' JUSTINCE MUHAMMAD RAFIQ TARAR, (CHAIRMAN)--Ajaib alias Ajba and Ghulam Abbas alias Abasa appellants were tried by the learned Special Court for Speedy Trials, Multan, on the allegation that on the night between 7th and 8th of January, 1993 at about mid-night while armed with fire-arms they trespassed into the house of Muhammad Hayat complainant who was living in the said house with his wife and children and on threats of death Ajba committed Zina-bil-Jabr with his unmarried daughter Mst. Mumtaz Mai and Abasa ravished his other unmarried daughter Mst. Shahnaz Mai. By judgment dated 9-2-1993 both of them were convicted under section 458 of the P.P.C. And section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. For the former offence they were sentenced to 10 years' R.I. And a fine of Rs,20,000 each and in default in the payment thereof to suffer further R.I. For one year each. For the commission of Zina-bil-Jabr they were sentenced to R.I. For 25 years and whipping numbering 30 stripes each with the direction that both the sentences shall run concurrently. The convicts have appealed.
2. The brief facts of the prosecution case are that on the night between 7th and 8th of January, 1993 Muhammad Hayat complainant, his wife and children were sleeping in their house situate at Chah Rohranwala in the area of village Jhok Wains. The door of the house had no inside bolt, therefore, Muhammad Hayat complainant had put his cot close to that door. There was a burning lantern in the room on an iron chest near the cot of Mazhar Abbas son of the complainant. At about 2-00 a.m. Somebody knocked at the door upon which the complainant inquired as to who he was. The said person replied that he was Ajba Wains and simultaneously asked him to open the door otherwise he would break it and enter his room. The said person started pushing the door from outside while Muhammad Hayat complainant and his wife Mst. Jannat Bibi stood by the shutters of the door and offered resistance. The outside person then started digging the earth from near the door with a Kassi. After about 15 or 20 minutes when the complainant and his wife got exhausted Ajaib alias Ajba armed with a rifle entered the room alongwith Ghulam Abbas alias Abasa who was armed with a .12 bore gun. Under threats of death they commanded the inmates of the house to put off the lantern and pull the quilts on their faces. The complainant, his wife and children tried to raise alarm upon which they aimed their weapons at them had covered their faces with quilts. Ajba pulled the quilt of Mst. Mumtaz Mai and forcibly removed her Shalwar, simultaneously Abasa pulled the quilt of Mst. Shahnaz Mai and forcibly pulled off her Shalwar. The complainant, his wife and their aforementioned daughters entreated the accused but they did not listen. Ajba committed Zina- bil-Jabr with Mst. Mumtaz Mai and Abasa committed the same crime with Mst. Shahnaz Mai and after satisfying their lust left the place leaving both the victims in the same condition. The inmates of the house raised hue and cry attracting Ahmed Bakhsh and Muhammad Nawaz Sial who fired one shot each in the air with their licenced guns but the accused persons made good their escape.
One Oadir Bakhsh, maternal uncle of Ajba accused, met the complainant and told him that he would face the consequences if he reported the matter to the police.
3. On getting information about the crime Habib Ahmad Ghuman, D.S.P. Reached the spot on 10-1- 1993 and recorded statement Exh. PE of Muhammad Hayat complainant on the basis of which formal F.I.R. PE/1 was recorded at the Police Station on the same day at 5-15 p.m. Aslam Hayat SHO investigated this case. He took the blood/semen-stained Shalwars of Mst. Mumtaz Mai and Mst.
Shahnaz Mai into his possession vide memos. Exh. PH and PJ, respectively. He also took into his possession the Kassi vide memo. Exh. PK. He arrested Ajba accused on 12-1-1993 from the porch of the Bungalow of Sikandar Bosan MPA. He also arrested Abasa accused on the same day from the Canal Bridge of Bindar Sargana. On 16-1-1993 Ajba accused led to the recovery of unlicensed rifle P1 from his, house vide memo. Exh. PF/. On the same day Abasa accused led to the recovery of gun P2 from his house. After the usual investigation both the accused were challaned.
4. On 11-1-1993 Mst. Shahnaz Mai was medically examined by Lady Dr. Zubaida Riaz who found the following injuries on her person:--
(1) A tender scar 1-1/2 c.m. x 1 c.m. Right side back of chest;
(2) A tender scar 3-1/2 c.m. x 1/4 c.m. Vertical in direction inner side of right leg, 6 c.m. Above the right ankle-joint;
(3) A tender scar 6 c.m. x 1 c.m. Outer side of right leg;
(4) A tender scar 2 c.m. x 1-1/2 c.m. Front of right leg 5 c.m. Below right knee joint;
(5) Hymen was absent represented by granulation tissue;
(6) Vaginal orifice admitting two fingers, blood present in vagina that if probably menstrual blood (according to her statement 4th day of menses).
' On the same day she also examined Mst. Mumtaz Mai and found the following injuries on her person:--
(1) Tender scar 1-1/2 c.m. x 1 c.m. Front of left leg.
(2) A tender scar 2-1/2 c.m. x 1 c.m. Front of left leg 7-1/2 c.m. Below injury No, 1. 5 c.m. Above the left ankle-joint.
