' MUHAMMAD FARRUKH MAHMUD, L---The appellants namely Dilbeer Hussain son of Sardar Muhammad, Muhammad Irfan son of Muhammad Akram, Muhammad Ilyas son of Rehmat Ali and Muhammad Yousuf son of Muhammad Ramzan, have challenged the judgment dated 11-12-1999 rendered by Rana Zahid Mehmood, Judge, Anti-Terrorism Court No,1, Multan, whereby he convicted the appellants under section 10 (4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced each of them to death. The appellants were also convicted under section 449/34, P.P.C. And sentenced to seven years' rigorous imprisonment each with a fine of Rs, 20,000 each. Half of the fine if recovered was to be paid to the victim and in default of payment of fine, the appellants were to further undergo rigorous imprisonment for two years.
2. The instant appeal and the ATC/MN 'Reference No,1 of 1999 are being decided through this single judgment.
3. The occurrence took place in the cattle-shed belonging to complainant Sardar Ahmad P.W. 1 situated in the vicinity of Chak No, 357/WB within the territorial jurisdiction of Police Station Saddar, Dunyapur.
4. The law was set in motion when P. W.1, Sardar Ahmad appeared before Fayyaz Hussain, S.-I. P.W.
11, who on 12-7-1998 at about 11-30 a.m. Was present at Adda Chak No, 357/WB, Basti Malook Road and handed over him a written application Exh.PA on the basis of which Saghir Hussain, Head Constable, Muharrar registered the formal F.I.R. No, 423/1998 Exh.P.A/1 at Police Station Saddar, Dunyapur, for offences under section 10(4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, read with section 292, P.P.C.
5. According to the complaint Exh.P.A Sardar Ahmad was at Multan in lieu of service on 2-7-1998 and his parents had gone to the fields for collecting fodder when the appellants reached his house and forcibly abducted his unmarried sister Mst. Safia Bibi P.W. 3 Rican the house and was taken to the cattle-shed, where the appellants committed Zina-Bil-Jabr with her turn by turn at the strength of a Revolver. It was further stated that the appellants were having a camera at that time and Dilbeer Hussain appellant had been taking nude photographs of Mst. Safia Bibi. It was also stated that the appellants had been threatening Mst. Safia Bibi that in case she disclosed the occurrence to anyone her nude pictures would be shown and she would be unable to marry any one.
According to Exh.P.B the photographs taken on the day of occurrence were handed over to the complainant in the presence of Rehmat Ali and Haji Ghulam Haider (Haider Ali). The appellants also admitted the commission of Zina and asked for forgiveness. On the same day Sardar Ahmad, complainant P.W.1 produced six coloured nude photographs PI to P6 of Mst. Safia Bibi, allegedly taken by Dilbeer Hssain, appellant, before the police which were taken into possession by Fayyaz Hussain, S.-I. P.W.11 vide memo. Exh.P.B, which was signed by Haider Ali, who appeared as P.W. 2 and Rehmat Ali who was given up.
6. After his arrest the appellant Dilbeer Hussain led to the recovery of one camera P-2 from his shop and the same was taken into possession vide memo. Exh.P.0 signed by P.W. 1 and Munawar Hussain P.W. 14 and one Rehmat Ali, who was given up. Dilbeer Hussain appellant also led to the recovery of one Revolver P-3 lying in a box in his residential room on 23-7-1998 vide memo. Exh.P.J attested by Ghulam Hur, Constable P.W.9 and Munawar Hussain, S.-I., P.W: 14.
7. Mst. Safia Bibi, victim/P.W.3 was medically examined by Lady Doctor Robina Munir P.W. 6 on 16-7- 1998 at about 2-00 p.m. And medico-legal report Exh.P.G was prepared. The appellants Muhammad Irfan, Muhammad Ilyas and Dilbeer Hussain were also medically examined and were found potent.
