MUHAMMAD ALI Versus THE STATE

Muhammad Ali appellant was tried by Mr. Riaz‑ul‑Hassan Alvi, Judge, Anti‑Terrorism Court No.2, Multan in case F.I.R. No.228 of 1999, dated 23‑8‑1999 under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Jalilabad, Multan. He was convicted and sentenced to life imprisonment and whipping of stripes numbering 30 with fine of Rs.1,00,000 (Rupees one lac) in default to further undergo 4 years' R.I. under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Fine if realized half of it will be given to the victim and the remaining half will be deposited in the Government Treasury. He was also convicted under section 10(3) of the sail Ordinance and sentenced to undergo 25 years' R.I. and 30 stripes. Both the sentences of imprisonment were ordered to run concurrently and the remaining sentences to run consecutively. Accused was given benefit of section 382‑B, Cr.P.C. However, on the charge under section 7 of the Anti‑Terrorism Act, 1997 he was acquitted.

2. Briefly the facts of the case are that Mst. Rashida Naz wife of Ghulam Murtaza alleged in her application Exh.P.A. that she is mother of Saira Naz aged 8/9 years. On 18‑8‑1999 at 7‑00 p.m. her daughter went outside her house to take milk. Muhammad Ali appellant met her and took her deceitfully in the graveyard where he committed Zina‑bil -Jabr with Saira Naz. On her hue and cry Mst. Sakina, Dilshad, Muhammad Arshad and Muhammad Siddique P. Ws. were attracted to the spot. They witnessed the accused while committing Zina with Saira Naz. After seeing the P.Ws. accused fled away from the spot. The victim became unconscious and brought to her house. When she regained senses was taken to the police station where police refused to register the case. She submitted an application to the S.S.P., Multan who on 23‑8‑1999 ordered police to register the case and consequently, F.I.R. Exh.P.A./1 was registered on the basis of her application Exh.P.A. The victim was medically examined by the lady doctor. During investigation accused was found guilty and challaned. He denied the charge whereupon prosecution was directed to produce evidence. Ten P.Ws. were produced on behalf of the prosecution, Siddique and Arshad P.Ws. were given up as having been won‑over by the accused.

3. P.W.1 Mst. Rashida Naz. complainant reiterated the version set up in the F.I.R. She admitted that she is not the eye‑witness of the occurrence. She stated what was told to her by Saira Naz, the victim. The accused was known to her for the last two years. P.W.2 Saira Naz was questioned to ascertain, her ability to make statement. She was found intelligent enough and thereafter her statement was recorded. She deposed that on the day of occurrence at Maghrab Wela on asking of her mother she went to get milk from the shop of Hameed situated in the Mohallah. On the way accused present in Court forcibly kidnapped her, took her in the graveyard, removed her Shalwar and committed Zina‑bil Jabr with her. She raised alarm and became unconscious. When she regained senses she was in her house. She narrated whole incident to her mother. At that time Dilshad, Siddique, Arshad and Mst. Sakina were also present. She went to the police station to report the matter but nobody listened them where after she was taken to the office of S.S.P.. Multan and then came to Police Station Jalilabad where case was registered. She was medically examined through police. She was cross- examined at length but her testimony could not be shakened. P.W.3 Mst. Sakina is an eye‑witness. She heard the hue and cry of P.W.2, went at the spot and saw Saira Naz naked and the appellant committing Zina with her. In the meantime Dilshad and Siddique P. Ws. reached there. Saira Naz became unconscious. She was brought to her house. People gave beating to the accused in the graveyard but he ran away from the spot. She further deposed that she may be provided security as Mirasi party was extending threats to her. They have broken her tooth, gave beating to her because she refused to resile from her statement. She is an important eye‑witness of the occurrence who had reached at the spot on hearing cries of the victim. P.W.4 Dilshad was declared hostile. P.W.5 Dr. Muhammad Bakhsh examined Muhammad Ali accused and found him capable of performing sexual act. P. W.6 Abdul Aziz Constable took the sealed parcels to the office of the Chemical Examiner. P. W.7 Muhammad Tariq, A.S.‑I. investigated the case. He visited the place of occurrence, prepared site plan Exh.P.D., recorded the statements of Mst. Sakina and Dilshad under section 161, Cr.P.C. got Saira Naz medically examined from the Lady Doctor on 24‑8‑1999. He found the accused guilty and submitted challan against him. P. W.8 is Lady Doctor Nasira Malik who medically examined the victim on 24‑8‑1999 and made the observations as under:‑‑

"(i) A thin built girl about 8‑10 ears of age.

(ii) Secondary sex characters were not developed.

(iii) Labia majora and minora overlapped each other hymen was torn inflammed and was freshly healed, vagina admitted one finger.

