ZAHOOR AHMAD Versus STATE

MIR HAZAR KHAN KHOSO, J: ‑‑ The appeal by leave of this Court is directed against the judgment dated 15‑11‑1993 of the Federal Shariat Court whereby appeal filed by the appellant against his conviction and sentence awarded to him by the learned Additional Sessions Judge, Layyah, on 25‑2‑1993 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) was dismissed.

2. The background of this appeal is that on 15th October, 1991, at about 3‑45 p.m. P.W. 5 Mst. Bashiran Mai, virgin girl of about 14 years daughter of complainant Ghulam Haider (P.W.8) was returning home from fields when on the way appellant Zahoor Ahmad dragged her into cotton crop field and on threat of knife started committing Zina‑bil‑Jabr with her. She raised cries which attracted Ameer Usman (not examined), Bashir Ahmad (P.W.6) and Ghulam Rasool (P.W.9). Seeing them the appellant ran away. She narrated story of her episode to them and left for her house. Her father returned home at late evening when she informed him about the unfortunate incident. Due to lack of conveyance and night they remained in house. Next morning the complainant took her to Kot Sultan Hospital for examination but lady doctor was not there. He then took her to Layyah Hospital where doctor refused to examine her unless she was referred by police. Complainant came back home and then took victim for lodging report but on the way Constable Guldad met them. He took them to Ghulam Qadir, S.I.(P.W.10) who was on patrolling and met them at Pul Dholewala where he recorded statement of the complainant. On basis of his complaint formal F.I.R. was registered at the police station.

3. Ghulam Qadir, S.I. initiated investigation of the case. He recorded statement of Mst. Bashiran Mai and sent her for medical examination to hospital where W.M.O. Dr. Sartaj Tirmizi (P.W.2) examined her. Ghulam Qadir went to the spot and prepared site plan. He recorded statements of witnesses Ghulam Rasool and Bashir Ahmad. On 17‑10‑1991 he formally arrested the appellant as he was. on bail granted to him by the Sessions Court. He was referred for medical examination to hospital where Dr. Faqir Hussain Shah (P.W.1) examined him. As his bail was cancelled by the Court he was arrested on 14‑11‑1991. He led to recovery of knife from his house hidden underneath `Bhoosa'. After completion of investigation he challaned the appellant before the Court where he did not plead guilty to the charge and claimed trial.

4. In support of the charge prosecution examined P.W. 1 Dr. Faqir Hussain Shah, P.W.2 W.M.O. Dr. Sartaj Tirmizi, P.W.3 Bashir Ahmad, ASI, P.W.4 Roshandin, S.I., P.W.5 Mst. Bashir Mai,'P.W.6 Bashir Ahmad, P.W.7 Noor Ahmad, P.W.8 Ghulam Hyder, P.W.9 Ghulam Rasool and P.W.10 Ghulam Oadir, S.I. Statement of Khalid Mehmood was recorded as C.W.1. In his statement recorded under section 342, Cr.P.C. the appellant disputed prosecution version and canvassed innocence. He examined D.W.1 Haq Nawaz Patwari and D.W.2 Ghulam Sabir in defence.

5. The learned Additional Sessions Judge, Layyah, believed prosecution evidence, discarded defence version and by judgment dated 25‑2‑1993 he convicted the appellant under section 10(3) of the Ordinance and sentenced him to suffer R.I. for 14 years and twenty stripes.

6. The appellant challenged his conviction and sentence before the Federal Shariat Court who on 15‑11‑1993 dismissed his appeal and maintained conviction and sentence awarded to him by the learned Additional Sessions Judge, Layyah.

7. On 18‑4‑1995 leave to appeal was granted to the appellant to appraise I the evidence on record and to consider whether the principles laid down by the superior Courts for appreciation of evidence in cases of Zina‑bil‑Jabr have been kept in view.

8. We have heard Malik Rab Nawaz Noon, Advocate Supreme Court with Mr. Ejaz Muhammad Khan, Advocate‑on‑Record, for the appellant and Sh. Muhammad Naeem, Advocate Supreme Court, for the State, perused the evidence produced by the prosecution, statement of the appellant and defence witnesses.

