' KH. MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,11 of 1998 and Criminal Appeal No,38 of 1998 filed by Naazim son of Abdul Ghafoor, appellant and Bashir Ahmad son of Ghulam Yasin appellant, who were convicted and sentenced by Judge Special Court-I, Anti Terrorism, Bahawalpur on 27-8-1998 to undergo death sentence under section 10(4), Offence of Zina (Enforcement of Hadood) Ordinance, 1979 for committing "Gang Rape", along with Muhammad Ashiq and Muhammad Agee! (proclaimed offender) on the persons of Mst. Kundan Mai (28 years) examined as P.W.6 and Mst. Shamim (30 years) examined as P.W.7.
2. The occurrence in this case took place on the night between 21/22-12-1997 while the matter was reported to the police on 22-12-1997 at 9-30 a.m. By Mst. Kundan Mai wife of Rahim Baldish through Exh.PG.
3. Briefly stated the facts of the prosecution case are that on 21-12-1997 at about 3-00 p.m., Kundan Mai and Mst. Shamim proceeded from Bahawalpur to Khairpur Dhaha by a wagon to console the sad demise of maternal uncle of Kundan Mai. At Khanqah Sharif Bus-stop the wagon became out of order and they changed it. A Dala came there and they sat into it. They proceeded to Ahmadpur East and then for Khairpur Dhaha. When the Dala reached near Hamidpur the driver turned it towards the jungle. Thereafter, he alighted them from the Dala. Aqeel accused (proclaimed offender) caught hold of Kundan Mai and Bashir Ahmad (appellant) subjected her sexual intercourse. Thereafter, accused Bashir caught hold of her and Aqeel (proclaimed offender) committed Zina-bil-Jaber with Kundan Mai. Similarly, Naazim appellant and Ashiq accused (proclaimed offender) committed Zina-bil-Jaber turn by turn with Shamim Mai. Thereafter, the accused boarded them into Dala and then dropped them at Adda Khairpur Dhaha. They went to Police Station along with P.Ws., got recorded their statements and F.I.R. Exh.PG was registered.
4. On the day of occurrence, i,e, 22-12-1997, Investigating Officer took into possessions, Shalwar P.5 belonging to Mst. Kundan Mai vide memo. Exh.PH. He also took into possession Shalwar P.6 belonging to Mst. Shamim Mai vide memo. Exh.PJ. Mst. Khundan Mai and Mst. Shamim Mai were also got medically examined by Dr. Faraz Mazhar, W.M.O., P.W.1.
5. Both the appellants were arrested on 1-1-1998 by Muhammad Arshad, Sub-Inspector, P.W.9. Both the appellants were also got medically examined by Dr. Malazam Hussain Samroo, M.O., P.W.2 about their potency. According to the report of Chemical Examiner Exh.PA, swabs taken from the "vagina" of Mst. Shamim Mai were stained with semens. According to the report of Chemical ,Examiner Exh.PC, swa bs taken from the "vagina" of Mst. Kundan Mai were also stained with semens.
Both the abovesaid reports Exh.PA and Exh.PC are positive in nature. According to the report of Chemical Examiner Exh.PM, both Shalwars of Mst. Kundan Mai and Mst. Shamim Mai were also having stains of semens.
6. Prosecution in order to prove its case produced nine witnesses in all. Thereafter, the statement of the appellants were recorded under section 342, Cr.P.C., wherein they had stated that they have been falsely implicated in the instant case being a cleaner on the wagon of Muhammad Ashiq driver, their co-accused, who is a proclaimed offender and both the appellants also alleged to have enmity between the complainant party and themselves.
7. Learned counsel for the appellants has read before us, prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And makes the following submissions. After going through the evidence, learned counsel for the appellants submits that conduct of both these ladies (victims) was not a natural one because they did not straightaway go to the house of their parents, that both the victims did not tell the story to their near relations. He further submits, that story of the prosecution, that both the ladies were dropped at Adda at the time of "Fajjar" prayer by both the appellants and their co-accused is not worthy of any credence. He further submits that in fact it was a act of consent and both the ladies were consenting party to it and it was not a case of Zina- bil-Jaber in a shape of "Gang Rape" as alleged by the P.Ws. He further submits that there is no independent corroboration to the statements of these two ladies. He also submits that there is delay in lodging the F.I.R. And no prompt action was taken by both the victims in reporting the matter to the police. He submits that if for the sake of arguments, the case of the prosecution is taken to its entirety the offence if any would fall under subsection (2) or (3) of section 10 of Zina (Enforcement of Hudood) Ordinance, 1979.
8. On the other hand, learned counsel for the State supports the judgment of learned trial Court.
9. We have heard the leaned for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case, both the victims namely Mst. Shamim Mai and Mst.
Kundan Mai have got no enmity whatsoever with both the appellants neither any specific enmity was suggested by the appellants during the cross-examination before the learned trial Court, even otherwise, in their statements recorded under section 342, Cr.P.C. Both the appellants did not give any cogent or plausible reason for their false implication in the instant case as alleged by them.
The conduct of both the victims namely Mst. Shamim Mai and Mst. Kundan Mai is not only a natural one but also in a very straightforward manner, because when they were dropped at Adda Khairpur Dhaha by the appellants and their co-accused, both of them raised hue and cry, on which Farooq Ahmad, Malik Zulfiqar Ali P.Ws. Along with other peoples attracted at Adda Khairpur Dhaha and the matter was told to them by both the victims. They also tried to apprehend the appellants and their co-accused but they ran away along with their wagon from that place. Thereafter, Mst. Kundan Mai along with Mst. Shamim Mai, her father Malik Manzoor and Zulfiqar Ali P.W. Went to the police station and reported the matter. The ocular account furnished by both these victims is corroborated by medical evidence and also from the positive reports of Chemical Examiner, which are Exh.PA, Exh.PC and Exh.PM. Exhibit.PA and Exh.PC relates to the swabs which were found to be stained with semens and were taken by the Lady Doctor from their vaginas respectively, then there is another very strong piece of evidence which corroborates their testimony and i,e, the report of Chemical Examiner Exh.PM regarding the Shalwars of both the victims and according to the said report of Chemical Examiner both the Shalwars were stained with semens. So there was no question of false implication of the appellants in the instant case.
10. In our view, prosecution has proved its case against both the appellants beyond any shadow of doubt. So keeping in view all the circumstances of the case, conviction and sentence awarded to the appellants by the learned trial Court is maintained. Death sentence awarded to them is confirmed. Murder reference is replied in affirmative. Appeal filed by the appellants is dismissed.
Conviction and sentence awarded to the appellants by the learned trial Court is upheld.
Death sentence of both the appellants is confirmed.