BASHIR AHMAD Versus THE STATE Syed Kamal Mufti , M. Iqbal
ABDUR REHMAN KHAN KAIF, J .--This Criminal Appeal by Bashir Ahmad, son of Sher Muhammad, resident of, Bhagiwal police station Chunian, District Kasur, is directed against the judgment of the learned Sessions Judge, Kasur, dated 31-8-1987, whereby he was found guilty of an offence punishable under Section 10 (3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to' as the said Ordinance), for committing Zina-bil-Jabr with Mst. Surayya, a young girl, aged 9/10 years. On conviction under the mentioned provision of law, he was sentenced to R.I. for fifteen years and to whipping numbering fifteen stripes.
2. It may be mentioned that one Rehman son of Chandar Khan, was also tried with him for an offence punishable under section 201/225, P.P.C. on the allegations that he had released Bashir Ahmad, appellant, from the custody of Bashir, P.W., which facilitated his escape from the spot. Since no satisfactory evidence was available against him in connection with the mentioned allegations, he was acquitted of the charge.
3. The facts of the case as stated in the F.I.R. are that on 26-2-1985 at noon time, Bashir Ahmad, father of the victim, was present alongwith one Wali Muhammad near a tubewell. Nawab Din (P.W.3) was also present with them. Mst. Surayya (P.W.2), daughter of the complainant, was cutting grass in the nearby field. In the meanwhile, complainant heard the cries of his daughter. He alongwith Wall Muhammad and Nawab Din proceeded to the spot and saw that a person wearing white Shalwar and Kameez, was running. The complainant and the above-mentioned two PWs tried to apprehend him, but he went towards Shamkot. The complainant found his daughter lying on the ground with blood coming out from her private part. The complainant directed Nawab Din, P.W., to remain present near his daughter and he chased the accused. He reached near the Bus Stand of Shamkot, where he apprehended the appellant, but Rehman (the acquitted accused) intervened and got him released. A case was registered at 7-50 a.m. on 28-2-1985 at police station Kanganpur.
4. It may be mentioned that the sentence of whipping awarded to the appellant was not in accordance with the mandatory provisions of the lacy under which he was convicted. A show-cause notice for enhancement of the sentence was accordingly served on the appellant through his counsel which was accepted.
5. The prosecution examined as many as ten witnesses in this case to substantiate the allegations.
6. Bashir (P.W.1) took a different stand when he appeared during the trial and stated that he was present in his house in Luspura when he was informed that his daughter was subjected to rape. According to him, a girl, Hanifan by name had conveyed the information about the occurrence and he then lodged the report in the police station.
7. Lady Doctor Shamim Zafar (P.W.4), medically examined Mst. Surayya on 1-3-1985 at 11-45 a.m. and found her hymen torn posteriorly and irregularly on sides. She detected blood on hymen margins and found the posterior tear of hymen extended upto vagina. She was found tender on vaginal examination and her vagina could admit an index finger. In the opinion of the lady doctor, the victim had been subjected to rape. She had also found injuries on both the cheeks of the victim. Vaginal swabs were taken and sent to the Chemical Examiner for detection of semen.
8. Mst. Surayya (P.W.2) has narrated the occurrence by stating that while she was present in the field, cutting grass; a person whose name was mentioned as Bashir in the Court, took her to a nearby field where she was subjected to Zina. According to her, nobody had seen the accused while committing Zina with her.
Nawab Din son of Saraj Din (P.W.3) has deposed that on the day of occurrence he was present in his Haveli with one Wali Muhammad when a weaver girl brought Mst. Surayya, who told them that the accused who was seen running from the place of occurrence had committed the crime. They saw Bashir at the distance of 2 / 3 acres.
