P L D 1980 Peshawar 139 (PLP)

During the trial the prosecution did not produce Mst. Bibi Hoora though her statement under section 164, Cr. P. C. had also been recorded. No reason was, however, given by the prosecution for holding her back. Mst. Hussan Bano also could not be examined as she was too tender in age to understand and give rational answers to the questions asked from her. The prosecution relied mainly on the testimony of the complainant Rustam Khan (P. W. 1) and Mst. Khatam Jana Bibi (P. W. 3). Besides, Incharge Head Constable, Police Post Takwara and the lady doctor were examined as prosecution witnesses. Rustam Khan was examined on 26-7-1977 but in the course of cross-examination the proceedings had to be adjourned to be continued on the next date as he was not feeling well, allegedly due to headache. In his statement Rustam Khan did riot give the age of Mst. Khatam Jana Bibi though somewhere in its beginning he did say that she was minor during the days of occurrence. He took a somewhat opposite stand in Court when he said that on the arrival of Khatam Jana his wife told him that she was informed by the girl that both the accused had taken her inside the kotha and had raped her but since he was in bad shape he could not lodge his report immediately; that it was on the morning of the third day of the occurrence that he felt better and, therefore, proceeded to the police post for report at rotiwela. He admitted that his maternal uncles, namely, Inayatullah and Sarwar, former having two grown-up sons, lived in the same village. In fact their houses were adjacent to his house as also the house of Pir Jaffar Shah, father of Mst. Hussan Bano who was accompanying the girl on the day of occurrence. He also admitted having stated before the police that when his daughter made hue and cries "the accused had left her without committing rape". Now the reasons given by the complainant for lodging a report o an incident of this nature, on the third day, do not seem to be convincing. In case he was really sick he could have easily deputed for this purpose, one of his maternal-uncles or cousins, who lived in his closest proximity. It is also obvious that these persons would have naturally heard about the occurrence, at least 'from the womenfolk, if Mst. Khatam Jana had disclosed the same to her mother or father on the same day. He was admittedly feeling quite well on the morning of 16-11-1976 yet he lodged the report at the police post in the evening as late as 5-00 p.m. and even then he charged the accused only for insulting his daughter with intent to outrage her modesty. He belongs to a part of the country where, for much lesser crimes, murders are committed. Therefore to sleep over such an incident for two to three days would call for more gullible an explanation to be believed. Presence of semen on shalwar despite the same having been washed on the second day of occurrence is a circumstance, which is no less intriguing. Now the statement of Mst. Khatam Jana is also not very inspiring. She says that when she reached home she narrated the entire story to her mother and had shown her the clothes she was wearing which were smeared with blood and semen but had not gone near her father at all on that day nor on the following day; that right up to the time when he left the house for report, she did not say anything to him though she disclosed everything to her mother but did not know whether her mother had informed her father or not. To the suggestion of the defence that she was obliged to inform her mother when the latter became suspicious on seeing stains of blood and semen on her clothes, she replied thus: "It is not correct to suggest that when I was washing my clothes my mother got suspicious and then I told to her all the story." She admitted that Pir Jaffar Shah father of Hussan Bano was their neighbour who frequently visited their house but strangely enough he did not call on them either on the day of occurrence or on the following days. Now if it is true that she had told all the details of the incident to her mother immediately on her return from the fields and according to her father she (Mst. Bibi Hoora) had in turn disclosed everything to him then there was no reason for him not to disclose the entire story at the time when he lodged the report at the Police Post. It appears that the main question raised before the learned Magistrate by the defence was the question of age of Mst. Khatam Jana. The learned Court was of the view that since the lady doctor had given her age to be 16 years and she had not been cross-examined on the point of age, her statement on this point would be deemed to have been admitted. It was also held that the statement of the lady doctor as regards her age was corroborated by the statement of the girl and her father who had both said that she was below 17 years. And even if it was conceded that she was a consenting party this would not help the accused because she was minor and her consent would be meaningless. Absence of any marks of violence on her person was explained away by saying that since she had been raped by two persons of young age and good physique, who were armed with daggers, it was not possible for her to resist them. The learned Sessions Judge, D. I. Khan on appeal maintained the conviction of the petitioners by a rather terse one and a half page judgment dated 17-8-1978. He observed that there were very minor and negligible discrepancies in the prosecution evidence and since the report was to be made by her father and not by her and he was not well, therefore, there was no question of any delay in the making of the report. The girl according to him was admittedly minor as stated by the lady doctor, who gave her age to be 16 years, thus, the offence of rape, with or without consent, stood proved. Mr. Mohammad Ishaq Khan Kundi, learned counsel for the peti?tioners, was candid enough not to dispute the occurrence but says that in all probability it happened with her consent and since there was led no evidence by the prosecution to show that Mst. Khatam Jana Bibi was a minor girl, the conviction of the petitioners was liable to be set aside. He contends that in order to prove a charge under section 376, P. P. C. in a case of this type, the onus lay heavily on the prosecution to prove her minority, beyond any shadow of doubt. It is urged that it does not appeal to reason that Rustam Khan complainant could not report the matter until third day of occurrence because he was allegedly sick. He should have made a report through any of his relations, who, according to the prosecutrix, were admittedly living in the same village, in fact, in houses adjacent to his house