1999 P Cr (PLP)

3. I have heard the learned counsel for the appellant and Advocate‑General for Province of Sindh for State. 'The learned counsel for the appellant has contended that there is an unexplained delay of about 25 hours in making the complaint and lodging the F.I.R. which is fatal to the case of prosecution; that there is clear conflict between the medical evidence, F.I.R. and deposition of the complainant/victim girl; that the complainant victim is not at all corroborated neither by the medical evidence nor by any ocular evidence available on the record; that there are discrepancies about the date of occurrence in the deposition vis‑a‑vis statements under section 161, Cr.P.C.; that the Shalwar of the victim as well as the appellant were not sent for the report of chemical analyser nor was the semen of the appellant procured for the report of serologist which is fatal for the case of prosecution; that the mattress and bottle of oil appearing in the evidence were not sent for the report of chemical analyser that the reliance has been placed for the point of delay on PLD 1994 FSC 34 and PLD 1988 FSC 3 and for the point of non‑availability of the eye‑witnesses, reliance has been placed on PLD 1989 PSC 198 and for non‑availability of documentary proof PLD 1984 SC

14. The learned Advocate‑General for the Province of Sindh for State on the other hand has supported the impugned judgment and has contended vehemently that statements under section 161, Cr.P.C. cannot be relied upon at the appellate stage especially when no suggestion was made to the witnesses for prosecution during cross at the trial stage; that the, victim was only that of 10 years of age according to the report of police surgeon and, therefore, she is not supposed to know the difference between the attempt of Zina‑bil‑Jabr and real commission of Zina and, therefore, the discrepancies on her part cannot set aside the entire story of prosecution; that two abrasions on the body of the victim indicate her resistance against the offender and external injury No.3 that is teeth bite marks on her cheek corroborate the deposition of the victim to the extent that an attempt of the commission of Zina had taken place; that victim girl is corroborated by medical evidence and finally that the victim is corroborated by P.W.3 to the extent of the presence of the appellant at the place of occurrence at the relevant time and that no suggestion for the tutoring the victim girl by her aunt or any other person has been made to the witness for prosecution, and therefore, this ground is not available to the appellant at this stage.

4. So far as the contention of delay in lodging of F.I.R. is concerned, it is an established view of superior Courts that in rape and attempt of rape cases delay in reporting is not fatal in case circumstances do indicate to the explanation of such a delay. In the present ‑case, it has not been challenged by the defence that Mst. Sakina (P.W.5), the mother of the victim girl, had gone to Quetta by leaving her at the house of her brother and that she returned on receipt of a telephonic message and then after her return the F. I. R. was lodged on 22‑11‑1995 at 16‑00 hours whereas incident had taken place between 15‑00 to 16‑00 hours one day earlier. Hence the delay of 24 hours is explained. After all the family honour in such cases is involved. It is very difficult for respectable families to decide as to whether such case may be reported or not. In case family decides to report such a case with a delay of few hours or may be a few days, instead of discouraging the victim of rape/attempt to rape and other related persons, they need a sympathetic treatment as they have decided to bring a culprit to the books at the cost of the honour of the family and future of a victim virgin female. This Court has condoned such delays upto few days and in this context I am fortified by principles enunciated in judgment cited as, inter alia, 1997 PCr.LJ 1107, 1997 PCr.LJ 1500, 1997 PCr.LJ 1485, 1997 PCr.LJ 1095 and 1998 MLD

257. Consequently this contention is replied.

5. The contention that Baby Sumera (P.W.1), complainant and victim girl of ten years of age, has a sole evidence against the appellant is misconceived. In fact she is completely corroborated by Dr. Nayar Haq (P.W.6) who examined her on 23‑11‑1995 and gave her expert opinion that the victim was subjected to sexual intercourse. The P.V. findings are:‑‑ "Valva bruised, Hymen thin, congested with small 9 O'clock position, Vestibule deeping congested. " This position of P.V. findings corroborates the victim girls' complaint per F.I.R. that a force was applied upon her private parts by the penis of appellant and per her deposition as P.W.1 that the appellant had used oil as well to facilitate in his designs for commission of Zina‑bil‑Jabr with a girl of ten years whose secondary sex character, according to the deposition of Dr. Nayar Haq (P.W.6), was not developed. The force of an oiled penis on the private parts of a victim girl must have generated a lot of pain and in this contest the victim girl herself is deposing as P. W.1 in the following words:‑‑ "Due to pain received by me, I raised cries." The victim is also corroborated by the medical evidence when she has deposed that the appellant bit her cheek with his teeth. Injury No.3 on the body of the victim as observed by Dr. Nayar Haq (P.W.6) is:‑‑ "Teeth bite mark on right cheek 1 c.m. 1/2 c.m. brown in colour." Again injury No. 1 namely abrasion below right elbow and injury No .2 namely abrasion on the back of right fore‑arm found on the body of the victim is indicative that she received these abrasions for having been forced to lie on a rough surfaced roof where the occurrence had taken place. The victim (P.W.1) is also corroborated by Amanullah (P.W.3) to the extent of the presence of the appellant at the place of incident at the relevant time and then hearing of the noise of victim calling him. Following piece of his evidence inspires confidence and indicates towards such a type of attempt of rape which had weakened the victim to an extent that she needed assistance to walk:‑‑ "I do not remember actual date and day, but it was 21st. I know accused Sampat, he visited the roof. When accused Sampat came on roof I went down, suddenly I have heard the noise of victim who was calling me. On the call of victim I went on there and accused was coming down with the victim holding the hand of the victim. The accused Sampat present in Court is same." Consequently this contention is rejected as misconceived.

6. All the other contentions for the appellant are irrelevant and do not dislodge the story of the prosecution in material particulars.

7. In view of the abovementioned reasons, the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubts. The impugned judgment is, therefore, upheld and the appeal is dismissed. H. B. T./1/FSC Appeal dismissed.