BALI KHAN Versus THE STATE

This appeal has been filed by Bali Khan son of Kala Khan Awan against the,.judgment dated 6‑12‑1994 passed by the learned Additional Sessions Judge, Rawalpindi, in Hudood Case No.7 of 20‑3‑1994, whereby the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to 10 years' R.I. with 20 stripes. Benefit: of section 382‑B, Cr.P.C. has been extended to the appellant. The sentence of stripes awarded is not legal. On conviction under section 10(3) of the Ordinance, punishment of whipping by 30 stripes is mandatory. In the circumstances, counsel appearing for the appellant was given oral notice of enhancement of sentence, which notice was waived by the counsel.

2. I have heard at length the argument of Mr. Nasir Saeed Sheikh, learned counsel for the appellant and Mr. Ch. Muhammad Ibrahim, learned counsel, who has represented the State. With the assistance of the learned counsel, I have been taken through the entire record including the evidence, statement of the appellant under section 342, Cr.P.C. exhibits and the impugned judgment of the trial Court.

3. Complainant in this case is' P.W.5 Mst. Razia Jan (mother of the victim); her statement was recorded by P.W., A.S.I. Ghulam Abbas, at 5‑50 p.m. at P.O.F. Wah Hospital (Exh.PB) and the formal F.I.R. was recorded by P.W.2 A.S.I., Muhammad Farooq at Police Station Wah Cantt. on 22‑10‑1993. According to the complaint, on 22‑10‑1993, complainant Mst. Razia Jan and her daughter P.W.6 Mst. Asima Bibi (the victim) had gone to Ahmad Nagar in order to participate in the marriage ceremony of their relative Muhammad Nusrat. According to the complainant at about 1‑30 p.m. victim told the complainant that she was going to the nearby hill in order to ease herself but when she did not come back for some time, complainant became worried and alongwith P.W.7 Muhammad Anwar and her nephew Muhammad Niaz (given up by the prosecution as unnecessary) came out of the house in search of the victim and when they went towards the hill they heard cries of the victim on which they rushed towards the hill and saw accused Bali Khan son of Kala Khan committing Zina‑bil‑Jabr with the victim after forcibly pulling her down on the ground. According to the complaint, on seeing the eye‑witnesses, the accused fled away towards the village whereafter the victim was taken to P.O.F. Wah Hospital for treatment and examination. On receipt of information about the occurrence, A.S.I., Ghulam Abbas reached the hospital and in the hospital the statement of complainant Mst. Razia Jan (Exh.PB) was recorded. The statement was then forwarded to Police Station, Wah Cantt. where formal F.I.R. (Exh.PB/I) was drawn up. A.S.I, Ghulam Abbas took up investigation and, after completion of the investigation, sent up the accused to face his trial. According to the prosecution, the appellant was arrested on the same day i.e. 22‑10‑1993. On the same day, the victim was taken to P.W.1 Lady Doctor Parveen Ahmad of P.O.F. Wah Cantt. Hospital, who referred her to Dr. Safia Latif, Gynaecologist (not examined). On the basis of the report of the Gynaecologist and report of the Pathologist, Lady Dr. Parveen Ahmad gave the opinion that the victim had been subjected to intercourse. At the trial, the appellant was charged under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to which he pleaded not guilty.

4. The prosecution examined 7 witnesses in support of the case against the appellant. P.W.1 is Lady Dr. Parveen Ahmad; P.W.2 is A.S.‑I., Muhammad Farooq, who had recorded the formal F.I.R.; P.W.3 is A.S.‑I., Ghulam Abbas, the Investigating Officer and who had also recorded the original complaint made by the complainant; P.W.4 is Dr .Syed Imtiaz Haider who had examined the appellant for determining his potency; P.W.5 is complainant, Mst. Razia Jan; P.W.6 is the victim Mst. Asima Bibi aged about 12‑13 years and P.W.7 is Muhammad Anwar, paternal uncle of the victim and, according to the complaint, an eye‑witness. The appellant in his statement under section 342, Cr.P.C. stated that Muhammad Niaz (an eye‑witnesses not examined) and Mst. Asima had been caught red‑handed in an objectionable position and, on appellant's warning, that he would report the matter to their parents, the appellant was threatened with dire consequences and that they were informally engaged and, according to the appellant, with the help of the complainant, they got the present case registered against the appellant and eye‑witness Muhammad Niaz was not produced by the prosecution as the whole case is concocted.

