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Criminal Petition for Special Leave to Appeal No. 9‑R (S) of 1983, decided on 5th July, 1983.
(On appeal against the judgment of the Federal Shariat Court dated 12‑2‑1983 in Cr. Appeal No. 104‑L of 1982).
‑‑‑ O. XII, r. 2 read with Limitation Act (IX of 1903), S. 5‑Condona tion of delay‑Appeal barred by four days‑Satisfactory reason given in application for condonation of delay‑Delay condoned.
‑‑‑ S. 10(3)‑Unmarried girl of 15/16 years subjected to inter course-- No case of false implication of accused made out‑Her absence from house and manner in which she was subjected to intercourse that very night established from her statement coupled with medical examina tion‑Necessary corroboration in case forthcoming‑‑‑Conviction, held, can be based on such statement.
‑‑ S. 10(3)‑Criminal Procedure Code (V of 1898), S. 154‑Recording of F. I. R.‑Delay‑Injury on person of prosecution witness‑State ment and condition in hospital proving prosecution case and apparent delay in recording F. I. R.‑Conviction of accused, held, recorded on proper evidence and sentence passed legal.
Mien Muhammad Yasin Wattoo, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 5th July, 1983.
The petitioner, a convict under section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance and under sec tion 325, P. P. C., seeks leave to appeal against the judgment of the Federal Shariat Court dated 12th of February, 1983 whereby his appeal against conviction and sentence was dismissed and he was given benefit of sec tion 382‑B of the Cr. P. C.
The prosecution case against the petitioner was that on the night of 30th and 31st December, 1979 he alongwith his servant Sadiq and brother Nazir and cousin Sardar abducted Mst. Zenab an unmarried girl aged about 15/16 years, committed rape on her and asked his other companions to do the same, and when Sardar Muhammad (P. W. 8) and others approached for retri eving her from their custody he caused injuries to Sardar Muhammad with a spade. The first information report was lodged by Sardar Muhammad (P. W. 8) on the 1st of January 1980 at 10 a. m. when he regained his consciousness in the hospital and was in a fit condition to make a statement. Dr. Muhammad Ashraf Qureshi a radiologist examined Mst. Zenab for her age on 2‑1‑1980 and reported her to be of 15/16 years. Mr. Shamim Akhtar examined MO. Zenab Bibi on the 1st of January, 1980 and found her from appearance to be of 13/14 years of age. She found on her person a contusion 1/4" x 1/4" on left side hymenal margin. Bleeding was present. Vagina admitted two fingers tightly. P/V examination was painful. Two vaginal swabs were taken and handed over to the police for chemical examination the report of which was not produced at the trial. Duration of the injury was within two days. She also reported that rape had been committed on her. Sardar Muhammad (p. W. 8) was examined by Dr. Allah Nawaz Brohi on 31‑12‑1979 and had the following injuries ‑
"(1) A lacerated wound 2' x 1' x bone deep on the right side of fore head 2" above right eyebrow.
(2) Bruise 3' x 1" on the back of left scapula.
(3) Bruise 2" x 1" on the left knee joint.
(4) Laceration 1/2' X 1/4' on back and mid of right forearm."
At the trial, apart from Mst. Zenab (P. W. 6), her father Sardar Muhammad (P. W. 8) who was injured, appeared as eye‑witnesses as also Fateh Muhammad (P. W. 4) and Ghani (P. W. 9) who had accompanied Sardar Muhammad in an effort to retrieve and had retrieved Mst. Zenab from the custody of the petitioner and his other companions. The petitioner denied his participation in the occurrence and explained the case by saying that "I have been falsely implicated in this case due to enmity with Fateh Muhammad (P. W. 4) who is an employer of Sardar Muhammad complainant. I was not present at the time of occurrence." Sadiq, his servant stated as follows
"I have been falsely implicated in this case by the complainant party who has enmity with Shafi co‑accused whose servant I was in the days of occurrence. Secondly it was Shafi accused who was the real culprit in this case and he has got my name included amongst the accused because he wanted me to confess the guilt so that he may be saved. Shafi accused had also assured me that he would help me and get me exonerated in this case."
