Find a Lawyer

Criminal Revision No. 828 of 1971, decided on 8th June, 1985.

‑‑‑S. 439‑‑Penal Code (XLV of 1860), S. 376‑‑Revision admitted to regular hearing‑‑Suo motu show‑cause notice issued to accused at time of hearing for enhancement of sentence‑‑High Court, held; not bound to discuss evidence in revisional jurisdiction‑‑Accused, was entitled to argue that instead of enhancement of sentence, he was entitled to acquittal‑‑Appreciation of entire evidence allowed in circumstances. [Evidence].

‑‑‑S. 376‑‑Delay of four days in lodging F.I.R.‑‑Occurrence taking place when complainant was away‑‑Complainant after coming back and knowing about incident lodging F.I.R.‑‑Delay in F.I.R., held, was immaterial in circumstances.‑‑[First Information Report].

‑‑‑S. 376‑‑Evidence Act (I of 1872), S. 145‑‑Victim subjected to dirty and filthy cross‑examination‑‑Held, it was duty of trial Court to stop counsel from such filthy cross‑examination.

‑‑‑S. 376‑‑Rape‑‑Girl positively stating accused as person who raped her and describing incident‑‑Girl standing test of cross‑examination very well‑‑Testimony of prosecutrix finding support from evidence of her mother, who arrived at scene of occurrence immediately after incident and corroborated by medical evidence‑‑Such %testimony further corroborated by report of Chemical Examiner‑‑Defence evidence found to be of no help to accused‑‑No element of doubt left in case‑‑Accused. _held, rightly convicted under section 376, Penal Code.

‑‑‑S. 376‑‑Defence plea that evidence of doctor regarding age of accused j should not be accepted without report of radiologist‑‑Held, if accused was so sure regarding his old age and incapability to perform sexual intercourse, he should have led evidence to that effect especially when he had already produced seven defence witnesses‑‑Evidence of Doctor regarding his age also not challenged‑‑Whether accused was of 60 or 80 years of age, held, was immaterial‑‑Sole question for determination would be whether there was sufficient evidence to substantiate and prove charge of rape.

‑‑‑S. 376‑‑Rape‑‑Conviction‑‑Sentence‑‑Court below simply considering old age of accused but ignoring that a girl of nine years was ravished with result that her entire life had been ruined‑‑Sentence of three and a half years, awarded by trial Court which was reduced by appellate Court to three years, held, not legal and proper sentence‑‑Sentence enhanced to ten years' rigorous imprisonment and fine also increased.‑ [Sentence].

‑‑‑S. 382‑B‑‑Award of benefit of S. 382‑B‑‑Stage‑‑Court only bound to consider to give benefit of S. 382‑B of Criminal Procedure Code to accused at time of passing any sentence and Court was not bound to give benefit of provisions of S. 382‑B, Cr.P.C. at time of enhancing sentence.

‑‑‑S. 382‑B‑‑Penal Code (XLV of 1860), S. 376‑‑Benefit of S. 382 ‑, Cr. P.C. ‑‑Although word 'may' used in S. 382‑B, Cr.P.C., has been substituted by word 'shall', yet it is subject to judicial discretion and in an offence of rape, accused, on technical ground, cannot claim benefit as a matter of right.

Moin‑ud‑Din Khan for Petitioner. Nemo for the State. Date of hearing: 8th June, 1985.

Nathu Khan son of Bundu Khan, Pathan by caste, aged 80 years at the time of his trial, resident of Mohallah Malkanwala, Bhakkar City, then District Mianwali, was tried for the offence of rape by Magistrate Section 30, Bhakkar. The victim was Perveen Akhtar, aged 9 years. The trial Magistrate by judgment dated 21‑5‑1971 sentenced him to 31 years' R.I. and fine of Rs.100, or in default to undergo further 6 months' R.I. Nathu filed appeal against his conviction and sentence. The Appellate Court upheld the conviction but reduced the sentence of imprisonment to 2 years. The sentence of fine was maintained.

Nathu was not satisfied with the judgment of the Appellate Court. He, therefore, filed Criminal revision in this Court. It was admitted to regular hearing on 30‑9‑1971. The petitioner was released on tail pending the decision of his revision.

