1998 P Cr (PLP)

RANA BHAGWAN DAS, J.‑‑‑ Appellant has been convicted under section 364‑A, P.P.C. read with section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by learned Judge, Special Court for Anti‑Terrorism, Karachi Division. On the first count he has been sentenced to death and to pay a fine of Rs.50,000 or in default to suffer rigorous imprisonment for two years. For the Offence of Zina‑bil‑Jabr; he has been awarded the sentence of imprisonment for 25 years and to pay a fine of Rs.25,000 or in default to undergo further rigorous imprisonment for one year.

2. Unfortunate episode took place on the night intervening 26th and 27th August, 1997 at the house of first informant Kamal Ahmed Khan father of the victim situated in Mansoor Nagar Pahari Sector 11‑1/2, Orangi Town followed by act of Zina on a hillock near water tank in Mansoor Nagar. First informant was awakened from his sleep at about 1‑00 a.m. by the victim Afshan Kanwal stating that while she was fast asleep she was kidnapped by her neighbourer namely appellant Muhammad Shamim who was available outside the house. As soon as first informant came out at the door of the house he saw the appellant who took to his heels. Prosecutrix told her father that the appellant had kidnapped her while asleep to hillock near water tank and committed Zina-bil- Jabr with her. She further stated that he had threatened her not to disclose the incident to anyone else she alongwith her parents would be murdered. Kamal Ahmed Khan awakened his wife Mst. Roshan Begum who noticed that clothes of the prosecutrix were blood‑stained and she was complaining of severe pain. According to the first informant due to fear and in order to save his family honour he did not report the incident to police immediately but on 1‑9‑1997 due to precarious condition of his daughter she was removed to Abbasi Shaheed Hospital for her treatment when the doctor on duty after examining Afshan Kanwal told him that this was a police case and unless a report was lodged, treatment would not be provided to the victim girl. Compelled by these circumstances and finding no way out he, therefore, reported the incident at Police Station Orangi Extension on the next day.

3. Baby Afshan Kanwal was examined by Dr. Zakia Syed who examined the victim at about 11‑00 p.m. and found her drowsy irritable and crying. According to medico‑legal certificate, victim was brought to hospital at 2‑00 p.m. Stitches were already applied by Resident Medical Officer Unit No.l. Blood transfusion was in progress, vaginal padding was already done by R.M.O. Gynae after the stitches were applied. She did not allow her to remove the padding. According to her transverse tear on posterior vaginal wall was present. However, vaginal slide was taken from the vagina below the pack, Catheter was inside the urethra. Dr. Zakia Syed did P.V. examination very gently with her little finger outside the packing and took the vaginal slide from that part. There was no mark of violence at the abdomen or at the interoitus. However, rounded bruise was present over the left cheek. In the opinion of Medico‑legal Officer she was subjected to sexual assault. Vaginal slide and clothes were sent to Chemical Examiner for examination and report who in his report Exh.17 expressed the opinion that there was no semen on the clothes or the vaginal slide but he detected blood on four clothes sent to him for examination.

4. Report of the incident was recorded by Muhammad Irshad Khan S.I.P. who inspected the place of incident and prepared Mashirnama at the pointation of first informant Kamal Ahmed Khan. He also visited the house of first informant from where the victim was kidnapped. He visited the house of appellant and arrested him and Kamal Ahmed Khan at 2‑45 p.m. He recorded the statements of material witnesses and on the same day referred the appellant to Civil Hospital for check up and expert opinion. The appellant was examined by Dr. Ahmed Ali Memon who opined that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. Investigating Officer recovered sealed packet of blood‑stained clothes and vaginal slide from Dr. Zakia Syed and sent it to the Chemical Examiner for Examination and Report. On 15‑9‑1997 he got recorded the statement of baby Afshan Kanwal before a Judicial Magistrate in presence of the appellant. On completion of investigation, the appellant was brought to trial.

5. At the trial prosecution examined baby Afshan Kanwal P. W .1, first informant Kamal Ahmed Khan P.W.2, Dr. Ahmed Ali Memon P.W.3, Dr. Zakia Syed P.W.4, Judicial Magistrate Mr. Zamir Ahmed Tunio P.W.5, Mashir Muhammad Mehtab P.W.6 and Investigating Officer Muhammad Irshad Khan P. W.7.

6. In his statement under section 342, Cr.P.C. appellant denied the allegations against him. He, however, admitted his examination by a Medico- legal Officer and recording of statement of the victim by Judicial Magistrate Karachi‑West in his presence. According to him the witnesses had deposed due to enmity.

