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Petitioner: Convict VS Respondent: THE STATEHonorable Justice Muhammad Afzal CheemaM. D. Janjua,Riaz A. Malik
1968 P Cr
1968 P Cr. L J 1385
[Lahore]
Before Muhammad Afzal Cheema, J
ALLAH DEWAYA ANTS 3 OTHERS
Convict‑Appellants
Versus
THE STATE‑‑Respondent
Criminal Appeal No. 399 of 1966, decided on 15th March 1968.
Criminal trial‑----Mere fact that more persons were accused than actually taking part in commission of offence‑Held, would not per se warrant acquittal of all of them‑Persons against whom offence established should be convicted.
Bacho and others The State P L D 1963 Kar. 891 distinguished.
Muhammad v. State P L D 1962 S C 450 ; Mst. Hamida Bano v. Ashiq Husain P L D 1963 S C 109 and Abdul Mujid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan P L D 1964 S C 422 ref.
M. D. Janjua for Appellant.
Riaz A. Malik for A.‑G. for the State.
JUDGMENT
MUHAMMAD AFZAL CHEEMA J.‑--This Criminal Appeal filed by Allah Dewaya, Illahi Bakhsh, Janu and Mahmood appellants is directed against the order of Mr. Muhammad Yusuf Khan, Magistrate, First Class with section 30 powers, Dera Ghazi Khan. dated the 27th of May 1966, whereby he convicted all the four appellants for an offence under section 366/34, P. P. C., awarding them a sentence of five years' R. I. each, and convicted Allah Dewaya and Illahi Bakhsh appellants 1 and 2 for an offence under section 376, P. P. C., awarding them a concurrent sentence of seven year' R. I. each.
2. The brief facts, giving rise to the case are that on 31 at of January 1965, at about Peshiwela Mst. Bachai alias Bachul complainant, who is the prosecutrix in the case, .was present at her house along with her mother‑in‑law, Mst. Ghulam Fatima (P. W. 3) in village Bet Malaria, Police Station Drahma, district Dera Ghazi Khan, when the four appellants along with Mahmud, Wasaya, Khanu, hluran, Abdul Rehman and Amira who were not challaned suddenly appeared at the scene. Allah Dewaya and Illahi Bakhsh wielded hatchets, while Janu had a stick and Mahmud was empty handed. She raised an alarm and ran towards the East. In the meantime, Allah Dewaya overtook her and held her arms in his grip. He was soon joined by Illahi Bakhsh, Mahmud and Janu. The latter gave her a stick blow on the hip. All the four then caught hold of her arms and legs and lifted her to the cottage of Janu. Allah Dewaya appellant forcibly removed her shalwar, while illahi Bakhsh took off her shirt and she made to lie down on the ground. Janu and Mahmud held her fast when Allah Dewaya committed forcible intercourse with her. After his departure, Illahi Bakhsh raped her. She was then let off and came out of the cottage of Janu appellant, wrapped herself in a dopatta and proceeded towards the house crying. She was accompanied by her mother‑in‑law Mst. Ghulam Fatima (P. W. 3) who all along had been raising an alarm outside the cottage. Their alarm attracted Mehr (P. W. 4), Allah Ditta (P. W. 5), Bashir Ahmad (P. W. 7) and Allah Wasaya (P. W. 8). Returning home she found a pair of silver dastis, a pair of silver bangles, a pair of silver singhis, a pair of gold bundalas (ear‑rings), one silver Bodi, and one silver bracelet and two gold fopas (tops) besides two dopattas missing, of which the details were given in 'lie first infornwion report. Her husband Ghulam Muhammad (P. W. 12) who was not present in the house being away in the fields returned after some time and took her to the police station at a distance of eight miles, where report Exh. P. C. was lodged by her at 6 p.m. under sections 147/148, 4511452/376/149, P. P. C. on the same day. The motive of the outrageous assault as mentioned in the first information report was that Ghulam Muhammad husband of the prosecutrix was suspected of a liaison with Mst. Jewan wife of Allah Wasaya who had thus got himself avenged.
3. It appears that although some of the allegedly stolen clothes mentioned in the first information report were later said to have been recovered at the instance of Janu appellant, yet as a result of the investigation the allegation of theft were not found to be established. Likewise, Wasaya, Khanu, Nuran, Abdul Rehman and Amir who were mentioned in the first information report as members of the unlawful assembly were found to be innocent and were not challaned.
