2002 PLP 2949 (YLR)

6. Lady Dr. Tahira appeared as P.W.8 and stated that she had conducted the medical examination of Shahzadi Saima Naureen, aged about 12 years on 18‑2‑1998 and observed as under:‑ "Hymen was torn and healed; Three vulvo vaginal swabs taken, sealed and signed in a bottle and handed over to police for analysis and grouping and blood typing; Vagina was admitting two fingers easily. Final opinion was deferred till the receipt of the report of Chemical Examiner, Report of Chemical Examiner is before me and I am of the final opinion that according to MLC No.21 of 1998 No. Chemical Examiner 2080 dated 31‑3‑1998, the swabs sent to Chemical Examiner were not stained with semen. Exh.P.E is the carbon copy of MLR of the examinee prepared and signed by me, whereas Exh.P.F is the report of Chemical Examiner and PF‑1 is my final opinion, prepared and signed by me". She was not cross‑examined by the defence although the opportunity was provided by the Court.

7. Sabir Hussain Shah, S.I. appeared as P.W. 9 and had narrated the details of investigation conducted by him and stated that on 17‑2‑1998 at about 8‑30 p.m. he recorded F.I.R., Exh.P.A at the instance of Shahzadi Saima Naureen which was read over to her and was got signed by her in token of its correctness. He also stated that she was got medically examined through F.C. Muhammad Rafique from Lady Dr. Tahira of District Headquarters Hospital Sargodha. He also stated that he had arrested the accused on 18‑2‑1998 from bus stop Varran Adda and recovered .22 bore pistol P.I alongwith 22 live cartridges P.2/1‑22 and cash of Rs.200 which he had taken into possession through memo. Exh.P.C and had separately challaned the accused under the Arms Ordinance. He also got the accused examined for his potency from Dr. Muhammad Latif and after completion of the investigation, challaned the accused to face his trial. He denied the suggestion that no case was registered at the police station and that he had falsely challaned the accused in this case under influence of one Naeem Ahmad who had a dispute with the accused/appellant over the rendition of account. Statements of the remaining witnesses more or less being of a formal nature, need not be discussed as the same have not been even challenged by the defence.

8. After close of the prosecution evidence, the statement of the accused/appellant was recorded under section 342, Cr.P.C. He denied all the allegations levelled against him and professed innocence. In reply to question No. 14, "as to why the P.Ws have, deposed against him" he stated as under:‑ "I am a gold smith by profession and went to Saudi Arabia. I earned a good fortune there. During my absence from the country my wife starting flirting. My brothers complained to me about her immorality so I took my family also to Saudi Arabia and started living there. I was living in a flat of Multi‑storyed building. One Mst. Nusrat Pakistani women who was a second wife of an Arab was also living in front of my flat in Hyle. Her husband used to work in Jeddah and Mst. Nusrat had no child till then. She developed friendship with my wife. Mst. Shahzadi my daughter was a growing child and her mother used to send her to the flat of Mst. Nusrat to sleep there because of the loneliness of Mst. Nusrat. I suspected that Mst. Nusrat was a woman of easy virtues and therefore I repremanded my wife not to send my daughter to her house. During the above period my daughter also adopted evil ways, therefore, I came back to Sargodha and started living here. I left all my assets in Saudi Arabia with my eldest son. During my stay in Saudi Arabia, I had been sending money to my wife at Sargodha. Her brother Naeem is a poor man. She gave my money to him for the purchase of a shop. I asked Naeem for the rendition of accounts. Naeem and my wife to avoid the rendition of accounts formed a group. I found that my daughter Shahzadi Saima was still following her bad pursuits. I married with my nephew but my nephew told me that he had found her an immoral girl. I had a quarrel with my wife and my daughter on this issue. My wife with the support of her brother Naeem has brought this false charge against me. I am a Muslim and cannot think of committing Zina with my daughter. I am innocent." He however, refused to appear and make a statement on Oath in his defence. According to him it was not necessitated, as the prosecution has failed to prove its charge against him. He however, opted to produce the defence evidence but subsequently he closed his defence without producing any evidence.

9. After the conclusion of trial, the learned trial Court found the appellant guilty and convicted and sentenced him as stated above. Hence this appeal.

