MUHAMMAD KHALID Versus STATER

This appeal is directed against judgment dated 23 rd of April 1996. passed by learned Additional Sessions judge, Kot Addu whereby the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (hereinafter referred to as the Hudood Ordinance) and sentenced to undergo rigorous imprisonment for ten years and thirty stripes.

2. Briefly stated the prosecution case as gathered from the record is that on 30-7-1994 report/complaint Exh.P.C. was lodged by one Allah Dad son of Fateh Muhammad with Chargh Ali A.S.I. Police Station, Mehmood Kot wherein it was alleged that he i.e. the complainant was resident of Mauza Alurid of District Muzaffargarh. In the night between 29-7-1994 and 30-7-1994 the alongwith other family members was sleeping in the courtyard of his house. At midnight he awoke and saw that his grand daughter namely Mst. Amena was missing from her bed. He alongwith his son namely Riaz Hussain and nephew Javaid went out of the house in her search. They were attracted by cries of the victim to a nearby situated field and in the light of torch saw that the appellant was committing Zina-bil-Jabr with her under a mango tree in a jawar crop cultivation. They bawled after the accused who on seeing them rushing to the place of occurrence. Filed from the spot. On inquiry they were told by the victim that she in order to answer the call of nature had left her house at about midnight. After easing herself when she was trying her Azarband the appellant appeared on the occurrence of occurrence. Threatened her dragged her to a nearby mango tree and there subjected her to Zina-bil-Jabr. On the stated allegations, F.I.R. bearing No.108 of 1994 was registered at Police Station Mehmood Kot under section 10 of the Hudood Ordinance and investigation was carried out in pursuance thereof. On the completion of investigation the appellant was challenged to the Court for trial.

3.Charge was accordingly framed to which the accused/appellant did not plead guilty and claimed trial.

4. At the trial the prosecution in order to prove the charge and substantiate the allegation levelled against the appellant produced eight witnesses in all.

P.W.1 Dr. Majidun had on 9-8-1994 examined the appellant for the potency test. He produced in the Court the certification issued by him as Exh.P.B.P.W. 2 Iqbal Hussain A.S.I./Moharrir, Police station Kot Addu had had on 30-7-1994 recorded formal F.IR. Exh. P.C./1 On 31-7-1994 he had also received on e sealed envelope alongwith a sealed phial from the Investigation Officer for keeping the same in safe custody. He deposed that he had kept the same in Malkhana and on 1-8-1994 had handed over the same of Irshad Hussain. Constable intact for onward transmission to the Office of the Chemical Examiner P.W.3 Muhammad Sarfraz Constable on 31-7-1994 had accompanied at the victim to D.H.Q. Hospital Muzaffargarh for medical examination a Shalwar an Azarband a sealed envelope and a phial were handed over to him by the lady doctor which he subsequently made over to the investigation Officer who too the same into possession vide recovery memo ExhP.D.P.W.4 Lady Dr. Salma Bano W.M.O. D.H.Q. Hospital had on 31-7-1994 medically examined the victim. She produced in Court her report as Exh P.E. She deposed that as per result of the examination following injuries were found on the person of the victim:-

(1) A bruise 1 x 1 c.m. on the left check 2 c.m. the lower eye lid.

(2) A swelling about 2 c.m. x 3 c.m. on left upper lip. Area was tender and bluish colour.

(3) An abrasion 1/2 c. in. x 1/2 c. m. on the left‑side of chin

(4) Slight bruising of nail beds of index and middle finger of right hand. "

