' MIR HAZAR KHAN KHOSO, CJ.--- This appeal under section 417, Cr.P.C. Is directed against the judgment, dated 18-7-1991 passed by the learned Additional Sessions Judge, Khanewal, whereby respondents Hafeez and Mst. Manzooran alias Manni were acquitted of the charge framed against them under sections 11, 13, 14 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) on 9-5-1990.
2. The case is based on the complaint filed by P.W.4 Nazar Iqbal with P.W.7 Yousaf Ali, A.S.I., on 25th of February, 1989. On the basis thereof F.I.R. No,11 of 1989 for offence under section 10/13 of the Ordinance was registered at Police Station Makhdoompur Pahoran. Witness Yousaf Ali went to the site, prepared site plan, recorded statements of Mst. Maqsood Mai and other witnesses and sent Mst. Maqsood Mai for examination to lady doctor. On transfer of investigation the case came in hands of P.W.8 Shamas-ul-Haq, S.I. On 10-4-1989 one Allah Bakhsh produced respondent Hafeez before him alongwith his licensed gun. He arrested him. He recorded statements of some witnesses and then submitted challan against the two respondents before the Court but placed Mst.
Manzooran in column No,II of the challan. The case came up for trial before the Court of the learned Additional Sessions Judge, Khanewal, where the both respondents did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined:-- ' P.W.1, Lady Dr. Navced ' She examined Mst. Maqsood Mai on 25-2-1989. Her deposition is:-- "(1) -Mark of violence was present.
(i) Two parallel contusion marks 13 c.m. x 1-1/2 c.m. On the upper lateral side of right thigh.
(ii) Contusion mark 3 c.m. x 2-1/2 c.m. On the upper lateral side of right thigh at right angle of mark No,1.
(iii) Contusion mark 6 c.m. x 2-1/2 c.m. On the right lip.
(iv) Diffused swelling on upper part of right forearm on the back side. Advised X-ray.
(2) Shalwar was not stained with any semen.
(3) Congestion of inner surface of left side of labia.
(4) Fresh tear of posterior margin of hymen.
(5) Vagina admitted two fingers tightly." P.W.2, Talib Din, A.S.I.
' Formal witness. His evidence is:-- "On 25-2-1989 I was posted as Moharrir/A.S.I. Police Station Makhdoompur Pahoran. On receipt of complaint Exh.P.C. I recorded formal F.I.R. Exh.P.C./1 which is in my hands and bears my signature.
' On 26-2-1989 Shaukat Ali, Constable handed over to me two sealed parcels pertaining to this case which I kept in Malkhana. On 28-2-1989 I delivered the abovementioned parcels to said Shaukat Ali for onward transmission to the office of the Chemical Examiner, Multan.
' XXXXX by defence counsel: ' Due to the shortage of employees I could not send the parcels on the same day. I cannot give the time when I received parcels. Even I cannot give the time when I handed over the parcels to the Constable. I do not know when the result of Chemical Examiner was received."
' P.W.3 Shaukat Ali, Constable ' Formal witness. His evidence is:-- "On 25-2-1989 I was also posted at Police Station Makhdoompur Pahoran. On that day I accompanied Mst. Maqsood Bibi to Civil Hospital Khancwal. After her medical examination lady doctor handed over to me two sealed parcels pertaining to this case. I handed over the same to Talib Din, A.S.I./Moharrir on 26-2-1989. Talib Din, A.S.I. Returned these sealed parcels to me for onward transmission to the office of the Chemcial Examiner on 27-2-1989 which I delivered the same in the same office intact.
' XXXXX ( by defence counsel: ' I accompanied Mst. Maqsood Bibi from police station to the hospital. She was produced before the police by her heirs. I cannot give the time as to how much time before her departure she remained in police station. An uncle of the examinee was also with us. It was about 9 p.m. When we left the hospital. Again said I do not remember the time. I returned to the police station all alone. On my return I deposited the parcel with Moharrir."
' P.W. Nazar Iqbal, complainant ' Father of victim Mst. Maqsood Mai. Examination-in-chief of his statement is:-- "About two years back I had come to Khancwal at about Isha prayer time. When I returned home, I did not find my daughter Mst. Maqsood Mai aged about 10 years present in the house. I inquired from Mulazim Hussain P.W. About her on which he replied that he did not know anything about her.
