ABDUL REHMAN alias NIKKA and another vs STATE

Saeed-ur-Rehman Farrukh, J.--By this judgment we propose to dispose of the following two matters as these arise out of common judgment dated 15.10.2003, passed by Additional Sessions Judge-II, Bhakkar whereby the two appellants were convicted for offence under Section 11 read with Section 18 of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called ';The Ordinance") and sentenced to 5 years RI each with fine of Rs, 10,000/- each, in default whereof to further undergo six months S.I each. Benefit of Section 382-B Cr.P.C. was granted to them:--

1. Cr. Appeal No, 255/I of 2003, (Abdul Rehman vs. The State).

2. Cr. Rev. No, 31/I of 2003, (Muhammad Afzal vs. Abdul Rehman etc.).

2. Relevant facts are; on 20.11.2003 Muhammad Afzal complainant (PW.3) lodged FIR (Ex. PA) at Police Station Mankera Distt; Bhakkar in respect of an occurrence dated 9.11.2003 wherein at morning time his elder daughter Mst. Sajida Mai aged 16 years alongwith her younger sister Mst.

Atia Parveen aged 6J7 years went out into the fields to ease themselves and were intercepted, en- route, by the two appellants who are real brothers inter-se. It was alleged that Mst. Sajida Mai was caught hold of by the appellants and taken away for a few paces with the intention of abducting her. On the alarm raised by minor Asia Parveen Sarfraz father of the complainant and his mother Mst. Allah Wasai rushed there and saved Mst. Sajida Mai from the clutches of the appellants, who made good their escape. He alleged that the complainant was at Lahore and on learning about the incident he came to the village. The delay in lodging the FIR took place as the accused had been trying in the meantime for a patch up.

3. The police after investigation submitted challan against the appellants under Section 11 read with Section 18 of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called "The Ordinance") before trial Court who framed charge sheet. Both the appellants pleaded innocence and claimed trial.

4. At the trial, the prosecution produced four witnesses, in all.

Mst. Sajida Parveen PW.1 deposed that on the fateful day, at Fajar time. She went out of her house with her younger sister Mst. Asia Parveen (PW.2) to ease herself and the appellants caught hold of her from the arms for the purpose of Zina and dragged her to some distance. Her younger sister started weeping on which her grandfather and grandmother rushed there and recused her. In her cross-examination, she conceded that she did mention in her statement before the police that she was dragged by the appellants for commission of Zina. According to her the place of occurrence was located at a distance of 15/20 karams from her house. She admitted that there was a khola near her house which was used for easing one self. She also admitted that her clothes were not torn in the incident nor she sustained any scratches. She explained that it was a sandy place. She denied the suggestion that on the day of alleged occurrence the accused were not present in the village and had gone to their lot.

She deposed that Mst. Shamim was sister of her father who was married to Muhammad Ramzan, real brother of the two appellants. She had left the house of her husband and was living with family of the complainant .for the last about one year. She was divorced after this occurrance. She denied the suggestion that the present case was foisted upon the appellants to secure divorce for Mst.

Shamim, her paternal aunt.

5. Mst. Asia Parveen aged 7 years, PW.2 appeared in Court and fully supported the version of Mst.

Sajida Mai PW.1. It may be mentioned that before examining her, learned trial Judge fully satisfied himself, by putting her suitable questions, that he could competently depose in Court On oath. She admitted that at the time of occurrence the appellants were empty handed. She denied the suggestion that appellants had in fact gone to the lot and no occurrence, as alleged, took place.

She also refuted the plea of the appellants that the present case was false and was manouvered only to get divorce for Mst. Shamim.

6. Muhammad Afzal PW.3 complainant, reiterated the allegations levelled in the FIR. He stated that there was talk for compromise but it fizzled out due to the negative attitude of the accused. He was confronted with the FIR wherein, the details of the proposed compromise, as given in his statement in Court, were not mentioned. He admitted that there was litigation between his sister Mst. Shamim and her husband. At one time she deserted his house and came to live with him (witness) but later on went back to her husband's house. Two children were born during her stay there but again bitterness developed and she gain abandoned her husband and started to live in his house.

Presently, there was a suit for restitution of conjugal rights pending before Court. He denied that after failing to get divorce for his sister, he lodged a false case against the appellants.

