' M. NAEEMULLAH KHAN SHERWANI, J.---The way in which this appeal arises is this. Asghar Ali alias Shashu son of Shera, Saifullah son of Shan Muhammad and Hamid son of Sher Muhammad were tried by learned Judge, Special Court, constituted under the Anti-Terrorism Act, 1997 at Sargodha for committing Zina-bil-Jabr with Mst. Farzana and Mst. Fazeelat after committing criminal trespass into house of Sher Muhammad complainant. By virtue of his judgment. Dated 17-8-2000, the said learned Judge found them guilty of the said charges, convicted and sentenced them as under:-- ' Under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance No, VII, 1979: ' Asghar Ali and Hamid accused to death. Saifullah accused to undergo imprisonment for life under section 10(4) (ibid) read with section 18 of the Ordinance'.
' Under section 452, P.P.C.:.
' All the accused to undergo rigorous imprisonment for seven years each and fine of Rs,10,000 each or in default thereof to further undergo rigorous imprisonment for three months each.
2. Murder Reference No,453-T of 2000 seeks confirmation of said sentence of death awarded to Asghar Ali and Hamid convicts whereby filing Criminal Appeal No,1238 of 2000 all the aforementioned convicts have approached this Court to call in question convictions and sentences passed against them by the said learned Judge. We propose to dispose of both these matters together through this single judgment.
3. Occurrence of the alleged incident took place on 12-11-1999 at 1.00 a.m. (night) within the area of village Kot Momin District Sargodha, situate at a distance of one furlong from Police Station Kot Momin. The said occurrence was reported by Sher Muhammad, complainant to Muhammad Anwar Khan, S.I. (P.W.9) on 22-11-1999 at 10.30 a.m. At Midh More Chowk Kot Momin. The said police official recorded his statement (Exh. P.F.) and despatched the same to the police station through some constable for formal registration of a case. Consequent upon receipt thereof Nazar Iqbal, A.S.I. (not produced) drew up F.I.R. (Exh. P.F./1) on 22-11-1999 at 11.10 a.m. Without any addition or subtraction on his part.
4. Sher Muhammad complainant (P.W.4), who is a Labourer by profession, puts the matter succinctly by stating before the police official that on 20-11-1999, he left for village Ahli Rawana to attend a marriage ceremony. His wife Mst. Sahiran Bibi, daughter Mst. Farzana Bibi, aged 18/19 years, and grand-daughter Mst. Fazeelat Bibi, aged 15/16 years, were available in house, Mst.
Farzana Bibi and Mst. Fazeelat were still unmarried. On the night intervening 20/21-11-1999 at about 1.00 a.m. Appellants, namely, Hamid, Saifullah and Asghar Ali alias Shashu arrived in his house.
Asghar Ali alias Shashu was armed with a .12 bore double barrel gun. They entered into residential portion of his house (Kotha), where Mst. Farzanad and Mst. Fazeelat Bibi were sleeping. All the three started committing Zina-bil-Jabr with them. All the three ladies raised a commotion. Muhammad Ibrahim also arrived on hearing alarm raised by the ladies. Occurrence was witnessed by Muhammad Ibrahim and Mst. Sahiran Bibi. All the accused on catching sight, of Muhammad Ibrahim P.W. Successfully made good their escape. The complainant was informed of the occurrence. He on reaching home satisfied himself with regard to the excesses committed by the accused. He then reported the matter to the police for an appropriate legal action against them.
5. After recording statement of first informant, Muhammad Anwar Khan, S.I. (P.W.9) rushed to the place of occurrence and prepared rough site plan (Exh.P.G.) of the place of occurrence. He deputed Ghulam Naqi, constable (P.W.3) to get Mst. Farzana and Mst. Fazeelat medically examined Ghulam Naqi, constable produced before him two sealed envelopes containing vaginal swabs which were taken into possession by him vide memo. (Exh.P.D.). On 25-11-1999 he arrested Asghar Ali accused. At the time of his arrest Asghar Ali accused produced before him 12 bore gun (P.1) alongwith its licence which were taken into possession by him vide memo. (Exh, P.E.) duly attested by Ghulam Naqi, constable (P.W.3) and Muhammad Ramzan, constable (not produced). He arrested Hamid and Saifullah accused on the same day. He got them medically examined with regard to their potency. He examined all the relevant witnesses under section 161, Cr.P.C. After completion of investigation, he submitted challan against the accused.
