Muhammad Shah due to political rivalry with Mirs and Pirs. Appellant Khuda Bakhsh Sheedi also gave statement on oath under section 340(2), Cr.P.C. Further eight witnesses have been examined. Remaining defence witnesses were given up vide statement dated 16-11-1992 of defence counsel on the ground that they had been won over and side was closed.

8. Before us it was submitted on behalf of the appellants that evidence of three most important witnesses of prosecution namely P.W.1 complainant Jaffer, P.W.2 Mst. Sahiba and P.W.3 Porho is defective and unreliable and is not sufficient to form basis of conviction. In this context the very first attack on the abovementioned evidence is that the investigation in this case has been conducted dishonestly inasmuch as first of Crime No,115 of 1992 was cancelled in illegal manner and without justification due to political pressure. To this reply given by learned A.A.-G. For the State is that first F.I.R. In Crime No,115 of 1992 was dishonsetly recorded with attempt to screen main culprit Saeed Muhammad Shah, whose name was not mentioned as rapist and place of incident was also shown in jungle which was factually incorrect. We propose to examine this aspect of the case first. During the hearing of appeal when mention was made before us about first F.I.R. In Crime No,115 of 1992, we wanted to peruse it and we were informed that it was not included in the record for the reason that it was not acted upon and cancelled. An application was filed in the court before us for causing production of F.I.R. In Crime No,115 of 1992 on the ground that there was no legal justification for filing second F.I.R. In Crime No,71 of 1992 and such illegality was not curable under section 537, Cr.P.C. After hearing learned counsel for the appellants and State we sent for the relevant record of investigation of F.I.R. In Crime No,115 of 1992 ' and its cancellation. In compliance the requisite record was produced before us.

9. In both F.I.Rs, mentioned above, complainant.Is Jaffer father of victim of rape Mst. Sahiba. F.I.R. In Crime No,115 of 1992 was registered as P.S. Tando Muhammad Khan on 1140-1992 at 7-00 p.m.

Which was registered by S.H.O. Muhammad Younus, who also undertook to investigate the case.

According to this F.I.R. At about 2-00 p.m. Khuda Bakhsh son of Iddan Sheedi who is servant of Saeed Muhammad Shah came to the house of complainant alongwith one other young boy who was not identified and told complainant that Saeed Muhammad Shah had sent for his daughter and saying that both of them forcibly took away Mst. Sahiba in the jeep. At a distance of about one mile to the south of house of complainant Khuda Bakhsh removed clothes of Mst. Sahiba and forcibly committed sexual intercourse with her. Complainant raised cries and he was given Lathi blows by that other man. Then that other man also committed rape with the girl and both of them continued doing that up to 6-30 p.m. Afterwards, they brought daughter of complainant to his house in the jeep. Complainant remained in his house for the night and in the morning informed Nekmard Achar Patel, who after some time advised him to file report with the police. Papers relating to the investigation of F.I.R. No,115 of 1992 show that clothes of Mst. Sahiba were recovered which were found to be stained with semen and blood and were put into a sealed parcel. Mst.

Sahiba was referred for medical examination and she was so examined by P.W.8 Dr. Farida Jabbar on 11-10-1992. Place of occurrence was inspected and memo. Prepared. Mst. Sahiba not being in proper state of mind declined to give statement under section 161, Cr.P.C. Khuda Bakhsh Sheedi was arrested. Second F.I.R. In Crime No,71 of 1992 was registered at P.S. Bulri Karim Shah on 14-10-1992.

P.W.13 D.S.P. Noor Ali Mari of C.IA. Centre, Hyderabad deposed that he was directed by S.S.P. To record fresh F.I.R. As F.I.R. Of Jaffer was not correctly recorded according to his instructions. He recorded statement of complainant Jaffer in the station diary Exh.5/1, which was thumb marked by the complainant. The station diary was sent to S.H.O. P.S. Bulri Karim Shah, who incorported the same in 154, Cr.P.C. Register. D.S.P. Noor Ali Mari then took in hand the investigation afresh. P.W.15 Ghulam Muhammad S:I.P. Was additional S.H.O. Of P.S. Tando Muhammad Khan and on 14-10-1992 he cancelled F.I.R. In Crime No,115 of 1992 on the direction of S.S.P. This S.S.P. Who directed cancellation of F.I.R. And fresh investigation by Noor Ali Mari was not examined in the trial Court. He was under .Legal obligation to explain under what provisions of law he had issued direction for cancellation of F.I.R. And filing a fresh F.I.R. He could have been examined as Court witness also to explain as to what material was available with him on the basis of which he was satisfied that first F.I.R. Was false. At page 241 of the paper book there is order of the Magistrate Exh.20/1, which shows that he has disposed of the case arising from Crime No,115 of 1992 as cancelled "C" Class mainly for the reason that S.S.P. Hyderabad had recommended that action on the grounds that name of Saeed Muhammad Shah and correct place of Wardat were not mentioned by S.H.O.

10. In Part V of the Criminal Procedure Code there is Chapter XIV containing sections 154 to 176 which relate to the information to the police and their powers to investigate. These provisions cover information in cognizable cases as well as in non-cognizable cases. Under section 154, Cr.P.C. It is mandatorily bounden duty of the police officer to register F.I.R. Of a cognizable offence. Under section 157, Cr.P.C. He has to send his report to the Magistrate and if he does not want to investigate a case for reason of insufficient grounds then also he has to send his report to the Magistrate with reasons for his such conclusion. Under section 159, Cr.P.C. The Magistrate may direct an investigation or hold a preliminary enquiry or otherwise dispose of the case in the manner provided in the Code. Under section 169, Cr.P.C. If there is insufficient evidence or reasonable grounds do not exist to justify forwarding the accused to the Magistrate such police officer can release him on his executing a bond with or without sureties and such report is to be sent to the Magistrate under section 173 for appropriate orders. Section 173, Cr.P.C. Is most important section in this Chapter for the reason that under this section final report of investigation is to be sent by the police officer to the Magistrate empowered to take cognizance of offence. This report is to contain names of the parties, nature of information and names of persons who appeared to be acquainted with the facts and circumstances of the case. Names of accused are to be mentioned whether in custody or not. Report of police officer under section 173 is merely an information of the police officer and the same is not admissible in evidence. Presumption of innocence of accused involved in it is not diminished by mere fact that the case has been sent up for trial or that particular witness or person formed opinion against the accused. In support of this proposition, reference can be made to the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736.

11. We have Police Act, 1861 and Police Rules, 1934 in the field. In Police Rules, Chapter XXV relates to investigation. In the said Chapter Rule 55(2) onwards relates to the investigation of the case by a police officer in cognizable as well as non-cognizable cases. These rules cover almost all steps necessary to be taken in the course of investigation and to bring the investigation to a close and final report as contemplated under rule 25.57. This rule envisages that on completion of investigation final report is to be submitted to the Magistrate and in a case in which police are unsuccessful and it is considered advisable to suspend the investigation, final report is to be submitted as required under section 173, Cr.P.C. In the book titled Police Laws of Pakistan by Shaikh Abdul Haleem (1978 Edition) at the end of the Police Rules, 1935 there are prescribed forms and at page 1166 there is Form No,25.57(2) depicting format of final report under section 173, Cr.P.C. And column No,8 whereof reads as under:-- "Brief description of information or complaint, action taken by police with result and reasons for not proceeding further with investigation."

12. The form mentioned above clearly shows that final report is to be sent to the Magistrate under section 173, Cr.P.C. In the case in which investigation is not completed for some reason. Under section 190 the Court taking cognizance has very vast powers to do so upon receiving a complaint of facts which constitute such offence or upon a report in writing made by police officer or upon information received from any person other than police officer or upon knowledge of Magistrate/Judge or his suspicion that such offence has been committed.

13. In view of powers Of the police for the purpose of investigation and the Court for the purpose of taking cognizance stated above, it is to be seen now whether in this case cancellation of first F.I.R.

(Crime No,115 of 1992) by P.W.16 S.I.P. Ghulam Muhammad, Additional S.H.O. At P.S. Tando Muhammad Khan is legally justified or not. According to this witness he did so under the orders of S.S.P. Who was not examined. Order of the Magistrate Exh.20/1 is on the record (at page 241 of the paper book) which appears to have been passed in perfunctory manner because in view of Senior Superintendent of Police first F.I.R. Had to be cancelled. Order of the Magistrate manifestly is passed without judicial application of mind. If name of Saeed Muhammad Shah was omitted in first F.I.R.

