MUHAMMAD ANWAR Versus State
SHAHZADO SHAIKH, J.--- This jail appeal filed by appellant Muhammad Anwar son of Chiragh Din is directed against judgment dated 25-2-2010 delivered by learned Additional Sessions Judge-II. Arifwala whereby he was convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to life imprisonment, and tine of Rs.20,000 or 3 months' S.I. He was further convicted under section 10(3) ibid, and sentenced to 5 years' R.I. with tine of Rs.10.000 or one month S.I. All sentences shall run concurrently. Accused was given benefit of section 382-B of the Code of Criminal Procedure.
2. Brief facts narrated by Mst. Noor Begum widow of Mumtaz P.W.4 in the F.I.R. No.144 of 2006 dated 6-8-2006 lodged at Police Station Ahmed Yar, District Pakpattan Sharif are that on 31-7-2006, at about 11-30 p.m. accused Muhammad Anwar, Ghulam Nabi, Zuifiqar Ali and Zaheer went to the house of Noor Begum complainant, called her daughter Siddra Bibi. The complainant inquired from them as to why they were calling Siddra. Accused Anwar, who was armed with pistol .30 bore, aimed it at the complainant and asked her not to make any noise, otherwise, the complainant would be done to death. Muhammad Anwar accused caught hold of Siddra Bibi, from her arms, dragged her and took her outside the Haveli. On hue and cry, Abbas and Muhammad Aslant P.Ws. were attracted and saw the occurrence. In the meantime accused boarded the victim Siddra Bibi, in a car.
3. After usual investigation the accused was sent up for trial before learned trial Court. Charge was framed on 16-7-2007 to which the accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case produced 09 witnesses:
P. W.1. Dr. Rukhsana Asim Sukhera, WMO THQ Hospital Arifwala, medically examined Mst. Siddra Bibi daughter of Mumtaz aged 14 years on 18-8-2006, brought by the police of Police Station Ahmed Yar. Observations of this; witness are as under:--
"A young girl well-oriented in time and space presented herself for examination of rape case by police, under court order. On examination, no mark of violence was seen all over the body.
On Private Part of Examination
Vulva and vagina normal, Vigina admitted one finger tightly. No laceration, no bleeding seen. Three viginal swabs are taken, sealed and sent to Chemical Examiner, Multan for detection of semen if any. Buckle saliva and blood sample for spermatozoa thyping if any. MLC of victim Exh.PA, which is in her hand writing and bears her signature."
P.W.2. Dr. Muhammad Sabir Chaudhry examined Muhammad Anwar accused on 18-8-2006 and found him fit for sexual intercourse, and issued MLC Exh.P/B.
P.W.3. Zafar Iqbal 343-HC, received envelop on 18-8-2006 from the Investigating Officer for its onwards transmission to the office of Chemical Examiner, Multan. This witness handed over the same to Muhammad Khalid 135-C for its deposit to the office of Chemical Examiner, Multan on 23-8-2006.
P.W.4. Mst. Noor Begum, complainant/mother of abductee/victim, narrated almost the same story as she narrated in her statement Exh.PG before the police.
P.W.5. Abbas is an eye-witness of abduction of victim Siddra Bibi. He narrated the facts about abduction of victim.
P.W.6. Mst. Siddra Bibi victim of the case, narrated that four months back at about 11-30 p.m. when she was sleeping with her mother, four 'accused persons namely Zulfiqar, Ghulam Nabi, Zaheer Abbas and Anwar entered in their house and the accused Anwar was armed with pistol. All the accused dragged the abductee and took her to, unknown place where they committed zina with her. Police recovered her from the house of Anwar in Chak No.37/EB and recorded her statement and produced her before the Illaqa Magistrate, but her statement under section 164 Code of Criminal Procedure was not recorded by the Magistrate and considered the statement of 161 Code of Criminal Procedure. In her cross- examination, she stated that distance between the place of abduction and where she was kept by the accused persons for 18 days was two acre.
P.W.7. Muhammad Akram, SI, is Investigating Officer of the case. He narrated the facts about his time-to-time investigation.
P.W.B. Khalid Mehmood, 135-C received envelope from the Moharrar, two sealed parcels containing phials and swabs along with suring on 23-8-2006 for onward transmission to the office of the Chemical Examiner, Multan and he deposited the same in the office of the Chemical Examiner, Multan on 24-8-2006.
P.W.9. Asghar Ali, SI, submitted the challan of the case on 13-12-2009.
5. After the close of prosecution evidence in the trial under consideration the statement of the accused was recorded under section 342, Code of Criminal Procedure in which he denied the allegations and professed his innocence. However, he did not appear under section 340(2), Code of Criminal Procedure on oath in disproof of his allegation and did not produce any witness in his defence.
6. The learned trial Court after hearing arguments of both the parties, delivered the impugned judgment of conviction and sentence against the appellant as detailed in para No.1 ante. Hence this matter before this Court.
