' MIAN MUHAMMAD NAJUMUZ-ZAMAN, J---This judgment shill disposed of Criminal Appeal No,1029 of 1996 filed by Rafaqat Ali alias Tota appellant and Criminal Appeal No,48 of 1997 filed by Muhammad Ashfaq alias Shaki, Muhammad Ashfaq alias Nanna and Sohail appellants against their conviction and sentence as well as Murder Reference: No,7 of 1997 made by the trial Court under section 374, Cr.P.C. For the confirmation of death senteace of Rafaqat Ali appellant.
2. The appellants were tried by the Sessions Judge, Narowal in case F.I.R. No,230 dated 6-7-1995 registered under sections 302/324/34, P.P.C. At Police Station Saddar, Narowal. The learned trial Judge vide judgment dated 21-11-1996 convicted and sentenced the appellants as under: ' Rafaqat Ali appellant ' Under section 302, P.P.C. Sentenced to death and to pay. Rs,2,00,000 as compensation to the legal heirs of the deceased, or in default whereof to undergo six months' S.I.
' Under section 460, P.P.C., sentenced to imprisonment for life.
' Under ' section 324 P.P.C. Sentenced to ten years' rigorous imprisonment and to pay a fine of Rs,10,000 or in default whereof to undergo three months' rigorous imprisonment. He was also directed to pay Rs,50,000 as ,compensation to Mst. Hameedan Bibi, injured or in default to suffer three months' S.I. Sohail. Muhammad Ashfaq alias. Nanna and Muhammad Ashfaq alias Shaki appellants.
' Under section 302/34, P.P.C., all these appellants were sentenced to imprisonment for life and to pay Rs,2.00;000 each to the legal heirs of the deceased as compensation., ' Under section 460/34, P.P.C., all these appellants were sentenced to imprisonment for life each.
' Under section 324/34, P.P.C. All the appellants were sentenced to ten years rigorous imprisonment each and to pay a fine of Rs,10,000 each or ill default whereof to suffer three months rigorous imprisonment each. They were further directed to pay Rs,50,000 as compensation each to Mst.
Hameeda Bibi injured or in default whereof to undergo three months'. S.I. Each.
3. Brief facts of the prosecution case narrated in the F.I.R. Exh.P.F lodged at Police Station Saddar, Narowal, upon the statement Exh.P.E of Mst. Hameedan P.W.8, are that on 6--7-1995 at about 8.00 a.m. When she alongwith her husband namely Rashid Ahmad was sleeping in the courtyard of their house situated in the area of Mauza Kotli Plot, she woke up upon the shrieks of her husband and saw two unknown persons armed with guns, present in the courtyard. One of them fired hitting her on the abdomen and arm. Upon her hue and cry Niaz Ahmad, Syed Hubdar Hussain, residents of the village also reached the spot. She also claimed that she along with Niaz Ahmad and Hubdar Hussain could identify the assailants on their appearance before them. Statedly, Rashid Ahmad, her husband was tired at when he was asleep and had fallen on the ground from the cot after being smeared in blood and had died due to the injuries. Mst. Hameeda was removed to the hospital by Hubdar Hussain. It is also stated in the F.I.R. That apparently Mst. Hameeda had no enmity with anyone.
4. On receiving the information about the occurrence Muhammad Malak, A.S.I.,' P.W.11 along with police officials reached the Civil Hospital Narowal and recorded the' statement Exh.P.E of Mst.
