' ljaz Hussain 33, was tried by Additional Sessions Judge, Khanewal, Camp at Mian Channu, in case F.I.R. No,133 registered on 11-9-104 under section 18 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. He was also tried under section 452, P.P.C. Which had been added during investigation.
' Learned trial Judge vide judgment, dated 31-1-1996 convicted him under section 18 of the said Ordinance as well as under section 452, P.P.C. And awarded sentences as follows:-- ' Under section 18 of the said Ordinance ' Under section 452, P.P.C. Four years' R.I. And to suffer ten stripes. Four years' R.I. Plus to pay a fine of Rs,5,000 in default whereof to suffer R.I. For three months.
' Sentences of imprisonment were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was given.
2. Convict has filed appeal. The complainant has filed Criminal Revision No,21/L of 1996, wherein prayer has been made for enhancement of the sentences. As both matters have arisen from the same judgment, they are being disposed of together.
3. F.I.R. Exh.P.C. Was registered at Police Station Chhab Klan, District Khanewal by Farzand Ali Sub- Inspector, P.W.4, on 11-9-1994 at 5-15 p.m. On the statement of Mst. Khurshid Bibi, P.W.2.
' According to F.I.R., the complainant was sleeping in her house during night between 8/9-9-1994 in Chak No,82/15-L at a distance of 1-1/2 miles from police station, along with her children. Her husband Muhammad Aslam had gone to the fields for irrigation. A person entered the Courtyard of her house at about 1-00 a.m. (night). She identified him in the light of the lantern to be Muhammad ljaz alias Kala (appellant). He placed hand on her mouth and forcibly broke the string of her Shalwar, with the other hand and after removing Shalwar attempted to commit Zina. She resisted, during struggle she removed his hand from her mouth and raised alarm which attracted her husband Muhammad Aslam and Rehmat Ullah neighbour. On seeing the P.Ws. Ijaz Hussain ran away. The witnesses also identified the accused in the light of lantern.
' The complainant stated towards the end of the F.I.R., that as the relatives of the accused had been beseeching for compromise, she did not come earlier to lodge report.
4. Farzand Ali after registering the case visited the spot. He prepared site plan Exh.P.E. Recorded statements of P.Ws. And took into possession lantern Exh.P. I vide memo. Exh.P.D. The accused was arrested by him on 17-9-1994. He got him medically examined for potency on 18-9-1994 and submitted challan to Court after completion of necessary investigation.
5. Statements of four P.Ws. Were recorded at the trial.
' Mst. Khurshid Bihi while appearing as P.W.2, repeated the facts given by her in the F.I.R. During cross-examination she stated that she had five children and that her eldest son was aged 10/12 years. She gave out that her children and mother-in-law, resided in the village Abadi while she resided at the Bheini, where the occurrence had taken place. She admitted that she had got recorded in her supplementary statement Exh.D.A. That the accused had entered her house after scaling over the wall and that her house had four walls of the height of about 5/6 feet. She stated that she had come to know about the accused from the foot prints. She added that a tracker was summoned in the man: Ig and he had obtained the foot prints and had followed the foot prints to the Lheini of the accused. She added that the accused had ran away by scaling over me wall as the door was bolted from inside. She stated that Aslam (her husband) had unbolted the door while standing outside. According to her the door was of steel and the accused had ran away on hearing the noise of the opening of the door. According to her the lantern was lying on the southern side of her cot. She denied the suggestion that tracker was summoned as she had not identified the assailant. She denied the suggestion that two months prior to the occurrence, Mst. Shazia a maternal-niece of the accused had come to the house of the accused alongwith her mother and that ear-rings of Mst. Shazia were removed by somebody and the accused had made allegation against her of having removed the ear-rings and that she had returned the ear-rings and paid a sum of Rs,1,200 as compensation and that she had got this case registered to avenge that.
6. Rehmat Ullah while appearing as P.W.3 stated that he had reached the house of the complainant hearing alarm alongwith Aslam and had seen Ijaz grappling and opening string of Shalwar of the complainant and that the accused had ran away on seeing them. During cross-examination he admitted. That the complainant belonged to his brotherhood. He stated that when they entered the courtyard the accused was on the cot and struggling with the complainant and that when they reached near the cot he was mounting on the complainant. According to him the accused was dressed in a Chaddar and vest. He stated that the accused had not run away on hearing the noise of the opening of the door. Ile declared that no tracker was summoned to follow the foot prints. He expressed ignorance that two months prior to the occurrence Mst. Sardaran a sister of the accused had come to their village with her minor daughter Mst. Shazia and that her car-rings were removed and that ,Mst. Khurshid complainant was suspected for theft or that she was forced to return the ear-rings and to pay a sum of Rs,1,200. According to him the lantern was lying on the western side of the cot.