7. Khadim Hussain ASI, PW.4 deposed about various steps taken by him, leading to submissions of challan in Court.

8. After conclusion of prosecution evidence, statements of the appellants were recorded under Section 342 Criminal Procedure Code. He denied the prosecution story in toto and took up the plea that they had been involved in the case due to the litigation between Mst. Shamim and their brother.

9. In defence, following documents were tendered in evidence:--

(i) Copy of maintenance suit titled "Mst. Shamim Bibi vs. Muhammad Ramzan" dated 23.12.1998.

(ii)Copy of judgment dated 25.5.2000 passed by Judge Family Court whereby both suits (i) for maintenance filed by Mst. Shamim and (ii) suit for restitution of conjugal rights were decreed.

(iii)Copy of plaint of suit or restitution of conjugal rights filed by Muhammad Ramzan against Mst.

Shamim dated 22.11.2002.

10. We have heard the learned counsel for the parties and perused the record with their assistance.

11. It is contended by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellants beyond doubt. According to the learned counsel the prosecution evidence bristled with material discrepancies and no reliance could be placed upon it. He also pointed out that the inordinate delay in the FIR rendered the prosecution case open to serious suspician and it would be highly unsafe, keeping in view the settled principles for administration of criminal justice, to convict the appellants.

On the other hand learned counsel for the complainant, while stoutly defending the impugned judgment, argued that keeping in view the gravity of offence the sentences awarded to the appellants be enhanced. However, learned counsel for State expressed his inability to defend the impugned judgment.

12.We find that the prosecution case stood proved beyond dokibt, through the testimony of two female witnesses, Mst. Sajida Parveen PW-1 and Asia PW-2. They have given consistent account of the occurrence and their testimony has the ring of truth. The learned trial Judge closely observed their demeanour in Court and was duly impressed by it. We see no reason to differ with him. There are minor discrepancies/omissions in their statements vis-a-vis their statements before police but these are inconsequential.

13.As regards delay in FIR, it is well settled that the same, by itself, does not constitute sufficient, ground to discredit the prosecution version. Keeping in view the social values in our society, particularly in the rural area, in such like cases, parents hesitate to straightaway rush to the police and get a case registered. In almost every case the accused party tries to prevail upon the complainant side to agree to compromise. There is evidence in this case about such attempt, as deposed to by Muhammad Afzal PW-3, father of the victim, which could not fructify, for one reason or the other. We, therefore, repel the objection in this behalf.

The plea of the appellants that they were implicated by way of pressure tactic to secure divorce for Mst. Shamim, we are afraid that the same also lacks merits. A father would not like his young daughter to be embroiled in such like litigation, which was definitely going to cause ignominy to her for rest of her life, besides lowering the family as a whole, in the estimation of the village community. Besides, there was already pending litigation between the spouces and in case Mst.

Shamim desired to get a divorce she could have gone to the Court with a suit for dissolution of her marriage. This eventuality, unfortunately, did not arise, as Muhammad Ramzan, her husband felt so annoyed with the complainant's family due to the implication of his brothers in this case, 'that he did not wish to proceed further with his suit for restitution of conjugal rights and pronounced Talaq upon her. The foolish, rather immoral act on the part of the appellants, thus led to the ruination of the family life of Mst. Shamim for ever.

14.However, in the facts and circumstances of the case, we are convinced that the prosecution failed to prove commission of offence under Section 11/18 of The Ordinance." They evidence on records reveals that the appellants were successful in outraging the modesty of the victim. They caught hold of her and dragged her for some distance. They thus committed offence under Section 354 PPC and are convicted accordingly, after setting aside their conviction under Sections 11/18 of "The Ordinance". Keeping in view the nature of the offence and roles played by the appellants, particularly the fact that they have faced protracted litigation and remained incarcerated in jail for about 234 months, we consider that the sentence already undergone by them would be sufficient, in the interest of justice, for the offence under Section 354 PPC.

15.Accordingly, while altering the conviction of the appellants to one under Section 354 PPC the sentence already undergone by them is imposed upon them. They are on bail and their bail bonds stand discharged.

16.The criminal revision (Cr. Revision No, 31/I of 2003) for enhancement of the sentences of the