P L D 1998 Lahore 383 (PLP)

(3) Abdul Hameed v. The State 1988 SCMR 1772; In the absence of any enmity between the parties, the statement of the prosecutrix supported by medical evidence and the positive Report of the Chemical Examiner is more than sufficient to establish allegations of rape. In the case of Riaz-ul-Haq and others v. The State 1989 SCMR 1927 the following are the observations of the Shariat Appellate Bench:- This concludes the matter,

9. The learned counsel for the appellants then referred to the statement of Lady Doctor Shaista Khalida (P.W.4) to show that no marks of violence were present over the body or private parts of the complainant and there was simply trendness on right cheek and right side of neck. He submitted that the version of the complainant that she was tied to a cot and intercourse was forcibly committed was not borne out from the medical evidence. The learned counsel failed to note that the said witness clearly stated that the examinee was subjected to sexual intercourse. In cross-examination, she categorically stated that she was of the firm view that the examinee was subjected to sexual intercourse. It is very relevant to mention here that as per reports of the Chemical Examiner (Exh.P.E./1) both the vaginal swabs and the 'Shalwar' of Mst. Rifat Parveen were found to be stained with semen.

10. Dr. Abdul Ghaffar as P.W.1 proved his reports Exhs. PA, PB and PC and deposed that all the three accused persons were found capable of performing sexual intercourse. He was not cross-examined at all and thus the defence did not dispute this fact. I

1. In the context of medical evidence, the learned counsel for the appellants submitted that as the vaginal swabs of the victim were not sent to the Serologist for semen grouping, the Report of the Chemical Examiner had no evidentiary value in this regard. He placed reliance on the case of Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161, wherein the releant portion reads as follows:- "It is unfortunate that the prosecution in such cases does not obtain semen of the culprit for semen grouping and for matching it with the semen found on the swabs. The semen on the swabs even if is sent to the Serologist for semen grouping and report is obtained the same is not produced in Court. The semen found on vaginal swabs loses evidentiary value if the semen of the accused is not obtained and got examined and thatched with semen found on vaginal swabs by the Serologist. In cases of Zina the prosecution will be well-advised to obtain the semen of the accused and have it analysed by Serologist for matching with the semen found on the swabs. This Court even earlier in the case of Mst. Ehsan Begum v. The State PLD 1983 FSC 204 emphasized on the Investigating Officers and Medical Officers the importance of obtaining material evidence by having matched the semen of the alleged culprit with the semen found on the vaginal swabs."

11. Admittedly, the vaginal swabs were not sent to the Serologist for semen grouping and for matching it with the semen found on the swabs and ' Shalwar' of the victim. The semen of the culprits were never obtained. When confronted with this proposition, the learned A.A.-G. submitted that in the presence of direct, truthful and confidence inspiring evidence available regarding the commission of offence through the mouth of the victim, the non-performance of the semen grouping test had no damaging effect on the prosecution case. He further submitted that in all the cases referred (supra), the Supreme Court maintained the conviction without asking for such a test.

12. The learned A.A.-G. referred to a recent case of Muhammad Nawaz v. The State 1997 PCr.LJ 893 to show that the statement of prosecutrix corroborated by independent ocular testimony and medical evidence in the shape of positive Chemical Examiner's Report about the vaginal swabs of the prosecutrix was found sufficient for the conviction of the accused. He submitted that even earlier this view was held by a Division Bench of Federal Shariat Court in the case of Muhammad Amir Khan v. The State 1992 PCr.LJ 1944.'

13. It has been very aptly said "rape is an allegation and can easily made-hard to prove and harder to disprove". No doubt the offence of rape is a brutal, dirtying, demoralising assault on a woman. Forensic medicine is defined as 'the medical speciality which applies the principles and practice of medicine to the elucidation of questions in judicial proceedings'. In the Parikh's Textbook of Medical Jurisprudence and Toxicology (Third Edition). In the Chapter of Forensic Science Laboratories and Crime Detection under the Sub-Head Biology Serolgy it is observed as follows:- "Typing (whether human or otherwise) and grouping (for individualization) of stains and examination of hair to link the accused with the crime of violence like murder, assault, rape form the main plank of biological evidence. The identification of blood on the basis of peroxidase activity of haemoglobin, that of semen generally on the basis of acid phosphatase and strong inhibition thereof I-tartarate, morphological characterization of human sperm etc., immunological typing of stains for human origin or otherwise, the A.B.O. and other grouping of stains and modern developments in the techniques thereof concern this Division. Recent advances in respect of individualization of stains by grouping on the basis of immunological and biochemical (enzymatic etc.) systems also come within its purview. As in the case of blood the preliminary examination of the seminal stains is done by the State Chemical Examiner, while the determination of source and grouping is carried out by many forensic science laboratories .... ... ...