In search of my daughter, I reached near the quarter of Sadique son of Sultan where I heard some cries. When I went inside the house of the said Sadique son of Sultan alongwith Mulazim Hussain P.W. We saw that Hafeez accused present in the Court was committing Zina-bil-Jabr with Mst.
Maqsood Mai on a cot. On seeing me Mst. Maqsood Mai raised a hue and cry. Mst. Manzooran accused present in the Court was also standing nearby the door. Hafeez accused holding his gun and Chaddar in his hand ran away from there. Mst. Manzooran accused also disappeared from there. My daughter told me that Mst. Manzooran had come to her and had involved her in conversation. During this she had taken her to the house of Sadique and handed her over to him where she was subjected to torture and after breaking the string of her Shalwar Hafeez accused committed Zina with her. The accused then brought the respectables of the locality to me for a compromise and on 25-2-1989 I got the case registered with Police Station Makhdoompur at Lari Stand Makhdoompur. Exh.P.C. Is my statement which was read over to me and which I signed in witness thereof."
' P.W.5 Mst. Maqsood Mai ' The victim. Examination-in-chief of her evidence is:-- "About two years back at about evening time I was present in my house that Mst. Manzooran 'accused present in Court came to my house and involved me in conversation during which she took me to her house. There Hafeez accused present in Court was present. He had a single barrel gun. He threatened me with that gun and directed me to lying straight. I kept on standing, thereafter the accused Hafeez broke open the string of my Shalwar forcibly and committed Zina- bilJabr with me. Because of pain I kept on crying on which my father and maternal-uncle Mulazim Hussain reached there. The accused ran away from there alongwith his gun. Mst. Manzooran was also standing in the Vehrra. I told this occurrence to my father and uncle. I was medically examined by the lady doctor."
' P.W.6 Muhammad Riaz, Constable ' Examination-in-chief of his evidence is:-- "On 10-4-1989 I was posted at Makhdoompur Pahoran Police Station. On the same day Muhammad Hafeez accused present in the Court produced gun .12 bore P.1 before the S.H.O. In my presence who took the same into custody vide recovery memo. Exh.P.D. Which I signed in witness thereof.
Mulazim Hussain P.W. Also witnessed this recovery."
' P.W.7 Yousaf Ali, A.S.I.
' Investigating Officer.
' P.W.8 Shamas-ul-Haq, ' Investigating Officer.
' P.W.9 Dr. Rao Muhammad Sadiq, Medical Officer ' He examined respondent Hafeez Ahmad. Examination-in-chief of his deposition is as under:-- "On 11-4-1989 while I was posted as M.O. R.D. Makhdoompur Pahoran, Hafeez Ahmad son of Ahmad Bakhsh was produced before me by the police vide application Exh.P.E. For his medical examination. I examined him and vide my report Exh.P.E./1 written on the application found him sexually potent."
3. In his statement recorded under section 342, Cr.P.C. Respondent Muhammad Hafeez explained:- - "In fact one Dara nephew of Mualzim Hussain committed this rape with whom the complainant party compromised. I have long standing enmity with Sargana and Awan families. The complainant is a servant of Malik Zaman and is an addict. At the instance of Malik Zaman this false case has been registered against me although at the time of occurrence I was on duty at Khanewal."
' Respondent Mst. Manzooran took the same stand as that of the respondent Muhammad Hafeez.
4. The respondent examined six witnesses in defence:-- D.W.1 Babar Khan Examination-in-chief of his statement is:-- "I am posted as Head Clerk, Railway Station Khanewal and attendance register of the employees remains in my charge. Muhammad Hafeez accused present in Court is posted as pointman in the Railway Department and in the month of February, 1989, he was posted at Railway Station Khanewal. On 23-2-1989, according to the attendance register he was present at Railway Station Khanewal. A photostat copy of the attendance register duly attested by me is submitted.
According to the "Goods Diary" on 23-2-1989 the duty hours of the accused were from 4 p.m. To 12 p.m. A photostat copy of the said register is also produced duly attested by me as mark 'B'."