7. On assessment of the evidence on record, learned Special Court found the appellant guilty of the charge and convicted and sentenced him as above.

8. We have heard learned counsel for the appellant and the State and with their assistance gone through relevant evidence on record. As the act of sexual intercourse on the victim is conclusively proved by medico‑legal evidence and beyond any controversy points for determination in this appeal would be:‑‑ . (i) Whether the appellant was rightly convicted for kidnapping a minor girl from the lawful custody of her parents in order that she may be subjected to unnatural lust? (ii) Whether after kidnapping the appellant committed Zina‑bil‑Jabr with, the victim as alleged?

9. With regard to point No. 1, it may be observed that there is direct, straightforward and natural evidence of the victim baby Afshan Kanwal aged about nine years. The witness of tender age was questioned by the trial Court' before recording her evidence. From the replies given by the child witness trial Court was satisfied that she was ‑intelligent enough to depose in the Court. In her evidence she has supported the prosecution in all material particulars directly implicating the appellant with the act of kidnapping her from her house on the night of incident. According to her when she woke up she found herself in the lap of the appellant. She raised hue and cry while he forcibly took her to the hill top. She explained that she was weeping throughout but he threatened her to stop weeping otherwise she would be murdered. Evidently appellant is, the neighbourer of the victim and known to herself and her family much before the incident. There is thus, hardly any question of mistaken identity or false involvement. In fact none has been alleged during her cross‑examination. No doubt, this witness did not speak about threat by the appellant by way of pointing out a TT Pistol at her in her statement under section 164, Cr.P.C. the fact of the matter remains that she has deposed in a quite natural, confident and straightforward manner before the trial Court who had an opportunity to watch the demeanour of the witness. From the record we are unable to find any inherent defect or lacuna in the evidence of the prosecutrix and there is no strong reason to suspect the truth of her version. In fact, her testimony is materially corroborated by strong circumstantial evidence of her father who was awakened from sleep after the victim was left at her house (sic). As the incident took place in the odd hours of late night, there could hardly be availability of any, other person to witness the act of unlawful removal of the victim from her house constituting offence of kidnapping. As regards intention of the appellant behind the act of kidnapping, seemingly it transpires from the evidence that the basic idea and object was to subject her to unnatural lust. The sole circumstance that the prosecution did not examine Mst. Roshan Begum, mother of, the victim hardly makes any difference as obviously her evidence would have been the same as that of Kamal Ahmed Khan father of the girl. If the evidence of victim of the offence and her father .is accepted no adverse inference can be drawn against the prosecution for giving up Mst. Roshan Begum as it is the quality of evidence that counts for basing a conviction rather than the quantity of witnesses.

10. Acid test of veracity of a witness is inherent merit of his own statement rather than reiteration of a piece of evidence. In Shah Wali v. Crown 1971 SCMR 273 a Full Bench of the Supreme Court upheld the conviction under section 302/34, P.P.C. and section 307/34, P.P.C. on the evidence of a single witness who had deposed in straightforward and consistent manner was trustworthy and there was no reason to disbelieve him.

11. Before parting with this point, it may be observed that the delay of five days in lodging the F.I.R. with police is also of no consequence as first informant Kamal Ahmed Khan has furnished a valid and satisfactory explanation for it. According to' him, he did not lodge report with police on account of fear of the appellant who was known as notorious desperado in the locality. Constrained by her precarious condition when he took his daughter to Abbasi Shaheed Hospital on 1‑9‑1997 for treatment the Medical Officer told him that this being essentially a police case unless a police report was lodged, medical treatment would not be, admissible to the victim. Finding no way out he, therefore, lodged report with Police Station Orangi Extension. It is common experience that m horrible incidents like kidnapping and rape people in order to preserve family honour and prestige generally hesitate to report to police, which brings humiliation to them in the society. This aspect of the case, therefore, cannot be completely ruled out of consideration. In any event, since the appellant was already known to the victim and first informant, he was specifically named and there is hardly any allegation of false implication after screening the real offender, the delay in lodging of the report is neither fatal to prosecution case nor prejudicial to the appellant. As to how the appellant found access to the house of the first informant the latter explained that the outer gate of the house remained open due to hot weather. This vital statement of fact was not controverted during cross‑examination, which by implication of law is deemed to have been accepted.

