ZAFAR PASHA CHAUDHARY, J.---This judgment will dispose of Criminal Appeal No,54 of 2000 and Murder Reference No,45-T of 2000.
2. Kashif alias Kashi son of Muhammad Anwar aged 22 years and Imran alias Mani son of Muhammad Ali aged 24 years alongwith their co-accused Imran alias Mout son of Muhammad Siddique aged 25 years were sent up to face trial in the Court of Kh. Javed, Judge Special Court under the Anti-Terrorism Act, 1997, Gujranwala, in case F.I.R. No,309 dated 12-9-1999 under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. registered with Police Station Samberial, District Sialkot. The learned Special Judge, on conclusion of the trial, vide judgment dated 15-1-2000 convicted Kashif alias Kashi and Imran alias Mani under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, and sentenced them to death. Their co-accused Imran alias Mout was found guilty under section 377, P.P.C. and was sentenced to suffer imprisonment for life and also to pay a fine of Rs,50,000 and in default thereof to undergo 2 years R.I. Benefit of section 382-B, Cr.P.C. was extended. As two of the accused, namely, Kashif alias Kashi and Imran alias Mani have been sentenced to death, therefore. Murder Reference No,45-T of 2000 has been submitted to this Court for confirmation of their sentence. Both the convicts i,e, Kashif alias Kashi and Imran alias Mani have filed Criminal Appeal No,54 of 2000.
Murder Reference as well as the appeal have been taken up together for disposal. Imran alias Mout who has been sentenced to imprisonment for life reportedly has not preferred any appeal. As statedly, no appeal has been tiled by Imran alias Mout. the same may not even be relevant for disposal of the instant murder reference and the criminal appeal.
3. The prosecution case as set up in the F.I.R. Exh.P.0 by Habib Ahmad P.W.7 who is brother of Mst.
Naziran Bibi and husband of Mst. Sakina Bibi, the victims, is in the following terms:- "According to him, for the last 5/6 years to harvest the paddy crop and also to work as labourers in the fields, he, the complainant alongwith his family visit village Bhopalwala, District Sialkot. The complainant was accompanied by his three sisters Naziran Bibi P.W.4, Mst. Waziran Bibi, Mst.
Naseeban Bibi and Mst. Sakina Bibi P.W.5 his wife alongwith his mother Mst. Niamat Bibi and daughter Mst. Hanifan Bibi. He was accompanied by his two neighbours, namely, Iqbal alias Boba and Muhammad Nawaz alias Goga. On the night intervening 11/12-9-1999 at about 11-45 (midnight) the aforesaid persons were asleep in their tent. Kashif alias Kashi appellant, Imran alias Mani appellant alongwith Imran alias Mout, their co-accused, came to the complainant's place. He was awakened. They threatened that no alarm should be raised and the complainant was forcibly taken aside. They demanded that three girls from his (complainant's) Dera be supplied to them.
The assailants moved to a short distance and remained standing over there. The complainant removed his sister Mst. Naseeban Bibi and daughter Mst. Hanifan Bibi towards the Cold Storage. In the meanwhile, the three assailants threatened Goga and Boba.
After their neighbours in an adjoining tent were made to lie with their faces towards the ground, the complainant's mother was also made to sleep likewise. Mst. Naziran Bibi complainant's sister and Mst. Sakina Bibi complainant's wife were forcibly taken to a nereby deserted Dera. Kashif alias Kashi and Imran alias Mani appellants committed rape (Zina-bil-Jabr) with his sister i,e, Mst. Naziran Bibi twice. Imran alias Mout committed intercourse against the order of nature with Mst. Sakina Bibi twice because she was menstruating at that time. Due to pain, she raised alarm that she was dying on which the complainant also raised alarm and the accused-persons decamped while firing in the air. The matter was reported at the police station on which the statement Exh.P.C/1 was recorded by Muhammad Ashraf, Inspector P.W.10. Formal F.I.R. is Exh.P.0 drafted by Manzoor Hussain, Sub-Inspector P.W.2.".
4. The investigation was taken up by Muhammad Ashraf Awan, Inspector P.W.10. He visited the spot, got both the victims medically examined and arrested all the three accused persons on 13-9-1999 and 17-9-1999. Imran alias Mout led to recovery of Pistol P.3 alongwith two bullets Exh. P .4/1-2 vide memo. Exh.P.J. The accused-persons were also got medically examined to ascertain their potency.After performing the usual investigation, all the accused persons were sent, up to face trial in the Court of learned Special Judge. under the Anti-Terrorism Act because the challan had been prepared under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
5. The prosecution examined 10 witnesses in support of its case. Out of them, Dr. Sameena, W.M.O.
P.W.1 medically examined on 12-9-1999 Mst. Naziran Bibi aged.about.30 years. As per report, she was a married woman with four living kids. She did not observe any marks of violence on her body.