Hameeda and sent the same to the police station for the registration of formal F.I.R. Exh.P.F. He also prepared injury statement Exh.P.V of Mst. Hameeda as well as wrote application Exh.D.A for the permission of doctor to record the statement of Mst. Hameeda and the Medical Officer at about 2- 00 p.m. Opined Exh.DA/1, that injured was fit to make statement. Statedly, in the meantime, Muhammad Hanif Shah, S.I., P.W.10 also came at the hospital who recorded the supplementary statement of Mst. Hameeda in which the above said four appellants were nominated as accused persons. After recording the supplementary statement Muhammad Malik, A.S.I., P.W.11, visited, the spot. He after preparing the necessary documents sent the dead body of Rashid Ahmad to the mortuary for post-mortem examination. During spot inspection he also collected blood-stained earth vide memo. Exh.P.J. This recovery memo. Was signed by Khalid Mehmood and Maqsood Ahmad P.Ws. During the investigation he also got prepared scaled site plan Exhs.P.H and P.H/1 through Sardar Khan, Draftsman P.W.7 thereafter on 24-7-1995 the investigation of this case was entrusted to Muhammad Hanif Shah, S.I., P.W.10. On 26-7-1995 Muhammad Hanif Shah, S.I., P.W.10 arrested Sohail, Ashfaq alias Nanna and Ashfaq alias Shaki and on 31-7-1995 Rafaqat Ali alias Tota.
During his investigation Rafaqat alias Tota led to the recovery of double barrel gun P.3, one Gatra containing two live cartridges P.4/1-2, the same were taken into possession vide memo. Exh.P.J.
Sohail appellant led to the recovery of gun P.5 alongwith one Gatra containing three live cartridges P.6/1-3 and the same were taken into possession vide memo. Exh. P.K. Ashfaq alias Nanna appellant led to the recovery of gun P.7 alongwith Gatra containing two cartridges P.8/1-2 which were taken into possession vide memo. Exh.P.L.,Ashlaq alias Shaki appellant led to the recovery of gun. P.9 which was taken into possession vide memo. Exh.P.M. After the completion of investigation challan was submitted before the trial Court.
5. During the trial prosecution produced 11 witnesses to prove the charge against the appellants.
6. Adalat Khan P.W.1 took one parcel of.12 bore gun (case property) to the office of Forensic Science Laboratory and delivered the same intact.
7. Dr. Saadat Ali P.W.2 conducted the medical examination of Mst. Hameeda and observed the following injuries:
(1) A lacerated wound 3 x 4 c.m. On inner side of right arm just above the elbow joint.
(2) A lacerated wound 6 x 5 c.m. In right hypochondria depth not proved.
(3) A lacerated wound 4 x 3 c.m. In front of right side of abdomen close to injury No,1
(4) A lacerated wound 2 x 2 c.m. On right side of front of abdomen 2 c.m. From injury 4 No,3
(5) A hard mass palpable in right buttock.
7. Muhammad Ilyas F.C. P.W.3 took the parcels of blood-stained earth to the office of Chemical Examiner and delivered the same intact.
8. Dr. Imtiaz Ahmad Chattha P.W.4 conducted the post-mortem examination on the dead body of Rashid Ahmad and observed the tollowing injuries thereon:
(1) A lacerated wound 9 x 5 c.m. On right side of face extending upto upper part of neck, skin was missing from the wound, muscles also injuries wound was 3 c.m. Interior to right ear.
(2) Two oval wounds each measuring I x .75 c.m. On right side of neck, just above medical end of clavical.
(3) Two oval wounds each measuring 1 x 7 c.m. On front of right shoulder.
(4) Lacerated wound 5 x 3 c.m. On outer aspect of right forearm 3 c.m. Above right wrist.
' In the opinion of doctor death occurred due to shock and haemorrhage caused by these injuries collectively which were sufficient to cause death in the ordinary course of nature.
9. Aftab Ahmad, Head Constable P.W.5 arrested the formal F.I.R. P.F on the basis of statement Exh.P.E made by Mst. Hameeda Bibi. He also kept the parcel of this case in Malkhana for safe custody and later on delivered the same to different constables for onward transmission to the relevant offices.
10. Muhammad Hanif, FC P.W.6 took the dead body to the mortuary for postmortem examination and after the same produced last worn clothes of the deceased before the Investigating Officer.
