1. SARDAR MUHAMMAD DOGAR, J.---Sana Ullah Khan, Ghulam Yasin, Gulzar and Gulistan Khan were tried by Additional Sessions Judge Mianwali in case F.I.R. No.107 of 1995 dated, 15-7-1995, Police Station Mochh, District Mianwali registered under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 458/440, P.P.C.
2. The learned trial Judge vide judgment dated, 25-2-1997 convicted Sana Ullah Khan, under section 10(3) of the said Ordinance and sentenced him to undergo R.I. for 25 years plus to suffer thirty stripes.
3. Ghulam Yasin, Gulzar and Gulistan were convicted under section 109 P.P.C. read with section 10(3) of the said Ordinance and were sentenced to undergo R.1. for five years, each, plus to suffer five stripes each. All the four accused were convicted under section 440/34, P.P.C. Each of them was sentenced to undergo R.I. for three years plus to pay a fine of Rs,5,000 each in default whereof to suffer R.I. for six months each. Fine on recovery was directed to be paid as compensation to Mst. Azizan, victim, in this case.
4. Sentences of imprisonment were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended.
5. 2.All the four convicts filed Criminal Appeal No.23 of 1997. Gulistan filed separate Appeal, No.63/L of 1997 also.
6. As both the appeals have arisen from the same judgment, they are being disposed of together.
7. 3.Occurrence in this case had taken place at 11.30 p.m. during night between 14/15-7-1995, in the house of the complainant in village Hidayat Abad at a distance of 16/17 k.ms. from Police Station Mochh District Mianwali.
8. F.I.R. Exh.P.F./1, was registered at police station by Gul Hameed M.H.C. (P.W.4) on 15-7-1995 at 7.40 p.m., on receipt of statement Exh.P.F. of Mst. Alam Khatoon, (P.W.7), mother of Mst. Azizan (victim in the case) recorded by Manzoor Hussain, S.I. (P.W.11) on the same day at 7.00 p.m. at Chowk Tari Khel.
9. According to F.I.R. complainant's husband was cultivating the land of Hameed Ullah Khan since 30 years. On the day of occurrence i,e, at 11.30 p.m. during night between 14/15-7-1995, complainant was sleeping in the courtyard of her house alongwith her husband Azmat, daughter Mst. Azizan Khatoon aged 19/20 years, Noor Zaman aged 15/16 years and other small children. Suddenly they heard firing of shots from the side of Dera Ahmad Yar Thaheem, tenant of Hameed Ullah Khan. No body was present at the Dera. Short while later, Sana Ullah Khan armed with Klashnikove, Ghulam Yasin and Gulzar servants of Sana Ullah Khan and Gulistan Khan armed with guns entered their courtyard they were known to the complainant. Electric bulb was burning in the courtyard. Sana Ullah Khan gave a Lalkara that your Khans were living at a long distance. You had complained against us to the Khans. The complainant and all other family members ran inside the Kotha
(room) and chained the door from within. The accused started firing and entered the room by breaking open the door. Sana Ullah Khan caught Mst. Azizan Khatoon from the arm and took her to the Chhappar, in the courtyard and started committing Zina with her forcibly. On the hue and cry of the girl the complainant and others also came out in the courtyard. They saw Sana Ullah Khan committing Zina with Mst. .Azizan Khatoon. When they attempted to rescue the girl, the remaining three accused pointed guns towards them and threatened that no body should move ahead.
10. Ghulam Hussain, Muhammad Jahangir and Bashir P.Ws., licence holders of the village, came there with their weapons and fired in the air, whereupon Sana Ullah Khan and other accused went away toward their Dera, firing.
11. The complainant stated that Sana Ullah Khan had committed cruelty with them by committing forcible Zina with her virgin daughter. She added that Shalwar and Qameez of Mst. Azizan Khatoon were torn during the occurrence. She explained that her husband was ill and she had sent message in the morning to Khans but as they had not turned up, she started for the Police Station alongwith her brother Ghulam Hussain and Aziz Khatoon P.W. to report the occurrence.
