ALI NAWAZ CHOWHAN, J.---This ...judgment will dispose of Criminal Appeal No,1314 of 2001 as well as Murder Reference No,36-T of 2001.
2. The appeal arises on account of the judgment dated 21-7-2001 handed down by Mr. Nayyar Iqbal Ghauri, learned Judge Special. Court, Anti-Terrorism Lahore-IV, Lahore. Whereby he held the appellants guilty under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced them to death as Ta'zir. He also held them guilty under section 7 of the Anti- Terrorism Act, 1997, but did not pass any sentence by stating that death sentence having been already awarded, a separate sentence was not required.
3. The occurrence relates to 6-10.2000. On that date, Ehsan Ullah complainant (PW.9) who is the father of the victim Mst. Nagina (PW.5), had left his home for meeting some of his relations living elsewhere. When he returned on 8-10-2000 to his house, his wife informed him about the occurrence by stating that the appellants who worked in a nearby workshop belonging to Liaqat, who was not produced, took the girl forcibly inside the Workshop while she was going in the street to call her uncle Arif, P.W. That when his wife Mst. Meena, P.W., and his brother-in-law Arif heard the shrieks of the victim emanating from the Workshop, they were attracted and they entered into the Workshop and saw the appellants coming out and the victim while stained with blood and while she was weeping, was standing there.
4. On the basis of this information, he went to the Police Station Chuhang and recorded his statement to Azmat Ali, Sub-Inspector (PW-10), who he had met on the way. The F.I.R. is Exh.P.A/1 based on his statement, Exh.P.A. He later produced the semen and blood-stained Shalwar of Nagina Bibi to the police who took it into possession vide memo. Exh.P.E.
5.After the registration of the case, the victim was taken to Lady Dr. Lubna Naseem (PW.6), a Medico Legal Officer at Nila Gumbad, Lahore who examined her. The following excerpt from her testimony showing her observation is reproduced below in extenso:- "Young little girl of average built, conscious, well-oriented in time and space gave history of sexual assault by two persons on 6-10-2000 at about 2-00 p.m. General Examination (1) No mark of any recent violence on her body. Local Examination.-- (1) No marks of any injury on her external genitalia.(2) No stains of semen or blood on her body or clothes. Blood stains not present on her clothes. History of change of clothes.
History of bath taken. (3) Hymen torn in healing stage. All around of hymen multiple controsions were present. Multiple tears in healing stage with oedametous, red bruised margin at 3,5,6 and 7'o clock position present. A small laceration with surrounding contused area 0.8 x 0.5 c.m. present in the fourchette. All in healing stage and blood to touch. Vagine admitted one finger easily. Three vaginal swa bs one by one taken. sealed and sent to the Chemical Examiner for detection of blood and semen grouping.
Opinion: The clinical findings are consistent with recent breach of virginity."
Exh.P.B is the carbon copy of her Medico Legal Report.
6. Parveen alias Meena (PW.4), the wife of the complainant and mother of the victim, supported the prosecution story and stated that she alongwith her brother was attracted to the Workshop and she saw Mst. Nagina, P.W. weeping. She went on to say:- "She also told us that both the accused committed Zina-bil-Jabr with her. Police took into possession Shalwar stained with semen and blood and cotton stained with semen and blood in presence of my husband Ehsan Ullah and Muhammad Arif."
During her cross-examination, she stated:- "When the accused fled away from the spot we took my daughter to our house. My brother then went to police station to inform the police. Police had immediately reached there. My daughter was medically examined on the next day by the doctor. I had accompanied my daughter while she was taken for medical examination. My husband owns cattle and sells milk. The cattle-shed is at distance of about 200 Yds. From our house. My husband had himself reached there, nobody informed him."
7. Nagina Bibi (PW.5), the victim, supported her case by stating:- "When I was passing through the street both the accused Ashfaq and Shaukat encircled me and took me in the workshop in a room. Ashfaq accused committed Zina-bil-Jabr with me firstly after removing my Shalwar then accused Shaukat committed Zina-bil-Jabr with me after removing my Shalwar. I started weeping due to severe pain My mother Parveen and my uncle Arif P.W. came there after hearing my noise. Blood was oozing from my private part of body."
She is a girl of 8 years of age and we find no certification at the end of the trial Court. suggesting that she was intelligent enough to understand the questions which were put to her and also the implication of the case. She anyway denied that she had been tutored.
8. Muhammad Arif (P.W.8) stated that he was passing through the street with his sister Mst.
Parveen when she heard the shrieks coming from the workshop. When they entered, they found Nagina stained with blood while she was crying. He also saw the appellants coming out of the room and he learnt from the victim that both these appellants had taken her forcibly in a room and committed Zina-bil-Jabr with her turn by turn. He went on to say:- "Thereafter police took the Shalwar P.1 of the victim Nagina and semen and blood-stained swabs into possession Exh.P.E which is attested by me and Ehsan Ullah complainant. Investigating Officer recorded our statements under section 161, Cr.P.C. on the spot."