9. At the very outset the learned counsel for the appellant contended that incident had taken place on 5th of October, 1991, where after due deliberations and consultation for two days complaint was lodged on 7‑10‑1991 and that too outside the police station whereafter preliminary investigation by S.I., formal F.I.R. was recorded at police station. This delay of two days clouds the entire prosecution structure.

10. The learned counsel for the State submitted that incident took place in the evening time, the complainant firstly came late and then intended to get her medically examined and then to make report. The time consumed by him in his movements was the real cause for going with delay to the police. He reiterated that in presence of voluminous trustworthy evidence, the delay of two days which has been explained would not be fatal to the prosecution case.

11. We have examined the initial statement of the complainant. His deposition recorded in the Court. Both the statements carry the same explanation.

12. The trial Court found the delay satisfactory and observed as under:..

"Forty‑hours delay in lodging F.I.R. stands explained by Ghulam Haider P.W.g (gather of Mst. Bashir Mai P.W.S) in that he came back home late in the night after the occurrence and due to odd time and lack of means of transport he went to Kot Sultan in the morning where the W.M.O. was not available, so he came to Layyah, but on the direction by the doctor to come through the police, went back and lodged the F.I.R. The complainant is an illiterate village rustric; the facts stated on oath have remained unrebutted and are not uncommon in our milieu. Thus, the delay stands fully explained. Two days similar delay in (1985 SCMR 1822) was found not to affect the merits of the case."

13. The Federal Shariat Court has affirmed its views in para. 13 as under:‑

"One more argument presented by learned counsel for the appellant was that there is delay in making the F.I.R. It is true that there is delay 'of about two days but it has been explained in the F.I.R. as follows:‑‑

This is a plausible explanation. No benefit can, therefore, be given to appellant on account of short delay in lodging the F.I.R."

14. We have examined the consistent explanation given by the two Courts below, we see no reason to take a different view than that taken by them.

15. It was then contended by the learned counsel for the appellant that, there existed dispute between appellant's father owner of cloth shop and complainant Ghulam Hyder over money matter, he has been target of enmity and involved in false case. It is cooked up case. Interested witnesses have been introduced and set up. Their evidence is totally belied by the negative medical evidence and Chemical Examiner's Report.

16. The learned counsel for the State while repudiating contentions raised by appellant's counsel stressed that the appellant had failed to establish enmity. The prosecution evidence cannot be termed as interested one. Besides, the complainant on such petty matter would not play with honour of his unmarried daughter.

17. No doubt appellant has set‑ up plea of enmity existed between the parties. There is only assertion. But no material has been placed on the record to substantiate it. Even enmity does not emanate from the prosecution case or circumstance around it. We, therefore, agree with the contention of the State Counsel that the appellant has failed to prove enmity existed between the` parties earlier. It may further be observed that no sane father would cook up a false case of such nature to play with honour of his unmarried daughter and to spoil her future. We are, therefore, not impressed by the arguments advanced by the learned counsel for the appellant in that respect. In absence of enmity between the parties the prosecution evidence cannot be taken as gospel truth. Evidence of prosecution witnesses has to be scrutinized. It is only accepted when it stands to acid test of scrutiny.

18. The most important piece of evidence in rape cases primarily is that of the victim herself. And secondly evidence of Medical Officer, who had medically examined her. Lastly any other piece of evidence produced by the prosecution.

19. We will start with evidence of Mst. Bashir Mai. In unequivocal word she has said that she was dragged on knife point by the appellant in cotton crop where he removed her Shalwar and started committing Zina with her. She has further stated that on her cries Amir Usman, Bashir Ahmad and Ghulam Rasool came there and seeing them the appellant ran away.

20. Admittedly the parties knew each other before the incident. They lived in the same vicinity. The incident had taken place during broad daylight. There can be no mistaken identity. She has not only identified him but firmly stated that he committed rape upon her. NO material was placed by the defence to falsify her direct evidence. The evidence of the witness is, therefore, trustworthy.

21. P.W. 6 Bashir Ahmad and P.W.9 Ghulam Rasool have fully affirmed her evidence saying that they were attracted on her cries. On seeing them the appellant ran away.

22. No doubt Bashir Ahmad is closely related to the victim. Mere relationship of witness with victim is not sufficient to discard evidence of the witness, unless it suffers from inherent defects. The witness has stood straight to the test of cross‑examination. No material has been brought on the record to discredit his evidence.