She was found to be a lactating mother. Hymen was absent and there was no fresh mark of violence. Vagina admitted two fingers very loosely,. , She was menstruating at the time of examination.
As per Mst. Naziran Bibi was a married woman, nothing could be suggested with regard to any sexual interbourse. However, on receipt of report of Chemical Examiner, she was found to have been subjected to sexual intercourse in recent past.
6. On the same day, i,e, 12-2-1999, this doctor examined Mst. Sakina Bibi aged 35 years. She was a married woman .and had two kids. There was no mark of violence on her body. Hymen was absent.
As mark of violence was found on her private parts, therefore, her rectal examination revealed two abrasions at 6 O'clock and 9 O'clock positions. After receipt of report of Chemical Examiner, she was found to have been subjected to sexual intercourse as well as intercourse against the order of nature.
7. Dr. Faran Mehmood Qazi P.W.6 found both the appellants as well as their co-accused as potent and capable of performing sexual intercourse.
8. Amongst remaining witnesses, Mst. Naziran Bibi (victim) P.W.4, Mst. Sakina Bibi (victim) P.W.5 and Habib Ahmad complainant P.W.7 are the most relevant witnesses. The remaining witnesses are more or less formal in nature except Muhammad Ashraf Awan, Inspector P.W.10 who carried out the investigation. The three afore-said prosecution witnesses i,e, P.Ws. 4,5 and 7 supported the prosecution case in substance, however, with certain significant variations made in the story which will be discussed hereunder. Habib Ahmad P.W_7 reiterated the statement made by him before the police as Exh.P.C/I. Apart from the oral evidence, the prosecution tendered in evidence reports of Chemical Examiner Exhs.P.R, P.S and P.T.
9. After close of the prosecution case, the accused-persons were examined under section 342, Cr.P.C. Kashif alias Kashi appellant aged 22 years came up with the following plea in answer to Question No,8:- "Billo is the Councillor from our ward and. we had political rivalry with him. Habib Ahmad and other P.Ws. of this case has been visiting village Bhopalwala for the last 8/9 years in order to snatch hemp from the banks of Nullah Aik and that is there source of income. The complainant party had been camping at the Dera of said Billo Councillor and enjoyed his 'patronage the women folk of the complainant family also indulged in begging from houses and have loose morals.
About seven days before the lodging of the present case we had a quarrel with said Billo and we had publicly insulted and humiliated him and then the said Billo issued a threat that he would soon take the revenge for the said insult from us and would involve us in some serious case and so the present case has been, fabricated by said Billo Councillor in collaboration with the police and he has used the complainant party as his stooges. The present case is false and the medical evidence has also been manoeuvred."
A similar plea in defence was raised by Imran alias Mani appellant aged 24 years. Their 3rd co- accused Imran alias Mout also put up the same plea in his defence. The accused examined two witnesses in defence, namely, Tahir Anwar Cheema D.W.1 and Muhammad Akhtar Cheema D.W.2.
10.The learned trial Judge as detailed above, found all the three accused persons guilty, convicted both the appellants under section 10(4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced both of them to death. Their . co-accused. however, was found guilty under section 377, P.P.C. and awarded imprisonment for life.
11.The learned counsel for the appellants has argued with vehemence that the appellants have been falsely implicated. Both the victims are women of easy virtue. According to him, the complainant or the prosecution has not come up with the true story. In fact the complainant and the victims indulged in prostitution as they supplied call girls. Although the learned counsel made submissions by keeping in view the norms of decency and the professional ethics, as the appellants had been awarded capital punishment, therefore, they could not be sacrificed at the altar of decency and true facts which, according to him, emerge from the prosecution case itself, have to be brought to the notice of the Court.
12.As against the contentions raised by the defence, the learned counsel for the prosecution has although, in the first instance, tried to support the conviction yet, during course of arguments, he found it rather difficult to support the conviction under section 10(4) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, which entails imposition of death penalty.
13. We have very carefully gone through the record and have attended to the arguments addressed at the bar.To start with the prosecution version as revealed from the statement of Habib Ahmad complainant,' he alongwith other members of his family was asleep in tents. The complainant and the witnesses are all gypsies and had visited village Bhopalwala during harvesting season of paddy crop. The appellants acconipanied by their co-accused Imran alias Mout came to their camp, they were awakened and threat was extended by Imran alias Mout who fired in the air with a pistol. Whether they were really subjected to any threat is not supported by any physical evidence such as recovery of any empty from the place of occurrence indicating that the some shot had been fired. The assertion is based merely on oral statement made by the complainant and by Mst. Naziran Bibi and Mst. Sakina Bibi. The allegation that the accused- persons escaped while tiring from their respective guns is not supported by recovery of any empty.
