Abdul Latif Versus State
Tanveer Ahmad Sheikh, J .--- Having received guilty verdict on the charge of rape Abdul Latif challenged his conviction and sentence through the above cited criminal appeal. He was tried by learned Additional Sessions Judge, Muzaffargarh in case FIR No.231 dated 21.05.2021 under sections 376, 511, 376 (iii) P.P.C. registered at Police Station Saddar Alipur, District Muzaffargarh. Besides this appeal learned trial court has sent Capital Sentence Reference No. 60 of 2021 for confirmation or otherwise of death sentence awarded to the appellant. We propose to dispose of both these matters through this single judgment.
2. Learned Additional Sessions Judge, Muzaffargarh vide judgment dated 15.12.2021 convicted appellant Abdul Latif under section 376(iii) P.P.C. and sentenced him to Death . He was also held liable to pay Rs.5,00,000/- as fine and in default thereof to undergo further simple imprisonment for six months. Appellant was also convicted under Section 376(iii)/511 P.P.C. and sentenced to for a period of half of Life Imprisonment R.I. Benefit of Section 382-B Cr.P.C was extended to the appellant.
3. First Information Report (Exh.PA/2) was lodged on the complaint (Exh.PA) of Hamad Ullah who stated that on 21.05.2021 at about 01.30 p.m when he was present in his house, his Bhabi came and informed him that her daughter, Laiba Ubaid aged 9/10 years had gone to pluck mangoes from the orchard and had not returned yet. So, the complainant along with his son Muhammad Sami Ullah and Muhammad Asghar went to search for her. When they reached in the mango orchard, they heard hue and cry of the victim from nearby sugarcane's crop, they rushed there and saw that the accused was attempting to commit rape with her while putting his hand on her mouth and removing of her shalwar . On seeing the complainant and the witnesses, he fled away. The PWs tried to apprehend the accused but could not succeed. On this complaint instant case was registered.
4. Police investigated the case and submitted report under section 173 Cr.P.C. Prosecution in order to prove charge produced as many as 10 witnesses. Out of which PW-1 Sanam Bukhari 948/L.C she got medically examined the victim Laiba Ubaid from THQ Hospital, Alipur and handed over one sealed Jar to the I.O (PW-7), PW-2 Abdul Khaliq 72/HC was Moharrir who received sealed parcels from the I.O and then handed over him to transmit the same to the office of Punjab Forensic Science Agency. PW-3 Ghulam Nazak 976/C was recovery witness of seald parcels. PW-4 Hamad Ullah was complainant of the case. PW-5 Muhammad Sami Ullah was also eye-witness of the occurrence. Victim Laiba Ubaid aged 9/10 years herself appeared before the court as PW-6 and got recorded her statement in which she fully implicate the appellant to the commission of offence as alleged by the prosecution. PW-7 Rehana Ameen, ASI conducted investigation of this case. PW-8 Dr. Mudassar Khan conducted potency test of the accused Abdul Latif through application Exh.PF and Exh.PF/1 is his report. PW-9 Dr Raisa Malik, WMO. She medically examined the victim with regard to sexual assault on her body and prepared DNA report vide Exh.PG/1. PW-10 Saddam Hussain, TSI was scriber of FIR (Exh.PA/2).
5. After tendering in evidence report of Serology Punjab Forensic Science Agency as Exh.PH and given up Asghar PW closed the prosecution case on 30.11.2021. Thereafter statement of accused under section 342 Cr.P.C. was recorded in which he simply denied the charge and professed his innocence
6. Learned trial court after hearing arguments, recorded conviction and awarded sentence to the appellant Abdul Latif as mentioned in the opening paragraph of this judgment.
7. We have heard learned counsel for the appellant, learned Additional Prosecutor General assisted by learned counsel for the complainant and perused the record with their able assistance.