11. Sardar Khan, Draftsman P. W.7 prepared the scaled site plan Exhs.P.H and P. H/1.
12. Mst. Hameedan P.W.8 narrated the ocular account. While deposing before the trial Court she introduced a new, story about the occurrence and stated that: "About one year and three months back at about one a.m. I and my husband Rashid Ahmad were sleeping in the courtyard of the house situated in village kotli Plot.
' I woke up suddenly in the light of electric bulb. I saw that Rafaqat accused was standing near the cost of my husband while Sohail was standing near to my cot. They were armed with.12 bore guns.
Rafaqat accused fired at my husband who fell down on the ground from the cot while Sohail accused fired at me. The tire shot hit my abdomen on right side and on my right arm. Thereafter, they ran towards the Galla where Ashfaq son of Muhammad Ali and Ashfaq son of Riaz were standing. Ashfaq son of Muhammad Ali and Ashfaq son of Riaz today present in the Court were also armed with.12 bore guns.
' I know them because both have been studying in our house. Apart from me the occurrence was witnessed by Khalid and Maqsood residents of Kotli Plot. My husband Rashid Ahmad after sustaining the fire-am-1i injuries died at the spot. There was no reason for committing the murder of my husband Rashid Ahmad, the reason is best known to Allah Almighty or to the accused persons."
13. Muhammad Khalid P.W.9 made the statement in line with the facts narrated by Mst. Hameeda before the trial Court.
14. Muhammad Hanif Shah, S.I. P.W.10 and Muhammad Malik, A.S.I: ' P.W.11 conducted the investigation in this case as narrated in the earlier part of the judgment.
15. Learned District Attorney tendered in evidence report of Chemical Examiner Exh.P.Z and that of Serologist Exh.P.A.A as well as that of Forensic Science Laboratory Exh. P.B.B and closed the prosecution case.
16. Learned trial Court also examined the appellants under section 342, Cr.P.C. All of them denied the charges and pleaded innocence. While answering to the question "why this case against you and why the P.Ws. Have deposed against you?, all the appellants took the same stand which is an under:-- "I am innocent in this case and have not participated in the occurrence so the complainant of the case Mst. Hameeda Bibi did not nominate me in her statement Exh.P.F on 6-7-1995. It was in fact Hanif Hussain Shah, S.I, who after having taken over the investigation of this case on 26-7-1995 dishonestly and mischievously dragged me and my co-accused in this case by fabricating certain evidence against us in back dates on or after 26-7-1995. The police has been hostile towards me and my co-accused and the interested quarters representing party faction in the village joined hands to cause ruination to us. Mst. Hameeda and her husband were injured by`some unknown accused persons and that is why Hubdar Hussain Shah and Niaz Ahmad P.Ws. Who were the natural and independent witnesses of this case, refused to depose falsely against innocent persons. The introduction of Khalid Mahmood and Maqsood Ahmad P.Ws. In this case has been done on or after 26-7-1997 maliciously and dishonestly. The police in this case has also been transgressing its limits while investigating the case and had fabricated the alleged evidence in ante-dated form."
' None of the appellants made any statement under section 340(2), Cr.P.C. However, Muhammad Ralaqafappellant produced in defence certified copies of birth certificate of Muhammad Khalid Exhs.D.B and D.C. Sohail appellant also produced his school leaving certificate Exh.D.D.
17. Learned trial Court after appraisal of evidence available on record convicted and sentenced the appellants as narrated in the earlier part of the judgment.
