MST. REHMAT BIBI Versus MUHAMMAD NAJIB

SARDAR SAID MUHAMMAD KHAN, C.J .--- The present appeals have been directed against the judgment of the Shariat Court, whereby the appeals filed against the judgment of the District Criminal Court, Mirpur, were dismissed. As the above entitled appeals arise out of the same judgment of the Shariat Court, we propose to dispose of the same by this single judgment.

2. The brief facts of the case are that on 6-8-1990, at about 5-30 p.m. Rizwana Parveen aged about 4-1/2 years went out of her house for playing. Muhammad Najib, accused-appellant, who was running a shop near the house of the complainant, allured Mst. Rizwana Parveen into his shop on the pretext that he would give her sweets. Thereafter, he committed rape with her in the shop, after closing its door. Muhammad Yaqoob and Zafar Iqbal P: Ws. were on their way to their house after closing down their shop when they saw Mst. Rizwana Parveen coming out of the shop of the accused-appellant; they also saw that the accused-appellant and Muhammad Arif, P.W., were exchanging hot words between them. Therefore, they inquired from Mst. Rehmat Bibi, complainant, as to what had happened and were informed by her that Muhammad Najib accused, had committed Zina with Mst. Rizwana Parveen. Muhammad Arif, P.W., states that on 6-8-1992, when he was going to his house after offering Asar prayers, he saw the accused-appellant standing in his shop. He inquired from the accused as to why he has agitated but he did not reply. Meanwhile, he opened the door of the freezer of accused-appellant for having cold drink and saw that Mst. Rizwana Parveen was sitting in the shop and her Shalwar had slipped down to her knees. Mst. Rehmat Bibi complainant, states that on 6-8 1990, at about Deegar Waila, Mst. Rizwana Parveen came home weeping and when she inquired from her as to why she was weeping, she told her that "Bahi Najib nay mujay dard laggaye, ". Thereafter, she went to the shop of the accused to make queries from him but he told her that he did nothing to her daughter. According to Mst. Rehmat Bibi, she took the child to the mother of the accused who stated that complaints were also made against the accused-appellant five or six times earlier by different persons but she could not do anything; she took Mst. Rizwana Parveen inside the room and after examining the child implored Mst. Rehmat Bibi to keep mum and not to make complaint. However, the complainant took her daughter first to Mangla Hospital and thereafter to District Headquarters Hospital, Mirpur for medical examination but she was told that they would not examine her daughter until and unless the matter was referred by the police. On this she took her daughter to a private hospital known as Riai Hospital but the Hospital authorities instead of examining Mst. Rizwana Parveen informed Raja Muhammad Siddique, Sub-Inspector, S.H.O., City Police Station Mirpur, about the incident; he reached there and took the complainant and victim of offence to C.M.H., Mirpur. Thereafter, he. recorded the statement of Mst. Rehmat Bibi, Exh. P.K., and referred Mst. Rizwana Parveen to Dr. Zafar Iqbal, P.W., for medical examination. She was examined by Dr. Zafar Iqbal, in pursuance of the letter written by Raja Muhammad Siddique, S.H.O. and recorded medical report, Exh. P.F., according to which the rape was committed with Mst. Rizwana Parveen. Meanwhile, the statement of Mst. Rehmat Bibi recorded by Raja Muhammad Siddique, Sub-Inspector, S.H.O., City Police Station, Mirpur, was transmitted to Ibrar Haider, S.H.O. Afzalpur, who registered a case against the accused for committing Zia with Mst. Rizwana Parveen. After investigating the accused-appellant was challaned in the Additional Tehsil Criminal Court, Mirpur, under section 10 of the Offence of Zina (Enforcement of Hudood) Act, 1985 (hereinafter shall be referred to as OZA). The Additional Tehsil Criminal Court, after the completion of the trial, convicted and sentenced the accused-appellant under section 10/18 of the OZA.) for making an attempt to commit rape with Mst. Rizwana Parveen. The accused appellant was awarded the punishment of imprisonment for 2-1/2 years; he was given the benefit of section 382-B, Cr.P.C. and was ordered to serve the remaining terms of his sentence, which was about 5-1/2 months. Mst. Rehmat Bibi, complainant and Muhammad Najib, accused-appellant, both preferred appeals to the District Criminal Court which upheld the conviction of the accused-appellant but reduced his sentence to the period for which he had already remained in jail. The appeal filed by Mst. Rehmat Bibi was dismissed. The accused-convict and the complainant appealed before the Shariat Court but the same were dismissed. It is against the aforesaid order of the Shariat Court that the two above entitled appeals have been preferred to this Court one by the convict-appellant for setting aside the order of conviction by the Additional Tehsil Criminal Court and other by the complainant praying for conviction and sentence of the accused-appellant under section 10(3) of the OZA.

