P L D 1984 Lahore 509 (PLP)

Nazir Hussain‑appellant stands convicted by Raja Muhammad Ayub Khan Magistrate Section 30, Lahore, vide his impugned judgment dated 31‑1‑1970, under section 376, P. P. C. He was sentenced to five years' R. I. and ten lashes and if these lashes could not be inflicted on Nazir Hussain, then he was to undergo further R. 1. for one year. He has come up in appeal.

2. The facts in brief are that Mst. Khalida aged about 8 years was daughter of Mst. Rafiqan, who earned her livelihood by doing odd jobs in the vicinity. It is stated by Mst. Rafiqan that her husband was running Dry Cleaning Shop in Karachi but she was residing at Lahore with her children. On 14‑7‑1969, she was about to wash the clothes of her children and got removed the Shalwar of her 8 years daughter Khalida, which was found to be stained with blood. On enquiry, Mst. Khalida P. W. told her mother that on Thursday at Dopehrwela she had gone to the house of Nazir Hussain accused, their neigbbour to play. Nazir Hussain took her inside the room, made her lie on a cot, removed her Shalwar and put a finger in her private parts which started bleeding. The accused left her, threatening that if she disclosed this fact to anyone she will be killed. Mst. Knalida developed fever and headache and was given treatment by Mst. Rafiqan herself for some days. Nazir Hussain accused entreated Mst. Rafiqan P. W. not to lodge the report which was ultimately made by her on 15‑7‑1969, at about 4.15 p. m. On that very date, Mst. Rafiqan produced blood‑stained Shalwar P. 4. per taining to Mst. Khalida P. W. which was taken in possession by the Police vide Memo. Exh. P. B. It was sent to the Chemical Examiner, Lahore, on 21‑7‑1969, who vide report Exh. P. F. gave the opinion that the Shalwar was stained with semen and blood. On 15‑7‑1969, Mst. Khalida was examined by Dr. S. Shami, W. M. O. She found readness all around the hymen. The hymen orifice was found loose. She also found superficial laceration of hymen all around which bleeded on touch. Hymen was torn anteriorly. The tear was found bleeding by touch. Two vaginal swabs were taken and sent to the Chemical Examiner for detection of semen, if any. The report of the Chemical Examiner Ex. P. C. indicates that the swabs were stained with semen and blood. After receipt of this report the accused was arrested and the offence of section 354, P. P. C. recorded in the F. I. R. was changed to section 376, P. P. C. Before the receipt of the report Exh. P. C. from the Chemical Examiner, in answer to a query Exh. P. B. by the police, the lady doctor opined that the damage to the vagina of Mst. Khalida could be due to introduction of a finger to the vagina but added that the correct opinion can be given only after receipt of the report from the Chemical Examiner. The accused was challaned and convicted as stated above.

3. During the trial prosecution examined 9 witnesses. P. W. 1 Mst. Rafiqan stated during her deposition before the Court that Mst. Khalida had told her that she was feeling pain in her head, stomach and leg, where after in order to give her a bath she started removing the clothes of Mst. Khalida and found Shalwar P. 4 stained with blood. On enquiry, Mst. Khalida told her that she went to the house of Nazir accused to bring Nabolies of Neem tree when the accused took her inside the room, remov ed her Shalwar, and thereafter forcibly raped her. She felt pain and cried out but the accused put his hand on her mouth and threatened her not to disclose the same to anyone otherwise he would murder her. She stated in her statement that thereafter she lodged the report Exh. P. A. to the police which was thumb‑marked by her though not read out to her. In cross- examination she stated that she had been divorced by her husband. She was confronted with her statement in the F.

1. R. as she had totally changed her statement during the trial. It was admitted by her in cross‑examina tion that one Saleemullah was friend of her husband living in Karachi and she wrote letters to him being friend of her husband and the accused would write letters for her because he (the accused) was brother of the husband of her sister. She denied the suggestion that she was found in the company of some persons in Regent Cinema, Lahore. She further denied the suggestion that she and her maternal nephew Muhammad Yasin wanted to eject the accused from the quarter in which he was living and for this purpose involved him falsely in the present case. P. W.

2. Mst. Khalida during her deposition in Court stated that she went to bring Nabolies of Neem tree at noon time from the house of the accused. The accused caught her and took her in his room lie removed her Shalwar, put his finger in her private parts and thereafter got himself fallen on her person after removin; his Dhoti. She stated that the accused raped her forcibly on which she felt pain. She cried but the accused put his hand on her mouth. The accused then left her, pointed out a Chhuri to her and told her that she should not relate this incident to anyone. She went to her house and told her mother that she was feeling pain in her head, stomach and legs. On this her mother Mst. Rafiqan brought medicine for her. Later, when her clothes were removed, she found blood on her Shalwar, whereafter she narrated the incident to her mother. In cross‑examination she admitted that the brother and parents of the accused also lived in the same house. She further stated that her mother came to know of the occurrence after three days and reported the matter to the police on the same day. She stated that the occurrence had taken place on Thursday. She admitted that her mother had a dispute with the accused prior to the incident. She was confronted with her previous statement wherein she had not stated that the accused had removed his Dhoti and laid his person on her. The other important witness in this case is Dr. S. Shami, W. M. O. who had medically examined Mst. Khalida P. W. The rest of the witnesses are of formal nature.

