' ZAFAR PASHA CHAUDHARY, J.---Vide judgment, dated 26-3-1999 Khawaja Faheem Ijaz, learned Special Judge, A.T.A., Lahore, four accused persons namely Mst. Robeena, Gulzar alias Multani, Abdul Ghaffar alias Chiria and Mst. Hameedan Bibi were tried in case F.I.R. No,140 of 1998 under section 10(4) read with section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered with Police Station Nishtar Colony, Lahore. The learned trial Judge on conclusion of the trial acquitted Mst. Hameeda whereas Abdul Ghaffar and Gulzar alias Multani were found guilty under section 10(4) of the said Ordinance and were sentenced to death for committing Zina-bil- Jar with Mst. Rafia victim aged about fourteen years. Mst. Robeena was convicted under section 16 of Ordinance and sentenced to suffer seven years' R.I. With a fine of Rs,5,000, in default whereof to further undergo two months' R.I.. Benefit under section 382-B, Cr.P.C. Was extended.
2. Aggrieved by their conviction, all the three convicts i,e, Gulzar alias Multani, Abdul Ghaffar alias Chiria and Mst. Robeena have filed Criminal Appeal No,269 of 1999, whereas Murder Reference has been. Sent for confirmation of death sentence. Both have been taken up together for disposal.
3. The prosecution case as revealed from the statement of Mst. Rafia P.W.2 (prosecutrix) Exh. PA is that her parents arranged for her service in a Kothi in Punjab Housing Society Johar Town, Lahore for Rs,800. On 20-4-1998 the owner of the Bangalow reprimanded her and she without informing him, left the Kothi and was present outside the Kothi, when Multani driver and Abdul Ghaffar Conductor of the wagon reached there with their wagon. She boarded the wagon in order to see her parents. At some distance, both Abdul Ghaffar and Multani conspired each other and asked her as to where she wanted to go. She told them that she was going to her parents who lived in a Dera at Wahga. They promised that they would drop her at the place according to her wishes. Both the accused Multani and Abdul Ghaffar took her in the house of Mst. Robeena accused in Atari Park.
All the three accused told her that she should stay there and they will arrange for her service to which she refused. All the three accused then confined her in a room. Mst. Robeena gave tea to her in the evening time but she refused to take the tea. They threatened her, therefore, she took the tea and came under the influence of intoxicant. Then Multani accused committed Zina-bil-jabr with her. At the night, Abdul Ghaffar and Multani both committed Zina bil jabr. Both Abdul Ghaffar alias Chiria and Multani committed Zina with her for ten days with connivance of Mst. Robeena accused.
After that Abdul Ghaffar alias Chiria took her to his house where the mother of Abdul Ghaffar confined her in a room and Abdul Ghaffar accused committed daily Zina with her forcibly and Mst.
Hameeda Bibi mother of the accused pressed her for marriage with his son. On finding opportunity she informed her parents who reached the spot and recovered her. On her statement the present case was registered.
4. Statement was recorded by Muhammad Ashraf, S.-I. P.W.5. It is to be noted that the F.I.R. Was lodged on 13-5-1998 but inadvertently it was mentioned as 13-5-1999 in the Paper Book, A similar mistake also crept in, as the date of recording of the statement should be 13-5-1998 but has been entered as 13-1-1998. These are clerical mistakes and cannot in any manner affect the merits of the case.
5. After completion of the investigation, the above named four accused persons were sent up to face trial where the prosecution examined nine witnesses in support of its case. Mst. Rafia and Ameer Ali her father are the most relevant witnesses, who reiterated the facts which had been narrated by Mst. Rafia in her statement before the police.
6. The other important witness is Lady Doctor Lubna Naseem P.W.5 who examined Mst. Rafia. Apart from the oral evidence, report of the Chemical Examiner was also produced in Court, according to which the swa bs were found to be stained with semen. All the accused including the appellants denied the allegations against them. D.W.1 Iftikhar Ali is the brother of Abdul Ghaffar accused appellant who stated that he alongwith Abdul Ghaffar was present in the house which was the place of occurrence with their mother, sisters and other inmates.
7. The learned trial Judge relied upon the testimony of Mst. Rafia which was supported by the medical evidence and also the report of the Chemical Examiner, held the appellants guilty under the aforementioned sections. Two of the male appellants i,e, Abdul Ghaffar alias Chiria and Gulzar alias Multani were sentenced to death under section 10(4) of the Ordinance, as according to the prosecutrix both had committed Zinabil-Jabr with her, therefore, in view of the provisions of subsection (4) both were held to be guilty.
