' This appeal has been filed against the judgment, dated 26-3-1995 passed by the learned 1st Additional Sessions Judge, Thatla, in Sessions Case No.43 of 1991 whereby all the 9 accused facing trial were convicted. The convicts who have filed this appeal are:--
(1) Ayoub son of Angario,
(2) Khamaw son of Ibrahim,
(3) Umaid Ali son of Somar,
(4) Jaman son of Somar,
(5) Punhoon son of Jalib,
(6) Sachu son of Aachar,
(7) Menhow Wasayo son of Angario,
(8) Angario son of Gull Muhammad,
(9) Hussain Bux son of Aachar.
' All the 9 appellants were found guilty of the Offence under section 148/149/452, P.P.C. And section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and each of the appellants sentenced under section 148/149, P.P.C. To suffer R.I. For 2 years and under sections 452/149; P.P.C.
To suffer R.I. For 5 years and fine of Rs.5,000 each and in default to suffer further R.I. For one month each. Each of the convicts was also sentenced under section 11 of the Ordinance to suffer R.I. For 10 years, 20 stripes and a fine of Rs.5,000 each and in default to suffer further R.I. For one month each.
Two of the appellants, namely; Ayoob son of Angario and Hussain Bakhsh son of Aachar were also convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance and sentenced to R.I. For 10 years and 15 stripes each. It was directed that all the substantive sentences shall run concurrently. I have heard at length the arguments of Mr. Ali Gopher Comoro, learned counsel for the appellants and Mr. Habibur Rasheed, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.
2. F.I.R. In this case was lodged on 7-3-1991 at Police Station Ghorabari, District Thatta, and the prosecution version as given in the F.I.R. Lodged by complainant Hussain (husband of victim Mst.
Alman) has been mentioned in para. 2 of the impugned judgment which is reproduced here:-- "The facts of the prosecution case as unfolded in the F.I.R. In outline are that on 7-3-1991 the complainant Hussain lodged the report at Police Post Garho at 6-00 a.m thereby stating that he had married Mst. Alman and owing to that fact the accused Ayoob and others were annoyed as they had also given a proposal which was turned down by the father of the victim Mst. Alman.
About 10 days back the complainant was present in the house alongwith Mst. Alman when at 11-00 p.m., Ayoob son of Angario, Sacho son of Achar, Ahmad Ali son of Soma, Juman son of Soomar, Muhammad Husain son of Achar, Angario son of Gullo, Meenhwasayo son of Angario, duly armed with Lathis and hatchets, entered the house and showered Lathi blows to him, thereafter, they forcibly dragged his wife Mst. Alman and put her in the Datsun Pickup waiting outside the house.
Their cries attracted Juman son of Sulleman, Gul Muhammad son of Misri and others who were also threatened by the accused for dire consequences if they go near to them. Thereafter, the accused left the scene in the Datsun. The complainant narrated this story to his maternal-uncle Haji and others and then to the Nekmard who promised to get Mst. Alman back but they could not do anything. This report was entered in the Roznamcha of P.P. Garho which was subsequently entered in the F.I.R. On the same date. Pursuant to the registration of the case the investigation was started and on 20-3-1991 the abductee Mst. Alman was presented in the Court."
3. It would be noticed that, in the F.I.R., 7 persons are named as the abductors of the victim out of whom Ahmad All son of Soomar was let off by the police. After the recovery of the victim on 20-3- 1991, her statement under section 164, Cr.P.C. Was recorded in which she gave the names of three more abductors, namely, Umaid Ali, Khuman and Punhoon. This increased the number of the accused to 9 who all were challenged by the police. As noted above, these 9 accused have been convicted by the impugned judgment.
4. During the trial, prosecution examined 9 witnesses. P.W.1 is complainant Husain; P.W.2 is the victim, Mst. Alman daughter of Mamoon and wife of the complainant; P.W.3 is Gul Muhammad, who is named in the F.I.R. As the person who had been attracted to the scene of incident and he is maternal-uncle of the complainant; P.W.4 is Angario son of Usman, a Mashir recovery of the victim from the house of Husain Bakhsh on 20-3-1991 (Hussain Bakhsh had been earlier arrested on 16-3- 1991 along with appellant Ayoob and his father appellant Angario); P.W.5 Ghulam Rasool is the Investigating Officer; P.W.6 Dr. Shamir had examined appellant Ayoob and Husain Bakhsh to determine their potency; P.W.7 is Mooso son of Ali Muhammad, co-Mashir with Angario but he did not support the prosecution; P.W.8 is Jumo, an eyewitness named in the F.I.R. Who had been attracted on the cries at the time of incident but he did not support the prosecution; and P.W.9 is Dr. Zuhra Shaikh, who had examined the victim.
