1. ' BASHIR A. MUJAHID, J.---Allah Rakha son of Sultan, Muhammad Habib son of Sabir Ali were tried under sections 457/392/34 and 411, P.P.C. Read with section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) by Judge, Anti-Terrorism Court, Bahawalpur Division, Bahawalpur in case F.I.R. No,37 of 2000, dated 1-3-2000 registered at Police Station Donga Bonga at the instance of Bashiran Bibi and were convicted vide impugned judgment dated 7-10-2000 and sentenced as under:-- ' Under section 457/34, P.P.C.
2. ' Allah Rakha and Muhamamd Habib accused to 10 years' R.I. And fine of Rs,20,000 each and in default thereof they shall further undergo 2/1-2 years' S.I. Each.
3. ' Under section 392/34, P.P.C.
4. ' Allah Rakha and Muhamamd Habib to 10 years' R.I. And fine of Rs'.20,000 each and in default thereof they shall further undergo 2/1-2 years' S.I. Each.
5. ' Under section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
6. ' Allah Rakha to death for commission of gang rape with Mst. Bashiran Bibi.
7. ' Under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979):-- ' Muhammad Habib to 25 years' R.I. With thirty stripes for commission of Zina-bil-Jabr with Mst.
8. Kausar Bibi.
9. ' Under section 411, P.P.C.
10. ' Allah Rakha and Muhammad Habib to three years' R.I. Each and fine of Rs,10,000 each and in default thereof they shall further undergo nine months' S.I. Each. Sentence other than death were ordered to run concurrently.
11. ' They were extended the benefit of section 382-B, Cr.P.C.
12. ' F.I.R. Exh.PL/1 was registered on 1-3-2000 on the basis of written application Exh.PL moved by Mst.
13. Bashiran Bibi P.W.8 stating therein that she is resident of Mauza Khatan, Ghulam Nabi her husband died about 8 years ago who was owner of land measuring 13 acres wherein she had built up her residence and was residing alongwith her son Shahzad aged 8 years and her daughter Mst. Kausar Bibi aged 15/16 years. About three months prior to the registration of case the complainant alongwith her children were sleeping in their residential Kotha and about 12-30 mid-night, four persons armed with deadly weapons entered into the room after breaking the door and made them stand on one side. Out of the assailants one person kept on guard while the others broke the locks of iron boxes and looted one pocket watch, one radio National two bands, 4/5 pairs of unstiched clothes and cash amount of Rs,5,000. Thereafter air-rings worn by the complainant and her daughter weighing about 1/1-2 tolas and a pair of tangle weighing 4 M'ashas were also removed by them. Hands and legs of the complainant and her daughter were tied and were subjected to Zina-bil-Jabr. On raising hue and cry Muhammad Yousaf and Obaid Ullah and many other persons from nearby Deras were attracted to the place of occurrence, they also saw the occurrence. The accused fled away by extending threats that if informed the police, they will be done to death. Muhammad Yousaf and Obaid Ullah untied the complainant and her daughter.
14. They kept on searching the accused of their own without intimating anyone due to their honour.
15. Now they have identified the accused as Ali Sher, Muhammad Abbas sons of Faiz Muhammad caste Kharan, resident of Murad Kharal and Muhammad Habib son of Sabir Ali, caste Baitu, resident of Faisal Colony, Bahawalnagar and Allah Rakha, son of Sultan, caste Arain, resident of Jamalpur Police Station, Qaimpur. It was further alleged that Muhammad Habib and Muhammad Abbas accused had committed Zina-bil-Jabr with Kausar Bibi daughter of the complainant while Ali Sher and Allah Rakha committed Zina-bil-Jabr with the complainant.
16. ' Saleh Muhammad, S.-I./S.H.O. P.W.7 after registration of case arrived at the place of occurrence and on the same day i,e, 1-3-2000 he got medically examined Bashiran Bibi and Kausar Bibi through Dr. Shahnaz Manzoor P.W.2 who after examination of Bashiran Bibi P. W.8 observed: -- ' Labia majora covers labia minera. Hymen torn, Tears were old and healed. Vagina admits two fingers easily. 3 vaginal swa bs were taken and sent to Chemical Examiner for detection of semen, blood etc. ' According to the report of Chemical Examiner the examinee was subjected to sexual intercourse in the recent past.
17. ' On the same day the same doctor also medically examined Mst. Kausar Bibi daughter of Ghulam Nabi and found her hymen intact. No fresh or old tear. Three vaginal swabs were taken and were sent for chemical examination and as per report of the Chemical Examiner Kausar Bibi was not subjected to sexcual intercourse and report was in the negative. She also not found any mark of violence on the person of Kausar Bibi.
18. ' On 21-3-2000 the investigation was transferred to Muhammad Yousaf P.W.13 who on 2-4-2000 arrested Allah Rakha and Muhammad Habib accused and on 3-4-2000 their physical remand was obtained. Allah Rakha accused on 4-4-2000 while in police 'custody led to the recovery of Radio 2 band National Brand P1 and three lady unstitched suits P.2 which were taken into possession vide memo. Exh.PJ. On the same day Muhammad Habib accused while in police custody also led to the recovery of 2 ladies suits P.4 and one pair of golden ear-rings P.3 from his house which were taken into possession vide Memo. Exh.PK.
19. ' Prior to registration of present case, F.I.R. No,36 was got recorded at the same police station by Lal Din against the same accused for committing dacoity and gang rape with Munira Bibi and Amina Bibi wives of said Lall Din. The present appellants were also convicted by the same trial Court vide judgment dated 7-10-2000 and they have challenged their conviction in the said case through Criminal Appeals Nos.55-J of 2000 and 21-J of 2001 which are also being decided today by us by a separate judgment.