7. Farzand Ali, S.-I. Who had registered the case, recorded the statements of the P.Ws., arrested the accused on 17-9-1994, got him medically examined and submitted challan after completion of necessary investigation appeared as P.W.4 and gave the details of the investigation done by him.
During cross-examination he admitted that the case was also investigated by Muhammad Ikram Ullah Khan D.S.P., Mian Channu, on the application of the accused party as they were not satisfied with his investigation. He admitted that the allegation was that he was favoring the complainant party. He admitted that the D.S.P. Had declared the accused innocent but he had not considered it necessary to submit supplementary challan. He denied the suggestion that he had not submitted supplementary challan as he wanted to help the complainant party. He admitted that after arrest he had produced the accused before the Ilaqa Magistrate on 19-9-1994 for remand. He conceded that he knew that he should have produced the accused before the Ilaqa Magistrate for remand on 18-9-1994. Ile denied the suggestion that he had kept the accused in illegal confinement. He denied the suggestion that he had got recorded the F.I.R. And got involved the accused as he wanted to help the complainant party. According to him the accused at the time of occurrence was wearing a Shalwar Qameez. He disclosed that this fact had been told to him by the victim. He admitted that accused had soared to give oath but the complainant party did not agree.
8. Dr. Muhammad Yousaf who had medically examined the appellant for potency appeared as P.W.1 and verified that fact.
9. The appellant in his statement recorded under section 342, Cr.P.C. During trial denied the prosecution case and pleaded innocence. He stated as follows, in answer to the question, "why the case against you"?
"This is a false case. About two months prior to this alleged occurrence, my maternal-niece Mst.
Shazia daughter of Sardaran (my sister) had come from Kamalia to see his maternal-parents.
About 6/7 days after her reaching there at about evening time Mst. Shazia aged 8/9 years was playing in the street with other girls and when she came back, her pair of ear-rings were missing from her ears. The matter was inquired, the little girl told us that the ear-rings have been removed by Mst. Khurshid, the complainant in this case. I alongwith my brother, Altaf Hussain went to the house of complainant, Mst. Khurshid and inquired about the ear-rings. He first denied about the removal of earrings but later on when we threatened her that the matter will be reported to the police then she promised for the return of ear-rings. On the next day she returned us a pair of ear- rings along with Rs, 1 ,200 as compensation of this theft, subject to the condition that we will not report the matter to the police because it was a matter of honour of a woman-folk and we remained strict to our promise which we did with Mst. Khurshid but she bore a grudge against me and due to this reason she involved me in this false case in connivance with the police."
' He stated as follows in answer to the question, "why the P.Ws. Have deposed against you?
"The P.Ws. Are related inter se. The Investigating Officer inthis case has conducted investigation in this case dishonestly. I had moved an application against him to the higher authorities and the investigation was conducted by D.S.P. Mian Channu who declared me innocent in this case. The Investigating Officer had kept me in wrongful confinement." ' lie made statement on oath under section 340(2), Cr.P.C. As D.W.1 and took up the position that he had been involved in this case due to dispute about the earrings and payment of Rs,1,200 as compensation by Mst. Khurshid to his sister.
' He examined his brother Altaf Hussain as D.W.2, who also corroborated his statement about the removing of ear-rings of Mst. Shazia by the complainant and of her having been forced to return the ear-rings and a sum of Rs,1,200 as compensation. Altaf Hussain also stated that on their application investigation Was transferred to D.S.P. Mian Channu who had declared his brother innocent.
10. Learned counsel for the appellant after having going through the evidence criticised the impugned judgment and contended that the F.I.R. In this case was lodged after a considerable delay of 64 hours, that false allegation had been levelled against the appellant in order to avenge the embarassm ent and insult caused to the complainant for returning ear-rings of the niece of the appellant and to pay a sum of Rs,1,200 as compensation, that it is obvious from the statement of Mst. Khurshid that she had not identified the assailant and a tracker had been called and the case was got registered after conjectures and surmises, that there are wide discrepancies between the statements of the P.Ws. And that the D.S.P. Of the Ilaqa had declared the appellant innocent. Lastly learned counsel for the appellant submits that the Sub-Inspector/Investigating Officer had been favouring the complainant party out of the way, which stands proved from the fact that he had kept the appellant in unlawful custody for 24 hours.
' Learned counsel pointed out that after arresting the accused on 17-9-1994 he should have produced the accused before the Magistrate within 24 hours which fell on 18-9-1994 but he produced him before the Magistrate on 19-9-1994.