4. On the following day i.e. on 1st of February 1965, Mst. Bachul prosecutrix was medically examined by Doctor Miss T. Majid. W.M.O., District Headquarters Hospital, Dera Ghazi Khan who found a pinkish horizontal linear bruise 3" x "on the middle of the right buttock. There were, however, no external marks of violence on her body. On internal examination she found redness in an area of " x " on the outer side of the hymen and a red area about " x 1/4", on the posterior left part of the hymen. Two vaginal swabs were taken and were sent along with the shalwar to the Chemical Examiner for the detection of semen. It may be pertinent to observe at this stage that shalwar Exh. P. 3 which was allegedly removed from her person by Allah Dewaya appellant No. 1 was later recovered at his instance in the course of investigation. It is not clear, therefore, C whether it was the same shalwar or a different shalwar, or both which were sent to the Chemical Examiner. The lady doctor opined that Mst. Bachul had been subjected to forcible sexual intercourse. Both the veginal swabs and shalwar P. 3 were later found to be stained with blood and semen. H. C. Mahmud Ahmad (P. W. 15) investigated the case, arrested all the appellants on the following day i.e. 1st of February 1965 who produced their weapons of offence. Chadar on the person of Illahi Bakhsh, dopatta and shirt of the prosecutrix were found stained with semen. Shalwar belonging to the prosecutrix was recovered at the instance of Allah Dewava appellant vide memo. Exh. P.H. Likewise some ornaments P. 4 to P. 12 were also recovered at the instance of Janu ride memo. Exh. P. M. On the following day, i.e. 2nd of February 1965, at about 10 a.m., Doctor Muhammad Ashraf examined Allah Dewaya and Illahi Bakhsh appellants and opined vide his reports Exhs. P. K. and P. F. that there was nothing to suggest their inability to perform sexual intercourse.
5. After the completion of the investigation the four appellants were sent up to stand trial for offence under sections 366/34 and 376, P. P. C. The position taken up by them at the trial was one of denial simpliciter. They, however, produced three witnesses in defence who in a nutshell tried to malign the prosecutrix and her mother‑in‑law
as woman of easy virtue arid further suggested that a few days earlier Ghulam Muhammad, husband of the prosecutrix was detained by the police in connection with a theft case and that no occurrence as alleged by the prosecutrix had in fact taken place in the village. Placing full reliance on the testimony of the P. Ws. and discarding the defence evidence as worthless, the learned trial Magistrate came to the conclusion that the two offences under sections 366/34 and 376, P. P. C., had been fully brought home to the appellants and consequently recorded their convictions, giving rise to the present appeal.
6. Learned counsel for the appellants has raised the following contentions before me:
(1) That the prosecution has not been able to produce a single disinterested witness in the case ;
(2) that the prosecutrix being a married woman her internal examination is not of much consequence particularly when there were no marks of violence in the form of scratches or bruises on her body,
(3) that the allegations of theft as also of the implication of five co‑accused of the appellants named in the first information report stood completely falsified by the Investigating Officer and as such it was clearly established that the prosecutrix, her mother‑in‑law and her husband were not telling the whole truth, and therefore, on the principle of divisibility of credibility no reliance could be placed on the testimony of the prosecution witnesses ;
(4) that from her own showing the shalwar of the prosecutrix had been removed before the commission of rape which was later allegedly recovered at the instance of Allah Dewaya appellant No. 1. As such there would hardly be any question of its being stained with semen as it is stated to have been found later by the report of the Chemical Examiner ; and
(5) that even otherwise, the conduct of the eye‑witnesses two of whom Mehr (P. W. 4) and Allah Wasaya (P. W. 8) had failed to support the prosecution is highly usual had unnatural, inasmuch as, none of them missed even his little finger to rescue the prosecutrix and instead chose to remain silent spectators of the henious crime of rape being committed right under their nose in broad‑day light. Reliance was placed on Shan Khan v. State P L D 1966 Lah. 220, Muhammad Abdul Khaleque v. State P L D 1960 S C 325 and P L D 1964 Dacca 710.