The trial court held that the investigation agency had adopted a dishonest attitude from the very beginning and this was manifested in more than one way, e. g. failure to record the statement of Mst. Zenab Bibi, delay in recording the first information report, delay in getting the statement of Mst. Zenab recorded under section 164 of the Cr. P. C., failure to get the petitioner medically examined regarding his capability to commit sexual intercourse and an effort was made even at the trial by the Investigating Officer to get Muhammad Shafi petitioner exonerated. The trial Court held Fateh Muhammad (P. W. 4) and Abdul Ghani (P. W. 9) to be not truthful witnesses. As the event of abduction was not witnessed by any one the petitioner was given benefit of doubt considering it not safe to place reliance on the mere statement of prosecutrix herself. Notwithstanding the omission of offence of Zina from the F. I. R., the trial Court held it proved from the statement of Mst. Zenab corroborated from the medical evidence. The injuries to Sardar Muhammad were also found proved supported, as it was, by the medical evidence. The petitioner and his servant were found guilty of the offence under section 10(3) and sentenced to imprisonment for 20 years each and 30 stripes. The petitioner was also convicted of the offence under section 325, P. P. C. and sentenced to undergo R. I. for 3 years and to pay a fine of Rs. 2,000 or in default to suffer further six months' R. 1. The other co‑accused of the petitioner, other than Sadi9, were acquitted.
The Federal Shariat Court hearing the appeal of the petitioner affirmed the finding of the trial Court that the Investigating Officer had "bungled in the investigation" and tried to favour the petitioner. The defence plea that Mst. Zenab was carrying on with Sadiq, the servant of the petitioner, and had eloped with him was thoroughly examined and disbelieved. The acquittal of other companions of the petitioner and Sadiq was held to be by way of abundant caution and on account of benefit of doubt without adversely affecting the rest of the prosecution case. The statement of Mst. Zenab coupled with the medical report was held sufficient to prove Zina and that of Sardar Muhammad coupled with his medical report sufficient to establish the injury caused to him. The conviction and sentence of the petitioner was, therefore, upheld.
The learned counsel for the petitioner challenged the conviction and sentence of the petitioner on the ground that the first information report had been inordinately delayed and even the delayed F. I. R. did not contain any allegation of Zina having been committed. Mst. Zenab did not at the earliest opportunity disclose the fact of her being subjected to Zina, though she was medically examined on 1st and 2nd of January, 1980 and was with the police in those days and subsequently when produced before the magistrate for her treatment under section 164, Cr. P. C. It has been vehemently contended that as the same evidence has been disbelieved on the question of abduction, the same witnesses could not be considered sufficient for Zina and injury to Sardar Muhammad. The background of enmity between Fateh Muhammad and the petitioner and the involvement of the petitioner's servant made the case against the petitioner extremely dobtfu5. The learned counsel also sought to draw a presumption from the non‑production of the chemical examiners report with regard to the presence of semen in the swabs forwarded to him'.
This appeal is shown to be barred by four days. An application ha been moved for condonation of the delay. The reasons given therein appear to be satisfactory and we condone the delay.
So far as the merits of the case are concerned, Mst. Zenab (P. W. 6) was an unmarried girl aged about 15/16 years. She had been subjected to sexual intercourse. Her disappearance from the house has been fully proved by the statement of Sardar Muhammad (P. W. 8) and the manner in which she was subjected to this intercourse that very night stood established from her statement coupled with the medical examination which took place on 1st of January, 1980. The necessary corroboration to her statement forth coming the conviction could be based on it. The two Courts dealing with the case have examined at length the background of the enmity with Fateh Muhammad and its effect, if any, on such a prosecution of the petitioner and rejected it as a ground for his false implication.
We do not find any legal error in the inference so drawn. Sarda Muhammad (P. W; 8) had the injury on his person and his statement and the condition in the hospital proved the prosecution case and explained the apparent delay in recording the F. I. R. We find that the conviction of the petitioner has been recorded on proper evidence and the sentence is legal. Leave to appeal is, therefore, refused.
M. Z. M. Leave to appeal refused.
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