10. We have heard the learned counsel for the appellant as well as learned counsel for the complainant and the learned counsel for the State and have perused the record carefully. Learned counsel for the appellant has vehemently argued that the statement of the victim, Mst. Saima Naureen regarding the commission of Zina- bil‑Jabr has not been corroborated by the medical evidence furnished by Lady Dr. Tahira, P.W.8, who after receipt of the negative report from the Chemical Examiner was unable to opine regarding the commission of Zina‑bil‑Jabr on the victim. He further stated that the statement of the victim was the result of influence of her mother and Mamoon who were inimical towards the appellant. He emphasised that in the case of this nature "due caution" was necessary to assess the evidence of the victim who was liable to be tutored by her mother. To substantiate his contentions, learned counsel placed reliance on the cases of Ghulam Muhammad v. The State, PLD 1984 SC 72 and Muhammad Akram v. The State, 1992 PSC (Criminal) 463.

11. Learned counsel for the complainant and learned counsel for the State controverted the contentions raised by the learned counsel for the appellant and submitted that prosecution has proved its case beyond any shadow of doubt against the accused by producing Mst. Shahzadi Saima Naureen, P. W.1, whose testimony was duly corroborated by Mst. Asma Naureen, P.W.2, another daughter of the appellant, having no enmity with him, coupled with the statement of the Lady Dr. Thira, P.W.8, who had materially supported the prosecution version.

12. We have given our anxious consideration to the submissions made by the learned counsel for the parties and have perused the case‑law cited at the Bar. We have critically and cautiously evaluated the testimony of the eye witnesses, furnished by Mst. Saima, Naureen P.W.1, the victim and Mst. Asma Naureen P.W.2. The narration of the occurrence rendered by P.W.‑1, Mst. Saima Naureen was consistent and cogent, and thus inspired confidence. She was not attributed any ill‑will or enmity against her father by the defence, mere suggestion that she had implicated the appellant/father, at the instance of her mother and one Naeem Ahmad, her maternal uncle, against whom, the appellant had a dispute, over the rendition of accounts sent by him from Saudi Arabia. The victim, while narrating the sad story had unequivocally stated that three years prior to the occurrence, when they were in Saudia Arabia, the appellant had subjected her to Zina‑bil‑Jabr, but the same was not disclosed to anyone except the mother, who opted to keep quite as they were out of Pakistan. The brutal act was again committed by the appellant with the victim (daughter) twice or thrice after shifting to Pakistan, but that too was also hushed up due to the threats of dire consequences hurled by the accused/appellant.

13. According to the victim, it was on 11‑2‑1998 that the accused/father was seen committing Zina‑bil‑Jabr on her by her mother and sister, Asma Naureen, who were attracted at the spot, on hearing her crises, but they were also threatened at pistol‑point, that they would be killed if they disclosed it to anybody. On 17‑2‑1998 the appellant again tried to commit Zina forcibly with her but the said attempt was foiled by the victim by resisting the same and raising alarm which made the accused/appellant to flee away from the spot. It was then that the matter was disclosed by her mother to Naeem Ahmad, her maternal uncle, who produced Mst. 5aima Naureen alongwith her mother at the police station whore the aforesaid case was registered against the appellant. This statement of the prosecutrix was duly corroborated by her sister Mst. Asma Naureen, P W.2 the other real daughter of the accused/appellant, who had also no grievance or enmity of her own against her father to falsely implicate him in this case. She has categorically stated before the Court that on 11‑2-1998, on hearing the cries of Mst. Sauna Naureen from her room, she alongwith her mother, Shahida Tabbasum, reached the spot and saw the appellant committing Zina on her, who was lying naked on the bed with her shalwar having been taken off. On seeing them, the accused stood up, took out a pistol and threatened to kill them if they disclosed it and went away. Both these witnesses were subjected to lengthy cross‑examination but nothing favourable to the accused could be brought on record. Mst. Asma Naureen, P.W.2, however, admitted that she had no knowledge of any other incident on 17‑2‑1998, although she remained present in her house the entire day. This admission of the witness was not substraction of the assertion of the prosecution, because it was not their case that Mst. Asma Naureen had also witnessed the said occurrence on the said date, as such it cannot be treated as a contradiction to be the version of P.W.1. The testimony of these two daughters P. W.1 and P. W. 2 stand further, corroborated by the evidence of Lady Dr. Tahira, P.W.8, whose observations to the effect that hymen was found torn and healed and vagina admitted two fingers easily, were sufficient for rendering necessary corroboration, as the victim was being subjected to sexual intercourse from the last about three years by the appellant. Notwithstanding the fact that report from the office of the Chemical Examiner about the swabs having not been found stained with semen is on record, but the observations of Lady Dr. Tahira, P. W.8, are enough evidence of the fact that Mst. Saima Naureoa, victim, in this case, had been subjected to sexual intercourse, it not many times, at least more than once. The opinion of the Lady Doctor lends corroboration to the statement of the victim, that appellant had been subjecting her to Zina since about three years prior to the lodging of report. Had the victim been leading an immoral life, appellant being father, would have come to know that fact‑‑‑and would have taken severe action against the culprit as well as his daughter. Apart from this fact the other important aspect is that for proving commission of Zina, penetration alone is sufficient for which the victim is always the best witness, because it is she who undergoes that act. Mst. Saima Naureen‑‑ victim categorically stated that appellant had committed Zina with her and during that process he had discharged as a result of which her clothes were stained with semen. Her statement in that regard was, categoric vouchsafing of the act of the penetration. That being so we are satisfied that non‑receipt of positive support from the office of the, Chemical Examiner, does not negate the ocular account furnished by P. W.1, and P.W.2 and the observation of the Lady doctor who had examined the victim.