Then there was no legal impediment in the way of recording further statement of complainant mentioning therein name of Saeed Muhammad Shah with role assigned and change of place of occurrence. He could have been taken in custody and proceeded according to law and if there was evidence against him, he could have been challaned. If omission was on account of dishonesty of the police officer who wrote F.I.R. Then action should have been taken against him and all the facts should have been brought to the notice of the Court. Complainant did not come to the police station alone and he was with several persons including his daughter. If complainant correctly dictated contents of F.I.R. And mentioned the name of Saeed Muhammad Shah and place of incident but police officer made vital omissions and when the contents were read out and the omissions were noticed, complainant would have raised hue and cry and would not have participated further in the investigation. First F.I.R. Was registered on 11-10-1992 and second F.I.R.

Was registered on 14-10-1992 and in between there were three days in which further steps were taken in the investigation, clothes of Mst. Sahiba were recovered at the police station and put into scaled parcel, she was sent for medical examination, place of occurrence was visited and Khuda Bux Sheedi was taken in custody. If police officer scribing first F.I.R. Made deliberate and dishonest omission in F.I.R. Then on the charge of misconduct departmental proceedings could have been taken against him under rule 16.24 of the Police Rules, 1934, which would have been a better and efficacious course than judical proceedings. P.W.13 D.S.P. Noor Ali Mari of C.I.A. Deposed before the trial Court that he had filed case against D.S.P. Qamaruddin and S.H.O. Younus of Tando Muhammad Khan for recording incorrect F.I.R. In cross-examination he admitted that he did not secure the investigation papers pertaining to first F.I.R. Which was recorded at P.S. Tando Muhammad Khan. He has not explained further in his evidence as to for what offence cases were filed against D.S.P. Qamaruddin and S.H.O. Younus. On our query as to what happened to that case, learend AA.-G. Informed that F.I.R. Was registered at C.I.A. Centre against these police officers for offences under sections 224 and 225-A, P.P.C. In which they have absconded and the police department is waiting. Section 224, P.P.C. Is resistance and obstruction of person of his lawful apprehension and section 225-A is omission to apprehend and both these offences are bailable punishable with R.I. For two years and three years respectively or with fine. In any case D.S.P.

Qamaruddin and S.H.O. Younus were not produced by the prosecution in this case and it is unascertainable as to what stand they would have taken with regard to allegations against them.

In such circumstances it can be said that in this case prosecution has withheld important evidence by not examining S.S.P. Who ordered cancellation of first F.I.R. And registration of second F.I.R. And D.S.P. Qamaruddin Shaikh and S.H.O. Younus who were concerned with registration of first F.I.R.

Explanation is also very strange that these police officers arc absconding and department is waiting for them. It is likely that case registered against these officers will be decided after the final decision of the main case. Explanation also gives rise to presumption that these police officers were not to be made available to be examined as defence witnesses, if defence wanted to do so.

14. Going back to the appraisement of evidence brought on the record it can be said that the three most important witnesses in the case of the prosecution are P.W.1 Jaffer, P.W.2 Mst. Sahiba and P.W.3 Proho. P.W.1 Jaffer is father of Mst. Sahiba and in the caption of his deposition column of age is blank. In his evdience he has not claimed that he was working for Saeed Muhammad Shah in any capacity. There is observation of the.Trial Court at the foot of page 59 of the paper book that this witness wears spectacles and his one eye is useless. It appears that this observation is made on the basis of admission made by this witness. Incident took place on 10-10-1992 at 3-00 p.m. And we need not go into first F.I.R. In Crime No,115 of 1992 registered at P.S. Tando Muhammad Khan on 11-10- 1992. It would suffice to say that this F.I.R. Was cancelled and copy of it was not given to the defence and was not placed on the record. In this F.I.R. Name of Saeed Muhammad Shah is not mentioned and there is no allegation against him of rape. Place of incident is also shown as in jungle. In the absence of this F.I.R. Complainant could not be cross-examined by defence on this point.

Prosecution was commenced with second F.I.R. Which was registered on 14-10-1992 at 7-30 p.m.

Second F.I.R. Which was recorded after three days of incident (sic) incorporated in 154, Cr.P.C.

Register of C.I.A. Hyderabad and then copy sent to P.S. Bulri Shah Karim for compliance because of its jurisdiction. There is graphic account of incident which runs into more than three typed pages.

Narration in F.I.R. Can be divided into three parts. First part relates to what happened before the rape. Sceond part relates to details of rape. Third part relates to what happened after rape and at the police station.

15. Salient features of narration of F.I.R. Briefly stated are to the effect that since about one or one and a half month prior to the incident Saeed Muhammad Shah had been compelling complainant to produce his daughter at the bungalow of the complainant for sexual intercourse. Complainant resented this proposal and complained to Kamdar of Qabool Muhammad Shah, Saleh Mir Bahar, Hussain Mir Bahar, Haji Mir Bahar, Achar Patel and others. Three days before the incident Khuda Bakhsh Sheedi took complainant to the bungalow of Saeed Muhammad Shah where complainant was detained and maltreated. Again as is stated in F.I.R. That four or five days prior to the incident (should have been after that incident) Khuda Bakhsh Sheedi came in Suzuki and took away complainant and his wife and daughter Sahiba alongwith belongings to an abandoned school in the land of Zulfiqar All Shah. Now so far second part is concenred it is mentioned in F.I.R. That half an hour later at 3-00 p.m. Saeed Muhammad Shah came in red coloured Alto Car and fired shots from pistol in air and abused complainant. Khuda Bakhsh Sheedi stood armed with hatchet guarding complainant and his wife while Saeed Muhammad Shah forcibly took Mst. Sahiba inside the abandoned school and raped her. Mst. Sahiba came out crying and after some time Saeed Muhammad Shah again forcibly took her inside and raped her for the sconed time. Afterwards Saeed Muhammad Shah and Khuda Bakhsh Sheedi brought complainant, his wife and daughter in that car and left them outside Saeedpur town. Complainant and his wife and daughter slept for the night in their house. The third part is that on the following morning complainant narrated the facts of incident to Saleh Mir Bahar, Achar Patel, Hussain Mir Bahar, Achar Machhi and others, who informed Syed Qabool Muhammad Shah on. Telephone and he asked to lodge complaint at police station. Complainant went to police station and lodged report but police officer did not mention name of Saeed Muhammad Shah in F.I.R. As a person who committed rape and instead mentioned names of his servants. It is further stated in F.I.R. That while complainant was present at the police station, S.S.P. Came there and complainant complained to him weeping whereupon S.S.P. Ordered D.S.P. C.1.A., Hyderabad to correctly lodge F.I.R. Of complainant and investigate.

16. Complainant was examined in the trial Court on 8-11-1992 which was before expiry of one month of incident which took place on 10-10-1992. In his evidence before the trial Court complainant repeated allegations but in different manner and he also made improvements in his version. He testified that about one month prior to the incident Saeed Muhammad Shah called him and asked him to send his daughter Mst. Sahiba to him for illicit purposes. He declined on which Saeed Muhammad Shah abused him and slapped him. About 10/15 days prior to the incident complainant left his residence in village Saeedpur and went to Tando Saindad to live with his relatives. After staying there for about 8 days ne returned to Saeedpur as he was advised by people to complain to Zulfiqar All Shah brother of Saeed Muhammad Shah. He did so and while he was waiting in the bungalow of Zulfiqar Ali Shah, Saeed Muhammad Shah came there, slapped him and took him to his bungalow and confined him for three days during which time Saeed Muhammad Shah kept on beating him off and on. Saeed Muhammad Shah insisted that complainant should shift alongwith his belongings from village Saeedpur to Tando Saindad. He brought complainant to his house and gave him beating with stick when complainant was alighting from vehicle and in the result complainant fell down. Complainant, his wife and daughter were made to sit in the vehicle and Saeed Muhammad Shah ordered Khuda Bakhsh Sheedi to take them to the lands. Saeed Muhammad Shah stayed in the house of the complainant while complainant, his wife and daughter were taken to the abandoned school. After about half an hour Saeed Muhammad Shah reached in car and fired in the air. He dragged Mst. Sahiba towards the school building and gave her blows. Khuda Bakhsh stayed outside the building while Saeed Muhammad Shah raped Mst. Sahiba. Mst. Sahiba came out weeping and after some time Saeed Muhammad Shah again took her inside school building and raped her. After some time car in which Saeed Muhammad Shah had come returned in which complainant, his wife and daughter were brought by Saeed Muhammad Shah and Khuda Bakhsh Sheedi to Saeedpur and dropped there. While they were walking Khuda Bakhsh carried wife of complainant on shoulders as she was unable to walk. On reaching home complainant informed his son Porho and his wife. Next morning he informed his relatives Haji Faqir, Saleh, Hussain and Achar who came to his house. Relatives of complainant informed Syed Qabool Muhammad Shah on telephone at Karachi. After some time a police official came from police Station and took complainant to the police station where F.I.R. Was lodged. Mst. Sahiba accompanied complainant to the police station. F.I.R. Was not read over to the complainant. Name of Saeed Muhammad Shah was not mentioned in F.I.R. As the person who committed rape and instead rape was attributed to Khuda Bakhsh Sheedi. Mst. Sahiba was examined at police station and her clothes were secured. Complainant and his daughter were made to sit at police station for 2/3 days. High police officer who was either D.I.-G. Or S.S.P. Came to the police station and complainant complained to him about F.I.R. Which was incorrectly recorded.

