M. NAEEMULLAH KHAN SHERWANI, J.---The way in which this appeal arises is this Ijaz Ahmad son of Faiz Bakhsh, Tahir Hussain son of Bashir Ahmad and Mst. Shahnaz Bibi wife of Muhammad Ismail were tried by learned Judge, Special Court No,IV, constituted under the Anti-Terrorism Act, 1997 at.
Lahore for enticing away Mst. Maqsoodan, committing theft in the house of Syed Amjad Hussain complainant and then Zina-bil-Jabr with her in a hotel at Vehari. By virtue of his judgment dated.
26-4-2000, the learned trial Judge found them guilty of the charges, convicted and sentenced them in the following manner. Under section 16 of Offence of Zina (Enforcemtnt of Huddood Ordinance No,VII of 1979).
All the accused were sentenced to rigorous imprisonment for seven years each and to pay a fine of Rs,20,000 each in default whereof to further undergo rigorous imprisonment for six months each.
Under section 380, P.P.C.
Ijaz Ahmad and Tahir Hussain were sentenced to rigorous imprisonment for seven years each with a fine of Rs, 20,000 each or in default where of to further undergo rigorous imprisonment for six months each.
Under section 10(4) of Ordinance No,VII of 1979 Ijaz Ahmad and Tahir Hussain were sentenced to death.
Sentences under section 16 of Ordinance No, VII of 1979 and section 380, P.P.C. were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to them.
2. Murder Reference No, 447-T of 2000 seeks confirmation of the said sentence of death awarded to Ijaz Ahmad and Tahir Hussain convicts, whereas they alongwith Mst. Shehnaz Bibi by, filing Criminal Appeal No,505 of 2000 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 16-10-1999 within the area of Zubair Block Dogaij Town, situate at a distance of three kilometers from Police Station North Cantt, District Lahore. The said occurrence was reported by Syed Amjad Hussain through a written application (Exh.P.A) to Abdul Ghafoor, A.S.-I. tP.W.4), Incharge Police Post Guldasht Town, Lahore on 22-10-1999, who after putting his endorsement despatched the same to the police station for formal registration of the case against the alleged wrong doers. Consequent upon receipt thereof at the police station, Muhammad Ashiq, A.S.-I. (P.W.8) drew up formal F.I.R. (Exh.P.A.1) without any addition or subtraction on his part.
4. Syed Amjad Hussain complainant puts the matter succinctly by stating that he is employed in veterinary hospital and resides in Zubair Block alongwith his family. Ijaz Ahmad was putting up with Noor Muhammad for the last about three/four months. Noor Muhammad is neighbour of the complainant. The family members of Noor Muhammad were on visiting terms with the complainant. With the help of Shehnaz Bibi, wife of Ismail, Ijaz Ahmed cultivated illicit liaison with his wife Mst. Maqsoodan Bibi. Complaint qua this fact was made to Noor Muhammad. Complainant reached at his house on 16-10-1999 at about 4-00 p.m. after being free from his duty. His wife and children were not available at home. He started inquiring about them. Muhammad Aslam, his brother and Imran Shah told him that they had seen Maqsoodan Bibi alongwith children and Shehnaz Bibi, Ijaz and Tariq boarding a bus at Ranger's Bus Stop. He checked up household luggage and found that Rs, 2,500 and clothes were missing. According to him, his wife had been abducted by Ijaz and others for the purpose of Zina.
5. After recording statement of first informant, Abdul Ghafoor, A.S.I. (P.W.4) left for the spot and conducted spot inspection and prepared rough site plan (Exh.P.E) of the place of occurrence.On 25-10-1999 he arrested Ijaz and recovered Mst. Maqsoodan Bibi alongwith her children vide memo.
(Exh.P.B) Ijaz accused got recovered pistol (P.1) which was taken into possession by him vide memo.. (Exh.P.C), duly attested by Muhammad Afzal (P.W.2) and Munawar Hussain (not produced).
On 1-11-1999 he arrested Tahir and Mst. Shehnaz accused. Tahir accused while in police custody led to the recovery of Rs,5,000 which was taken into possession by him through seizure memo..
(Exh.P.D), duly attested by Muhammad Afzal (P.W.2) and Muhammad Hand (not produced). After completion of the investigation, he submitted challan against the accused.
