2003 P Cr (PLP)

5. On 16-9-2000, Dr. Asifa Shikrani, W.M.O. P.W.6 medically examined Mst. Jannun and observed as under:-- At the time of examination she was drowsy in condition but responding to vocal command and telling about the story. On record of vital signs pulse was 140/p.min. and temp: 101 Fo. No mark of violence seen on the body. Shalwar stained with the blood. On local examination, no mark of violence seen on legs but internal sides of both thighs were stained with blood. On P.V. examination pubic area stained with blood and swollen. Hymen tore and fresh blood coming out of vaginal wound. Tear extending towards the anus in mid line: Vagina admit one finger tightly with severe pain. Two swabs, one external and one internal and a piece of Shalwar were taken and handed over to police to send to the Chemical Examiner, Multan, for detection of semen. In the opinion of the lady doctor, rape was committed with the girl within 6 to 12 hours. As per report of the Chemical Examiner, swabs were stained with semen and she was of the considered opinion that the rape was committed with the victim.

6. On 22-9-2000, Dr. Farhat Abbas Mohsin P.W.1 medically examined Abdul Razzaq accused/appellant and vide his medico-legal report Exh.P.A., he was of the opinion that the accused was capable to perform sexual intercourse.

7. To prove its case at the trial, the prosecution examined twelve witnesses in all, namely Dr. Rahat Abbas Mohsin, CMO, THQ Hospital, Ahmadpur East (P.W.1), Muhammad Siddique H.C./Moharrer P.W.2, Mureed Hussain, Chemical Examiner P.W.3, Khurshid Ahmad complainant P.W.4, Fida Hussain P.W.5, Lady Dr. Asifa Shikrani, WMO, P.W.6, Shabbir Ahmad P.W.7, Malik Mithu, P.W.8, Waheed Abbas goldsmith P.W.9, Mst. Kalsoom Bibi P.W.10, Mst. Jannun Bibi/victim P.W.11 and Qazi Riaz Ahmad S.-I./S.H.O. P.W.12. Dr. Rahat Abbas Mohsin P.W.1 found the accused/appellant to be capable to perform sexual intercourse. Muhammad Siddique P.W.2 handed over one sealed envelope alongwith three sealed vials from Malkhana to Mureed Hussain constable for onward transmission thereof to the Office of the Chemical Examiner, Multan. Mureed Hussain Constable P.W.3 delivered the abovesaid parcels intact in the office of the Chemical Examiner on 23-9-2000. Ocular account was furnished by Khurshid Ahmad P.W.4, Fida Hussain P.W.5 Shabbir Ahmad P.W.7, Malik Mithu P.W.8 besides Mst. Kalsoom P.W.10 who accompanied the victim at the time of occurrence and her ear rings and nose pin were snatched by the accused and she also identified the accused to be culprit, Mst. Jannun Bibi P.W.11 was the victim of the offence. Lady Doctor Asifa Shikrani P.W.6 medically examined Mst. Jannun/victim and, opined that rape was committed with her. Waheed Abbas P.W.9 is goldsmith who purchased pair of earrings P.2(1-2) and a nose pin P.3 belonging to Mst. Kalsoom from Abdul Razzaq accused/appellant and also made entry in his register P.4 in this respect and produced the same before the Investigating Officer, who took the same into possession vide memo.. Exh.P.G.. Qazi Riaz Ahmad, S.I./S.H.O. P.W.12 investigated the case, the details whereof have been given in para 4 above. The prosecution also tendered in evidence report of Chemical Examiner as Exh.P.J. and that of the Finger Print Expert as Exh.P.K.

8. In his statement under section 342, Cr.P.C. the accused/appellant denied all the allegations levelled against him and in reply to question "why this case against you?" he stated as under:-- "A quarrel took place between me and the complainant party on the issue of irrigating water and Shabbir P.W. had a dispute with me on my wages as I had been working as cleaner at his Mazda Bus. Mali Bashir Ahmad Lambardar ex-Councillor was also inimical to me as we did not support him in the last local bodies elections, resultantly he was defeated by his opponent to whom we cast our votes. He also played an important role to get me involved in this case falsely on the asking of complainant party. It is a fact that the complainant party and myself alongwith my family are known to each other and we are, neighbours." As regards the question in respect of the depositions of the P.Ws. against him, the accused/appellant answered in the following words:-- "All the P.Ws. are related inter se. They are interested witnesses and inimical to me due to previous grudge of turn of irrigating water. (Warabandi) and quarrel on the issue of wages with Shabbir P.W. They got me involved in this case falsely. In fact I have committed no offence and I remained present throughout the day of alleged occurrence at the house of Ghulam Hussain P.W. on the eve of death of his daughter Mst. Aziz Mai." The accused/appellant pleaded his innocence. He did not appear as his own witness in defence as contemplated by section 340(2), Cr.P.C. however, 'he produced four D.Ws. in his defence. Ghulam Hussain D.W.1 is the father-in-law of appellant' sister Mst. Hajran and his daughter Mst. Hameeda Mai is the wife of appellant's brother Muhammad Sadiq. Ghulam Hussain D.W.1 stated that the accused appellant alongwith his family members remained present at his house because of the death of his daughter Mst. Aziz Mai from 8/9 a.m. on 16-9-2000 till noon of 17-9-2000. Khadim Hussain D.W.2 is the brother of Ghulam Hussain D.W.1. He also stated that the accused/appellant came to the house of Ghulam Hussain on 16-9-2000 at about 8/9 a.m., the day of death of latter's daughter, and remained there till 2-00 p.m. on 17-9-2000. Both these D.Ws., however, admitted that when the Thanedar did not record their statements with regard to innocence of the appellant, they did not approach any Court of law or senior police officer in this behalf. Shams-ud-Din D.W.3, a paternal uncle of accused/appellant and Muhammad Sadiq P.W.4, brother of the accused/appellant, also deposed as the presence of appellant at the house of Ghulam Hussain on the day of occurrence in connection with the funeral rites of Mst. Aziz Mai, the daughter of Ghulam Hussain D.W. D.W.3 further stated that a quarrel between Khurshid Ahmad/complainant and Pir Bakhsh alias Phullan P. W. on the one hand and the complainant on the other hand had taken place on diversion of water by the complainant party to their land ten minutes before the Warabandi, wherein he (D.W.3) sustained injuries at the hand of Khurshid Ahmad complainant who was then given beating by the accused/appellant. Muhammad Sadiq D.W.4 added that Abdul Razzaq/appellant served as cleaner at the Mazda of Shabbir Ahmad and a dispute in relation to wages arose between Shabbir Ahmad P. W. and the appellant. However, both the D.Ws admitted that they never approached any higher police officer or Court of law for having recorded their statements in favour of innocence of the accused/appellant, when they failed to have the same recorded by the Thanedar.

