1993 PLD 33
MIR HAZAR KHAN KHOSO, CJ.‑‑‑ This appeal is directed against the judgment dated 7‑3‑1991 passed by the learned Additional Sessions Judge, Muzffargarh, whereby the appellant was convicted for offence under section 452, P.P.C. and section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) as under:‑‑
(i) under section 452, P.P.C. To suffer R.I. for five years and fine of Rs.5,000 in default to suffer R.I. for one year.
(ii) Under section 10(3) of the To suffer R.I. for seven years and
Ordinance. thirty stripes.
The sentences of imprisonment were ordered to run concurrently.
2. It is case of the prosecution that on 30‑12‑1988 before Maghrebwela, appellant Muhammad Ashraf son of Imam Din trespassed into the house of complainant P.W. 1 Mst. Asghari and committed rape upon her daughter Mst. Sajida Parveen aged 8 years. The case was registered at the statement of Mst. Asghari vide F.I.R. No. 325 on 31‑12‑1988 at Police Station, Saddar, Muzaffargarh. The complaint reads as under:‑‑
To prove charge for offence under section 452, P.P.C. and section 10(3) of the Ordinance, the prosecution examined seven witnesses.
P.W.1 Mst. Asghari Begum complainant.
P.W.2 Muhammad Anwar, father of victim.
P.W. 3 Mst. Sajida Parveen, victim.
P.W.4 Mirza Abdul Baig, SI/SHO.
P.W.5 Dr. Tariq Nawaz Babar. He examined the victim and the appellant.
P.W. 6 Manzoor Hussain, ASI, formal witness.
P.W. 7 Mushtaq Hussain, Constable.
In reply to question No.7 under section 342, Cr.P.C. the appellant submitted that:‑‑
"I have been falsely implicated and the P.Ws. are biased and interested against me. The real fact is that one Pappu committed Zina‑bil‑Jabr with Mst. Sajida P.W. Pappu aforesaid is the maternal aunt's son of Mst. Sajida Parveen. Pappu was let off and I was falsely involved:"
In defence he examined D.W.1 Qazi Mahboob Ahmad anal D.W. 2 Khan Muhammad. Vide his judgment dated 7‑3‑1991 the learned Additional Sessions Judge, Muzaffargarh rejected the defence theory and convicted and sentenced the appellant for the offence as mentioned hereinabove. Hence this appeal.
3. Mr. Hamid Azhar Malik, Advocate, appeared for the appellant and Mr. Muhammad Akhtar, Additional Advocate‑General with Mr. Shabbir Hussain Qureshi, Advocate, appeared for the State. The learned counsel for the appellant has raised the following grounds:‑‑
(i) One Pappu related to the complainant party had committed rape upon Mst. Sajida Parveen, he was let off and in his place the appellant was roped in.
(ii) There are material contradictions in the report of the Medical Officer and the Chemical Examiner and presence of blood at the cot or site.
(iii) D.W. 2 Khan Muhammad though prosecution witness had supported the version of the appellant.
In support reliance was placed on:
(i) PLD 1986 FSC 196.
(ii) PLD 1987 FSC 11.
(iii) 1987 PCr.LJ 284.
The learned counsel for he State vehemently controverted the contentions raised by the learned counsel for the appellant and stressed for maintaining the conviction and sentences of the appellant.
4. The phenomenon of substitution in criminal cases has been found to be alien by the Courts of this country. Our views are fortified by the quotation Nadeem‑ul‑Haq and others v. The State, reported in 1985 SCMR 510. Besides there is no reason for the complainant' party for having roped an innocent person after leaving a real culprit who had committed a heinous offence with minor girl. The objection of the learned counsel for the appellant regarding identity of appellant and denial thereof by victim Mst. Sajida Parveen has no relevancy at all. The first ground, therefore, fails and is repelled accordingly.
5. The learned counsel for the appellant then pointed out contradiction in respect of the presence of blood on the cot and ground by P.W.2 Muhammad Anwar, P.W.1 Mst. Asghari, P.W. 3 Mst. Sajida Parveen and denial thereof by P.W.4 Mirza Abdul Baig, S.I: and time of occurrence in the F.I.R. P.W.1 Mst. Asghari and P.W.3 Mst. Sajida. The first contradiction seems to be superfluous. No weight can be given thereto. Regarding the time, all the three witnesses are unanimous. Asarwela comes before Maghrebwela. It is thus not a contradiction. Even otherwise both the contradictions are of minor nature and have no bearing on the vital issue. This ground also fails.
