MEHBOOB AHMAD Versus STATE
1. Appellant has assailed a judgment delivered by the Court of Sessions Judge, Bhakkar on 2-10-1997 whereby he has been convicted under Article 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and has been sentenced to R.I. for 10 years and 30 stripes with benefit of section 382-B. Cr.P.C
2. One Sarnia Bibi (P.W.9) came across Ghulam Muhammad (P.W.11), S.I.P. on 17-8-1996 while proceeding towards P.S. City Bhakkar and got her statement/complaint (Exh. P.G.) recorded which became a basis of F.I.R. (Exh. P.G.I) lodged at the said police station on the same date at 10.20 p.m. According to complaint (Exh. P.G.), Mst. Samia Bibi stated that on 13-8-1996 at 8 a.m, while she was sweeping outside the gate of her house she received call from her neighbour Mahboob Ahmed (the appellant) communicating her that her mother was calling who is sitting in his Baithak. When Samia Bibi entered the Baithak, the appellant closed the door from inside and caught hold of her. On point of pistol, he threatened her that in case she made hue and cry, she shall be finished. Appellant had made his tape-recorder on at higher volume of noise. Then the appellant started committing rape upon her. Due to pain, Mst. Samia started crying which attracted Muhammad Yousuf (P.W.10) and Abdul Rasheed who knocked the door. Appellant left her and ran inside his house. Since the respectable persons of the locality remained trying for reconciliation but her ailing father did not agree so the complaint was delayed.
3. I have heard the counsel for the parties. The contention of the counsel for the appellant that the complaint is belated by four days cannot help him as a plausible explanation for such a delay has been furnished in the very complaint (Exh. G) itself. Time and again this Court has considered such a delay in reporting cases of rape as normal in the type of society our country is carrying provided that victim is also corroborated by other confidence -inspiring evidence. In a D.B. case of this Court reported as 1997 P Cr. L J 1500 (Azhar Iqbal and 2 others v. The State) at placentium a following ruling is applicable on the present case as well:--
2. "Delay in rape case is a universal phenomenon. It cannot be brushed aside unless the very commission of offence itself is clearly dubious Quoting from the book 'Understanding the Rape victim', written by experts like Sedelle Katz and Mary Ann Mazur of the Department of Psychiatry, University of Washington, USA (Publication 1979 by John Wiley & Sons, New York page 191:
3. 'Whereas most crimes permit complaints years later without undermining credibility, for rape the statute of limitations is 30 days in Colorado, three months in Connecticut, six months in New Hampshire, 12 months in Massachusetts, and 18 months in Iowa. The majority of rape victims decided not to report at all. Instead of penalizing the victim who delays in reporting the case, she should be rewarded by kindness and consideration of her difficult decision to help society apprehend a criminal, even at some sacrifice to her own well-being.
4. It has also been observed in the said case that in the social fabric of Pakistan Nekmards of the area do make efforts for compromise specially when the parties belong to the same village and/or tribe.
5. The evidence of Mst. Samia Bibi (P.W.9), the viciim girl, is inspiring confidence and is clearly corroborated by the evidence of ocular witness Muhammad Yousuf (P.W.10) and Lady Doctor Falak Riffat (P.W.5) who examined the victim and gave her opinion that the victim was of about 11/12 years, was not habitual of sexual intercourse, was not virgin, her E hymn was torned and her vagina admitted one finger easily but two fingers painfully and with difficulty. The swabs sent by her to the chemical examiner were reported to be stained with semen vide Exh. P.D. Lady Doctor's final opinion was that the victim was subjected to sexual intercourse. This position is further corroborated by the evidence of Dr. Muhammad Nawaz Khan (P.W.6) who examined the appellant and gave his opinion that he was a male of young age and nothing was there to suggest that he was incapable to perform sexual act.
6. The counsel for appellant has been suggesting that since there were no signs of violence on the body of victim as deposed by Lady Doctor Falak Riffat (P.W.5), therefore, it cannot be a case of rape. This circumstance has already been explained by the victim in the very complaint (Exh. P.G.) itself in the following words:--
7. To certain suggestions during cross the victim has replied:-
8. "I had resisted the commission of Zina but accused forcibly put my clothes off. No abrasion of scratch had occurred. I did not nail the accused in defence. My vagina had blooded and bedding and clothes were stained. My Shalwar was also stained. My Shalwar was not produced before police or doctor. I was subjected to Zina for the first time. No body turned up except P.Ws. from the locality."
9. A nubile virgin of 11/12 years could not resist under the threatening circumstance she was placed in. The apex Court of Pakistan has already given a comprehensive ruling on such circumstances which is binding for me. It is cited as 1990 SCMR 886 and reads:--
10. In the case of Muhammad Riaz v. State reported as 1997 P. Cr. L. J 114 a D.B. of this Court rejected such a plea in almost identical circumstances. In fact such rapes occur without warning and the trauma of surprise is so great for the victim that she loses al abilities to resist.
11. Another contention for appellant is that the victim Mst. Sami; (P.W.9) has improved upon complaint (Exh.P.G.) in the following words:--
12. "He gagged my mouth and on pistol point asked not to raise alarm."
13. This is not an improvement but furnishing the details of the incident. It is not of such material substance so as the story of prosecution stands set aside. The contention is repelled.
4. The only defence comes up from certain suggestions in line with appellant's reply to a question during his statement under section 342, Cr.P.C. The question and answer is reproduced:--
14. Q. Why this case against you and why the P. Ws. deposed against you?
15. Ans. Actually complainant party belongs to our brother and father of Samia Bibi wanted to marry his son Muhammad Jamil with my sister Mst. Nasira Bibi and they repeatedly asked the hand of Mst. Nasira Bibi for Jamil but my father refused, for this grievance they concocted a false case against me and even after the registration of the case and during the trial the complainant party has repeatedly asked the hand of Nasira Bibi with a promise to get me released from this case but my family did not"` agree to this proposal, so the complainant and the P. Ws. who are closely related have falsely deposed against me. "
16. Appellant declined to be examined on oath and did not produce any defence. The reply to the question quoted above is neither corroborated nor does it inspire confidence. I do not see any reason for putting the family honour and future of a nubile virgin who had hardly attained her puberty, at stake for such a petty matter as suggested by the `appellant side. In fact appellant has no defence whereas prosecution has proved its case up to the hilt.
17. War against Rape has been waged by all the societies, whether advanced culturally or lagging behind from materialistic point of view. Shariat has been very strict in this regard. A rapist cannot claim mitigations as has been claimed in the present case due to appellant's being of about 19 years of age at the time of occurrence.
5. The upshot of the discussion is that the impugned judgment is upheld with the modification that stripes are not to be inflicted as the conviction and sentence have not been awarded as a Hadd. Appeal is dismissed.
18. H.B.T./1180/FSC Appeal dismissed.