NAQAB SHAH AND Another vs THE CROWN
This appeal by special leave arose from convictions under sections 366 and 376 of the Pakistan Penal Code 1860 regarding the kidnapping and rape of a minor girl. The appellants challenged their convictions, arguing that the prosecutrix was not a witness of truth and that her testimony lacked necessary corroboration, particularly given her initial failure to report the crimes to the police. The core legal question concerned whether the appellate court’s reliance on the prosecutrix's testimony, despite her initial contradictory statements, was legally sound and whether the Supreme Court should interfere with the concurrent findings of fact. The Supreme Court held that the prosecutrix provided a credible explanation for her initial silence, attributing it to tutoring by the accused. Furthermore, the Court found that her testimony was sufficiently corroborated by circumstantial evidence, including medical reports and the conduct of the parties. Consequently, the Court affirmed the convictions, establishing that where an appellate court has properly appreciated evidence and provided reasoned findings, the Supreme Court will not interfere with such findings of fact.
- Can a conviction for rape be sustained on the testimony of the prosecutrix alone if she initially failed to report the crime?
- Does the Supreme Court interfere with concurrent findings of fact regarding the appreciation of evidence by lower courts?
- Is a victim's explanation for initial silence regarding a crime sufficient to maintain the credibility of her subsequent testimony?
- Section 366, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 376/109, Pakistan Penal Code 1860
- Section 342, Pakistan Penal Code 1860
1. SHAHABUDDIN, J.-The appellants were convicted and sentenced by the Additional City Magistrate, Karachi, appellant Naqab Shah to rigorous imprisonment for three years and fine of Rs. 500 under section 366 and appellant Feroze to rigorous imprisonment for three and a half years and a fine of Rs. 500 under section 376, P. P. C. Two others Mst. Syed Jinan, were of the first appellant, and one Majid were also convicted and sentenced in respect of the same transaction by the same Magistrate Mst. Syed Jinan, owing to ill health, was sentenced to imprisonment till the rising of the Court and a fine of Rs. 25 under section 366 and Majid to rigorous imprisonment for one year under section 376/109, P. P. C. And six months' rigorous imprisonment under section 342, P. P. C. All the convicted per--sons except Mst. Syed Jinan appealed to the Chief Court of Sind in its sessions jurisdiction and while Majid's appeal was allowed and he was acquitted, the appeals of the present appellants were dismissed. The matter was then taken up to the Chief Court in its High Court jurisdiction and the revision petitions of the present appellants were summarily dismissed. This is an appeal by special leave from the judgment of the Chief Court.
2. The case for the prosecution was that on 20th August 1952 the first appellant and his were kidnapped P. W. 2 Mst. Taj Bibi, a girl of 13/14 years of age to a shop saying that they would take her to a garden and give her ornaments, that she was kept in a room where at night appellant Feroze raped her twice gagging her, and the acquitted accused Majid hit her and threatened her with a knife when she tried out. A report was made to the police on the 20th by P. W. 1, the father of P. W. 2, stating that she was missing and that he suspected that the appellants, the were of the first appellant, and one Ataur-Rahman had kidnapped her. On the next day i.e., 21st August 1952, Majid and appellant Naqab Shah produced the girl at Police Station Calkote and told the A. S. I. (P. W. 4) that she might be examined. The A. S. I. Examined P. W. 2 but she did not allege at that time that she was either kidnapped or raped. She was then sent to the doctor P. W. 5 for ascertaining her age and thereafter she was handed over to her father who took her home, where her husband was also living. The marriage of P. W. 2 had, however, not been consummated by then. On the 22nd August 1952 P. W. 2 was further examined by the Sub-Inspector and then she was sent to the Lady Doctor, P. W. 6, who opined that the hymen of P. W. 2 appeared to have ruptured about 3 to 10 days prior to that day and that there was inflammation and pain. The medical opinion about her age was that she was between 13 and 14 years. This estimate was arrived at on an X-Ray examination by P. W. 7.
3. On this material the police challaned only the appellants and the were of the first appellant, but the trying Magistrate included Majid also amongst the accused. The main and direct evidence of kidnapping and rape was that of P. W. 2, who however admitted in her cross-examina--tion that on the 20th August she did not tell the A. S. I. That she was kidnapped and raped but had on the other hand stated that as her father wanted to use her for prostitution she left the house of her own accord. But she explained that on the 20th August she stated to police as tutored by the first` appellant and Majid. The rest of the evidence was that of her parents, the doctors who examined her, and the A. S. I. Who investigated the case.
4. The version of the appellant Naqab Shah and his were was that they were falsely implicated because the parents of Taj Bibi were their tenants had been asked by them to leave the house on the ground that they were of bad character. Appellant Feroze did not know why he was falsely implicated, while Majid said that he was asked by the police to trace out the girl and finding her on the road he took her to the police. Two witnesses were examined for the defence. One was the owner of the house where according to P. W. 2 the rape was committed. He stated that neither P. W.
5. 2 nor Feroze had come to his house. The other witness supported Majid's story about her finding the girl on the road.
6. The learned Judge of the Chief Court who heard the appeals acquitted Majid giving him the benefit of doubt because P. W. 2 had not implicated him in her statement to the police. The investigating officer had admitted that he had asked Majid to help him in the investigation. As regards the appellants the learned Judge accepted the evidence of P. W.
2. It was contended before us that P.
7. W. 2 was not a witness of truth and as her evidence was not corroborated it should not have been relied upon. But P. W. 2 gave an explanation for her omission to state her present version to the police on the first day and the evidence of the A. S. I. That the first appellant and Majid brought P. W.
8. 2 to the police station and asked the witness to examine her supports her evidence. As regards the identity 'of the person who raped her, there was no reason alleged for her falsely implicating Feroze.
9. It is significant that no specific suggestion of bad character or of immoral conduct was put to P. W.
10. 2 in her cross-examination, Nor was it suggested to her father P. W. 1 that he wanted to use her for purposes of prostitution. On the other hand his evidence that the first appellant suggested to him that he should get P. W. 2 divorced and he (the first appellant) would get her married to another was not subjected to cross-examination. As regards the fact that P. W. 2's husband lived with P. W. 2 after the 20th, which was relied on to explain away the condition of P. W. 2 noticed by the lady doctor, there is in the first place the evidence of her parents that the marriage had not been consummated and secondly the lady doctor opined that the hymen appeared to have been ruptured about 3 to 10 days prior to 23rd August 1952 and this part of her evidence was not subjected to cross-examination.
11. The learned Judge who heard the appeals considered these points in appreciating the evidence and came to the conclusion that P. W. 2's evidence was believable and received corrobora--tion from the circumstances adverted to above. This is a conclusion based on appreciation of evidence and we can find on ground justifying interference by this Court. We, therefore, dismiss the appeal.