D.W.2 Muhammad Anwar ' Examination-in-chief of his statement is:-- "I am posted as U.D.C. Railway Hospital, Multan. On 27-2-1989 Muhammad Hafeez accused came to the Railway Hospital, Multan; with a gun shot wound hence we referred him to Nishtar Hospital, Multan. The concerned doctor of Nishtar Hospital, Multan without removing the bullet referred him back to Railway Hospital, Multan. On 1-3-1989 we referred accused Hafeez to Cairan Hospital, Lahore which is the Main Railway Hospital. From 1-3-1989 to 12-3-1989 he remained admitted in Cairan Hospital, Lahore and from there he came to Multan and was admitted to Railway Hospital, Multan. From 12-3-1989 to 16-3-1989 he remained admitted in Railway Hospital, Multan. On 16-3- 1989 at about 6 p.m. Two police officials came to the hospital and tried to arrest the accused on which the hospital staff intervened and asked the police constables as to why they wanted to arrest him on which they replied that accused Hafeez was wanted in case under Zina Ordinance.
The staff directed the police officials to obtain permission from the Senior Doctor, and therefore, the matter was referred to Medical Officer concerned who gave permission after obtaining the requisition in writing from the police staff. The police, therefore, gave writing and arrested the accused from there. A certified copy of the said writing is produced as mark 'C'. The certified copies of the other documents are mark 'D' to mark 'M'. Thereafter, I do not know what happened."
' D.W.3 Muhammad Iqbal ' Examination-in-chief of his evidence:-- "On 23-2-1989 I was serving as a Shunting Master YM Yard Master. Hafeez was doing his job with me. On that date I had checked his attendance twice as it was a routine. Almost all the day employees attendance is checked because as a Shunting Master I performed the duties myself and checked the other employees."
' D.W.4 Allah Bakhsh ' Examination-in-chief of his statement is:-- "Mst. Manzooran accused is my sister. The house in which the occurrence is said to have taken place consists of two rooms. In one room Mst. Manzooran resides with her husband and in the other room my parents, my brother and his family members reside. About 13/14 members of the family reside in that house. The forewall of this wall is about three feet height. On the back side of the house a hotel is adjacent to my house and it is a thickly populated area. This house is at a distance of one Bigha from the Railway Station. There is great hustle and bustle due to the passengers of the railway station. I had taken oath on the Holy Qur'an before the complainant regarding the innocence of Mst. Manzooran and he had said that he is now satisfied. On the offer of the complainant my first cousin Khuda Bakhsh had taken oath in the Mosque of Makhdoompur about the innocence of Mst. Manzooran. The oath was with regard to this fact whether occurrence was taken place."
D.W.5 Khuda Bakhsh ' Examination-in-chief of his evidence:-- "When the I.O. Came to the place of occurrence for investigation and convened a Punchayat the complainant nominated 3/4 persons to give oath of innocence of accused Mst. Manzooran. I was also one of them and I had to give oath in the Mosque of Makhdoompur. In the presence of Chairman and others I took oath of the innocence of Mst. Manzooran accused."
' D.W.6 Muhammad Hafeez, accused ' Examination-in-chief of his statement recorded under section 340(2), Cr.P.C. Is as under:-- "I am absolutely innocent in this case. I have been falsely involved in this case at the instance of Zaman Mehdi Awan. The complainant Nazar Iqbal is a servant of Zaman Mchdi. We have enmity with Sargana and Awan people. At this stage also a case under section 307, P.P.C. Is pending against me and Zaman Mehdi is a complainant in that case. He had also beaten me and I had got a case registered with railway police. At the time of the alleged occurrence I was doing my job as pointsman and my duty was at shunting. On that night I remained on duty from 4 p.m. To 12 p.m. At night. On 26-2-1989 Zaman Mehdi fired at me. I was taken to Railway Hospital Multan who referred to Nishtar Hospital, Multan. From there I was shifted to Lahore where I was operated upon and I was sent back to Railway Hospital, Multan from where I was arrested on 16-2-1989 or 16-3-1989. I have no concern with Mst. Manzooran accused."
5. However, the learned trial Judge acquitted the two respondents from the charge on 18-7-1991.
The State has filed this acquittal appeal and requested for their conviction for the offence committed by him.
6. Mr. Muhammad Akhtar, Additional Advocate-General with Mr. A.H. Masood, Advocate, appeared for the appellant/State and Mian Masood Ahmad Bhutta, Advocate, appeared for the respondents.
7. The learned counsel for the State contended that on flimsy defence of alibi the respondents Muhammad Hafeez and Mst. Manzooran have been acquitted, otherwise it was a proved case against both of them.
8. The learned counsel for the respondents submitted that the evidence produced by the prosecution was found to be insufficient and the defence plea of alibi found proved hence the both respondents have been given a proper acquittal.