6. On receipt of challan, the learned trial Court framed charge against the accused, to which they pleaded not guilty and claimed to be tried. Then the prosecution was directed to lead its evidence.
The prosecution produced as many as nine witnesses.
7. Dr. Rukhsana Tabassum (P.W.9) medically examined Mst. Maqsoodan Bibi on 25-10-1999.
According to opinion of doctor her hymen was torn completely. Three vaginal swabs were taken, which were found to be stained with semen. P.W.1 Syed Amjad Hussain complainant P.W.2 Muhammad Afzal and P.W.3 Muhammad Aslam reiterated the story of F.I.R. P.W.5 Mst. Maqsoodan narrated the story of her sufferings at the hands of the accused. Her statement will be discussed in detail during appraisal of evidence.The evidence of remaining witnesses is of formal nature, which is not being discussed here.
8. The learned Prosecutor after tendering in evidence report of Chemical Examiner (Exh.P.K) declared the prosecution case close.
9. The accused were examined under section 342, Cr.P.C. They denied correctness of the allegation 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. They produced five witnesses in defence namely, Said Muhammad, Zaheor Hussain, Tasawar Hussain, Muhammad Yousaf and Haji Muhammad Ramzan (D.Ws. 1 to 5).
10.The trial Court after hearing both the sides wrapped up the trial by convicting the appellants as aforementioned.
11.Learned counsel appearing on behalf of the. appellants canvassed their acquittal on the following grounds:-
(i) That the prosecution story is not natural. It does not appeal to reason or logic. The prosecutrix starting right from her house to the Wagon Stop exhibited a strange conduct. She raised no hue and cry. This conduct is unnatural and makes the prosecution story doubtful. Thereafter, she travelled up to Vehari, where she stayed in a hotel and appelants allegedly committed Zina with her. Through out this period, she did not raise noise to attract anyone. Had this been actual story of the occurrence, then she would have done something to secure release from clutches of the appellants. This story of behavior is not believable.
(ii)That there is a considerable delay in lodging of the F.I.R. which throws a cloud of doubt upon genuineness and correctness of the prosecution story.
(iii)That entire evidence has been fabricated by the police in collaboration with the complainant.
Evidence adduced on behalf of the complainant is not sufficient and as such no conviction could be made on its basis.
12.On the contrary learned counsel for the State submits that delay, which occasioned in lodging of the F.I.R., has been sufficiently explained, that the story was natural and was not contradicted by the physical circumstances of the case; and that appellants taking advantage of mutual relationship with his neighbours became successful in committing this crime when complainant was not available in his house. He submits that witnesses have categorically supported the prosecution version. He supports judgment of the trial Court.
13.We have with full care and devotion heard and considered respective arguments of both the sides. Our minute scrutiny of evidence reveals that there was absolutely no earthly reason with the complainant, prosecutrix and other witnesses to depose falsely against the appellants to wish them maximum harm. No reason is forthcoming as to why they should have falsely and maliciously implicated the appellants in this case. Ijaz Ahmad was living with his relative Noor Muhammad a neighbour of the complainant. Both the families were on visiting terms with each other. Ijaz Ahmad somehow or the other managed to have an excess to the prosecutrix through Mst.Shehnaz Bibi, who pestered Mst. Maqsoodan Bibi to obtain divorce from her husband and marry Ijaz appellant. On 16-10-1999 Syed Amjad Hussain complainant kept a sum of Rs, 25,000 in his house. The appellants somehow or other came to know about it. In the absence of complainant, the appellants visited her house. They asked Mst. Maqsooaan Bibi to deliver the said amount to them on pistol-point. They issued horrible threats to the effect that if she did not deliver said amount to them, they would kill her and her children. Put in this situation, she readily agreed to hand over an amount of Rs, 25,000 to them. Thereafter, accused left her house by taking her along with children. They asked the prosecutrix to follow them to the wagon stand otherwise her children would be murdered. Mst. Shehnaz Bibi took her to the wagon stand, where Ijaz and Tahir were already present. They took her to Vehari along with her children. She was accommodated in a hotel at Vehari for about 8/9 days. Both appellants subjected her to sexual intercourse. Thereafter, they brought her back to Lahore and when they were present at the railway station, the complainant alongwith P.Ws. and police party reached there. On catching sight of the police party, Tahir Hussain appellant levanted whereas Ijaz Ahmad appellant was taken into custody Ijaz and Mst. Maqsoodan Bibi were taken to the police post. She was got medically examined on that very day. She was also produced before Magistrate but she was not mentally alert as she was in great distress. The Magistrate sent her to Darulaman because her statement could not be recorded because she was mentally disturbed. Some days thereafter she was again produced before the Magistrate who recorded her statement. She is not an educated lady and had studied up to 5th class. She admits during cross-examination that she was awfully horrified by the spontaneous action of the appellants, so she failed to raise alarm. Time and again she has stated that she was awfully terrified and panic-stricken, so did not raise alarm. Reason for her being horrified was that Ijaz was occupying his seat near her and had put his pistol on her flank. When a helpless lady is put in this situation, could it be possible 'for her to raise commotion, the answer would be in the negative.