8. Section 10(4) of the Ordinance is amongst the rare provisions of Penal Law which has been made punishable with death alone. As maximum penalty of death is provided, therefore, the prosecution case has to be scrutinized with utmost care and caution. In case any doubt or suspicion is noticed the same obviously will go to the benefit of the accused persons. As there is no alternate sentence or. Punishment provided then the choice is limited only either to sentence the offender to death or to acquit him. By keeping this severity of law in mind, the prosecution evidence has been assessed and scrutinised by us.
9. As noted above, the main witness is Mst. Rafia. She has told a long story how she fell victim to the appellants and thereafter, she was subjected by them to their lust. The prosecution case in detail has been noted above. Although there is nothing on the record to indicate that she had any motive to falsely implicate the appellants yet her evidence remains to be words of mouth. Any exaggeration or mis-statement on her part may result in sending the offenders to gallows. To uphold and justify the extreme sentence, the proof and evidence should be unstinted or unblemished. The statement of prosecutrix is supported by the medical evidence but only to the extent of proving or establishing that the, prosecutrix had been subjected to sexual intercourse.
Whether the same had been done by one person or more, medical evidence does not provide any clue. The number of offenders is of utmost importance because in case the number of offenders is less than two then the case will not come within the ambit of subsection (4) rather would be covered by subsection (3) of section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Apart from this aspect of the case, the character and credibility of the prosecutrix should appear to be above board. Any doubt or suspicion touching her testimony would be treated as fatal to the prosecution. On this touchstone, we examined the statement of Mst. Rafia and A when the same is compared with the medical evidence, we have noticed material discrepancies which have created tangible doubt about the veracity and truthfulness. Dr. Lubna Naseem P.W.8 during her examination did not find any marks of violence or marks of injury on her external geneteria, hymen was torn and had old tears, which materially contradicts the statement of prosecutrix because she was examined on 15-5-1998 just one day after her recovery i,e, on 13-5-1998. Opinion with regard to sexual intercourse was given because swabs were found to be semen-stained. During her cross- examination, an important observation came to light as the doctor did not mention the type of hymen and according to her the hymen in this case was found intact. As during her examination-in chief, she had stated that hymen had old tears but a diametrically opposite statement had been made during cross-examination, the original record was checked in order to ascertain whether some clerical mistake might not have occurred. Even on the original record position is the same. She further stated that possibility could not be ruled out that these (tears) were more than one month or up to one year old. The revelation made by the doctor in her statement has to be assessed with extra care and caution, especially when the case is of imposition of death penalty which once executed becomes unremediable. It has to be observed with pain and also with deference to the victim that her medical examination depicts that she is a girl of easy virtue. Although a consent of a minor is no consent in the eye of law yet the fact remains that evidence of a witness with shady character or of an accomplice is generally considered as unworthy of credit.
10. Apart from the discrepancies in between the statement of prosecutrix and medical report, it has come on record that Abdul Ghaffar alias Chiria who kept the prosecutrix in his house intended to marry her and similar desire had been expressed by his mother as well. If the appellant had any intention or design to marry the prosecutrix then he ordinarily would not have permitted his companions to have access to her or to subject her to Zina-bil-jabr. Although this circumstance by itself is not strong enough to. Hold Gulzar alias Multani as innocent but even a slight doubt in the veracity of a witness would prevent the Court from imposing the extreme penalty. No doubt offence of gangrape is considered extremely heinous in any society in general and in Muslim society in particular and it is treated as most detestable and abominable crime and obviously for that reason the extreme penalty of death had been provided. Evidently the aim is to create deterence and prevent the offenders from committing such-like crime but practically it has been noticed that whenever heavy punishment especially the sentence of death is provided and there is no alternate punishment either, the number of acquittals are bound to increase. Coming to the instant case we have only the testimony of Mst. Rafia but that too is contradicted on material aspects by the medical evidence, we are therefore, constrained to hold that the prosecution has failed to prove the guilt of the accused persons and therefore, the only alternative left is to acquit them of the charges.
11. In view of the above, we accept this appeal, set a side their conviction and sentence as held supra and order for release of the appellants from Jail forthwith if not required to be detained in some other case.
' Murder Reference is answered in negative. Sentence of death is not confirmed.