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Criminal Appeal No. 168/L of 1986, decided on 4th December, 1986.

‑‑S. 10(3)‑‑Ocular evidence, appreciation of‑‑Victim of offence, a young girl of 11 years-‑Prosecutrix corroborating contents of F.I.R.‑ Prosecutrix or her relatives having no grudge or enmity with accused‑‑No plausible explanation of false charge of Zina by young girl involving her future and honour‑‑Prosecutrix clearly charging accused of Zina by force‑‑Witness attracted on her alarm seeing her naked and accused running away with dagger in h s hand‑‑Prosecutrix examined by Lady Doctor immediately after occurrence‑‑Doctor finding hymen torn with fresh lacerated on both sides opinion to be subjected to sexual intercourse‑‑ Victim found no used to intercourse‑‑Vaginal swabs found stained with semen‑‑Shirt and Shalwar of girl found torn and stained with blood and semen--‑Evidence of witness attracted at spot found confidence inspiring‑ Prosecution, held, had succeeded in bringing home charge against accused by producing well‑connected, consistent and reliable evidence.

‑‑S. 340(2)‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)‑‑Accused not examined on oath‑‑Effect of‑‑Trial whether vitiated‑‑Specific; question put to accused as to whether he would like to be examined on oath‑‑Accused declining to do so‑‑Opportunity having been extended to accused, no irregularity or illegality, held, to be deemed to have been committed by Court and there was nothing in law either to force or compel accused to make statement on oath.

Muhammad Qasim v. The State P L D 1986 Quetta 286; Rizwan v. The State P L D 1986 Lah. 222 and Abdul Malik v. The State P L D 1985 FSC 293 ref.

‑‑‑S. 10(3)‑‑Nature of offence‑‑Zina or Zina‑bil‑Jabr‑‑Prosecutrix, a minor girl of 11 years‑‑Evidence eloquently speaking of Zina‑bil‑Jabr‑ Prosecutrix alleging Zina committed with her by force‑‑Accused seen running away from spot with dagger in his hand‑‑Clear case of Zina‑bil -Jabr, held, had been established by prosecution against accused‑ Conviction under S. 10(3) was maintained in circumstances.

‑‑‑S. 10(3)‑‑Question of sentence‑‑Accused, of a very young age‑ Leniency in matter of sentence was shown by reducing substantive sentence of 16 years to 10 years' R.I. but sentence of whipping enhanced to 30 stripes instead of 25.‑‑[Sentence].

Ch. Khalid Mahmood and Ch. Bashir Hussain Khalid for Appellant.

Azmat Dad Khan for the State.

Date of hearing: 4th December, 1986.

.‑‑This criminal appeal by Khalid Hussain alias Khalid Pervez, son of Muhammad Akbar, resident of Village Mashrala within the jurisdiction of Police Station Warburton is directed against the judgment, dated 10‑5‑1986 of the learned Additional Sessions Judge, Sheikhupura whereby he was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to suffer R.I. or 16 years with whipping numbering 25 stripes. The convict was also required to pay a fine of Rs.5,000 in default of which, he was to further undergo S.I. for six months. He was, however, allowed the benefit of section 382‑B, Cr.P.C.