The revision 'came up for final hearing before me after about 14 years. After going through the judgments of the two Courts below and the record pertaining to this case, 1 issued suo motu notice to the petitioner to show cause why his bail be not cancelled and the sentence be enhanced. He appeared of his own. 1 told him that in case he wanted to engage a counsel, he could do so. Accordingly, he appeared alongwith his counsel on 1‑6‑1985. His bail was cancelled and he was sent to judicial lock‑up.

The case against the petitioner was registered on the basis of an application (Exh. D . A . ) , moved by Noor Muhammad, father of the girl, before the Assistant Commissioner, Bhakkar, which was marked to the S.H.O. Bhakkar. Consequently on 4‑4‑1970 at 10‑30 a.m. F.I.R. EXh.P.B. was lodged at Police Station Sadar, Bhakkar on the statement of Noor Muhammad.

Noor Muhammad was away to Lahore when the incident took place. On his return, his wife Mst. Bashiran told him that four days prior to his arrival, Parveen Akhtar went to fetch butter‑milk (Lassi) from the house of the petitioner. The girl did not turn up. The mother got worried. She went on top of the house in order to look for the girl. House of Noor Muhammad adjoined the house of Nathu, petitioner. Mst. Bashiran heard Perveen crying. She came down; rushed to the house of Nathu. She found the door of his room closed. She opened the door. She found Nathu committing sexual intercourse with Parveen Akhtar. On seeing Mst. Bashiran, he left the child. Parveen was bleeding from her private part. Her Shalwar was stained with blood. Mst. Bashiran washed the Shalwar being scared of Noor Muhammad. The mother brought the child to her house and waited for the return of her husband. The father verified the incident from the girl. This was the report lodged by Noor Muhammad at the Police Station.

The prosecution, in addition to Noor Muhammad, the first informant, examined Mst. Perveen Akhtar, Lady Doctor Asmat Begum who medically examined the girl, Mst. Bashiran mother of the girl, Zinda Hussain a Shopkeeper, two Police Constables namely Abdul Karim and Muhammad Aslam, Head Constable Gul Muhammad, two doctors Messrs Muhammad Aslam Khan and Muhammad Rashid, and finally the Investigating Officer Mirza Abdul Ghafoor.

Before proceeding further, I would like to observe that this being a revision, under the law 1 am not obliged to discuss the evidence because there is a concurrent finding of two Courts below with regard to the guilt of the petitioner, but as I issued suo motu notice for enhancement of the sentence and cancelled the bail the counsel for the A petitioner is entitled under the law to argue that instead of enhancement of sentence his client is entitled to acquittal. Therefore, it became necessary for me to go through the entire evidence. I have done so.

I shall first deal with the evidence of the girl. At the time of her evidence she was nine. Before her evidence was recorded, the trial Magistrate questioned and cross‑questioned her in order to make sure that she knew why she had been called to the Court. The Magistrate continuously asked her whether it was good to tell the truth or to lie. Each time the girl said: " JHOOT BOLNA THEEK NAHIN". When the Magistrate was fully satisfied that the girl was intelligent enough to give evidence, then her evidence was recorded. She said that she did not remember how long ago the incident took place, but it was Sunday. The time was 1/2‑00 p.m. She used to fetch butter‑milk from the house of Shamshad. Her mother asked her to first bring butter‑milk, then she would get the meal. The child left to fetch the drink. Nathu, petitioner, at that time was present in his Kothri. Perveen Akhtar further stated:‑

IS NAY MUJHAY AWAAZ DI YAH GLASS HAMARAY GHAR LAY JA

She further explained that one of his room adjoined their stair‑case as soon as the girl entered the room, Nathu got up; closed the door and started untying her Shalwar. The girl resisted. Nathu strangulated her. Her throat was swollen. (The girl showed her throat to the trial Magistrate and said that thereafter she could not eat bread and could 'drink tea only). The girl continued her statement, She stated that Nathu thereafter threw her on his cot and started filthy talk.

She became unconscious. She was then raped. Perveen Akhtar said that even after the incident she used to pass blood alongwith urine. She said that when she gained senses she found her mother crying by her side.

Lady Doctor Asmat, W.M.O. Civil Hospital, Kalabagh, on 5‑4‑1970 at 12‑15 p.m., examined the girl. She found contusion marks 1" x 1" one each on the cheeks of the girl. There was slight laceration on vaginal orific. The hymen was ruptured and had tears at 3 O'clock and 9 O'clock positions. The private part was swollen. The doctor took vaginal swabs and sent the same to the Chemical Examiner. In the opinion of the lady doctor, rape had been committed upon the girl within a period of 4 to 6 days.