5. The trial Court relying upon the testimony of the complainant, the victim, eye‑witness Muhammad Anwar, the medical evidence and that defence plea was absurd, came to the conclusion that the prosecution had established its case against the appellant under section 10(3) of the Ordinance.

6. In support of the present appeal, Mr. Nasir Saeed Sheikh, learned counsel for the appellant, first contended that no legally admissible medical evidence was available on the record to establish that the victim has been subjected to Zina‑bil‑Jabr. According to learned counsel, the victim was first examined by the Gynaecologist, Dr. Safia Latif, who gave report but she was not examined (her report is Exh.PA dated 23‑10‑1993). It was submitted that the said report of the Gynaecologist was sought to be proved by P.W.1 Lady Dr. Parveen Ahmad, D.M.O., who had admittedly not examined the victim. According to the learned counsel, the evidence of Doctor Parveen Ahmad is hearsay and not admissible and the report of Lady Doctor Safia Latif is Exh.PA, which is the basis of the opinion given by the Doctor Parveen Ahmad is not admissible in evidence. Learned counsel relied upon the case of Usman Khan v. State PLD 1969 SC 293. It was observed in this case that to test the credibility of the eye‑witnesses with reference to the circumstances attending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form a safe opinion on these matters and it is desirable, to summon the Doctor who examined the injuries or performed the autopsy as a witness and investigate the reasons for his opinion.

Lady Doctor Parveen Ahmad had stated in her evidence that Dr. Safia Latif, who had examined the victim had gone abroad on a course and she was well‑conversant with the handwriting and signatures of Dr. Safia Latif and that her report (Exh.PA) was the basis of Dr. Parveen's report (Exh.PA/1). The Lady Doctor was cross‑examined in various aspects by learned counsel for the appellant but there was no cross‑examination as regards the statement that Dr. Safia Latif had gone abroad on a course and that Dr. Parveen Ahmad was conversant with the handwriting and signatures of Dr. Safia Latif Learned counsel for the appellant relied upon the following judgment for the proposition that for accepting a certificate or report of a doctor who had not appeared in the witness‑box through, another person, the proper person is police officer, who takes summons for service on the Doctor and reports that the Doctor was not available.‑‑

(a) Fazal Muhammad v. State 1970 PCr.LJ 858

(b) Muhammad Siddique v. State 1974 PCr.LJ 180.

(c) Shera v. State PLD 1970 Lah. 735.

7. However, learned counsel for the State, Ch. Muhammad Ibrahim, relied upon a later decision of the Supreme Court in the case of Sirajuddin v. Misbahul Islam PLD 1977 SC 14. In the cases relied upon by the learned counsel for the appellant reliance has been placed on an earlier decision of the Supreme Court in the case of Allah Ditta v. State PLD 1958 SC 290. The said case was distinguished and the Supreme Court held in Sirajud Din's case as follows:‑‑

"Lastly the learned counsel contended that the participation of the second respondent was not established as the post‑mortem report was inadmissible in evidence. Elaborating his stand the learned counsel contended that it has not been strictly proved that Doctor Muhammad Yamin Khan, who had performed autopsy on the body of the deceased, was not available for giving evidence at the trial. In support of his contention he relied on the case of Allah Ditta v. State (PLD 1958 SC 290) in which it was held that `in the absence of any direct evidence the mere declaration that delay and unnecessary adjournment would be involved in procuring the appearance of Lala was not sufficient for satisfying the relevant condition of section 33 aforesaid which is that it should have been proved that the witness could not be found', and as such his evidence was held to be inadmissible. The present case is distinguishable for, Fateh Muhammad (P.W.4) the Dispenser has categorically stated that Doctor Muhammad Yamin Khan had gone to Saudi Arabia and there was not likelihood of his return in the near future. He was not cross?-examined to cast doubt as to his not being in Pakistan, and therefore, the rule laid down in the case of Allah Ditta v. The State will not apply, for, in that case there was not definite proof of the witness not being available."