On the direction of that high police officer second F.I.R. Was recorded which was correct.

17. Before coming to variations in the evidence of complainant it would be worthwhile to mention that incident took place on 10-10-1992 at 3-00 p.m. And second F.I.R. Was registered on 14-10-1992 at 7-30 p.m. After delay of three days. D.W.16 D.S.P. Nizamuddin took complainant Jaffer, Mst. Sahiba and Porho to Karachi and on 24-10-1992 their statements under section 164, Cr.P.C. Were recorded before a Magistrate which was after 14 days of the incident. In the trial Court complainant during cross-examination was confronted with second F.I.R. And his 164, Cr.P.C. Statement. In second F.I.R. It is stated that after persistent demand of Saeed Muhammad Shah for surrendering Mst. Sahiba for sexual intercourse, complainant complained to Kamdar of Qabool Muhammad Shah and Saleh Mir Bahar, Hussain Mir Bahar, Haji Mir Bahar and Achar Patel. In evidence before the trial Court this fact was not repeated and the persons mentioned were not examined by the prosecution. It is stated in F.I.R. That after receiving message of Saced Muhammad Shah from Khuda Bakhsh complainant went to the bungalow of Saeed Muhammad Shah where he was detained by him for three days and maltreated. After his return 4/5 days later, Khuda Bakhsh Sheedi drove Suzuki to the house of the complainant alongwith Saeed Muhammad Shah. Under the orders of Saeed Muhammad Shah complainant, his wife and daughter got in the Suzuki alongwith their belongings and Khuda Bakhsh Sheedi took them to the abandoned school in the land of Zulfiqar Ali Shah. After half an hour Saeed Muhammad Shah came there in red coloured Alto car.

18. In evidence in the trial Court is stated that due to the pressure of Saeed Muhammad Shah, complainant shifted from his village Saeedpur to Tando Saindad to live with his relatives. He came back after 8 days and as advised by people went to the bungalow of Zulfiqar Ali Shah, brother of Saeed Muhammad Shah and there Saeed Muhammad Shah came, slapped him and took him away to his bungalow where he was confined for three days during which he was beaten off and on. Saeed Muhammad Shah kept on repeating his demand that complainant should surrender his daughter to him for immoral purposes. Thereafter Saeed Muhammad Shah brought complainant to his house and as complainant was alighting from the vehicle Saeed Muhammad Shah gave him beating with stick and consequently complainant fell down. It appears from the evidence that on the same day complainant, his daughter and wife were sent in Suzuki to the abandoned school in the land of Saeed Muhammad Shah through Khuda Bakhsh Sheedi. Saeed Muhammad Shah stayed in the house of complainant and reached the abandoned school after half an hour of arrival of complainant party there. In second F.I.R. The story is different and complainant went to the bungalow of Saeed Muhammd Shah where he was detained for three days. 4/5 days after his return Khuda Bakhsh Sheedi came and took away complainant, his wife and daughter alongwith belongings to the land of Saeed Muhammad Shah. It is mentioned in second F.I.R. That Saeed Muhammad Shah had come alongwith Khuda Bakhsh Sheedi and under his orders complainant, his wife and daughter boarded vehicle and went to the abandoned school alongwith Khuda Bakhsh Sheedi.

19. It is mentioned in second F.I.R. That after an hour Saeed Muhammad Shah came to the abandoned school in red coloured Alto car, abused complainant and fired in the air from his pistol.

Same allegation is repeated in the evidence. It is not understandable as to why Saeed Muhammad Shah after succeeding in getting Mst. Sahiba to abandoned school would fire in the air to attract attention particularly when he was going to commit rape. Narration in second F.I.R. Shows that complainant, his wife and daughter were in the abandoned school when Saeed Muhammad Shah arrived there and took the girl inisde the school and shut the door. It is not mentioned in second F.I.R. That complainant and his wife waited outside the school premises. As against that in evidence complainant has stated that Khuda Bakhsh stood over him and his wife as guard at 100 paces from the school building. Another noticeable feature is that in F.I.R. Khuda Bakhsh is shown to be armed with hatchet while standing as guard and in deposition of complainant hatchet is not mentioned. It is mentioned in both second F.I.R. And evidence that after rape complainant, his wife and daughter were brought back by Saeed Muhammad Shah and Khuda Bakhsh in the same Alto car and were dropped outside Saeedpur town. Relating to that part the only difference is that while second F.I.R. Is silent, it is menioned in evidence by complainant that while they were walking from Saeedupur to their house on the way Khuda Bakhsh carried complainant's wife on his shoulders as she was unable to walk. Another departure is that second F.I.R. Does not mention but it is stated by complainant in his evidence that after reaching the house he informed his son Porho and his wife about the incident. In second F.I.R. There is no mention that Porho and his wife were present in the house when complainant and his daughter and wife returned after incident and apprised them of the facts of the incident. Both in F.I.R. And in the evidence it is mentioned that next morning complainant informed saleh Mir Bahar, Achar Patel, Hussain Mir Bahar and Achar Machhi and they informed Qabool Muhammad Shah on phone at Karachi, who advised to lodge the report. Persons so named have not been examined by the prosecution. In the circumstances presumption would be that had they been examined, they would not have supported the prosecution case.

20. Complainant did not state in his 164, Cr.P.C. Statement that while he was waiting in the house of Zulfiqar All Shah, Saeed Muhammad Shah came there, slapped him and took him to his bungalow.

Complainant also did not state in his 164, Cr.P.C. Statement that Saeed Muhammad Shah had sent for him through Khuda Bux Sheedi and detained him at his house and maltreated him when complainant refused to surrender his daughter. Complainant did not state in his 164, Cr.P.C.

Statement that Saeed Muhammad Shah took him to his (complainant's) house and on the way beat him. Complainant did not state in -second F.I.R. And also in 164, Cr.P.C. Statement that on reaching his house when complainant was alighting from vehicle Saeed Muhammad Shah gave him beating with stick and as a result he fell down. Complainant did not state in his 164, Cr.P.C.

Statement that when Saeed Muhammad Shah took Mst. Sahiba inside the school he had shut the door of the school. Complainant did not state in his 164, Cr.P.C. Statement that after the incident while they were . Getting out from the car on the out-skirt of Saeedpur Saeed Muhammad Shah directed Khuda Bakhsh to go with complainant and Khuda Bakhsh lifted wife of the complainant on shoulders and took her to the house of the complainant. Complainant did not state in his 164, Cr.P.C. Statement that he narrated the incident to his son and his wife after they returned from the place of occurrence. Complainant did not state in his 164, Cr.P.C. Statement that clothes of his daughter were secured at the police station. Complainant did not state in his 164, Cr.P.C. Statement that his first F.I.R. Was not correctly recorded according to his instructions and it was not read over to him. Complainant did not state in his 164, Cr.P.C. Statement that while he was in police station at Tando Muhammad Khan some high officer of police came there and he complained to him and thereafter he and his daughter were taken to Hyderabad. Normally, complainant is not examined under section 164, Cr.P.C. And only other witnesses are examined under that provision. If need be further statement of the complainant can be recorded. There is no explanation on the record why in this case need was felt to record statement of complainant under section 164, Cr.P.C. Normally statement of a witness is recorded under section 164, Cr.P.C. By way of precaution so that if eventually he is won over and does not support the prosecution case then in his cross-examination he could be confronted with his 164, Cr.P.C. Statement after he is declared hostile.

21. Complainant stated in his cross-examination before the trial Court that when he and his daughter were taken to Hyderabad they stayed there for about 7 days. They had stayed at Fauji Hospital after that they were taken to Karachi. At Karachi they were taken to a place which was guarded by army but he was unable to give further detail. His daughter was with him. There they stayed for three days. His statement was recorded before the Court at Karachi on the third day after they reached there. Complainant further stated that from Karachi he was brought to C.IA.

