MUHAMMAD SAFDAR Versus STATE

JUSTICE ABDUL MAJID TIWANA (MEMBER). ---- This appeal is directed against the judgment, dated 17-3-1993, by which the learned Judge, Special Court for Speedy Trial No.II, Lahore---

(i) convicting Muhammad Safdar alias Billa, Nadeem alias Deema and Amjad appellants under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C. sentenced each of them to undergo 25 years' R.I. and whipping amounting to 30 stripes each, besides paying the compensation of Rs.10,000 under section 544-A, Cr.P.C. to Mst. Safia, the victim of Zina-bil-Jabar; and

(ii) convicting them under section 452/34, P.P.C. sentenced each of them to 7 years' R.I. and a fine of Rs.10,000 each or in default to further undergo 1 year's R.I. each. The fine, if realised, was directed to be paid to her.

The substantive sentences of the appellants were, however, directed to run concurrently and they were held entitled to the benefits of section 382-B, Cr.P.C.

2. The prosecution case leading up to the trial, conviction and sentence of the appellants was that on 28-10-1992 at about 10 a:m. when Mst. Safia P.W. aged about 12 years was present all alone in the house of her parents at Chak No.266/R.B., District Faisalabad, as the members of her family had gone to another village to attend the marriage party of their relation, the appellants, one of whom, namely, Amjad was armed with a carbine, trespassed into her house. Having intruded there, they caught hold of Mst. Safia in the courtyard, dragged her into the room and committed Zina-bil-Jabr with her, one after the other. Her father Abdul Rashid complainant accompanied by Abdul Ghafoor and Muhammad Aslam P.Ws. happened to return to his house. To his surprise he found the door of the room chained from inside and the girl crying. He and his companions peeped through the chinks of the door and saw Safdar alias Billa appellant committing Zina with Mst. Safia P.W., Nadeem alias Deema appellant gagging by placing his hand over her mouth, and Amjad appellant standing nearby armed with a carbine. Abdul Rashid complainant knocked at the door and the appellants, after unchaining it from inside, ran away after threatening him and his companions with the carbine. Mst. Safia lay unconscious in the room. Her father Abdul Rashid put water in her mouth and when she regained senses, she told him and the other witnesses as to how the appellants, after trespassing into the house, had committed Zina-bil-Jabr with her turn by turn. Abdul Rashid complainant then left for police station to lodge the report and coming across A.S.I. Amanat Ali at Adda Khurianwala at about 11-40 a.m., recorded his statement (Exh.P.D.), on the basis of which the case was registered at Police Station Khurrianwala at 12-10 noon.

3. A.S.1. Amanat Ali (P.W.7), after the registration of the case, went to the spot, recorded the statements of the witnesses, prepared rough plan of the place of occurrence, took Mst. Safia to the Hospital and got her medically examined, arrested the appellants on 6-11-1992 and got them medically examined on 8-11-1992 for their sexual potency. In this `way completing the investigation, he submitted the challan through the S.H.O. of Police Station Khurrianwala.

4. On the commencement of trial in the Special Court, the appellants were charged for committing Zina-bil-Jabr with Mst. Safia after trespassing into her house and, on their pleading not guilty, the prosecution led evidence against them by producing as many as 7 witnesses. To be a little more precise, Lady Doctor Talat Javed, W.M.O. Khurrianwala, District Faisalabad (P.W.1) testified that on 28-10-1992 at 2-30 p.m. she had medically examined Mst. Safia P.W. aged about 12 years on the request of the police and found her vaginal bleeding with hymen torn off but having no injury on any other part of the body. According to her, she took out three vaginal swabs and, after sealing the same, sent to the office of Chemical Examiner who gave a positive report and, in her opinion, she had been subjected to sexual intercourse. She proved the medico-legal report (Exh.PA.), Dr. Muhammad Javed Asghar, M.O., R.H.C., Khurrianwala (P.W.2) stated that he had medically examined the three appellants on 8-11-1992 and found them potent and fit to commit sexual intercourse. According to him, all of them were about 17-18 years old. He proved the medico-legal reports (Exh.P.C./1), (Exh.P.C./2) and (Exh.P.C./3).

5. F.C. Asghar Ali (P.W3) had transported the sealed parcel of vaginal swabs from the police station to the Office of Chemical Examiner, Lahore. H.C. Ghulam Mustafa (P.W.6) had proved the recording of formal F.I.R. (Exh.P.D.l) on the basis of complaint (Exh.P.D.). Written by A.S.I. Amanat Ali. They deposed accordingly.

6. Abdul Rashid complainant (P.W.4) and Mst. Safia (P.W.5) gave the eye-witness account in line with the prosecution case narrated above. Their testimony shall be subjected to detailed appraisal, where necessary, in due course.

7. The last witness A.S.I. Amanat Ali (P.W.7). The part played by him as the Investigating Officer has already been outlined.