Be that as it may according to the complainant, the appellants demanded that he should provide them three girls, obviously, to satisfy their lust. Had the- appellants come to forcibly take away the two victims, they would not have made all the inmates to get up from their sleep and thereafter they would have asked the complainant to provide three girls. This demand of girls as put up by the prosecution itself is suggestive of the fact that the appellants did not intend to forcibly take. away the women-folk of the complainant to subject them to, rape. The demand was not made in the tent in front of the members of the family, rather the complainant was taken aside. This is a usual mode for asking to supply some call girl. It is further stated that thereafter the complainant removed his two unmarried women i,e, sister and daughter who were nearby asleep at the place which, obviously, out of access of the appellants. It means that the complainant had an opportunity to remove his two unmarried women i,e, sister and daughter to nearby safer place and thereafter these two victims who both are married and Mothers of 4 and 2. kids respectively were allowed to accompany the assailants. Not only the complainant was present. the two neighbours, namely, Goga and Boba were also present in the adjoining tent or hut. The complainant as per his own showing remained present nearby the place of incident from where he could easily hear the shricks of the victims. The victims, according to them, were subjected to rape twice each by both of the appellants. When, according to complainant, Mst. Sakina Bibi wife of the complainant, was forcibly subjected to sexual intercourse against the order of nature, she could not bear the pain and her shrieks that she would die were heard by the complainant on which he raised alarm which attracted other inhabitants or residents of the locality on which the assailants fled away.
The question arises as to, why, the complainant did not raise alarm when both the women were being subjected to sexual intercourse, one after the other by the two appellants and their co- accused. It appears that so long as the victims wee subjected to sexual intercourse in the natural way no resistance was made nor any alarm was raised. When the victim Mst. Sakina Bibi was subjected to sexual intercourse against the order of nature it would have caused an unbearable pain on which she made cries and thereafter ,alarm was raised by the complainant. When the defence version is adjudged by keeping in view this aspect of the case, the same does not appear to be improbable. The possibility that the victims were consenting party and they were allowed to join the appellants party cannot be ruled out.
14. Apart from the aforesaid suspicious circumstances, the prosecution' story suffers from serious discrepancies and inconsistency. According to the complainant, Mst. Sakina Bibi, his wife, was mensurating at the time of incident, therefore, she was subjected to sexual intercourse against the order of nature which caused severe pain on which she raised cries and uttered shrieks. According to medical evidence, it was not Mst. Sakina Bibi who was mensurating rather it was Mst. Naziran Bibi who was having menses but she was not subjected to any indecent assault i,e, any intercourse against the order of nature. As to how this inconsistency or material discrepancy has arisen, cannot be exactly ascertained. However, it is indicative D of the fact that the prosecution has not come forward with true narration of the incidents. This inconsistency is further aggravated of the fact that Mst. Sakina Bibi (P.W.5) at page 27 of the paper book stated that she had told the Investigating Officer that the accused committed unnatural offence with her and also subjected her to Zina but in her statement before the police i,e, Exh.P.B, she was subjected only to unnatural offence and there was no mention of commission of any Zina. The improvement made by the witness during the statement before the Court in order to aggravate the nature of offence reflects upon her testimony and truthfulness. After going through the statements of the three main witnesses and by also assessing the attending facts and circumstances, it would be hard to believe ti-at the victims were subjected to intercourse against their Will. To bring the case under section 10(4) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, it is absolutely essential that the prosecution must prove the case against an accused person to the hilt and beyond any shadow of doubt. The offence is punishable with death, therefore, direct proof incapable of any suspicion or circumspect must have been brought on record. In our view, the prosecution has not been able to bring home the guilt of both the appellants under section 10(4) of the Ordinance. However, the statements of Mst. Naziran Bibi and Mst. Sakina Bibi P.Ws.4 and 5 respectively when considered alongwith the medical evidence as well as the reports of the Chemcial Examiner, there remains no doubt that sexual intercourse was committed. The offence then at the best would be covered by section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. The maximum punishment prescribed under sections 10(2) (ibid) is 10 years' R.I.
We, accordingly set aside the conviction of the appellants under section 10(4) of the Ordinance and in view of what has been discussed above, the conviction is recorded under section 10(2) of the Ordinance. We accordingly sentence them to imprisonment for 10 years' R.I. each Benefit of section 382B, Cr.P.C. is hereby extended.
THE SENTENCE OF DEATH IS NOT CONFIRMED. Murder Reference is answered in the negative.
The appeal is disposed of in the above terms.