and even when he reported the matter on the third day of occurrence he had given only half the story; that it appears that Mst. Khatam Jana Bibi was herself trying to protect the accused; that Mst. Bibi Hoora was the natural channel of communication between Mst. Khatam Jana and her father, but she for reasons known only to the prosecution, has been held back. There was no evidence to show that force was used. Thus in the circumstances, charge under sec?tion 376, P. P. C. was not proved against them. It is clear that by far the most important question to be determined in this case is the' question of the age of Mst. Khatam Jana. Her age, recorded in the descriptive part of the report of the lady doctor, is "16 years". . May be that this was given by Mst. Khatam Jana herself. Similarly her age recorded in her own description by the learned Magistrate is 17 years. May be that this was also given by her or may have been recorded by the learned Magistrate from his own impression. It is surpris?ing that not a single question was asked by the prosecution either from the lady doctor or from Mst. Khatam Jana Bibi about her age. Now in her statement which is nothing but a reproduction of her report (Exh. P. B.), the lady doctor has given no reason for her opinion of the age of the girl. The girl had not been examined 'for the purpose of ascertaining her age. In a case falling under section 376, P. P. C. the question of the age of the girl always becomes of the greatest importance, particularly when there exist circumstances to show, that she was not an unwilling party to the act of sexual intercourse. The learned Magistrate has accepted this report of the lady doctor on the ground that she had not been questioned and therefore that part of the report which gave the age of Mst. Khatam Jana Bibi as 16 years will be deemed to have been admitted. I regret that it would be difficult for me to base conviction upon this type of evidence. The lady doctor, in her statement, has said nothing with regard to the age of the girl. Thus there was no necessity for the defence to question the lady doctor on this point. Mere mention of age, only in the descriptive part of her report, and which cannot be tested for wan of any reason in support thereof, would not be conclusive evidence of the age of the girl. Now if there is no evidence or if the medical evidence cannot be acted upon for the purpose of basing the conviction then there is precious little upon which a finding can be given that at the time of incident Mst. Khatam Jana was below the age of 17 years. To say that since the complainant had in his statement said that the girl was minor or Khatam Jana had given her age in the introductory part of her statement as 17 years or for that matter the lady doctor had similarly noted her age in her report as 16 years and since defence had not questioned it, it should be deemed to have been proved that the girl was below 17 years of age, is beyond comprehension. Mst. Khatam Jana has nowhere claimed herself to be a minor. Only in the introductory part of her statement which reads "Statement of P. W. Mst. Khatam Jana Bibi daughter of Rustam Khan caste Bazid Khel, aged about 17 years, resident of village Mirbazi on SA" her age is recorded as 17 years, presumably given by her as such, but then there is nothing whatever in the substantive part of her evidence in this regard. Nor was she referred by the prosecution or for that matter by the trial Court, for determination of her age, to a radiologist. The onus of proof in such cases is always on the prosecution and never shifts to the other side, and if the prosecution did not produce the evidence which it could, the accused can be taken I advantage of this failure. For a charge under section 376, P. P. C. III is incumbent on the prosecution to prove beyond shadow of doubt that the girl, at the time of the commission of the offence, was actually below the age of 17 years. The convictions of the petitioners, therefore, in this case are to be set aside. The only question would be whether the sexual intercourse had been done against her will or with her consent as required by clauses (i) and (ii) of section 376, P. P. C. The other clauses do not apply to the present case. The fact that the girl bore no marks of violence on her person though she was raped by two young men, one of whom, during the act, according to her own statement, kept standing outside the door of the kotha, would rather show her to be a willing party. She herself say that it was after the act had been done that they drew out the daggers and forbade her, on pain of injury, to disclose the incident to anyone. If she was not a willing party she would not have given only half the story to her father. The report made by him would then have been different. The defence suggestion that on the third day of the occurrence, presum?ably when she was washing her clothes, her mother noticed blood an semen stains on them and persisted in finding out their origin that Mst. Khatam Jana was compelled to give some sort of an explanation to her, does not seem to be entirely unfounded. The learned Magistrate was prepared to concede that even if she was a consenting party the offence against the accused would be proved because she was minor. I have already said that prosecution did not prove that she was minor, therefore, if she was a consenting party then there would be no question of an offence under section 376, P. P. C. Now for her story that she had been raped against her will and without her consent and then threatened of dire consequence if she disclosed the incident to anyone, we have no evidence except the mere word of the girl. Lack of any marks of violence whatever on her person, in the absence of any evidence on record that she was of poor physique, her disclosure of the incident only when stains of blood and semen were detected by her mother at the time when she was washing her clothes and that was also not the whole truth, are circumstances which by no means can be ignored. It appears more probable that she was a willing party, therefore, it would not be safe to say that she was assaulted against her will or without her consent. As I have found that there is no evidence to show that the girl was below the age of 17 years and as I am further satisfied that she was not an unwilling party to the sexual intercourse with one or both of the accused, the conviction of the petitioners must be set aside. I, therefore, set aside their conviction and sentences. They shall be released forthwith unless required in some other case. S. A. H. ????????? ??????????????????????????????????????????????????????????????????????????????????? Petition accepted.