12. She produced torn clothes of her daughter before the S.H.O. which he took into possession.
13. 4.Manzoor Hussain S.I., after despatching statement Exh.P.F. to the police station for registration of case and taking into possession Shalwar P.5 and Shirt P/6 vide memo. Exh.P.K., prepared injuries statements Exh.P.J. of Mst. Azizan Khatoon and sent her to D.H.Q. Hospital Mianwali with Khizar Hayat, A.S.I. for medical examination.
14. Thereafter he went to the place of occurrence, inspected the spot, recorded statements of the P.Ws. and prepared site plan Exh.P.E./1. He also took into possession pieces of broken bangles of various colours lying at the spot vide memo. Exh.P.L.
15. Sana Ullah Khan, Ghulam Yasin and Gulzar were arrested on 4-9-1995. 7 M.M. Rifle P.3 got recovered by Ghulam Yasin on the same day was taken into possession by him vide memo. Exh.P.D. 7 M.M.
16. Rifle P.8, got recovered by Sana Ullah Khan was taken into possession vide memo. Exh.P.B. 12 bore gun P.4 got recovered by Gulzar was taken into possession by him. He got Sana Ullah Khan medically examined about potency.
17. Gulistan was arrested by him on 17-10-1995. 12 bore gun P.1 got recovered by Gulistan on the same day was taken into possession by the S.H.O. vide memo. Exh.P.C.
18. After completion of necessary investigation challan was submitted by him to the Court.
19. 5.Statements of 12 P.Ws. were recorded at the trial.
20. Lady Dr. Khalida Nusrat who had medically examined Mst. Azizan Khatoon at 10.45 p.m. on 15-7- 1995 appeared as P.W.S. She had noted superficial laceration on her left arm. On P/V examination, hymen was found torn, tears were fresh. Vagina admitted two fingers with difficulty. She had removed three vaginal swa bs and sent the same to the office of the Chemical Examiner in a sealed bottle. On receipt of positive report Exh.P.H., from the office of the Chemical Examiner, she opined that the girl had been subjected to suxual intercourse. During cross-examination she stated that if first intercourse is done forcibly tears occur on the vagina. She denied the suggestion that she had issued a false medico-legal certificate.
6. Ocular account was deposed to by Mst. Alam Khatoon, complainant, P.W.7, Mst. Azizan Khatoon (victim), P.W.8, Ghulam Hussain, P.W.9 and Muhammad Jahangir, P.W.10.
21. Mst. Alam Khatoon after repeating the facts given by her in the F.I.R. added that they had left their Dera after the occurrence due to fear and shifted to other place. During cross-examination she stated that their landlords own 5/6, hundred Kanals of land in Hidayat Abad. According to her M.
22. Asghar Khan Rokhari, Advocate, his brother Saleem Khan were amongst their landlords. She stated that the accused persons used to pass in front of the door of the house and they had lodged complaint about that against the accused to Saleem Khan Inspector. She expressed ignorance whether Saleem Khan had made any inquiry from the accused in that regard. She stated that prior to this occurrence no dispute had ever taken place in between the accused and M. Asghar Khan Rokhri, Advocate. She denied the suggestion that 4/5 days prior to the occurrence a quarrel had taken place between the accused and M. Asghar Khan Rokhri, Advocate, on the latter having usurped one acre land of the accused. She admitted that Shafa Ullah Khan a cousin of Sana Ullah Khan was murdered on 22-7-1995 and report was lodged against M. Asghar Khan Rokhri, Advocate and Jamshed Khan. She denied the suggestion that the case of murder of Zar Khan was registered against the accused at the instance of said Asghar Khan. She denied the suggestion that they were acting as tools in the hands of Asghar Khan Rokhari, Advocate. According to her the accused had fired about 20 shots at the Dera of Theems and they might have fired 3/4, hundred shots at the spot. She admitted that the accused had not searched rooms of their house. She explained that after entering the room Sana Ullah Khan had lit a match and had searched the victim in the light.