6. The learned trial Judge took cognizance of the case on receipt thereof. After observing all the legal formalities, charge against the accused was framed and put to them. They emphatically denied correctness of all the allegations and claimed to be tried. Prosecution was forthwith directed to produce evidence of its choice to bring home guilt to the accused which it did.
Prosecution produced as many as nine witnesses to achieve its goal.
7. Dr. Lubna Parvez (P.W.10) medically examined Mst. Farzana daughter of Sher Muhammad on 22- 11-1999. According to her, no marks of violence were present on the body of victim of sexual assault.
Three, vaginal swa bs were taken which were found to be stained with semen. She prepared medico-legal report (Exh. P.K.).
' On the same day she medically examined 'Mst. Fazeelat daughter of Muhammad Ibrahim. There were no marks of violence on her body. According to her, hymen seemed to be intact. Vagina Vulna was O.K. Vagina admitted one finger with pain. Three vaginal swabs were taken, which were found not to be stained with semen. According to her, she seemed not to be subjected to sexual intercourse. She prepared her report (Exh. P.M.).
8. P.W.6 Mst. Farzana and P.W.7 Mst. Fazeelat narrated the story of their suffering at the hands of the accused. P.W.4 Sher Muhammad, complainant and P.W.5 Ibrahim in a nutshell reiterated story of the F . I . R . P.W.1 Dr. Nayyar Abbas Khan medically examined all the accused and found them fit to perform sexual intercourse. The evidence of remaining witnesses is of formal nature. Which is not required to be discussed.
9. The learned Prosecutor gave up remaining witnesses as being unnecessary and after tendering in evidence reports of Chemical Examiner (Exhs. P.L. And P.M.) declared the prosecution case close.
10. Trial now entered into the next crucial stage, which pertained to examination of accused under section 342, Cr.P.C. All the incriminating evidence was brought to their notice to enable them to understand it and to offer handsome explanation with regard to the crime imputed to them. They denied correctness of all the allegations levelled against them and proclaimed their absolute innocence in, the matter. They opted not to make statements on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C. Asghar Ali accused produced Manzoor Hussain (D. W.1) and Saddique (D.W.2) in his defence.
11. The trial Court after hearing both the sides wrapped up the trial by convicting the appellants as aforementioned.
12. Learned counsel for the appellants in his attractive arguments to this Court puts the matter like this:---
(i) That there is a colossal delay of hours in lodging of first information report with the police, which casts a reasonable suspicion upon genuineness and correctness of prosecution story. F .1. R. Has not been made by an eye-witnesses. It is based upon hearsay.
(ii) That medical evidence in respect of Fazeelat Bibi (P.W.7) clearly indicates that she was not subjected to sexual intercourse although it was so stated in the F.I.R. Accused remained in the house of the complainant for about thirty minutes during which, Saifullah made violent attempts to perform sexual intercourse with Fazeelat Bibi but badly failed to do so because of resistance offered by her. Had it been so, marks of violence should have been noticed by the examining lady Doctor.
(iii) That appellants were not known to both the victims of sexual assault. No source of light was ever mentioned by the complainant in the First Information Report or even by the witnesses. It is only for the first time that Saira Bibi introduced the factum of availability of light in the room. This is a deliberate and dishonest improvement, which cannot be considered.
(iv) That neither Farzana produced her clothes which she was wearing at the time of occurrence before the police not before the lady Doctor. The Investigating Officer did not take into possession cot and bedding on which sex crime was committed by Asghar Ali and Hamid appellants. Semen should have been available on the bedding of Farzana Bibi.
(v) That door and windows of the room were bolted from inside but no explanation has been offered by the prosecution as to how the appellants effected their entry into the room. Investigating Officer failed to collect evidence on this aspect of the matter.
(vi) Lastly he submits that prosecution had miserably failed to establish its case against the appellants beyond any shadow of doubt and prays for their acquittal.
12. On the contrary, learned counsel for the State assisted by learned counsel for the complainant submits that the complainant side had no enmity against the appellants. They had no motive to wish them maximum harm by implicating them falsely in this case. By bringing a false charge of sexual assault, no person would like to cause destruction of his respect and honour in the society.