6. Witnesses Jan Muhammad and Khan Muhammad have been given up as having been won over. Though Khan Muhammad has been examined in defence (D.W.2). He has shown Pappu having committed rape upon Mst. Sajida Parveen. In cross‑examination he admitted that he had identified him from his back at a distance of about two acres. The learned Additional Sessions Judge did not rely on his evidence and turned it down for the reason as under:‑‑‑
"In support of his version the accused produced D.W. 2 Khan Muhammad but his evidence is discardable on the ground inter alia that he had been given up by the prosecution as won over. Even otherwise his evidence is not confidence inspiring, In cross examination he admitted that the place where Pappu committed Zina was visible from the place where the D.W. was present. It does not stand to reason that Pappu would have the courage to commit Zina at a place visible to whole of the gathering of the Khairat. Moreover, he admitted that he did not see Pappu committing Zina hence his evidence is irrelevant. He also conceded that he identified Pappu from behind his back at a distance of 8 Begha when he was running. The identity of Pappu in these circumstances is doubtful. The accused has, therefore, failed to establish his plea of false substitution."
All the grounds taken by the learned counsel for the appellant therefore failed.
7. However, we had the advantage of going through the evidence of P.W.3 Mst. Sajida. In unequivocal terms she has implicated the appellant. Her evidence in that respect is:‑‑
"About one year and 9 months ago, I was present in my house. My father had gone to perform duties in Fazal Mills. My mother and my brothers had gone to attend the feast of Khan Muhammad. Muhammad Ashraf accused present in the Court came there, at Asarwela. Muhammad Ashraf accused caught me from my arm and took me into the room from the courtyard of my house. The accused removed his Shalwar and my Shalwar and started committing Zina‑bil -jabr with me. The accused placed his hand on my mouth when I was weeping. I felt pain. My Shalwar became blood‑stained. The accused had completed his act of Zina‑bil‑jabr with the and on my alarm were attracted, my brother, Jan Muhammad and Khan Muhammad PWs. I told the occurrence to my mother, Khan Muhammad and Jan Muhammad P.Ws. The accused ran away on seeing my mother and the P.Ws.1 was medically examined."
No material was brought on the record to discredit her such version. Her evidence is confidence inspiring. The learned trial Judges has rightly relied thereon. Besides, it gets support from the evidence of P.W.1 Mst. Asghari Begum who in her examination‑in‑chief has deposed:‑‑
"My husband used to work in Fazal Cloth Mills, Muzaffargarh and is working as such even at present. I alongwith my children remain in the house in the absence of my husband. About one year and 9 months ago my husband had gone to perform his duties at Fazal Cloth Mills. I had gone to attend a feast in the house of Jan Muhammad and Khan Muhammad P.Ws., leaving my daughter Mst: Sajida Parveen in the house to keep a guard. Mst. Sajida Parveen was 8 years old at that time. I came back to my house before Maghrebwela. When I reached near the door of my house 1 heard the alarm of Mst. Sajida Parveen P.W. from the house. When I opened the door, I saw Muhammad Ashraf accused present in the Court running away from my house, who was in the process of wearing the Shalwar. Upon my alarm Khan Muhammad and Jan Muhammad P.Ws. were attracted and they also saw the accused when he was in the process of putting on his Shalwar. Then I attended my daughter Mst. Sajida Parveen who was weeping in the room. Upon my query, Mst. Sajida Parveen P.W. told me that Muhammad Ashraf accused had committed Zina‑bil‑jabr with her and that when she was weeping, the accused put his hands upon her mouth. My daughter was profusely bleeding from her private parts. I made her Mst. Sajida Parveen to wear the same Shalwar which was blood‑stained. The night fell and my husband came back from duty at 11 p.m. in the night. I was all alone hence I could not go anywhere. In the following morning I alongwith my husband and my daughter Sajida Parveen went to the hospital M. Garh but the lady doctor was not available there till afternoon. Due to non‑availability of the lady doctor we set off towards our house. When we reached Chowk Pir Jahanian, the Thanedar met us at the said Chowk and I told the whole episode to the Thanedar. The Thanedar recorded my statement Exh.PA. and procured my thumb‑impression after reading over its contents to me. The SHO then directed his subordinate Thanedar to get Mst. Sajida Parveen medically examined. Khan Muhammad and Jan Muhammad P.Ws. are real brothers inter se and they are the paternal uncles of the accused."
P.W.5 Dr. Tariq Nawaz who had examined Mst. Sajida Parveen is definite that she was subjected to Zina. His evidence also lends support to the version of the victim. The prosecution, therefore, had indeed proved its case beyond reasonable doubt. In last para. of his judgment, the learned trial Judge has rightly observed that:‑‑
"The upshot of the above discussion is that the prosecution has succeeded in bringing home the charge against the accused beyond doubt."
8. In view of the circumstanced discussed hereinabove we see no reason to interfere with the well considered judgment passed by the learned Additional Sessions Judge. He has indeed taken pains to arrive at the right conclusion. In the result of our abovesaid observations the appeal fails and the same is dismissed accordingly. We also see no mitigating circumstance in the case which may call for reduction of the sentence. The appeal is disposed of accordingly. Suo Motu Notice No.107/L of 1992 for enhancement of sentence is discharged.
N.H.Q./794/FSC Appeal dismissed.