' The two appellants Jiomal and his servant Shahmir were tried by the Additional Sessions Judge, Sukkur, on a charge under section 376/109, P. P. C. The appellant Jiomal was charged with the substantive offence under section 376, P. P. C. Whereas appellant Shahmir was charged with abetment under section 109/376, P. P. C. By a judgment dated 27th November 1972 the Additional Sessions Judge, found both the appellants guilty of the offences with which they were charged and appellant Jiomal was sentenced to 5 years' R. I., whereas the appellant Shahmir was sentenced to 3 years, R. I. They have filed an appeal through Mr. Azizullah K. Shaikh, who has appeared before me on their behalf whereas the State has been represented before me by Mr. Bacot Hussain.
2. The prosecution story briefly is that on 15th of July 1969 the prosecutrix Mst. Moomal and her husband Allandito along with one Nabi Bux who is a nephew of Allandito had come from their village to Ghotki town with a view to make some purchases in connection with the marriage of Nabi Bux. It is stated tnat after making purchases Nabi Bux left for his village during the day and the prosecutrix and her husband remained in Ghotki town until the late evening on that day. The story then is that both Mst. Moomal and Allandito came to Ghotki Railway Station to catch a train that was leaving for their village and while they were sitting at the station, appellant Shahmir came mere and asked them not to leave at night but to stay with him for the night and go to their village on the next morning. The prosecutrix Moomal and her husband Allandito accepted the offer and came to a flour mill which was owned by the appellant Jiomal and was located in the main Ghoto bazar within the town of Ghotki. It is stated that both the appellants brought food for the prosecutrix and her husband and after taking the food both of them went to bleep within the precints of the flour mill. The two appellants also slept in the said mill. At about Ana' time the two appellants are stated to have come to the place where the prosecutrix Mst. Moomal was sleeping and while appellant Jiomal tied the mouth of Mst. Moomal, appellant Shahmir held her by the arms and took her to the room where the machinery of the flour mill was installed and in that room it is stated that while Shahmir held the prosecutrix by her arms appellant Jiomal untied the tape of her trousers and committed rape on her. The prosecutrix then set up a case that she tried to raise cries but could not do so because her mouth was "muffled" by ' which perhaps she meant "gagged". The mouth of the prosecutrix was opened after the sexual intercourse had taken place and thereafter she raised cries which attracted one Pathan Chowkidar and her husband Allandito, who as stated above was sleeping in the same mill. Both the Pathan Choukidar who has given evidence in the case and is Abdul Haq by name ; and Allandito the husband of the prosecutrix tried to catch the two appellants but they ran away. It is stated that thereafter the prosecutrix tied the tape of trousers and in the meantime many other persons came up whose names are however not disclosed either in the report or in the evidence. Thereafter both Mst, Moomal and her husband Alandito went to one Hayat Khan Mirbahar and narrated the facts to him who advised them to lodge the report at the police station which was accordingly done so that the first information in regard to this crime was recorded at 9 15 a.m. On the following morning.
3. Assistant Sub-Inspector Muhammad Younis after recording the report of Mst. Moomal secured the trousers that she was wearing at that time. The trousers were torn from the mid bottom and the same had some marks. These trousers have been sent to the chemical analyser who has certified that semen stains were found on the same. The police officer also visited the scene of occurrence and prepared a mashirnama. The ground at the scene was paved and for such reason there were no prints. The house of appellant Jamal was searched in the absence of the appellant Jiomal, and an Angosha was secured and the significance of the seizure was that the prosecutrix had stated that she had been gagged or muffled with that Angosha. This Angosha was subsequently identified by the prosecutrix before a Magistrate as being the same Angosha which was used for purpose of gagging her. Mst. Moomal was produced before Dr. Umed Ali, the Medical Officer in the District Headquarters Hospital at Khairpur and the Medical Officer found no marks of external violence on her body, nor on the genitels. Medical Officer has certified her to be aged 18 years although in her deposition she has stated that she was aged 21 years. Hymen was absent and it is admitted case that prosecutrix Mst. Moomal was married and had given birth to a child. The Medical Officer also collected two vaginal swabs and had sent the same to the Chemical Analyser for report but the report is that the said vaginal swabs were not stained with. Semen. While appellant Shahmir was arrested after two days of the incident, appellant Jiomal could not be arrested. The said appellant however obtained an order of bail before arrest from the Sessions Court on a date subsequent to the submission of the charge-sheet by the police viz., after a fortnight. The trial has thereafter proceeded and has resulted in the convictions and sentences of the two appellants as stated above.