2. The facts of the case briefly stated in the F.I.R. are that Mst. Imrana Bibi, a young girl, aged 10/11 years, was a student of 5th Class. Her father had died and she was living with her maternal uncle at Murdike. In order to spend summer vacations, she had shifted to village Mashrala where she was residing in the ancestral house of hex mother. On 3‑9‑1984 at about noon time while she was coming to her mother's house from the house of her maternal grandfather and passing near the house of Muhammad Akram, father of the appellant the appellant came out his house and told her that there is a letter in her name which is to be delivered to her. He took her to his house and locked her inside the Baithak. He took out a dagger and threatened her with dire consequence in case of her refusal. She was made to lie on the ground, he removed her Shalwar forcibly and subjected her to Zina‑bil‑‑Jabr. On the alarm raised by the prosecutrix, Muhammad Anwar son of Allah Ditta (P.W.4) and one Riasat Ali (given up P.W.) reached the scene of occurrence. The accused opened the door and ran way and the prosecutrix stood up in a naked condition and narrated the occurrence to the mentioned witnesses. The above‑mentioned two witnesses took her to her parents' house where she narrated the occurrence to her mother and grandfather, Abdullah (P.W.2). Her grandfather took her to the Medical Officer for her medical examination and then proceeded to the police station to lodge the report. Muhammad Ramzan, A.S.I. (P.W.7) happened to be present at Railway Line leading to Nankana Sahib in the area of Warburton in connection with the investigation of some case when Mst. Imrana Bibi, complainant, accompanied by her grandfather, Abdullah P.W. appeared before him. He recorded her statement and a complaint was sent to Police Station Warburton where a formal F.I.R. was recorded by Muhammad Anwar, M.H.C. (P.W.4). It may be mentioned that the prosecutrix at the time of lodging her report also produced her medical report as well as clothes comprising of Shalwar and shirt which were taken into possession by the Investigating Officer.

3. Mst. Imrana Bibi (P.W.1), .the prosecutrix, aged about 11 years has reiterated almost the same facts as given in the F.I.R. According to her while she was passing in front of the house of the appellant, she was taken inside the house by him on the pretext of delivering her a letter received by him in her name where she was locked in the Baithak and there he subjected her forcibly to sexual intercourse. She received injuries on her back and neck as well as on her legs. According to her, Anwar and Riasat, P.Ws. heard her alarm and reached there to whom she narrated the whole affair and in the meanwhile the accused left the house and ran away.

4. Abdullah (P.W.2) is the grandfather of the prosecutrix. According to him on the day of occurrence Mst. lmrana Bibi came in the company of Anwar and Riasat weeping with torn clothes who narrated all the details of the occurrence to him. He deposed that he accompanied the prosecutrix to the hospital as well as to the place where her report was recorded.

5. Muhammad Anwar (P.W.4) has corroborated the statement of Mst. Imrana Bibi (P.W.1) and has stated that on hearing the cries of the prosecutrix they were attracted to the spot and found the appellant running in the Bazar with a dagger. They entered the house and found Mst. Imrana Bibi there who narrated all the details of the occurrence.

6. Mr. Muhammad Maqsood (P.W.3) examined the appellant on 9‑ 9‑1984 and found him physically fit to perform sexual intercourse.

7. Dr. Nasreen Kausar (P.W.10) examined Mst. Imrana Bibi on 3‑9‑1984 at about 2‑00 p.m. and noted abrasions in the neck at the back and on the internal surface of her thighs. She found her shirt and under clothings torn and her Shalwar was stained with semen and blood. Hymen was found torn with fresh lacerations on both the sides and blood oozing from there. The vagina admitted two fingers with difficulty and in her opinion intercourse had been committed with her within 12 hours of her examination. According to the lady doctor, the examinee was not found habitual and had no such experience before the said occurrence. The lady doctor took two swabs which were sent to the Chemical Examiner for detection of semen.

8. The prosecutrix was medically re‑examined by Lady Dr. Razia on 7‑10‑1984 at 10‑00 a.m. and was found to have been subjected to rape.

9. The accused was arrested by Gul Sher Khan, S.I. (P.W.8) on 5‑9‑1984 and was medically examined on 9‑9‑1984. While in police custody, a dagger was recovered from his Dera on 11‑9‑1984 at his instance.

10. The accused when examined under section 342, Cr.P.C. denied all the allegations and professed innocent. According to him, he was involved in this case due to party faction and enmity. He declined to appear as a witness in his defence and gave statement on oath in disproof of the allegations levelled against him but produced one Muhammad Aslam, D.S.P. (D.W.1) in his defence.

11. Muhammad Aslam. D.S.P. (D.W.1) had partly investigated the case. Accordingly to him, a case under section 354, P.P.C. only had been made out against the accused. He has admitted that the eye‑witnesses did not appear before him and his conclusion about the nature of the offence stated above was based on the defence evidence and not on the testimony of the eye‑witnesses (prosecution witnesses).