Two vaginal swabs were taken, one was blood‑stained and was sent to the Chemical Examiner for semen analysis. Exh. P. F. is correct carbon copy of her M. L. C. all written and signed by her. Application of police Exh.P.E. signed by her. Exh.P.C. is the Chemical Examiner's Report which was received by her. Swabs were found to be stained with semen and blood. The said report was given to the police."

Sh. Abdul Sattar, Inspector, P.W.9 deposed that he investigated this case partially, recorded the statements of the witnesses, received report of Chemical Examiner Exh.P.J. and challaned the accused. P.W.10 Muhammad Ilyas, Head Constable stated that on 24‑8‑1999 he was posted as Moharrar Head Constable Police Station Jalilabad. Tariq A.S.‑I. handed over to him sealed parcel which. he kept in the Malkhana of the police station. He handed over the said parcel to Abdul Aziz for its onward transmission to the office of Chemical Examiner intact. P.W.11 Abdul Aziz recorded the F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A.

4. Public Prosecutor gave up Siddique and Arshad P.Ws. having been won‑over by the accused and tendered in evidence report of the Chemical Examiner and closed the case for prosecution.

5. Accused in his statement under section 342, Cr.P.C. denied the charge and stated that he is agent of a property dealer. Complainant got plot of 4 Marlas and 18 yards from Ashiq Property Dealer on instalments. Due to non‑payment of instalments deal was cancelled on which complainant became annoyed so she falsely involved him in the case. He declined to get recorded his statement under section 340(2), Cr.P.C. He produced Muhammad Ehsan D.W.1, Munir Hussain D.W.2 and Dildar D.W.3 in his defence who stated that a plot was purchased by Mst. Rashida Naz through Ashiq Property Dealer where accused was servant in the shop of Ashiq Property Dealer. Mst. Rashida Naz purchased a plot on instalments. She paid two instalments and remaining instalments were not paid due to which the plot was cancelled from her name. She extended threats to the accused and thereafter falsely implicated him in the case.

6. Learned counsel for the appellant contends that prosecution evidence does not inspire confidence. Complainant involved him due to grudge of cancellation of her plot allegedly purchased from Ashiq Property Dealer where the appellant was serving. Victim is aged 8/9 years and it will be unsafe to rely upon her evidence.

7. Learned State Counsel has supported the impugned judgment.

8. Heard. Record, perused. The defence of the appellant that Mst Rashida Naz struck a bargain of residential plot measuring 4 Marlas, 18 yards with Munir D.W.2 through Ashiq D.W.1 Property Dealer while accused was his servant and played a role of middle man and due to non‑payment of instalment her plot was cancelled and on her coming to know of this fact she lost tamper, extended threat to accused and left the office of Property Dealer with a warning to wreak vengeance is unbelievable.

No sale‑deed, allotment letter or any agreement has been placed on the record to substantiate the plea raised in defence. D.W.1, D.W.2 and A D.W.3 never appeared before the police nor any such plea was raised by accused at the time of his arrest. It appears to be an afterthought and concoction to save him from consequences of the crime. P.W.2 is the victim of the incident. She is aged 8/9 years, was sent by P.W.1 to fetch milk from the shop, appellant kidnapped her and took her to the graveyard and committed Zina‑bil‑Jabr with her. She raised noise and became unconscious. Her cries attracted Mst. Sakina P.W.3 who was coming from Ghausia Colony to Rasool Pura and passing near the graveyard. She saw the accused committing Zina with P.W.2. When other P.Ws. Dilshad and Siddique reached Saira Naz became unconscious, the accused fled away and the victim was brought to her house then taken to the police station for registration of case on gaining senses. Police refused to register the case. P.W.1 was compelled to approach S.S.P., Multan and on her written application and the order of the S.S.P. the case was registered against the accused. P.W.3 is a neutral' and reliable witness. Accused threatened her. Her tooth was broken. She was beaten also to resile from her statement. She requested the Court to provide security to .her life as the accused was desperately threatening her of dire consequences if she does not resile from her statement. Despite all threats she has supported the prosecution case. Her testimony is corroborated by the medical evidence. According to P.W.8 lady doctor P.W.2 was subjected to sexual intercourse. A girl of nine years was kidnapped and taken to the graveyard by the appellant to satisfy his sexual lust in a brutal manner. P. W.1, P. W. 2 and P. W.3 have no motive to falsely implicate the accused. The prosecution successfully proved case against him. Witnesses were subjected to lengthy cross‑examination but their testimony has not been shaken in any manner. Prosecution successfully proved its case through evidence of P.Ws.1, 2, 3 and 8. The impugned judgment is based on proper appreciation of evidence and is maintained.

9. The contention of the learned counsel for the appellant that the, quantum of sentence is severe and same be reduced cannot be accepted in view of tender age of the victim and the brutal manner in which appellant had kidnapped and subjected her .to Zina‑bil‑Jabr. Appellant has been awarded proper sentence and I am not inclined to interfere in it. The appeal has no merit and is dismissed.

H.B.T./M‑1162/L Appeal dismissed.