MUHAMMAD ASLAM Versus THE STATE
The appeal is directed against the judgment, dated 6-2-1996 by Additional Sessions Judge, Bhawalnagar whereby the learned trial Judge convicted the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo R.I. for ten years and to suffer thirty stripes. Benefit of section 382-B, Cr.P.C. was extended.
2. F.I.R. Exh. P.F. was recorded at the police station by Ghulam Shabbir S.I. P.W.12, on 26-6-1993 at 6-15 p.m. on the statement of Mst. Noor Bakhsh, P.W.8
According to F.I.R. the complainant had sent her daughter Mst. Nadia aged 5/6 years to the shop of Muhammad Fazil for making some purchase. As Mst. Nadia did not return since sufficiently long, she went to the shop of Muhammad Fazal in search of her. Sher Muhammad and Muhammad Riaz P. Ws. were present there and waiting for the shopkeeper. Suddenly shrieks of Mst. Nadia were heard by them, from the house of Muhammad Fazal. They entered the house running and saw that Muhammad Aslam (appellant) son of Muhammad Fazil was committing Zina with Mst. Nadia on a cot, she was raising shrieks and the accused had placed his hand on her mouth to keep her, quiet: The accused on seeing the P. Ws. picked up his Shalwar and ran away. The P.Ws. accompanying the complainant chased the accused but he succeeded in running away. She explained towards the end that as her husband was not at home she waited for him and on his return she had come to the police station to lodge the report.
3. Ghulam Shabbir S.I. after registering the case, prepared Exh.P.E./1, statement of injuries of Mst. Nadia and sent her for medical examination to the hospital alongwith Abdul Ghafoor constable. Thereafter, he went to the spot where Nazir Ahmad father of the victim produced Shalwar Exh. P.1, semen- stained shirt blood-stained, which he took into possession vide memo. Exh. P.C. He sealed the Shalwar into a parcel. He prepared site plan Exh. P.G. also and recorded the statements of P.Ws. On return to the police station he deposited the parcels with the Moharrir. He arrested the appellant on 1-7-1993 and got him medically examined on 2-7-1993 for potency. The parcel of the Shalwar was sent to the Office of the Chemical Examiner. After completion of necessary investigation challan was submitted to Court.
4. Statements of twelve P.Ws. were recorded at the trial.
Lady Doctor Shaista Parveen who had medically examined Mst. Nadia aged 6 years on 26-6-1993 at 11-45 p.m. appeared as P.W.7. She hold observed as follows:--
"She was afraid and was crying with pain. She was wearing the same clothes at the time of examination. Shalwar was stained with blood and stained with semen. Tenderness was present over the lower abdomen and volva. Labia majora and volva were swollen, tender and redness was present over the volva and labia majora.
Hymen was torn. Fresh tears, blood oozing from the tears. Laceration was also present over labia majora and blood was oozing."
She had taken two vaginal swabs for detecting semen, positive report Exh. P.D. was received from the office of the Chemical Examiner. Lady doctor after receipt of the report Exh. P.D. opined that sexual intercourse had been committed with Mst. Nadia. During cross-examination she admitted that she had not noted probable duration of the injuries in the medico-legal report Exh. P.E.
5. Dr. Arshad Ali who had medically examined the appellant on 2-7-1993 at 9-00 a.m.., had opined that he was fit and capable to perform sexual act.
6. Mst. Noor Bakhsh who had lodged F.I.R. appeared as P.W.8. She renarrated the facts given by her in the F.I.R. and explained that she did not report the occurrence earlier as her husband had gone away and that she reported the occurrence after his arrival. During cross-examination she stated that the shop of the accused is at a distance of 5/6 Karams, from the place where he had committed the crime. She explained that she had come out in search of her daughter after 1/I-1/2 hours and had gone to the shop of accused. She explained that there arc walls on two sides of the house of the accused while the other two sides are open. She admitted that Muhammad Riaz P.W. was her brother and Sher Muhammad was his neighbourer. She stated that she had put on Shalwar of Mst. Nadia after the accused had ran away and lifted her to her house. She stated that her husband had produced the semen/blood-stained clothes of the victim before the police 3/4 days after the registration of the case on the demand of the Sub-Inspector. She explained that Muhammad Fazil to, whose shop she had sent Mst. Nadia was, father of the accused and that it was a routine as they used to purchase articles from his shop, She denied the suggestion that she had been purchasing goods from the shop of Muhammad Fazal on credit and that when Muhammad Fazal and his son Muhammad Aslam (appellant) demanded the price of the goods purchased by her and she involved Muhammad Aslam in this case levelling false allegations. She admitted that there are three houses in the neighbourhood of the house of the accused. She explained that they were relatives of the accused. She denied the suggestion that she had made a false statement.
7. Muhammad Riaz, P.W.9, corroborated the statement of P.W.8 about her coming to the shop and about their having witnessed the commission of Zina by appellant with Mst. Nadia. During cross-examination he stated that there was no shop in their Bheny, which consisted of 2/3 houses. He added that there was no shop on the way either. He stated that when they had gone to the shop, it was closed. He added that none from the surrounding houses had come to the place of occurrence. The suggestion that all the residents were present denied by him.