But during cross-examination he went on to say that his statement was recorded after two days of the incident. He also went on to say that the F.I.R. was registered on 8-10-2000. While explaining that it could not be registered earlier because the father of the victim was not available until 8-10- 2000.
9. Dr. Muhammad Afzal (P.W.7) had examined the appellants and found them medically fit to perform carnal knowledge. Nazeer Ahmad P.W.1 had formally recorded the F.I.R., Exh.P.A/1. Sadaqat Ali (PW.2) is the Muharrer who kept the blood-stained case property in custody which was handed over to him on 8- 10- 2000. On 14-10-2000 he sent the case property to the office of the Chemical Examiner through Allah Rakkha Constable. Allah Rakkha, Constable (PW.3) supported the statement of Sadaqat Ali, Muharrer.
10.Azmat Ali (P.W.10) is the Investigating Officer who had recorded the statement of the complainant, Exh.P.A, and on the basis of which he got registered The F. I. R. Exh.P.A/1. He took into possession the blood-stained Shalwar vide recovery memo. Exh.P.E, attested by Muhammad Arif and the complainant on 8-10-2000, and sent Mst. ,Nagina for medical examination on 9-10-2000.
He arrested accused Shaukat Ali on 12-10-2000 and Muhammad Ashfaq on 15-10-2000. He, however could not record the statement of Liaqat Ali, the owner of the workshop.
11.The report of the Chemical Examiner is Exh.P.G which is in the positive but the grouping of the semen at the end of the Serologist is not a part of the evidence.
12.The case of the appellants in their statements under section 342, Cr.P.C. was one of denial and they stated that they have been involved on account of enmity.
13.Munir Ahmad (D.W.1) appeared as a defence witness for Ashfaq appellant who is his Muhalledar and stated that during then the wife of Ashfaq appellant was admitted in the hospital.
He also deposed that Hamid Ashfaq was a person of good character. Which he maintained throughout his life in the Muhallah. Anyway, during cross-examination, the factum with respect to the admission of the wife of Ashfaq at the hospital during the relevant time. could not be established.
14.Muhammad Hanif (D.W.2) is the father of Shaukat appellant. Who came to depose about his character.
15.There is no eye witness to the occurrence. Mst. Parveen and Arif (P.Ws.) had just seen the appellants going away from the workshop where they were attracted because of the shrieks of the victim and where the victim was weeping. The complainant, any way, based his complaint on the information received by the abovementioned two P.Ws. According to the statement of the doctor, the victim did not have any marks of violence on her body. But this aspect may not be fatal to the case of the prosecution as the victim was of the age of 8 years and could have been overpowered.
16.The occurrence had taken place in a workshop whose owner was never examined. Anyway, there is two days delay in lodging of the F.I.R. and three days in getting the victim medically examined. Muhammad Arif (P.W.8) did not state that on the day of the occurrence, he went to the police station for recording the complaint and which was not registered rather both in examination-in-chief and in cross-examination, he has tried to cover this aspect by merely stating during cross-examination that as the father of the victim was not present at home, the case was not registered on 6-10-2000. He admitted that the blood and semen stained Shalwar was produced by the mother of the victim to the police. He only attested the recovery memo. Exh.P.E.
While Ehsan Ullah complainant stated that he produced the blood-stained Shalwar to the police.
17. Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. and section 7 of the Anti-Terrorism Act, 1997, prescribes the sentence of death. Correspondingly, the Courts have to see that the standard of proof required for establishing an offence under these provisions. was also high. The delay in this case is not properly explained. Arif and his sister Parveen, P.Ws., had not seen the actual occurrence rather they had seen two persons coming out of the workshop. Even if they had seen two persons coming out of the workshop and had heard the victim's shrieks, it was but natural tor them to have stopped the accused and enquired from them as to what had happened or would have gone after them because of their anguish and the shock.
It further appears that there were other persons also working in the workshop. The delay gives rise to the hypothesis that whereas, the victim was subjected to rape (Zina-bil-Jabr), the story of the two P.Ws. was made out after commission of the offence. It is also likely that during two day's delay in lodging the F.1.R.. the complainant side was trying to locate the culprits and on basis of their own beliefs and informations received, they implicated the appellants. The father of Shaukat appellant, however, stated that the fight over children had brought about his involvement in this case. The grouping with respect to the semen has also not been done in this case as is required by law.
Reliance in this connection may be placed on the case of Waqar-ul-Islam and another v. State (1997 PCr.LJ 1107).
18.We have, however the evidence of the victim but we are still not sure whether she was an intelligent child capable of identifying the assailants. Anyway, it would be quite unsafe to entirely depend upon the statement of child in this connection who had suffered a trauma and a shock.
19.Keeping in view the different hypothesis that may be possible in this case and after going through the record and after hearing the arguments and while keeping in view the high standard of proof required in such like cases, we give benefit of doubt to the appellants and acquit them of the charge. They be released forthwith if not required in any other case.
20. Consequently the appeal is accepted and the Murder Reference is answered in the negative.