1. ' BASHIR A. MUJAHID, J.---Muhammad Zaman son of Gul Muhammad, Noor Hayat son of Muhammad Hayat, Gul Jehan alias Gul Muhammad son of Mansab, Sarfraz son of Noor Hayat, Ghulam Abbas son of Ahmad Khan, Muhammad Ramzan son of Umar Hayat, Muhammad Ramzan son of Mansab, Gul Nawaz alias Gul Muhammad son of Muhammad Anwar, Liaqat Ali son of Dost Muhammad, Gul Baz son of Muhammad Amir Drhal, Ahmad Khan alias Bilo son of Muhammad Amir, Ghulam Abbas son of Muhammad Riaz and Muhammad Ramzan son of Noor Muhammad have challenged judgment dated 10-2-1999 passed by learned Special Judge ATC, Sargodha Division whereby they were convicted and sentenced as under:-
(1) Muhammad Zaman and Gul Nawaz alias Gul Muhammad appellants sentenced under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to Death each and fine of Rs,1,00,000 each or in default of payment of fine 10 years' R.I. Each.
(2) All the, appellants sentenced under section 148, P.P.C. To three years' R.I. Each, and a, fine of Rs,2000 each or in default of payment of fine one month's R.I. Each.
(3) All the appellants sentenced under section 354-A/149, P. P.0 . To imprisonment for life each and fine of Rs,50,000 each or in default of payment of fine 5 years' R.I. Each.
(4) All the appellants sentenced under section 11 of Offence of Zina (Enforcement of Hudood)
2. Ordinance, 1979 to imprisonment for life each with whipping 30 stripes each and fine 'of Rs,50,000 or in default of payment of fine 5 years' R.I. Each.
(5) Appellant Muhammad Zaman, Gul Nawaz alias Gul Muhammad, Noor Hayat and Sarfraz sentenced under section 452/34, P.P.C. To 7 years' R.I. Each and a fined of Rs,10,000 each or in default of payments of fine 1 year R.I. Each.
3. ' Fine if recovered, one half was ordered to be paid to the victim as compensation under section 544-A, Cr . P. C .
4. ' Sentences of the appellants were directed to run concurrently and benefit of section 382-B, Cr.P.C.
5. Was also extended.
6. ' Briefly the facts of the prosecution case are that Sher Muhammad P.W.10 got F.I.R. No,225 dated 2&$-1998 Exh.P.F recorded with Police Station Mitha Tiwana on 26-8-1998 at 9-45 a.m. About the occurrence which took place at 7-00 a.m. On the same day, alleging therein that he was cultivator and resident of Mauza Jee at Dera of Hafiz Gul Muhammad Wala. At 7-00 a.m. On the day of occurrence, he along with Ghulam Sarwar had gone to offer Fatiha of one's Muhammad Nawaz and was returning to his Dera. They heard the firing from their Dera where his wife Mst. Moonda and daughter Asia P.W.7 were present along with minor children and they saw the appellants armed with deadly weapons arrived at their Dera by causing direct firing. Muhammad Zaman son of Gul and Gul Muhammad son of Noor and Sarfraz son of Noor Hayat trespassed into his residential kotha and lifted Mst. Asia daughter of complaint in order to commit Zina with her. On hearing the fires, Sultan Muhammad and. Fateh Sher were ' also attracted to the .Spot. The accused fled away along with daughter of the complainant. The motive alleged for the occurrence was that Muhammad Zaman appellant suspected Muhammad Islam son of the complainant having illicit relations with his brother's daughter Mst. Sharif Khatoon. Ghulam Murtaza, A.S.I. P.W.5 after registration of case F.I.R. Exh.P.F sent the same to S.H.O. Through Muhammad Khan PC and he himself ,arrived at the spot where S.H.O. Muhammad Ikram P.W.11 also reached and undertook the investigation, who recorded the statements of Mst. Moonda, Sarwar, Fateh Sher and Sultan Muhammad, P.Ws. Mst. Moonda also produced her clothes Shirt P.27,. Shalwar P.28 which were taken into possession through memo. Exh.PY. He also took into possession from the spot the pieces of broken bangles and 31 empty cartridges of .12 bore gun P.29/1-33, 18 empties of .7 M.M P.30/1-18 and one bullet P.31 of pistol .0 bore through memo. Exh.PAA. Thereafter, he proceeded to recover the alleged detenue. Hafiz Gul Muhammad, Channan Khan, P.W.5 and Sher Muhammad complainant and raided the Dera of the accused persons and finally at 2-15 p.m. He recovered Mst. Asia Khatoon from the custody, of Muhammad Zaman from a sugarcand field near the Dera and prepared a memo. Exh.PX. He arrested Muhammad Zaman accused. He recorded the statement of Mst. Asia Khatoon under section 161, Cr.P.C. And got her medically examined. He also arrested Noor Hayat and Gul Muhammad from the sugarcane field in the vicinity on the same day. He undertook into possession the sealed envelope and phial produced by Mazhar Hussain, A.S.I. Given to him by W.M.O through Exh.P.Q and got those parcels deposited