23. According to her he had pulled her from beneath the cot and taken her to Chhappar at a distance of 3/4 Karams. She admitted that Ghulam Hussain P.W., was her real brother and Muhammad Jahangir, P.W. was her maternal cousin. She explained that she had shown the broken door to the police. She denied the suggestion that M. Asghar Khan Rokhri, Advocate had come to the spot alognwith police or that she had become tool in the hands of M. Asghar Khan Rokhri, Advocate and had lodged a false case against the accused.
24. Mst. Azizan Khatoon corroborated the statement made by her mother, while appearing as P.W.B.
25. Like her mother, she stated that Sana Ullah Khan after having entered the room had lit a match box and had taken her to Chhappar and committed Zina there. She stated that Sana Ullah had committed Zina with her in the presence of 10/15 members of her family. In answer to a question she stated "it is correct that Gulistan, Gulzar and Yaseen had not even touched my person during the occurrence". She stated that M. Asghar Khan, Advocate, and his brother had not come before they had gone to lodge the report. She explained that she had not seen them even on the following day and night. She denied the suggestion that she had made a false statement at the instance of M. Asghar Khan Rokhri, Advocate.
26. 7.Ghulam Hussain, P.W.9, corroborated the statement made by P.W.7 and P.W.8, that Sana Ullah had committed Zina with Mst. Azizan Khatoon under the Chhappar. While stating that he had gone to Dera of Azmat alongwith Jahangir on hearing noise holding their licensed gun, he stated that they had seen all the four accused in the house of Azmat. He corroborated the statements made by P.W.7 and P.W.8 about the weapons which the accused were holding and that a bulb was burning in the courtyard. He added that he had accompanied his sister Mst. Alam Khatoon to lodge the report. He also claimed that his sister had produced shirt and Shalwar of Mst. Azizan Khatoon in his presence before the police. He also claimed that police had collected broken bangles of Mst.
27. Azizan Khatoon from the spot in his presence. During cross-examination he stated that after the occurrence they had waited for their landlords but as they did not turn up so they had proceeded to the police station to lodge the report. He explained that Asghar Khan and his relatives had not come to the spot alongwith the police. He denied the suggestion that he had made a false statement.
28. Muhammad Jahangir, P.W.10 made statement in line with the statements made by other P.Ws. Like P.W.7, P.W.8 and P.W.9 he also denied the suggestion that he had made a false statement at the behest of M. Asghar Khan Rokhri, Advocate. He explained that he had not fired a straight shot on Sana Ullah when he was committing Zina.
29. 8.Manzoor Hussain S.H.O. while appearing as P.W.11 stated that he had recorded statement Exh.P.F. of Mst. Alam Khatoon at Morr Tani Khel, sent the same to the police station for registration of case; taken into possession Shalwar and shirt of the victim produced by the complainant, prepared injuries statement of Mst. Azizan Khatoon sent her to the D.H.Q. Hospital for medical examination, inspected the spot and had taken into possession broken bangles of the victim, arrested Sana Ullah Khan, Ghulam Yasin and Gulzar on 4-9-1995 and had taken into possession 7 M.M. Rifle P.3, got recovered by Ghulam Yasin, 7 M.M. Rifle, P.8, got recovered by Sana Ullah Khan and 12 bore gun P.4, got recovered by Gulzar on the same day i,e, 4-9-1995. He further stated that he had arrested Gulistan on 17-10-1995 and taken in possession Gun P.1, got recovered on the same day and submitted challan to Court after completion of necessary investigation. During cross-examination he stated that when he had reached the place of occurrence M. Asghar Khan Rokhri, Advocate was not there. However, he explained that he had met Asghar Khan Rokhri, Advocate, while returning from the place of occurrence to the police station. He stated that he had not collected any empty from the spot. He stated that he not obtained physical remand of Gulzar, Yasin and Sana Ullah Khan accused. He denied the suggestion that all the recoveries were fake. The suggestion that he was a tool in the hands of Muhammad Asghar Khan Rokhari, Advocate and had prepared a false case against the accused was denied by him.
30. 9.Dr. Sher Ali Khan, who had medically examined Sana Ullah Khan for potency appeared as P.W.12 and stated that there was nothing to suggest that he was not fit to perform sexual act.
31. The statements of the remaining witnesses are more or less of a formal nature. Positive report from the office of the Chemical Examiner was also tendered in evidence.