3. We have heard the arguments and perused the record. Mr. Muhammad Sharif Tariq, Advocate for the accused-appellant, has argued that the appeal filed by the complainant is incompetent because according to him, it was instituted on the authority of a forged Wakalat Nama. He has argued that Mst. Rehmat Bibi, complainant, was residing in England at the relevant time and it was not possible to get her thumb-impression on the Wakalat Nama in such a short time. We are of the view that the objection has no force because the judgment was delivered by the Shariat Court on 19-5-1996 whereas the appeal on behalf of the complainant was instituted in this Court on 10-6-1996, i.e., after 22 days of the judgment of the Shariat Court. Thus, it is not correct to suggest that Wakalat Nama of the complainant could not be obtained during this period. In view of the facility of air travelling, it cannot be said that thumb-impression of the complainant could not be obtained during the period of 22 days. Hence the objection is hereby overruled.

4. Next, it has been argued by the learned counsel for the accused appellant that the medical report of the victim of offence is not admissible in evidence because she was examined by Dr. Zafar Iqbal at the instance of Raja Muhammad Siddique, S.H.O. City Police Station Mirpur, whereas the case was registered afterwards at Police Station Afzalpur by Ibrar Haider, S.H.O. The learned counsel has argued that as Mst. Rizwana Parveen, minor, was examined by Dr. Zafar Iqbal before the registration of the case at the police station, the medical opinion of Dr. Zafar Iqbal and the statement of Mst. Rehmat Bibi, Exh.P.A. recorded by Raja Muhammad Siddiq, S.H.O. City Police Station Mirpur, cannot be read into evidence. He has cited Muhammad Siddique v. The State PLD 1988 Lah. 601, Ghulam Qadir v. The State PLD 1967 Pesh. 269 and Sahedali Mirdha v. Emperor AIR 1937 Cal. 309 in support of his contentions, wherein it has been held that if an F.I.R. is recorded after the start of investigation, that would be a statement under section 161, Cr.P.C., and, thus, is inadmissible in evidence. The learned counsel has further contended that even otherwise the statement of Dr. Zafar Iqbal does not inspire confidence and it appears to have been obtained through undue influence. The learned counsel went even to the extent that, if at all, the injuries on the exterior and interior parts of vagina of minor were present, the same must have been caused by Mst. Rehmat Bibi, P.W: so as to falsely implicate the accused-appellant in the offence. According to the learned counsel, Mst. Rehmat Bibi, complainant, had suspicions that the accused-appellant had illicit relations with her elder daughter and, thus, she concocted a false case against the accused-appellant due to enmity. So far as the statements of Muhammad Yaqoob and Zafar Iqbal, P.Ws., are concerned, the learned counsel has argued that it has been alleged in the F.I.R. that they were eye-witnesses but in their statements under section 161, Cr.P.C. and in the Court they have stated that the factum of Zina by the appellant with Mst. Rizwana was narrated to them by Mst. Rehmat Bibi, the mother of the victim of offence. He has further submitted that these two witnesses are closely related with the complainant and, as such, their testimony cannot be relied upon. So far as the statement of Muhammad Arif, P.W., is concerned, he has maintained that he was a casual witness and, thus, his testimony is also not trustworthy. The learned counsel for the accused took pains for persuading us that as according to the medical report the hymen of Mst. Rizwana Parveen was not ruptured, the offence of rape or attempt to rape has not been proved. The learned counsel has taken us through the statement of Mst. Rizwana Parveen; he has contended that she has stated that her mother asked her to state in the Court that the accused-appellant had caused pain to her, which implies that she was a tutored witness.

5. In reply, Ch. Riaz Alam, Advocate, the learned counsel for the complainant and Raja Shiraz Kayani, the Advocate-General, controverted the arguments advanced by the learned counsel` for the accused-appellant on all scores. They have stated that all the Courts below, including the Shariat Court, relied upon the testimony of Mst. Rizwana Parveen, Mst. Rehmat Bibi, Muhammad Yaqoob, Zafar Iqbal and Muhammad Arif and concluded that the incident took place. However, the lower Courts failed to properly appreciate statement of Dr. Zafar Iqbal, P. W.; they have submitted that it was not a case of an attempt to commit rape but in fact the offence of rape against the accused has been fully proved. They have contended that the accused-appellant should have been convicted and sentenced under section 10(3) of OZA and not under section 10/18 for making an attempt to rape Mst. Rizwana Parveen; he should have been awarded exemplary punishment because he committed rape with a girl who was only aged 4-1/2 years.