' At the trial the prosecution examined the prosecutrix Mst. Moomal, her husband Allandito, the Choukidar Abdul Hach who had come on the cries of the prosecutrix and one Hay, who according to the prosecution was given information in regard to this crime by the prosecutrix and her husband, as witnesses giving direct evidence in regard to the commission of the crime. The other witness was Mr. M. M. Kaleem, the Magistrate in whose presence the Angosha secured from the house of the appellant Jiomal was identified by the prosecutrix. Shafi Muhammad, the mashir in whose presence the Angosha has been secured was also examined. This witness has ho Never, stated that the Police Officer had gone inside the house of the appellant Jiomal and brought the Angosha. Mashir Bahram Khan in whose presence the police had inspected the scene of occurrence was also examined. The other witness was one Hussain who was the mashir in respect of the seizure of the trousers of the complainant. This witness was treated as a hostile witness because he stated that the trousers had not been secured by the police in his presence. He further stated that the trousers that were secured by the police from the nrosecutrix were not the same trousers as had been produced in the Court. The remaining witnesses were Umed Ali, the Medical Officer, who examined the prosecutrix and Muhammad Younis, the Investigating Officer in the case.
4. Both the appellants while leading no evidence in defence have denied the allegation of the prosecution in their statement under section 342 Cr. P. C. Appellant Shahmir has stated that Mst.
Moomal, the prosecutrix was on terms of illicit intimacy with him and he produced 4 photographs showing the prosecutrix in a compromising position with him. He stated that on account of such illicit intimacy as existed between him and Mst. Moomal the complainant wanted compensation and he was therefore out to blackmail the appellant Shahmir. He further stated that the complainant Mst. Moomal and her husband Allandito wanted to extort money from appellant Jiomal. Appellant Jiornal also substantially adopted the statement of appellant Shahmir and went on to state that the prosecutrix had fabricated a false case at the ins4nce of her husband Allandito in order to "fleece" money from him He further stated that the prosecutrix had been set up by one Khan Muhammad Kolachi who has business rivalry with him. Both the appellants in their statements said that Shahmir who is servant of Jiomal looked after the Mill and used to sleep there at night, whereas the appellant Jiomal did not sleep in the mill at night time.
5. The prosecutrix Mst. Moomal is admittedly a woman of loose virtue. The four photographs that have been produced on the record show her sitting in the embrace of appellant Shahmir and such photographs have been admitted by her to be genuine photographs but she has gone on to state that at that time she was ill and these photographs were taken. She has also ,stated that her father had got her married to another man by name Kasim because her husband Alandito had not paid compensation to her father on account of her marriage with Allandito. The husband of the prosecutrix, however, stated in his evidence that the prosecutrix was still living with him as wife. The pattern of the prosecution story also clearly indicates that the prosecutrix and her husband Allandito had willingly come with Shahmir to stay in the mill for the night. Although both Mst.