Much emphasis was laid by learned counsel for the appellants with regard to the conduct of the prosecutrix in not reacting to the situation, in which she had been put by the appellant. We may say here that post event conduct of witness cannot be predicted. It varies from person to person as different people behave differently in different situations. Behaviour and conduct of a witness or a victim can neither be predicted nor specified with exactitude. Not only the prosecutrix was under a constant threat of the appellants but her children as well. She was gravely concerned with the safety of her children. We 'repel this contention of learned counsel for the appellants that post event conduct of the prosecutrix was not natural. The appellants played a havoc with her and she was not in proper senses even after reaching Lahore. The fact remains that she brought ideally specific accusations of Zin-bil-Jabr against both the appellants. Her husband did not have excess to her as long as she remained in custody of the appellants. Her vaginal swabs were found stained with semen. This was possible only if she had undergone sexual intercourse. Sexual intercourse was not committed by her husband but the appellants. This circumstance weighs heavily against the appellants and is a pointer towards their guilt. We have no good reason to disargee with the meritorious conclusions arrived at by learned trial Judge, who adjudged them guilty of Zina-bil- Jabr.
14.The factum of delay in reporting the matter to the police has been reasonably explained by P.W.1 during course of cross-examination who stated that application (Exh.P.A) was written in the police station on 16-10-1999 and case stood registered on, 22-10-1999. It is clearly means that first informant made application on 16-10-1999. There is no fault on the part of the complainant. There is absolutely no delay in laying an information before the police. Muhammad Aslam (P.W.3) has categorically stated in his examination-in-chief that he saw Ijaz, Tahir Mst. Shehnaz Bibi , Mst.
Maqsoodan, Muhammad Ahmad and Maryam present at the Ranger's Wagon Stop. He brought this fact to the notice of the complainant. Pistol (P.1) was got recovered by Ijaz appellant on 31-10- 1999 from a vacant plot near Ranger's stop. Likewise, Tahir got recovered a sum of Rs, 5,000 on 7-11- 1999 lying concealed in a brief-case in his house. We find that Ijaz alongwith Mst. Maqsoodan Bibi was captured by the police at the Railway Station Lahore. Tahir was also with them but he managed to escape from the spot. In our view appellants stood rightly convicted by the learned trial Judge. There is no defect or flaw in the evidence. We consider Mst. Maqsoodan Bibi as a legitimate victim, She was cross-examined at length and her testimony remained unshaken. She is a wholly reliable witness.
15. As regards defence evidence, we are not impressed with it the least. It inspires no confidence at all. It does not in any manner, prove innocence of Tahir Hussain appellants. Had he been innocent, then witnesses would have never involved him in this case.
16. As regards charge under section 380, P.P.C., it may be seen that only recovery of Rs, 5,000 was effected from Tahir accused from his house. No special marks of identification of the currency notes were either given in the F.I.R. or in the statement of the complainant. In our view, prosecution has miserably failed to establish this charge against the appellants. We accordingly set aside conviction of the appellants under section 380, P.P.C. and acquit them of the said charge.
17.While maintaining conviction and sentences of the appellants under sections 16 and 10(4) of Ordinance No, VII of 1979, we dismiss their appeal. Death sentence awarded to Ijaz Ahmad and Tahir Hussain appellants is confirmed. Murder reference is answered in the affirmative.