The appellants belong to same village, so their whereabouts were fully known to the Witnesses.
There is no question of mistaken identity of the appellants. They duly support judgment of the trial Court.
13. We have with full care and devotion heard and considered respective arguments of both the sides. We have also gone through the evidence with able assistance of their learned counsel. In order to ascertain truth behind the matter we would like to furnish backdrop of the prosecution story, which is the following:-- ' Neither Sher Muhammad complainant (P. W.4) nor Muhammad Ibrahim (P.W.5) witnessed sexual assault being committed upon the ladies. Whatever complainant alleged in the First Information Report or before the trial Court is based upon hearsay. Muhammad Ibrahim was attracted to the spot by hearing commotion raised by the two ladies and Saira Bibi. He simply saw the appellants levanting from the scene of crime. He gained knowledge about the occurrence from the ladies and then informed Sher Muhammad complainant in village Ahh Rawana. Fazeelat Bibi is daughter of Muhammad Ibrahim (P.W.5) whereas Farzana is daughter of Sher Muhammad complainant (P.W.4). Muhammad Ibrahim was attracted to the spot when sex game had come to an end. Ladies narrated story of their sufferings before him. Thus would be most relevant under Article 19 of the Qanun-e-Shahadat Order, 1984. All the three ladies were available in a room of complainant's house. They were fast asleep. At about 1.00 a.m. (night) Farzana woke up and saw Asghar Ali accused standing nearby her. He committed sexual intercourse with her. Saifullah did his best to launch a sexual assault upon Mst. Fazeelat (P.W.7) but. She successfully frustrated his attempt to do so. Hamid was the next to commit sexual assault upon her. Asghar All was armed with a gun.
Noise raised by the ladies attracted Muhammad Ibrahim. He was furnished details of the occurrence by this witness. She narrated the incident to her father as well. She ,supported her version before the police. Both the ladies were sent to the concerned medical authority for their medical examination. Lady Doctor after taking everything into her full consideration including report of the Chemical Examiner opined that sex crime had been committed with Farzana. The same lady Doctor furnished a negative report about Fazeelat Bibi. No rape was committed with her.
Mst. Farzana did not bring accusation of rape against Saifullah.
14. Our full quantum of analysis of evidence tells us that occurrence in question took place in a room of the complainant's house where presence of Saira Bibi. Farzana and Fazeelat Bibi cannot be doubted. They are natural witnesses of the occurrence. Both the ladies have furnished full account of the occurrence. Likewise Fazeelat Bibi and Saira Bibi also wholeheartedly, supported the prosecution version. One thing which weights heavily against the appellants is that all these witnesses had no grudge, grouse, malice or spite against the appellants. They could not give false voucher against them at the cost of doing away with their respect, career and family honour.
Damnably false and scandalous plea was raised by the accused in their statements under section 342, Cr.P.C. That Farzana had sexual connection with one Sher Muhammad Malkana Lak. There is no evidence to prove that the complainant side had become instrumental in the hands of Sher Muhammad Malkana. The defence has not been able to shatter prosecution version at all.
Testimony of prosecution witnesses remained unshaken although the witnesses were cross- examined at length. Statement of Farzana Bibi duly corroborated by the medial evidence report of Chemical Examiner and other witnesses. The prosecution version could not be broken even during course of investigation. Had this story been false, unreal and invented one, then people of that locality would not have bothered to appear before the Investigating Officer or stage their protest before the high ups. All the witnesses are honest and truthful. They cannot be branded as prejurers.
Accused, three in number, may have used some device to open door of the room. It is not impossible thing to open the door. They all came determined to accomplish their ignoble design and achieve success in that direction. We have no-doubts in our minds with regard to reality of prosecution story. We have no other option but to dismiss their appeal while maintaining their convictions and sentences option.
15. The learned trial Judge adopted quite an erroneous view of law while convicting the appellants under section 452, P.P.C. In our view they should have been convicted for an offence under section 458, P.P.C. Because all the essential ingredients of section 458, P.P.C. Are abundantly available in facts and circumstances of this case. Accordingly, we convert their conviction from section 452, P.P.C. To section 458, P.P.C. But we are not inclined to enhance quantum of sentence passed against him.
16. For all these reasons, this appeal is dismissed. Death sentence is confirmed and murder reference is answered in the affirmative.