7. Learned counsel appearing for Muhammad Anwar appellant has contended that the evidence laid before the learned trial Court was not sufficient to justify the commission of offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 hence it has not been proved beyond shadow of doubt; since the offence under section 10(3) ibid has not been proved so the conviction under section 11 ibid cannot be recorded; the statements of the complainant suffer from major contradiction, hence it is not truthful; according to the evidence of the lady doctor P.W. the victim was virgin which means that no rape had been taken place; P.W.5 Abbas was not present on the spot at, the time of occurrence. The learned counsel for the appellant lastly argued that the F.I.R. was recorded after investigation, which is against the law.
8. Learned counsel for the State on the other hand has opposed the appeal and supported the judgment under challenge.
9. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for both the parties. Occurrence took place on 31-7-2006 whereas F.I.R. was lodged by complainant Mst. Noor Begum on 6-8-2006. In this regard the complainant categorically explained that the accused persons had promised to return victim Siddra, but when the accused did not return her daughter, she got recorded the F.I.R. The Investigation Officer recovered revolver .32 bore P-1 i.e., the weapon of offence from Anwar accused and took into possession vide recovery memo Exh.PE. in this regard a separate case against the accused was registered under section 13/20/65 A.O. The investigating Officer also recovered abductee Siddra Bibi from Chack No.37/EB from the house of Muhammad Anwar, appellant. On the same day he got medically examined the abductee from the lady Dr. Rukhsana Asini Sukhera, P.W.1 without delay. Although Lady doctor mentioned in her report that vulva and vigina of the victim were normal at the time of her examination but report of Chemical Examiner regarding vaginal swabs is positive. The recovery of victim and also recovery of weapon of offence from appellant Anwar were established and proved from the record of the case. The victim in her statement fully involved the accused with specific role in the commission of offence, and there was no reason to put at stake the honour of family of die complainant party to get registered a false case against the appellant. Statements of all prosecution witnesses corroborated with each other and there, is no contradiction in their statements on material points of confinement of the victim for 18 days and her recovery by Police from house of appellant Muhammad Anwar, and were proved against the appellant beyond shadow of doubt.
10. So tar allegation under section 1 1 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which pertains to kidnapping abducting or inducing to compel his marriage, is not proved at all, as per requirements of law.
11. There are material and glaring contradictions in the statement of the complainant and the victim between themselves and even within statements of each of them in this regard. At one place the complainant assigns specific role to Muhammad Anwar, accused/appellant in her statement Exit. PG that he dragged her out, while at other place she assigns specific role to each of the other three accused also, who have been acquitted from this charge. But in the same charge only one accused, i.e., Anwar has been convicted and sentenced. If he was the only one offender, then it becomes quite dis-believable that one-person entering housing would be able to drag out from inside the house, quite a grown up girl in presence of her parents, sisters and brothers interestingly the neighbours are also cited as witnesses of the crime, who also did not intervene although no weapon and role has been assigned to any other accused who could be said to threaten or deter them from any reasonable intervention or at least from raising reasonable alarm. The victim stated in her deposition that she was kept at an unknown place, whereas in the same statement she says that site was kept in the house of Anwar which is situated at a distance of 2 'acres' from her house. She does not say that she was also taken to any other place after the abduction. In that case story of driving her out in a vehicle just for a distance of 2 'acres' does not appeal to reason. The alleged house of her confinement was within sight if she was kept in the 'house' of Anwar, then it becomes all the more unbelievable that gang rape would continue for 18 days in the house in the close neighborhood. This is also denied by the Medical Report Exh.P/A as there were no signs of laceration, violence, no bleeding and vagina admitted one finger tightly. In the cross examination, P.W.1, the lady Dr. Rukhsana Asim Sukhera goes to the extent to opine that the victim was virgin.
12. It was admitted by both parties and proved on record that there existed serious family dispute in litigation, ultimately resulting into divorce of sister of the victim, who was married to the brother of accused Anwar. In this inimical situation, fabrications in the story have become quite obvious.
13. Therefore, the prosecution story has miserably failed to inspire confidence about the allegation under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, in this case and has obviously failed to prove it beyond any shadow of doubt. Consequently conviction 'and sentence awarded under this section of law are not maintainable. But since she was recovered by Police, from confinement, although from a house of in-laws of her sister, with quite strained relations, the conviction and sentence are converted to one under section 344, of the Pakistan Penal Code and the appellant is awarded a sentence of three years rigorous imprisonment with tine of Rs.20,000 and in default whereof also to further undergo six months simple imprisonment under this section of law, while the conviction and sentence except the amount of fine recorded under section 10(3) of the said Ordinance is maintained. Both the sentences shall run concurrently with benefit of section 382-B of the Code of Criminal Procedure. With this modification, the appeal is dismissed.
14. These are the reasons of our short order dated 31-1-2011.
H.B.T./13/FSC Order accordingly.