Police, Hyderabad. Next day he was taken to Tando Muhammad Khan Police Station. His daughter had also accompanied him there. They stayed at Tando Muhammad Khan Police Station for three days. He was again taken to Hyderabad before Superintendent of Police. Admissions made by the complainant in his evidence before the trial Court as stated above clearly show that constantly he remained under the patronage and influence of police and was being taken from place to place to ensure that he supported the prosecution case as put forward by them. It also appears that police was extra kind to him and helped for him out of the way in spite of the fact that he alleged that S.H.O. Of P.S. Tando Muhammad Khan had incorrectly recorded his F.I.R. By omitting name of Saeed Muhammad Shah as person who committed rape. Another intriguing admission in his cross- examination at page 63 of the paper book is that his step-son Manoo lives in Goth Saindad and is servant of Pir Jan Sarhandi. Complainant has denied that there is political rivalry between Pir Jan Sarhandi and family of Syed Qabool Muhammad Shah but defence plea is that there is enmity between Pirs and Mies on one side and family of Syed Qabool Muhammad Shah and appellant on the other side. There are inherent defects in the evidence of the complainant. He has made improvements in his evidence before the trial Court. At the time of incident he was not working under Saeed Muhammad Shah and only his step-son Porho was working as labourer on the land of Saeed Muhammad Shah. Complainant has not explained as to how he was under the influence of Saeed Muhammad Shah in a way that he was utterly helpless and could not save his daughter. He could have gone away with his daughter and his son Porho could have left service of Saeed Muhammad Shah and joined service of Pir Jan Sarhandi with whom his other step-son Manoo was already working as servant. Another mysterious aspect of this case is that if Saeed Muhammad Shah wanted to rape daughter of complainant, why would he be anxious that she should come alongwith her father and mother. If he could exercise so much pressure on the complainant, he could also have succeeded in getting her alone for the purpose of rape without creating against himself evidence of father and mother of the victim. It is also not understandable why abandoned school was selected as place for committing rape in broad daylight. All these disturbing questions are not answered in the evidence of the prosecution. Evidence of complainant does not inspire confidence to be truthful. He is not consistent in his story. He has made variations and improvements. His story does not appear to be plausible.

22. We take up evidence of P.W.3 Porho before evidence of P.W.2 Mst. Sahiba for the reason that his evidence is brief. He is brother of Mst. Sahiba and in his evidence before the trial Court he has deposed about several aspects of the case with which he was not connected and no role was assigned to him according to the second F.I.R. And evidence of complainant. He has deposed that two or three days before the incident Saeed Muhammad Shah asked him to send his father to his bungalow. He took his father to the bungalow and left him there. This witness further stated that after some time Khuda Bakhsh Sheedi came to his house and took him and his father to the house of Saeed Muhammad Shah and on their return to their house while his father was alighting from the vehicle Saeed Muhammad Shah hit him with stick. He also deposed that after his father, mother and Mst. Sahiba went in Suzuki alongwith Khuda Bakhsh Sheedi, he and Saeed Muhammad Shah proceeded on foot towards his house. This witness also deposed that when after incident his father, mother and Mst. Sahiba came back to their house they narrated the facts of the incident to him. He was also present next morning when Achar Patel and others came to their house and were apprised about the story. On the other hand second F.I.R. Does not mention his name at all to be connected anywhere with any aspect of the incident. Even complainant in his evidence before the trial Court does not show presence of this witness anywhere throughout the narration of the facts of incident. Mst. Sahiba also did not mention name of this witness throughout her narration till she returned home after rape. Both complainant and Mst. Sahiba only stated in their evidence that on their return from place of occurrence to their house they informed Porho and his wife who were present there about the facts of the incident. In the circumstances to the extent of what happened at the time of rape and before it evidence of P.W. Porho is hearsay and is not admissible in evidence under section 60 of the Evidence Act. Evidence of this witness is rejected on the ground that his claim of being apprised by other witnesses is not confirmed by those witnesses in their earlier statements. In support of this proposition reference can be made to the case of Khurshid Ahmad v. Qabool Ahmad (PLD 1964 SC 356).

23. Now we take up evidence of P.W.2 Mst. Sahiba who is victim of rape. In the caption of her testimony her age is mentioned as 12 years. Dr. Farida Jabbar has shown her age to be 13 years and Dr. Farhana Qureshi has given her age as between 13 and 14 years. This witness testified before the trial Court that Saeed Muhammad Shah used to pester her father to send her to him for immoral purposes and her father resisted. In that process her father left village Saeedpur and went to Tando Saindad. After his return her father went to Zulfiqar Ali Shah and complained about immoral demand of Saeed Muhammad Shah. Her father was detained by Saeed Muhammad Shah for three days in his house. On the day of incident Khuda Bakhsh and Saeed Muhammad Shah came with her father to their house and while her father was getting down from vehicle Saeed Muhammad Shah gave him Lathi blows. Khuda Bakhsh took their belongings and put them in the vehicle and then she and her mother were also made to sit in the vehicle. Her father was also made to sit in the vehicle and they were taken to the lands of Saeed Muhammad Shah. Saeed Muhammad Shah stayed back in their house and did not come in the same vehicle. He came in another vehicle. He fired shots in the air and abused her father. He took her forcibly inside the school building where he raped her against her will. She resisted and raised cries but he overpowered her. She bled and felt pain. Afterwards. Saeed Muhammad Shah brought her out. She complained to her parents. After a while vehicle in which Saeed Muhammad Shah had come returned and Saeed Muhammad Shah made her parents sit in that vehicle and took her again to the school building and raped her for the second time. On both the occasions of rape Khuda Bakhsh Sheedi stood guard on her parents. She has mentioned that Khuda Bakhsh was armed with hatchet. After she was raped twice Saeed Muhammad Shah and Khuda Bakhsh took her and her parents in the vehicle and they got down near Saeedpur. It is difficult to understand how in a small Suzuki Car Alto, six persons could fit in, driver, Saeed Muhammad Shah, Khuda Bakhsh, complainant, Mst. Sahiba and mother of Mst. Sahiba. Saeed Muhammad Shah asked Khuda Bakhsh to take her mother to their house. When they reached their house Porho and his wife were there and they narrated the whole incident to them. Next morning they, Achar Patel, Haji Faqir, Saleh and Achar Machhi came to their house and they apprised them of the incident. Police vehicle came to their house and she and her father were taken to the police station. She was examined by the police and was also medically examined at Tando Muhammad Khan hospital. She was medically examined again at Hyderabad. Her statement was also recorded at Hyderabad. She was examined before Magistrate at Karachi. Her clothes were recovered at the police station. Her 164, Cr.P.C. Statement was recorded at Karachi alongwith her father after 14 days as mentioned above.

24. In her evidence before the trial Court in the cross-examination Mst. Sahiba was confronted with her 164, Cr.P.C. Statement in which she omitted to say that her father was so much troubled by Saeed Muhammad Shah that he abandoned his residence at Saeedpur and went over to live at Tando Saindad for about 15 days prior to the incident. On the other hand she stated in that statement that her father disappeared from Saeedpur on account of demands of Saeed Muhammad Shah and returned after about one month. She omitted to state in her 164, Cr.P.C.

Statement that about 3/4 days before the incident her father went to Zulfiqar All Shah brother of Saeed Muhammad Shah and complained to him against Saeed Muhammad Shah. She omitted to state in her police statement and also in her 164, Cr.P.C. Statement that her father was still under detention in the house of Saeed Muhammad Shah when Khuda Bakhsh came to their house and informed that her father was at the bungalow of Saeed Muhammad Shah and asked her to take belongings and accompany him but she refused and Khuda Bakhsh went away. She omitted to state in her police statement and also in 164, Cr.P.C. Statement that her father receiving stick blows fell down when he was brought home by Saeed Muhammad Shah. She omitted to mention in her police statement and 164, Cr.P.C. Statement that Saeed Muhammad Shah had sent Khuda Bakhsh to her house with direction that he should take her and her belongings to Tando Saindad. She omitted to state in her 164, Cr.P.C. Statement that Saeed Muhammad Shah had stayed at her house when Khuda Bakhsh had taken them to the lands of Saeed Muhammad Shah. She omitted to state in her police statement and also 164, Cr.P.C. Statement about bleeding and feeling pain at the time of commission of rape. She omitted to state in her 164, Cr.P.C. Statement that after making her parents sit in the said car Saeed Muhammad Shah again took her to the school building to commit rape for the second time. She omitted to state in her police statement as well as 164, Cr.P.C.

Statement that after getting down on the outskirts of Saeedpur town on the direction of Saeed Muhammad Shah, Khuda Bakhsh carried her mother to their house. She omitted to state in her 164, Cr.P.C. Statement that her brother Portio and his wife were present in the house when they reached there after the incident and apprised them of the facts of the incident.