(3) A tender scar 1 c.m. x 1 c.m. Back of left heel.
(4) Hymen absent represented by granulation tissue;
(5) Vaginal orifice admitting two fingers. Blood present in vagina that was probably menstrual blood (according to her statement 1st day of menses).
5. On 14-1-1993 Dr. Abdul Saleem examined Ajaib alias Ajba accused and found him "quite normal to act sexual intercourse". On the same day he also examined Ghulam Abbas alias Abasa accused and likewise found him "quite normal to act sexual intercourse."
6. In support of its case the prosecution examined 13 witnesses in all and its main stay was the testimony of the ravished girls (P.Ws. 9 and 10) and their unfortunate parents namely Muhammad Hayat complainant P.W.8 and Mst. Jannat Bibi P.W.11.
7. The appellants pleaded not guilty to the charge and denied the prosecution's allegations against them. Ajba when asked why this case against him, made the following statement:-- "Both Shahnaz and Mumtaz are of chequered character. They have no other means of livelihood and they had almost polluted the environment in their village. A Punchayat was also convened by the elders of Wains family and they had requested their father to leave that place. My father and the uncle of Abbas accused were the main figures of that Punchayat, therefore, they have concocted the present case against me and my co-accused. Such a complaint against these ladies was lodged with Sikandar Khan M.PA. And then before the S.H.O. P/S Alpa. But the police did not take any step to oust them from the village."
' Ghulam Abbas alias Abasa accused also made a similar statement. The appellants chose not to make any statement on oath under section 340(2) of the Cr.P.C. Nor led any other evidence in defence.
8. Relying on the prosecution evidence the learned trial Judge convicted and sentenced the appellants as mentioned above.
9. Learned counsel for the. Appellants halfheartedly argued that the F.I.R. Was deliberately delayed to gain time for fabricating a story and this case was concocted "due to enmity between the M.PA.
And the D.S.P." He further submitted that the learned trial Court had failed to appreciate the evidence in its true perspective and in any case the sentence awarded to the appellants was excessive. The learned State Counsel on the other hand contended that both the ravished girls and their parents had absolutely no motive to falsely implicate the appellants in a heinous crime like the present one. He maintained that the appellants committed this crime in a most inhuman, violent and cruel mar ner in the presence of the unfortunate parents, brother and other members the family of the unfortunate girls, therefore, they do not at all deserve any cniency in the matter of sentence.
10. We have considered the submissions made at the bar in the light of evidence available on the record. The occurrence took place on the night between 7/8-1-1993 and the report was made on 10-1-1993 at the spot when the DST' paid a visit there of his own on receiving information about the occurrence "in the crime meeting of the S.S.P.". The complainant explained the delay in cross- examination saying that "Without the help of M.P.A. The police does not take any proceeding" therefore, he did not got to the police or any officer after the occurrence. Earlier he had stated that on the following morning he went to the Bungalow of the local M.PA. In the company of 50 persons and narrated him his woeful tale but he put him off saying that the police was busy in connection with the tour of the Prime Minister at Lodhran. This happened on the morning of 8-1-1993. He further stated that Qadir Bakhsh the maternal uncle of Ajba appellant who was present at the Bungalow of the aforesaid M.P.A. Had threatened him. On 10-1-1993 he again visited the Bungalow of the M.PA.
But seeing the appellant already present there he came back. The investigating officer Habib Ahmad Ghuman, DSP stated that he arrested Ajba appellant from the porch of the Bungalow of Sikandar Hayat Bosan MPA. It is a matter of common knowledge that presently the things have been so shaped that it is very difficult for the common man to get his due from a public office without the intervention of the local MPA/MNA of the ruling party, therefore, we see no reason to reject the explanation offered by the complainant for the delay in lodging the FIR. Furthermore the delay in the FIR assumes importance where the parties are inimical and the number of B accused is out of proportion to the nature of the crime which is not the case here.
11. Muhammad Hayat complainant, his wife Mst. Jannat Bibi and their daughters, the two victims namely Shahnaz Mai (18/19) and Mumtaz Mai (15/16) supported the prosecution version as detailed in the earlier portion of this judgment. Their evidence is consistent on the main features of the case.
The unfortunate victims unanimously stated that their parents kept on entreating the accused persons to spare them and both the accused had kept their weapons on respective cots while committing Zina-bil-Jabr. They had no enmity, ill-will or grouse against the appellants so as to falsely implicate them in a heinous crime like the present one. It is unimaginable that a story putting the honour and dignity of two unmarried young girls at stake was fabricated by their parents just to please the DSP who according to the learned counsel for the appellants had enmity with the MPA. The unfortunate father though poor and resourceless is an educated person. In cross-examination he stated that he graduated in the year 1964 but "did not adopt any service" as he could not find one.
The medical evidence and detection of semen on the vaginal swabs D lend substantial support to the ocular account.
12. The defence version on the face of it is preposterous. The appellants E have not produced either their elders (father of Ajba and uncle of Abbas) or Sikandar Bosan MPA in their defence in support of their plea.
' For the foregoing reasons we are satisfied that the appellants have been rightly convicted. In view of the enormity of the crime the sentence F awarded to them is also appropriate and calls for no interference. The result is that the appeal has no merit and is accordingly dismissed.