14. The non‑production of Mst. Shahida Tabbasum, the mother of the victim as witness before the trial Court was also challenged by the defence but we are afraid that no adverse presumption could be drawn for withholding her statement, as her two daughters had already appeared and had made coherent statements against their father (the appellant), so the prosecution had given her up as unnecessary witness. It would not be out of place to mention here that the prosecution was not bound to produce all the P.Ws mentioned in the Calendar of witnesses, except which were necessary to prove the guilt of the accused. We therefore, brush‑aside this objection.

15. This has now been an established law that if the solitary statement of the prosecutrix/victim intrinsically rings true, then the reliance can safely be placed on her deposition, which would be sufficient for the conviction of the accused. We stand fortified, in this context by the observations of the Honourable Supreme Court in the case of Muhammad Akram v. The State PLD 1989 SC 742, wherein it was held that "mere opinion of a doctor, as in this case, would not weaken the testimony of the prosecutrix and would not for that reason necessitate any further corroboratory/supporting evidence for basing the conviction on her statement, if otherwise she appears to be reliable and her testimony inspires confidence." There is yet another case decided by Honourable Supreme Court which we would like to refer in support of our view, is, the case of Furrukh Ikram v. The State, PLJ 1987 SC 84, wherein Zina -bil‑Jabr was committed by a father on her step‑daughter who alongwith her sister had appeared as a prosecutrix before the Court and was relied on, for basing the conviction of the father under section 10(3) of the Ordinance. The above case being similar on all fours with the case in hand has also provided the necessary guidance in arriving at the collusion that the prosecution has successfully proved the guilt of the appellant in the case.

16. Adverting to the defence version that the appellant was falsely implicated at the instance of Naeem Ahmad, the maternal uncle of the victim with whom appellant had dispute over the rendition of the accounts, it is observed that it does not carry any weight and has no worth an the eyes of law, because neither the accused/appellant himself had appeared as witness of his own to make the statement on Oath to substantiate the said version nor he had produced any defence witness in proof of the charges against him, even otherwise in a normal course of events if any false, accusation was levelled against any innocent person, the first and foremost reaction would be, that he would swear by Almighty‑Allah or would make a statement on Oath to get him exonerated of such an heinous charge, but the accused/appellant has not resorted to any of the above two, alternatives, which had reflected adversely on his conduct. We, therefore, without being prejudiced over this omission of the accused/appellant, are of the view, that the defence version that the accused was falsely implicated under the influence and at the instance of one Naeem Ahmad, the maternal uncle of the victim was a mere assertion of the defence and thus had no substance in it to cast doubt on the version of the prosecution which stands proved through cogent, reliable and trustworthy evidence.

17. We have also gone through the facts of the cases cited by the learned counsel for the appellant which are materially distinguishable from the facts of the case in hand, because in the two cases cited supra, the relations between husband and wife, the mother of the prosecutrix, were strained and the spouses were living separately and the children from the said wedlock were being harshly treated by the father, against whom they had developed ill‑will and hatred, which made them to succumb to the desire of their mother to falsely implicate their father for such a heinous charge. All the above factors i.e. estrangement and separation of wife and hatred of the children due to harsh treatment of their father were prominently missing in this case, which was purely the result of a Satanic instinct of sexual lust of the appellant and nothing more.

18. The resume of the above discussion is that the prosecution has proved its case beyond any reasonable doubt against the accused/appellant. In our view appellant has rightly been held guilty, convicted and sentenced by the learned trial Court. There is no merit in this appeal, the same is dismissed. The benefit of section 382‑B, Cr.P.C. shall be extended to the appellant. N.H.Q./81/FSC Appeal dismissed.