MUHAMMAD ASHRAF Versus THE STATE
This appeal is directed against judgment dated 18‑5‑2000 by Sessions Judge, Bahawalnagar, whereby learned Trial Judge, convicted the appellant under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance and sentenced him to undergo R.I. for 7 years, plus to pay a sum of Rs.10,000 as fine, in default whereof to undergo S. I. for 6 months. He was also awarded 30 stripes.
Vide the same judgment, he was convicted under section 448, P.P.C. and sentenced to undergo R.I. for 6 months.
Sentences of imprisonment on both counts were ordered to run concurrently.
2. Occurrence in this case had taken place on 29‑5‑1999 at 11‑30 a.m. in the house of Mst. Shabbiran Bibi, aged 15/16 years (P.W.7), in Zamindara Colony, in Chishtian Town, at a distance of 1/4 kilometre from Police Station City Chishtian.
F.I.R. Exh.P.F., was registered at the police station by Mehr Noor Muhammlad, Inspector/S.H.O., P.W.8 on 29‑5‑1999 at 8‑00 p.m. on the statement of Mst. Shabbiran Bibi, victim in this case.
According to F.I.R., complainant was virgin. She was living with her parents. On the day of occurrence, her father had gone for working as a labourer. Her mother had left the house for Chak No.21, to see her daughter (complainant's sister). Small children had not returned from the school. Complainant was alone in the house. Somebody knocked at the door at 11‑30 a.m. She opened the door and saw that Muhammad Ashraf, appellant herein, was standing there. He asked her that he wants to meet her father. She told him that her father was not at home and that he can come in the evening to meet him. Saying this she closed the door. Ashraf entered the house of the complainant by scaling over the common wall between his house and the complainant's house. He caught her and took her into a room. He forcibly removed her Shalwar and started committing Zina with her. P.Ws. Sher Muhammad and Muhammad Arif reached the spot, hearing the alarm raised by her. They tried to catch the accused, but he succeeded in running away. In the end she stated that Ashraf had committed Zina with her and that as her father had not returned, until then, she had come to lodge the report in the company of her mother and Sher Muhammad, a cousin of her mother.
3. Mehr Noor Muhammad, S.H.O., after registering the case entrusted the investigation to Abdul Sattar, A.S.‑I. P.W.2, A.S.‑I. got Mst. Shabbiran Bibi medically examined from a lady doctor in T.H.Q. Hospital, Chishtian. A sealed envelope handed over to him by lady doctor, containing vaginal swabs of the victim was deposited by him at the police station. Thereafter, he visited the spot and prepared site‑plan Exh.P.B and recorded statements of the witnesses. Shalwar and broken string of Shalwar produced before him by the victim was taken into possession vide memo. Exh.P.A. He arrested Muhammad Ashraf, appellant on 11‑6‑1999 and got him medically examined. After completion of necessary investigation, he got the challan submitted to Court through the S.H.O.
4. Statements of 9 P. Ws. were recorded at the trial.
Lady Dr. Robina Shaheen, who had medically examined Mst. Shabbiran Bibi on 29‑5‑1999 at 10‑30 p.m. appeared as P.W.4. She stated that she had not found the hymen of the examinee intact. She had noted a tear in posterior vaginal wall at 6'O Clock position. She had removed two vaginal swabs, sealed the same into an envelope and handed over the same to the A.S.‑I. for being sent to the Office of the Chemical Examiner for detention of semen. On receipt of report Exh. P. E. , from there, that the swabs were stained with semen, she gave opinion that sexual intercourse had been committed with the examinee.
5. Mst Shabbiran Bibi, victim in this case, aged 15/16 years appeared as P.W.7. She repeated the facts narrated by her in the F.I.R She added that she had produced her Shalwar and broken string before the police at the spot. During cross‑examination she gave out that they were 5 sisters and 2 brothers, out of whom 3 sisters and 2 brothers were studying in the school. She stated that there is a common wall between the house of accused and their house. While answering a question, she stated that, "I suspect that during the occurrence there was bleeding but my Shalwar had not stained with blood. She admitted that Sher Muhammad, P.W. was "phoophizad" of her mother. She stated that the accused had bitten her on the cheeks. She denied the suggestion that she had lodged the F.I.R. against the accused at the instance of Sher Muhammad P W who was inimical to the accused.
6. Sher Muhammad, named as eye‑witness in the F.I.R, corroborated the statement made by victim while appearing as P.W.1. During cross‑examination while admitting his relationship with the complainant, he denied the suggestion that any quarrel had ever arisen between him and the accused. He also denied the suggestion that he had got this case falsely registered against the accused because of his annoyance with him.