9. I have heard the arguments of the learned counsel for the parties and perused the record.

10. From the minute scrutiny of the record it reveals that the occurrence has been proved by the statement of the victim, supported by the statements of the eye-witnesses and also corroborated by the medical opinion and the Chemical Examiner report and recovery of blood-stained Shalwar of the victim.

11. The learned counsel for the appellant contended that the Identification Parade of the accused has not been conducted and none of the prosecution witness had identified the accused/appellant before deposing in the Court.

12. The Identification Parade is held not as a rule of law, but as rule of prudence to eliminate the possibility of any mistake. Reliance can be placed on case of Muhammad Aslam v. The State 1996 PCr.LJ 287 (Lahore).

13. The accused/appellant was arrested by the Investigating Officer from the place of occurrence. The victim had recognized him with whom this brutal act was committed. The goldsmith to whom the accused had sold the theft property earrings, etc. of Mst. Kalsoom had also identified him. The learned counsel for the appellant has relied on case of Farman Ali v. The State 1997 SCMR 971 to contend that the identification test becomes necessary where the name of the culprits are not given in the F.LR: Holding of such test is only a check against false implication but is a good piece of evidence against genuine culprits. In the instant case the witnesses when heard the cries of the victim with whom the offence of Zina was being committed by the accused/appellant, reached the spot and had seen the accused/appellant and on seeing them the accused/appellant had run away. Mst. Jannun and Mst. Kalsoom both had recognized him in the Court and in such circumstances there is no necessity of conducting Identification Parade. It was not a night time occurrence in which the Identification Parade was required.

14. The prosecution case is based upon ocular account, medical evidence, medical report, expert opinion/Chemical Examiner Report and recovery of snatched ornaments.

15. After having considered these circumstances and given anxious consideration to all the aspects of the case I am unable to find any, extenuating circumstances that can be urged in favour of the accused/appellant. The prosecution had successfully proved its case by producing ocular, recovery and medical evidence.

16. The appellant when examined under section 342, Cr.P.C. had taken the stand that at the time of occurrence he remained the whole day and the next coming night in the house of Ghulam Hussain, whose daughter Mst. Aziz Mai had died. The accused/appellant produced Ghulam Hussain D.W.1, Khadim Hussain D.W.2 Shamsuddin D.W.3 and Muhammad Sadiq D.W.4. Shamsuddin D.W.3 is the uncle of the appellant. Mst. Hajran, sister of Abdur Razzaq, is wife of son of Ghulam Hussain D.W.1, D.W.2 is also close relative of the accused/appellant. These defence witnesses did not appear before the police during) investigation of the case in defence of the appellant. The D.W. Shamsuddin had admitted that neither he entered into the Police Station nor made any statement before the Thandedar. He further deposed that they did not approach any Court of law or any senior Police Officer to prove the innocence of the accused/appellant. D.W.4 has also admitted that he did not submit any application before any senior Police Officer to prove innocence of Abdur Razzaq appellant. D.W.4 is real brother of Abdur Razzaq appellant and other D.Ws. are closely related to the appellant and no independent witness ha-s appeared in defence of the appellant and to corroborate the statement of the D.Ws.

17. As against the defence evidence the prosecution evidence is weightily and no material contradictions and discrepancies have, been pointed out by the learned counsel for the appellant. Furthermore, only solitary statement of the victim supported by the ocular/medical evidence is sufficient to maintain the conviction but in this case the statement of the victim is supported by very strong and convincing evidence alongwith ocular, medical, expert opinion and recovery of blood-stained Shalwar of the victim.

18. The learned counsel for the appellant has not been able to persuade this Court to interfere with the judgment passed by the Trial Court convicting the accused/appellant. The Court has sentenced the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 to undergo 25 years' R.I. with 30 stripes. The appellant has not been punished with Hadd, therefore, in view of section 3 of the Abolition of the Punishment of Whipping Act. 1996, the sentence of 30 stripes awarded to the appellant is set aside. The other sentence passed on the appellant is maintained. Resultantly the instant appeal having no force is dismissed. H.B.T./A-796/L Appeal dismissed.