1. ' DR. FIDA MUHAMMAD KHAN, J.--- This appeal jointly filed by Muhammad Iftikhar son of Manzoor Hussain, Hamad Hussain son of Ghulam Hussain, Muhammad Hanif son of Ghulam Hussain and Muhammad Azad son of Sher Khan is directed against the judgment, dated 28-6-2000 passed by learned Additional Sessions Judge, Chakwal whereby he has convicted and sentenced the appellants as mentioned hereinunder:--
(1) Muhammad Iftikhar
(2) Hamad Hussain
(3) Muhammad Hanif
(4) Muhammad AzadUnder sections 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, to 12 years and fifteen stripes.
2. Under section 11 of the said Ordinance to life imprisonment, thirty stripes and a fine of Rs. 10,000 or in default six months' R. I.
3. Under section 324/34, P.P.C. to three years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
4. Under section 454, P.P.C. to three years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
5. Under section 11 of the said Ordinance to life imprisonment, thirty stripes and a fine of Rs. 10,000 or in default six months' R. I.
6. Under section 324/34, P.P.C. to three years' R.I., and a fine of Rs. 10,000 or in default six months' R.I.
7. Under section 454, P.P.C. to three years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
8. Under section 324/34, P.P.C. to three years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
9. Under section 324/34, P.P.C. to three years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
10. ' All the sentences of appellant Iftikhar and Hamad are ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Has been given to all the appellants/accused.
2. Briefly stated the case of prosecution as disclosed in F.I.R. Lodged on the basis of written application by Mst. Nadia Bibi, wife of Khan Ameer on 6-7-1999 is to the effect that on the night between 3rd/4th July, 1999, her husband was away with his Pick-up and she was sleeping inside her house. Her ailing father-in-law was also sleeping in the house. At about 1-00 a.m. Muhammad Iftikhar alongwith one other boy whom she could recognize if produced before her entered her house and forcibly gagged her mouth and took her at some distance near a well. Iftikhar asked her to take off her Shalwar but she did not take that off. In the meanwhile two other boys came and all of them threw her in the well wherefrom she came out after a lot of effort. Nazar Hussain, Sajawal, Muhammad Nazir and some other persons reached there and they informed her husband Khan Ameer who had reached the house during this time. They took her to her house. They had been trying to effect compromise but they did not succeed and therefore, she alongwith her husband and mother-in-law reported the matter to police. All the aforementioned accused were arrested and formally charged on 5-4-2000. They did not plead guilty to the charge framed against them, therefore, they were tried.
3. At the trial prosecution examined four witnesses in all. P.W.1 is Mst. Nadia Bibi. She reiterated her statement with some elaboration. P.W.2 is Muhammad Nazir. On the night of occurrence he was woke up by his father on hearing hue and cries. He went out of his house alongwith his father and after a short while they saw Mst. Nadia Bibi coming while weeping. Her clothes were wet. On their asking Mst. Nadia Bibi disclosed the details of occurrence in her narration, she named Iftikhar but did not know other names of the accused. P.W.3 is Muhammad Sajawal. He is neighbourer of P.W.2 who also saw the occurrence. He supported the version made by P.W.2 with some addition. P.W.4 is Muhammad Walayat, A.S.-I. He partially investigated this case. He arrested Hamad, Azad and Hanif in this case and handed over the file to S.H.O. He also identified the handwriting and signature of Raja Muhammad Nawaz, A.S.-I. (since murdered) on F.I.R. Exh.P.A./1. Muhammad Ashfaq, constable appeared as C.W.1. He is a formal witness who was entrusted with the summon issued against Muhammad Nawaz, A.S.-I. Who had been murdered. He submitted report Exh.C.W.1/B in his handwriting which bears his signature.
4. The appellants/accused made statements under section 342, Cr.P.C. Wherein they denied the allegation and pleaded innocence. Muhammad Iftikhar, appellant/accused stated that he had been involved in this case by the complainant due to political and local differences and the P.Ws.
11. Have not deposed against him to implicate him in this case. He stated that in fact Mst. Nadia herself had gone to see her some paramour as she was of the view that her husband was not expected to return back on that night and as her husband came unexpectedly to his house and found Mst. Nadia missing, therefore, Mst. Nadia went into house of said Fazal Dad and concocted story. He further added that he was innocent and in fact the complainant party is habitual and they want to have money from him and his co-accused under the pressure of this case. He added that earlier they had done so from one Ishaque and Zamurd, Hamad, appellant/accused also made a similar statement. Azad, appellant/accused while stating that he had dispute with the family of Nadia and her husband and had been falsely implicated in this case. For that reason, he added, during investigation Nadia herself exonerated him from the charge. Muhammad Hanif, appellant/accused stated that he had been implicated in this case by the complainant party due to local and political differences. He added that in fact no such occurrence had taken place and the P.Ws. Had deposed nothing against him. Ghakhar Khan and Gulistan Khan appeared as D.Ws.
