Five persons, namely, Muhammad Husain, Bashir Ahmad, Muhammad Ramzan, Gul Akbar and Muhammad Hafeez were separately tried for committing rape upon Mst. Sakina Bibi, by Mr. Talib Hussain, Section 30 Magistrate, Jhelum, who convicted and sentenced each one of them to undergo rigorous imprisonment for seven years and were also awarded 15 stripes.
2. The convicted persons filed separate appeals questioning their conviction and the sentences. As the evidence in all the cases is the same, I propose to dispose of the five appeals by a single judgment.
3. The facts of the case, shortly stated, are that on September 11, 1967, Mst. Sakina Bibi arrived at Jhelum from Peshawar. She went to Hurriat Bus Stand for going to Ali Beg, which is in Azad Kashmir territory. She contacted Muhammad Ramzan, who was standing near a bus and asked him whether the bus was ready to go to Ali Beg. Muhammad Ramzan replied in the affirmative. Mst.
Sakina Bibi got into the bus. No other passenger was there in the bus at that time. Muhammad Ramzan started the bus, drove it to some distance and then brought back the vehicle to the bus stand. He told Mst. Sakina Bibi that he could not get any other passenger for Mirpur and would go early the next morning to Mirpur via Ali Beg. He further pointed to the chobara and told Mst. Sakina Bibi that it served as musafarkhana for the passengers who are to stay for 'the night. Mst. Sakina Bibi entered the chobara, found a cot with a bedding lying in the room. The light was on. Shortly afterwards, the five appellants alongwith one Dheru entered the chobara. Mst. Sakina was asked to put off her shalwar. She entreated them to spare her as she was a poor woman, but they again threatened her with death. Muhammad Ramzan told his companions to go out of the room promising to call them at the proper time. Thereafter, he threatened Mst. Sakina Bibi with a knife.
She removed her shalwar and Muhammad Ramzan raped her. After completing the act, he called Muhammad Hafeez from outside. The latter came in and Ramzan left the room. Muhammad Hafeez also raped Kist. Sakina Bibi. Then he called Muhammad Husain from outside and when the latter came in the room, the former left the chobara. Muhammad Husain also committed rape upon the victim and after committing the crime, he also called Bashir from outside. The latter entered the room while the former left. Bashir also raped her followed by Gul Akbar. Thereafter Gul Akbar called Dheru and he too committed rape with Mst. Sakina. The six persons then waited for sometime in the courtyard, which is in front of the chobara. Muhammad Ramzan, Muhammad Hafeez and Muhammad Hussain raped Mst. Sakina again one after the other.
On the following morning, at nimaz-wela, the Prosecutrix got out of the room on the pretext of making water. When she came out in the courtyard, she noticed Muhammad Bashir and Muhammad Din standing in the bus-stand. She raised an alarm. They rushed up-stairs and the woman narrated to them, what had happened. They took her alongwith them towards the thana and in the way came across A. S. I. Ghulam Muhammad, who was on patrol duty in Jhelum City.
Mst. Sakina Bibi made the statement Exh. P. A. (on file No. 52/30). The A. S. I. Prepared the injury -- sheet and got her medically examined He also got the five appellants examined by the doctor.
Muhammad Hassain appellant, while in custody, led the police to Hurriat Bus Stand and got recovered chaddar, Exh. P.
1. From under an iron safe. It was taken into possession by the police in the presence of Khushi Muhammad and Bashir and was made into a sealed parcel. On the same day, Muhammad Hafeez appellant produced three pieces of cloth from under a heep of clods of earth, which were taken into possession and sealed into a parcel. On the same day, Muhammad Ramzan appellant led to the recovery of knife Exh. P. 3, which was taken into possession by the police. Thereafter the appellants were arrested.
4. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity and with the exception of Gul Akbar appellant, they did not produce any evidence in their defence. Gul Akbar examined Muhammad Sarfraz and Noor Elahi in his defence. They gave him a good character. Muhammad Sarfraz stated that he did not hear any complaint against Gul Akbar.
