Rana SHAHBAZ AHMED and 2 others vs TE STATE

' SYED DEEDAR HUSSAIN SHAH, J.---This appeal by leave of the Court is directed against the judgment of the High Court of Sindh, Karachi, dated 27-1-2000, passed in Special A.T. Appeal No,15 of 1998.

2. Briefly stated the facts of the case are that on 18-10-1997 the complainant Mst. Khurshid Bibi lodged a report at Police Station Korangi, Karachi, alleging therein that on the night between 18/19th September, 1997, she was sleeping in her house alongwith her family members and the door was lying open due to hot weather, when at about 2-30 a.m. Four persons out of whom two had pistols, one was armed with mauser and the fourth was empty-handed entered into their house and threatened them on pistol-point giving them fist and kicks blows; the said persons tied their hands, searched the house and took out a sum of Rs,10/12 thousand from the box lying there; the accused tied hands and feet of her daughter Shazia and thereafter all four accused-persons turn by turn forcibly committed rape upon her in the same room, and thereafter they went away threatening that, if they disclosed about the incident they would be killed. The complainant further states that after untying her hands she went out for making noise, she saw that the said four person were standing with one Sabir Ali, who used to work in the Ice Factory situated in front of their house, but due to fear and insult she did not make noise and remained in search of the accused. At last she came to know that accused were Rana Shahbaz, Mohsin Abbas alias Jani, Han Ahmad, appellant herein and Umar Daraz, who resided in their Mohallah and committed the Wardat at the instance of Sabir Ali co-accused (since acquitted).

3. Muhammad Anwar, Inspector, Police Station Korangi (P.W.13) investigated the case. He went to the place of incident which was shown by the complainant Mst. Khurshid, where he inspected room and took into possession two pairs of sponge chappal, one belt and prepared such memo. (Exh.5) in presence of Mashirs Bashir and Nazir Ahmad. He also took into possession a white coloured sheet stained with semen and blood. The complainant also produced nine 'Dopatas' of different colours. The Investigating Officer recorded the statements of Mashirs and witnesses. On 19-10-1997 the Investigating Officer came to know that Rana Shahbaz Ahmad and Mohsin Abbas accused were confined at Police Station Ibrahim Haideri. He contacted on telephone Police Station Ibrahim Haideri where he came to know that the accused were also involved in case Crime No,136 of 1997 and were remanded to Jail custody. He also came to know that the accused were involved in Crime No,175 of 1997 Police Station Gizri. On 20-10-1997 the victim Mst. Shazia was produced before the doctor for medical check-up. The Investigating Officer on 21-10-1997 proceeded to Landhi Jail and under the authority of Illaqa Magistrate arrested Rana Shahbaz accused. On 22-10-1997 he arrested Irfan from his house. On the same date, on spy information he arrested Mohsin Abbas accused and then arrested Sabir Ali co-accused. The Investigating Officer then produced Sabir All and Mohsin Abbas before the Medico-legal Officer for ascertaining their capability of performing sexual intercourse. On 24-10-1997 he sent white coloured 'Chaddar' and brassiere to chemical examiner for analysis and report. On 25-10-1997 the Investigating Officer got recorded the statements of Mst. Asia and Shazia under section 164, Cr.P.C. On 26-10-1997 the Investigating Officer got the confessional statements of. The accused recorded before the DSP and also got prepared video film. After completion of the investigation the Investigating Officer submitted the challan before the Court.

4. At the trial, the prosecution examined 13 witnesses. The appellants-accused were examined under section 342, Cr.P.C. Wherein they denied the commission of offence stating that Fateh Muhammad had enmity with the father of Mohsin Abbas appellant, therefore, they have been implicated in this case at his instance.

5. The trial Court vide judgment dated 24-4-1998, convicted the appellants under section 395, P.P.C.

And sentenced them to imprisonment for life and fine of Rs,10,000 each, in case of default in payment of fine to suffer R.I. For six months. They have also been convicted under section 10(4) of Offences Against Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to death, each.

6. The convicts appealed before the High Court of Sindh, Karachi, challenging their conviction and sentence. The learned High Court vide judgment dated 27-1-2000, converted the conviction of the appellants from section 395, P.P.C. To section 392, P.P.C. And reduced the sentence from life imprisonment to five years' R.I. Each. The remaining conviction and sentence of fine and death against the appellants were maintained. Sabir Ali co-accused was given the benefit of doubt and his appeal was allowed and the sentence awarded to him was set aside on both counts.

7. Learned counsel for the appellants, inter alia, contended that there is delay in lodging of F.I.R., inasmuch as for one month the prosecutrix did not report the matter to the police; that the medical evidence is in conflict with the ocular evidence: that the conviction of the appellants is based on unsatisfactory evidence, which is not supported by the circumstances of the case; that Bashir Ahmad an independent witness was not examined and an inference against the correctness of the prosecution version was to be drawn.

8. On the other hand Raja Abdul Ghafoor, learned counsel for the State supported the impugned judgment and vehemently pointed out that the trial Court as well as the High Court had considered the evidence in its proper perspective; that the delay in lodging the F.I.R. Had been explained in a very plausible manner; that the medical evidence is in conformity with the ocular evidence. He further stated that Dr. Huma, who had examined the victim Shazia unequivocally stated that she was subjected to sexual intercourse, although she was unmarried girl.

9. We have carefully considered the arguments of the learned counsel for the parties and examined the record minutely. The ocular testimony of the P.Ws. Is natural, reliable, satisfactory and confidence-inspiring. The witnesses are inmates of the house where the offence was committed. The prosecution has fully proved the case against the appellants beyond any shadow of doubt. The victim has also supported the case of the prosecution, which also gets support from white coloured 'Chaddar' secured by the Investigating Officer which was found to be stained with semen and blood as per report of the Chemical Examiner. The defence has not alleged any enmity, or malice against the prosecution witnesses. This Court in Mst. Nasreen v. Fayyaz Khan and another (PLD 1991 SC 412) has held that the sole testimony of victim is enough for conviction if it is truthful and inspires confidence; whereas in this case the victim is supported by other three eye-witnesses, who are inmates of the house. It would be advantageous to refer the following paragraph. Of the impugned judgment in which the High Court with sound and cogent reasons has repelled the contention regarding delay in lodging of the F.I.R.: ' "So far the next contention of learned counsel for the appellants/accused that the F.I.R. Has been lodged with inordinate delay, therefore, it would lead to an inference that case was false and fabricated. We also do not find substance in the said contention considering that the cases in which moral turpitude, family respects and honour are involved there delay is of no consequence.

The people in such situation think seriously for the consequences and come in the Court after a great hesitation, such appears to be the situation in the instant case and, therefore, delay in peculiar circumstances and facts of this case is of not much significant considering also the fact that the complainant knew the appellants/accused from their faces but she had to ascertain their names and when one of the accused disclosed the names then she promptly lodged the report.

The factum of terrorism prevalent in the society also comes in the way of people to contact police and promptly lodge the report. The culprits had issued serious threats to complainant party not to inform the police, else, they would be killed. Thus the delay is satisfactorily explained."

We further found that the Courts below have properly analysed, assessed and examined the evidence. There is no misreading or non-reading of evidence. Keeping in view the brutal act of the appellant, they do not deserve any leniency and the High Court has rightly upheld their conviction

10. For the facts, circumstances and reasons mentioned hereinabove, we do not find any substance in this appeal, which is hereby dismissed.