He stated that they had gone to the hospital, on the day, when they had gone to the police station and that they had returned from there 2/3 days later. He denied the suggestion that the case had been registered at the instance of Aslam Nasir Zamindar who was inimical to the accused.
8. Sher Muhammad P.W.10, also corroborated the statements of P.W.8 and P.W.9 about their reaching the shop of Muhammad Fazal and of having witnessed the occurrence. He admitted that his house was at a distance of 4/5 acres from the house of the accused. He also admitted that the wife of Muhammad Fazal teaches Qur'an since many years and that Mst. Nadia also used to learn recitation of Holy Qur'an from her. He admitted that matter was placed once before a Punchayat for an oath. He added that offer was made to the accused party that they should say on Holy Qur'an that the accused was innocent but the accused did not accept that offer. He denied the suggestion that matter was placed on oath for the reason that the occurrence had not been witnessed by anyone. He denied the suggestion that Mst. Nasreen elder sister of Mst. Nadia had been caught with one Afzal Shah and matter had been reported by Muhammad Fazal. He denied the suggestion that he had made a false statement.
9. Nazar Muhammad H.C. P.W.4, stated that he had kept safely the parcels of the case deposited with him. He added that he had handed over one parcel to Muhammad Hussain F.C. on 3-7-1993 for transmission to the office of the. Chemical Examiner
Muhammad Hussain F.C. while appearing as P.W.5 stated that the parcel entrusted to him by Nazar Muhammad M.H.C. had been deposited by him in the office of the Chemical Examiner at Multan on 4-7-1993 safely.
Muhammad 1qbal Shah P.W.6 stated that in his presence Nazir Ahmad father of the girl had produced her shirt, Shalwar before the Sub-Inspector which he had taken into possession. Similar statement was made by Shamas Din P.W.11.
10. Ghulam Shabbir S.I. who had registered the case, got Mst. Nadia medically examined from the doctor, recorded the statements of the P.Ws., visited the spot, prepared site plan Exh .P.G., arrested the accused on 1-7-1993 and got him medically examined on 2-7-1993 and had submitted challan to Court after completion of necessary investigation, appeared as P.W.12 and deposed those facts. During cross-examination he admitted that D.S.P. Abdul Aziz Khan had also investigated the case. He denied the suggestion that no occurrence, as alleged, had taken place and that a wrong medico-legal certificate had been obtained from the doctor. He denied the suggestion that he had received any application regarding the commission of Zina with the elder sister of Mst. Nadia. He expressed lack of knowledge about father of the accused having given any information, about the accused, who had committed Zina with the elder sister of Mst. Nadia. He denied the suggestion that he had wrongly challaned the accused.
11. The prosecution had produced Mst. Nadia before the Court. The learned trial Judge after putting her questions, observed, that she was minor and the Court was of the opinion that she was not capable to understand the questions, nor can stand test of evidence including examination-in-chief or cross- examination and that she also did not understand the sanctity of oath . He passed the order that in the circumstances Mst. Nadia cannot be examined as a witness.
The prosecution after producing positive report Exh. P.H. from the office of the Chemical Examiner closed the prosecution case.
12. The appellant during statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. He stated as follows in answer to the question "why this case against you and why the P.Ws. have deposed against you?"
"I am' innocent. This is a false case, I am Hafiz-i-Quran and study at Lahore in a Madrissa situated at Zaildar Road, Lahore. There was a dispute between my parents and complainant party as the elder sister of the victim was got raided by the police on our complaint and, therefore, in order to take revenge of that, I have been falsely involved in this case. I reside with my family including my brothers and sisters and our family is religious one and cannot think of such a type of offence. My mother also teaches the Holy Quran to the children of the village and our house remains full of people all the time. The P.Ws; are the relatives of the complainant and their houses are situated one mile away from the alleged place of occurrence."
Although initially he stated that he will produce evidence in defence and will make statement; on oath also, under section 340(2), Cr.P.C., but later he declined to do so.
13. Learned counsel for the appellant after having gone through the evidence criticised the impugned judgment and contended that the prosecution had failed to prove the case against the appellant, that the F.I.R. was lodged after an unexplained delay of about 30 hours, that the alleged occurrence had taken place in an open place and had such an occurrence taken place there, the residents of the surrounding inhabited houses, would also have witnessed the same, that the house where the occurrence is alleged to have taken place was inhabited by the other members of family of the appellant and the 'appellant could not have indulged in such an activity in their presence and that all the eye witnesses were chance witnesses.
Learned counsel added that in any case presence of Sher Muhammad and Muhammad Riaz was highly doubtful. Lastly the learned counsel submitted that the appellant was a Hafiz-e-Quran aged about 20 years and so a lenient view be taken about the quantum of sentence.
Learned counsel for the State defended the judgment of the trial Court.
