2023 PLP 1134 (MLD)

AALIA NEELUM, J.

The appellant-Naseer Ahmad, son of Bashir Ahmad, caste Malik Taili, resident of Mirza Pur, Police station Faizabad, Tehsil and District Nankana Sahib, was involved in case FIR No.137 of 2016, dated 05.04.2016, an offence under section 376, P.P.C., registered at Police Station Faizabad, District Nankana Sahib and was tried by the learned Addl. Sessions Judge, Nankana Sahib. The learned trial court seized with the matter in terms of the judgment dated 08.11.2018, convicted the appellant-Naseer Ahmad under section 376, P.P.C. and sentenced him to undergo rigorous imprisonment for ten years with the direction to pay Rs.50,000/- as compensation under section 544-A, Cr.P.C. to the victim and in case of default in payment thereof, he would further undergo simple imprisonment for 06-months. The benefit of section 382-B, Cr.P.C. was also extended in favor of the appellant.

2. Feeling aggrieved by the judgment of the learned trial court, Naseer Ahmad has assailed his conviction by filing Criminal Appeal No.251444 of 2018.

3. The prosecution story as alleged in the FIR (Ex.PA/1) lodged on the written complaint (Ex. PA) of Akbar All (PW-1)-the complainant is that about 5-1/2 months before registration of the case, accused Naseer Ahmad committed Zina-bil-Jabar with her daughter- Fouzia Bibi, made her nude snaps and threatened her daughter that if she told this fact to anyone, photos would be uploaded on the internet. On 30.03.2016, the complainant's daughter told him in the presence of witnesses, namely, Muhammad Younas (given up PW) and Manzoor Ahmad (PW-3), that accused Naseer Ahmad committed Zina-bil-Jabar with her time and again, due to which she became pregnant. On asking of the same by the complainant, accused Naseer Ahmad admitted that he committed Zina-bil-Jabar with his daughter.

4. After registration of the case, investigation of this case was entrusted to Wali Muhammad S.I. (PW-6), who arrested the accused Naseer Ahmad, produced him to RHC Rehanwala for potency test, got the accused to judicial lockup and prepared incomplete and supplementary report under section 173, Cr.P.C. after that, investigation of the case was entrusted to Faqeer Muhammad A.S.I (PW-8) who investigated the matter, drafted unsealed site plan Ex.PE and produced the victim and accused-Naseer Ahmad, to the office of P.F.S.A, Lahore, for a D.N.A test. Muhammad Ashraf S.I (PW-9) also investigated the case and produced the victim, along with her newly born baby and accused-Naseer Ahmad, to the office of P.F.S.A, Lahore, for D.N.A. On 11.04.2017, the learned trial court formally charged the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as seven (10) witnesses.

5. Ocular account of the first part of the occurrence, in this case, came out from the statement of Akbar Ali (PW-1)/complainant, Fouzia Bibi, the victim (PW-2), whereas Manzoor (PW-3) and Muhammad Younas (given up PW) were the eyewitnesses of the alleged occurrence. Dr. Najma Parveen, Senior Woman Medical Officer (PW-7), deposed that Dr. Mehvish Saleem, Ex-WMO, DHQ Hospital, Nankana Sahib, conducted the medicolegal examination of victim Mst. Fouzia Bibi (PW-2) and issued MLC (Ex. PD), whereas Dr. Tafseel Ahmad, Medical Officer, RHC, Rehanwala (PW-5) got medically examined Naseer Ahmad-the appellant and Muhammad Moazzam (since acquitted) and issued MLCs (Ex.PB and Ex.PC). The statements of the remaining prosecution witnesses are formal in nature.

6. On 08.09.2018, the learned Deputy District Public Prosecutor gave up Muhammad Younas-PW being unnecessary and closed the prosecution evidence.