' Statements of all the 9 accused were recorded under section 342, Cr.P.C. They alleged false involvement. The case of the defense was that no such incident of abduction and rape had taken place and actually the victim had been abducted by the complainant himself and, to that effect, Mamoon, father of the victim, Mst. Alman, had lodged a complaint and as .a counter-blast case was got registered at the instance of complainant in which 9 accused were roped in and the fact that such an application was moved is admitted by the complainant in his cross-examination as well as Mst. Alman.
5. In support of the present appeal, learned counsel for the appellants contended that there is an admitted delay of 10 days in the lodging of the F.I.R. And no explanation has been given in the prosecution evidence regarding such delay. Reference was also made to the evidence of P.W.3 Gul Muhammad where he stated that the F.I.R. Had been lodged on the following day of the incident which contradicts the complainant regarding the abduction of his wife 10 days earlier to the lodging of the F.I.R. It was also argued that the recovery of Mst. Alman is also doubtful. According to the prosecution, Mst. Alman was recovered from the house of Husain Bakhsh on 20-3-1991 on spy information whereas Hussain Bakhsh had been arrested 4 days earlier on 16-3-1991. According to learned counsel, if the version of the prosecution is believed, the victim was detained in the house of Hussain Bakhsh for nearly 20 days and this detention extended after 16-3-1991 also, when Husain Bakhsh was arrested. The two Mashers regarding the recovery of the victim from the house of Husain Baths have not supported the prosecution. It was then argued that the medical evidence does not support the prosecution case as regards Zina having been committed repeatedly by appellants Ayoob son of Angario and Hussain Bakhsh with the victim. It was next contended that no reliance could be placed on the statement under section 164, Cr.P.C. Of the victim as neither any notice had been issued to the appellants as required by section 2654, Cr.P.C. Nor the said statement was recorded in the presence of the appellants. According to Mr. Ali Gohar Soomro, learned counsel for the appellants, the evidence adduced on behalf of the prosecution did not inspire confidence and three of the witnesses, namely, the two Mashirs and P.W.8 Jumo, an eye- witness who had attracted at the time of abduction, did not support the prosecution case. It was submitted that the story given by the victim regarding her detention against her will for 20 days in the house of Hussain Bakhsh which was located in the same village as that of the complainant party and not far away, did not appear to be true. Reference was made to certain contradictions and infirmities in the other evidence adduced on behalf of the prosecution.
' Mr. Habibur Rasheed, learned counsel for the State, did not support the impugned judgment submitting that the parties as well as the witnesses reside in a small village and it could not be believed that the victim was confined in the house of Hussain Bakhsh for 20 days and no one in the village came to know about it. It was further submitted that, according to her own evidence, the victim was unconscious for 20 days and did not eat any food during her detention which evidence, on its face, appears to be false. It was further submitted that the medical evidence did not support the version of the victim that she had been subjected to repeated Zina-bil-Jabr by appellants Ayoob and Hussain Bakhsh.
6. After going through the entire record with the assistance of the learned counsel and after hearing their arguments, I find that the prosecution had not established its case against the appellants beyond reasonable doubt. There is a delay of 10 days in lodging of the F.I.R. For which no explanation had been tendered. No doubt, delay per se may not be sufficient to destroy the prosecution case, but in this case there is a contradiction in the prosecution evidence about the date on which the abduction had taken place. According to complainant Husain, abduction had taken place 10 days prior to the lodging of the F.I.R. Whereas, according to P.W.3 Gul Muhammad, the abduction had taken place only one day prior to the lodging of the F.I.R. The complainant stated that he had narrated the facts to his uncle Haji and others and a complaint was also made to the Nekmard, but no one from these persons was examined as a witness.
