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Criminal Revision No. 945 of 1967, decided on 11th July 1968.
S. 376‑‑Rape‑‑Statement of prosecutrix, aged 10 years, corroborated by evidence of Lady Doctor rind injuries on persons of accused‑Accused, held, rightly convicted.
Muhammad Abdul Khaleque and others v. The State P L D 1960 S C 325; Gulistan v. The State P L D 1963 Pesh. 38 and Saleh Muhammad v. The State P L D 1966 Kar. 101 distinguished.
S. 376‑--Rape--‑Sentence--- Enhancement‑--Accused aged 16 and 18 years--‑Sentence of 3 years' R. I. and fine of Rs. 250.00‑‑Held, proper, in circumstances of case.
Mushtaq v. The State A I R 1954 All. 580; Shah v. The State A I R 1953 All. 502 and Khyali v. Emperor A I R 1948 All. 430 ref.
‑--
High Court slow in matter of enhancement unless sentence awarded in a particular case is shown to be so grossly inadequate as to amount to failure of justice.
Raja Muhammad Sabir for Petitioner.
Sardar Sami Hayat for A. G. for the State.
By order dated the 22nd of May 1967, Mr. Muhammad Yusuf section 30 Magistrate, Mianwali, convicted Zarif Khan (18) and Faizullah (16) of the offence under section 376, P. P. C. and sentenced each one of them to undergo rigorous imprisonment for a period of four years plus a fine of Rs. 1,000 or in default of payment of fine each one of them to undergo rigorous imprison ment for a further period of one year. Out of the fine, if realised, the sum of Rs. 1,000 was ordered to be paid to Mst. Sahib Khatoon as compensation: On appeal, the learned Sessions Judge, Mianwali, while upholding the conviction reduced the sentence to three years and a fine of Rs. 250 each. In default of payment of fine each one of them was ordered to suffer rigorous imprisonment for a further period of two months. The fine, if realised, was ordered to be paid to Mst. Sahib Khatoon as compensation. Zarif Khan filed Criminal Revision, No. 945/67 in this Court under section 439, Cr. P. C. questioning the correctness of his conviction and the sentence as modified in appeal. When the matter was laid before Shamim Hussain Qadri, J. his Lordship was pleased to order the issuance of notice for enhancement of the sentence not only to Zarif Khan but also to Faizullah.
2. The facts of the case, shortly stated, are that on the 11th of March 1967, at about rotiwela, the accused raped Mst. Sahib Khatoon, a girl aged ten years, in the area of Khushaliwal while she was looking after the gram crop of her father Ata Muhammad Tae outcries of the victim for help attracted Ata Muhammad and Faiz Muhammad but by the time they reached the spot the accused had made good their escape. The unfortunate girl narrated her tale of Woe to Ata Muhammad and Faiz Muhammad. She was taken home by her father and at 11 a.m., the same day she was taken to Musa Khel Police Station at a distance of 1 miles from the spot where she lodged the report Exh. P. E. Head Constable Rab Nawaz P. W. 6 prepared the injury sheet Exh. P. E. of Mst. Sahib Khatoon and got her medically examined.
3. The case was investigated by A. S. I. Mansab Beg P. W. 7 who arrested the accused on the 14th of March 1967. They had injuries on their persons. The investigating officer prepared the injury sheets and got them medically examined.
4. Zarif Khan petitioner who was examined by Dr. Muhammad Taqi, P. W. 1 on the 14th of March 1967 at 10 a.m., had the following injuries on his person:‑
(1) A semi‑healed scratch slightly oblique on the front of the neck " x 1/8".
(2) There was bluish colouration on the right side of the scrotum.
(3) There was an abrasion on the middle of the back of the first Phalanx left index finger of left hand.
All the injuries were; simple.
On the same day the same doctor examined Faizullah accused and found the following injuries on his person:‑
(1) A healed (semi‑healed) scratch " x 1/8' on the right side of the face, near the forehead, 1 " away from the outer angle of the right eye.
(2) A scratch mark on which blood was coagulated 1/12" x 1/12" on the left neck just above the middle part of the left collar bone.
(3) There were three scratch marks on the back of the left hind. Crest was present on all three marks.
(4) An abrasion on the upper part of the right leg just below the right knee joint 1" x " semi‑healed.
(5) An abrasion on the front of the left leg just below the knee joint. It was semi‑healed and 2" x 1" in size.
All the injuries were simple.
Lady Doctor Sajida Niazi P. W. 5 on the 11th of March 196" at 4‑30 p.m. examined Mst. Sahib Khatoon and found the hymen torn laterally and posteriorly. There was bleeding from the torn hymen.
5. The defence of the accused was a bare denial. They ascribed the case to enmity with Atlas Khan, a B. D. Member. When called upon to explain how he received the injuries, Zarif Khan denied that he had any injuries on his person. Faizullah explained that the scratches found on his person were received by him in his ordinary avocation in life as an agriculturist. No evidence was produced in defence.