She further deposed that the victim had no history of menstruation before the incident. The clothes of the examinee were stained with dark coloured blood. Her thighs were also stained with blood, hymen was showing 2/3 fresh tears. The tears were bleeding freshly. On her internal examination it was, however, found that menstrual blood was coming from the servix. P.W.4 was of the opinion that injuries mentioned in the certificate were simple in nature and were the result of blunt weapon. In the course of her cross‑examination she admitted the suggestion' as correct that if sexual intercourse is done forcibly, then there would be injuries on the private part. P.W.5 Mst. Amena is the victim. She at the trial, while supporting the prosecution version gave details of the incident and deposed that in the fateful night she in order to answer the call of nature had gone out of her house. After easing herself while she was tying Azarband of her. Shalwar the appellant reached the spot, caught hold of her, dragged her to a nearby field and subjected her to Zina‑bil‑Jabr. On the cries raised by her, her grandfather acid uncle, namely, Fayyai and others were attracted. A torch was flashed, whereupon the appellant fled away from the spot. She further deposed that soon after the occurrence she had narrated the entire facts to her grandfather and others whereafter, she was taken to the police station. P. W.6 Allah Dad is the complainant. He at the trial besides affirming on oath contents of the complaint, Exh.P.C., corroborated the statement of P.W.5 in all material particulars. P.W.7 Irshad Hussain, Constable on 1‑8‑1994, was entrusted with a sealed envelope for onward transmission to the office of the Chemical Examiner, which according to him, was delivered intact. P.W.8 Chiragh Ali, A.S.‑I. is the Investigating Officer. He had also recorded complaint, Exh.P.C.

5. On the completion of the prosecution evidence the accused/appellant was examined under section 342, Cr.P.C. In his statement he denied the charge and pleaded innocence. He, however, tailed to lead any evidence in his defence though in the above‑deferred statement, he had shown his inclination to do so. He did not opt to appear as his own witness in terms of section 340(2), Cr.P.C.

6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellant and sentenced him to, the punishment as mentioned in the opening para hereof.

7. I have heard Mr. Abdul Ghafoor Gormani, Advocate, counsel for the appellant, Mr., Saleheen Mughal, learned counsel for the State and have also perused the entire record with their help.

8. Mr. Abdul Ghafoor Gormani, Advocate, learned counsel for the appellant raised the following contentions:‑‑

(i) That the F.I.R. was lodged with a considerable delay and was purposely anti-dated in order to cover up the same;

(ii) that identification of the appellant, in the circumstances of the case, was doubtful particularly when the torch, in the light of which the occurrence was allegedly seen by P.Ws. was neither taken into possession nor produced in Court. Reliance has been placed on the cases of Mst. Jameela v. Muhammad Yaseen and others reported as PLD 1983 FSC 523 and Bashir Ahmad alias Mannu v. The State reported as 1996 SCMR 308;

(iii) that the semen of the appellant was not taken for grouping;

(iv) that non‑production of alleged eye‑witnesses of the occurrence, namely, Javaid and Fayyaz was fatal to the prosecution case;

(v) that the prosecution evidence being contradictory was not worthy of credence;

(vi) that the girl being a consenting party, the appellant could not have been convicted; and in the end it was pleaded that the appellant having been falsely implicated by the complainant on the basis of enmity as well as, in order to grab money deserved acquittal or being a raw youth, was at least, required to be dealt with leniently.

9. Mr. Saleheen Mughal, Advocate, learned counsel for the State on the other hand, while controverting the above contentions, submitted that the guilt of the accused/appellant was substantially, and materially, brought home by the prosecution at the trial, through independent, reliable and truth worthy evidence, therefore, the impugned judgment was unexceptionable. He submitted that the alleged delay in lodging the F.I.R. was neither established on record nor it was proved that the F.I.R. was antedated to the advantage of the complainant. He submitted that non‑production of the torch by the prosecution otherwise, was not material because the appellant was previously known to the victim and the evidence of visual identification given by the victim was of exceptionally good quality. In support of his contention he placed reliance on the cases of Mst. Shamim Akhtar v. Fayyaz Ahmad and 2 others reported as PLD 1992 SC 211 and Muhammad Irshad v. The State reported as PLD 1995 SC 475. He pointed out that the so‑called discrepancy with regard to the availability of cotton or Jawar crops at the place of occurrence as pointed out by the learned counsel for the appellant in Exh.P.F. too, was not material because both cotton and Jawar crops were available on and around the place of occurrence. Regarding non- mentioning of the name of the appellant in the site plan he submitted that the omission too, was not fatal to the prosecution case in view of the law laid down in the cases Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908, Attaullah and 5 others v. The State through Custodian, Lahore and 11 others PLD 1996 SC 234 and Pervez v. The State 1996 MLD 1692. He further submitted that the defence plea being inconsistent was rightly disbelieved by the learned trial Court. He pointed out that initially it was pleaded that a sum of Rs.12,000 was borrowed by P.W.6 from the appellant and in order to grab the same, case in hand was fabricated! Later on, it was stated that the victim had sexual intercourse with "someone else" with her free‑will and consent and it was probably Mumtaz who was apprehended by the police and kept in custody for a few days. He maintained that the statement of the victim being natural and coherent implicit reliance has to be placed thereon particularly when the same is duly corroborated by medical as well as ocular and circumstantial evidence.