8. After the completion of investigation the appellants were sent up for trial, who denied the charge and the trial commenced.
9. During trial the prosecution produced 14-witnesses in support of its case. P.W.3 Mst. Safia Bibi appeared as eyewitness and victim of the occurrence. Sardar Ahmad P.W. 1 appeared as complainant of the case. P.W. 2 Haider Ai supported the story of Punchait and handing over the nude photographs. P.W. 6 Lady Doctor Robina. Munir, P.W.7, Dr. Khalid Iqbal and P.W.
8. Dr. Muhammad Akhtar Shahzad, furnished the medical evidence Ghulam Hur, Constable P.W. 9 stated about the recovery of Revolver. P.W. 11 Fayyaz Hussain, S.-I. Stated about the receipt of complaint and the photographs. P.W. 14 Munawar Hussain, S.-I. Appeared as Investigating Officer.
After tendering medico-legal reports and the report of Chemical. Examiner Exh.PE, the prosecution closed its case.
10. The statements of the appellants were recorded under section 342, Cr.P.C. Muhammad Irfan, appellant, stated that the case was cooked up against him at the instance of Rehmat Ali, brother- in-law of Mst. Safia Bibi, who owed an amount of Rs,30,000 from him. He also stated that it was Rehmat Ali who had forcibly taken photographs in order to blackmail him. He further stated that subsequently Rehmat Ali took articles from the shop of Dilbeer Hussain, appellant, who was a friend of Muhammad Irfan. He also stated that he and Dilbeer Hussain were innocent. Muhammad Yousuf completely denied the occurrence and stated that he was involved in the case as he had close relations with Dilbeer Hussain. Dilbeer Hussain appellant stated that he was involved in the case at the instance of Rehmat Ali, brother-in-law of the victim, who owed some money from him.
Muhammad Ilyas, appellant, also stated that he was involved in the case because of his friendship with Dilbeer Hussain. The appellants did not appear as witnesses as contemplated by section 340(2), Cr.P.C. However, they produced Raj Ameer Khan, S.-I. As D.W.1, Syed Abdul Rehman Shah, Inspector, Police Line, Lodhran as D.W. 2 and .Muhammad Yousuf, DSP/OSD, Police Lahore, as D.W.3 in their defence, who stated that Muhammad Ilyas and Muhammad Yousuf appeared to be innocent in their investigations. Muhammad Ilyas also brought on record an, attested copy of discharge report as Exh.D.B.
11. The learned counsel for the appellants have argued the case in a very attractive manner and raised the following points:
(a) That the F.I.R. Was registered after a considerable delay, which was not explained at all.
(b) That it was not stated by Fayyaz Hussain, S.-I./P.W.11 while sending the complaint Exh.P.A to the police station that he had also received the nude photographs.
(c) That complainant was not an eyewitness and was away at Multan at the time of occurrence but parents of the victim were available nearby, who neither reported the matter to the police nor appeared as P.Ws.
(d) That the statement of Mst.Salia Bibivictim P.W.3 was not reliable as she never reported the matter to the police and the matter was reported to the police by her brother, her statement was not recorded by the police under section 161, Cr.P.C. For four days, therefore the same should be ruled out from the evidence. Reliance is placed on the case of Habib Ullah v. The State (PLD 1969 SC 127);
(e) That first story of the prosecution was that Mst. Safia Bibi was forcibly lifted from her house but during her statement Mst. Safia Bibi has admitted that she was present in the cattle-shed, when the occurrence took place; and
(t) That the medical evidence and the report of the Chemical Examiner belied the case of the prosecution. Hence the prosecution has failed to prove its case beyond doubt against the appellants.
12. On the other hand, Mr. Muhammad Sarwar Bhatti, the learned A.A.-G assisted by Sh. Muhammad Raheem, Advocate, for the State have argued that incriminating evidence beyond doubt was available against the appellants and they deserve no sympathy as they had ravished an unmarried girl.