In view of the decision of the Supreme Court in Sirajud Din's case, the contention of learned counsel for the appellant that the report of Dr. Safia Latif (Exh.PA) could not be proved though the evidence of Dr. Parveen Ahmad, cannot be accepted. As observed, Dr. Parveen Ahmad has stated very clearly that Dr. Safia Latif had gone abroad and that she recognized her signatures and, on behalf of the defence, there was no cross‑examination on these two aspects.

9. It was then argued by learned counsel for the appellant that Exh.PA is dated 23‑10‑1993 whereas Dr. Parveen's Report (Exh.PA/I) relying upon the Exh.PA is dated 22‑10‑1993. According to the learned counsel, how could Dr. Parveen rely upon the report dated 22‑10‑1993 on a report dated 23‑10‑1993. There is no doubt, discrepancy in the dates but, it appears that by mistake the date 23‑10‑1993 had been noted by Dr. Safia Latif when she gave her report (Exh.PA), as suggested by the learned counsel for the State. The discrepancy, in the circumstances. is of a minor nature and does not affect the authenticity of the report given by Doctor and her evidence. It was contended by Mr. Nasir Saeed Sheikh, learned counsel for the appellant, that Dr. Parveen had relied upon the report of the Pathologist about the presence of semen but the said report of the Pathologist had not been produced. According to learned counsel, a report of a Chemical Examiner or Serologist etc. may, without calling the expert, be used as evidence in any inquiry trial under the Criminal Procedure Code, provided that the Court may if it considered necessary in the interest of justice summon and examine the person by whom such report has been made. According to learned counsel, in the absence of the report of the Pathologist, which has not been brought on record, no reliance can be placed on the evidence of Dr. Parveen Ahmad who relied upon such report.

Learned counsel is correct to the extent that, without production of such report of the expert, reliance cannot be placed on such report by only making a reference to such report in the evidence of a witness. To that extent, the evidence of Dr. Parveen should not have been accepted.

10. In Exh.PA recorded by Dr. Safia Latif a small perineal tear 2 c.m. superficial involving skin and mucosa only was noticed which was not bleeding at the time of examination. The gyneacologist in her report had not noticed any hymeneal tear. In Exh.PA the following injuries were also noticed:‑‑

(i) Scratch marks on left side of nose.

(ii) Scratch marks due to breakage of glass bangles on left wrist.

(iii) Abrasions at the centre of back.

11. According to learned counsel, perineal area is between the vagina and anus and even if the said report about the tear is accepted it does not establish the commission of sexual intercourse. On the other hand, learned counsel representing the State submitted that expert evidence only confirms the original evidence of the eye‑witnesses including the victim and, if the case is otherwise proved, expert evidence is not required. He relied upon the judgment of the Supreme Court in the case of Yaqoob Shah v. State PLD 1976 SC 53 where it was held that expert evidence is entirely in the nature of confirmatory or explanatory of direct evidence and such expert evidence cannot outweigh direct evidence unless it be deficient in quality.

Learned counsel for the State also relied upon the cases of Muhammad Razaq v. State PLD 1985 FSC 298 and Shaukat Masih v. State PLD 1982 FSC 19 for the proposition that, if case is otherwise proved, expert evidence is not required.

12. From the expert evidence where the report of the Pathologist had not been brought on record, and as such the evidence about the presence of semen is not available and the injury shown on the perineal area of the victim, did not establish that sexual intercourse had been committed. It would only be confirmatory of evidence regarding attempt to commit Zina‑bil‑Jabr.

13. The ocular evidence of Mst. Razia Jan and the victim Mst. Asima Bibi would indicate that Mst. Razia Jan and Muhammad Anwar and unexamined witness Muhammad Riaz had actually seen the commission of Zina by the appellant with the victim but evidence of Muhammad Anwar shows that, by the time they had reached the place of occurrence, the offence had already been committed and they had not seen the appellant actually committing Zina‑bil?-Jabr with the victim. The, last portion of the cross‑examination of Muhammad Anwar is reproduced here:‑‑

"The accused Bali Khan had committed Zina with Mst. Asima Bibi before my arrival at the place of occurrence and I had only seen him while pulling Mst. Asima Bibi and giving her kicks and fist blows. At that time P.W. Niaz was ahead of me by 2 or 3 paces."