4. The accused when examined denied the charge and stated that he had been implicated by Mst. Rafiqan falsely due to enmity. He produc ed Muhammad Akhtar (D. W. 1), who stated that on 10‑7‑19,9 the accused was working with him on part‑time basis and remained on duty at his Newspaper Agency from 10 a.m. to 2‑30 p.m. D. W. 2 Ilam Din stated that there was no Neem tree to the house of the accused, who had only one room and lived with his parents. He further stated that Mst. Rafiqan was a woman of bad character and the accused had a dispute with her previously in that respect.

5. I have gone through the entire evidence with the assistance of the learned counsel, who has urged that there was delay in lodging the F. I. R.; that in the F. I. R. a different story was given than the one set up by Mst. Rafiqan and Mst. Khalida P. Ws. during the trial, which makes the whole case doubtful that Shalwar P. 1 though taken in possession by the police on 15‑7‑1979, yet was despatched to the Chemical Examiner on 21‑7‑1979 and, as such, the stains of blood and semen must have been disintegrated and finally that the injuries on vagina of Mst. Khalida were fabricated by Mst. Rafiqan for purposes of this case. In support of the last assertion, the learned counsel referred to some observations at page 313 in the 12th Edition of Medical Jurisprudence by Modi that in this sub‑continent the evidence of rape is sometime fabricated by putting chillies in the vagina or causing injuries on the private parts. It was pointed out by the learned counsel that while recording statement of Mst. Khalida P. W. 2, the Darned trial Magis trate did not comply with the provisions of section 118 of the Evidence Act. He supported this argument by relying on Khalid v. The State (P L J 1974 Cr.C (BJ) 441). It was, therefore, argued that no case is made out against the appellant. Learned counsel for the State controverted the above arguments of the learned counsel for the appellant.

6. I have considered the submissions of the learned counsel. So far as the compliance of sections 118 of the Evidence Act is concerned, the relevant provision is reproduced as follows "

118. Who may testify All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those ques tions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. Explanation.‑A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them." A perusal of this section would indicate that it is for the Court to deter mine whether the witness who has appeared to testify in Court is able to understand the question put to him/her and was able to give rational answers to the questions. In order to determine these facts it is not always necessary to put questions to the witness. If the Court on seeing the witness is o the opinion that the witness is able to understand question and give rational answer then it is not necessary to put general questions to the witness to deter mine that fact. In the instant case, the witness Mst. Khalida was aged 8 years. The Magistrate recorded this fact in the beginning of her deposition. Thereafter, the Magistrate put her a question "what happened with you, how much time ago?" In answer to this question, the witness Mst. Khalida gave a very coherent and intelligent answer. She was then subjected to cross‑examination by the defence counsel. She answered all the questions intelligently. A perusal of her statement clearly indicates that the witness fully understood the questions and made rational answers. This mean that she was a competent witness to testify under section 1 8 of the Evidence Act, 1872. The case‑law relied upon by the learned counsel will not b applicable to the facts of the present case, because to that case the age of the victim of sodomy was about 4/5 years. Clearly, there was much differ ence between the person aged 8 years and aged 4/5 years. 1, therefore, hold that there was no infirmity in the procedure of recording the statement of Mst. Khalida (P. W. 2).