25. Mst. Sahiba stated in her evidence during the cross-examination that in the school building at the time of rape the room was not locked. There were a chair, a Mondha, an empty oil cane and a Charpai in the room. There was Rilly on the Charpai. She was raped on the Charpai. She resisted and in doing so she had clasped her thighs. Saeed Muhammad Shah forcibly separated them by his hands. She had bled at the time of commission of rape and blood had fallen at the Rilly as well.

Saeed Muhammad Shah had removed all her clothes.. There was on the floor. She was raped for the second time also on the Charpai. There was bleeding for the second time as well. She wore the same clothes until they were secured by the police. She did not wash herself until clothes were secured by the police. Mst. Sahiba stated in the cross-examination that at Police Station they remained for three days and when S.P. Had come her brother was present. After that she and her brother and father were sent to Hyderabad where she remained indoor patient in hospital at Hyderabad for about 7 days. Then she was taken to Karachi where she stayed for three nights. Her brother was not with her during the period when she staged. At Karachi and only her father was with her. From there she was taken to Hyderabad and from there to her village. After two or three days thereafter she was taken to Tando Muhammad Khan police station. Her father had accompanied to the police station. They stayed at the police station for the whole night and in the morning they were taken back to their village. Prime Minister Nawaz Sharif had come to her village on that day. She was produced before the Prime Minister. In fact Prime Minister had himself come to her house. She denied the suggestion that police had called her at the police station for the purpose of tutoring her and the statement made by her before the Prime Minister was tutored one taught to her by the police. She denied suggestion that she was deposing falsely against Saeed Muhammad Shah at the instance of police. She also denied suggestion in her cross-examination that police threatened her that if she did not support the version of the case amount of Rs,1 lac sanctioned by the Prime Minister would not be given to her.

26. Evidence of these three important witnesses of prosecution mentioned above has been criticised before us by the learned counsel for the appellants on many grounds. Firstly, that first F.I.R.

Which was registered earlier in point of time did not contain name of Saeed Muhammad . Shah and rape was not attributed in it to him was cancelled without legal justification. If complainant changed his mind and wanted to introduce name of Saeed Muhammad Shah, his further statement could have been recorded without cancelling the first F.I.R. In support of the contention reference has been made to the case of Yousuf v. State (PLD 1988 Kar. 521), which judgment is authored by one of us and in which it is held that if sections 154, 156 and 157, Cr.P.C, are read together, it would appear that investigation of cognizable case can commence with information supplied from any source and investigating officer is competent to investigate in such manner to fmd out the truth and also apprehend culprits who are not named in F.I.R. There is no room in the ' provisions mentioned therein of Cr.P.C. For filing second F.I.R. We fmd no hesitation in approving the ratio in this judgment. It is not only question of filing second F.I.R. But in the instant case very serious prejudice is caused to the defence because copy of first F.I.R. Was not supplied to the defence nor it was brought on the record on the ground that it was cancelled. In the circumstances defence was unable to cross-examine complainant with regard to first F.I.R. In which Saeed Muhammad Shah was not shown as the person who committed rape. Additionally S.H.O. And D.S.P. Who were instrumental in recording first F.I.R. Were not examined by the prosecution and defence was deprived of right of cross-examination. In such circumstances non-compliance of section 173, Cr.P.C. In respect of shutting out evidence of first F.I.R. Would amount to an illegality causing prejudice to the defence and vitiating the trial not curable under section 537, Cr.P.C. It is held in the case of Kaura v. The State and others (1983 SCMR 436) that after registration of first F.I.R., registration of second F.I.R. Is not called for notwithstanding divergent version contained therein as police is not only competent but also duty bound to unearth true facts and trace real culprit.

27. Secondly, statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case of Amir Zaman v. Mehboob and others (1985 SCMR 685) that testimony of witnesses containing material improvements are not believable. Reference can also be made to the cases of Haji Bakhsh v. The State (PLD 1963 Kar. 805), ()aim Din and others v. The State (1971 PCr.LJ 229) and Fazla and another v. The State (PLD 1960 Lah. 373).

28. Thirdly, attack was made on the evidence of these three star witnesses of prosecution on the ground that their police statements were recorded with delay. In this case statement of complainant was also recorded under section 164, Cr.P.C. Since first F.I.R. Was cancelled hence statements of witnesses recorded in connection with investigation of that F.I.R. Were not brought on the record. Second F.I.R. Was recorded after three days by D.S.P. Noor Ali Mari of C.I.A. He incorporated fresh statement of complainant in 154, Cr.P.C. Register and sent copy to P.S. Bulri Shah Karim where F.I.R. No,71 of 1992 was registered which is produced in the record as Exh.17/1. This second F.I.R. Was registered on 14-10-1992 when incident took place on 10-10-1992. D.S.P. Recorded police statements of P.Ws. Hassan, Saleh, Haji, Mst. Basra and Achar Patel. He admitted to have recorded their 164, Cr.P.C. Statements but A.C.M., Latifabad could not do the needful on account of his pre-occupation. P.W.16 D.S.P. Nizamuddin of Crime Branch got recorded statements of Jaffer and Mst. Sahiba under section 164, Cr.P.C. On 24-10-1992 at Karachi. Reason given by prosecution is that first F.I.R. Had to be cancelled because it was recorded dishonestly not mentioning name of Saeed Muhammad Shah as the person who committed rape on Mst. Sahiba and also place of occurrence was not correctly mentioned which was abandoned school. This explanation is unsatisfactory and cannot be accepted for the reason that S.S.P. Who ordered cancellation of first F.I.R. And registration of second F.I.R. And S.H.O. And D.S.P. Who were instrumental in registration of first F.I.R. Were not produced by the prosecution and examined in the trial Court in support of that contention. Explanation, therefore, is not established with supporting evidence. In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation. In the case of Sikandar v. The State (PLD 1963 SC 17) there was controversy as to when police statement of eye-witness was recorded and in that regard there was choice between version of eye-witnesses and investigating officer. It was held that controversy is to be resolved on the basis of rule that benefit of doubt must be given to the accused hence evidence of that eye-witness was viewed with doubt.

In the case of Ismail and others v. The State (1983 PCr.LJ 823) evidence of witnesses was ruled out of consideration on the ground that their police statements were recorded after 8 days and prosecution offered no explanation. In the case of Sirajuddin v. Kala and another (PLD 1964 SC 26), evidence of witness was held to be not reliable for the reason of patent doubt as to the time as he first appeared before the police for his statement.

29. While we are dealing with the subject of late recording of police statements of the witnesses, we may at this stage aptly deal with two witnesses produced by the prosecution as drivers of vehicles by way of corroborative evidence. They are P.W.4 Muhammad Khan and P.W.5 Bholoo. Muhammad Khan deposed beforethe trial Court that Sheedi came to Bathoro stand and hired a Suzuki pick-up for transporting belongings of hari of his landlord. He went there and the inmates of the but refused to go. Sheedi took the vehicle and brought Saeed Muhammad Shah and an old man to the hut.

After that old man, girl and old woman boarded the pick-up alongwith Sheedi. Saeed Muhammad Shah stayed behind at the hut. He drove the vehicle to school building where luggage was unloaded. He demanded fare from Sheedi who promised to give it after a day or two. This led to a quarrel after which he came back. This witness admitted in his cross-examination that he was examined by police after 10 or 12 days of the incident. In cross-examination he stated that he did not know Saeed Muhammad Shah prior to the incident except that he had met him once or twice and also had heard his name. He had seen Saeed Muhammad Shah at Bathoro stand where he used to come for taking fuel for his vehicles. He also admitted in the cross-examination that he was contacted by police 10 or 12 days after the incident and he immediately went to the police station.

He was examined by the police on the same day and was examined by the Karachi police. He was allowed to go home after he was examined and after that he did not go to the police again. He denied suggestion that since the day when he was contacted by the police he remained in the protection of police. P.W.5 is Bholoo who is driver of the car on hire. This witness testified before the trial Court that at the hotel of Yaqoob Memon he got a telephonic call and when he answered the person at the other end told him that he was Secretary of Saeed Muhammad Shah and gave his name as Ilyas. Secretary informed him that Saeed Muhammad Shah would like to go to his land and he wanted to hire the car. He agreed and drove the car to Jarwa Dhandhi with Saeed Muhammad Shah who had a revolver in his hand. At the destination he found Khudoo Sheol standing guard over an old man and old woman and young girl. Saeed Muhammad Shah got down and fired 3/4 shots. He took young girl towards school bu"ding. Witness asked Khudoo as to what was the matter and he was told that it was a matter of Zamindar and Hari and he should not make any enquiry in that regard. This witness drove back and returned after 2-1/2 hours. He further supported the prosecution case as to how they all returned. He admitted in the cross-examination that his police statement was recorded 10/12 days after the incident. He was confronted with his police statement in which he has not said so many things which he said in his evidence. Both these drivers were discovered by P.W.14 Mian Masood Hayat D.S.P., Crime Branch, who was third investigating officer. Names or description of these drivers were not given by complainant and his daughter and Porho. This D.S.P. Claimed in his evidence before the trial Court that he learnt about the identity of these drivers and got hold of them and recorded their statements. In cross- examination Mian Masood Hayat admitted that he did not find complainant or Mst. Sahiba at C.IA.

