1994 P Cr (PLP)

MUHAMMAD ILYAS, J: -- This is an appeal by Zahoor Ahmed, who has been convicted under subsection (3) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, by Mr. Zulfikar Ali Malk Additional Sessions Judge, Layyah, vide his judgment, dated the 25th February, 1993, and sentenced to undergo rigorous imprisonment for 14 years and to suffer whipping by twenty stripes.

2. The prosecution case is that Mst. Bashir Mai (P.W.5), a virgin girl of 14 years, was going home alone, after working in the fields when the appellant dragged her into a field of cotton crop and started committing Zina-bil-Jabr with her, after removing her trousers. She raised alarm which attracted Ameer Usman (not examined), Bashir Ahmed (P.W.3) and Ghulam Rasul (P.W.9). On seeing these witnesses, the appellant took to his heels.

3. Prosecution examined as many as 10 witnesses to prove its case. Dr. Faqir Hussain Shah, (P.W.1) examined the appellant and found him fit to perform sexual intercourse. Dr. Sartaj Tirmzi. W.M.O. (P.W.2) examined Mst. Bashir Mai and recorded following observations in her report, Exh.P.B.: "For rape only: I have examined the abovesaid lady. She is mentally and physically good. No sign of violence on her body at the time of examination. Examination of private part: Breasts are rounded firm aroalue and pink (normal) colour. Pubic hairs are not matteled with any type of stain, in lithotomy position, labia majora covering the labia minora. Vaginal orifice not visible in the lithotomy position. Hymen not intact, torn at pheripheri reddish margin, which not bleed on touch. Two fingers forcibly pass in vagina." The Lady Doctor obtained her vaginal swabs and sent them for chemical examination. Exh.P.K is the report of the Chemical examiner in which it was stated by him that the vaginal swabs were not stained with semen. Bashir Ahmad, A.,S.I. (P.W.3) kept the phial containing vaginal swabs in safe custody. Roshan Din, S.I. (P.W.4) arrested the appellant. Mst. Bashir Mai (P.W.5) is the victim in this case. She supported the prosecution story. Bashir Ahmed.(P.W.6) and Ghulam Rasul (P.W.9) were attracted by the alarm raised by her. They corroborated her statement in this regard. Noor Ahmed (P.W.7) carried the parcel, containing vaginal swabs, to the Chemical Examiner. Ghulam Haider (P.W.8) is father of the victim. He stated that he was told by the victim that she was forcibly subjected to Zina whereupon he lodged complaint at the Police Station Kot Sultan, District Layyah. Ghulam Qadir S.I. (P.W.10) investigated the case, challaned the appellant and sent him to face trial on charge under subsection (3) of section 10 of the said Ordinance.

5. The appellant pleaded not guilty and claimed to be tried. He refuted the prosecution version and pleaded alibi and enmity with Ghulam Haider complainant. It was also stated by him that Mst. Bashir Mai was not of good moral character. His statement in this regard reads as follows:-- "Mst. Bashir Mai was not of good character. People saw her talking with her some friends. Her parents falsely got the case registered against me in order to avoid bad name. There was dispute between my father, owner of the cloth shop and Ghulam Haider complainant over money and, therefore, I was falsely involved. I am innocent. At the time of the occurrence, I was present in Mauna Kalrowala to see wrestling bout, and Allah Wasaya, Ghulam Shabir and Muhammad Nawaz were also present in those bouts with me till the evening. After saying evening prayers with Ghulam Shabir, I came back home: The appellant examined Haq Nawaz, Patwari (D.W.1) and Ghulam Shabbir (D.W.2) as defence witnesses. He did not appear as his own witness. 6. learned Additional Sessions Judge found that the prosecution had been able to establish the case beyond reasonable doubt. He, therefore, convicted and sentenced the appellant as aforesaid.

7. It was contended by learned counsel for the appellant that the prosecution had failed to prove its case to the hilt and, therefore, the appellant deserved to be acquitted.

8. The first contention raised by learned counsel for the appellant was that the vaginal swabs obtained at the time of medical examination of the prosecutrix were not found to be stained with semen. This, by itself, is not sufficient to discard the prosecution version because penetration can take place without resulting in discharge of the male organ. According to the Lady Doctor, Sartaj Tirmzi (P.W.2), hymen of Mst. Bashir Mai was not intact. The Lady Doctor further said that the victim was not used to sexual intercourse. This shows that penetration had taken place during the occurrence and it has been stated in the explanation to section 6 of the said Ordinance that penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina-bil-Jabr. In Yasin and another v. The State 1986 S C M R 512 also semen was not found in the anus of the victim and yet the offence of sodomy was held to have been committed. Report of the Chemical Examiner I is, therefore, of little avail to the appellant.