Muhammad Aslam son of Din Muhammad (P.W.5) has given statement about the extra-judicial confession having been made before him by the accused about the incident while Umar Din son of Qutab Din (P.W.6) produced the Shalwar of the victim before the police. Abdus Salarn, FC., (P.W.7) took the parcel to the office of Chemical Examiner, Lahore, while the remaining witnesses, namely, Muhammad Afzal, S.I. (P.W. 8), Muhammad Shoab, SI (P.W.9) and Abdul Rashid, retired S.I. (P.W.10) have participated in the investigation of the case in one way or the other?
9. The accused when examined under section 342, Cr.P.C. denied the allegations and stated that he was falsely involved in the case at the instance of one Sardar Afzal who had a grudge against him in connection with the local elections. A similar version was stated by him in his statement on oath under section 340(2), Cr.P.C.
10. We have heard the learned counsel for the parties and have gone through the evidence on the record with their assistance.
11. The prosecution has mainly relied upon the testimony of Mst. Surayya, the victim of the occurrence, her father Bashir and Nawab Din 1P.vv.3). Similarly Muhammad Aslam, P.W. was produced to prove the extra-judicial confession allegedly made by Bashir Ahmad, appellant, in his presence. As already mentioned, the version given by Bashir (P.W.1), father of the victim, is not reliable for the reason that he has taken a different stand when he appeared as PW during the trial. In the F.I.R. he had shown his presence near the place of occurrence, but during the trial he stated that he was present in his house when he was informed of the occurrence. For similar reason the statement of Nawab Din (P.W.3) is also not reliable. Similarly no reliance can be placed on the statement of Muhammad Aslam (P.W.5) regarding the extra-judicial confession allegedly made before him by the appellant.
12. From the statement of Mst. Surayya (P.W.2) and the medical evidence supported by the report of Chemical Examiner, it has been clearly proved that Mst. Surayya (P.W.2) a minor girl, aged 9 years was subjected to Zina-bil-Jabr, but the question which remains to be answered satisfactorily is as to who was responsible for doing so. No doubt Mst. Surayya has charged the appellant during the trial, but keeping in view certain admissions made during her cross-examination, it becomes clear that she had never properly and correctly identified the real culprit. It has, been stated that she identified him in the regular identification parade, held under the supervision of one Muhammad Afzal, Magistrate Ist Class, Chunian, but neither the E Magistrate was produced as a witness in the case nor the relevant material pertaining to the identification parade was placed on the record. Even if it is presumed that she identified the appellant in an identification parade so held, it will be of no help to the prosecution for the reason available in the statement of Mst Surayya. The relevant sentences of her statement during her cross-examination are as under:-
"When we had gone to police station Bashir was found there. The police showed us Bashir accused, at the police station and stated, he was the person. For two occasions I had seen the accused at the police station."
Similarly in her cross-examination. Mst. Surayya has admitted that she had become unconscious at the place of occurrence and remained unconscious for 4/5 days. She further stated that when the accused committed cruelty with her she became unconscious and did not identify him.
13. As already mentioned, according to the prosecution version, one Hanifan was the only person who was stated to be present at the time of the alleged occurrence and had allegedly seen the accused committing Zina-bil-Jabr with Mst. Surayya, but this Hanifan was never produced to support the prosecution version. As already stated the statement of the complainant is full of contradictions. He was the person who lodged the F.I.R. and had specifically stated that he saw the accused, but subsequently during the trial, he has deposed that at the time of occurrence, he was in his house. The fact that the report was lodged on 28-2-1985 when the occurrence had taken place on 26-2-1985, further showed that the real culprit was not identified properly and it was after due consultations and deliberations that the report was lodged in the police station after considerable, delay.
14. From the discussion made above it becomes clear that the case against the appellant is not free of doubt and the benefit of such doubt shall have to be extended to him. Accordingly, we allow the appeal of Bashir Ahmad son of Sher Muhammad, set aside his conviction and sentence and acquit him of the charge. The appellant shall be released forthwith if not required in any other case. The Notice for enhancement of sentence of whipping stands vacated.
S.A./396/F.Sh. ???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.