12. As regards point No.2, evidence of baby Afshan Kanwal is satisfactory and adequate enough to conclude that she was forcibly taken to hillock, compelled to strip off her Shalwar and subjected to Zina‑bil‑Jabr against her, consent. This circumstance ‑is further borne out by detection of human blood on her clothes, severe pain in her body and report to her father at odd hours of night after she was dropped by the appellant at her house. Furthermore, on medico‑legal examination, Dr. Zakia Syed found that she had been sexually assaulted. Presence of tears in the vagina of the prosecutrix coupled with oozing of blood and irritation on the private parts fully supports the conclusions drawn by the Medico‑legal Officer who examined the victim after five days. The circumstance that semen was not detected on the clothes of the victim in our view is not by itself sufficient to discard the evidence, which has otherwise remained unshattered and was rightly relied upon by the trial Court. Acceptance of evidence on this point coupled with the corroborative evidence of father of the girl is neither improper nor contrary to settled principles of evidence regulating the dispensation of justice. In any event, neither the victim nor her father had any reason or motive to grind an axe against the appellant or to involve him wrongly after screening the real offender. In fact, the evidence on record has not been impeached and there is nothing to indicate that the version given by the witnesses was untrue. As to the capacity and capability of the appellant to perform sexual intercourse there is solid and unimpeached evidence of Dr. Ahmed Ali Memon, who examined the appellant.

13. Learned counsel for the appellant severely criticised the evidence of baby Afshan Kanwal being a child witness for the reason that she was tutored but we are least impressed by this argument for the reason that no such question was suggested to the witness and in our view a child witness is the most natural and innocent witness having no grudge or motive to implicate an innocent person. Reference was made to State v. Farman Hussain PLD 1995 SC 1 laying down that rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some evidence on the record. As would be seen from the above discussion, evidence of the child witness is trustworthy and confidence inspiring on the face of it. Moreso, there is strong corroboration of the statement of the child witness which deserves utmost credence to our mind.

14. We would like to refer two other cases from the Supreme Court, namely:‑‑ (i) Abdullah v. State 1968 SCMR 852, (ii) Muhammad Ismail v. State 1995 SCMR 1615. In Abdullah's case Supreme Court refused leave to appeal from the conviction and sentence upholding that a girl aged 7 or 8 possessing sufficient intelligence and her evidence not shaken in cross‑examination was rightly believed and relied upon by Courts below. In Muhammad Ismail's case, Supreme Court was faced with the evidence of a child witness of 7/8 years. The view expressed was that evidence of child witness possessing sufficient understanding can be believed and relied upon for conviction. There is, thus, no manner of doubt to treat the evidence of baby Afshan Kanwal with suspicion for there is overwhelming and strong corroborative evidence on record justifying the acceptance of her testimony.

15. Learned Special Court also referred to the admission of commission of offence by the appellant and expression of remorse in cross‑examination to baby Afshan Kanwal while recording her statement under section 164, Cr.P.C. before the Judicial Magistrate. This aspect of the case was seriously assailed by the learned counsel for the appellant. As the maker of the statement itself was available for examination before the trial Court not much value can be ascribed to her previous statement before the Magistrate recorded after thirteen days of the arrest of the appellant. Without dilating upon the question whether this statement would be admissible as admission of guilt by the appellant in terms of Article 45 of the Qanun‑e‑Shahadat suffice to say that his conviction is not based solely on his admission of guilt. At any event, his admission before the Magistrate would neither constitute a judicial confession under section 164, Cr.P.C. as held in State v. Gulab Hussain PLD 1994 FSC 17 nor has it been considered as such. Reference to the judgments reported as Hukam Shah v. The State PLD 985 FSC 273 and Muhammad Naseer v. The State PLD 1988 FSC 58 is, however, misplaced and out of context.

16. No other point, was urged at the Bar.

17. For the aforesaid facts and reasons we are of the definite view that the conviction of the appellant is based on satisfactory reliable evidence and no exception can be taken to the conclusions drawn by the trial Court. Adverting to the question of sentence, appellant indulged in a gruesome and horrible offence of kidnapping of a minor girl with a view to commit Zina‑bil‑Jabr upon her without the least justification. Only circumstance pleaded for reduction of the sentence could be prime youth of the appellant, which has, however, not been found to be a mitigating circumstance in heinous and brutal kind of offences. He are fortified in this view by a Division Bench judgment of the Lahore High Court reported as Raza Khan v. State 1982 PCr.LJ 881, in which sentence of death for offence under section 364‑A, P.P.C. was confirmed and no leniency in the matter of sentence was shown. Accordingly appeal is without any merit and the conviction and sentence maintained. H.B.T./M‑289/K Appeal dismissed.