7. Dr. Muhammad Khalid, who had medically examined the appellant qua potency on 12‑6‑1999, at 12‑00 noon, appeared as P.W.3 and stated that on examination, he found him fit to perform sexual intercourse.
8. Abdul Sattar, A.S.I., who had investigated the case got Mst. Shabbiran Bibi medically examined from lady doctor, visited the spot, prepared site plan of the place of occurrence, recorded statements of the witnesses, had taken into possession Shalwar and broken string on being produced before him by the victim at the spot, arrested the accused, got him medically examined and had got the challan submitted to Court, after completion of necessary investigation, appeared as P.W.2 and deposed those facts on oath. During cross‑examination he admitted that a person standing on the main gate of the house could have seen, what was happening in the room. He stated that he had associated the neighbourers during investigation but had not recorded their statements under section 161, Cr.P.C. He denied the suggestion that neighbourers had not supported the occurrence. The suggestion that a quarrel had taken place between Sher Muhammad P.W. and the appellant some days prior to the occurrence was denied by him. The suggestion that it was a concocted case and the accused had been challaned wrongly was also denied by him.
Statements of remaining witnesses are more or less of formal nature.
9. Appellant during statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. He took up the plea that a fight had taken place between him and Sher Muhammad P.W. before this occurrence and he had got this case registered against him. Although he did not make statement under section 340(2), Cr.P.C., but he examined in defence Muhammad Rafique and Muhammad Ramzan as D.W.1 and D.W.2.
Both the P.Ws. stated that they had seen Sher Muhammad quarrelling with Muhammad Ashraf, some time before this occurrence. According to them quarrel had arisen When Sher Muhammad had objected accused visit to the street of Sher Muhammad, in drunk state. They also stated that Sher Muhammad had got this case registered against Muhammad Ashraf due to that quarrel.. Both the witnesses during cross‑examination admitted that they were neighbourers of Muhammad Ashraf.
10. Learned counsel for the appellant, after having gone through the evidence contended, that out of two eye‑witnesses named in the F. I. R., one was not examined at the trial while the other i.e., Sher Muhammad, P.W.1, had been disbelieved by the trial Court that the solitary statement of Mst. Shabbiran Bibi was not enough to maintain the conviction of the appellant, that the evidence produced by the appellant in defence was reliable and worth acting upon.
Learned counsel for the State defended the judgment of the trial. Court and contended that even if the testimony of Sher Muhammad remains discarded the statement made by Mst. Shabbiran Bibi was' sufficient to maintain the conviction as the same finds full corroboration from the medical evidence. Learned counsel submitted that the statement made by both D. Ws. about the occurrence of commission of Zina, was based on hearsay while their statements made by them about dispute with Sher Muhammad had, become redundant, because his presence at the spot was not believed by the learned Trial Judge.
11. I have examined the whole evidence and considered the contention of learned counsel for both the parties.
Although I am not fully convicted by the reasons noted by the learned Trial Judge for discarding the testimony of Sher Muhammad, but I am not questioning that fact, simply, for the reason that, herein, is a case where a young girl aged about 1.5/16 years, had been subjected to Zina and she not only had lodged F. I. R. herself but had done so within 8 hours of the occurrence. The delay of few hours had occurred as neither her father nor her mother was present .in the house.
During medical examination doctor had not found her hymen intact. She had noted a tear in posterior vaginal wall at 6'O Clock position, which showed that she had been subjected to intercourse. The swabs removed from the vagina of the victim had been found stained with semen. That being, the state of medical examination, the same fully corroborates the testimony of the complainant.
The defence had failed to bring anything on record to argue there was any animosity, annoyance or ill‑will between the complainant and her parents, on the one side and the appellant on the other side. The stance of the appellant that a quarrel had taken place between him and Sher Muhammad and he had got this case false registered against him is not worth acting upon as it cannot be believed that merely for being a cousin of mother of complainant, the complainant or his family members would have agreed to put on stake her future by lodging a report about commission of Zina. It is commonly known that a girl having such history is always looked down upon and loses respect in the society. In the circumstances there appears to be no force in this appeal the convictions of the appellant on both counts are, therefore, maintained.
However, I feel, sentence of R.I. for 6 years for commission of offence under section 10(2) will meet the ends of justice. Order accordingly.
Sentence awarded for conviction under section 448, P.P.C. is maintained. Both the sentences shall run concurrently.
The sentence of stripes is remitted/set aside, as the same stands abolished by an Act of the Parliament. .
Benefit of section 382‑B, Cr.P.C., shall be extended.
The appeal is disposed of with above alteration in the sentences.
H.B.T./58/FSC ??????????????????????????????????????????????????????????????????????????????????? Order accordingly.