MUHAMMAD SHAFIQ Versus THE STATE
Mst. Hifza Bibi, aged about 9/10 years, sister of complainant Qari Abdul Khaliq, went to a Khola near the house of Muhammad Shafiq situate in Mollallah Gorum Zai at about 13-30 hours on 6-8-1994 for fetching water. She was also accompanied by Mst. Faiza minor daughter of Muhammad Rafiq. After some time Mst. Hifza Bibi returned to the house weeping and informed her mother Mst. Shamim Akhtar that the aforesaid Muhammad Shafiq has subjected her to rape. Qari Abdul Khaliq went to Police Station Nawanshehr at 13-00 hours on 7-8-1994 and recorded F.I.R. No. 192.
2. The victim Mst. Hifza Bibi was medically examined by P.W.10 Lady Dr. Shamim Nisar on 7-8-1994 at 15-00 hours. According to that examination there was redness present all over the vaginal vault redness was also present on hymen with slight swelling but vagina admitted little finger with difficulty and hymen was intact. According to the opinion of the lady doctor Mst. Hifza Bibi had been subjected to sexual intercourse. Accused Muhammad Shafiq was arrested on 7-8-1994 and after investigation he was sent up for trial before Sessions Judge, Abbottabad; who charged him under section 6/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to which he pleaded not guilty and claimed trial.
3. The State produced 12 witnesses in proof of the prosecution case. The accused made a deposition under section 342, Cr.P.C. but he neither made any deposition on oath nor produced any defence evidence.
4. After the conclusion of the trial the learned Sessions Judge convicted the accused under section 10(31 of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 10 years and to suffer 30 stripes The convict has challenged his conviction, and sentence by the appeal in hand.
5. I have heard learned counsel for the parties at length who also led me through the entire record of the case. The victim Mst. Hifza Bibi appeared as P.W.5 during the trial. The learned Sessions Judge asked her some questions to determine her capability as a witness. I have gone through those questions and I have come to- the conclusion that Mst. Hifza Bibi was a competent witness as she answered many questions very correctly although they appeared to be difficult for a child of her age. Mst. Hifza Bibi clearly charged the appellant for subjecting her to rape. The medical examination of the girl on the next day of occurrence also confirmed that she had been subjected to sexual intercourse forcibly. The redness of the vagina and of the interior vaginal canal clearly established that penetration had taken place. It was contended by the learned counsel for the appellant that hymen was to tact and vaginal swabs were also not taken to establish the presence of semen inside the vagina and so it was only a case of attempt at the most. I have considered this aspect of the matter very carefully. To constitute an offence of rape it is not necessary that ejaculation may have taken place. The penetration is sufficient to prove the offence. From the medical examination it was established that penetration had taken place although not to the full because hymen was found intact. But the condition of the 1 vagina clearly established that penetration had taken place. It is immaterial whether ejaculation took place or the hymen could not be torn.
6. It was also contended by the learned counsel for the appellant that besides the alleged victim there was no other independent and sufficient evidence to prove the charge against the appellant. However, this contention of the learned counsel is beside the point for the simple reason that a minor girl of such age could not be tutored to falsely charge the appellant. The minute perusal of the testimony of Mst. Hifza Bibi would clearly show that there was neither any contradiction in her whole statement nor was there any departure from the original prosecution case. The oral testimony of the victim was clearly corroborated and established by the medical evidence. Neither any animus against the appellant by the complainant or the police was brought on the record.
7. Taking into consideration all the aforesaid circumstances I have come to the conclusion that the appellant was guilty of committing Zina-bil-Jabr with Mst. Hifza Bibi and he has been appropriately convicted and sentenced by the learned Sessions Judge. There is no merit in this appeal, which is dismissed. However, the appellant shall be entitled to the benefit under section 382-B, Cr.P.C. The sentence of stripes awarded by the learned trial Court is set aside as the said punishment has since been done away with by the Abolition of the Punishment of Whipping Act, 1996.
N.H.Q./1073/FSC Appeal dismissed.