12. And made statements on oath in respect of good moral character of the appellants/accused and bad reputation of Mst. Naida, complainant of this case.
5. We have heard the learned counsel for the parties and have perused the record with their assistance. It transpires from the record that the case of prosecution mainly rests on the statement of P.W.1 Mst. Nadia Bibi who is the victim and complainant of the case. There is no other eye-witness of the actual occurrence. Therefore, the fate of this case hinges on her testimony. We have thoroughly gone through her statement in the light of submissions made by learned counsel for the appellants and have found that despite lengthy cross-examination she has stood firm and her testimony has not been shaken. The available record does not furnish any ground or motive for false implication of the appellants/accused. She was a married lady and it was not possible for her to ruin her career or stake her honour without any rhyme or reason. Though there is delay in reporting the matter to the police but that has been plausibly explained. In such like matters people of the locality try to effect compromise to save honour of the parties. Even otherwise the aggrieved party normally refrain to make reports at the police station immediately in view of their family honour. The complainant has made no allegation against the appellants for actual commission of Zina but has made statement that shows only attempt on the part of the accused, failing which they threw her into the well, therefore, no medical examination was conducted by the complainant party in this case. The statement of P.W.1 Mst. Nadia finds full circumstantial support from the depositions made by P.W.2 and P.W.3 who saw her coming after the occurrence to her house. P.W.2 saw her in weeping condition. He also observed that her clothes were wet. He also heard her naming Iftikhar and some unknown accused to have forcibly taken her out from her house and then throwing her into the well. He also confirmed that soon after they went to the house of Mst. Nadia and saw there her family members were sitting worried for the missing of Nadia. P.W.3 is Sajawal. He also saw Mst. Nadia soon after the occurrence and she disclosed the name of Iftikhar as accused alongwith 2/3 other persons. He also went to the house of Mst. Nadia and saw her husband and other worrying and missing of Mst. Nadia. Circumstantial evidence provided by P.W.2 and P.W.3 makes it quite clear that the occurrence had taken place as alleged by the prosecution.
13. So far as substitution of the real culprits is concerned, there is nothing on record to show that the complainant party had any motive for false implication of the appellants/accused. Even the defence witnesses have admitted that Mst. Nadia, Khan Ameer, husband, and other in-laws of Mst.
14. Nadia had no enmity with all the accused. They have though deposed that Mst. Nadia does not enjoy good reputation but they have not been able to substantiate their allegation by any cogent piece of evidence. The appellants/accused in their statements have made references to Ishaque and Zamurd against whom the complainant party had allegedly made complaints to squeeze money from them but they have given no proof in respect of the same. Even the D.Ws. Have made no statements in this respect. So far as the identification of appellant/accused is concerned no question about misidentification substitution of the accused has been put to any one of the witnesses. Since the accused belong to same locality there was no reason for the complainant for mistake identity of these persons. Therefore, we have come to the conclusion that the prosecution has established its case against the appellants/accused beyond any reasonable doubt. However, keeping in view of the circumstances of the case we are inclined to reduce the sentences of the appellants/accused.
6. Consequently for the reasons stated above, we maintain conviction of the appellants but reduce the sentences awarded to the appellants as mentioned hereinunder:--
(1) Muhammad Iftikhar
(2) Hamad HussainUnder section 18 read with section 10(3) of the said Ordinance to 4 years' R.I.
15. Under section 11 of the said Ordinance to four years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
(3) Muhammad'
16. Hanif
(4) Muhammad AzadUnder section 324/34, P.P.C. to two years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
17. Under section 454, P.P.C. to two years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
18. Under section 11 of the said Ordinance to tour years' R.I. and a fine of Rs. 10.000 or in default six months' R.I.
19. Under section 324/34, P.P.C. to two years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
20. Under section 454, P.P.C. to two years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
21. Under section 324/34, P. P.C. to two years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
22. Under section 342/34, P.P.C. to two years' R.I. and a fine of Rs. 10,000 or in default six months' R.I.
23. ' The sentence of whipping in all counts are set aside as no more legally required. The sentences of Muhammad Iftikhar and Hamad Hussain shall run concurrently. The benefit of section 382-B, Cr.P.C.
24. Extended to the appellant/accused by the trial shall remain intact. With the aforementioned modifications the appeal is dismissed.
25. Sentences reduced.