Moomal and Allandito state that they were invited by Shahmir to come and stay with him while they were sitting at the platform of Ghotki rail may station and the train was to arrive only after 5,7 minutes. This would show that the prosecutrix had willingly come with appellant Shahmir and there is also no manner of doubt ' 'that the prosecutrix had illicit intimacy with Shahmir prior to the date of occurrence in this case. What is more surprising is that although they had come to Ghotki town for the purpose for making purchases in connection with the marriage of Nabi Bux, they had allowed him to proceed to the village with the articles that had been purchased and they stayed back. All the circumstances taken together have given me a feeling that it was arranged that the prosecutrix was to stay in the flour mill of Jiornal in the company of appellant Shahmir. In fact the learned trial Judge also appear to have come to the conclusion that Shahmir was on terms of intimacy with the prosecutrix and in that context the trial Court stated as follows :- "The defence Advocate has argued that the photographs of Shahmir and complainant per Exh 17-B to Exh. 17-E show that they are sitting in compromising position and the explanation of the complainant that these photographs might have been taken at the instance of Shahmir when she was ill does not appear maintainable as the photographs show that the complainant was quite healthy and in happy mood at the time these photographs were taken. It may be correct that complainant might have connection with Shahmir and she admits that Shahmir used to visit their house. The consequences will he that complainant might not have objected to the illicit intercourse with Shahmir but Shahmir has exceeded the limits and he has exploited his intimacy with complainant as he made co-accused Jiomal to have intercourse with her. After all though the poor complainant is not a prostitute. She might be having intimacy with Shahmir but she will not tolerate that Jiomal should have illicit intercourse wither.
' I would also advert to the circumstances under which the prosecutrix alleges that she was carried away by the two appellants from the place where she was sleeping alongwith her husband. While in the first information report it was stated that both the appellants brought food for her as well as her husband Allandito and after taking that food they went to sleep. In their evidence before the trial Court they set up the story that immediately after taking the food that was brought by the two appellants they became unconscious. It is then stated that at about Asur time which would be about 4-00 a.m. In the month of July when the incident had taken place, the two appellants came to the place where the prosecutrix was sleeping and forcibly carried her to the room where the machine was installed. The time according to Allandito was mid night and when confronted the witness stated that he was not able to distinguish between mid-night and Asur time. Be that as it may be the evidence of Abdul Haq, the Choukidar who came on the cries of Mst. Moomal is that the time when he heard the cries was 2-00 a.Na. The report was lodged at 9-15 a.m. When the police station is only at a distance of two furlongs and the only explanation for the delay that has been given by the witnesses in this case is that earlier to lodging the report they had gone to a person named flayat Khan in order to inform him in regard to the happenings. Hayat has been examined and he again gave a different story by stating that it was Saleh, a brother of Allandito who had come and given him such information in regard to the prosecutrix having been molested. Hayat has not stated in his evidence that either the prosecutrix or her husband Allandito had come to him. Under such circumstances the first information report that has been lodged appears to be inordinately belated and there is no explanation for this delay.
The background then of the prosecution case is that Mst. Moomal had come to the mill of appellant Shahmir of her own free will and that the only evidence in corroboration is provided by Abdul Haq the Choukidar who states that he heard the cries and came on the scene.
6. The principal evidence in this case is of prosecutrix Mst. Moomal. She has stated about the circumstances under which she alongwith her husband came to the mill of appellant Jiomal in company of Shahmir. She has also stated that she as well her husband were given meals by the two appellants. However she has also stated in her evidence that she raised cries, which attracted watchman Abdul Haq. Since the medical officer , found no injury on her person, and further that the vaginal swa bs were not found to be stained with human blood, the learned State counsel has relied on the evidence of the prosecutrix raising cries as corroboration of the evidence of the prosecutrix. With regard to the `Shalwar' that has been secured from the prosecutrix although the same has been certified by the chemical analyser to be stained with semen, the circumstance does not advance the prosecution, case because the prosecutrix has stated that she had been wearing this Shalwar for about a year continuously before the date of this incident and since she was a married woman there is an enormous probability of semen been detected on that Shalwar.
Sufficient to say that the trial Court as well as the-learned State counsel have relied on the evidence of the prosecutrix Mst. Moomal which in their opinion was sufficiently corroborated by the evidence of Allandito, her husband and Abdul Haq, the watchman who is stated the have come on the cries of the prosecutrix.