6. So far as the contention of the learned counsel for the accused-appellant that the statement of Mst. Rehmat Bibi, Exh. P.K., and medical report Exh. P.M., are not admissible in evidence, is concerned, it was argued by the learned counsel for the complainant that there is no authority in support of the proposition that if a fact is proved to have taken place before the registration of the case, that cannot be proved or read in evidence. He has submitted that the authorities cited by the learned counsel for the accused-appellant that if the F.I.R. is recorded after starting preliminary investigation, it is not admissible in evidence as such because it would tantamount to a statement under section 161, Cr.P.C., are not relevant to the instant case; because in the instant case the medical report, Exh. P.F., and the statement of Mst. Rehmat Bibi P.W. were duly brought on record as a result of the investigation conducted by Ibrar Haider, S.H.O., Afzalpur. The aforesaid documents cannot be regarded as statements under section 161, Cr.P.C. and, thus, cannot be excluded from evidence. The statement of Mst. Rehmat Bibi recorded by Raja Muhammad Siddique, S.H.O. City Police Station, Mirpur, and the medical report prepared by Dr. Zafar Iqbal were collected as evidence by the S.H.O., Afzalpur, who had the jurisdiction to investigate the case.

7. We have given our due consideration to the arguments advanced at Bar. It may be stated at the very outset that the arguments by the learned counsel for the accused-appellant that as the F.I.R. was recorded after making the preliminary investigation is not admissible in evidence has no application to the facts of the instant case. The mere fact that the matter was first reported to Raja Muhammad Siddique, S.H.O., City Police Station, Mirpur, who recorded the statement of Mst. Rehmat Bibi, does not justify the argument that the same cannot be treated as F.I.R. or that the medical report prepared by Dr. Zafar Iqbal cannot be read into evidence; because the aforesaid material was collected by the Investigating Officer after the registration of the case though the same was in existence before the registration of the case as indicated above. No authority has been cited to substantiate the contention that if a statement is recorded before the registration of the case of the medical report is prepared before the registration of the case,, `the same are inadmissible in evidence. A reference may be made to the case reported as Ram Deo Singh v. The State AIR 1959 All. 511, wherein it has been held that it is not necessary to prove F.I.R. in all cases for securing the conviction of an accused person. It was observed, that even if an F.I.R. is not proved the sentence and conviction of an accused person cannot be set aside, if the case is otherwise proved.

8. The statement of Mst. Rehmat Bibi was recorded by Raja Muhammad Siddique, S.H.O. before the registration of the case became F.I.R. when the same was presented to S.H.O., Afzalpur who had jurisdiction to register the case against the accused. Similarly the fact that Mst. Rizwana Parveen was examined I by Dr. Zafar Iqbal before the registration of the case would not make the medical report inadmissible in evidence because the same was prepared before the registration of the case at Police Station, Afzalpur.

8-A. The next question, which needs resolution is as to whether the offence against the accused-appellant has been proved beyond doubt. It may be stated that all the Courts below have come to the conclusion that the accused-appellant has made an attempt to commit rape with Mst. Rizwana Parveen which implies that the testimony of the prosecution witnesses, namely, Mst. Rehmat Bibi, complainant, Mst. Rizwana Parveen, the victim of offence, Muhammad Yaqoob, Zafar Iqbal, Arif and others, prosecution witnesses have been relied upon so far as it pertains to the allegation that the accused-appellant took Mst. Rizwana Parveen into his shop for committing rape with her on the pretext that he would give her sweets; the question which now remains to be resolved is whether in the shop he committed the offence of rape or it was merely an attempt to commit the same. The child was seen in the shop of the accused-appellant by Arif, P.W., half naked, i.e. her Shalwar was dropped down to her knees; she was seen going to her house from the shop of the accused-appellant by Muhammad Yaqoob and Zafar Iqbal, P.Ws.; she told her mother that the accused caused pain to her; and on query by the aforesaid witnesses, Mst. Rehmat Bibi, P.W., told them that the accused had raped the child. The only part of the prosecution story which was held by the Courts below as unproved was about the actual commission of the act of rape by the accused-appellant with the child, they concluded that it was merely an attempt to commit rape. Thus, the question, which needs determination is as to whether the Courts below were correct in forming the opinion that offence of rape was not committed but only it was an attempt to commit rape. Dr. Zafar Iqbal has stated that examination of Mst. Rizwana Parveen reveals that rape was committed with her. He also proves the contents of the medical report, which was prepared by him. In cross-examination, he has stated that the hymen was not ruptured because generally the same is located highup in children and may remain intact, despite rape, i.e. penetration. The Additional Tehsil Criminal Court expressed the view that as the hymen was not ruptured, it was a case of an attempt to commit rape and not of rape. In other words, the only reason given by the trial Court that Zina was not committed with Mst. Rizwana Parveen was that her hymen was intact. It may be stated here that Dr. Zafar Iqbal has stated that he got the vaginal swabs of the minor examined by the Laboratory of District Headquarters Hospital, Mirpur, and dead sperms were found in the same, as is evident from the laboratory report Exh. P.G. The relevant extract from the report of the Dr. Zafar Iqbal, Exh. P.F., are reproduced as under for appreciating the matter in controversy:--

