1998 PLP 1175 (MLD)

To certain suggestions during cross the victim has replied:- "I had resisted the commission of Zina but accused forcibly put my clothes off. No abrasion of scratch had occurred. I did not nail the accused in defence. My vagina had blooded and bedding and clothes were stained. My Shalwar was also stained. My Shalwar was not produced before police or doctor. I was subjected to Zina for the first time. No body turned up except P.Ws. from the locality." A nubile virgin of 11/12 years could not resist under the threatening circumstance she was placed in. The apex Court of Pakistan has already given a comprehensive ruling on such circumstances which is binding for me. It is cited as 1990 SCMR 886 and reads:-- In the case of Muhammad Riaz v. State reported as 1997 P. Cr. L. J 114 a D.B. of this Court rejected such a plea in almost identical circumstances. In fact such rapes occur without warning and the trauma of surprise is so great for the victim that she loses al abilities to resist. Another contention for appellant is that the victim Mst. Sami; (P.W.9) has improved upon complaint (Exh.P.G.) in the following words:-- "He gagged my mouth and on pistol point asked not to raise alarm." This is not an improvement but furnishing the details of the incident. It is not of such material substance so as the story of prosecution stands set aside. The contention is repelled.

4. The only defence comes up from certain suggestions in line with appellant's reply to a question during his statement under section 342, Cr.P.C. The question and answer is reproduced:-- Q. Why this case against you and why the P. Ws. deposed against you? Ans. Actually complainant party belongs to our brother and father of Samia Bibi wanted to marry his son Muhammad Jamil with my sister Mst. Nasira Bibi and they repeatedly asked the hand of Mst. Nasira Bibi for Jamil but my father refused, for this grievance they concocted a false case against me and even after the registration of the case and during the trial the complainant party has repeatedly asked the hand of Nasira Bibi with a promise to get me released from this case but my family did not"` agree to this proposal, so the complainant and the P. Ws. who are closely related have falsely deposed against me. " Appellant declined to be examined on oath and did not produce any defence. The reply to the question quoted above is neither corroborated nor does it inspire confidence. I do not see any reason for putting the family honour and future of a nubile virgin who had hardly attained her puberty, at stake for such a petty matter as suggested by the `appellant side. In fact appellant has no defence whereas prosecution has proved its case up to the hilt. War against Rape has been waged by all the societies, whether advanced culturally or lagging behind from materialistic point of view. Shariat has been very strict in this regard. A rapist cannot claim mitigations as has been claimed in the present case due to appellant's being of about 19 years of age at the time of occurrence.

5. The upshot of the discussion is that the impugned judgment is upheld with the modification that stripes are not to be inflicted as the conviction and sentence have not been awarded as a Hadd. Appeal is dismissed. H.B.T./1180/FSC Appeal dismissed.