32. 10.The appellants during statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. All of them took up the plea that they had been involved in this case 'due to enmity'.
33. Sana Ullah Khan stated as follows in answer to the question "have you anything else to say?
34. "Mr. Muhammad Asghar Khan Rokhari, Advocate is a big landlord and Wadera of Tehsil Mianwali and is a senior advocate at Mianwali. Father of Mr. Muhammad Asghar Khan Rokhari was S.P. in Police while his real brother Saleem Khan was at that time Inspector in the police. Mr. Muhammad Asghar Khan had about 1000 Kanals of land in village Hidayat Abad. My father owns about 8 Kanals of land adjacent to the estate of Muhammad Asghar Khan Advocate which land was usurped by Asghar Khan Advocate. A few days ago before the occurrence I, my father and the remaining accused who are tillers and are my neighbourers went to Hidayat Abad as a 'Punchayat' and requested Muhammad Asghar Khan to return the possession of our land. There was a quarrel and Mr. Muhammad Asghar Khan Rokhari Advocate threatened us with dire consequences and also warned us that you will be involved in a number of cases and even your forefathers will remember this lesson. I and the other accused have been involved by Mr. Asghar Khan Advocate in this preplanned story and is a totally fabrication. Mst. Alam Khatoon and Mst. Azizan Khatoon are tools in the hands of Mr. Muhammad Asghar Khan, Advocate. The fact is that this while case has been built up by Mr. Muhammad Asghar Khan, Advocate. We are absolutely innocent. My real cousin has been murdered by Mr. Muhammad Asghar Khan and his brother after a few days of the registration of this false case."
35. All of them declined to make statements on oath under section 340(2), Cr.P.C. Excepting Sana Ullah Khan who had tendered in evidence F.I.R. No.109 dated 22-7-1995 Police Station Mochh, under section 302/148/149/109, P.P.C. None else produced any evidence in defence.
36. 11.Learned counsel for the appellants after having taken us through the evidence, criticised the impugned judgment and contended that F.I.R. was lodged in this case after an unexplained delay of twenty hours, that there are material discrepancies between the statements of the eye witnesses, that all the eye-witnesses are inter related and so interested, that there was no independent corroboration of the ocular account.
37. Learned counsel streneously argued that the conviction of Ghulam Yasin, Gulzar and Gulistan under section 109 P.P.C. read with section 10(3) of the said Ordinance was not maintainable as there was no evidence that they had abeted Sana Ullah Khan to commit Zina.
38. Lastly learned counsel prayed for reduction in the sentences of imprisonment as according to him sentence of 25 years to Sana Ullah Khan was excessive.
39. Learned counsel for the State defended the judgment of the trial Court and submitted that the prosecution had succeeded in proving the case beyond any reasonable shadows of doubt.
40. 12.The argument of the learned counsel for the appellants that the F.I.R. was lodged after twenty hours is correct. However, the contention that the complainant had not explained delay is without any force.
41. Complainant Mst. Alam Khatoon, her daughter Mst. Azizan Khatoon, P.W.8 and her brother Ghulam Hussain, P.W.9 clearly stated that they had been waiting for their Khans (landlords) whom they had sent information about occurrence and they only proceeded to the police station to lodge the report, when none of them i,e, Khans turned up till late in the evening. It is on record that the complainants are the tenants of some big landlord. They had every reason to look for help of their landlords on grave misfortune having fallen to them. It is clear from the reading of the F.I.R. that the complainant and their witnesses had not tried to take any benefit by attempting to make the offence graver by levelling grave individual parts to each one of the accused. In the circumstances, we do not find any force in the argument of the learned counsel for the appellant that the delay actually had occurred due to consultations and deliberations for spreading the net wider to involve more persons as accused.
42. 13.It is on record that there was no animosity or differences between the complainant, her brother and the other eye witnesses, on one side and the accused on the other side. The only incident which had occurred amongst them was the complaint lodged by the complainant and her daughter to their landlords against the behaviour of the accused while passing in front of their house. The accused at no stage of the trial suggested to any of the P.Ws. that any one of the P.Ws. had any animosity or differences with any of the accused.