20. ' Ali Sher and Muhammad Abbas accused were not arrested and were declared proclaimed offenders.
21. ' After completion of investigation the accused were challaned to face the trial.
22. ' The prosecution examined as many as 13 witnesses to prove the guilt of the accused. Dr. Afzal Bashir was examined as P.W.1 who had medically examined both the appellants Muhammad Habib and. Allah Rakha and found them potent and capable to perform sexual intercourse. Muhammad Aslam, FC was examined as P.W.6 who had attested the recovery by the appellants of looted artilces. Mst. Bashiran Bibi complainant was examined as P.W.8 who supported the version of the F.I.R. She also admitted in her cross-examination that Lal Khan complainant of case( F.I.R. No, 36 of 2000 is her cousin while Ramzan P.W. In the said F.I.R. Is her real brother, Kausar Bibi daughter of the complainant was examined as P.W.9. She also supported the complainant for commission of dacoity by the appellants alongwith their absconding co-accused levelled the allegation of commission of Zina-bil-Jabr against Habib appellant with her. Muhammad Yousaf was examined as P.W.10 who claimed to be the eye-witnesses of the alleged occurrence and he alongwith Obaid Ullah P. W.11 on hearing hue and cry arrived at the place of occurrence and untied the complainant and her daughter. Statement of Abaid Ullah P.W.11 was also in line with the statement of Muhammad Yousaf P. W.10 but he further stated that Ali Sher accused had approached him at his Dera and confessed his guilt for commission of present crime alongwith his other three co- accused. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exhs.PD and PF.
23. ' Statements of the accused were recorded under section 342, Cr.P.C. They denied the charge and claimed their innocence and false involvement.
24. ' Muhammad Habib in reply to the relevant question, we case against him, stated that one Manzoor Sahi had to pay some amount for getting his clothes stitched from the appellant which was demanded by him but he was provocated, who had friendly relations with Qudrat Ullah, A.S.-I. Who came alongwith said Manzoor to the shop of the complainant and there was exchange of hot words on which the appellant was falsely involved in this case. Allah Rakha accused stated that he and his wife were serving, as domestic servants with Qudrat Ullah, A.S.-I. Who used to patronize dacoties. The appellant was offered to participate in the commission of dacoity with his men but he refused on which he was involved falsely in the instant case by Qudrat Ullah, A.S.-I.
25. ' The trial culminated into conviction as mentioned above.
26. ' The appellants have filed Criminal Appeals Nos. 54-J of 2000 and 21-J of 2001 challenging their conviction while the trial Court has sent up Murder Reference No,9 of 2000 for confirmation of death sentence under section 374, Cr.P.C. Both the matters are being decided by this single judgment.
27. ' Learned counsel for the appellants has argued that the case was registered with unexplained inordinate delay of three months, that as per medical report Kausar Bibi was not subjected to Zina- bil-Jabr. Regarding Bashiran Bibi she was widow. Although report of chemical examiner is in positive but after three months the finding of swabs stained with semen is not possible therefore, the report is false and obtained to implicate the appellants in heinous crime. There are material contradictions in the statements of the prosecution witnesses. Bashiran Bibi stated that she has only one residential room but Kausar Bibi P.W.9 stated that they have four rooms at their Dera. It has been stated by both the witnesses P.W.8 and P.W.9 that their legs and hands were tied by the accused, and were untied by P.W.10 and P.W.11 but have admitted that they had worn their Shalwars before arrival of the prosecution witnesses which was not possible if their hands and legs were tied, that the prosecution witnesses are closely related inter se and their testimony has not been corroborated from any independent source. The prosecution case is doubtful and their conviction is not sustainable in the eye of law.
28. ' Conversely the appeals have been opposed by the learned Law Officer who has supported the impugned judgment.
29. ' Heard. Record perused.
30. The ocular account furnished by Bashiran Bibi P.W.8 and Kausar Bibi P.W.9 for commission of Zina- bil-Jabr by the accused have not been corroborated by the medical evidence. As per statement of Dr. Shahnaz Manzoor P.W.2 Kausar Bibi was not subjected to sexual intercourse as her hyman was intact and there was no mark of violence or injury found on her body. As far as allegation of Zina- bil-Jabr with Bashiran Bibi P.W.8 is concerned, the alleged occurrence took place three months before the registration of case. No mark of violence on her private part was noticed by the doctor. It was not possible that after three months the swabs could be found stained with semen. Therefore, this allegation appears to be doubtful and the benefit of doubt is to be extended to the accused/appellant. We are convinced that the offence of Zina-bil-Jabr has not been proved against the appellants beyond reasonable doubt. Therefore, both the appellants are acquitted from the charge under sections 10(3) and 10(4), Offence of Zina (Enforcement of Hudood)
31. Ordinance, (VII of 1979) by setting aside their conviction and sentence.
32. ' As far as the commission of dacoity is concerned the ocular account furnished by Bashiran Bibi P.W.8 and Kausar Bibi has been fully corroborated by recovery of looted articles. There is no reason to substitute or falsely implicate the appellants. Therefore, the conviction and sentence under sections 457/392/34, P.P.C. Is proper and justified and the same maintained. However, the sentences are ordered to run concurrently. The punishment of fine or in default thereof is also maintained. The conviction under section 411, P.P.C. Is not sustainable under the law, being illegal, therefore, it is set aside.
33. ' These appeals are dismissed with the above modification and death sentence of Allah Rakha is not confirmed.
34. ' Murder Reference is answered in the negative.