Mst. Bashiran, mother of the child, deposed that she had sent her daughter Perveen to the house of Shamshad to fetch butter‑milk. Thereafter, she heard her cries. She went on top of her house, which adjoined the house of Nathu. She found the door of Nathu's room closed. She came down. Pushed the door. A stone had been put behind the door. However, she managed to open the door and found the accused standing. The child was lying unconscious. There was semen around her private part. Bashiran picked up the child. Brought her to her house while crying Nathu ran away. When the girl gained consciousness, she narrated the entire incident to Mst. Bashiran. The Shalwar of the girl was torn.

On 6‑4‑1970, Dr.Muhammad Aslam Khan examined Nathu. He (lid not find any marks of violence on his body. The doctor referred him to Medical Superintendent, Mianwali for his opinion as to whether Nathu was fit to perform sexual intercourse

Thereafter, Dr. Muhammad Rashid, Medical Superintendent, Mianwali examined Nathu Khan on the following day at 5‑00 p.m. According to him, Nathu was aged 60. His examination revealed that he did not suffer from any disability or infirmity so as to render him incapable of performing sexual intercourse.

It is not necessary to refer to the evidence of Zinda Hussain and the police officials.

The petitioner when examined by the trial Magistrate denied the allegation of rape. He said that he was an old man arid was not capable of committing sexual intercourse. He pleaded not guilty and said that it was due to enmity that the cases had been registered against him. He examined seven witnesses in defence. They were Abdul Wahid, Qasim Ali, Muhammad Ibrahim, Shamas Din, Sultan, Muhammad Amin and Ali Nawaz.

Learned counsel for the petitioner raised number of contentions. The first point urged was delay in lodging the F.I.R. According to the learned counsel, this suggested some foul play. This point has no force because the informant was away when the occurrence took place. It was next submitted that the case against the petitioner was false. It was due to strained relations on account of the drain dispute.

Counsel further submitted that the family of the prosecutrix, especially her mother, was not of good character.

While dealing with the statement of the girl, the counsel argued that it was full of omissions and contradictions. As such no reliance could be placed on it. It was submitted that if at all this was to be taken into consideration, then it was necessary to look for some independent corroborative evidence, which was lacking. It was further submitted that the girl deposed that she raised alarm. It was strange enough that nobody turned up from the neighbourhood although the place was inhabitated. This threw doubt on the genuineness of the prosecution story. He then referred to the cross‑examination of the girl and tried' to argue that the position in which the girl was lying was not such where she could be subjected to intercourse. This was a dirty bit of cross‑examination and I don't want to incorporate it in my judgment. This was done simply to confuse the child and indulge in mud‑throwing. It was the duty of the trial Magistrate to stop the counsel from such filthy cross‑examination.

Learned counsel tried to make a mountain out of a molehill by taking up the point that there was lot of confusion with regard to the Shalwar which the alleged victim was wearing at the time when she was alleged to have been raped. The mother of the girl stated that the Shalwar was not stained with blood semen whereas the Shalwar sent to the Chemical Examiner was found to be stained with semen. Great stress was laid on this point and this counsel repeatedly submitted that this was fatal lacuna in the prosecution case. The entire prosecution story was doubtful and the petitioner, as such, was entitled to the benefit of doubt.

Learned counsel also criticised the medical evidence and submitted that it was of no importance, nor did it advance the prosecution case any further. At first, he dealt with the evidence of the lady doctor and referred to that part of her evidence where she said that hymen could be torn by putting finger in the private part of the girl. Counsel submitted that the girl admitted that not only her mother but also other women who visited her did so. Therefore, the opinion of the lady doctor that the girl was subjected to sexual intercourse or rape was of no avail. While dealing with the medical evidence pertaining to the age of the petitioner, it was contended that neither Dr. Aslam Khan nor Dr. Muhammad Rashid could be taken to be an authority. Counsel submitted that although Dr‑. Rashid said that the petitioner was of 60 years of age, but he did not have material before him to justify his opinion.

The learned counsel then argued that the two Courts below without any justification rejected the defence, which conclusively proved the innocence of the petitioner.

Having argued the case on merits, the learned counsel took up a legal point and that was that the charge was defective. The date of occurrence shown in the charge was 4‑4‑1970 where the incident took place on 1‑4‑1970. This contention I would like to repel straightaway.