10. As regards identification of the appellant the point sought to be made by the learned counsel for the appellant is that non‑production of the torch, in the light of which, P.W.6 had allegedly seen and identified the appellant at the time of occurrence, was fatal to the prosecution case but he while making this submission lost sight of the very material' position that in believing the prosecution in evidence qua identification of the accused, the learned trial Court has primarily relied upon the statement of the victim and has only sought corroboration thereof from the statement of P.W.6. It is evident from record that the appellant being a co‑villager and residing at a distance of 20/30 Karams from the house of the victim was previously known to her. He was closely seen by her at the time of occurrence which according to her lasted for about 10 to 15 minutes, therefore, it could not have been concluded that it was a case of mistaken identity. Further, the defence plea, introduced at the trial, that the victim was a consenting party leads to the inference that firstly the occurrence was true and secondly it was not a case of substitution of the accused and the person involved therein was none else than the present appellant. Additionally testimony of P.W.6 being purely corroboratory in nature, it would have made no difference if he had not at all seen the culprit or would have stated so merely on the disclosure made to him by the victim, soon after the occurrence. However, notwithstanding the above since it has come on record through the statement of P.W.6 that he, in the course of investigation, had handed over the torch in question to the police, therefore, its non‑production at the trial would not effect credibility of his statement. Another fact which goes to his credit is that at the very outset i.e. in his statement recorded under section 161, Cr.P.C. he had stated that at the time of occurrence he had identified the accused in the torch light. Following portion of his statement is explicit on this point:‑‑

"I had stated that I was having a torch with me. Confronted with Exh.P.C. where it is not so recorded but anyhow it is stated that the accused was identified in the torch light ."

Obviously in view of above it cannot be presumed that the plea that P.W.6 had identified the appellant in torchlight was an afterthought or was introduced in order to beef up the prosecution case.

11. In the case of Mst. Shamim Akhtar v. Fayyaz Akhtar reported as PLD 1992 SC 211, it was alleged that Mst. Shamim Akhtar, in that case, had seen/identified the culprit in the torch light which was not produced by her, at the trial. Still it was held that non‑production of the torch was not fatal towards the prosecution case because the culprit was previously known to the victim.

12. So far as the cases cited at the Bar by the learned counsel for the appellant are concerned, the facts of the present case are wholly distinguishable from the facts of the cited cases inasmuch as in the case of Jameela v. Muhammad Yasin and others reported as PLD 1983 FSC 523, the culprit was not previously known to the victim and the occurrence allegedly took place in a room where, there was no source of light except a Diya, which was not taken into possession. In the circumstances it was held that non‑production of Diya was fatal, whereas, in the case of Bashir Ahmad alias Mannu v. The State reported as 1996 SCMR 308 too, the culprit was not previously known to the witnesses. Further it was found that Shah Ramzan, P.W.7, Mst. Zainab, P. W.8, being closely related to the deceased were interested witnesses and in view of admitted immoral background of the deceased it could not have been believed that he suddenly became religious minded to install a bulb in front of his house for the convenience of mosque going people, in the light of which the witnesses had allegedly seen the occurrence. The cited cases, therefore, would be of no help to the appellant.