43. The stance of the accused throughout trial had been that they had some differences over the possession of one acre of land of Sana Ullah Khan with M. Asghar Khan Rokhri, Advocate and that as he was the landlord of the complaint he used them for fabricating a false case against them.
44. Apart from the fact that these suggestions were denied by each one of the witnesses, the other important aspect, is, that the defence failed to bring on record that M. Asghar Khan Rokhari, Advocate had played any role in registration of the case or helped them in that connection, had he shown deep interest, delay of twenty hours would not have occurred in registration of case nor so much time would have been taken by the police to effect the arrest of the accused (three accused were arrested after more than 1-1/2 month while one accused was arrested after three months). On our part we are satisfied that all the eye-witnesses made forthright and confidence inspiring statements. Neither any one of them tried to hide anything nor did any of them attempted to be mischievous.
45. The contention of the learned counsel for the appellants that the witnesses made discrepant and exaggerated statements about the number of shots has been considered by us. No doubt there was exaggeration in the statements of the witnesses about the number of shots but when an occurrence of commission of Zina takes place with a young girl in her house under the cover of gun shots so brutally it is not possible for any witness to count and remember the number of shots fired by each or all the accused.
46. It is correct that the Investigating Officer did not collect empties from the spot. We feel that the Investigating Officer might have shown slackness in that regard knowing that none of the witnesses had suffered any injury due to fire shots.
47. The contention that there was no evidence to corroborate the ocular account is again fallacious, because there is medical evidence which corroborates fully the version of the prosecution about commission of Zina. The lady doctor who had medically examined the girl had found fresh tears on the vagina and the Chemical Examiner had found the swabs stained with semen.
48. The argument that all the witnesses were related inter se is also not correct as P.W.10 was not closely related.
49. Be that as it may, since the occurrence had taken place at midnight only E inmates of house or persons residing nearby could have witnessed the occurrence, as such argument that the ocular account was deposed to by related witnesses does not possess any force.
50. 14.As a result of the above discussion and enunciation of evidence we are convinced that the occurrence had taken place in the manner reported and stated at the trial by the P.Ws. However, there is substance in the argument of the learned counsel for the appellants that there was no evidence that Ghulam Yasin, Gulzar and Gulistan had abeted commission of Zina. In that, none of the witnesses stated that any three of them had exhorted Sana Ulalh Khan to commit Zina nor any one alleged that any one of them helped in catching or holding the victim to facilitate commission of Zina.
51. Mst. Azizan Khatoon victim in this case during cross-examination categorically stated that Ghulam Yasin, Gulzar and Gulistan had not even touched her during the occurrence. Her statement lends reasonable support to the argument of the learned counsel for the appellant that even if it is believed that Yasin, Gulzar and Gulistan had accompanied Sana Ullah Khan to the house of the victim. There is no sufficient material to hold that they had gone with the knowledge that Sana Ullah Khan will commit Zina with Mst. Azizan Khatoon nor had any one of them played any active role in that regard. In our view, case 1 of the prosecution against the abovenamed three accused about abetment of commission of Zina was doubtful. Their convictions and sentences under section 109, P.P.C. read with section 10(3) of the said Ordinance are set aside. The conviction of all the four accused under section 440/34, P.P.C. is maintained. They are in jail since more than 2-1/2 years. We feel imprisonment already undergone plus to pay a fine of Rs,5000 each in default whereof to undergo R.I. for six months to each under section 440/34, P.P.C. will meet the ends of justice. Order accordingly. Fine on recovery shall be paid to victim as directed by the trial Judge.
52. 15.Conviction of the appellant Sana Ullah Khan appellant under section 10(3) of the said Ordinance is maintained. Maximum sentence provided for commission of offence under section 10(3) of the said Ordinance is 25 years. We feel the sentence is excessive. The same is therefore, reduced to R.I. for fifteen years. Benefit of section 382-B, Cr.P.C. shall be extended.
53. The sentence of stripes is remitted as the same stands abolished vide Notification in the Gazette of Pakistan (Extra-ordinary) dated 15-4-1996.
54. The appeal is dismissed with above alterations.