18. Learned counsel for the appellants submitted, that it was a night occurrence, some unknown persons caused injuries to the deceased and Mst. Hameeda during the dark hours of night and just to show the efficiency the police official had maliciously implicated the appellants in this case; that Khalid Mehmood P.W.9 at the time of occurrence was not resident of the area, he being closely related to the, complainant was introduced later on just to strengthen the prosecution case; that the story narrated by the prosecution witnesses before the trial Court had completely changed the complexion of the case which was initially set up while lodging the F.I.R. And this fact on the face of it had shattered the credibility of prosecution case; that the involvement of the appellants in this case was the result of dishonest investigation. It was lastly submitted that the present case was nothing but a pack of lies and the appellants had earned the right of acquittal. Conversely, learned counsel for the. State as well as the complainant vehemently opposed these appeals.
19. We have heard the learned counsel for the parties and perused the record minutely.
20. Initially this case was registered against two unknown persons who allegedly entered into the house of the deceased during the dark hours of the night between 5/6th of July, 1995, caused injuries to Mst. Hameeda Bibi and committed the A murder of Rashid Ahmad deceased. During the trial Mst. Hameeda P.W.8 introduced a new story involving all the appellants with specific role. While giving explanation about the improvements in her statement Mst. Hameeda stated that after recording F.I.R. Exh.P.F upon her request the same was- read over to her and she came to know that names of accused were not mentioned therein, therefore, upon her protest the names of the accused were entered in her statement by the police. On the other hand Muhammad Matak, A.S.I, P.W.11, who recorded the first statement Exh.P.E of Mst. Hameeda, while deposing before the trial Court took the stand that during his stay in the hospital Muhammad Hanif Shah, S.I. P.W.10 also came there. He read over and explained the 'statement of Mst. Harrieeda P.W.8 on which Mst.
Hameeda stated that for any reason she could not mention the names of four accused persons in her statement and thereafter Muhammad Hanif Shah, , S.I. P.W.10 recorded a supplementary statement of Mst. Hanneeda in which she named Rafaqat, Ashfaq alias N'anna and Ashfaq alias Shaki , as accused in the case and stated that Rafaqat alias. Tota accused fired at her husband while Sohail accused fired at her.
It is interesting to note that investigation of this Case was entrusted to Hanif Shah, S.I. P.W.10 on 24- 7-1995 i,e, 18 days after the occurrence. During the trial this witness never uttered a single word about recording of ' supplementary statement of Mst.. Hameeda P. W.8 by him. During cross- examination Muhammad Malak, A.S.I., P.W.11 admitted that there is no entry in the police daily diary about the visit of Hanif Shah, S.1., P.W.10 in the hospital on the day of occurrence nor there is any entry about the recording to supplementary statement of Mst. Hameeda P.W.8 by Hanif Shah, S.I.,, P.
W:10. It is also established from the record that Circle as well as Abdul Rahid, S.H.O also visited the spot on the first day of occurrence and conducted ' the investigation on the spot. Both of them recorded their proceedings independently in the daily diary of this case. Admittedly none .Of ahem had mentioned about the presence of Hanif Shah, S.I. P.W.10. In this view of the matter, the stand of prosecution that Mst. Hameeda P.W.8 immediately after making first statement Exh.P.F made the clarification about the involvement of appellants in this case, throng the supplementary statement is incorrect. Even otherwise it is well-settled that any further statement recorded during the investigation changing the entire complexion of the prosecution case would neither be equated with first information report nor read as part of it, "Falak Sher alias Shera v. The State (1995 SCM R 1350).. A -careful analysis of the evidence of prosecution has led us to the conclusion that Mst.
Hameeda P.W.8 made statement before the trial Court under some legal advice and it is not safe to rely upon the same for convicting appellants on the charge of capital sentence.
21. The second eye-witness of this occurrence relied upon by the prosecution is Khalid Mehmood P.W.9, a nephew of the deceased. As the story goes at the time of occurrence Khalid Mehmood P.W.9 along with his brother Maqsood (given up P.W.) was sleeping on the roof of the house of deceased and on hearing shrieks both of them came down and witnessed the occurrence.