13. In furtherance of his next contention that since semen specimens were not obtained for grouping, therefore, the omission was fatal towards the prosecution case. Mr. Abdul Ghafoor Gormani, Advocate, learned counsel for the appellant has vehemently contended that in the instant case appellant after his arrest was though physically got examined and report of the doctor i.e. P.W.1 qua the potency test was tendered in evidence as Exh.P.B. yet no effort was made to procure the semen 'of the accused for sending the same to the Serologist for semen grouping so as to ensure that the semen found on the vaginal swabs was of the same group. He stated that in the absence of the Serologist Report, Exh.P.H., i.e. Chemical Examiner's Report had lost its evidentiary value. He has placed reliance on the cases of Mst. Ihsan Begum v. The State reported as PLD 1983 FSC 204 and Abid Javed alias Mithu v. The State reported as 1996 PCr.LJ 1161.

14. No doubt in the above judgments it has been laid down that Medical Officer examining the male for potency should also obtain specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or Zina‑bil‑Jabr and that the Police Officers in their reference should also request the doctor concerned to take the specimen of semen of the male accused yet, the fact remains that opinion of an expert being purely corroboratory in nature and admissible only to the extent of aiding or facilitating the Court toll come to its own decision, the report of the Serologist can neither take precedence over substantive pieces of evidence nor can dislodge or substitute the same. It is well‑settled that primarily it is responsibility of the Court to call for the opinion of an expert, if in the circumstances of a particular case it is considered necessary but it cannot be said that in all cases of Zina or Zina‑bil -Jabr report of the Serologist would be decisive. In a number of cases including the cases of Muhammad Nawaz v. The State reported as 1994 SCMR 1614 and Saeedullah Khan v. The State reported as 1986 SCMR 1027 oral evidence has been preferred over the medical experts evidence.

15. So far as the cases cited at the Bar by the learned counsel for the ppellant are concerned, the facts of the present case are wholly distinguishable from the facts of the cited cases. In the case of Mst. Ihsan Begum v. The State reported as PLD 1983 FSC 204. Mst. Ihsan Begum was a married woman and had been with her husband till three days before her arrest. Though name of Zaman Shah he‑accused was found to have been mentioned in the hotel register but nothing in evidence was found that she had stayed with him in the hotel. Her stay in another hotel too, was not proved, therefore, it was helot that since grouping of the semen was not done for matching, therefore, report of the Chemical Analyst was not relevant for the purpose of deciding their guilt. Whereas, in the case of Abid Hussain alias Mithu v The State the victim and complainant Mst. Abida Bibi herself had exonerated the accused She had neither recognized or identified him at the trial, to be the culprit, nor had she stated that he was present at the time of occurrence. Further, in that case report on the swabs, sent to the Serologist, for semen grouping was not produced in Court. Additionally, the prosecution witnesses related to the victim were also given up unnecessarily. Another eye‑witness did not claim to have seen the occurrence. Lady doctor had also not noticed any marks of violence on the body of the victim and the injuries on the vaginal area, according to her, could not have been the result of sexual intercourse. In the circumstances benefit of doubt was extended to the accused and he was acquitted but in the instant case the facts are other way round, therefore, to my mind the above cases are of no help, to the case of the appellant.

16. In order to supplement his next contention that since other witnesses of the occurrence were not examined by the prosecution and were given up at the trial, therefore, the prosecution version was improbable, the learned counsel for the appellant emphatically contended that since Fayyaz Hussain and Javed, close relatives of the victim, who had allegedly seen the occurrence, were not produced at the trial by the prosecution without any cogent reason, therefore, the learned trial Court ought to have drawn an adverse inference on account thereof that if examined they would not have supported the prosecution case. He maintained that the omission so made was fatal to the prosecution case. In support of this contention he has placed reliance on State through Advocate -General, Sindh, Karachi v. Farman Hussain and others reported as PLD 1995 SC 1.