7. The appellant was also examined under section 342, Cr.P.C., wherein he neither opted to produce defence evidence nor appeared as his witness under section 340(2) of Cr.P.C. in disproof of the allegations leveled against him in the prosecution version. While replying to the question of why this case was against him and why the PWs deposed against him, the appellant made the following deposition: - "I was declared innocent by the police during investigation. Complainant was tenant of my Taya and having adjacent land with my Taya, I have civil litigation with my Taya Muhammad Zubair. Being tenant of my Taya, I have been implicated falsely by concocting an afterthought story by the complainant and my Taya. I am married person having a child. Complainant demanded Rs. 5,00,000/- for not involving me in this case and on my refusal, complainant implicated me in this case in connivance with his daughter Fouzia Bibi. I was not nominated in the FIR. Neither the complainant nor the witnesses disclosed my name in the statements before the court."

8. The learned trial court, after recording evidence and evaluating the evidence available on record in the light of the arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms.

9. The learned counsel for the appellant submits that the appellant is not challenging the finding of conviction against the accused-appellant for the offence under section 376, P.P.C. but submits that the sentence awarded to the appellant may be reduced to the period already undergone. Learned counsel for the appellant also submitted that the victim was a willing consenting party who had eloped with the appellant and wanted to marry the appellant. Further, it is submitted that the accused-appellant has been behind bars since 2016; therefore, he may be released by reducing the sentence to the period already undergone.

10. Per contra, the learned Public Prosecutor opposed the prayer and submitted that looking at the seriousness of the case, no lenient view is required to be taken against the accused-appellant because an innocent girl of 14/15 years was not only raped by the appellant, but she got pregnant and after that gave birth to a child and DNA profile of the said child was matched with the appellant and prosecution has proved its case beyond a reasonable doubt. Therefore, this appeal may be dismissed.

11. After hearing the learned counsel for the appellant and learned Deputy Prosecutor General, I have perused the entire evidence. I have considered the arguments of the learned counsel for the appellant to reduce the sentence and examined the evidence on record.

12. The appellant was accused of and convicted of raping Fouzia Bibi (PW-2)-the victim who, according to the prosecution, was 14/15 years of age at the time of the commission of the occurrence. Fouzia Bibi (PW-2)-the victim deposed during examination-in-chief as under: "We used to live in the house of my maternal aunt Rasoolan Bibi at Mirza Pur. My aunt has six daughters and one son namely Naseer Ahmad present in the court. Out of them five daughters are married and one daughter namely Misbah is unmarried. On another day, accused Naseer Ahmad asked me to commit Zina with him. On my refusal, he intimidated me that Moazam had told him everything about his committing Zina with me and if I did not commit Zina with him, he will inform my parents. Accused Naseer Ahmad committed Zina-bil-Jabar with me forcibly and took my snaps and threatened me that if I told this fact to anyone, he will upload my naked snaps on internet. He then committed Zina with me time and again. I became pregnant as result of Zina-bil-Jabar by both the accused Naseer Ahmad and Moazam. After 5-1/2 months, my cousins Fiza and Misbah took me at Faizabad for abortion but the nurse told that if abortion is made, there are chances of my death. After my return to home, I told all the facts to my parents and my relatives namely Manzoor and Younas. Accused Naseer Ahmad confessed his guilt before all of them and said that do whatever you can. My father got lodged the case". While going through the cross-examination of this witness (Fouzia Bibi (PW-2)-the victim), it was proved that the appellant raped her. As a result, she became pregnant has been reaffirmed, and the defence could not extract any material which would affect the veracity of the testimony of this witness. Fouzia Bibi (PW-2)-the victim deposed during cross-examination as under: "It is correct that when I first time told my father about the occurrence; my father reported the matter to police. After the 5-1/2 months I told first time to my father regarding the occurrence. It is correct that I became pregnant then I told my father regarding the occurrence. It is correct that I along with my cousins Fiza and Misbah went to a lady doctor for abortion. It is correct that lady doctor advised me that due to long pregnancy, abortion cannot be conducted as there would be a danger to my life. After refusal of lady doctor for conduction abortion then I told this story to my mother and father. We went to lady doctor on motorcycle driven by Naseer Ahmad accused alongwith my cousins Fiza and Misbah. It is correct that I narrated the facts to my father who told the same to police in my presence and thereafter case was registered".