Statedly, Khalid Mehmood P.W.9 was residing with the deceased family since his childhood and was present at the time of occurrence being the inmate of the house. In the F.I.R. Exh.P.F lodged by Mst. Hameeda P.W.8 the name of this witness is not mentioned. In the F.I.R., statedly, Hubdar and Niaz Ahmad, neighbours came at the spot and witnessed the occurrence. Before the trial Court Mst.
Hameeda P.W.8 while denying the presence of said witnesses introduced two new eye-witnesses namely Khalid Mehmood P.W.9 and Maqsood (given up P.W.). The facts on the file show that said Khalid Mehmood P.W.9 was resident of Mauza Kotli Bajwa, a place about 4/5 kilometers from the place of occurrence. Admittedly Mauza Kotli Bajwa was the native village of this witness. He was running a grocery shop in the said Mauza and electricity connection at the said shop was also installed in his name. The entire family members i,e, his parents, brothers, sisters were residing in the same Mauza at the time of occurrence. According to the prosecution case Khalid Mehmood P.W.9 was present when the spot i,e, place of occurrence, was inspected by the Investigating Officer and he signed the recovery memo. Exh.P.I of blood-stated earth. It is interesting to note that in this document Khalid Mehmood P.W.9 has been shown as resident of Mauza Kotli Bajwa. Similarly a certified copy of the proceedings under sections 107/151, Cr.P.C. Exhibited as Mark "A" showing the proceedings initiated against Khalid Mehmood P.W.9 alongwith Maqsood Ahmad and Mst.
Hameeda is also available on the file. In this document also the address of Khalid Mehmood P.W.9 has been written as resident of Mauza Kotli Bajwa. Admittedly, the names of the children of this witness are entered in the record of Union Council Chandwal and village Kotli Bajwa falls within its jurisdiction. In this view of the matter the stand of the prosecution that Khalid Mehmood P.W.9 was the resident of place of occurrence is not correct and the presence of this witness at the time of occurrence is doubtful.
' As discussed above the complainant Mst. Hameeda P.W.8 made improvements in her statement while deposing before the trial Court and because of her, the other eye-witness Khalid Mehmood P.W.9 has also named the appellants in this case. In the circumstances the statement of this eyewitness is also not true.
22. The recovery_ of crime weapons at the instance of the appellants in the absence of any evidence showing that same were used during the occurrence would be of no value and this piece of evidence relied upon by the prosecution is winless.
23. In the light of the above discussion, it is crystal clear that the involvement of the appellants in this case was the result of dishonest investigation and the evidence produced before the trial Court by the prosecution is nothing but a pack of lies. In the circumstances of this case the appellants are entitled to get the benefit of doubt. Accordingly, we accept both the appeals (Criminal Appeal No,1029 of 1996 and Criminal Appeal No, 48 of 1997), set aside the conviction and sentences of the appellants and acquit them of the charges. They shall be released forthwith, if not required to be detained in any other case.'
24. Death sentence of Rafaqat alias Tota appellant is not confirmed.
Appeal accepted.
2002 YLR 504 [Lahore] Before Mian Muhammad Najam-uz-Zaman, J IMTIAZ HUSSAIN-Appellant versus THE STATE---Respondent Criminal Appeal No,167-I of 2001, heard on 11th February, 2002.