17. Though in the above case it has been held by the Honourable Supreme Court of Pakistan that non‑production of the Mashirs without valid reasons would react adversely on the recovery of weapons and arrest of the accused persons yet, to my mind the observations made by the Honourable Supreme Court of Pakistan in the said case would not be of any use to the case of the appellant, as the same have been primarily made in the background and circumstances of that particular case. In Farman Hussain's case, the prosecution case mainly rested on the evidence of two child witnesses though there were some other corroboratory pieces of evidence as well. It was alleged that Tariq Nawaz aged 11 years and baby Aisha Qamar were playing near the stairs of their, flat, when a suzuki car, in which three persons including the driver were sitting reached there, two of the culprits caught hold of Master Tariq Nawaz, forcible, put him in the car, and took him away. Subsequently, the police party, on receiving spy information raided a bungalow and recovered the above kidnapee besides arresting eight accused persons and recovering weapons from them. Both the given up witnesses, in that case, stood Mashirs to the arrest of the accused persons and recovery of minor as well as weapons from their possession. Prosecution failed to produce the abovenamed Mashirs and instead relied upon the testimony of the Investigating Officer who was also a signatory of the Mashirnamas. In that regard a reference was made to the evidence of P. W 9 who had testified before the trial Court that Mashir Muhammad Anwar was seen by him in the compound of the Court building for two days when hearing of the case was in progress, and that he, i.e. the witness had further expressed his ignorance whether the other witness namely Rashid was still alive or had died and that he had not seen them for the past 2/3 days. In the circumstances it was observed that non‑production of those Mashirs would lead to the inference that they were purposely withheld and if produced, they would not have supported the prosecution case. Still their Lordships were p1teased to observe that despite omission on the part of the prosecution to produce the above two Mashirs, no adverse inference was required to be drawn on account thereof, because it was found that the offence of kidnapping was generally being committed by organized gangs and members of the public were scared to appear as witnesses, against them. It would be pertinent to mention here that in Farman's case it was also alleged that investigation was not conducted in an honest and impartial manner.

18. The law in this regards is well‑settled now. In a recent judgment delivered in the case of Muhammad Ahmad and another v. The State and others reported as 1997 SCMR 89 find Honourable Supreme Court of Pakistan while elaborately discussing the subject rind relying on the case of Zar Bahadur v. The State reported as 1978 SCMR 136 was pleased to lay down that the prosecution is neither bound nor required to examine every eye‑witness of a crime. Relevant) observations are reproduced herein below for ready reference:‑‑

"Before concluding, we would like to dispose of the objections of the learned counsel for the appellant regarding the failure of the prosecution to cite/examine any witness from the vicinity of the place of occurrence and non‑examination of Arshad P.W. who according to the prosecution was an employee of the deceased and had witnessed the occurrence. Nothing turns on these objections as it is a matter of common knowledge that the people from the locality generally hesitate to come forward as witnesses in such cases for fear of reprisals from the accused party. This tendency, though unfortunate, has been taken note of in a number of cases and condoned in view of the peculiar conditions prevailing in the country. Reference may pertinently be trade to the following observations in the case of Ghulam Mohyuddin alias Muhammad Panah v. The State 1976 PCr.LJ 311; "It is now well- known that, generally, people in our country hesitate to come forward as witnesses and give evidence in such cases, because they do not wish to get themselves involved in other people problems. Probably there is good reason for their hesitation because by appearing as witnesses in criminal cases one is likely to incur the wrath and attract the enmity of the accused persons and their party-men. We have come across a large number of cases where people were murdered simply because they had dared to appear as witnesses in such cases. What is still more disheartening is that the law enforcing agencies in the country hardly afford any protection to those who have the requisite public spirit and are willing to come forward and testify against criminals and, thus, incur their hostility. We have also noticed, in a large number of cases, that whenever the F.I.R., contains the name of some 'independent' or ' unrelated' persons as eye‑witnesses of the occurrence, alongwith some relatives of the deceased, who saw the occurrence, the former usually resile from their statements or, at least, tend to make concessions in favour of the accused and have quite often to be declared 'hostile'. The cause for this appears to be the same as mentioned above, namely that 'independent' or 'unconnected' witnesses see no reason to endanger their lives for what they consider to be 'none of their business' and in many cases such witnesses are proved to be won‑over by inducements or to resile under threats.....