13. We have heard the learned counsel for to parties at length, minutely gone through the evidence and record of the case as well as the impugned judgment.
14. The star witness of the case is P.W. 3 Mst. Safia Bibi-victim aged about 17/18 years, who was unmarried at the time of occurrence. She has testified against all the appellants. She was cross- examined at length by different learned counsel representing each of the appellants. She stood test of cross- A examination and nothing could be brought on record as to why she should involve the appellants in this case falsely. There is no Previous or enmity between the P.Ws., parents and brother of Mst. Safia Bibi and the appellants. The appellants are not related inter se and have no relations with another except that they are friends and it has been proved that they were overpowered with lust and ravished P.W.
3. Despite cross-examination by four different learned counsel no discrepancies could be brought on record except that according to F.I.R. The victim was lifted from her house but during cross- examination P.W. 3 stated that she was present in the cattle-shed when she was criminally assaulted by the appellants. Much emphasis has been laid on the point that the victim did not raise alarm but this point has no force as one of the appellants was armed with Revolver and in the presence of a firearm weapon only a person who wants to commit suicide would raise alarm. Even otherwise a girl of 17/18 years was within the grip of four persons/appellants, who raped her turn by turn and during rape, it is in the evidence that revolver was pointed by different appellants towards the victim. She was fully conscious that the appellants were equipped with fire-arm and in case of raising alarm, she would lose her life.
15. We feel unfortunate to have examined the nude photographs of the victim taken by the police., All the photographs show that the victim was over-powered and was under great shock. In these circumstances the delay in recording the statement of Mst. Safia Bibi under section 161, Cr.P.C. By the police office loses its significance
16. The delay in lodging the F.I.R. Stands explained by P.W. 1 as well as by the existing circumstances of the case. According to the evidence the victim had narrated the incident to her parents and her brother P.W. 1, and brother of the complainant was fully aware of the value of the society. He had been rightly trying to get back nude photographs of Mst. Safia Bibi from the appellants. As it is mentioned in the F.I.R. That the appellants had threatened the victim that in case the matter was reported to the police her nude photographs would be made public and she would not be able to marry with any one, it was for that reason that the family members of the victim tried their level best to get back the nude photographs and after the same were handed over by the father of Dilbeer Hussain, appellant, they reported the matter to the police. On the same day the nude photographs P. 1 to P.6 were taken into possession by Fayyaz Hussain P.W. 11, who received the same vide memo. Exh P.B. P.W. 1 has no enmity whatsoever with the appellant to involve them in this case falsely and in the absence of previous enmity, the point raised by the learned counsel for the appellants that F.I.R. Was not reliable as the same was lodged after a considerable delay loses its sting. Reliance is placed on the case of Ajaib alias Ajab v. The State 1994 SCM R 1479, wherein it was held that "delay in F.I.R. Assumes importance where the parties are inimical". Similar view was expressed by the Division Bench of Peshawar High Court in the case of Sultan Muhammad v. The State (1991 PCr.U.56). During cross-examination the appellants could not point out any cogent reason for their false involvement in the case by this P.W.
17. The medical evidence in this case also supports the prosecution version. P.W.6 Lady Doctor Robina Munir 'examined Mst. Safia Bibi P.W. 3 and described her as a young girl. According to medico-legal report Exh.P.D. Her age was given as 20 years and her hymen was torn.
18. Dilbeer Hussain, appellant, was arrested on 22-3-1998 and led to the recovery of Revolver P-3 on 23-7-1998 from his residential room. P.W. 7 Dr. Khalid Iqbal and P.W. 8 Dr. Muhammad Akhtar Shahzad stated that Dilbeer Hussain, Muhammad 'Ilan and Muhammad Ilyas, appellants were potent. As far as Muhammad Yousuf is concerned, he was not examined by the Doctor but he never took the stance that he was impotent.