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ----S. l 0(3)---Appreciation of evidence--- Presence of both eye-witnesses at the spot seemed to be natural and both of them successfully stood the test of crossexamination---Nothing was on record to show that eye-witnesses had any motive to falsely implicate the accused in case of a single accused---Substitution by kith and kin of victim was a rare phenomenon-Medico-legal Reports affirmed the fact that victim girl aged 4/5 years was sexually assaulted and corroborated the ocular account---Statements of both the eye- witnesses inspired confidence, rang true and could be relied upon safely to uphold conviction and sentence of accused--- Delay of nine days in lodging the F.I.R., was explained by the complainant showing that accused party was trying for a compromise through respectables of the locality, but complainant did not agree---Where reputation of a young girl or honour of a family was at stake, people usually were reluctant to report matter with the police and delay in lodging F.I.R. In such-like cases was immaterial-Victim girl was only 4/5 years of age and being a child of tender age was rightly not called as witness as she was not a competent witness---Contention of accused that in absence of statement of victim girl, case of prosecution was doubtful thus had no force--- Evidence on record having proved the prosecution case up to the hilt, accused was rightly convicted and sentenced. [pp. 50Z 508] A & C
(b) Qanun-e-Shahadat (10 of 1984)--- ----Art. 3---Persons competent to testify-- Only those persons were competent to testify to whom Court would consider that they were competent to understand and give rational answers to questions put to them---Where a person was of tender age or extreme old to understand the proceedings, Court could refuse to call him as witness. [p. 508] B Ch. Imtiaz Ahmad for Appellant.
Naeem Sadiq for the State..
Date of hearing: llth February, 2002.
' Appellant namely Imtiaz Hussain son of Mumtaz Hussain was tried by the learned Special Judge Anti-Terrorism Court, Sargodha Division, Sargodha in case bearing F.I.R. No,114 of 2000 dated 14-5- 2000 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII, 1979 registered at Poli'e.Station Sadar District Sargodha, who vide judgment dated 17-11-2000 convicted and sentenced him 'under section 10(3) of the Offence. Of Zina (Enforcement of Hudood) Ordinance No,VII, 1979 to imprisonment for twenty five years' rigorous imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant.
2. Being aggrieved by the conviction and sentence, the appellant filed instant criminal appeal bearing Criminal Appeal No,167-J of 2001 through jail.
3. In nutshell the facts of the prosecution case as narrated in the F.I.R., Exh.P.E, lodged upon the statement of one Muhammad Waris are that on 5-5-2000 at about 7-00 a.m. Daughter of the complainant namely Mst. Anam aged 4/5 years went to ease herself in an unoccupied house of Muhammad Riaz situated opposite to the house of the complainant. After a short while, up or hearing shrieks' of Mst. Anam, complainant along with other witnesses went to the said house saw Imtiaz Hussain (appellant) committing Zina-bil-Jabr with Mst. Anam. Statedly, on seeing the witnesses. Irmiaz Hussain ran away from the spot. The matter was reported to the police on 14-5- 2000 by Muhammad Waris, complainant P.W.8, and on his statement F.I. "Exh.P.E, was recorded by Mukhtar Ahmad, A.S.-I./P.W.10 who after formal investigation submitted challan before the trial Court.
4. During the trial, prosecution produced ten witnesses in, order to prove the charge against the appellant.
' Ghulam Shabbir, F.C/P.W.1, took the 'parcels of this case (case property) to office of the Chemical Examiner and delivered the same intact. Laved Khalid, F.C/P.W.2 kept the parcels (case property of this case) in Malkhana for safe custody and later on deliveted the same to the constables for onward transmission to the relevant ofticers. _Muhammad Ramzan, F.C/P.W.3, took [mtiaz Hussain appellant to the hospital for medical examination.
' Dr. Tasneem Hayat, P.W.4, prepared medico-legal reports (Exh.P.B) of Mst. Anam and observed following 'injuries on her person:-
(i) Second degree perennial tear (involving three layers i,e, vaginal wall, perennial muscles and perennial skin).
(ii) A long tear in the posterior vaginal wall involving whole length of vagina.
' Stately, both these wars were bleeding. Restoration of normal vaginal wall was done by stitching..
Second degree perennial tear was stitched in three layers. The patient. Remained in the ward under treatment for 7 days.
' Muhammad Sarfraz, P.W.5 medically examined Imtiaz Hussain appellant and opined that he was a young healthy man, sex organs were fully developed, cremestric reflux were fully developed on both sides.
' In the opinion c' the doctor, there is nothing to suggest that the appellant was unable to perform sexualact.