Centre and did not meet them at all during the shOrt time the investigation remained with him nor did he enquire about their whereabouts. In such circumstances question arises as to how did this witness learn about the identity of these two drivers. It is, therefore, clear that evidence of these two drivers is assailable on the grounds that their evidence does not sound truthful and also that their police statements were recorded very late. If they had played part in the incident as claimed by the prosecution, they could have informed the police and could have voluntarily come forward to have their statements recorded by the police. In the circumstances evidence of these two drivers does not inspire confidence to be reliable particularly when their police statements have been recorded belatedly. In the case of Muhammad Siddiq and another v. The State (PLD 1960 SC 223), while evaluating evidence of the eye-witness, who did not disclose murder to anyone for 24 hours it was held that evidence of such witness is not of least value. In the case of Sahib Gul v. Ziarat Gul (1976 SCMR 236) evidence of eye-witness who had shop near police station and accompanied complainant to police station was held to be unreliable for the reason that his police statement was recorded after 4 days.

30. Fourthly, it is submitted that medical evidence of two lady doctors does not lend support to the testimony of prosecutrix on the question of Zinabil-jabr as it is not mentioned therein that there were any marks of violence or rupture of hymen was fresh and connected with allegation of rape.

Medical evidence only shows that she was subjected to sexual intercourse and nothing more. Age of prosecutrix is also shown as between 13/14 years.

31. Fifthly, it is submitted on behalf of the appellants by the learned counsel that on the legal plane there are errors in the charge which made the charge defective and misled appellants in their defence, which has occasioned failure of justice. Defects pointed out are that in the first part of charge offences mentioned are 376, P.P.C. Read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and as law stands now section 376, P.P.C. Is repealed and fully covered by section 10 of Zina Ordinance. Second defect pointed out is that in the second part of the charge offences mentioned are under sections 11 and 12 of the Zina Ordinance read with section 34, P.P.C.

This charge is against both appellants Saeed Muhammad Shah and Khuda Bakhsh Sheedi. Section 11 relates to kidnapping, abduction and inducing a woman to compel her to marry and section 12 relates to Kidnapping and abduction in order to subject a person to unnatural lust. In the third part sections 342, 336, 504, P.P.C. Are mentioned read with section 34, P.P.C. Section 336, P.P.C. As it stood before amendment covered act endangering life or personal safety of others normally invoked in accident cases. After amendment as now it covers punishment for Itlaf Salahiyat Udh. In this section now entirely new version is given for causing hurt on the principle of tooth for tooth and eye for eye. It is further submitted that this section does not apply and on the charge under section 323, P.P.C. In the last part of the charge appellant Saeed Muhammad Shah is acquitted (page 441 of the paper book). Trial Court has also disbelieved evidence of the witnesses on the point that complainant was wrongfully confined by Saeed Muhammad Shah in his bungalow for three days and acquitted him on that charge (point No,5 at page 441 of the paper book). This shows that the witnesses who have deposed on these points have not spoken the truth and they have been disbelieved by the trial Court to that extent, hence it can be said that these material witnesses have compromised their integrity and their veracity is not beyond question. Last paragraph of the impugned judgment (page 445 of paper book) shows that both appellants are absolved of the charges under sections 11 and 12 of Zina Ordinance and under sections 342, 336, 504 and 323, P.P.C.

Charge under section 11 of Zina Ordinance covers subject of kidnapping and in this connection evidence produced with regard to the kidnapping of Mst. Sahiba in Suzuki pick-up when she was taken to the abandoned school on the day of incident is not categorically dealt with in the impugned judgment and act of kidnapping was prelude to the act of Zina and both are to be treated as integral parts of the same transction. If appellants are exonerated on the charge of kidnapping then credibility of second part of rape is also affected. So far rape is concerned, Charpai and Rilly on which it is alleged that rape was committed were not recovered from the abandoned school.

32. Mr. Attaur Rehman learned counsel for the appellant Khuda Bakhsh Sheedi submitted that on the question of abetment point No,3 was framed to the effect whether Khuda Bakhsh had abetted in the commission of offence of rape or Zina-bil-jabr (page 435 of paper book). In paragraph 21 of the impugned judgment, evidence of abetment as such is not discussed categorically but finding is given on the ground that Khuda Bakhsh Sheedi at the relevant time was servant of Saeed Muhammad Shah and, therefore, at the time of commission of offence he had helped his master by taking her to the place of incident. There is also not much of discussion in the judgment of the trial Court on the subject of Wardat. Wardat was visited by the learned trial Judge and inspection memo. Was prepared which is on the record as Exh.36 (page 335 of paper book). In this memo.

There is mention about school building with one room and Varandah in front and there is also mention in it about a tree at a distance of 100 paces. It is also mentioned that the room of the school was lying barren and contained nothing and was lying unlocked. Mr. Attaur Rehman submitted that appellant Khuda Bakhsh Sheedi was charged for offences under sections 11 and 12 of Zina Ordinance and offence under section 11 is punishable with imprisonment for life and offence under section 12 is punishable with death. In such circumstances appellant Khuda Bakhsh was entitled to the engagement of counsel on Government expense as is contemplated under High Court Rules, Volume V, Chapter 4-E and Rule 6, Chapter VII of Federal Capital and Sindh Codes Criminal Circulars of 1978. This lapse has caused very serious prejudice to the defence and in support reliance is placed on the case of Abdul Aziz and another v. The State (1984 SCMR 530). 15 prosecution witnesses were examined in the absence of counsel of appellant Khuda Bakhsh Sheedi. When last witness P.W.16 Nizamuddin D.S.P. Was examined at that time Mr. Nandan Lal, Advocate appeared for Khuda Bakhsh and cross-examined the last witness on 15-11-1992.

Advocate for appellant Khuda Bakhsh filed an application under section 540, Cr.P.C. For recall of 15 prosecution witnesses on the ground that they were examined in the absence of counsel. The application was rejected on the ground that sufficient opportunity was given to Khuda Bakhsh to cross-examine the witnesses which he did not avail and permission was given to cross-examine only one witness Dr. Manzoor Shaikh as opportunity was not given to Khuda Bakhsh to cross- examine him. It appears from the order sheet dated 11-11-1992 of the record that the trial Court allowed application under section 540, Cr.P.C. Made by Special Public Prosecutor for examination of four additional witnesses who were not included in the challan. This application was allowed for reasons stated in the paragraph of the order-sheet, relevant portion whereof is reproduced as under-- "It appears that the names of these witnesses had been left out from the challan because the two doctors had examined Mst. Sahiba and complainant Jaffer, respectively, in furtherance of the investigation taken up on the basis of the first F.I.R. No,115 of 1992 and the relevant medical certificate etc. Was lying with the record of the first F.I.R. And in the rush of the work after the recording of the second F.I.R. The necessity of including the names of these two doctors in the challan as witnesses was overlooked. Same is. The position in respect of A.S.I. Sultan Badshah. Since the fact of cancellation of the first F.I.R. Has already come on record, it appears to me that the evidence of the fourth witness S.I.P. Ghulam Muhammad becomes necessary who shall formally show that the first F.I.R. Had been cancelled. Learned defence counsel Mr. Hidayatullah Abbasi, Advocate has opposed this application on the ground that copies of the 161, Cr.P.C. Statements recorded in furtherance of the first F.I.R. Had not been supplied to him and since first F.I.R. Had been subsequently cancelled, no evidence which was recorded on the basis of the cancelled F.I.R. Should be brought on record. I am not impressed with the arguments of the learned defence counsel."

33. Order sheets in the record dated 7-11-1992 and 8-11-1992 show that on the first day of hearing both appellants were unrepresented and they informed the trial Court that efforts were being made to engage a counsel for them through relatives. On the next date Mr. Hidayatullah Abbasi appeared for appellant Saeed Muhammad Shah but Khuda Bakhsh was noted as unrepresented.

No opportunity was given to him for engagement of counsel on Government expense on the ground that he was charged for offence which was punishable with death. It also appears that prosecution and defence both had filed applications under section 540, Cr.P.C. And application of prosecution was allowed but application of defence was rejected. It also appears that in respect of cancellation of first F.I.R. Set backs in the matter of production of evidence by prosecution have been covered but copies of first F.I.R. And other documents related therewith were not given to the defence and such request of defence was rejected on the ground that first F.I.R. Has been cancelled. In such circumstances grievance is made that appellants were discriminated against.

