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Criminal Appeal No. 2 of 1986 and Criminal Miscellaneous No. 68 of 1986, decided on 5th February, 1987.
‑‑‑Ss. 376 & 363‑‑Rape‑‑Prosecution story not improbable but confidence inspiring‑‑Statement of victim, a 13 years old girl inspiring confidence and corroborated by lady doctor who examined her‑‑Victim stuck to her guns in her cross‑examination‑‑Other witnesses also not shaken‑‑One witness an independent person having no relationship with any party‑‑Lady doctor not cross‑examined‑‑When a witness is not cross‑examined, his testimony is accepted as true‑‑[Criminal trial‑ Witness‑‑ Evidence].
A I R 1940 Pat. 683; A I R 1943 Mad. 590; A I R 1954 T C 152; AIR 1959 A P 272; A I R 1961 Cal. 359; P L D 1963 Kar. 465; P L D 1964 Pesh. 194; P L D 1967 Kar. 233; P L D 1967 Lah. 1138; 1968 P Cr. L J 1631; P L D 1969 Pesh. 118: P L D 1972 Kar. 432; 1974 P Cr. L. J 537; P L D 1980 Pesh. 265 and P L D 1982 Pesh. 42 ref.
‑‑‑Ss. 376 & 363‑‑Rape‑‑Prosecution story not improbable but confidence inspiring‑‑Statement of victim, a 13 years old girl inspiring confidence and corroborated by medical evidence‑‑Victim stuck to her guns in her cross‑examination‑‑Credit of other witnesses also not shaken ‑One witness an independent witness having no relationship with any party‑‑ Certain difference found between statements of prosecution witnesses before the Trial Court and before police‑‑Such differences, held, were immaterial and likely to take place when prosecution witnesses are not tutored‑‑Minor discrepancies in the statements of prosecution witnesses therefore, were not material and thus could be ignored‑‑Mere amplification of earlier statement was neither improvement nor contradiction‑‑[Criminal trial‑‑Witness].
AIR 1959HP3;PLD 1967Pesh.384; 1968SCMR 502; 1968SCMR 633;1968SCMR1028;1971SCMR31;PLD1975SC275;1978SCMR 255; 1977 P Cr. L J 881; 1979 S C M R 325 and P L D 1979 S C 53 ref.
‑‑‑S. 154‑‑First Information Report‑‑Purpose‑‑Delay per se in lodging F.I.R. is not material if there is an explanation for delay‑‑Delay does not detract from authenticity of prosecution case and prosecution gets nothing out of such delay‑‑Belated F.I.R. is not necessarily false.
P L D 1962 S C 480; 1979 P Cr. L J 593; P L D 1978 Lah. 1285; 1968 SCMR 502; 1970 S C M R 797; 1974 P Cr. L J Note 84 at p. 53; 1973 P Cr. L J 269; 1976 P Cr. L J 40; 1978 S C M R 136 and 1979 SCMR 438 ref.
‑‑‑Ss. 376 & 363‑‑Rape‑‑Sentence, enhancement of‑‑Victim, a girl of 13 years of age raped during the holy month of Ramazan, her hymen was badly ruptured and at time of incident she was not able to walk to lodge F.I.R.‑‑Case, held, was fit which needs enhancement of sentence.‑ [Sentence].
P L D 1987 S C (A J K) 9 applied.
Nazir Ahmed Qadri for Appellant.
Sh. Abdul Aziz for Petitioner.
Muhammad Nisar Mirza, Addl.Advocate‑General for the State.
Date of Institution: 29th 5une, 1986.
‑‑These two cases are disposed of together because they arise out of the same F.I.R. and the same judgment of the learned Sessions Judge, Muzaffarabad, dated 28‑6‑1986.
2. The first case is an appeal brought by Muhammad Rashid son of Muhammad Shafi and Muhammad Nazir son of Muhammad Sharif appellants against the judgment of the learned Sessions Judge, Muzaffarabad, dated 28‑6‑1986, whereby the learned Sessions Judge confirmed the judgment of the learned Additional Sub Judge Magistrate 1st Class, dated 11‑7‑1981. Although the second appeal is not competent yet it can be treated as a Revision. As such we hereby treat this appeal as a Revision Petition.
3. The second case is a Revision Petition brought by Naseem Akhtar daughter of Abdullah who wants the enhancement of the sentence awarded to the two appellants herein. The trial Court has awarded a sentence of three years' R.I. plus Rs.200 as fine under section 376, P.C. to each accused person but Naseem Akhtar has submitted that the two accused persons' punishment deserves enhancement because they have raped her during the holy month of Ramazan in a brutal way and therefore, they should be awarded a deterrent punishment.
