1998 PLP 633 (MLD)

2. Mst. Raiba: Manoon resident of Maneri Payan, District Swabi the complainant (P.W.6) lodged a complaint on 13th of October, 1995 at 8-15 p.m, which was recorded by Noorul Muhammad Khan, A. Station House Officer. Police Station Swabi that she is residing in Village Maneri Payan; that Sardar Driver her neighbourer . had gone with his family to District Dir; that his younger brother Qaisar Khan the appellant was left behind; that on 13-10-1995 her son Janaid aged about 7 years who was playing outside the house informed her that Qaisar Khan had committed sexual intercourse with Mst. Sonia the minor daughter of the complainant on which information the complainant went to the house of Qaisar and found that he had committed sexual intercourse and that blood stains were present on the Shalwar of the victim Sonia. On this complaint F.I.R. (Exh. PA) was recorded. The A. Station House Officer Noorul Muhammad who prepared injury sheet and referred the victim to the Civil Hospital, Swabi under care of Ihsanullah, Foot Constable (P.W.3), went to the house of Yaqoob Khan the father of the appellant and took into possession the 'Charpai' on which the sexual intercourse was committed, prepared the recovery memo. (Exh. PC), the site plan (Exh. PB) and received the medico-legal report from the doctor which was placed on the file. Appellant was arrested on 14-10-1995 and produced for medical examination about his potency test, the report of which is (Exh.PW.5/1).

3. After investigation of the case the challan was submitted in Court Charge was framed against the appellant under sections 1C and 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The appellant did not plead guilty and claimed trial.

4. The prosecution in support of its case produced 10 witnesses, P.W. 1 Nabi Ullah, Inspector/SHO, Police Station Swabi who submitted the challan in the Court, P.W. 2 Sher Ali the marginal witness of recovery memo. (Exh. PC) of the 'Charpai' taken into possession by P.W.9 Noorul Muhammad, P.W. 3 Ihsanullah Foot Constable who escorted the victim to hospital for medical examination and to whom the Medico-Legal Report (Exh. P.W. 5/1) was handed over by the doctor, P.W.4 Niaz Muhammad, Foot Constable a witness of recovery memo. (Exh.PC/1) of the Shalwar and shirt of the appellant and phial, P.W.5 Dr. Gul Muhammad Khan who conducted the potency test of the appellant and found him capable of performing sexual intercourse, P.W.6 Mst Rabial Manoon mother of the victim; she corroborated the contents of the F.I.R P.W. 7 Mst. Sonia the victim who was found incapable to make deposition, P.W. 8 Junaid the brother of the victim, he gave elaborate ocular account of the incident and also stood the test of cross-examination, P.W.9 Noorul Muhammad ASHO who recorded the F.I.R., and conducted the investigation and P.W. 10 Lady Dr. Altaf Begum who proved the medico-legal report of the examination of the victim (Exh. P.W. 10/1),

5. On the conclusion of the prosecution evidence the statement of the accused under section 342, Cr.P.C. was recorded. He stated that he knows nothing about the case. In reply to the question why the case against him, he stated that I am innocent. The appellant neither opted to make statement on oath under section 340 (2), Cr.P.C. nor chose to produce evidence in defence.

6. The learned counsel for the appellant has contended that no legal evidence is available on record to maintain the conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and that the non -production of ' Charpai' on which allegedly sexual intercourse was performed is fatal to the prosecution case and so is the non-production of Shalwar of the victim.

7. The only other contention of the learned counsel for the appellant was that there is 7 hours' delay in lodging the F.I.R. which is unexplained.

8. On the contrary the learned counsel for the State submitted that ocular evidence of P.W.8 coupled with the fact that there is no motive of the mother of the victim and her brother and none was even alleged by the appellant clearly show that the case against the appellant is fully established.

9. Having given consideration to the respective contentions of both the learned counsel and on minute examination of the evidence and documents on record I am of the view that the contentions raised on behalf of the appellant have no force. The medical evidence as to the potency of the appellant (Exh. P.W. 5/1) and the medical examination report (Exh. P.W. 10/1) of the victim coupled with the flawless testimony and ocular account of the incident given by Junaid P.W.8 has clearly established the case of the prosecution against the appellant. Despite lengthy cross-examination of P.W.8 the defence was not able to create any dent in the prosecution version. I cannot comprehend how the non-production of the 'Charpai' or Shalwar of the victim can be held to be fatal to the prosecution case. These were just two items taken into possession and not produced probably considering them to be not material for the establishing of the case of the prosecution and if these were in any manner helpful to the appellant he could seek their production but it was not so done.

10. As regards the contention about delay in lodging of the report of the incident, I suffice by observing that 7 hours' period in such cases is not so long as to draw any adverse inference against the prosecution case. Otherwise also the alleged delay has been explained in cross-examination by P.W.6 as also P.W.8. Both of whom have stated that the appellant had threatened the P.W. 6 by actually picking up an axe and by catching hold of P.W.6 from her hair of dire consequences if the matter was reported to any one. It has also been explained that later, on the advise of the elders of the locality the report was lodged with the police.

11. Yet another important aspect of the matter is that there is no enmity or motive of P.W.6 to have falsely implicated the appellant by lodging a case of this nature which brings ignominy to her family and to her minor daughter. No suggestion even has been made to P.W. 6 about her enmity, against the appellant and for any motive in registration of the case against the appellant.

12. In view the foregoing discussion, the case having been fully established against the appellant and there being no infirmity in the impugned judgment both on legal and factual planes, this appeal is dismissed. I find that in the judgment of the lower Court there is no mention about the affording of the benefit of section 382-B, Cr.P.C. to the appellant. The Trial Courts should be careful in this respect. The Courts are under an obligation to apply their conscious mind to the legal provisions governing the conduct of trial and abide by all the requirements of law before the pronouncement of judgments. From a plain reading of section 382-B, Cr.P.C, which is reproduced hereunder for facility of reference:-- "382-B. Period of detention to be considered while awarding sentence of imprisonment.--Where a Court decides to pass a sentence of I imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence. " It clearly emerges that the Court has been put under an obligation that while awarding sentence on a conviction it should take into consideration the period for which an accused remained confined as an undertrial prisoner. It correspondingly also gives a right to the accused that the Trial Court shall provide the benefit under this provision to the accused and in case it be found by the Court that the accused is not entitled thereto, explicitly give reason therefor. The Trial Courts shall be well-advised to adhere to the legal requirements for conduct of trials and not to allow omissions to creep in which may cause prejudice to any party before them. Be that as it may, it appears that the omission of the Court below in this regard is inadvertent and, therefore, the appellant is allowed the benefit of section 382-B, Cr.P.C. H.B.T./1171/FSC Appeal dismissed.