34. Under section 540, Cr.P.C. Powers are given to the Court to summon or recall any witness already examined if his evidence is essential to the just decision of the case. This section is divided into two parts. One where it is discre tionary for the Court to summon a Court witness suo motu or on application and the second part is where it is mandatory for the Court to do so. Main precondition for exercise of mandatory duty is the satisfaction of the Court that evidence of the witness is essential for just decision of the case. In the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95) the controversy between the parties was that Nikah was not voluntary but under coercion. Prosecution alleged coercion while defence plea was that Nikah was valid and without coercion. It was held by Shariat Bench of the Supreme Court that evidence relating to Nikah was absolutely essential and failure of the trial Court to act under section 540, Cr.P.C. Had deprived the appellate Court of essential material for just decision and also occasioned miscarriage of justice. In the instant case when application of prosecution under section 540, Cr.P.C. Was allowed and witnsses not named in challan were allowed to be examined, application of defence under the said provision should also have been allowed for more formidable reason that 15 witnesses were examined in the absence of Advocate of Khuda Bakhsh for whom Advocate should have been engaged on Government expense. Trial Court did not make offer for engagement of counsel on Government expense to represent appellant Khuda Bakhsh at the commencement of trial which should have been done. Cross-examination by accused himself is .

No substitute of cross- examination by the counsel.

35. Mr. A.G. Mangi, learned AA.-G. For State contended before us that prosecution case stands fully proved by the evidence of prosecutrix Mst. Sahiba and supported by her father complainant Jaffer and two drivers Bholoo and Muhammad Khan. Learned AA.-G. Further stated that P.Ws. Jaffer, Bholoo and Muhammad Khan can be equated with eye-witnesses to the extent that they saw kidnapping of Mst. Sahiba to the school building and her being taken in forcibly by Saeed Muhammad Shah for rape. P.W.4 Muhammad Khan driver of Suzuki did not state in his deposition that he saw Saeed Muhammad Shah near the abandoned school. He also did not say that he saw taking away of Mst. Sahiba forcibly inside the room by Saeed Muhammad Shah. Evidence of both these witnesses who are drivers has been evaluated by us and we do not feel satisfied with their evidence for the reasons that their police statements were recorded late after 10 or 12 days of the incident and secondly even on merits their evidence does not sound to be truthful. They are drivers of the vehicles which are run for public use hence they are likely to come in touch with police and their evidence can be easily secured by police. Both these drivers have made improvements in their evidence and did not state material particulars in their earlier statements. Trial Court has acquitted on the charge of kidnapping under section 11 of Zina Ordinance and State has not challenged that finding in appeal. So far complainant Jaffer is concerned, there is no doubt that he is father of the prosecutrix but his evidence does not inspire confidence that he is speaking whole truth. He filed first F.I.R. In which there is no allegation of rape against Saeed Muhammad Shah. He filed second F.I.R. And his statement under section 164, Cr.P.C. Was also recorded. He was confronted with second F.I.R. And 164, Cr.P.C. Statement in which he had not said so many things which in evidence he said differently. His evidence is replete with improvements and additions in consequence of tutoring by the police. Porho son of complainant also voluntarily assumed' rule which was not attributed to him by Jaffer or Mst. Sahiba. These witnesses were very anxious to fall in line with story set up by the prosecution and in that anxiety and enthusiasm made additions, variations and improvements.

36. Now we are left with evidence of Mst. Sahiba who is prosecutrix and claims that she has been subjected to rape by Saeed Muhammad Shah. She also claims that Khuda Bakhsh Sheedi was instrumental in bringing her and her father and mother to the abandoned school and stood guard while she was taken inside the room and raped by Saeed Muhammad Shah. Like other witnesses she has also made improvements and was confronted with her earlier statements in which she had not said so many things or said differently. Mr. Mangi has contended that evidence of prosecutrix alone supported by medical certificates is sufficieint to prove the case of prosecution beyond doubt. Learned AA.-G. Has stated that in the medical certificates it is mentioned that intercourse was committed and prosecutrix was injured internally and was bleeding and further there are findings of Chemical Examiner that swabs and clothes of prosecutrix contained semen and blood.

37. In the context of medical examination P.W.8 Dr. Farida Jabbar examined prosecutrix Mst. Sahiba on 11-10-1992 which was on the following day of the incident. According to this doctor she did not find any external injury upon the person of Mst. Sahiba. She found lacerations present on labia majora and minora. Vagina admitted one finger. Hymen was ruptured. Doctor further gave her opinion that Mst. Sahiba was not virgin as her hymen was ruptured and she was subjected to sexual intercourse. Two things are prominent in the evidence of this lady doctor. Firstly, that there were no marks of violence on the person of Mst. Sahiba and secondly doctor did not say that hymen of Mst. Sahiba was ruptured during the sexual intercourse she was subjected to at the time of incident. She did not give age of lacerations and for that purpose she referred prosecutrix to Gyneacologist but she was not examined by Gyneacologist. Mst. Sahiba was examined again on 15-10-1992 after investigation of second F.I.R. Was taken in hand. This time she was examined by P.W.6 Dr. Farhana Qureshi who again found no marks of violence on the body of Mst. Sahiba. She was examined radiologically and her age was found to be 13 and 14 years. On general examination of vagina, doctor found red inflamatory edges on labia minora. Vagina admitted tip orifis of finger.

Hymen was torn. Slight bleeding was detected. Doctor gave opinion that girl was subjected to sexual intercourse. Doctor took vaginal slides and forwarded them to Chemical Examiner. This lady doctor admitted in her cross-examination before the trial Court that she did not examine vagina by way of toning and through the process of toning it can be determined as to whether rupture of hymen was recent or not. From the evidence of lady doctors and medical reports submitted by them it is clear that there is no specific finding that rupture of hymen of prosecutrix was recent and had nexus with sexual intercourse which allegedly took place at the time of incident. From the medical evidence as stated, it appears in the absence of marks of violence and positive and categorical finding with regard to rupture of hymen, that at the most it was a case of sexual intercourse. Question now arises for consideration whether this medical evidence is sufficient to connect appellant Saeed Muhammad Shah with commission of rape or Zina-bil-jabr as is alleged by the prosecution. This is to be considered in the light of fact that all other pieces of evidence produced by the prosecution have been examined in detail and found defective, unsatisfactory and suffering from legal infirmities.

38. Mr. Mangi has cited a large number of rulings in support of the proposition that evidence of prosecutrix supported by medical evidence is sufficient and sometimes when medical evidence is deficient then deposition of prosecutrix alone confirmed by other circumstances is sufficient. There is no quarrel or cavil with the proposition as such. In criminal cases each case has its own peculiar facts and circumstances. It is the question of satisfaction of the Court which depends upon evidence produced by the parties. If evidence of prosecutrix sounds truthful and she had no reason or motivation to falsely implicate accused then such evidence can be accepted to be sufficient to justify conviction. Cases cited by learned AA.-G. Are distinguishable and do not apply to the facts of the instant case. In the case of Mst. Nasreen v. Fayyaz Khan and another (PLD 1991 SC 412) sole testimony of victim was considered enough for conviction as it inspired confidence. Delay in filing F.I.R. Was explained on the ground that victim's husband being an insane person was in jail and was not available to impregnate her and victim maintained silence which was broken when symptoms of pregnancy became pronounced with passage of time and victim felt compelled to divulge the secret to her mother which resulted in. Registration of F.I.R. Question of sole testimony of victim came up for consideration before the Supreme Court in connection with hearing of application for cancellation of bail granted by the High Court on the ground of further enquiry as contemplated under section 497, Cr.P.C. In the case of Khushi Muhammad alias Bogi v. The State (PLD 1986 SC 12) two eyewitnesses examined by the prosecution were not relied upon due to discrepancies in their evidence. Sole testimony of prosecutrix was supported by medical evidence with finding that she was used to sexual intercourse, Federal Shariat Court treated it as a case of consent and altered conviction to section 10(3) of the Zina Ordinance. In that case apparently there was no allegation of background of enmity or false implication. Shariat Appellate Bench declined to interfere in appeal on the grounds that no generalisation can be made in the case of Zina and every case depends upon its own facts and circumstances and further that apart from element of possible consent there was no inherent infirmity in the deposition of victim and she had no reason to falsely implicate the appellant in that case. In the instant case defence plea is false implication due to political rivalry and in support 8 witnesses have been examined. Complainant Jaffer admitted in cross-examination (page 63 of paper book) that his step-son Manoo worked as servant of Pir Jan Sarhandi who is connected with Mirs and Pirs of Tando Saindad. Moreover deposition of prosecutrix herself also does not insprie confidence as she had made improvements and her evidence is discrepant. Case of Ghulam Haider v. The State (1983 SCMR 842) does not help learned AA.-G. For State for the reason that it was a case of attempted rape and secondly, natural witnesses examined had no reason to falsely implicate the accused. Similarly case of Muhammad Aslam v. The State (PLD 1985 FSC 282) is also distinguishable for the reason that it was a case of attempt to Zina-bil-jabr in which no enmity was alleged against witnesses to falsely implicate the accused. There was also nothing on the record available to show why mother of prosecutrix should concoct such a case against accused involving her own young daughter and no substance was found in defence plea. Lastly reliance was placed by learned AA.-G. On the case of Muhammad .Akram v. The State (PLD 1989 SC 742) in support of contention that even if there is no clear finding in the medical evidence sole testimony of prosecutrix can be relied upon. In this case medical evidence disclosed conditions of genitals of prosecutrix but did not say whether it was on account of intercourse under compulsion or due to abusive sexual intercourse or other causes including self-abuse. It was held that opinion of the doctor would not weaken the testimony of prosecutrix, which otherwise appeared to be reliable and her testimony inspired confidence.