4. According to the story of the prosecution, Naseem Akhtar daughter of Abdullah herself lodged a report on 22‑8‑1978; that on 20‑8‑1978, when she was coming to her house. Rashid son of Shafi and Nazir son of Sharif were waiting for her in the way leading to her house when she was passing the way near them, the appellants herein forcibly caught hold of her and dragged her to a lonely place where there was gross. Muhammad Rashid thereupon took off her Shalwar forcibly and after throwing her on the ground raped her. After that, the other accused Muhammad Nazir also forcibly raped her. Suddenly a Jeep Driver reached the place of occurrence and the accused persons tried to escape from the place of occurrence but were not successful. She narrated her story to the Driver and after that when she arrived at her house she also narrated the story to her mother, maternal uncle and one Shah Wali. As she was feeling pain, so she came to lodge the report late by one day. The police registered a case under section 376/363, P.C. against the accused persons and put up the challan before the learned Magistrate 1st Class, Muzaffarabad on 2‑ 10‑ 1978. The learned trial Court, after recording the evidence and hearing the parties, convicted the two accused persons, the appellants herein, and vide its judgment, dated 11‑7‑1981, sentenced them to undergo three years' R.I. plus Rs.200 as fine each under section 376, P.C. In default of the non‑payment of the fine, both the accused persons were required to undergo to simple imprisonment for three months.
5. The two accused persons lodged an appeal before the learned Sessions Judge, Muzaffarabad but the learned Sessions Judge confirmed that sentence and fine vide his judgment, dated 28‑6‑1986. We need not refer to the judgments of the High Court and the Supreme Court in this case because the matter went up before the Supreme Court and a learned Judge of the Supreme. Court dismissed the petition for leave to appeal brought by Muhammad Rashid and Muhammad Nazir against the judgment of the High Court, dated 17‑4‑1984. That petition for leave to appeal was dismissed on 17‑11‑1984. A Revision Petition was preferred by the State before the D.S. of the High Court and the D.S. of this High Court had held in its judgment, dated 17‑4‑1984 that the order for re‑trial passed by the learned Sessions Judge was not correct. The learned High Court had directed the Sessions Judge, to decide the appeal according to law. So the learned Sessions Judge, vide his judgment, dated 28‑6‑1986 proceeded to dismiss the appeal and upheld the judgment of the trial Court vide his order, dated 28‑6‑1986.
6. Now the two accused persons, have brought this appeal against the judgment of the learned Sessions Judge, dated 28‑6‑1986. Muhammad Rashid and Muhammad Nazir the appellants herein have assailed the judgment of the learned Sessions Judge and prayed for their acquittal while Mst. Naseem Akhtar has prayed for the enhancement of the sentence. This appeal has been treated as a Revision.
7. Mr. Nazir Ahmad Qadri, the learned Counsel for the appellants, has raised the following points:‑‑
(a) That there is a delay in the F.I.R. which is fatal to the case. In this respect, Mr. Nazir Ahmed Qadri, Advocate has cited the following authorities:‑‑
P L D 1966 Lah. 383, P L D 1977 S C (AJK) 1, P L D 1979 Kar. 383 and P L D 1983 Federal Shariat Court 192.
(b) That the story of the prosecution appears to be improbable because the occurrence could not be seen from the other side of the river especially when there was gross present at the place of occurrence;
(c) That there are improvements in the statements of the P.Ws and, therefore, they cannot be believed. In this respect, the following authorities have been cited:‑‑
P L D 1963 Dacca 908, P L D 1963 Kar. 805, P L D 1968 Lah. 49, 1973 PCr.LJ 802 and P L J 1974 Cr. L 199.
(d) That the absence of blood on the Shalwar of the prosecutrix shows that she was not raped at all by the appellants;
(e) That the statement of the prosecutrix cannot be believed, and
(f) That the medical report shows the duration of Zina as 36 hours but this is not corroborated by the statement of the prosecutrix.
8. On the other hand, the learned Additional Advocate‑General, Mr. Muhammad Nisar Mirza, has replied that there is sufficient explanation of the delay in this case. The date of occurrence is 20‑8‑1978 at 5 p.m. while the report was made on 22‑8‑1978 at 6 p.m. The prosecutrix was a small girl of 12/13 years as she was a student of 4th Primary, whose father was not present in his house as he had gone to Quetta, where he was working as a labourer. The prosecutrix was also not in a position to walk due to pain in her vagina and this is also a good explanation for the delay. Even otherwise, delay per se is not fatal to a criminal case.