9. The observations made by the learned trial Judge for acquittal of the respondents are given in paragraphs 7, 8, 9 and 10 of the judgment. The same are reproduced hereunder:- "(7) The Railway Colony is a thickly populated area and there are about 13/14 Railway Quarters which are partly occupied and partly vacant. There is a hotel of one Salcem adjacent to the place of occurrence and the said Saleem also resides there. The complainant has stated that this hotel was constructed after the occurrence but no such statement was given by the alleged victim. She has also stated that the other family member of the accused Mst. Manzooran also resided in the house in which she was taken to be subjected to Zina-bil-jabr by Hafeez accused. She raised a hue and cry but neither any neighbour of the place of occurrence arrived there nor anybody else. Had it been a deserted area, one could presume that perhaps no body was present to witness this occurrence but in this case the husband, brother and mother of Mst. Manzooran accused resided in this house. If they were not present in that house, at least there could be an apprehension of their arrival to that place and question arises as to what relation exised between the two accused as a result of which Mst. Manzooran accused who is a married lady, facilitated this offence. There is no evidence that there were any such immoral relations between the two accused that Hafeez could ask Mst. Manzooran accused to bring a girl from the neighbourhood for him. There is also no evidence collected by the prosecution to establish that Mst. Manzooran accused has been of that nature that she is involved in prostitution. The alleged victim has also introduced a story that she was beaten by the accused through stick. It is very strange that he is reported to be armed with a single barrel gun and at the point of this gun he directs the alleged victim to open her Shalwar but he opts to beat her with a stick and neither that stick has been taken into custody nor it was ever produced before the I.O. Anyway, I fail to understand that when under the threat of a gun, the accused had been able to commit Zina-bil-Jabr with her, what was the fun in beating her. It, therefore, seems that the injuries received by the alleged victim were not during the process of sexual intercourse. The reason for a false involvement of the accused has been stated by the accused in his statement under section 342, Cr.P.C. And in the suggestions put to the prosecution witnesses that in fact she was kidnapped by somebody else but due to compromise with him, the accused have been falsely involved in this case.
(8) The important event in this case is that the accused have produced defence evidence which consists of statements of Babar Khan D.W.1, Muhammad Anwar D.W.2, Muhammad Iqbal D.W.3, Allah Bakhsh D.W.4 and Khuda Bakhsh D.W.5. Hafeez accused himself appeared in the witness-box in disproof of the charges against him. Babar Khan D.W.1 stated that he is posted as Head Clerk, Railway Station, Khanewal and the attendance register of the employees remains in his charge.
According to him that Hafeez accused who is posted as a pointsman in Railway Department was posted at Railway Station, Khanewal in February, 1989 and on 23-2-1989, according to the attendance register he was present at Railway Station, Khanewal. He produced a photostat copy of the attendance register mark 'A'. He also produced a photostat attested copy mark 'B' from the Goods Diary Register according to which the duty hours of the accused on 23-2-1989 were from 4 p.m. To 12 p.m. The witness is an employee of the Government Department and not directly related to the accused. He stated that there is no possibility of a fictitious marking of presence of his office.
Muhammad Anwar D.W.2 is a U.D.C., Railway Hospital, Multan and according to him, on 27-2-1989, the accused Hafeez came to Railway Hospital, Multan with a gun shot wound hence he was referred to Nishtar Hospital, Multan. The witness further deposed that the doctor of Nishtar Hospital, Multan referred him back to Railway Hospital without removing the bullet hence on 1-3-1989 he was referred to Carian Hospital, Lahore where he remained admitted from 1-3-1989 to 12-3-1989 and from there he was returned back to Multan Railway Hospital where he remained admitted from 12- 3-1989 to 16-3-1989. The witness deposed that on 16-3-1989 at about 6 p.m. Two police officials came to hospital and tried to arrest the accused on which the Hospital Staff intervened and asked the police constables as to why they wanted to arrest him. They informed that he was wanted in a Hudood case on which Hospital Staff directed the police to obtain permission from the Senior Doctor and, therefore, the matter was referred to Medical Officer concerned who gave permission after obtaining the requisition in writing from the police staff. A certified copy of the said writing was produced as mark `C' and certified copies of the other documents were produced as mark 'D' to mark 'M'.
