1985 P Cr (PLP)

Date, of hearing: 28th November, 1984. The appellant, who was sent up for trial for an offence punishable under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), by Police Station, Gaggo, District Vehari, was tried by the Additional Sessions Judge, Vehari, who convicted him under section 10(3) of the Ordinance and sentenced him to R.I. for seven years' and whipping numbering thirty stripes; has filed the instant appeal against his aforesaid conviction and sentences.

2. The prosecution case against the appellant is that Mst. Bilqis, wife of Allah Ditta, resident of Chak No. 132/E.B. aged about 40 years, accompanied by her husband Allah Ditta, made a statement before A.S.I., Nawaz Ahmad at Burewala Bus Stand (Exh. P.B.), which was recorded by him and was sent to Police Station Gaggo for registration of formal F.I.R. Mst. Bilqis stated in the application that on 11-5-1982 at noon, when her husband was away in connection with his work as labourer, Manzoor son of Channan Mochi resident of the same Chak came into her room, bolted the door and committed Zina-bil-Jabr with her. On her resistance he inflicted injuries on her breasts by scratching with his nail. She raised alarm on hearing which her husband Allah Ditta and Siddique son of Shamsuddin Jat, were attracted and on seeing whom Manzoor ran away. The people of the village had been entreating them not to lodge report till date. Therefore, she had come alongwith her husband to report.

3. A.S.I., Nawaz Ahmad took Mst. Bilqis to Civil Hospital, Burewala when Dr. Mrs. Ismat Jaffary examined her and found abraided area 8 c.m. x 2 c.m. in centre of lower portion of back, multiple nail scratch marks in area of 6 c.m. x 5 c.m. on left breast, and multiple nail scratch marks in area 6 c.m. x 4 c.m. on right breast. Mst. bilclis being a married woman and mother of eight/nine children no opinion regarding rape could be given but the doctor further stated that injuries on the back were by pulling on the ground and injuries on the breast were caused by nail scratches. The doctor had taken two vaginal Swabs and sent the same to the Chemical Examiner for analysis.

4. A.S.I., Nawaz Ahmad next inspected the scene of offence and prepared sketch of the same. He recorded the statements of the two prosecution witnesses under section 161, Cr.P.C. on the spot. He arrested the accused-appellant on 25-5-1982. On 30-5-1982 he got the appellant medically, examined by Dr. Riaz Ahmad Gondal, Medical Officer, Rural Health Centre, Gaggo, who upon examination gave the opinion that the accused was potent and able to perform sexual intercourse. A.S.I., Nawaz Ahmad then challaned the accused-appellant.

5. At the trial the prosecution produced seven prosecution witnesses namely, Allah Ditta, husband of Mst. Bilqis (P.W.1); Mst. Bilqis herself, complainant and victim (P.W.2); Muhammad Siddique (P.W.3); Dr Riaz Ahmad Gondal (P.W.4); H.C. Muhammad Azam, who was Moharrir of Police Station Gaggo and had received the complaint (Exh. P.B.) written by A.S.I., Nawaz Ahmad on the basis of which prepared and registered the F.I.R. (Exh. P.B./1); (P.W.5); Dr. Mrs. Ismat Jaffary, who examined Mst. Bilqis, (P.W.6), and finally A.S.I., Nawaz Ahmad the Investigating Officer, (P.W.7). Of these witnesses P.W. Muhammad Siddique did not support the prosecution and was declared hostile.

6. I have heard the arguments of the learned counsel for the parties and examined the record of the trial. Against the appellant there is ocular testimony of Mst. Bilqis and her husband Allah Ditta. The evidence of the aforesaid prosecution witnesses is fully corroborated by the evidence of Dr. Ismat Jaffary in that the abraided area at the back supports the version that she was raped on the floor. Multiple nai scratch marks on area 6 c.m. x 4 c.m. on the right breast and multiple nail scratch marks in area 6 c.m. x 5 c.m. on left breast also support the version of Mst. Bilqis that on her resistance the appellant had cruelly scratched her breasts causing injuries. The mere fact that the victim Mst. Bilqis made certain admissions in the cross-examination only go to show that her testimony is truthful. The statement that her, husband had beaten her as well as the appellant could not be considered as a piece of evidence against the prosecution inasmuch as the first reaction on the part of the irate husband on seeing someone having sexual intercourse with his wife would be that he would see rod, and would not be in control as to whether his blows strike only the assailant or even the assailed. Being in such a close mix up while committing sexual intercourse, the person giving blow specially in a blind rape could not discriminate as to on whom the blow falls. The further evidence about scratches on the breasts of woman and bruises on her back would indicate that she was not a consenting party. However, the fact whether she was a consenting party or not would not affect the criminal libility of the appellant. Her further admission that they used to go to the land of the accused to ease themselves and their cattle also used to trespass on the land of the accused could be even the motive on the part of the accused-appellant to forcibly ravish her but the accused appellant being the aggrieved party, it cannot be considered as reason for his false implication.

7. It is evident from the statement of Mst. Bilqis and her husband that she is the mother of 8 children and their elder daughter is 23 years old and herself a married woman. Since Mst. Bilqis was all the time staying with her husband the evidence with regard to the report of the Chemical Examiner (Exh. P.E.) that the swabs were stained with semen, would ordinarily not be considered as evidence against the accused-appellant, but looking to the entire evidence on the record of the case, it corroborates the evidence given by Mst. Bilqis about the appellant committing forcible rape on her. The very fact that Mst. Bilqis accompanied by her husband set out to report to the police even though there were entreaties by some of the local people and consequent delay in reporting the matter depicts the conduct of an elderly matron, who had been enraged by the great insult and dishonour done to her. The appellant in his statement under section 342, Cr.P.C. had stated that he had been falsely implicated by the P.Ws. due to previous enmity. He had not specified the nature of that enmity and had made only stereotype defence. An elderly woman, the mother of eight children, would not so readily compromise her honour and her image among her associates by adopting such methods for falsely implicating even an enemy. The position of the husband of the woman is similar and the great credit accrues to Mst. Bilqis for being brave and self-respecting enough in spite of the entreaties of some residents of the village to go to report the matter to the police.

8. Under the circumstances I have no reason to disagree with the learned Additional Sessions Judge, Vehari, that the guilt of the accused had been established beyond any doubt and I accordingly dismiss the appeal. M. A. K. Appeal dismissed.