"On lithotony position when the thighs are apart it is very painful. The labia majora and labia minora are swollen. Bruises on labia majora present. The vagina is swollen and congested and there is also a tear on labia minora. At the moment, the distensibility of vaginal orifice is so much that an index finger can go easily in vagina. Semen stains are present on labia majora and minora and also on thighs. The semen is also present on Shalwar. There are multiple bruises on both forearms. "

10. From the above extract of the medical report, Exh. P.G. prepared by Dr. Zafar Iqbal, coupled with the fact that sperms were detected in the vagina swabs, it is clearly proved that Mst. Rizwana Parveen was actually raped and the finding of the Courts below that it was merely an attempt of rape is fallacious on the very face of it. It may be stated that the condition of the genital of the minor described by Dr. Zafar Iqbal, reproduced above clearly establish the penetration of the male organ into the vagina and thereby the commission of offence of rape. Dr. Zafar Iqbal, P.W., has stated in the Court that hymen of his examinee was not ruptured because it is located highup in case of children and may remain intact, despite the rape. According to the medical treatises, the commission of an offence of rape with children can be ascertained, despite the fact that hymen is found intact. The relevant extracts on the point from the treatise known as Modi's Medical Jurisprudence and Toxicology" as mentioned in Chapter XVI of the book titled as Sexual Offence are reproduced below:-

"In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred-----

In small children the hymen, being situated highup in the canal, is not usually ruptured, but may become red and congested alongwith the inflammation and bruising of the labia, or, if considerable violence is used, there is often laceration of the fourchette and perinaeum."

11. Evidently, the statement of Dr. Zafar Iqbal, P.W., it is also corroborated by the aforesaid book. Thus, the findings of the trial Court that it was merely a case of an attempt to rape and not of rape is belied by the facts enlisted above.

12. The learned counsel for the accused-appellant has also argued that the statement of Mst. Rizwana Parveen, the victim of offence, does not inspire confidence because she has stated in the cross-examination that her mother had asked her to state the factum of causing pain by the accused-appellant in the Court. After going through the statement of Mst. Rizwana Parveen, P.W., we are of the view that it rings true and natural. In her statement in the Court, she stated pointing to her genital that the accused-appellant had caused pain there. She has also stated in cross-examination that she had told the incident of pain causing to her mother and her mother had given her beating admonishing her as to why she had gone to the shop of the accused-appellant. Therefore, if she has stated that her mother had told her to state the factum of pain causing in the Court that would not detract from her testimony. Thus, we are of the view that her statement was rightly relied upon by the Courts below. The learned counsel for the accused-appellant argued that Muhammad Yaqoob, Zafar Iqbal and Arif, P.Ws., have been named in the F.I.R. as eye-witnesses but they have stated that they were told about the rape by Mst. Rehmat Bibi, the mother of the victim of offence. It may be stated that although in the F.I.R. the aforesaid witnesses have been named as eye-witnesses but the question arises as to what do we mean by the expression "eye-witnesses". They are not eye-witnesses of the actual commission of the act of rape but of the attending circumstances from which the commission of the offence can be easily inferred or make the prosecution story incompatible with the innocence of an accused person. It may be stated here that the aforesaid witnesses did not state even before the police that they saw the accused-appellant actually committing the crime; more or less they stated the: identical facts before the police as they have stated in the Court. Therefore, the mere fact that they have been named as eye-witnesses in the F.I.R. does not cast doubt upon their testimony; rather Muhammad Yaqoob and Zafar Iqbal, P.Ws., even being relatives of the complainant, stated what they had seen; this renders their testimony more reliable rather than making the same doubtful. Therefore, the Courts below rightly believed their testimony with regard to the circumstances already stated.

In the light of what has been stated above, we have no hesitation in holding that the Courts below have committed error in holding that the accused appellant merely made an attempt to commit rape with Mst. Rizwana Parveen and did not actually rape her. In light of what has been stated above, we accept the appeal filed by Mst. Rehmat Bibi, complainant, and set aside the judgments of the Courts below; we convict and sentence the accused-appellant to five years' rigorous imprisonment and also award him the punishment of whipping numbering 30 strips under section 10(3) of OZA. He will be entitled to benefit of section 382-B, Cr.P.C. and the period of two years three months and 16 days would be deducted from the aforesaid period of rigorous imprisonment awarded by this Court. The appeal filed by the accused-appellant is dismissed. The accused-appellant shall be arrested and be committed to jail for serving the remaining period of his sentence and for the administration of the punishment of whipping.

N.H.Q./156/SC(AJ&K) Order accordingly.