Once it is recognized that such conditions are prevailing in the country and that some pressure, by way of inducement or threat, has been put on some prosecution witnesses, it cannot be said that an adverse presumption must unnecessarily arise against the prosecution of not having produced nearby shop‑keepers or the residents of the Mohallah and if the Court finds that some 'related witnesses', who are also said to have witnessed the occurrence, have withstood the test of cross-examination and their testimony is corroborated by reliable circumstantial evidence, then it (i.e. the Court), should not hesitate to believe them and rely upon their testimony.

Law is also fairly well‑settled that the prosecution is not required to examine every eye‑witness of a crime. Refer 1978 SCMR 136. That being so, the learned Courts were right in not drawing adverse inference against the prosecution for not examining Arshad P.W. who, even otherwise, was stated to have been won‑over."

19. Reference in this regard may also be made to the cases of Muhammad Hashim Khan v. The State reported as PLD 1969 Pesh. 347 and Yousaf v. The State reported as PLD 1981 Kar. 672 wherein too, it was held that the prosecution was not bound to produce every witness of the occurrence and that the omission if made would not discredit the account given by other eye witnesses. I am, therefore, of the view that non‑examination of witnesses namely Fayyaz and Javed has not effected merits of the instant case.

20. It may also be observed here, that in the course of arguments, when it was specifically asked from the learned counsel for the appellant that if these two prosecution witnesses were not examined by the prosecution on the ground of having been won‑over or being unnecessary, then why they were not examined by the defence, the learned counsel for the appellant could not give any explanation for this failure of the defence. This contention, therefore, has no force.

21. In order to supplement his next contention that since the prosecution evidence was full of contradictions, therefore, no reliance could have been legally placed thereon, the learned counsel for the appellant has submitted that statements of P.W.5 and P.W.6 were at variance to each other, on material points. He pointed out that according to P.W.5, the place of occurrence was Jawar crop whereas P.W.6 stated that it was in the cotton crop. He further, pointed out that according to P. W . 6 the occurrence took place on the western side of the mango tree whereas in the site plan i.e. Exh.P.F. it has been mentioned that place of occurrence is situated on the eastern side of the said tree. Further, P.W.5 has said that at the time of occurrence, she was living with her mother, and her grandfather i.e. P.W.6 was living in a separate house with her step‑grandmother. Whereas, P.W.6 himself at the trial had disclosed that P.W.5 was living with him. Learned counsel for the appellant maintained that in view of above contradictions as well as the fact that P.W.6 had no occasion to go to the bed of P.W.5 as she was living in a separate house, the prosecution story appeared to have been concocted. Mr. Saleheen Mughal, Advocate, learned counsel for the State while controverting the above contention of the learned counsel for the appellant vehemently contended that there was no contradiction in the statements of P.W.5 and P.W.6 regarding description of the crop because both Jawar and cotton crops both were available on and around the place of occurrence. He stated that the so‑called contradictions pointed out by the learned counsel for the appellant otherwise also were minor in nature and could not have effected merits of the prosecution case because outline of the prosecution version given by all the P.Ws. was one and the same and they had corroborated the statements of each other in all material particulars.

22. To ascertain as to whether there is substance in the contention raised by the learned counsel for the appellant, I have myself minutely gone through the record of the case. It is an admitted fact that place of occurrence is situated underneath a mango tree. A perusal of Exh.P.F. i.e. site of the occurrence shows that on the eastern side of the mango tree there stood Jawar crop belonging to Mehr Imam Bakhsh whereas on the western side of the tree cotton crop belonging to Allah Diwaya Machhi was available at the time of occurrence, therefore, there appears to be no material contradiction in the statements of P.W.5 and P.W.6 on this point.