7. It may be pointed out at the very out‑set that the prosecution case as set out in the first information report was found to contain some basic falsities. In the first instance, the report lodged by the prosecutrix though without delay implicated besides four appellants, four other persons, namely, Khanu, Amira, Abdul Rahman and Mahmud, who were found to be innocent by the Investigating Officer, and such were not challaned. It would be pertinent to observe that the first information report was lodged by Mst. Bachul in the presence of her husband,
Ghulam Muhammad (P. W. 12) who in his statement under section 161, Cr. P. C. (Exh. D. B.) made a clean breast of this false implication. This is not all. In the concluding sentence of the first information report, it was alleged by the prosecutrix that her Poplin shalwar and chints shirt were also taken away by the accused. Besides, she also supplied a list of seven ornaments like bangles, bracelets, ear‑rings, including two gold popas (tops), and two dopattas one of red chiffon and the other of white nylon, as detailed in the first information report. In his Police statement (Exh. D. B) with which Ghulam Muhammad (P. W. 12) husband of the prosecutrix was duly confronted, he stated as follows :
"On entering the room we found the ornaments and clothes missing. Popas were wrongly mentioned. They are with my brother Ghulam Haider, who lives in Basti Rakhshani, Mauza Khakhi. The shirt was also mentioned in a hurry. It is with him (Ghulam Muhammad) and I shall produce it. We suspected that the other near relations of the accused Amira, Wasaya and Khanu had stolen them away. Abdul Rehman and Nur Muhammad were also wrongly mentioned as accused on account of the intensity of sorrow. All these are the sup porters of the real culprits."
Later, all the ornaments except gold Popas were allegedly recovered at the instance of Janu appellant from inside his residential house.
It may be observed that the first information report referred to only one pair of silver Dasti whereas two were recovered instead. Another discrepancy between the ornaments stolen and thus recovered is that according to the first information report, one of the stolen dopattas was white in colour, whereas the recovered Dopatta Exh. P. 12 has been described as of light green (Angoori) colour. These articles Exhs. P. 4 to P. 12 were recovered vide Exh. P. M. dated 1st February 1965, attested by Allah Wasaya (P. W. 8), Syed Muhammad Iqbal (P. W. 9), Allah Dewaya (P. W. 10) and one Ghulam Sarwar, significantly enough while on the one hand definite allegations of theft were made by the prosecutrix in the first information report, the hesitant and doubtful statement of her husband before the police did not go beyond a suspicion of theft. Of n less significance is the conspicuous absence of any reference to the theft of ornaments and clothes in the statement of Mst. Ghulam Fatima, the mother‑in‑law of the prosecutrix, who was all along stated to be present having witnessed the occurrence at all stages including the discovery of theft While appearing as P. W. 3, she made no reference either to the theft or recovery of the ornaments. Of course, the prosecutrix herself as also her husband Ghulam Muhammad (P. W. 12) stated at the trial that they had identified articles Exhs. P. 4 to P. 12 as belonging to them, but since the very factum of theft is not established beyond doubt, no credence could be given to the evidence of recoveries. Normally a person smarting under an indignity involving the question of his honour as alleged against Allah Dewaya appellant should rest contended with getting himself avenged by outrageous assault on the wife of a person who is carrying on a liaison with his own wife, thus paying him back in the same coins. It is rather unusual that he or his associates should also go a step further and take this opportunity of committing theft in the house of the woman raped by them. No doubt from a suggestion made to Mst. Bachul (P. W. 2) in cross‑examination that the ornaments had in fact been pledged by her with Allah Dewaya appellant would give an impression, as if the appellants had impliedly admitted their recovery. But as stated earlier since the factum of the theft itself does not stand established beyond doubt, the evidence of recoveries, cannot be taken into consideration. In fact, Mahmud Ahmad (P. W. 15) had categorically stated in cross‑examination that according to his investigation the ornaments alleged to have been stolen were not in fact stolen. Strangely enough it is the same gentleman who prepared the relevant recovery memo. Exh. P.M. indicating the recovery of Articles Exhs. P. 4 to P. 12 at the instance of Janu appellant. He was thus obviously blowing hot and cold in the same breath. An irresistible conclusion of this finding would be that the evidence of recoveries based on the testimony of Allah Wasaya (P. W. 8) who despite having been declared hostile admitted having signed memo. Exh. P. M. on the production of the ornaments at the instance of Janu, Muhammad Iqbal, Allah Dewaya P. Ws. is washed away, affecting simultane ously the credibility of the remaining evidence of recoveries based on their statements.