6. It is correct that in the instant case the F. I. R. was lodged after delay. In the F. I. R. the word Thursday is used when the occurrence is stated to have taken place. Mst. Rafiqan (P. W. 1) did not know as to when the occurrence took place. She was told about it by Mst. Khalida, who informed her that the accused raped her on Thursday. It is in evidence that Mst. Khalida was in agony. She was having pain in her body, stomach and legs. She was bleeding from her vagina and, therefore, it could not be said that the occurrence definitely took place on Thursday as stated in the F. I. R., because she might have told a wrong day in that mental state to her mother. While appearing as P. W. in Court, in answer to a question in cross‑examination she stated that the F. I. R. was lodged on the day when she narrated the occurrence to her mother which was three days after the incident. This would mean that the occurrence took place on 12‑7‑1969. In this view of the matter, it cannot be said that the occur rence took place on Thursday or even on 12th. The estimate of time when the occurrence took place was entirely based on the estimate of Mst. Khalida who was minor and in agony and under mental shock. I would, there fore, hold that the occurrence might have taken place 1, 2 or even 3 days before the lodging of F. I. R. 1t is also correct that in the F. I. R. the story of rape on Mst. Khalida by the accused is not stated in detail. In the F. I. R. it is stated that the accused had inserted his finger in the private parts of Mst. Khalida. This story has not been changed by Mst. Khalida, in her statement before the Court. She, however, added that after insertion of finger by the accused he got himself fallen on her person by removing his Dhoti. 1, therefore, find that there is no material difference in the story of the F. I. R. and the statement made by Mst. Khalida (P. W. 2) during the trial. It is to be noted that Mst. Khalida is only aged 8 years. She did not know the anatomy of a male. She did not know the body structure of human being. She was not aware of sex behaviour and sexual act. It, was, therefore, not expected of her to describe the rape committed on her by Nazir Hussain accused in a clear detail to her mother. She could only feel and whatever were her feelings she conveyed to her mother in her innocent expressions, who accordingly reported the matter to the police. I don't find that there was material change in the story recorded in the F. I. R. and the subsequent statements; of these witnesses made during the trial. The statements of these witnesses are supported by the medical report Exh. P. D. and the reports of the Chemical Examiner Exh. P. C. and Exh. P. F. These two witnesses i.e. Mst. Rafiqan and Mst. Khalida had no motive to falsely implicate Nazir Hussain accused in this case. It is correct that the Shalwar was sent to the Chemical Examiner after a few days of its recovery but I don't think that blood and, semen stains would have disintegrated during this period.

7. In support of the argument that Mst. Rafiqan was a woman of bad character, the learned counsel drew my attention to her admission that she had been writing letters to Saleemullah, a friend of her husband in Karachi. He also referred to the statement of Imam Din (P. W. 2) in support of this assertion. If Mst. Rafiqan had any illicit liaison with Saleemullah or had any love affair ;with him, she would not have got her letters to him written by the accused, who was a brother of the husband of her sister. She also would not have admitted in cross‑examination the writings of those letters to him. It is in evidence that she was divorced by her husband a few months before the present occurrence. It appears that she was trying to pre vail upon her husband through his friend, Saleemullah, for some kind of settle ment and it is probable that she was, therefore, getting the letters written by Nazir Hussain accused to Saleemullah. From the cross‑examination one cannot infer that those letters were being written on account of any love affair.

8. It was vehemently argued by the learned counsel that on account of enmity Mst. Rafiqan (P. W. 1) fabricated injuries on the person of her daughter and falsely involved the appellant in this case. It is not conceiv able that even a woman of ill‑repute would go to the extent of causing injuries on the private parts of her minor daughter and by ruining the life of her daughter in order to falsely involve any parson. No mother would do such an abhoring act to fabricate a case. Learned counsel referred to p. 313 of Twelveth Edn. of Medical Jurisprudence by Modi. It is stated in this book that in the sub‑continent there have been cases of fabrication of evidence of rape by putting chillies in the private parts of a girl or by causing injuries. I am not prepared to accept the general observation of Modi in the medical jurisprudence. In the instant case, the medical evidence coupled with the report of the Chemical Examiner fully establish the case of rape against Nazir Hussain accused. The alleged enmity between the accused and Mst. Rafiqan P. W. is vague. No detail has been given by the accus ed. No doubt there is an admission that there had been some dispute but unless the extent of dispute is not known it cannot be said that Mst. Rafiqan had such a serious enmity with the accused which could prompt her to falsely implicate the appellant in this case. Be that as it may, even if there was some kind of dispute or ill‑will between the appellant and Mst. Rafiqan, I am not prepared to believe that she herself caused injuries or got these injuries on the person of her minor daughter to falsely implicate the appellant Nazir Hussain in this case. It is not at all a fabricated case. The witnesses had no enmity with the accused. They are fully supported by the medical evidence and the report of the Chemical Examiner and, therefore, it is not a fabricated case.

9. Another point which was urged by the learned counsel was that the story of rape should have been mentioned in the F. I. R. As discussed above, Mst. Khalida was not herself clear what was happening to her what the accused was doing to her. As such, Mst. Rafiqan reported in the F.

1. R. only that fact which was narrated her by her daughter. This give an impression of truth. No other point was urged by the learned counsel. In view of the above, I find no merit in this appeal which is accordingly dismissed.

10. Learned counsel submitted that this appeal is coming up for disposal after about 14 years, and, as such, the sentence already suffered by the accused‑appellant should be considered sufficient. The appellant was convicted on 31‑t‑1970. He was allowed bail by suspension of his sentence on 12‑2‑1970 i.e. after about 12 days of his conviction. I have considered this argument. The case in hand is of very serious nature. The accused who was aged about 22 years, committed rape on a girl of 8 years. He deserves no sympathy. I, therefore, maintain his conviction and sentence. The appeal is dismissed.

11. The appellant shall surrender to serve the unexpired sentence in prison. He will be extended the benefit of the provisions of section 382‑B, Cr. P. C. for computation of his sentence in prison. M. Z. M. Appeal dismissed.