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Criminal Appeal No. 168/L of 1987, decided on 10th November, 1987.

---Ss. 10(3) & 16--Evidence, appreciation of--Zina-bil-Jabr-Prosecutrix 16 years old unmarried girl--Prosecutrix consistently deposing about her forcible abduction and rape by accused--Hymen found recently ruptured--Prosecutrix subjected to sexual intercourse but not used to it--Prosecutrix having no ill-will to involve accused or substitute him for real culprit--Another witness proving her recovery from accused--Defence plea of money dispute between brother of accused and father of prosecutrix not probable--Brother of accused not named as main culprit--Accused not appearing to make statement under S.340, Cr.P.C.--Defence plea found rightly rejected by Trial Court--Conviction maintained in circumstances.

Malik Nazar Farid Khokhar for Appellant.

Muhammad Akmal Salimi for the Complainant.

Faiz Muhammad Bhatti for the State.

Date of hearing: 10th November, 1987.

This is an appeal by Wazir Ali son of Muhammad, resident of district Okara, against the order, dated 1-6-1987, of the Additional Sessions Judge, Okara, whereby he was convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to undergo rigorous imprisonment for five years, to whipping numbering twenty stripes and to a fine of Rs.5,000 or in default of its payment to further suffer rigorous imprisonment for six months. By the same judgment he was also convicted under section 10(2) of the said Ordinance and was sentenced to suffer rigorous imprisonment for five years, to whipping numbering thirty stripes and to a fine of Rs.5,000 or in default of its payment to further undergo rigorous imprisonment for six months. The sentences of imprisonment were to run consecutively. He was given benefit under section 382-B, Cr.P.C. His co-accused, Sardar Ali was acquitted.

2. Mst. Bilqees, an unmarried girl of 16 years who was living with her father in village Dola Barhan, District Okara, went out of her house to ease herself at about Eshawela, on 22-8-1985. She was coming out of the cotton crop after easing herself when the appellant and his real brother, Sardar Ali (since acquitted) took her away by dragging her upto a distance of one acre. Thereafter, Sardar Ali went back while appellant forcibly took her away on a mare to a deserted Dhari of Muhammad Aslam near Mandi Hera Singh. The appellant repeatedly committed Zina-bil-Jabr with her until she was got released by her father, Muhammad Sharif and her brother-in-law, Bashir, P.Ws. On her statement, formal first information report was registered at Police Station Hujra Shah Muqeem, on 31-8-1985 at 8-00 p.m. After completion of investigation, the appellant and Sardar Ali were challaned in Court.

3. Lady Dr. Azra Parveen, Woman Medical Officer, Hujra Shah Muqeem, medically examined Mst. Bilqees, on 31-8-1985, and was of the opinion that rape had been committed with her. In cross-examination, she stated that her hymen was recently ruptured. She observed as follows:-

There was no injury on her breast, thigh, vulva or any other area. Her breast were fully developed and her auxiliary hair were present though scanty. Pubic hair were also present. She was menstruating at the time of examination.

Her internal examination was painful. Blood was present on vulva since she was menstruating. Her hymen was found recently ruptured with tags present.

4. At the trial prosecution examined, seven witnesses in all. Mst. Bilqees, deposed at the trial that after she was abducted by the appellant and Sardar Ali the appellant forcibly took her to a deserted house near Mandi Heera Singh where she was detained for about nine days during which period appellant repeatedly committed Zina-bil-jabr with her until her father and brother-in-law, Sharif and Bashir, P.Ws. got her released from him. Her brother-in-law, Bashir corroborated her. He deposed that he and Sharif, father of Mst. Bilqees, during the search got a clue and went over to the deserted Dera of Muhammad Aslam near Mandi Heera Singh where they saw the appellant who ran away and brought Mst. Bilqees with them. Lady Dr. Azra Parveen, supported the ocular testimony.

5. Wazir Ali, appellant, stated that he was falsely involved in this case because of dispute with his brother, Sardar Ali. Sardar Ali, since acquitted, stated in his examination under section 342, Cr.P.C. that he had a dispute with Sharif, father of Mst. Bilqees, who falsely involved him and P.Ws., were partisans. The appellant did not appear as his own witness nor he led any evidence in his defence.

6. It was argued before us that there was no evidence justifying conviction of the appellant. It was further argued that the lady doctor who medically examined the abductee gave no opinion because she was still waiting for the report of Chemical Examiner which was not produced before the Court. It was also submitted that the defence plea was probable because appellant had been falsely involved due to money dispute of his brother, Sardar Ali, with Sharif, father of Mst. Bilqees.

7. We were taken through the evidence in this case which has been perused by us. Mst. Bilqees who was victim in this case consistently deposed that she was forcibly taken away and was subjected to Zina by the appellant during the period she was illegally detained in a deserted house of one Aslam near Mandi Heera Singh. She had no ill-will of her own so as to falsely involve the appellant or substitute him for the real culprit. Her brother-in-law, Muhammad Bashir, corroborated her and proved her recovery from the Haveli. After her recovery lady Dr. Azra Parveen, medically examined he and found that her hymen was recently ruptured and she had been subjected to sexual intercourse but was not used to it. We are satisfied that the prosecution version was established. The defence plea was not probable. The appellant did not examine himself on oath to support his defence plea which was otherwise remote for dispute of father of Mst. Bilqees with Sardar Ali who would have been named as the main accused. It was rightly rejected.

8. For the above reasons, we find no merit in the appeal and dismiss it. The sentences on two counts shall run concurrently. He shall also get benefit under section 382-B, Cr.P.C.

S.A./371/F.Sh. Appeal dismissed.

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