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Criminal Appeal No.247 of 1979, decided on 24th November, 1984.

‑‑‑S.376‑‑Appeal‑‑Jail appeal fixed for hearing after expiry of period of sentence‑‑No amount of punishment awarded to official at fault would redress grievance of accused‑‑Appeal against conviction, a right of accused‑‑Accused 's appeal, if heard, after he had served out his sentence, held, almost amounted to denying his right‑‑High Court directed Addl. Registrar of Court to personally see that Jail appeals are attended to in right earnest and are fixed before expiry of sentence.

Nemo for Appellant.

Tassadaq Hussain Jillani, Asstt. A.‑G. for the State.

Date of hearing: 24th November, 1984.

Nawab son of Amir caste Rajpoot aged 70 years resident of Chak No. 28/4‑L, Tehsil Okara, has filed this appeal against his conviction under section 376, P.P.C. by Magistrate Section 30 who sentenced him to 5 years' rigorous imprisonment vide judgment, dated 8‑7‑1978.

2. Briefly stated the facts of this case are that on 21‑9‑1977 at about Deegerwela, Ilam Din complainant (P.W.3) was cutting grass in the fields when he heard cries of his grand‑daughter Surayya (P.W.4) aged about 8 years in a nearby cotton field. He rushed to that place alongwith Abdullah P.W.(not produced) and saw Nawab, appellant, committing rape with her. Abdul Karim (P.W.2) also reached there but the appellant seeing the witnesses approaching made his good escape. Surayya who was profusely bleeding from her private parts was removed to the house. The appellant pressurised Ram Din P.W. not to report the matter to the police. Ilam Din, however, sent an information to Muhammad Anwar, father of Surayya who was at Karachi. Ham Din lodged a report Exh. P.A. at Police Station, Shahbore, district Sahiwal, on 24‑9‑1977 Le, 3 days after the occurrence, which was recorded by H.C., Muhammad Tufail. Surayya was medically exmained by Lady Dr. Athar Yasmeen on 25‑9‑1977 who advised X‑Ray also for the determination of her age. She observed no mark of injury on her body but her for‑chette and hymen were found torn freshly and the central part of the vagina bled on touch. Two swabs were taken from her vagina for detection of semen and the doctor postponed her final opinion till the receipt of report from the Chemical Examiner.

3. Nawab, appellant, was examined by Dr. Shabbir Suleman on 27‑9‑1977 who found him fit to perform sexual intercourse. After usual investigation the case was put in Court for trial.

4. At the trial a charge under section 376, P.P.C. was framed against the appellant who pleaded not guilty to it whereupon evidence of 4 witnesses, namely, Muhammad Amir (P.W.1), Abdul Karim (P.W.2) Ilam Din (P.W.3) and Surayya (P.W.4), was recorded. It may be stated that the prosecution case was supported by Ilam Din (P.W,3) and Surayya (P.W.4). Ilam Din was cross‑examined but no question whatever was put to Surayya in cross‑examination. On 8‑7‑1978, Nawab, appellant volunteered a statement wherein he confessed his guilt in the following words: ‑‑

"I committed mistake. I raped Surayya per chance. I may be excused. I shall not repeat this wrong in future."

It appears that in view of the confessional statement made by the appellant further evidence was closed and the learned trial Court Con victed and sentenced him. Feeling aggrieved, the appellant has preferred the instant appeal through jail.

5. According to section 412, Cr. P. C., no appeal lies where an accused has confessed his guilt except as to its legality and the quantum of sentence. Suffice it to say that the prosecution case is supported by the evidence of Surayya prosecutrix and her grandfather Ilam Din, complainant in this case. Surayya has not been put any question in cross‑examination, therefore, the allegation of rape levelled against the appellant coupled with his confessional statement stand proved to the hilt. The trial is not shown to have vitiated on account of any illegality. The only question remains to be determined is about the quantum of sentence which too has lost its significance for the reason that the appellant has already served out his total sentence a year or so before this appeal came up for hearing. In the circumstances, no useful purpose will be served even if this case is found to be fit for reduction of sentence.

6. In the circumstances, this appeal having no merit is hereby dismissed.

7. Before parting with this judgment I like to place on record my disapproval about the indifference shown by the office to this jail appeal by having not fixed it before the expiry of sentence of the appellant. No amount of punishment awarded to the official at fault would redress the grievance of the appellant. Appeal against conviction is filed in this Court as of right by a convict. It almost amounts to denying the right, if a convict's appeal is heard after he had served out his sentence. The Additional Registrar of this Court must personally see that the appeals filed by the convicts through jail are attended to in the right earnest and are fixed for hearing in any case before the sentence of the appellant‑convict expires.

M. A. K. Appeal dismissed .

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