' Muhammad Igbal, F.C/P.W.6,_ took the parcels containing semen/swabs of Imtiaz Hussain appellant for onward transmission to the office of chemical Examiner and delivered the same intact.
' Dr. Rizwana Anjum P.W.7, on 16-5-2000 medically examined Mst. Anam aged 4/5 years and observed to following injuries on her person:- " A long tear in the posterior vaginal wall the whole length was involved. Both these tears were bleeding.
' At the time of "examination, hymen was absent, a moderately healed second degree perennial tear and an already stitched long tear in the posterior vaginal wall were present. Three swabs were taken and sent for semen analyses and grouping. In a sealed pack.
' In the opinion of the doctor, Mst. Anam was definitely raped. It is further clarified by the doctor that semen is not expected to be present in the vagina because at the time of repair of tear under anesthesia victim was extensively cleaned with antiseptic solution. Even then these swabs were taken and sent for semen analyses and grouping.
' Muhammad Waris, P. W.8, and Muhammad Sher, P. W .9, ' being eyewitnesses of this case narrated the circumstances under which the appellant was seen by them committing Zina-bil-Jabr with Mst. Anam. Both of them had supported the prosecution case in verbatim. Mukhtar Ahmad, A.S.- I./P.W.10,_ conducted form,a1 investigation of this case and submitted challan before the trial Court.
5 Learned Public Prosecutor tendered in evidence export of Chemical Examiner as Exh.P.1 and closed the case for the prosecun,
6. After recording entire prosecution evidence, learned trial Court -examined appellant under section 342, Cr.P.C. Wherein the appellant while answering to the question " Why this case against you and why P.Ws. Have di._ osed against you " replied as under:- "In, fact, it was a blind occurrence. I was arrested in another case under section 377, P.P.C. And was sent to judicial lock-up. The police instead of tracing real culprit of this case, falsely involved me in this case for which 1 have no concern at all."
' The appellant neither made any statement under section 340 (2), Cr.P.C. Nor produced any evidence in his defence.
7. Learned Trial Court after appropriate appraisal of evidence available on record, vide judgment dated 17-11-2000 convicted and sentenced the appellant as narrated in the earlier part of this judgment.
8. Learned counsel for the appellant submitted that this occurrence was reported to the police after the delay of nine days and this delay in lodging the F.I.R. Itself was sufficient to create doubt about the authenticity of the prosecution case; that it was an unseen occurrence, the presence of both the witnesses at the spot was doubtful, the victim of this case was never examined by the trial Court and in the circumstances conviction and sentence of the appellant was illegal. Conversely, learned State counsel had vehemently opposed the contentions raised by the learned counsel for the appellant.
9. Arguments heard. Record perused.
10. In order to prove the charge against the appellant, prosecution has mainly relied upon the statement of two eye-witnesses namely Muhammad Waris, P.W.8, and Muhammad Sher, P.W.9, and sought corroboration from the medical evidence. This occurrence statedly took place in a vacant house situated opposite to the house of the complainant. Statedly, on the day of occurrence at about 7-00 a.m, Mst. Anam aged 4/5 years (daughter of the complainant) went to the said house to ease- herself when she subjected to Zina-bil-Jabr by the appellant. The father of Mst. Anam namely Muhammad Waris, P.W.8,. Along with Muhammad Sher, P.W.9, and his brother Anwar (given up P.W. ) reached at the spot upon hearing the shrieks of his daughter and witnessed the occurrence. As narrated earlier the house of Muhammad Waris, P.W.8, is just opposite to the place of occurrence. Similarly, Muhammad Sher,_ P.W.9/first cousin of Muhammad Waris complainant, is also resident, of the same locality. Both the witnesses are labourers by profession.