8. Ocular account of the incident was furnished by PW-4 Hamad Ullah (complainant). He was uncle of the victim Laiba Ubaid. PW-5 Muhammad Sami Ullah was son of the complainant and cousin of victim. The statements of both these PWs were in line with the complaint (Exh.PA). All these witnesses were consistent on salient features of the case. They successfully passed the test of cross-examination. Despite lengthy and exhaustive cross-examination defence could not shatter their testimony. Both PWs with one voice stated that it was the appellant who within their view subjected the victim to rape when her shrieks were heard by them. The positive report of potency (Exh.PF-1) of the appellant furnished by PW-8 Dr. Mudassar Khan further fortified their stance that the culprit was fit for sexual intercourse. In such type of cases false implication is a rarer phenomena particularly when virginity of innocent girl is involved.
9. The second limb of case was the statement of minor victim Laiba Ubaid; she was minor girl aged about 9/10 years. Learned trial court put number of questions to her to ascertain as to whether she was competent to testify. Trial court observed that she can understand the questions put to her and can give rational answers to those questions, as such found her to be competent to testify. While appearing before the court as PW-6 she stated on oath as under:-
"On 21.05.2021, I was plucking mangoes orchard. The accused Abdul Latif present in the Court, called me and told me that he will give me mangoes. He dragged me inside the sugarcane crop. He put his hand on my mouth and tied my hands and removed my all clothes. He started ZIADTI with me. I started to raise hue and cry on which my CHACHU Hamad Ullah, Sami Ullah and Asghar came. On seeing them the accused fled away.
She further stated--
"Two days prior to this, he also committed rape with me and one week prior he also committed rape with me. I cannot tell anybody as the accused extended threats to me."
From the above statement, it is established that victim was frequently subjected to rape by the appellant. In support of this accusation, prosecution got examined Dr. Raisa Malik, Women Medical Officer as PW-9. She conducted the medical examination of the victim. After receipt of report dated 26.10.2021 of Punjab Forensic Science Agency she in clear words opined that there was possibility of sexual assault/intercourse and accused Abdul Latif seems to be possible assailant according to DNA report. Therefore, medical evidence in this case rendered full support to the case set up by prosecution.
Learned counsel for the appellant during arguments vehemently emphasized that after lapse of three days how semen could be detected from the swabs. In this regard reasoning given by the learned trial court in the impugned judgment was quite in accordance with the theory of medical jurisprudence. The relevant portion of the judgment of the learned trial court is being produced below:- "this Court has consulted the medical jurisprudence as well. Dr. S. Siddiq Hussain in Chapter-XII, SEXUAL OFFENCES of his book titled as A TEXT BOOK OF FORENSIC MEDICINE And TOXICOLOGY express the foliowing opinion
'In the living woman, motile spermatozoa in the vagina can be found over 100 hours after coitus and non-motile spermatozoa for as long as 17 days.'
Similar view was expounded by B.R. Sharma in his book titled as Forensic Science in Criminal Investigation and Trials (FIFTH EDITION), which is as under:-
'In vagina of a living person, spermatozoon may be detected up to about five to ten days, though the number of spermatozoon detected goes on decreasing with passage of time."
Learned trial court thoroughly discussed this aspect of the case and we endorse the same.
10. For the discussion referred supra, we are confident to hold that prosecution has successfully proved its case against the appellant beyond any shadow of doubt for making an attempt to commit rape with the victim Mst. Laiba Ubaid (PW-6) as well as for committing rape with her.
11. Conviction of the appellant awarded by learned trial court for offence under Section 376(iii)/511 of P.P.C. and sentence of half of the life imprisonment awarded to him does not require any interference by us. We uphold the same.
12. Similarly conviction of appellant for offence under Section 376(iii) of P.P.C. is also maintained. So far as sentence of the death awarded to appellant for the said offence is concerned, it appears to be very harsh and excessive in circumstances. We, therefore, convert the same into imprisonment for life, which is also a legal sentence. However, sentence of the fine of Rs.500,000/- awarded by the learned trial court is being maintained.
13. We make it clear that both the sentences shall run concurrently with the benefit under Section 382-B of Cr.P.C. except the simple imprisonment of six months in default of the payment of the fine.
14. Criminal Appeal No.1035-J of 2021 stands dismissed with the said modification in the sentence.
15. Murder Reference No.60 of 2021 is replied in negative. Sentence of the death is not confirmed.
JK/A-100/L Appeal dismissed.