9. Second argument advanced by learned counsel for the appellant was that according to the lady Doctor some hard substance had been introduced in the vagina. She did not say so in the report initially made by her. Remarks in this regard were recorded by on receipt of the Chemical Examiner, perhaps due to the reason that Chemical Examiner had given a negative finding. We have, however, held that his report makes little difference. It is also noteworthy that no question was put to the prosecutrix in respect of the insertion of any hard substance in her vagina. It is beyond our comprehension that any father would ask his daughter to have recourse to such an act due to the reason that he owes debt to the father of the person who is sought to be involved in a case of Zina in this manner. If a false case had to be concocted against the appellant, the complainant could inflict injuries on his own person or that of her daughter and say that the appellant had made a murderous attack. As held in Saeed v. The State 1992 P Cr. L J 1817 page 1822 (FSC), "people in this country due to enmity over trifle matter of business or for likewise matter do not put at stake their honour or that of their women-folk generally and unmarried females particularly". Keeping all this in view, we are not influenced by the report of the Lady Doctor with regard to hard substance.

10. Third plea of learned counsel for the appellant was that there was no eye-witness of the occurrence. It is true that neither the prosecutrix nor Bashir Ahmed (P.W.6) and Ghulam Rasul (P.W.9) have stated that they (Bashir Ahmed and Ghulam Rasul) had seen the commission of Zina by the appellant but they did say that on her raising alarm both of them (Bashir Ahmed and Ghulam Rasul) came to the spot whereupon the appellant had run away. It was also stated by Bashir Ahmed and Ghulam Rasul that they saw the prosecurtix without a Shalwar (trousers) on her person. These circumstances do render support to the statement of the prosecutrix with regard to the commission of Zina even if Bashir Ahmed and Ghulam Rasul had not actually seen the commission thereof. There is nothing against Bashir Ahmed. As for Ghulam Rasul, he is simply related to the prosecutrix but it does not appeal to reason that a person would involve a virgin girl, related to him, in a false case of Zina, and thus spoil the whole career of the girl.

11. Fourth point canvassed by learned counsel for the appellant was that the offence of Zina was allegedly committed in the cotton-crop field of Ahmed Bukhsh but according to copy of Khasra Girdawari, Exh.D.C./1-4, produced by Haq Nawaz, Patwari (D.W.1), no cotton-crop was there in any field of Ahmed Bukhsh. This is not correct because entries appearing in the said copy indicate that cotton-crop had been sown in the fields of Ahmed Bukhsh bearing Khasra Nos.88/5 and

6. The prosecutrix had not given the exact Khasra number of the field concerned. Thus, the contention of the learned counsel based on Khasra Girdwari is of no help to the appellant.

12. It was said by the appellant in his statement that the prosecutrix was not of good character but this plea was belied by the Lady Doctor by saying that she was not used to sexual intercourse before the present occurrence. Also, there is no evidence to support his said statement. As for the plea of alibi, there is no evidence except the statement of Ghulam Shabbir (D.W.2) which is not corroborated by any document or by the statements of other persons who were allegedly present at the time of bouts. The plea of alibi was also not put to any of the prosecution witnesses. It is, therefore, an afterthought. In the circumstances, we are not impressed by the bald statement of Ghulam Shabbir in the matter.

13. One more argument presented by learned counsel for the appellant was that there is delay in making the F.I.R. It is true that there is delay of about two days but it has been explained in the F.I.R. as follows:-- This is a plausible explanation. No benefit can, therefore, be given to appellant I p on account of short delay in lodging the F.I.R.

14. It seems that the appellant belongs to an influential and well-to-do family while the prosecutrix is daughter of a poor labourer. Seemingly, the appellant had tried to do his best to create difficulties for the complainant at every step and has also attempted to gain some points to avoid a penal action, but with no advantage. Having gleaned through the whole case we are perfectly satisfied that he committed Zina-bil-Jabr with the prosecutrix and would, therefore, like him to suffer the consequences thereof.

15. Resultantly, we uphold the conviction of the appellant. Sentences E awarded to him, being not harsh, are also maintained. With these observations, the appeal is dismissed.

16. The appellant is present on bail. He shall be arrested forthwith and sent to jail to undergo the remaining sentences inflicted on him by the learned trial Court and upheld by us. He shall, however, have the benefit of the provisions of section 382-B of the Code of Criminal Procedure. N.H.Q./858/FSC Appeal dismissed.