8. I have already referred to the alleged removal of the shalwar of the prosecutrix at the hands of the appellants and its subsequent recovery at the instance of Allah Dewaya from inside his residential house vide memo. Exh. P. K. attested by the same set of witnesses. According to the statement of H. C. Mahmud Ahmad (P. W. 15) who investigated the case shalwar P. 3 recovered at the instance of Allah Dewaya appellant was made into a sealed parcel, along with dopatta P I and shirt P. 2 produced by Mst. Bachul herself vide Exh. P. D, chadar P. 14 removed from the person of Allah Dewaya appellant and chadar P. 16 secured from Elahi Bakhsh appellant. The relevant report of the Chemical Examiner showing all these exhibits stained with semen including shalwar P. 3 though relied upon by the learned trial Magistrate in his judgment has not been duly exhibited in the case. The occurrence took place on 31st January 1965 at Peshiwela. The report was lodged at 6 p.m. the same day by Lady Doctor Miss T. Majid at 1 a.m. on the following day, when she secured her shalwar which on transmission to the Chemical Examiner was found to be stained with semen. Thus there is a reference not to one but two shalwars belonging to the prosecutrix which were found to be stained with semen. The shalwar recovered by the lady doctor on the following day of the occurrence was thus obviously not the shalwar which the prosecutrix wore at the time of the omission of the offence, and would, therefore, be of no consequence. The evidence of the other recoveries including that of shalwar P. 3 based on the testimony of the same set of attesting witnesses, namely, Allah Wasaya, Muhammad Iqbal and Malik Allah Dewaya has already been held to be of doubtful character, and as such it would not be safe to rely on this evidence which has got to be completely excluded from consideration.
9. Having thus found that from the very outset the true facts have been grossly exaggerated and distorted I proceed to consider the evidence available on the record regarding the actual commission of rape. It consists of the testimony of the prosecutrix (P. W 2), her mother‑in‑law Ghulam Fatima (P. W. 3), her husband, Ghulam Muhammad (P. W. 12), Allah Ditta (P. W. 5) and Bashir Ahmad (P. W. 7), the evidence of lady doctor (P. W. 1) apart. Although there are authorities to the contrary, yet I have no hesitation in agreeing with the learned trial Magis trate that normally nobody would cut his nose to spite his face by bringing fasle allegations involving his, or her honour in order to falsely implicate an innocent person for personal reasons and that too in the month of Ramazan, it would not be much to expect such a thing from persons of easy virtue who of course, are not difficult to find. However, notwithstanding the special care and caution with which the statement of the prosecutrix is to be regarded there obviously, seems to be a motive for Allah Dewaya appellant to commit an outrageous assault on the prosecutrix in order to wreak vengeance. She was caught by the appellants from her arms and legs and was bodily lifted to the but of Janu appellant where her shalwar was removed by untieing the string as also the shirt. Rape was committed on her by Allah Dewaya and Ilahi Bakhsh. She could as well have levelled the same allegations against Janu and Mahmud appellant, but did not do so. On being released, she wrapped herself is a dopatta Exh. P. 1, which was found to be stained with semen. The lady doctor found redness on the outer part of the right side of the hymen as also on its posterior and left part of the outerside. She gave a definite opinion that forcible sexual intercourse had been committed within six to twenty‑four hours. She also found a lenear double bruise horizontal 3" x 3/4' on the middle of the right buttock with an interven ing distance of 1/4". It was attributed by the prosecutrix to a blow received by her at the hands of Janu appellant. Normally, it would be difficult to hold that a single blow with a stick would cause a double bruise of the kind suffered by the prosecutrix, yet neither she nor the Lady Doctor was questioned on this point. The account given by Mst. Ghulam Fatima (P. W. 3) does not suffer from any of the infirmities attaching to the testimony of the prosecutrix, and has a ring of truth. Unlike her daughter‑in‑law she did not implicate anybody else than the four appellants. Likewise, she made no reference tea the theft of the or naments and clothes. Being an eye‑witness she helplessly went on raising alarm when her daughter‑in‑law was lifted away in the first instance and later outraged. On being released she saw her emerging bare headed, wrapped in a dopatta. She was the first to be informed about the outrage committed on her daughter‑in‑law Allah Dewaya and llahi Bakbsh appellants. In this she was supported by Bashir Ahmad (P. VIE. 5) and Allah Ditta (P. W. 7), Allah Wasaya (P. W. 8) and Mehr (P. W. 4) having refused to support the