7. Coming to the evidence of the prosecutrix herself, I have stated the earlier part of this statement that she is admittedly a woman of loose virtue. There can be no manner of doubt that she was on terms of illicit intimacy with appellant Shahmir in whose company she came to the mill of appellant Jiomal and it appears that even her husband Allahidto was a, consenting party to the prosecutrix coming to the mill of appellant Jiornal,, where appellant Shahmir was a servant, in spite of a suspicion that Shahmir was on terms of illicit intimacy with Mst. Moomal. However, the case of the prosecution is that even though the prosecutrix was on terms of illicit intimacy with appellant Shahmir she was not a prostitute and therefore the appellant Shahmir acted in a criminal manner by subjecting her to sexual intercourse by appellant Jiomal. No doubt a woman who is raped is not to be considered as an accomplice within the meaning of section 114 or 133 of the Evidence Act because having been ravished she is in fact the victim of the crime. However the evidence of the prosecutrix in a rape case has is a large E volume of case-law, that has grown up, been considered to be evidence some-! What along same lines as accomplice evidence although the reasons attaching! Such comparison are widely different. In the case of Mumtaz Ahmad Khan v. State (1), Cornelius, C. J. Who delivered the judgment on behalf of the Court observed in regard to the evidence of the prosecutrix in a rape case as follows "The evidence of the prosecutrix in a rape case is customarily received by Courts with some suspicion. In certain jurisdictions, it is the rule that the solitary evidence of the prosecutrix being a woman of full age, is not accepted as sufficient, but requires corroboration by independent evidence, in order to be believed."
' In an earlier case of Muhammad Abdul Khaleque v. The Stile (2), Cornelius C. J. Considered the evidentiary value of the woman's story in cases of rape and observed as follows :- "In a case of this kind, it is very necessary that before finding the accused persons guilty of rape, i,e, of sexual intercourse without the consent of the woman, the Court should be satisfied that the woman's story is corroborated either by circumstantial evidence connecting the accused persons with the crime, or at least by some circumstance connected with the woman which would serve by itself to show that her story of forcible intercourse is true. The mere fact of the story having been told to a number of relations shortly after the occurrence is insufficient corroboration. Equally, the fact of the story having been communicated by the relations to other neighbours and later to the authorities is by no means sufficient corroboration."
In cases where the girl who has been subjected to rape is below the age of consent the matter is entirely different, but in a case of this nature where the woman is aged over 20 years and, the circumstances and established facts.' indicate clearly to her being a consenting party to the commission of the offence a duty does devolve on the Court to look for corroboration. The need for corroboration in a case of this nature was indeed higher. There were glaring contradictions between the evidence of Mst. Moomal when considered along with the evidence of Allandito and Abdul Haq. While Abdul Haq states that he did not see Jiomal but he only saw Shahmir at the time of incident, the prosecutrix Moomal stated that she could not say whether Abdul Haq or her husband had seen any of the accused persons. On the other hand it was stated by Mst. Moomal that Abdul Haq, the Choukidar was a friend of her husband since the last several years. It is also in the evidence of the prosecutrix as well as her husband and Abdul Haq that no less than 15-20 persons had collected on cries but none of them were examined except Abdul Haq who admittedly was a friend of Allandito, the husband of the prosecutrix. The fact of some persons having collected at the mill is spoken of in the first information report and the cross-examination of {{FOOT NOTE}}
(1) PLD 1967 SC 326 (2) PLD 1960 SC 325 {{FOOT NOTE}} ' the prosecution witnesses establishes that the mill is situated in a Bazar where there are several hotels and even musafirkhanas. While Mst. Moomal and her husband Allandito state that. Abdul Haq had accompanied them to the police station, that aspect of the story is denied by Muhammad Younis, the Investigating Officer. Even Allandito had stated in his evidence that watchman Abdul Heq did not accompany the prosecutrix either to Hayat or to the police station.
' What is still more surprising is that Allandito has stated in his evidence that while he was sleeping, Abdul Hag came and forcibly woke him up and asked him as to where was his wife, the prosecutrix.