23. Witness Ghulam Rasool is not related to the victim. He has successfully crossed the test of cross‑examination. Evidence of the abovesaid two witnesses rings truth. They have supported the version of the victim.

24. Coming to important piece of evidence of W.M.O. Dr. Sartaj Tirmizi. She has opined that hymen of the victim was not intact and was torn at pheripheri with redish margin. In cross‑examination she has affirmed that in case of rape of virgin normally no injuries are found in the inner parts of vagina but only redness could be noticed on upper part. Being in such situation the learned counsel for the appellant emphasized that no rape was committed upon the victim but some blunt substance was inserted inside her vagina to rupture hymen or cause any injury inside it to create false evidence against the appellant. On face of it the argument has neither base nor force. The Medical Officer has certified that the victim was not habitual to intercourse. It does not appeal to our minds that a virgin girl herself or would allow anybody else with her consent to introduce some hard substance inside the vagina to rupture hymen or cause injury to it. Besides, if any hard substance had been introduced therein it would have not only ruptured the hymen but would have left also injuries in the inner part of the vagina. Having found no injury inside the vagina the possibility of introduction of some other blunt substance inside the vagina is ruled out. The learned counsel then insisted that the swabs taken from the vagina of the victim were examined by the Chemical Examiner whose report is that no semen was detected therefrom.

25. ' It may be observed that slightest penetration is sufficient to prove charge of rape. It is not necessary for the prosecution to prove presence of semen in the vagina. The prosecution has successfully proved penetration in the vagina and discharged its burden. Even then the learned counsel for the appellant tried to make mountain from the mole by saying that victim has admitted that for half an hour she had intercourse from the appellant and he must have discharged and semen should have been present there. The version of the victim may be correct. Half an bour may have been consumed. But even then it is not necessary that the appellant might had been discharged and left semen therein.

26. It was canvassed by the learned counsel for the appellant that the appellant and the victim were teen agers and possibly it was their first romance and it failed. In respect of age he is right to say so. But it is not a case of consented sexual intercourse, it is case of rape. Victim being equal to the age of the appellant had been continuously resisting intercourse and raising cries which attracted the witnesses, without being discharged the appellant had taken on his heels.

27. It was then contended by him that how was it possible for the appellant carrying knife in one hand and by one hand overpowering the victim for having sexual intercourse. This argument on the contrary supports the version of the victim that the episode continued on for half an hour time. And this was actually the reason that he had no opportunity to get discharged himself.

28. Having exhausted all his energies at the last leg of his arguments the learned counsel for the appellant submitted that the appellant at the time of incident was a young boy of 16 years and was a student. His act may be an attempt to commit rape but not a rape at all, particularly when the Chemical Examiner's Report regarding vaginal swabs is in negative. In such circumstances the learned counsel submitted that the sentence of 14 years awarded to the appellant is severe and leniency may be shown to him by reducing his sentence.

29. It may not be out of place to mention that slightest penetration is sufficient to prove charge of rape. Proving full intercourse is not necessary ingredient of rape.

30. However, the fact that (i) the vaginal swabs did not contain semen and (ii) there was redness on the outer part of the vagina of the victim only may be a mitigating circumstance to reduce his sentence. We are, therefore, inclined to reduce the sentence of R.I. for fourteen years to R.I. for five years. The sentence of stripes shall remain intact.

31. Before parting with the case, we are inclined to observe that the learned trial Court while awarding substantive sentence of 14 years under section 10(3) of the Ordinance had awarded sentence of twenty stripes only. Under section 10(3) of the Ordinance a Court has to award thirty stripes. It is mandatory provision of law. Legislature has not left it at the discretion of the Court. The Federal Shariat Court has also not taken note thereof. For ready reference provisions of section 10(3) of the Ordinance is reproduced, which read:‑‑

"Whoever commits Zina‑bil‑Jabr liable to Tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty‑five years and shall also be awarded the punishment of whipping numbering thirty stripes." '

32. As there was neither move from the State side for enhancement of stripes nor this Court took suo motu action by issuing notice. At this belated stage without notice to the app‑‑::ant for enhancement of sentence of stripes we are not inclined to enhance his sentence of stripes.

.33. With the abovesaid observations the appeal is partly accepted and disposed of accordingly.

N.H.Q./Z‑195/S Sentence reduced.