7. The prosecution version in the F.I.R. That seven persons had abducted the victim and the statement of the victim that nine persons had abducted her do not inspire confidence and it appears that large number of persons who were related to each other and also to the complainant party were roped in for ulterior purpose. P.W.8 Jumo, an eye-witness named in the F.I.R. As a person who was attracted at the time of abduction had not supported the prosecution version about the abduction. There is discrepancy between the version given by the complainant in his evidence and in the evidence given by Mst. Alman about the persons who had abducted her As observed, according to the complainant, 7 persons had abducted the victim (out of whom Ahmad Ali was let of by the police) whereas according to the victim 9 persons had abducted her. The case of the prosecution as regards abduction of the victim rests upon the evidence of three witnesses, namely, the complainant, the victim and P.W. Gul Muhammad maternal-uncle of the complainant. There is reason for false involvement of such a large number of persons in the abduction. The fact that earlier to the lodging of the F.I.R., a complaint had been made by Mammon, father of the victim, to the police that the complainant had abducted the victim has been admitted not only by the complainant but also by the victim. Mamoon has not been examined in this case. Then the victim is alleged 'to have been confined in the house of Husain Bakhsh which was located in the same village a few houses away from the house of the complainant. It has been admitted by the victim that while she was confined in the house of Husain Baths, his wife and children were residing in the house. It has been noted that Husain Bakhsh had been arrested on 16-3-1991 whereas the victim was alleged to have been recovered on 20-3-1991 on spy information. Learned counsel for the State, who did not support the impugned judgment, is correct in his submission that in a small village where, according to the evidence on record, almost all the residents are Mir Dahars and related to each other, it appears to be doubtful whether the victim, an adult married woman, could be confined in a house near to the house of the complainant for 20 days without any one coming to know about her confinement. It has been noted that according to the evidence given by the prosecution itself the house of Husain Bakhsh was inhabited by his family i.e. His wife and children, during all this period. Then the recovery of the victim on 20-3-1991 was 4 days after the arrest of Husain Bakhsh. The Mashirs of recovery have not supported the recovery of the victim from the house of Husain Bakhsh. The recovery of the victim from the house of Husain Bakhsh, therefore, becomes doubtful in view of the evidence on record.
8. Reliance had been placed by the prosecution on the statement under section 164, Cr.P.C. Of the victim recorded after her alleged recovery. This statement could not be relied upon as no notice was given to the accused as required by section 265-J, Cr.P.C. And in their absence. Learned counsel for the appellants has in this regard also relied upon a decision of the Sindh High Court in the case of Abdul Hakeem v. State PLD 1992 Kar. 975 which supports the contention of the learned counsel for the appellants that the said statement under section 164, Cr.P.C. Could not be used against the accused. Reference can also be made to a decision of this Court in the case of Atiqur Rehman v. State 1995 M LD 1073.
9. Then the medical evidence did not show that the abductee had been subjected to sexual intercourse recently. P.W.9 Dr. Zuhra Shaikh, who had E examined the abductee on 20-3-1991 (the day when she was recovered) deposed that on the internal examination no semen or blood was found in the vagina and according to her opinion the abductee had not been subjected to sexual intercourse although she was used to sexual intercourse because she was married. No injuries were found on her body.
10. The evidence of Mst. Alman, a married woman, given at the trial also does not inspire confidence. If at all she had been confined in the house of Hussain Bakhsh for such a long period against her will, normally she would have been expected to make some attempts to raise hue and cry or get away, especially when the house of Hussain Bakhsh was located near her house. She has admitted that during the period of her detention, family of Hussain Bakhsh was residing in the same house where she was confined. Then she gave surprising evidence that she was unconscious and she did not eat anything for 20 days and survived only on water. The evidence of Mst. Alman does not inspire confidence as observed.
11. On finding the evidence to be weak and not confidence inspiring and noting the above infirmities and contradictions in the prosecution case, I am of the view that the prosecution had not established its case against the appellants. As a result, Criminal Appeal No.24-K of 1995 is allowed and the impugned judgment, dated 26-3-1995 passed by the learned 1st Additional Sessions Judge, Thatta, is set aside and all the nine appellants are acquitted of the charges against them. It is directed that appellant Ayoob son of Angario and Husain Baldish son of Achar be released forthwith if not required in any other case. The other seven appellants are on bail from this Court.
Their bail bonds are discharged.