' Learned counsel for the State as well as the learned counsel for the complainant defended the judgment of the trial Court and contended that the prosecution had succeeded to prove the case against the appellant beyond any reasonable shadows of doubt.
11. Complainant during cross-examination explicitly stated that a tracker had been called and he had after taking up the foot prints followed the same to the Bheini of the accused. This admission on the part of the complainant is strong indication to the fact that neither the complainant nor witnesses had identified the culprit at the spot. The delay of 64 hours in reporting the occurrence at the police station which was only at a distance of 1-1/2 miles, lends considerable support to the arguments that the delay was not due to the reason that the relatives of the appellant had been pressing for compromise but it was for the reason that the complainant party were trying to locate the assailant. Delay per se is no ground to discard the statements of the P.Ws. But when it is found to have been utilized for consultations and deliberations for naming somebody as accused, then it has to be given considerable weight. The delay appears to have been due to fact that the complainant party was searching and I planning to naive the culprit.
12. If the prosecution had named the tracker and added his name as a witness in the colander of witnesses and had examined him at the trial and afforded opportunity to the accused (appellant) to cross-examine him, it would have been a different matter. Had, he, in that statement supported the Statement made by the complainant, the prosecution case could have been placed at a higher pedestal than that the case now is. The present position, is that on the one hand it is claimed that the complainant and the witnesses had seen and identified the culprit. While on the other hand complainant stated that tracker was called and he had located the accused. This position makes statement of the c complainant and Rehmat Ullah doubtful that they had of their owti identified the accused.
13. There are material discrepancies in the statements of the witnesses, which makes the testimony of eye-witnesses doubtful. In that, Mst. Khurshidi stated that the accused had run away on hearing the noise of the opening of the door, which was made of steel while Rehmat Ullah stated that the accused had not run away merely hearing the noise of opening of the door and that actually they had reached near the cot and seen the accused struggling and attempted to commit Zina and he had run away on seeing them. This is a very material discrepancy.
' The other important discrepancy is about the dress of the culprit. Rehmat Ullah stated that the accused was wearing a Chaddar and vest. In urdu the word used are {{URDU TEXT}}while S.-I.
Stated that the culprit was dressed in Shalwar and Qamees. He declared that this fact had been told to him by victim herself. There is a lot of difference in the appearance of the person who is dressed in Chaddar and Bunyan and a person who was wearing Shalwar and Qamees. There can be no compromise between the two descriptions. Such a description cannot be of the same person. It has to be granted that at least one of the two witnesses was making a false/incorrect statement.
' According to Mst. Khurshid the lantern was lying on the southern side while according to Rehmat Ullah the lantern was lying on the western side of the cot.
14. There is another important factor which makes the testimony of both the witnesses doubtful. In that Mst. Khurshid stated that the accused had entered the house by scaling over the wall and ran also by scaling over the wall. If the accused had entered when she was sleeping as she cleaned while lodging F.I.R. And while making statement at the trial, how could he had seen the accused scaling over the wall?
' If her husband and Rehmat Ullah had enter, d the house after opening the door why should the accused have chosen to ru away by scaling, over the wall which was of 5/6 height. He could have easily run away through the door which lay open at that time. There was a risk in scaling over the walls as he could have been easily caught. The statements of both the witnesses i,e, Mst. Khurshid and Rehmat Ullah in this regard makes the case of the prosecution E doubtful.
15. It was admitted by the Investigating Officer that investigation was handed over to D.S.P. As the accused alleged party ship against him. He also admitted that the D.S.P. Had declared the accused innocent. He conceded that he had not submitted supplementary challan after the second investigation. The Sub-Inspector had also kept the accused in unlawful custody for 24 hours for which he had failed to give any valid explanation. This fact also showed that he F was inimically disposed towards the appellant. It is also on record that the accused and his relatives had offered to give 1G oath of innocence but the offer was rejected by complainant party.
16. Although the complainant did not admit the allegation levelled against her of having committed theft of the ear-rings of the niece of the appellant and that she had been forced by the Punchayat to return the ear-rings and to pay a sum of Rs,1,200 as compensation, but that fact was asserted by the appellant and he had not only stated that fact while making statement under section 342, Cr.P.C. But had deposed that fact on oath as well and also examined in that regard his brother who made statement on oath and corroborated that fact.
17. As a result of the above discussions and enunciations of evidence I am convinced that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt. The appeal is, therefore, / allowed. The appellant is acquitted. He is on bail. The sureties stand discharged.
' Since the appellant has been acquitted. The question of enhancement of sentence, therefore, does not arise. The revision petition is dismissed.