Then Mst. Razia Jan in her cross‑examination has stated that when they reached the place of occurrence P.W. Muhammad Niaz was ahead of them. It is also stated by her that P.W. Niaz had pelted a stone on accused Bali Khan but he was not hit and at that time accused Bali Khan was running away from the place of occurrence and he was not hit by the stone. As observed, Muhammad Niaz has not been examined. From the evidence of both Mst. Razia Jan and Muhammad Anwar, it follows that they were not witnesses of the occurrence but had reached the place of occurrence after the occurrence. In the F.I.R. and in the statement of the victim as well as Mst. Razia Jan, improvement had been made that the witnesses had actually seen the appellant committing Zina with the victim.

14. From the evidence of the witnesses and the medical evidence it C appears that Zina had not been committed but an attempt had been made to commit Zina with the victim.

15. One of the main contentions raised on behalf of the appellant was that the 3 eye‑witnesses had not known the appellant previously and, in the circumstances, identification parade should have been held which was admittedly not conducted. According to Mr. Nasir Saeed Sheikh, it is very surprising that though the 3 witnesses, including the victim, did not know the appellant previously, at 5‑50 p.m. the complaint was recorded in which Mst. Razia Jan gave the name, parentage and residential address of the appellant. According to learned counsel, all this indicates a case of false implication.

16. No doubt, complainant Mst. Razia Jan as well as Mst. Asima Bibi stated in their evidence that they had not seen him before and as such cannot know his name, parentage and address, Muhammad Anwar in his statement clearly stated that he saw accused Bali Khan committing crime. Similar statement had been made by the complainant and the victim about the name of the appellant and both of them cross‑examined and on questions being asked that whether they had known or seen Bali Khan previously they had replied in the negative, but on similar statement being made by Muhammad Anwar that accused Bali Khan was committing crime no question was put to him in cross?-examination about Muhammad Anwar knowing Bali Khan previously. In the circumstances, failure to cross‑examine Muhammad Anwar on this point leads to the inference that, according to the defence, Muhammad Anwar had known Bali Khan previously. On account of this reason, no adverse inference can be drawn from the fact that the name of Bali Khan, his parentage and his residential address is given in the complaint. The holding of the identification parade was, therefore, not required in the circumstances.

17. The fact that some incident had taken place and that appellant was present when the incident had taken place is admitted by the appellant himself when he states in answer to a question put to him under section 342, Cr.P.C. that he had surprised the victim and Muhammad Niaz while in compromising position. The evidence of the victim that she had been attacked by the appellant is believed by the trial Court. The presence of the appellant at the time of incident is accepted. The fact that the victim had suffered 3 other injuries as mentioned in Exh.PA also confirms the fact that force was used against the victim. If the defence version is accepted, the victim and Muhammad Niaz were in the process of committing Zina with mutual consent, in which case there would be no occasion for presence of injuries on the person of the victim.

18. The memo. of arrest of the appellant had not been produced but the Investigating Officer has stated in his evidence that the appellant had been arrested on the same day i.e. 22‑10‑1993. In the facts of this case, the absence of production of memo. of arrest does not demolish the prosecution case.

19. It was also argued on behalf of the appellant that no attempt had been made to lodge the F.I.R. immediately. In this case, a young girl of about 12 years was the victim and if her mother and other relatives had taken her straight to the hospital, their action cannot be described as unnatural. Apparently, they were concerned about the injuries caused to her and the mental agony she must have been undergoing on account of the incident and, therefore, if a delay of few hours takes place in making the complaint, it does not affect the case of prosecution.

20. The appeal partially succeeds inasmuch as the conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is converted to conviction under section 10(3) read with section 18 of the Ordinance and looking at the age of the appellant (15 years) the sentence is reduced to two years' R.I. The benefit of section 382‑B, Cr.P.C. will be available to the appellant.

Criminal Appeal No.290‑I of 1994 stands disposed of in the above terms.

N.H.Q./958/FSC

Order accordingly.