This statement of Allandito would indicate that Abdul Haq knew that the woman who was concerned in this transaction was the wife of Allandito. There is however complete absence of evidence on that point as to how Abdul Haq had known Mst. Moomal earlier to the incident. On the other hand Abdul Haq however given a version that he came on the cries and he met Mst. Moomal at the door of the mill of Jiomal. On that aspect of the case, the evidence of Allandito is that when Abdul Haq came and woke him up by force they went there after to the place where Mst. Moomal was crying and at that place Mst. Moomal told them not to come inside as she was tying her trousers. Abdul Haq went on to say that since Mst. Moomal had prevented them from entering that place where she was until such time that she tied her trousers they waited outside. Such statement of Allandito would show that at the time when Abdul Haq had come Mst. Moomal was in the same room. Mst. Moomal has also admitted that at the time when she was made to lie down on the ground for the purpose of rape the accused had spread a gunny bag under her. It a could thus seem that there are serious contradictions in the evidence of the prosecution witnesses in regard to the place where Abdul Hoe first met the prosecutrix. On such state of evidence I am of the view that it would not be safe to convict without corroboration. I would next advert to the question of the nature and extent of corroboration required in cases of rape when it appears that it would not be safe to rely on the uncorroborated word of the prosecutrix. The principles governing the question of corroboration are that the crime was committed and also that it should reasonably connect or tend to connect the accused with the commission of the crime. Further that corroboration must come from independent sources apart from the testimony of the prosecutrix herself. All such necessities attending the question of corroboration however would not mean that there should be direct evidence of the accused having committed the crime. It would be sufficient if the evidence in corroboration tends to connect the accused with the crime in a manner as would assure the Court that the testimony given by the prosecutrix is true.
8. Applying these principles to the facts of the present case I have no hesitation in saying that the medical evidence did not corroborate the word of the prosecutrix and on the other hand the presence of stains of semen on the trousers of the prosecutrix, also cannot corroborate her word because she as a married woman had been using the Shalwar continuously for a period of one year. Vaginal swa bs have not been found to be stained with semen and there are no injuries or marks on her person to indicate resistance On the other hand there is an admission on her part that the appellant had laid her on a gunny bag and there are contradictions as to whether she met Abdul Haq at the door of the mill or inside the room. The only evidence in corroboration in this case is furnished by the evidence of Abdul Haq Choukidar who is stated to have come on the cries and to whom the prosecutrix had disclosed that zulum had been committed on her by the appellants.
With regard to the raising of the cries I must say that the only witness is again Abdul Haq and the evidence discloses that at least 15 other persons had also come up who have not been examined and Abdul Haq was friendly to Allandito, the husband of the prosecutrix. The most important witness on the point of the prosecutrix having raised cries would have been Allandito. While in the first information report it was not stated as a case of the prosecution that some drugs had been administered to Allandito and Mgt. Moomal which made them unconscious but Allandito looking to that aspect of the case has set up a story that immediately after taking food that had been provided for them by the two appellants both he as well as his wife Mst. Moomal became unconscious. In any case I am of the view that, this part of the story is untrue ; and if cries had indeed been raised Allandito should have been the first person to have heard those cries and the other persons of the locality who had come up should have been examined. The next question then is with regard to Mst. Moomal having disclosed to Abdul Haq about the appellants having committed rape on her.
' There can be no dispute on the question that evidence of disclosures made by the prosecutrix is admissible and in that context illustration CO to section 8 of the Evidence Act is very clear which reads as follows :- "(j) The question is, whether was ravished.
' The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which and the terms in which, the complaint was made, are relevant.
' The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157."
' While section 8 deals with the question of admissibility and relevancy as to the conduct of the prosecutrix the admissibility for a particular purpose is again provided for in section 157 of the Evidence Act which reads as follows : "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact, may be proved."