6. The case against the accused hinges on the statement of the prosecutrix which is sufficiently corroborated by her medical examination as also from the injuries found on the persons of the accused which unmistakably go to prove that the same were caused to them while they committed rape upon her. The evidence of two other witnesses, namely, Ata Muhammad, father of the prosecutrix, and Faiz Muhammad does not inspire confidence, particularly, in tile case of Ata Muhammad who deposed that Faizullah accused started raping Mst. Sahib Khatoon within his sight and that the witness was held up by Zarif Khan at the point of a knife. The witness was unable to construct the story further and candidly admitted that this portion of his statement was tutored to him by the police outside the Court so that the case may become strong. Ata Muhammad said further in his statement that the fact of the matter was that he arrived at the spot after the culprits had left. We gather from the statement of Faiz Muhammad that Ata Muhammad was going ahead of him towards the spot and when they were at a distance of about 40 karams from the spot Faiz Muhammad sat down to answer the call of nature while Ata Muhammad proceeded ahead. Faiz Muhammad heard Ata Muhammad shouting and then rushed to the spot. He claimed to have seen Zarif Khan and Faizullah petitioners running away from the spot. This portion of his statement also does not carry conviction. In view of what the witness stated in cross‑examination. He would have us believe that he gave chance to the culprits but he is contradicted can this point by Ata Muhammad, the father of the prosecutrix, who admitted in cross examination that the culprits were not there so the question of their. pursuit by him or Faiz Muhammad did not arise. The trial Court considered that the testimony of these witnesses found corroboration from the evidence of the prosecutrix that her father Ata Muhammad and Faiz Muhammad came to the spot after the accused had raped her and she narrated to them her heart‑rending story. The Court of appeal after reappraising the evidence concurred with the finding given by the trial Magistrate that a case under section 376, P. P. C. was sufficiently made out against the accused. I have had the advantage of hearing the learned counsel for Zarif Khan petitioner. Syed Abid Hussain appeared for Faizullah to show cause against the enhancement of the sentence. He also argued the case on merits.
7. I have already observed that the case against the accused rests on the evidence of the prosecutrix corroborated as it is by the statement of Lady Dr. Sajida Niazi, who found that the hymen of the unfortunate girl who had been subjected to forced sexual intercourse, had been torn laterally and posteriorly. The lady doctor opined that the girl had been subjected to sexual intercourse. Counsel for the accused contended that since the police failed to take into possession the loin cloth of the victim showing the same to be stained with semen or blood, it could not be held that the hymen was torn due to forced sexual intercourse. There is no substance in the argument because I find from the statement of the lady doctor that when she examined the victim there was bleeding from the torn hymen. The loin cloth of the victim was removed before she was subjected to sexual inter course. The omission on the part of the investigating officer to take into possession the loin‑cloth of Mst. Sahib Khatoon is not sufficient, by itself, to dismiss the prosecution case whole sale. Mst. Sahib Khatoon is a girl aged ten years. The question of her being a consenting party, therefore, did not rise. It appears she was completely overpowered by the two youthful offenders who raped her one after the other. I am clear in my mind after going through her statement that she did not receive any injury because she was not capable of putting up any struggle against her ravishers. Mst. Sahib Khatoon had no motive, whatsoever, of any kind, to implicate the accused in the case falsely. It was put to Ata Muhammad if he was the tenant of Atlas Khan, a B. D. Member, but he repelled the suggestion. The matter was not pursued further by the defence and there is nothing on the record to suggest that Atlas Khan had enmity with the accused. Ata Muhammad was the tenant of one Sultan but he is not related to the sail Atlas Khan. It is difficult to believe that a young unmarried girl was put up by Atlas Khan with the help of Sultan to implicate the accused in a false case. The father of the victim would be the last person to have been a party to this disgraceful episode.
8. Learned counsel for the accused vehemently argued but the conviction was improper inasmuch as it was based on the solitary statement of the prosecutrix. In this connection reliance was placed on the Supreme Court decision in the cases Muhammad Abdul Khaleque and others v. State (P L D 1960 S C 325), Gulistan v. The State (P L D 1963 Pesh. 38) and Saleh Muhammad v. The State (P L D 1966 Kar. 101). On going through the reported cases, I am of the views that they proceed on their own facts. The facts in the present case are not identical with those in the cases cited at the Bar. The effect of the Supreme Court decision in Abdul Khaleque's case was considered by A. S. Farooqi, J. in the case referred to above decided by the Karachi Bench.
9. On a careful consideration of the facts, the evidence of the prosecutrix and the attendant circumstances, I am of the view that the conviction of the accused on the statement of fist. Sahib, Khatoon corroborated as it is by the evidence of the lady doctor and the presence of injuries on the persons of the accused which connect them with the commission of the crime could be sustained. In this view of the matter I feel that the accused were rightly convicted.
10. This brings me to the question whether the sentence of the accused as modified by the Court of appeal need he enhanced suitably. Syed Abid Hussain cited Mushtaq v. State (A I R 1954 All. 580), Shafi v. The State (A I R 1953 All. 502) and Khyali v. Emperor (A I R 1948 All. 430) in support of the argument that the sentences of the accused as modified by the Court of appeal were adequate and no enhancement in the sentences was called for in view of the age of Zarif Khan and Faizullah. In none of the Allahabad caws the sentence awarded for offence of rape exceeded three years. In Saleh Muhammad's case decided by the Karachi Bench a sentence of three years' rigorous imprisonment under section 376, P. P. C. was considered a adequate notwithstanding the circumstance that the offender in that case was aged 31 years. In the present case the accused are much younger in the age. The sentences as modified in their case appear to roe to be proper. This Court is slow in the matte of enhancement unless it is shown that the sentence awarded in a particular case is so grossly inadequate as to amount to a failure of Justice. The notice issued to Zarif Khan and Fail Ullah to show cause against the enhancement of sentence is, therefore, discharged. The conviction of the accused is upheld. The sentences of imprisonment as well as the tine as modified by the Court of appeal are allowed to stand. The revision petition is dismissed.
Petition dismissed.
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