14: The victim in this case was a minor girl of 6 years. Her father was away. Her mother being a woman could not have taken steps to get the case registered, as, in such cases the affected families have to consider so many social aspects. On the arrival of the father of the victim prompt steps were taken to l inform the police. In the circumstances there is no force in the argument that the occurrence was reported after an unexplained delay. Moreover, delay becomes important only, when element of witch hunting and- planned nomination o accused is obvious. In this case the appellant was the only person named as accused and there is no material to consider that he was chosen to be named as accused after consultations and deliberations.
The argument of the learned counsel for the appellant that the witnesses do not appear to have witnessed the occurrence, is, based on the fact that each one of them was living at a distance of 4/5 acres from the place of occurrence. The fact of the distance is admitted by the P.Ws. as well. However, Mst. Noor Bakhsh explained that she had gone to shop of Muhammad Fazal father of the appellant as she had sent her daughter to that shop for purchases, which shows that they usually used to purchase article from same shop. There, is, not only, assertion of the complainant that it was their usual practice to purchase articles from the shop of Muhammad Fazal but this fact was in a way admitted by the appellant also. In that, suggestion was put to Mst. Noor Bakhsh that she used to make purchase on credit from their shop and when they demanded the price of the articles she got him involved in this case. Had it not been the practice for the complainant to make purchase such a suggestion could not have been put to her? There is another fact also on account of which Mst. Noor Bakhsh would have gone to the shop/house of the appellant to inquire about her daughter and that is that the victim-used to go to the mother of the appellant for learning recitation of Holy Quran. In the circumstances there is no force in the argument of the learned counsel for the appellant that Mst. Noor Bakhsh could not have been at the spot or that she was a chance witness.
Riaz Ahmad and Sher Muhammad P.Ws., explained their presence at the spot by stating that they had come to make some purchases and they remained there as the shopkeeper yet had not opened. They were particularly asked question, why did they not make purchases from some other shops. They replied that there was no shop at their Bhaini and this was nearest shop to their place of residence.
No doubt Riaz is real brother of Mst. Noor Bakhsh and Sher Muhammad resides near him but that fact alone in my view is not enough to discard their testimony. Yet another fact is, that medical evidence fully supports the allegation of Zina. The victim is a minor girl aged 6 years who had neither any enmity with the appellant nor it could be assumed by any 'stretch of imagination that she herself might have been a party. In a case like this the statement of one eye-witness i.e. Mst. Noor Bakhsh alone would be enough to believe the prosecution case unless of course, there were some glaring things rebutting the claim of the complainant.
15. No doubt the Chapper where the occurrence had taken place had walls only on three sides (as is evident from the site plan Exh. P.G.) but there is material on the record to consider that the members of the family of the appellant were not present in the house on the day of occurrence. This is evident from the statement of the complainant that the shop of the father of the appellant was locked round about the time of the occurrence. That being so the house, which the appellant chose for commission of such dastartedly act was practically a lonely house at the time of occurrence. The question of anybody having checked him did not arise nor was there any occasion for anyone else having witnessed the occurrence.
16. The most important fact of this case is that there is nothing on record to hold that there was any animosity or ill-will between the parties prior to registration of this case. The suggestion put to Mst. Noor Bakhsh that she got this case registered as the appellant and his father had asked for payment of the amount for which she had purchased articles on credit was denied by her. Even otherwise it cannot be believed by any stretch of imagination that merely on that account she would have got the case registered.
The suggestion put to the witnesses during cross-examination that elder sister of the victim was caught with Afzal Shah a day before the occurrence and Muhammad Fazal (father of the appellant) had played role in the arrest of Afzal Shah was neither here nor there, because if such an occurrence had taken place l and had Muhammad Fazal got Afzal Shah arrested, the appellant would have easily produced the copy of that F.I.R. or copy of any report lodged in that regard. Moreover, if that occurrence had taken place, how come that the father of the girl would have kept silent and would have not lodged proceedings against Afzal Shah and if he had any reservation or problem to proceed against Afzal Shall for misbehaviour with Mst. Nasreen, the first choice of the father and mother of the victim would have been to name him (Afzal Shah) as accused if they were to lodge a false F.I.R. or name somebody whom they hated or disliked. The very fact that the victim used to be sent by her parents for learning Quran from the mother of the appellant shows that they had confidence in the members of the family of the appellant and no ill-will existed amongst them.
17. After having gone through the evidence minutely and after having carefully applied my mind, I am convinced that the prosecution had succeeded to prove the case against the appellant. '
The prayer of the learned counsel for reduction in the sentence of imprisonment is devoid of any force because such behaviour was not expected from a Hafiz-e-Quran and if a person who claimed to be Hafiz-e-Quran is found to have committed such an act, he cannot be dealt with leniently. Moreover, the victim in this case was a poor child of 6 years, not capable even to make statement. It was not only a dastratedly act but a cruel thing also.
18. In the circumstances no case for reduction in the sentence of imprisonment is made out. There is no force in this appeal, the same is dismissed.
However, sentence of stripes is remitted as the same stands abolished vide Notification in the Gazette of Pakistan (Extraordinary), dated Monday 15th April, 1996.
N.H.Q./1113/FC Appeal dismissed.