23. As regards the next objection that since P.W.6, according to the learned counsel for the appellant, was living in a separate house, therefore, he had no occasion to go and see "as to whether the victim was available on her bed or not", it may be observed that according to P.W.6 he had two wives, Mst. Amina was daughter of his son namely Riaz who was from his first wife. His first wife also lived in the same Haveli wherein P.W.6 was living with his second wife. In his statement he has clarified that his first wife was also sleeping in the said house and that mother of Mst: Amina too was sleeping in the same house, in a room. It has been also disclosed by him that Mst. Amina was also living with her parents. The following portion of his statement is relevant:‑‑

"I have two wives. Mst. Amina is daughter of my son Riaz Hussain who is from my first wife. My first wife also lives in the same Haveli, where I put up with my second wife. My first wife was sleeping in the same house. Mother of Mst. Amina was sleeping in the same house, in a room. There were 3/4 rooms of our house. Mother of Mst. Amina was sleeping in a room. "

Therefore, in view of the above, there appears no discrepancy in the statements of P. W.5 and P.W.6. This contention too, therefore, has no force.

24. As to the next contention of the learned counsel for the appellant that the girl being a consenting party the appellant could not have been convicted under section 10(3) of the Hudood Ordinance it may be pointed out that in the instant case Mst. Amina the victim has given an explicit testimony about the incident and has categorically attributed the commission of heinous act with her by the appellant forcibly. On this point her testimony finds support from the statement of P.W.6. Though in cross‑examination it has been suggested to her that she was having sexual intercourse with someone else, yet nothing has been brought an record to substantiate, that she was a consenting party. This submission raised on behalf of the appellant, therefore, would be of no avail to him.

25. The learned counsel for the appellant had during the arguments cursorarily contended that duration of injuries as given in the medical report does not find support from the date of the occurrence in that the duration given is 48 to 72 hours but while counting the duration from the date of occurrence to the date of medical examination it comes to only 33 hours.

26. The learned counsel for the State had submitted that the duration of injuries as given in the medical report is only on a visual examination and is not supported by any scientific measures and, therefore, cannot be a ground for disbelieving the prosecution version.

27. I have given consideration to this aspect of the case as well and am inclined to agree with the submission of the learned counsel for State. It may also be observed that in the presence of other direct evidence i.e. statements of the victim and of other witnesses on the happening itself the point raised by the learned counsel for the appellant looses all significance and must, therefore, be repelled.

28. Before parting with the case I consider it necessary to deal with the first contention raised on behalf of the appellant as to the asserted delay in lodging the F.I.R. and anti‑dating it to cover up the delay. This contention is being dealt with here as the learned counsel had also tried to relate this asserted delay with period of duration of injuries as given in the medical report. In this regard I would suffice by observing that nothing explicit was urged by the learned counsel to support the above contention excepting that the duration of injuries as given in the medical report does not support the happening of forcible Zina with the victim. on the night between 29th and 30th July, 1994., This aspect of the matter about duration of injuries has been dealt with above and repelled. As already observed above nothing else has been urged on behalf of the appellant to substantiate the contention about the alleged delay and the record also does not support the above contention. The occurrence being of the night between 29th and 30th of July, 1994 and the report having been lodged at 10‑30 a.m. on 30th of July, 1994 and explanation having been afforded in the F.I.R. itself that on account of the occurrence having taken place in the night the report was lodged next morning, no delay whatsoever appears to have been caused in the lodging of the F.I.R. This contention of the learned counsel for the appellant also, therefore, fails.

29. To the request of reduction of sentence sought for by the learned counsel for the appellant no objection has been raised on behalf of the State in view of the age of the appellant, his father's old age and the fact that the justice should be tempered with mercy. In the circumstances explained, I am inclined to reduce the sentence awarded to the appellant.

30. In view of the foregoing discussion while dismissing the appeal qua the conviction recorded by the learned trial Court vide the impugned judgment and upholding the same, the sentence awarded to the appellant is reduced to 5 years rigorous imprisonment. The sentence of stripes is set aside as the same stands abolished by virtue of an Act of the Parliament promulgated in April, 1996. The benefit of section 382‑B, Cr.P.C. allowed by the learned trial Court is kept intact.

N.H.Q./49/FSC

Sentence reduced