14. The constituents of the semen form the basis for forensic tests for seminal stains. The object of taking specimens for the laboratory in cases of alleged sexual assault is three-fold:- (1) to obtain confirmation of the allegations; (2) to attempt to establish a link between the victim and the scene (3) to attempt to establish a link between the victim and the assailant

15. The sample of blood for grouping is taken as the blood group will be unchanged whatever the time interval and will still be relevant for comparison with any blood stains, seminal swabs etc. found during the examination of the victim, victim's clothes or scene.

16. In Butterworth's Medico-legal Encyclopaedia while dealing with seminal stains it is observed (at page 503) as under:- "Human semen contains large amounts of A.B. or H substances in those who are secretors and this property can be used towards personal identification of the donor. However, since only the A.B.O. blood group system can be tested, it is likely that a given specimen will be identified no more accurately than to the extent that it could have been donated by approximately 40 per cent. of the male population--as a consequence, the findings have greatest . usefulness in excluding a suspect. " 16-A. The most reliable test of this modern age is "D.N.A. finger printing". In Forensic Pathology by Bernard Knight under the heading Identification by D.N.A. Characteristics, the following observations are very important:- "One of the most revolutionary advances in identification in recent years is the so-called 'D.N.A. finger-printing'. This is a technique devised by Alec Jeffreys of Leicester University, in which virtually unique sequences of bases in the D.N.A. strands. of chromosomes are used to compare one blood or tissue sample with another and to investigate genetic relationships. The details of the technique are complex and require highly specialised reagents and apparatus. the method needs highly trained forensic scientists for its application to medico-legal problems. Seminal fluid in the vagina of a victim of a murder rape can be matched against the blood D.N.A. pattern of a suspect--there is no need to match semen against semen, as all the D.N.A. in a given person must, by definition, be identical. In sexual crime cases,, a great advantage of D.N.A. testing over conventional blood group secretor tests is that D.N.A. can distinguish between mixed semen and vaginal fluides from a swab, which can confuse or negate blood group techniques.".

17. Unfortunately the D.N.A. finger-printing, which is more reliable test in identifying the culprits/accused, is not being done in Pakistan. This is probably the test which an American lady asked a Pakistani politician to undergo to determine the paternity of her child.

18. The outcome of the entire forensic science advances considered above is that the 'seminal grouping' is not a reliable and foolproof test. It is, in fact, exculpatory in nature than a positive proof to establish the identity of an accused in a rape case, while more sure test D.N.A. finger-printing is not done in Pakistan. The evidentiary value of the seminal grouping is merely corroborative of substantial evidence and it alone cannot be made basis of conviction of an accused. Hence, the non-performance of such a test is not at all damaging or fatal to the prosecution case. In fact, it is too much and too early to ask for such an evidence i.e. seminal grouping, in this country, which does not have necessary pathological backup, experienced, conscientious and scrupulous investigating officers and trained and dutiful medical personnels.

19. It was vehemently contended on behalf of the accused that they had been falsely involved in the case at the instance of husband of the complainant and one Saleem Jai. Imam Din accused in his statement recorded under section 342, Cr.P.C. in this regard stated as under:- "Due to enmity and party-faction this case has been made against us at the instance of one Saleem Jai. The P. Ws. are interested witnesses." Muhammad Ismail and Ghulam Hussain accused also stated similarly. Khan Muhammad was examined in defence as D. W.1. He stated that he heard alarm and was attracted to the spot at about 9/10 p.m. where the complainant told him that Imam Din had committed theft in her house. Then he went to the 'bathak' of Ghulam Hussain, where Imam Din gave him the 'Gathri', which was allegedly handed-over to him by the complainant for onward delivery to her mother at Faisalabad before?reaching her husband. The witness then stated that he delivered the 'Gathri' to the complainant there and then. He also stated that the complainant did not level any allegation of Zina-bil-Jabr at that time and the allegations of Zina and dacoity were levelled after five days at the instance of one Saleema Jatti, a woman of ill-repute. The statement of this witness, in fact, negates the entire defence. According to the accused persons, the case was fabricated at the instance of Saleem Jai, whereas according to this D.W. the allegations of Zina and dacoity were levelled after five days at the instance of Saleema Jatti, a lady. Admittedly, the F.I.R. was recorded on the same night and the allegations of Zina-bil-Jabr and dacoity were clearly made in it. D.W.1 claimed to have appeared before the Investigating Officer and still could not know about these allegations for five days. He admitted to be challaned in two murder cases and having appeared in defence in various Courts many times. He also admitted the present accused being his voters. He is not at all a reliable person. Similarly, no reliance can be placed on the statement of Muhammad Akbar (D.W.2), who is a resident of a place at a distance of two squares away from the house of the complainant. He also did not appear in defence of the accused before the Investigating Officer. He did not know even the names of the accused except that of Muhammad Ismail. What weight can be attached to the statement of a person appearing in defence of the accused, but not even knowing them. As a matter of fact, he supported the prosecution in a way when he admitted that 30/35 persons had gathered at the place of occurrence before his reaching there. It shows that there was lot of hue and cry because of grave nature of the offence, which attracted so many persons, and it was not at all a false and concocted story. As far as the defence plea is concerned, it is sufficient to say that no suggestion was given to the complainant (P.W.2) that Imam Din accused lived in her house and so on. Ghualm Muhammad (P.W.3) was only suggested that he had made the statement due to friendship with Munir. Just friendship, even if admitted, is no reason to discard the truthful statement of a witness. The record shows that it was the Investigating Officer (P.W.7) who was suggested for the first time that Imam Din accused used to live with the complainant and the residents of the "Basti" had objected to his living there. He was also suggested contrary to the plea of the accused persons contained in their statements under section 342, Cr.P.C., that on the day of occurrence Imam Din came to the house of the complainant on her invitation. On behalf of the accused it was suggested to the said P.W. that Imam Din was apprehended by the inhabitants of the 'Basti' alongwith stolen articles and that the accused were roped in this false case on the dictation of Saleem Jat. These-suggestions amount to frank admission on the part of the defence that Imam Din accused had been in the house of the complainant and that he was apprehended alongwith stolen articles. The defence plea is obviously false, concocted and after thought and is, therefore, rejected.