19. Three D.W.s. Who are police officers and produced by the appellants stated that Ilyas and.
Yousuf appellants were found innocent during investigation. D.W.1 during cross-examination admitted that he had not recorded any Zimni and that challan had already been filed before the Court when he moved application for discharge of Muhammad Ilyas, appellant D.W. 2 also admitted that he gave no direction to S.H.O. After the investigation. He admitted that even he did not see the photographs taken by the police in possession and had based his conclusions on the statement of one Elam Din, who appeared on behalf of the appellants but he was never produced by the appellants during trial. D.W. 3 also admitted that the complainant's side did not join the investigation when he was incharge. In these circumstances, no importance can be given to the D.Ws.
20. None of the appellants appeared as witness in his own defence as contemplated by section 340(2), Cr. P.C. However, the appellants in their statements under section 342, Cr.P.C. Stated that they were roped in the case because of their friendship with one Dilbeer Hussain. It is further stated that Dilbeer Hussain had a dispute over some amount with one Rehmat Ali, brother-in-law of the complainant and the victim. Muhammad Irfan during his cross-examination had not stated that he had any enmity with one Rehmat Ali but in his examination-in-chief he took the stand that Rehmat Ali, brother-in-law of the victim owed Rs, 30,000 from him and therefore, he forcibly took him to his house and took his photographs along with twist. Safia Bibi forcibly in order to blackmail him. This stance taken by Muhammad Irfan appellant is simply revolting to the common sense and conscience. The parents of Mst. Razia Bibi were alive at the time of occurrence and Rehmat Ali was brother-in-law of Mst. Safia Bibi. It is unimaginable that Mst. Safia Bibi an unmarried lady would be used by her closest and dearest relations to implicate the appellants falsely. It appears that after commission of offence the appellants could not find any refuge to get out of it and therefore, tried to paint the P. Ws. Black. They have miserably failed in their attempt, as already stated above that none of the appellants could point out any enmity with P.W. 1 and P.W. 3, so as to involve them falsely in the case of such serious nature.
21. The upshot of the whole discussion is that the prosecution has proved its case against the appellants beyond doubt, therefore, we maintain the convictions of the appellants. However, we have given our anxious thought to the quantum of sentence. In the circumstances of the case there are mitigating circumstances available on the record so as not to warrant the capital sentence.
22. P.W. 6 Lady Doctor Robina Munir, who examined Mst. Safia Bibi, the victim of the case, stated that as per vaginal examination "Vagina admitted two fingers easily". According to the prosecution story, Mst. Safia Bibi was unmarried lady but medico-legal report shows that she had been committing sexual intercourse. There was no bleeding at the time of rape. According to the medical jurisprudence by Modi and Tailor "an unmarried lady would bleed profusely in the circumstances if raped by more than one persons. In other words Mst. Safia was not Masood-ud- dam. Reliance is placed on the case of State v. Muhammad Hanif and 5 others. (1992 SCM R 2047).
It is on the record that Mst. Safia Bibi entered into Nikah soon after registration of the case. The chatter was reported to the polices after a considerable delay, therefore, considering all the surrounding circumstances of the case and relying upon the cases of Syed Sohail Ahmed and another v. The State (2001 SCM R 2007) and Maqbool Ahmed and another v. The State 1998 M LD 1580 while maintaining the convictions of the appellants under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, we reduce the sentences of the appellants from death to imprisonment for life. Similarly we maintain the convictions and sentences of the appellants under section 449/ 34, P.P.C. The fine of Rs, 20,000 was imposed on each of the appellants and in default of payment thereof the appellants were to further undergo two years' R.I. We modify the period to be spent in Jail in default of payment of tine from two years' R.I. To six months' R.I. The benefit of section 382-B, Cr. P.C. Is extended to the appellants. The sentences would run concurrently.
23. With the above modification, this appeal is dismissed and the ATC/MN Reference No, 1 is answered in negative.
Sentence reduced.