(9) Muhammad Iqbal Shunting Master as D.W.3 stated that on 23-2-1989, ' he was serving as a Shunting Master and Hafeez accused was doing his job with him. The witness deposed that on that date he had checked his attendance for twice by way of routine and almost all the day employees' attendance is checked because as a Shunting Master he had performed his own duties and had checked the staff. Mst. Manzooran accused produced her brother Allah Bakhsh and one other Khuda Bakhsh who stated that the I.O. Convened a Punchayat when he came to the place of occurrence where the complainant nominated four persons and offered that if any one of them gives oath of innocence of Mst. Manzooran accused she would be considered innocent.
Hence Khuda Bakhsh D.W.5 gave the oath. Hafeez accused as D.W.6 stated his own case.
(10) A perusal of the defence evidence would show that the witnesses produced by Hafeez accused belong to his department who proved the record that at the time of the alleged occurrence, the accused was working physically at Railway Station, Khanewal. The I.O. Did not investigate this case from this point of view. He has not even correctly recorded his arrest.
According to Shamas-ul-Haq P.W.8, on 10-4-1989 one Allah Bakhsh Sahu produced Hafeez accused before him alongwith his licensed gun hence he arrested him whereas according to the D.Ws. The same Shamas-ul-Haq S.H.O. Had arrested the accused from Railway Hospital, Multan on 16-3-1989. The Investigating Agency has, therefore, committed padding in this case and no reliance can be placed on their investigation. The prosecution produced only the alleged victim and her father to establish its story and the background between both the parties of a hostility is not denied in so many words by the complainant. The prosecution has, therefore, not been able to bring home the guilt of the accused by means of a convincing, impartial and independent evidence. Both the accused are, therefore, entitled to benefit of doubt hence I acquit both the accused from this case and of the charges that they are facing. The accused are on bail. Their bail bonds are recalled and sureties discharged. File be consigned to record."
10. The reasons given by the learned trial Judge for acquittal of the rspondents in paras. 7, 8, 9 and 10 above are indeed superfluous one and based on surmises and conjectures hence have no legal force. Para.10 of the judgment reflects that the learned trial Judge was impressed by the defence evidence and thus observed that respondent Hafcez was physically present at Railway Station, Khanewal at the time of incident.
11. We had the advantage to go through the evidence of D.W.1 Babar Khan. He has not verified personal attendance of the respondent Hafeez at the railway station on 23-2-1989. He has said that according to attendance register he was present there. D.W.2 Muhammad Anwar has said nothing regarding alibi. He has given episode regarding his arrest. D.W.3 Muhammad Iqbal too has said nothing about physical presence of the respondent Hafeez at the railway station on 23-2-1989.
D.W.4 Allah Bakhsh and D.W.5 Khuda Bakhsh's evidence is not relevant in respect of alibi. Indeed, the plea of alibi is dubious. The learned Judge as such has misread the evidence and then has reached incorrect conclusion that respondent Hafeez was physical present at Railway Station Khanewal at the time of incident on that day.
12. We have gone through the evidence of P.W.5 Mst. Maqsooda Mai. She has fully implicated the respondent Hafeez for having committed rape upon her. Her evidence has not been shaken in cross-examination. Thus, there are no inherent defects therein. Her evidence is supported by the evidence of her father P.W.4 Nazar Iqbal. Besides, W.M.O. Dr. Naveed in unequivocal terms corroborated evidence of Mst. Maqsood Mai, regarding rape having been committed upon her. No enmity exists between the parties. Phenomenon of substitution is alien to the Courts of this country.
13. The charge under section 10(3) of the Ordinance, therefore, stands proved against respondent Hafeez beyond reasonable doubt.
14. So far as respondent Mst. Manzooran is concerned, no active role has been assigned against her, hence the evidence produced by the prosecution is not sufficient to establish charge of section 13 of the Ordinance against her.
15. In such view of the fact it may be observed that acquittal of respondent Muhammad Hafeez is not based on settled principle of administration of criminal justice. In respect of him, therefore, the appeal filed by the State is accepted. His acquittal recorded by the learned Additional Sessions Judge on 18-7-1991 is set aside. He is convicted for offence under section 10(3) of the Ordinance and sentenced to suffer R.I. For ten years and thirty stripes. He is also given benefit of section 382-B, Cr.P.C. He be taken into custody to serve out the sentence awarded to him.
16. In respect of Mst. Manzooran the appeal filed by the State is dismissed. The appeal stands disposed of accordingly.
State .