9. We have heard the learned counsel for the parties and have perused the record of the case carefully.
10. It is regretable that a small girl, who was hardly 13 years of age, was forcibly dragged to lonely place and raped by two young persons. This unfortunate incident took place during the Holy month of Ramazan when Muslims all over the world are expected observe fast and fear from Almighty Allah. The two young accused persons were seen by Asif and Sher Afzal Driver. Asif saw the prosecutrix lying on the gross while the accused persons raped her. Sher Afzal P.W., who came at the place of occurrence, caught hold of both the accused persons and handed them over to the mother of the prosecutrix. Sher Afzal P.W. is a Jeep Driver who was informed by Asif that a girl was being raped by two persons. Sher Afzal directed Asif to remain where he was and he took his Jeep and reached the place of occurrence. He caught hold of both the young accused persons and when he enquired from the young girl, she narrated the whole story to him. Sher Afzal gave slaps to both the accused persons. One accused person Nazir offered Rs.100 as a bribe to Sher Afzal, Driver who was requested that both the accused persons should be excused. Sher Afzal did not excuse them and handed them over to the mother of the prosecutrix. This unfortunate incident took place at Chal Pani Village which is not far off from Kahori. In the cross‑examination, the credit of this P.W. (Sher Afzal) was not shaken. In fact, no question was put to shake his credit. Sher Afzal seems to be an independent witness who has got no relationship with the parties. Therefore, the trial Court has rightly believed the statements of Sher Afzal and the Prosecutrix, especially when Sher Afzal's statement is corroborated by Muhammad Asif who is a Syed of 16/17 years and belongs to Village Kahore.
11. The statement of Mst. Naseem Akhtar daughter of Abdullah (aged 13 years) and a student of 4th class inspires confidence. Her Qameez was broken at so many places and it shows that she was dragged away forcibly by the accused persons. She has stated that the accused persons took off her Shalwar and the first person who raped her was Rashid and after that Nazir accused also committed rape upon her. She has stated that Sher Afzal Driver appeared after she was being raped by the two accused persons and she narrated the whole story to Sher Afzal Driver, who caught hold of the accused persons and took them in his Jeep. She has deposed that she had made an alarm but no body appeared when she was being raped. After the occurrence she went to her house where she narrated the story to her mother, her maternal uncle and Shah Wali. She has also deposed that she was not in a position to walk and, therefore, could not lodge the F.I.R. earlier. She was cross‑examined by the learned Counsel for the accused persons but she stuck to her guns in her cross -examination. She has deposed that the accused persons had not taken off her Qameez put they had torn her Qameez. Her Shalwar was taken off by them. She has also stated that when she was being raped by Rashid, the other accused Nazir had caught hold of her legs.
Her statement is corroborated by the evidence of the Lady Doctor, Mrs. Khawaja (Shah Wali), who prepared the medical report. The Lady, Doctor has mentioned in her statement that the age of the prosecutrix is about 13 years and stated that her hymen was ruptured. The margin of her vagina was swollen and two fingers could be introduced in to her vagina. The Lady Doctor has opined that rape was committed upon her. The Lady Doctor has proved her medical report Exh. P.J./3.
12. Let us observe here that the Lady Doctor was not cross‑examined despite the fact that the trial Court gave the accused persons the chance. Under law, when a witness is not cross‑examined, his testimony is accepted as true in the light of the following authorities:‑‑
A I R 1940 Pat. 683, A I R 1943 Mad. 590, A I R 1954 T C 152, AIR 1959 A P 272, A I R 1961 Cal. 359, P L D 1963 Kar. 465, P L D 1964 Pesh. 194, PLD 1967 Kar. 233, P L D 1967 Lah. 1138, 1968 P. Cr. L J 1631, P L D 1969 Pesh. 118, P L D 1972 Kar. 432, 1974 P Cr. L J 537, PLD 1980 Pesh. 265 and P L D 1982 Pesh. 42.
13. The prosecution story is not improbable and it inspires confidence. It is wrong to say that the occurrence could not be seen from the other side of the river. The fact that the grass itself was pressed at the place of occurrence corroborates the statements of the prosecutrix.
14. Much has been said that there are improvements in the statements of the prosecution witnesses. On cross‑examination, we have reached the conclusion that there are no improvements. Therefore, whatever has been said before the trial Court cannot be termed as improvement. No doubt, there are certain differences between the statements of the P.Ws. before the Court and before the police but such differences are likely to take place when the prosecution witnesses are not tutored. Therefore, the minor discrepancies in the statements of the prosecution witnesses are not material and, therefore, we can ignore them.
In this respect, we are fortified in our view by:‑‑
A I R 1959 H P 3, P L D 1967 Pesh. 384, 1968 S C M R 502, 1968 SCMR 633, 1968 S C M R 1028, 1971 S C M R 31, P L D 1975 S C 275, 1978 S C M R 255, 1977 P Cr. L J 881 and 1979 S C M R 325.
mere amplification of earlier statement is neither improvement nor contradiction P L D 1977 S C 53 (212).