20. At this stage, I would like to examine briefly the facts constituting the commission of offence as alleged in the complaint Exh.P.D. (formal F.I.R. Exh.PD/2) in the light of the evidence produced during the trial. Mst. Rifat Parveen complainant (P.W.2) clearly deposed about the commission of Zina-bilJabr, turn by turn, by all the three accused persons with her. She stated that after 8-00 p.m.. on the fateful night the accused persons entered her house, took her in the other room, tied her with cot and forcibly committed Zina with her. Thereafter, the accused escaped with the loot. Ghulam Muhammad (P.W.3) saw the accused leaving the house of the complainant after commission of offence and he also witnessed the recoveries of looted articles and cash and weapons of offence effected separately 'at the instance of each of the accused. Muhammad Sarwar, Inspector, as P.W.7 proved the recoveries effected on the disclosures trade by the accused. There is nothing on the record to show that the prosecutrix or her husband had any enmity or ill-will against the accused persons or that the P.Ws. had any reason to falsely involve the accused in this case. In fact, the defence admitted the occurrence although in a different manner. The accused Imam Din in his statement made under section 342, Cr.P.C. admitted having gone to the house of the complainant, while his witness Khan Muhammad (D.W.1) admitted that the said accused gave her a "Gathri" when he had asked him about the theft committed in the house of the complainant. The statement of the prosecutrix as P.W.2 is fully corroborated by the medical evidence as well as the evidence of the recoveries. The very fact that a hue and cry attracted the neighbours coupled . with the presence of semens on her private parts and ' Shalwar' and ultimate recovery of looted cash/articles leaves no room for doubt about the occurrence. Hence, I hold that the prosecution has proved its case beyond any reasonable doubt against all the three accused persons.

21. The learned counsel lastly prayed for the reduction in the sentences awarded to the accused on the ground of their age. While placing reliance upon the cases of Mst. Imrana Bibi v. Khalid Hussain and others 1989 SCMR 1914 and Burhan v. The State PLD 1989 FSC 77, it was submitted that as all the accused were around 20 years of age and as they had no previous history of conviction or criminal activity, they deserved leniency in the matter of sentence.

22. In the cases cited in the preceding para. the sentence of 10 years' R.I. with whipping awarded to the rapists was found sufficient in view of their young age.

23. The period of age between 12 to 20 years is very sensitive and crucial in bringing up and grooming of a child. This age of adolescence is known as period of juvenility and puerility and if not properly taken care of the child may go astray and grow up as a criminal. Parents must not leave their wards to be on their own and they must keep a vigilant eye on their activities and engagements. Most of the children/juveniles are not given the attention, time and affection which is most essential at this time of age. The children then feel lonely and depressed and ultimately swayed by the bad company. Had the parents of these accused taken due care of them and had they watched their daily routine carefully, neither they (parents) nor the accused would have faced this fate. It is not the accused who alone have suffered for their misdeeds, but the entire family will have to bear the pain and humiliation brought by the act of their children. This unfortunate and catastrophic event has ruined many families, on one hand the three families of the accused, who have suffered for their negligence, intentional or unintentional, in watching the movements of the accused and on the other the family of the victim which suffered for rest of the life because of the fault of the parents of the accused. It is high time that the parents (and also the teachers) should realise their responsibility and duty in bringing up the children to ensure a better and a crime free society necessary for a prosperous Pakistan and for establishment of a society based upon Islamic teachings.

24. The accused are youthful offenders and there is nothing on record that they have any previous criminal history. The sentence of 14 years' R.I. awarded under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is therefore, reduced to 10 years' R.I., while all other remaining sentences are maintained.

25. In view of the above discussion, both the appeals are partly accepted and the sentences of 14 years' R.I. awarded to all the three appellants under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are reduced to 10 years' R.I. each, while their convictions and all the remaining entences are maintained. H.B.T./I-41/I Order accordingly