8. On the completion of prosecution evidence, the appellants were examined under section 342, Cr.P.C. They denied all the incriminating circumstances figuring against them in the prosecution evidence and, alleging their false implication, professed innocence. They produced Muhammad Afzal Bhatti (D.W.1) and Muhammad Munir (D.W.2) in their defence.

9. Muhammad Afzal Bhatti (D.W.1), claiming himself as Councillor from Ward No.8 of Khurrianwala Town, deposed that during the investigation of this case he alongwith 40 persons approximately had appeared before A.S.P. as the S.H.O. was not listening to him and his companions and stated before him that a false case had been registered against the appellants. He also claimed himself as a- news reporter of different newspapers and after conducted inquiry about the incident, having drawn up his report (Exh.D.B.). He testified that Safdar alias Billa appellant was the neighbour of Abdul Rashid complainant and their families were not on good terms inter se and they often fought with each other.

10. In reply to a Court question, he deposed that Nadeem and Amjad appellants resided in Ward No.8, from where he had contested election, while Safdar appellant was resident of Ward No.6 where Abdul Rashid complainant also resided Muhammad Munir (D.W.2) stated that the appellants were known to him for the last about 6 years, when he started residing in the village after his retirement from Army, and only God knows whether the appellants were guilty or innocent.

11. On the conclusion of the trial, the appellants were convicted and sentenced in the manner aforesaid and aggrieved by the findings of the trial Court, came up in appeal to this Court.

12. It was contended on behalf of the appellants that Nadeem and Amjad appellants were friends of Safdar alias Billa appellant and they all were falsely implicated in this case because there was bad blood between his family and that of Abdul Rashid complainant; that there was a glaring contradiction between the statement of Abdul Rashid complainant when he stated that while going to the police station he took his daughter Mst. Safia with him, while she appearing as her own witness stated that she did not accompany her father to the police station; that excepting the vaginal bleeding, there was no injury on any other part of the body of Mst. Safia and this fact by itself excluding the possibility of her having been dragged into the room from the courtyard of her house and subjected to Zina-bil-Jabr and if at all somebody committed sexual intercourse with her, she was a consenting party; that the blood was noticed on the spot but the investigating Officer did not pick it up nor did he seize the blood-stained Shalwar of the victim which created doubt in the veracity of the prosecution case; and that the defence evidence was sufficient to exonerate the appellants but it was not considered by the learned trial Court in its true perspective. Finally, he requested that if this Court did not ultimately agree with his above contentions, then in view of the adolescence of the appellants and the possibility of the girl having been a consenting party, their sentences might be reduced to the one already undergone by them.

13. After perusing the record with the assistance of the learned counsel representing the parties, we are of the view that there is no substance in the above contentions of the learned counsel for the appellants. There is no tangible evidence on the record to show that there was any serious enmity between the family of the complainant with that of Safdar alias Billa appellant. In any case, there was no animosity between the complainant's family with Nadeem alias Deema and Amjad appellants and there was no reason to falsely implicate them. It is in their statements that they were friends inter se and often moved together. Being young-men, there was every possibility of their having committed Zina-bil-Jabr with the girl, finding her all alone in the house. The medical evidence was of reliable character and the statement of the Lady Doctor, indicating vaginal bleeding of the girl, was a good corroborative piece of evidence.

14. As regards the contradictions pointed out by the appellants' counsel between the statement of Abdul Rashid complainant and Mst. Safia P.W., it did not affect the prosecution case which stood amply proved by the statement of the girl coupled with the medical evidence. Similarly, the failure on the part of Investigating Officer to collect blood from the spot and to seize the Shalwar of the girl, did not materially affect the veracity of the prosecution case.

15. As regards the defence evidence, Muhammad Afzal Bhatti (D.W.1), being a Press Reporter, took upon himself the duty of holding an inquiry into the incident and recording a finding of innocence of the appellants, two of whom were residents of his Ward from where he had contested election for the membership of Town Committee. He seems to have vainly taken an exaggerated view of his authority as a Press Reporter. He had no authority to hold an enquiry and record a finding. It was the job of the police and the authority of the Court and he wrongly arrogated to himself this role. He was a partisan and his testimony was rightly ignored by the learned trial Judge.

16. In view of the above, appellants were rightly convicted under section 10(3) of Ordinance VII of 1979 read with section 34, P.P.C. as also l under section 452/34, P.P.C. However, taking into consideration the fact of juvenile exuberance of the appellants and the absence of any injury on any Part of the body of the girl excepting vaginal region, which suggested the possibility of her being consenting party to some extent, their sentence under section 10(3) of Ordinance VII of 1979 read with section 34, P.P.C. is reduced E from 25 years to 10 years, with no change in their sentence under section 452/34, P.P.C. both of which shall run concurrently. They shall, however, have to undergo the sentence of whipping numbering 30 stripes each and shall have to pay a compensation of Rs.10,000 each to Mst. Safia under section 544-A, Cr.P.C. or in default to further undergo 6 months' R.I. each. They shall have the benefits of section 382-B, Cr.P.C. Only to this extent their appeal is accepted.

N.H.Q./104/SAC Sentence reduced.