12. We have heard the learned counsel for the parties and have also gone through the material available on the record with their assistance.

13. In the instant case Mst. Imrana Bibi appeared as P.W. 1 and has supported and corroborated the contents of the F.I.R. She is a young girl of 11 years of age and there is no material on the record to show that she or her close relatives had any grudge or enmity with the appellant. No plausible explanation is available to show why an unmarried young girl would bring a false charge of Zina involving her future carrier and honour. She has clearly charged the appellant for committing Zina with her by force. She raised alarm which attracted Muhammad Anwar and Riasat Ali, P.Ws. and they saw her naked and also witnessed the appellant running away with a dagger in his hand.

14. Out of the mentioned two witnesses as already stated, Muhammad Anwar (P.W.4) has appeared in Court and has faithfully supported her version. She was taken in that condition by him and his companion to her grandfather, Abdullah (P.W.2) to whom she narrated the whole affair soon after the occurrence. She was taken by him for medical examination and then for report about the allegations to the police station. He also produced before the police shalwar (Ex. PI) and torn shirt (Ex.P2) of Mst. Imrana Bibi which were taken into possession by the I.O. vide recovery memo (Ex.P.B.). Dr. Nasreen Kausar (P.W.l0) who medically examined her found the hymen of the examinee torn with fresh laceration on both sides. Blood was found oozing from them having one tear at the lower edge and according to the Medical Officer she had been subjected to sexual intercourse within 12 hours. It was also observed that the victim was not used to the act of intercourse and had no such experience before that incident. She took two swabs for semen analysis and according to the report of the Chemical Examiner (Ex.P.F.) the swabs so taken were found stained with semen and blood.

15. She was re‑examined by Dr. Razia (P.W.6) on 7‑10‑1984 and as a result of her examination, she found that she had been subjected to rape.

16. Mst. Imrana Bibi (P.W.1) as per her testimony had received injuries and abrasions on her back and also on her neck during the course of the act. Lady Dr. Nasreen Kau 3ar (P.W.10) has also found abrasions on the neck at the back and on the internal surface of her thighs. The lady doctor had also found her shirt and Shalwar torn at the time of her examination and the Shalwar (Ex.P.2) was found stained with blood and semen.

17. From all the above facts it becomes clear that the prosecution has succeeded in producing well‑connected, consistent and reliable evidence in order to bring home the charge against the accused.

18. The accused has taken the plea of false implication due to enmity and party faction but no material evidence is available on the record to support his such contention. He produced Muhammad Aslam, D.S.P. as a witness in his defence but his statement on the whole does not inspire confidence. It was also admitted by him in his cross‑examination that the opinion expressed by him. was not based on the testimony of the eye witnesses but was the result of his general investigation mainly based on defence evidence.

19. During the course of arguments much emphasis was laid by the learned counsel for the appellant on non‑compliance of the provisions of section 340, Cr.P.C. as amended by Ordinance XII of 1985 enforced on 21st February, 1985. He contended that having not been examined under the mentioned provision of law, the whole trial has vitiated as the omission to record statement of the accused on oath was an illegality and not an irregularity curable under section 537, Cr.P.C. He pointed out that by using the word "shall" in the said provision, it has been made obligatory upon the Courts to examine the accused on oath to give evidence in disproof of the charges or allegations made against him. The learned counsel in this connection referred to the case of Muhammad Qasim v. The State P L D 1986 Quetta 286 in which a Single Judge of Quetta High Court held that the non‑examining of the accused on oath under section 340(2), Cr.P.C. is not an irregularity which may be curable under section 537, Cr.P.C. as examining of the accused on oath is a mandatory provision of law. The learned counsel for the appellant also made a reference to the case of Rizwan v. The State P L D 1986 Lah. 222 in which a similar view was taken by the learned Single Judge of the Lahore High Court.

20. To appreciate this provision of law, it would be beneficial to reproduce the same which reads as under:‑

"340(2)‑‑ Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath disproof of the charge or allegations made against him or any person charged or tried together with him at the same trial.