At the time of occurrence, Muhammad Sher, P.W.9, was present in the house of Muhammad Waris, P.W.8, for going to earn their livelihood. The presence of both the eyewitnesses at the spot in the circumstances of this case seems to be natural. Both these witnesses successfully stood the test of cross-examination. There is nothing on record to show that these eye-witnesses had any motive to falsely implicate appellant -in this case. Even in case of single accused substitution by the kith and kin of the victim is a rare phenomenon. The medico-legal reports prepared by Dr. Tasneem Hayat, P.W.4, and Dr. Rizwana Anjum P.W.7, affirm the fact that Mst. Anam aged 4/5/ years was sexu-lly assaulted and corroborate the ocular account. The statements. Of both the eye-witnesses inspire confidence, ring true and the same can be relied upon safely to uphold the conviction and sentence of the appellant.
11. About the delay in lodging the F.I.R. Muhammad Warfs, P.W.8, has explained that the matter was reported to the police after nine days because accused party was trying for a compromise through respectables of the locality but he did not agree to it. Even otherwise, in cases where reputation of a young girl or family is at stake. People are usually reluctant to report the matter with the police and delay in lodging the F.I.R. In such-like cases is immaterial. Similarly under Article 3 of Qanun-e- Shahadat, only those persons are competent to testify to whom Court considers that they% are competent to understand and give rational answers to the questions put to them, but where a person is of tender age or extreme old to understand the proceedings a Court may refuse to call him as witness. In the present case, undoubtedly Mst., Anam (victim) was only 4/5 years of .Age and being a child of tender age Mst. Anam was not a competent witness. The arguments of learned counsel for the appellant that in the absence of statement of Mst. Anam (victim), the case of the prosecution is doubtful, have no force:
12. The upshot of the above discussion is that, the evidence available on record show that the prosecution has proved its case to the hilt and this appeal .Having no force stands dismissed.
Appeal dismissed.
2002 YLR 508 [Lahore] Before Bashir A Mujahid, J GHULAM RASOOL---Petitioner versus THE STATE---Respondent Criminal Miscellaneous No,1011-B of 2002, decided on 25th February, 2002.
Criminal- Procedure Code (V of 1898)---- ----5.497--Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Accused though Was allegedly present at the spot, .But neither had caused injuries to the deceased nor to prosecution witnesses---Only role attributed to the accused wad that he accompanied the co-accused--- Accused was aged more than 65 years and his involvement in commission of crime was matter of further inquiry/probe---Accused was admitted to bail in circumstances. [p. 5091 A M.A. Zafar for Petitioner.
Malik Muhammad Aslam for the State.
. ' Ghulam Rasool seeks after-arrest bail in case F.I.R. No,320 of 2001 dated 25-8-2001 under sections 302/148/149, P.P.C., registered with Police Station Khurrianwala, District. Faisalabad, at the instance of Mst. Kalsoom Bibi with the allegation that the petitioner while armed with Danda, his son co- accused Muhammad Hussain armed with iron Sanbal, Akram also armed with Kassi and Mst. Safia Bibi daughter of the petitioner armed with Danda attacked the complainant party and caused injuries to Ghulam Hussain, Arif Ali and Sakhawat Ali and Ghulam Hussain succumbed to the injuries.
' The petitioner was refused bail by the learned Additional Sessions Judge, Jaranwala vide order dated 12-172002, hence this petition.
' Learned counsel for the petitioner contends that the allegation against the petitioner is only that he was present at the spot at the time of occurrence and no injury was caused to the deceased or the P.Ws. By him. He being the elder of the family has been implicated by -thronging the net widen.
' Conversely, the bail application has been opposed by the learned counsel for the State.
' Heard. Record perused.
The petitioner although has been alleged present at the spot but neither had caused injuries to the deceased nor to the P.Ws. The only role attributed to the petitioner is that he accompanied his co- accused. He is aged more than 65. Years, his involvement in the commission of crime is matter of further inquiry/prove. Therefore, the petitioner is -admitted to bail subject to his furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the trial Court.