5. The recoveries in no way advance the prosecution case because there are indications that Mst.
Sakina was a consenting party as I shall presently endeavour to show. Mst. Sakina had originally been married to one Rashid of Lyallpur. Seven years ago, she was divorced by Rashid. Thereafter, Mst. Sakina Bibi started living with Jan Muhammad at village Jada. Jan Muhammad worked at different brick-kilns in the area of Mirpur for about one year. Thirteen months prior to the occurrence under consideration, Jan Muhammad had gone to work at Peshawar. Mst. Sakina lived with him at a brick-kiln at Peshawar for about 10 or 11 months. About 1-- months prior to the occurrence, Mst. Sakina Bibi received a letter from her mother telling her that she was ill. Mst. Sakina Bibi says that she boarded the train from Peshawar Railway Station and alighted at Jhelum Railway Station towards the evening. From there she went on foot to Hurriat Bus Stand, which is situated near the railway line. A bus was standing there and Muhammad Ramzan appellant was present near the bus. She got into the bus on the assurance by Muhammad Ramzan appellant that the bus would leave for Mirpur via Ali Beg the same evening. Later on, he told her that he could not get any passenger for Mirpur and, therefore, the bus would leave for Mirpur on .The following morning.
Muhammad Ramzan pointed to a chobara describing it as musafarkhana and Mst. Sakina Bibi readily agreed to stay there for the night. This conduct on the part of Mst. Sakina Bibi was highly unnatural. It is in her statement that she lived at Jada, which is a suburb of Jhelum for a number of years and Jan Muhammad still has his house there. It is surprising that she did not go to Jada to stay for the night with some neighbour, if not in the house of Jan Muhammad. The story regarding the rape as narrated by her is to say the least most unnatural. She did not know any of the appellant by name. She came to know of their names when one of them after raping her called the other to the chobara for indulging in the same act. The process appeared to have started after night-fall. She did not offer any, resistance as is clear from the testimony of Lady Doctor Shamim Akhtar, who examined her on 12-9-1967 at 11-00 a. m. There were no marks of violence externally over any part of her body. No scratch or tear of any kind was present externally either on labia majora, minora or vaginally. It indicates to my mind that Mst. Sakina did not put up any resistance.
It is in her statement that she had no child from Jan Muhammad or from her first husband Rashid of Lyallpur. It is further in the statement of the Prosecutrix that she herself put off her shalwar, though she would have us believe that it was due to the fear of Ramzan who was holding a knife: Mst. Sakina Bibi admitted that Ramzan did not kiss her before he started having sexual intercourse with her. He did not even embrace her. The witness continued that Muhammad Ramzan kept the knife in his hand till he completed the act. She did not slap nor did she give any fist or kick blows to her ravishers. She did not try to snatch the knife. She candidly admitted that she did not try to resist in any manner. Her shirt was not torn. It is in evidence that barring Muhammad Ramzan, the rest of the culprits had no weapon when they raped Mst. Sakina Bibi, but she did not raise any alarm nor did she try to offer any resistance. Mst. Sakina gave her age as 30 years and described herself as a resident of Bhalwal in District Gujrat. In the case against Muhammad Hafeez appellant, Mst. Sakina Bibi admitted in cross-examination that her original village is Bhalwal Chibban and that her mother also resided at Bhalwal. Bhalwal falls in the jurisdiction of Police Station Sarai Alamgir. Never before this occurrence, she visited Jhelum City. It is not explained why the prosecutrix detrained at Jhelum and why she was anxious to go to Ali Beg when her mother resided at Bhalwal.
On going through the evidence of Mst. Sakina Bibi, the impression one gains is that she is a woman of easy virtue and in all probability was a consenting party. There is string of rulings that conviction in a case of rape cannot be sustained on the bare statement of the complainant. Evidence of resistance to a sexual intercourse forced upon her is completely lacking in this case. In the absence of a struggle and marks of injuries found on the person of the prosecutrix or of the accused, it is difficult to hold that the sexual intercourse was done with the woman without her consent. None of the appellants on examination by the doctor was found to have a scratch on his person. In a case of rape, where the entire prosecution evidence rests on the testimony of the prosecutrix, it is not accepted at its face value where there are indications that the woman was a willing party. Taking into consideration the statement of Mst. Sakina and the attendant circumstances, I am of the view that the conviction of the appellants for rape cannot be sustained.
I would, therefore, accept the appeals, set aside the conviction and sentences passed on the appellants and order them to be acquitted. They are in jail and I direct that they be set at liberty forthwith provided always that their detention is not required in any other case.