It appears to be a typographical mistake, otherwise there is no substantial legal flaw in the charge.

I have considered the points, urged by the learned counsel for the petitioner and have also examined the prosecution as well as defence evidence. .I think the important evidence in this case is the statement of the girl, the medical evidence and the statement of Mst. Bashiran, mother of the girl. The girl positively accused the petitioner as her raper. She described how she was called in and thereafter what happened to her till she lost her conscious. I have not come across anything in her cross‑examination which may be helpful to the defence, except that the defence counsel at the time of cross‑examination indulged in indecent type of questions, but still the girl stood the test very well. She admitted that there was some dispute about the Parnala whereas the mother denied this. But this is negligible as it was not a serious type of dispute where the parents would go all along to put their girl in the witness‑box to depose falsely against the petitioner.

The testimony of Perveen Akhtar finds support from the evidence of her mother. She arrived at the scene of occurrence immediately after the incident. Took the girl to her house while she was still bleeding. Following reply of the mother rules out the possibility of false implication and that of substitution:

KYA KOI APNI LARKI KAY BARAY MAIN JHOOT BAYAN YAANI ILZAM LAGA SAKTA HAI

I have no reason to doubt the evidence of the lady doctor that the girl was subjected to sexual intercourse 4/5 days ‑before she was medically examined.

It is correct that there is no report of Radiologist with regard to the age of the petitioner, but if he was so sure of his age and incapacity to perform sexual intercourse nothing stopped him from leading evidence to that effect, especially when he had already produced seven witnesses in defence. The evidence of Dr.Rashid on the point of age of the F petitioner has gone unchallenged. He was not cross‑examined about it. It is immaterial whether the petitioner was of 60 or 80. The sole question for determination is whether there is sufficient evidence to substantiate and prove the charge of rape.

< --[if gte vml 1]> < [endif]-->

I have also considered the report of the Chemical Examiner. According to his opinion, the swabs sent to him were stained with semen. So was Dhoti of the petitioner and Shalwar of the girl. As already, observed by me, the evidence pertaining to the Shalwar is not very reliable. So, this item shall have to be excluded.

Now, so far as the defence evidence is concerned, it simply says that the petitioner was a pious person. He was not expected to indulge in such a dirty crime. The defence witnesses accused the family of the girl, especially her mother to be of bad character. Two of the witnesses also said that the relations between the parties were strained due to Parnala of the petitioner which fell in the courtyard of Noor Muhammad. But this evidence is of no help to the petitioner because all the witnesses were quiet with regard to the actual occurrence.

I am clear in my mind that the evidence of the girl duly corroborated by the evidence of her mother as well as the medical evidence of the lady doctor and Dr. Rashid, further supported by the report of the Chemical Examiner fully proves the case against the petitioner. There is no element of doubt. I am, therefore, of the view that the petitioner has been rightly convicted under section 3‑7.6, P.P.C.I

The next question to be considered is whether the sentence awarded by the trial Court and reduced by the appellate Court was legal and proper. I have no hesitation in observing that it was not so. The two Courts below simply considered the age of the petitioner. Side by side, they were also required by law to consider that a child of nine years had been ravished with the result that her entire life H had been ruined. The sentence awarded .by the trial Court and further reduced by the appellate, therefore, cannot be taken to be legal and proper sentence. I, therefore, enhance the same to ten years R.I. The petitioner was fined Rs.100 only. This amount, too, is insufficient. The fine is enhanced to Rs.1,000 in default whereof he shall undergo further one year R.I.

The counsel also argued that in case the conviction was to be maintained, the petitioner be given benefit of section 382‑B, Cr.P.C. I am not prepared to consider this. ,To begin with word, "may" occurred in the section, but it was substituted by the word "shall", by Ordinance LXXI of 1979. But I think this is immaterial. The conviction in this case was initially recorded by the trial Magistrate on 21‑5‑1971 when this provision was not on the Statute Book. Moreover, the section says that: "Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such. offence". I am not passing any sentence but simply enhancing ; the same. Section 382‑B is, therefore, not applicable. I am further of their opinion that although the word "may" used in the section has been substituted by the word "shall", it is still subject to judicial discretion and in an offence of this type I don't think that the accused on is technical ground can claim benefit as a matter of right.

[underlining is mine].

M.Y.H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.