13. As stated hereinabove, the factum of the sexual intercourse by the appellant with Fouzia Bibi (PW-2)-the victim, came to light after five and a half months after the occurrence when cousins of Fouzia Bibi (PW-2)-the victim, namely Fiza and Misbah took her to Faizabad for abortion where the nurse told her that if abortion was made, there were chances of death. She (PW-2) informed her father, i.e., Akbar Ali (PW-1), on 05-04-2016. Dr. Mehvish Saleem medically examined the victim, and she opined that Fouzia Bibi (PW-2) was carrying pregnancy of 22 weeks. After the FIR was registered, a male child was delivered on 21.08.2016. The blood sample of the victim, the newborn baby, and the appellant was collected in the DNA unit, P.F.S.A, Lahore. The forensic analysis report (Exh. PJ) reveals the appellant is the biological father of the newborn because they share alleles at all genetic markers tested. Therefore, the appellant was the biological father of the child.

14. In this regard, it would be relevant to refer to the testimony of Muhammad Ashraf S.I. (PW-9). Muhammad Ashraf S.I. (PW-9) deposed during examination-in-chief that: "On 11.08.2016, I received directions from the high ups that victim of the case was about to undergo the delivery of the child after 7/8 days, therefore, D.N.A test of accused, victim and child be conducted accordingly. On 21.08.2016, a child was born to the victim of the case. On 01.09.2016, I produced victim, accused and newly born child of the victim to the office of P.F.S.A, Lahore and got conducted D.N.A test accordingly".

15. Dr. Najma Perveen (PW-7) deposed during examination-in-chief that: "As per report of P.F.S.A No.0000297500 dated 02.02.2017 D.N.A report of new born body and Naseer Ahmad were obtained and paternity testing was performed and found matched".

16. In reply to question No.8 put in his examination under section 342 of the Criminal Procedure Code, the appellant stated as under: "The complainant is my real Mamun. The complainant with all his family consisting of about 07 members and my family consisting of 08 members had been jointly residing in the same house. I and alleged victim Fouzia Bibi being cousins had good relations. I and Fouzia Bibi wanted to marry with each other whereas the complainant, as a greedy person demands from my parents a plot of ten marlas in consideration of my marriage and half portion of that house in which the both families were residing was refused to hand over to the complainant. Due to this reason, the complainant falsely lodged this case against me. The complainant and his wife had knowledge of this relationship between me and Fouzia Bibi from the very first day. Fouzia Bibi also wanted to marry with me and that is why the complainant along with his family including Fouzia Bibi remained silent for long time. Fouzia Bibi being sui jiuris, with love and affection acted all these things willfully. Fouzia Bibi with her wish gave birth a baby to force her parents to acknowledge the relationship and formal marriage but due to greediness of her parents, the marriage was not formally entered but according to Muslim Laws, I and Fouzia Bibi acted all these things considering themselves as husband and wife. I have not committed any offence. Due to pressure of complainant, Fouzia Bibi gave statement against me. I am innocent".

17. Faqeer Muhammad ASI (PW-8)-investigating officer deposed during cross-examination that: "I cannot tell that accused Naseer and victim Fouzia Bibi were consenting parties being cousins and being living in the same house. It is incorrect to suggest that this case is not falls in a rape case rather it is a case of fornication and I being I.O on the pressure of high ups did not correctly investigate this case purely on its merits".