' Since section 157 clearly states that as statement made by a person relating to some fact, at or about the time when the fact took place may be proved for the purpose of corroborating the testimony of such witness, there is no manner of doubt that such statement as has been made by Mst. Moomal to Abdul Haq at the time of the incident could be used as corroboration. What weight could be attached to it is of course another question and very often the evidentiary value of such a statement as proceeding from the same source as the prosecutrix may not be high. However, speaking strictly in law such statement can be used as corroboration and such a proposition cannot be questioned.
' However, whenever, evidence of this nature in corroboration is produced the questions that arise are as to reliability of the evidence. The position then boils down to this: whether the statement that has been by Mst. Moomal in presence of Abdul Haq should be believed and should be used as confirmatory of the facts in this case. In that context also the position of the prosecution case is not even slightly better. As it is the time that has been given by the prosecution witness Abdul Haq in regard to the hearing of the cries is entirely different as compared to the time given by the prosecutrix herself. Allandito has of course excused himself by pleading ignorance when he states that he cannot even distinguish between midnight and Asur time. Abdul Haq, however, states that it was 2-00 a.m. Whereas the prosecutrix states that it was Asur time. Further to that Abdul Haq states that in his evidence that Mst. Moomal told him that while home] had raped her Shahmir was standing at that time. He went on to state that he enquired from Shahmir on which inquiry the latter told him to enquire about the facts from the woman herself. This part of the story is entirely different from the story as given by the prosecutrix and her husband Allandito. In fact Mst. Moomal has clearly stated in her evidence that she could not say whether Abdul Haq watchman had seen any of the accused persons. On the other hand the first information report on the point of Mst.
Moomal having made the disclosure to Abdul Haq reads as follows : "On the cries there came running one Choukidar Pathan and my husband. They both tried to catch the accused but the (accused) ran away. Thereafter I tied the tape of my trousers. In the meantime there came many other persons. I do not know their names. I narrated the above facts to them.
Thereafter we both, I and my husband went to Hayat Mir Behar and narrated all the above facts to him."
' The above passage would indicate that Mst. Moomal had not disclosed the facts to Abdul Haq because she had stated that both Abdul Haq and her husband Allandito had run after the accused persons with a view to catch them, but in the meantime many other persons had come to whom she bad. Disclosed the facts. None of such persons had been examined. Allandito however gave still a different version and in regard to the disclosure made by Mst. Moomal to Abdul Haq. He stated as follows :- "The watchman shown to me in Court is same. He told me as to where was my wife and she was raising cries. He woked me up by force and we both vent running where my wife was crying. She told us from inside that let her tie her trouser and we should wait. She told us that Shahmir had held her by arms and Jio had left her. We followed both accused but they ran away."
' The evidence of Allandito again shows that the prosecutrix did not meet Abdul Haq at the gate of the mill but it was in some room where both Abdul Haq and Allandito had gone after Abdul Haq had heard the cries of Mst. Moomal but they were not allowed to enter the room. Allandito has however not stated anything with regard to other persons having come-on the scene.
' On such state of evidence I am of the view that although the evidence of Abdul Haq may be admissible still the same is not reliable. The evidence of Abdul Haq when considered alongwith the evidence of Mst. Moomal and Allandito clearly shows gross contradictions as to render his evidence unreliable. On the other band while Abdul Haq and the witnesses state that Abdul Haq had gone with them to the Police Station the Investigating Officer has clearly stated that Abdul Haq had never come there. Under such circumstances the evidence of Abdul Haq does not appear to be reliable in this case. If the evidence of Abdul Haq is sought to be used for the purpose. Of corroboration not only it has to be shown that he is an independent witness but it has further to be shown that his evidence is true. This witness is definitely a friend of Allandito, the husband of the prosecutrix, and moreover his evidence when considered alongwith the other evidence in this case shows such contradictions which rob his evidence of its probative force.
9. For all such reasons I am of the view that the guilt of the appellants has not been established beyond reasonable doubt. I will under such circumstances set aside the judgment of the trial Court and acquit the appellants. The appellants are on bail and they need not surrender. Their bail bonds shall stand cancelled.