in police Maalkhana for safe custody. He obtained the physical remand of Muhammad Hayat, Noor Zaman, Gul Jahan alias Gul Muhammad on 28-8-1998 and on 30-8-1998 Muhammad Zaman while in police custody .Led to the recovery of Shalwar/Qarneez of gst. Asia Khatoon and to his licensed rifle P.3 alongwith a bag containing 15 bullets which were taken into possession- through memo. Exh.P.G. Noor ,Hayat appellant also led to the recovery of hatchet P.6 which was taken into possession through memo. Exh.P.H. On the same day, Gul Jehan alias Gul Muhammad also led to the recovery of gun P.7 which was taken into possession through memo. Exh.P.I. Mst. Asia Khatoon identified her clothes got recovered by Muhammad Zaman. On the same day he also arrested Sarfraz, Gul Baz, Ghulam Abbas son of Ahmad Khan, Ramzan son of Umar Hayat, Ramzan son of Mansab, Liaqat Ali, Gul Nawaz alias Gul Muhammad, Gul Jehan alias Gul Muhammad, Ghulam Abbas son of Muhammad Riaz and obtained their physical remand on 31-8-1998. He also got medically examined Gul Nawaz and Muhammad Zaman accused regarding their potency. On 3-9-1998,. Liaqat Ali accused led to the recovery of Gun .12 bore P.20 which was taken into possession through memo. Exh.P.R. Ghulam Abbas led to the recovery of rifle .7 M.M P.22 which was taken into possession through memo.
7. Exh.P.S. Muhammad Ramzan son of Noor Muhammad led to the recovery of rifle .7 M.M P.9 which was taken into possession through memo. Exh.P.J. Muhammad Ramzan son of Mansab led to the recovery of rifle .7 M.M P.11 and 10 bullets which were taken into possession through memo. Exh.P.K.
8. Sarfraz accused led to the recovery of gun P.13 which was taken into possession through memo.
9. Exh.P.L. Muhammad Ramzan son of Umar Hayat got recovered gun .12 bore P.15 which was taken into possession through memo. Exh.PT. Ghulam Abbas son of Ahmad Khan led to the recovery of gun P.16 which was taken into t possession through memo. Exh.P.N. On 4-9- ' 1998 Gul Baz accused led to the recovery of pistol .30 bore P.18 which was taken into possession through memo. Exh.PO.
10. On 7-9- 1997, he arrested Gul Nawaz alias Gul Muhammad who while in police custody led to the recovery of hatchet P.26 which was taken into possession through memo. Exh.P.U. He completed the investigation and submitted the challan.
11. ' The trial Court framed the charge which was denied by the accused/appellants and they claimed trial.
12. ' During the trial, prosecution examined as many as 11 witnesses to prove the guilt of the accused.
13. ' The medical evidence was furnished by Dr. Miss Munawar Khatoon Khokhar P.W.1, who on 26-8- 1998 at 11.00 p.m. Medically examined Mst. Asia Khatoon and found no mark of violence on body; no stain of semen on clothes and perennial area; no stein of semen on pubic and vulva areas. She found hymen torn and vagina admitted two fingers easily. Three swabs were taken from the posterior fornixes and were sent to Chemical Examiner through the police and on the basis of report of Chemical Examiner Exh.P.0 the swabs were stained with semen and the doctor gave opinion that Mst. Asia was subjected to rape. Dr. Masood Alam Raja, P.W.2 on 8-9-1998 medically examined Muhammad Zaman son of Gul Muhammad and Gul Muhammad son of Muhammad Anwar and found them fit to perform sexual intercourse.
14. ' The ocular account was furnished by Sher Muhammad P.W.10 who supported the version of the F.I.R. And narrated the motive for the alleged occurrence and abduction of his daughter Mst. Asia by the accused. Mst. Moodan P.W.9 was mother of the victim Mst. Asia and wife of Sher Muhammad complainant P.W.10. She narrated the prosecution story as an eyewitness of the occurrence and stated that four accused namely Muhammad Zaman, Gul Nawaz alias Gul Muhammad, Noor Hayat and Sarfraz had entered into their residential kotha while armed with deadly weapons and forcibly abducted her daughter Mst. Asia Khatoon on gunpoint. She tried to intervene but was given beating by accused. Mst. Asia victim of the occurrence was examined as P.W.7. She is star prosecution Witness. She supported the prosecution story alleging that she was abducted by the accused and was taken into a sugarcane field where she was subjected to Zina-bil-Jabr by Muhammad Zaman and Gul Nawaz alias Gul Muhammad and was recovered by the police, on the same day at about `peshi wela' and she also identified her clothes torn by the accused and were kept by Muhammad Zaman appellant in her house and she was' provided clothes of some other lady of the family. She was also medically examined through Dr. Miss Munawar Khatoon Khokhar.