39. Learned AA.-G. Contended that in this case appellant Saeed Muhammad Shah refused to give evidence on oath, hence adverse inference can be drawn that because of guilt feeling he was not prepared to take oath. In support of the proposition reliance is placed by him on the case of Bahadur Shah v. The State (PLD 1987 FSC 11). This controversy came up for detailed consideration in the case of Mst. Ameer Khatun v. Faiz Ahmad and others (PLD 1991 SC 787) before Full Bench of five Judges of the Supreme Court. Section 340(2) of Cr.P.C. Provides that accused, if he does not plead guilty shall give evidence on oath in disproof of the charges. Refusal of accused to give statement on oath was considered at length in conjunction with Article 44 of Qanun-e-Shahadat which provides that accused shall be liable to cross-examination. It was held by the Supreme Court that provisions of section 340(2), Cr.P.C. Have to be interpreted as only conferring duty or power on the Court to inform the accused that he has a right under the law to make a statement on oath and it is his option with no risk attaching it to either make that statement or not to make that statement.

Question of cross-examination of accused would arise only when examination-in-chief of the accused takes place.

40. In the trial Court both appellants denied prosecution allegations in their statements under section 342, Cr.P.C. And Saeed Muhammad Shah proclaimed false implication due to enmity of Mirs and Pirs on account of political rivalry. He filed separate statement in writing showing enmity on account of election contested between Mirs and Pirs on one side and relatives of appellant Saeed Muhammad Shah on the other. Pir Saeed Jan Sarhandi was Chief Election Agent of Mir group. There was also rivalry between Pir Khalid Jan Sarhandi and Zulfiqar Ali Shah brother of appellant Saeed Muhammad Shah for the post of Administrator of District Council, Hyderabad.

According to Saeed Muhmmad Shah situation was exploited by Mirs and Pirs through press and other media and story of incident was concocted by the police after taking into their protective custody, complainant Jaffer, Mst. Jaffer, Mst. Basra and Porho and these witnesses remained in police custody until they were examined before the trial Court. It was further stated by Saeed Muhammad Shah that entire police administration took upon itself to prosecute him and make it certain that he would be convicted. Prime Minister was assured that the case was true and on such assurance he awarded an amount of Rs,1 lac in cash and land admeasuring 16 acres to Mst.

Sahiba before the case proceeded before the trial Court. His guilt was prejudged by the administration. S.S.P. Hyderabad and other subordinates used to sit inside the Court and watch the proceedings with a view that witnesses produced by prosecution must support the case. Appellant Khuda Bakhsh claimed that at the relevant time he was not in the service of Saeed Muhammad Shah. Appellant Khuda Bakhsh examined himself on oath. Saeed Muhammad Shah examined 8 witnesses in defence. D.W.1 is Syed Zaman Shah, Sub-Divisional Educational Officer, Tando Muhammad Khan. He stated that there was no Government school on the lands of Syed Zulfiqar All Shah and his office maintained proper record in that respect. D.W.2 is Muhammad Moosa who deposed that he was Election Agent of Syed Mohsin Shah during election of 1990 which was contested against Mir Mumtaz. Zulfiqar Ali Shah acted as Chief Election Agent of Mohsin Shah while Pir Saeed Jan Sarhandi had acted as Chief Election Agent of Pir Mumtaz Ali Shah. D.W.3 is Muhammad Shah who stated that in 1990 election Qabool Muhammad Shah had contested against Mir Aijaz All Talpur in respect of seat of Provincial Assembly. He was voter in that constituency and Pir Saeed Jan Sarhandi and Pir Khalid Jan Sarhandi worked for Mir Aijaz Ali Talpur in that election. D.W.4 Muhammad Ilyas stated that he was stamp vendor in Tando Muhammad Khan and did not receive or hear any complaint in respect of this incident. D.W.5 is Ghulam Mustafa who stated that Pir Khalid Jan Sarhandi was Chairman of District Council, Hyderabad before its dissolution and rumour was afloat that Zulfiqar Ali Shah or Pir Khalid Jan Sarhandi would be appointed as Administrator of the District Council. D.W.6 Kazi Taj Muhammad stated that he did not go to the police station at the time of arrest of Saeed Muhammad Shah. D.W.7 Achar stated that he was Hari by profession and prior to that he was Kamdar of Qabool Muhammad Shah. He saw crowd of persons at one place and on enquiry learnt that police had arrested and taken away Jaffer and servant of Saeed Muhammad Shah whose name was Khuda Bakhsh. About 8 or 10 days thereafter, C.IA. Police had summoned him and Haji Faqeer, Saleh, Achar Patel and Hussain. This information was conveyed to him by Achar Patel. While they were with C.I.A. At Hyderabad they learnt that Jaffer had named them as witnesses. D.W.8 is Haji Faqeer who claims to be related to the complainant. He deposed that about one month ago police had taken him and also Hussain, Saleh, Achar Patel and Achar son of Essa to Hyderabad for interrogation. His statement was that he did not know inything about the incident and then he was allowed to go back.

41. Duty of prosecution to prove its case against accused beyond doubt does not diminish on raising of defence plea. It is not duty of the defence to disprove the case of the prosecution.

Defence plea may be taken, may not be taken and may be sometimes it is not proved. Burden of proof is not upon defence but is always upon prosecution to prove the case beyond doubt. It is sufficient if defence plea succeeds in causing a dent in the credibility of the prosecution case. In this case defence plea has shown that there is background of political rivalry between two groups and in such circumstances possibility of false implication cannot be ruled out.

42. In this case, trial is held under special law, the purpose and purport of which is expeditious disposal of case but then speed is not to be construed as haste. There is perceptible difference between speed and haste. Object of speed can be achieved even after observing all legal requirements without indulging in haste. There are legal maxims in the field which act as guidelines. One maxim is that justice delayed is justice denied and the other in the same context is justice hurried is justice buried. So balance is to be struck between the two maxims. In process of hurry mistakes were made in the investigation and during trial. There is yet another thought provoking aspect of this case. In this case excessive publicity was given through information media after crime was reported which fact is reflected in the evidence brought on the record and is beyond dispute. Such publicity is bound to create sensationalism portraying the crime as cruel and revolting which is so done when the crime is either at the stage of investigation or the case is pending trial. It is the cardinal principle of law that accused is to be presumed as innocent until prosecution proves case against him beyond shadow of reasonable doubt. If prosecution fails in its duty which never shifts to the accused, accused is entitled to the benefit of doubt. On account of excessive publicity course of investigation is affected and charged to go in one particular direction, which may turn out to be incorrect. In such cases involving sensationalism and excessive publicity it becomes more necessary for the Court to examine the evidence with more than ordinary care lest shocking nature of crime might induce an instinctive reaction against a dispassionate judicial scrutiny of facts and law. In support of the proposition reference can he made to the case of Tauqir Alam and others v. The State (1985 MLD 604) and Kashmira Singh v. The State (AIR 1952 SC 159).

43. For facts and reasons mentioned above we are satisfied that rape has not taken place in the abandoned school in the manner suggested by the prosecution after kidnapping Mst. Sahiba in Suzuki alongwith her father and mother. Prosecution has miserably failed to produce confirmatory evidence in that regard. In this case there is room for doubt, benefit of which must go to the appellants. We, therefore, set aside their conviction and sentences. Appeals are allowed and in consequence appellants are acquitted. They may be released at once if not wanted in any other case.