2019 P Cr (PLP)

QAZI MUHAMMAD AMIN AHMED, J.

Muhammad Saleem, appellant herein, is in receipt of a guilty verdict, returned by a learned Addl. Sessions Judge at Rawalpindi; he was indicted for incestuous assault on Misbah Sahr, 11, (PW-2), no other than his real daughter; convicted under section 376 of the Pakistan Penal Code, 1860, he is sentenced to death vide impugned judgment dated 28-7-2015. The incident was reported by appellant's second wife Robina Shahin (PW-1) through application (Ex.PA), received by Ameer Abdullah SI (PW-8) on 17-2-2014 at Police Station Waris Khan. According to the complainant, on 24-1-2014 at evening time, she heard the prosecutrix crying; assuming that she was being admonished by her father, she did not react, however, as the appellant left home, the girl, burst into tears, took her into confidence. Devastated by the disclosure, the complainant confronted her husband with the allegations only to be threatened to remain silent; harassed and agonized, she finally decided to report the incident to the police. The child was medically examined by Dr. Hina Firdous (PW-9) at 7:45 p.m. on 17-2-2014; she shared history of sexual assault and ensuing mental torture spreading over the last five months. On local examination, hymen was found torn with a bleeding minor laceration. According to the Medical Officer, the injury observed was old in duration; four vaginal swabs were taken for D.N.A. profile generation as well as seminal examination. Vaginal swabs were not found stained with semens and according to Ameer Abdullah SI (PW-8), Investigating Officer, a staffer at the Forensic Science Agency Lahore declined to receive parcels for D.N.A. profile generation on the ground of belated seizure of samples. The appellant was arrested on 18-2-2014; after completion of investigation, he was sent to Court; on 25-3-2014, he claimed trial, pursuant whereto, prosecution produced as many as eight witnesses to drive home the charge. Prosecution case is structured upon statements of the prosecutrix, her mother and the Medical Officer. The appellant, otherwise found potent, confronted prosecution evidence with the following plea:- "The complainant (PW-1) got second marriage with me and I was having my young kids from my first wife and the complainant of the FIR being in capacity of second wife always quarrel and fight with me for influence to give divorce to first wife and leave all kind of relations with the first wife's children." Unimpressed by the plea, the learned trial Judge proceeded to convict and sentence the appellant as mentioned above vide the impugned judgment, vires whereof, are being challenged through Crl. Appeal No.414 of 2015 clubbed with Capital Sentence Reference No.11 of 2015; bearing a common thread, both are being decided through this single judgment.

2. Learned counsel for the appellant contends that in the face of negative forensic report and in the absence of D.N.A. profile generation, there was no occasion for the learned trial Judge to convict the appellant on capital charge; that delay in reporting the matter to the police heavily militated against prosecution case, otherwise fraught with doubts and inconsistencies; the bottom line is that Robina Shahin (PW-1) appellant's second wife is quenching proverbial vendetta with a support of her daughter Misbah Sahar, a child of impressionable age and, thus, it would be extremely unsafe to maintain the conviction. The learned Law Officer, on the other hand, single handedly defended the impugned judgment on the ground that a daughter is not expected to falsely level such an heinous allegation against her father nor she would join her mother who had married the appellant knowingly about his first wife and children. According to the learned Law Officer, clinical findings recorded by Dr. Hina Fardous (PW-9) coupled with statement of the prosecutrix are more than sufficient to sustain the charge, given repugnance thereof, he has prayed for confirmation of death penalty.

3. Heard. Record perused.

4. Given the complexity of human mind and behaviour consequent thereupon, while it is not possible with empirical exactitude to suggest reactions or responses with certainty in a particular household milieu without possibility of error, nonetheless, more often than not, a daughter by instinct is emotionally attached with her father most profoundly; he is her first best man on God's earth, adored and admired throughout her life, notwithstanding subsequent bonds. Cases of incest though abhorrently repugnant, nonetheless, occur and it is not uncommon that victim suffer in silence. In the present case, Robina Shaheen (PW-1) had married the appellant quite sometime back as the eldest daughter, born from the wedlock is aged 11 and younger as 9 at the time of occurrence, thus, it would be difficult to entertain the plea that appellant's wife would come forward with a false plea of incest merely because the appellant declined to divorce his first wife, particularly when he was maintaining his second family independently. Similarly, the prosecutrix though examined without oath given her tender age unambiguously pointed her finger upon the appellant; cross-examination on both the witnesses, particularly the child is inconsequential; it appears that the appellant had nothing to offer except a bald suggestion that the case was cooked up by second wife. It is inconceivable that a mother would expose her daughter, fast coming of age, to a perineal and abominable disgrace, trauma and disgust suffered both by the victim as well as her mother is too heavy a price for the settlement of a score as suggested by the defence. Similarly, at the age of 11, though minor, Misbah Sahar (PW-2) would certainly not had joined her mother for the said purpose. Investigating Officer's failure to properly transmit samples for D.N.A. profile generation or negative seminal report does not much help the appellant in the face of clinical findings recorded by Dr. Hina Fardous (PW-9) positively suggesting carnal assault. There is no space to entertain any hypothesis of appellant's innocence. Criminal Appeal No.414 of 2015 fails. However, insofar as quantum of sentence to be exacted from the appellant is concerned, it warrants serious reconsideration. Though grievously hurt and emotionally ruined, appellant's execution would further devastate victim's soul for being behind appellant's death, she must already enduring the crises of loss of self-esteem, vulnerability and stigma, thus, penalty of death awarded by the learned trial Court is altered into imprisonment for life, otherwise an alternate sentence under the law, with benefit of section 382-B of the Code of Criminal Procedure, 1898, in view whereof, Capital Sentence Reference No.11 of 2015 is answered in the NEGATIVE and death sentence is NOT CONFIRMED. HBT/M-154/L Sentence altered.