prosecutrix. An argument was missed that the conduct of the eye‑witnesses claiming to have seen a henious offence like rape being committed in broad‑day light under their very nose, without anybody raising his little finger is not in accord with the ordinary conduct of human nature, particularly when some of the witnesses like Allah Ditta (P. W. 5) and Bashir Ahmad (P. W. 7) were related to the prosecutrix though remotely. From the statement of Allah Ditta (P. W. 5) it appears that he reached at a stage when Mst. Bachul was coming out of the house of Janu appellant. He saw her bare headed and wrapped in a cloth barring any shalwar. He did not pretend to be an eye‑witness. Although he appeared to be evasive while expressing ignorance if Khanu father of Mst. Bachul was a cousin of his mother, as suggested to him in cross‑examination, yet there appear to be no. good reasons to discard the testimony of this witness who was believed by the learned trial Magistrate, having the additional advantage of studying his demeanour. Bashir Ahmad (P. W. 7) was performing ablution at the relevant time and on hearing alarm reached the spot. Site plan Exh. P. O shows that the mosque where this witness happened to be at the time is in the same vicinity. He saw Mst. Ghulam Fatima (P. W. 3) raising an alarm. Within her sight the prosecutrix emerged from the but of Janu appellant and went to her house followed by her mother‑in‑law. This witness admitted his relationship, his father and that of the prosecutrix being cousins inter se. He stated that Allah Ditta (P. W.) was his brother‑in‑law and a nephew of his father. He also admitted that he had checked the accused from taking their cattle from his land at which they retaliated by stopping his watercourse. He stated that Elahi Bakhsh had told him that he had taken .revenge of Ghulam Muhammad, and that on inquiry his father was also told by the appellants that they had taken revenge on Ghulam Muhammad. This, however, did not find place in his police statement with which he was duly confronted. As stated earlier, Allah Wasaya (P. W. 8), who is an uncle and father‑in‑law of Allah Ditta (P. W. 5) as also Mehr (P. W. 4) refused to support the prosecution version. They, however, admitted having repaired to the spot on hearing an alarm. According to Allah Wasaya the four appellants were present there, whereas according to Mehr, he saw‑many persons collected near the house of Janu appellant. Notwithstanding their failure to go the whole bog with the prosecu tion, whatever was stated by them would also lend support to the prosecution version that it was not a case of concoction, but the occurrence had actually taken place.
10. The question which falls for determination, however, is as to what should be the proper approach for the assessment of the aforesaid prosecution evidence in view of the established falsities contained therein. Relying on Bacho and others v. The State (P L D 1963 Kar. 891) it was argued on behalf of the appellants that in a case where eye‑witnesses were interested and partisan and the number of accused mentioned by them was exaggerated, their testimony could not be accepted. I am afraid, this is not the correct position. A careful study of this authority clearly shows that ire such an event the Courts must look to corroborative evidence before making the testimony of interested witnesses, the basis for conviction. Of course, it was also held that where innocent persons were proved to have been dishonestly implicated the Court was entitled to acquit even those false implication bad not been established.
11. Having considered the facts of the instant case in the light of the above authority, I am inclined to think that the position is quite distinguishable. At the very outset though four other accused were also mentioned by the prosecutrix, yet the principal part was ascribed to the four appellants whose role was quite outstanding as compared that of the rest who were not challaned by the police. It was held by their Lordships of the Supreme Court in Muhammad v. Slate (P L D 1962 S C 450) and Asst. Hamid'a Bano v. Ashiq Hussain (P L D 1963 S C 109) that the mere fact that more person: were accused actually taking part in the commission would not per se warrant the acquittal of all of them and persons against whom an offence was established should be convicted. In Abdul Majid v. Superintendent and Remembrancer of Legal Afairs, Government of East Pakistan (P L D 1964 S C 422), their Lordships advised the examination of the circumstances of the case for gauging the natural probabilities. Having referred to the circumstances of the case, I am of the view that it is quite possible to separate the grain from the chaff. In consequence, I feel inclined to agree with the learned trial Magistrate that the offence was fully brought home to the appellants who were rightly convicted and sentenced.
12. The result is that the appeal fails and is hereby dismissed.
Appeal dismissed: