' ZAFAR PASHA CHAUDHRY, J.---This appeal by appellants Muhammad Ilyas Bhatti and Muhammad Asghar Bajwa alias Ghulam Abbas Bajwa, is directed against the judgment dated 16-2-2002 passed by Mr. Sadaqat Ullah Khan, Additional Sessions Judge, Lahore, whereby the appellants had been convicted and sentenced under section 10(4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to above as the Ordinance) and under section 337-A(ii), P.P.C.
As follows:-- ' Under section 10(4) of the Ordinance to suffer 20 years' R.I., each with 30 stripes each.
' Under section 337-A(ii), P.P.C. To suffer two years' R.I. Each.
' Under section 342, P.P.C. To suffer R.I. For one year each.
' Both the sentences were ordered to run concurrently.
2. Brief facts relevant for disposal of the appeal are that at about 1-00 p.m. On 21-7-1999, the appellants Muhammad Ilyas Bhatti, S.-I. And Muhammad Asghar Bajwa alias Ghulam Abbas Bajwa, S.-I. Alongwith 16 other police officials raided the house of Khadim Ali, complainant. They entered the house, disgraced the womenfolk and dragged them out of the house. Thereafter Mst. Rashid Begum, the complainant's wife and Mst. Yasmeen, his daughter-in-law, who had been recently married, alongwith his two sons Muhammad Asif and Pervaiz were forcibly carried away. The raiding party also committed theft of Rs,13,000 and golden ornaments weighing 10 Tolas from the house. The complainant on his return from Faisalabad came to know of the aforesaid incident and also that four persons had been illegally confined in the lock-up of C.I.A. Police Station Kotwali, Lahore. A Habeas Corpus Petition (Criminal Miscellaneous Application) No,102/H of 1999 was moved before the learned Lahore High Court, seeking the release of the said detenues. Consequently they were got released on 29-7-1999 through Court Bailiff. The detenues complained that the appellants had severely tortured them and according to Mst. Yasmeen she was subjected to rape (Zina-bil- Jabr) as well, by both the appellants one after the other. The Honourable Judge directed that the detenues should be medically examined. On receipt of the medical report criminal case was ordered to be registered against the appellants. In compliance thereof Naulakha Police Lahore registered case F.I.R. No,310 of 1999 under sections 354/ 337-L(ii)/452/342, Pakistan Penal Code read with section 10 of the Ordinance.
' According to complainant the investigating officer did not conduct fair investigation and on account of his being in close liaison with the appellants they were declared innocent and were recommended to be discharged. The complainant was therefore constrained to institute a private complaint. After summoning the accused/appellant the learned trial Judge framed charge under sections 392/354A/342/452/337-A(ii) and 365, Pakistan Penal Code under first head and under second head charged the appellants under section 10(4) of the Ordinance for committing a gang rape with Mst. Yasmeen. The appellants pleaded not guilty and claimed trial.
3. The complainant examined eleven witnesses in support of his claim. Apart from them Ayaz Ahmad, S.-I. Was examined as Court-witness. The witnesses more or less reiterated the allegations levelled in the complaint. The appellants on close of prosecution case were examined under section 342, Cr.P.C. Muhammad Ilyas Bhatti, appellant denied all the allegations against him. In answer to question No,6 he made the following reply:-- "Bailiff came to C.I.A. Kotwali but before reaching the Bailiff about 10/15 minutes two women came to C.I.A. Centre and requested to meet Asif alias Acchhi accused, detained at C.I.A., at that moment I was busy in investigation of another case, I asked them to wait for some moment, they sat in C.I.A.
Centre. The police station is a public place and any body can come at any time and can sit any time, hence the allegation is false and without footing. It was preplanned by the complainant party just to save a criminal desperate Asif alias Achhi who is involved in a number of murder and dacoity cases."
' He also opted to appear as his own witness under section 340(2), Cr.P.C. Similarly Muhammad Asghar Bajwa alias Ghulam Abbas Bajwa, appellant denied all the allegations. However, with regard to raid by the Bailiff he expressed his ignorance, as he was not present in the police station at that time. He also opted to appear as his own witness as permissible under section 340(2), Criminal Procedure Code.
4. At this juncture of trial amendment was incorporated in the act and the forum of trial was changed. That however has not affected the merit of the case. The gist of the defence plea is the false implication of the appellants because Mst. Yasmeen who is main witness in this case, is wife of Muhammad Asif alias Acchhi. Muhammad Asif alias Acchhi was required in a number of criminal cases and is a hardened criminal. Out of various criminal cases registered against him, one of them was under investigation with the appellants. The instant case has been concocted against the appellants in order to exert pressure on them to refrain them from fair investigation. They have been blackmailed and have been roped in a false case just as a counterblast. In support of their plea a list of criminal cases and number of F.I.Rs, against Muhammad Asif alias Achhi husband of Mst. Yasmeen, has been brought on record.
' The main charge against the appellants is under section 10(4) of the Ordinance. The sentence of 20 years' R.I. Has been imposed under that section. The learned counsel on behalf of the appellants had very seriously contested this part of conviction.
' The conviction under sections 337A(ii) and 342, P.P.C. Have not been seriously assailed. May be rightly so because injuries have been caused to Mst. Yasmeen (P.W.2), Mst. Rashida Bibi (P.W.3) and Parvaiz. The medical evidence supports the statements of the witnesses in this respect. The fact that they were detained in the C.I.A. Police Station is established because a Bailiff had to be deputed to recover them. Under orders of the High Court the injured were medically examined and the allegations were supported by their respective medical reports. Similarly the conviction under section 342, P.P.C. is supported by the report of the Court Bailiff. As noted above, two years' R.I. Had been awarded under section 337-A(ii), Pakistan Penal Code and one year R.I. Under section 342, P.P.C. To each of the appellant. No conviction has been recorded under the remaining sections contained in the charge.
' The appellants have been mainly convicted under section 10(4) of the Ordinance and have been sentenced to suffer 20 years' R.I., each with 30 stripes each. In support of this charge the only evidence is that of Mst. Yasmeen (P.W.2), the alleged victim, who in her statement accused both the appellants to have committed sexual intercourse with her one after the other. In support of her statement Dr. Lubna Naseem (P.W.4) was examined. As per her examination she observed multiple t scabbed abrasion and healing contusion on the left part of her chest.
' With regard to the commission of rape she examined the private parts of her body, which revealed that she had been subjected to sexual intercourse. The medical examination of the doctor as such cannot be of much help because admittedly Mst. Yasmeen was a married woman and after she was released from custody of the appellants under the order of the High Court had thereafter joined her family. The doctor after physical examination did not record her opinion regarding the commission of Zina-bil-Jabr and reserved it to await the report of chemical examiner. The report by the chemical examiner was found to be in negative, meaning thereby that none of the articles were found to be stained with semen. In view of the negative report of the chemical examiner the prosecution is left with the solitary statement of Mst. Yasmeen. She herself has stated during cross-examination that there was none else who witnessed the commission of Zina with her. Be that as it may, to record conviction under section 10(4) of the Ordinance, which is an extremely grave offence, there should be unimpeachable and absolutely trustworthy evidence available in support of the accusation. No doubt in some of the cases convictions have been based on the solitary statement of the victim but in that case as well, the necessary support through medical evidence or the report by the chemical examiner is always required. In the present case, husband of witness is a known criminal and required in a number of serious cases, which were under investigation by the police. The possibility of Mst. Yasmeen of making a false allegation in order to exert pressure on the police cannot be ruled out. Even otherwise the prosecution has not been able to discharge its onus because it will be unsafe in the circumstances of this case to base conviction under section 10(4) of the Ordinance on solitary non-corroborated statement of Mst. Yasmeen. We are, therefore, of the view that appellants' conviction under section 10(4) should not be upheld as such their conviction and sentence under this section is set aside.
8. The appellants' conviction under sections 337-A(ii) and 342, Pakistan Penal Code, since supported by the oral as well as documentary evidence, the same is upheld and maintained. The appellants are in jail, they will be released therefrom on completion of terms of their sentences of two years' R.I. Under section 337-A(ii), P.P.C. And one year R.I. Under section 342, P.P.C. Both these sentences have been ordered to run concurrently. The benefit of section 382-B, Criminal Procedure Code is allowed to the appellants.
8. The appeal is partly allowed in the above terms.