21. It is thus evident that a right has been given to the accused person to give evidence on oath in disproof of the allegations made against him and there is no dispute about the fact that this provision is mandatory and is to be properly observed. But the facts of this case are quite different and distinguishable. Perusal of his statement under section 342, Cr.P.C. reveals that specific question was put to the accused as to whether he would like to appear as a witness in his defence and depose on oath but from his reply it is evident that he thought that exercise as unnecessary. It is evident from the record that he was represented by a counsel before the trial Court and as such was fully aware of his right but in spite of the opportunity so given he found it unnecessary to give statement on oath. No doubt, it is the duty of the Court to ask the accused whether he wanted to give evidence on oath but beyond that it is the discretion of the accused to avail the opportunity granted and to give a statement in the exercise of his such right but if he flatly refuses to exercise such right, there is nothing in the law either to force or compel him to give evidence on oath. The duty of the Court ends as soon as the accused is asked for that matter and if in spite of the opportunity having been extended, the accused does not choose to exercise his right under the mentioned provision of law, no irregularity or illegality shall be deemed to have been committed by the Court. A similar view was taken by a Division Bench of this Court in the case of Abdul Malik v. The State PLD 19E.5 FSC 293.

22. The learned counsel for the appellant next argued that the offence if committed by the appellant at the most attracted the provisions of section 10(2) and not section 10(3) of the Ordinance under which the conviction has been recorded by the learned trial Court. He submitted that there was no injury on the buttocks and shoulder of the prosecutrix showing that no force was used. According to him, the version about threatening her with a dagger had no basis and the medical evidence available on the record was also not providing clear corroboration to the allegation about the sexual intercourse committed with force. He submitted that the very time and place at which the occurrence allegedly took place showed that the prosecutrix had gone to the place of occurrence with her own consent and the story of subjecting her to Zina‑bil‑Jabr was the result of subsequent consultations and deliberations.

23. On consideration of the evidence on the record we have found no force in submission made by the learned counsel. The prosecutrix, Mst. Imrana Bibi, was a minor girl of 11 years of age and the evidence available on the record eloquently speak by itself that her case was not a simple Zina with consent.

24. The learned counsel has also referred to the statement of Muhammad Anwar (P.W.4) and has submitted that besides being a close relative his statement even otherwise was not reliable. It was pointed out that contrary to the version given in the F.I.R. he has stated in the trial Court that he found the accused running in the Bazar with a dagger. Similarly, according to the admitted facts, his village is at a distance of 3 miles from the place of occurrence and as such it was not believed that he had arrived at the place of occurrence on the very occasion of the incident in question.

25. No doubt, there are some minor discrepancies in the statement of this witness but they are not material. His statement, however, on the whole is confidence inspiring and the mere fact that his village is at a distance of 3 miles was not a proper ground to discard his testimony which on the whole is reasonable and confidence inspiring. It may also be pointed out that mere relationship of a witness with the complainant party will not make him an interested witness in the absence of any motive for false implication.

26. The upshot of the discussion is that a clear case against the appellant under section 10(3) had been established by the prosecution for committing Zina‑bil‑Jabr with an unmarried 11 years old girl, Mst. Imrana Bibi and was, therefore, rightly convicted by the learned trial Court on the mentioned charge. We accordingly maintain his conviction.

27. This will bring us to the question of sentence. Keeping in view the very young age of the appellant, we find ourselves in agreement with the learned counsel for the appellant that the sentence awarded is too se vere in the circumstances. The request made by the learned counsel for the appellant is not seriously opposed by the learned counsel for the State. We are, therefore, inclined to show some leniency in the matter of sentence. Accordingly, the substantive sentence of imprisonment of the appellant is reduced to 10 years' R.I. but the sentence of whipping is enhanced to 30 stripes regarding which notice for enhancement had been accepted by the learned counsel for the appellant. The sentence of fine imposed on him is, however, set aside.

28. With the above modification in the sentence, the appeal of the convict against his conviction is dismissed.

S.A./353/Sh. F. Appeal dismissed.

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