18. However, no such suggestion was given to Fouzia Bibi (PW-2)-the victim, even though the appellant cross-examined her. Without any suggestion to Fouzia Bibi (PW-2)-the victim, the appellant cannot take a plea that the victim was a consenting party. Thus, because the suggestions about the allegation of sexual intercourse committed by the appellant were not seriously challenged; instead, a suggestion was given to Faqeer Muhammad ASI (PW-8)-investigating officer, and stated by the appellant in his statement under section 342 Criminal Procedure Code that all this was with Fouzia Bibi (PW-2)-the victim's consent. To her liking, it is established that the appellant committed sexual intercourse with Fouzia Bibi (PW-2)-the victim. Moreover, it is difficult for a young girl of 14-15 years to level the allegation of rape, particularly when she alleges her pregnancy was owing to sexual intercourse by his cousin. I do not find any reason to disbelieve Fouzia Bibi (PW-2)-the victim's testimony about the sexual intercourse by the appellant with her, which is fortified by the appellant's defence and DNA report Exh. PJ. Thus, it is proved that the appellant had sexual intercourse with Fouzia Bibi (PW-2)-the victim, as is the case of the prosecution.

19. Fouzia Bibi (PW-2)-the victim, in her statement before the court recorded on 23.02.2018, gave her age as 16/17 years, although it was after one year and ten months of registration of the case. The FIR was registered on 05.04.2016, and her medical examination was conducted on 06.04.2016, wherein again, she gave her age as 15 years. Fouzia Bibi (PW-2)-the victim recorded her statement under section 164 of Criminal Procedure Code 1898 in the Court on 14.04.2016. Here again, she gave her age as 14/15 years. The defence had not questioned the age of the victim. The victim's age was not challenged by the defence during evidence nor at any forum. Thus, given the benefit of the doubt and taking the maximum age as per the medical opinion, the victim was less than 16 years on 05.04.2016. Consequently, on the date of the alleged rape, that is, in December 2015, the victim was about 15 years of age. The victim at the time of the incident was between 15 to 16 years old and thus incapable of giving consent.

20. The tenor of the cross-examination, no suggestion was being put to PW-2 (the victim) that she had physical relations with the appellant at her will. Instead, she replied to the question, "I did not get recorded any statement before police. My statement as recorded by the court was the same which I narrated to my father". Faqeer Muhammad ASI (PW-8)-investigating officer while giving a reply to the suggestion deposed during cross-examination, that "It is incorrect to suggest that this case is not falls in a rape case rather it is a case of fornication and I being I.O on the pressure of high ups did not correctly investigate this case purely on its merits" which goes against the appellant's plea of consent to the sexual act by the victim. In the statement under section 342, Criminal Procedure Code 1898, the appellant could not take hot and cold. In reply to question No. 8, the appellant blew hot and cold at the same time; he said, "Fouzia Bibi also wanted to marry with me and that is why the complainant along with his family including Fouzia Bibi remained silent for long time. Fouzia Bibi being sui juris, with love and affection acted all these things willfully. Then he said. "The marriage was not formally entered but according to Muslim Laws, I and Fouzia Bibi acted all these things considering themselves as husband and wife." On the day the accused-appellant committed the offence under section 376, P.P.C., the victim was less than 16 years of age. Before the Court, it was explicitly said by the victim PW-2 that the accused-appellant committed rape with her. In the cross-examination, Fouzia Bibi (PW-2) the victim, categorically proved that rape was committed with her by the accused-appellant and under the threat that if the fact is disclosed to any person, her naked pictures would be uploaded on the internet. The case falls within the definition of section 375, P.P.C. The medical evidence corroborates the allegation of rape. Thus, the delay in lodging the FIR is of no consequence. I find no reason to disbelieve PW-2 testimony. Therefore, the appellant has committed a very heinous offence for which no lenient view can be taken against the appellant. In my opinion, in the present case, the evidence produced by the prosecution and the statement of the victim loudly speaks that the learned trial court has committed no error in punishing the accused-appellant for a period of ten years imprisonment for the offence committed by him under section 376, P.P.C., therefore, the appeal in hand stands dismissed. MH/N-8/L Appeal dismissed.