15. P.W.1. Rehmat Ali Moharrar/HC P. W.3. Had kept the sealed parcels in the police Maalkhana in safe custody for onward transmission to the office of Chemical Examiner. Ghulam Jillani P. W.4 had delivered those sealed parcels intact at Chemical Examiner Office, Rawalpindi on 28-8-1998.
16. Ghulam Murtaza A.S.I. P.W.5 had recorded the formal F.I.R. And attested die recovery memos. Of weapons of offence got recovered by the accused. Mazhar Hussain AI P.W.6 had escorted Mst. Asia Khatoon for her medical examination and had, also attested the recovery memo. Alongwith Ghulam Jillani, A.S.IN,Chanan Khan P. W.8. Accompanied the Investigating Officer alongwith the complainant to the Dera of the accused wherefrom Mst. Asia Khatoon was recovered by Muhammad Akram, Inspector.
17. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.C.
18. ' The statements of the accused were recorded under section 342, Cr.P.C.. They denied the allegations and claimed their innocence and false involvement due to enmity.
19. ' The trial culminated into. Conviction of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No, 96 of 1999 while the trial Court has sent up Murder Reference No,341-T of 1999 for confirmation of death sentence of Muhammad Zaman and Gul Nawaz. Both the matters are being decided by this judgment. Learned counsel for the appellants' at the very outset has stated that Muhammad Ramzan son of Noor Muhammad appellant died during the pendency of the appeal, therefore,' to his extent he does not press the appeal as the same has become infructuous.
20. ' Regarding the other appellants it has been argued that there is only allegation of ineffective firing; that there is no mark either on the wall or at any other place of house of the complainant; that the weapons of offence were licensed in the name of the accused and the recovery of the empties from the spot is immaterial as neither weapon of offence nor the empties were sent for their comparison to the Forensic. Science Laboratory; that whole of the family of the accused has been roped in the case; that offence under section 354-A, P.P.C. Was added during the investigation as there was no allegation for making the victim naked in view of the public as nobody from the public has been examined as prosecution witness; that statement of the alleged victim has not been corroborated by medical evidence, therefore, the case against the appellants is doubtful and they are entitled for acquittal.
21. ' Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment.
22. ' Heard. Record perused.
23. ' Muhammad Zaman, Gul Nawaz alias Gul Muhammad, Noor Hayat and Muhammad Sarfraz trespassed into the residential kotha of the complainant and lifted Mst. Asia Khatoon. The testimony of three witnesses namely. Sher Muhammad, complainant P.W.10, Mst. Moodan P.W.9 and Mst. Asia Khatoon P.W.7 has been fully corroborated by the recovery of broken bangles and the empties taken into possession from the spot by the Investigating Officer. The motive alleged by the complainant against Muhammad Zaman further corroborates the prosecution story. All-the three witnesses are consistent in their statements implicating Muhammad Zaman, Noor Hayat and Muhammad Sarfraz for having trespassed into the residential kotha and lifting Mst. Asia Khatoon.
24. There is no previous animosity for false implication of these appellants. They have been ascribed specific role and participation in the commission of heinous crime. They are truthful witnesses, therefore, to the extent of these four appellants we find that the prosecution case has been established beyond any shadow of doubt under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 452, P. P.C.
25. ' The conviction Muhammad Zaman, Gul Nawaz alias Gul Muhammad, Noor Hayat and Muhammad Sarfraz appellants on both the counts is maintained. The sentence under section 452, P.P.C. Is maintained but under section 11 of Offence of Zina (Enforcement of Hudoor) Ordinance, 1979 is redeemed to 10 years R.I. Each.
26. As far as allegation of commission of Zina-bil-Jabr against Muhammad Zaman and Gul Nawaz alias Gul Muhammad is concerned, although report of Chemical Examiner is in positive but semen were not sent for grouping and comparison. Mst. Asia was recovered from the possession of Muhammad Zaman, who also led to the recovery of torn clothes of Mst. Asia and commission of Zina-bil-Jabr against him is proved beyond any shadow of doubt, therefore, we alter his conviction from section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to section 10(3) ibid and his sentence is accordingly altered to imprisonment for life.
27. ' As far as conviction under section 354-A, Cr.P.C. Is concerned, no witness from the public was examined by the prosecution to show that the victim Mst. Asia was stripped off in public view, and this allegation was introduced during the investigation by the abductee and her statement has not been corroborated by any other P.W., therefore, it is not safe to maintain the conviction of the appellants under section 354-A, P.P.C. And same is set aside.
28. Apart from above appellants,- all other have been levelled only ineffective tiring. They have not entered into house or dera of the complainant and no empty was recovered from the place wherefrom they have allegedly 'Caused firing, therefore, the possibility that the complainant had widened C the net to implicate all the relatives of the main accused, cannot be ruled out, therefore, to their extent benefit of doubt is extended and they are acquitted of the charge. They are ordered to be released if not required to be detained in any other case.
29. ' The sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Will also be available to the complainant. The appeal is disposed of in the above terms.
30. ' Murder Reference is answered in the negative.
31. Order. Accordingly.