15. The F.I.R. is not a substantive evidence P L D 1962 S C 480. Its purpose is simply to put the criminal law into motion 1979 P Cr. L J 593 (597) A. It is not an encyclopaedia P L D 1978 Lah. 1285. The delay, per se, m lodging F.I.R. is not material if there is an explanation of the delay. The delay in F.I.R. does not detract from authenticity of the prosecution case 1968 S C M R 502 (507) E. Prosecution gains nothing out of such delay 1970 S C M R 797. Belated F.I.R. is not necessarily false 1974 P Cr. L J Note 84 at p. 53. Moreover, the following authorities also support our view:‑‑ 1973PCr.LJ(AJK)269, 1976PCr.LJ40, 1978SCMR 136 and 1979 SCMR438.
16. We have not been able to see any blood on the Shalwar but the Shalwar had been taken off by the accused persons. The mere absence of blood on the Shalwar of the girl disproves the story of the prosecution. The Chemical Examiner has reported that there was semen on the Shalwar. Therefore, the statement of the prosecutrix stands corroborated by the evidence of the Lady Doctor and the Chemical Examiner's report and from the fact that the grass, where the unfortunate incident took place, was pressed. The Chemical Examiner report Exh. P.J./2 is referred to in this connection.
17. There is no force in the argument that the Medical Report (which shows the duration as 36 hours) is wrong and that it goes against the statement of the prosecutrix. The Medical Report was prepared by Lady Doctor on 22‑8‑1978 and therefore, nothing turn out from this duration.
17‑A. I agree with the submission of the learned Additional Advocate‑General that the recent authority of the Supreme Court of Azad Jammu and Kashmir reported in P L D 1987 S C (AJK) 9 applies to this case. That was a case under section 376 of the A.P.C. and the accused persons was sentenced to seven years' R.I.
18. We have considered the case of Mst. Naseem Akhtar who wants the enhancement of the sentence. As she was raped during the holy month of Ramazan, her hymen was badly ruptured as a result of the rape committed by the two accused persons, the appellants herein and she was not able even to walk to lodge the F.I.R. before the police. So it is a fit case in which the sentence needs enhancement. We think that the authority of the Supreme Court of the Azad Jammu and Kashmir, reported in P L D 19871 SC (AJK) 9 is helpful to us.
We reproduce the last portion of that lucid authority from pages 15 and 16:‑‑
The question that now remains to be determined is as to whether the reduction of the appellant's sentence from 7 to 3 years by the learned single Judge in the High Court was warranted by the circumstances, of this case and commensurate with the offence committed While awarding the sentence in a case, regard has to be had if there existed extenuating circumstances and also to the nature of the offence committed, its effects on the victim and the society. The rules of leniency while awarding the sentence is, therefore, to be applied with care and caution. Offence of Zina from its very nature is not only shameful and a grave offence in itself in Islam but is a road leading to all sorts of other evils and destructive to the Islamic concept of a just and a civilized society, to which we all proudly claim to belong to. In verse 32 of 17th Sura of Holy Qur'an which when translated reads:‑‑
Nor came nigh to adultery for it is shameful (deed) and an evil opening the road (to other evils)'.
In the present case a child of about 9 years age has been raped. The unfortunate girl and the family has been put to shame and infamy. It is as already stated in earlier part of this judgment a stigma which the unfortunate victim and her whole family will have to live with and which perhaps even the time will not be able to absterge. In cases especially of Zina‑bil‑Jabr we can imagine of no valid reason which could be regarded as extenuating circumstances for taking a lenient view. The reduction of sentence from 7 to 3 years by the learned Single Judge in the High Court in the present case, in our view, was wholly unwarranted. We, therefore, enhance the sentence from 3 to 7 years originally awarded to the appellant by the trial Court. For the aforestated reasons, we find no force in this appeal. It, therefore, stands rejected. The appellant shall undergo rigorous imprisonment for 7 years. He shall, however, be entitled to the benefit under section 382‑B of the Code of Criminal Procedure if permissible'
Therefore, it would be better to enhance the sentence of both the accused persons (petitioners herein from three years' R.I to five years. R.I. each. Moreover, both the accused persons, petitioners herein, deserve fine of Rs. one thousand each.
Under these circumstances, we hereby reject the revision petition of the petitioners herein and accept the other revision petition filed by Mst. Naseem Akhtar and enhance the sentence from three years' R.I. to five years R.I. to each and we also increase the fine from Rs. 200 to One thousand each. In case of non‑payment of the fine, both the accused persons (petitioners herein) shall undergo a further simple imprisonment for three months each. They shall, however, be entitled to the benefit of section 382‑B of the Cr.P.C.
M.B.A./297/H.A Petition dismissed.
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