1988 PLP 619 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--The petitioner was tried and convicted by the learned 1st Additional Sessions Judge, Karachi, under sections 363 and 376, P.P.C. in respect of an occurrence which took place on the night of 18th February, 1973. He was awarded a sentence of R.I. for 3 years under the first count and a sentence of R.I. for 7 years under the second count besides fine and imprisonment in default of the payment thereof. In an appeal filed by the petitioner a learned Judge of the Sind High Court maintained the convictions of the petitioner, but on the ground that he had been facing litigation in connection with the charges for a period of 11 years, the learned Judge reduced his sentence under section 376 P.P.C. from 7 years to 3 years and also gave him the benefit of section 382-B, Cr.P.C., vide judgment, dated 28th June, 1987.

2. In support of this petition for leave to appeal from the judgment of the High Court the main contention raised by the learned counsel was that as the medical evidence disclosed that the victim Mst. Alam Ara was used to sexual intercourse, the conviction of the petitioner under section 376, P.P.C. was not sustainable on the sole testimony) of the prosecutrix. After perusing the judgment of the High Court we find no force in this contention as the testimony of Mst. Alam Ara received support from the chemical analysis report that semen was detected on the shorts worn by the petitioner and the clothes of the girl. In any case this is a question of appreciation of evidence and there is no reason to disregard the view taken by the two Courts below that the testimony of the victim was inherently reliable. Even otherwise the learned counsel was unable to challenge the medical evidence that Mst. Alam Ara was of the age of 14 years on the date of commission of offence and therefore the conviction of the petitioner under section 363 is not open to any question. The consent of the victim, who has been proved to be a minor, has no material bearing on the case, on which the learned counsel stressed much. The, petitioner has already been given sufficient benefit by the High Court in reducing his sentence and giving him benefit of section 382-B, Cr.P.C. Learned counsel also contended that in view of the long delay in the disposal of the case, the petitioner is entitled to the benefit of his sentence being reduced to the one already undergone I by him. But as the petitioner has not placed on record the case diary, we are in no position to appreciate the justification for this argument, because the delay in the trial Court might as well have been due to the petitioner himself.

3. In the circumstances there is no merit in this petition which is accordingly dismissed. M.Y.H./A-169/S Petition dismissed.