2021 P Cr (PLP)

ZULFIQAR ALI SANGI, J.

Through the instant appeal, appellant assailed the Judgment dated: 06.11.2018 passed by the learned Additional Sessions Judge-IV, Khairpur in Sessions Case No. 719 of 2017, Crime No. 10 of 2017 registered at Police Station Abdul Rehman Unnar, District, Khairpur, under sections 376, P.P.C.; wherein appellant was sentenced to suffer R.I for ten years and to pay fine of Rs: 50,000/=, in default, thereof, he was ordered to undergo S.I for 03 months more. The benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Brief facts leading to the prosecution case as per Judgment of the trial court are that Complainant Ghulam Nabi Shaikh lodged the FIR stating therein that Ali Murad Shaikh is his relative and on the day of incident complainant went to Sadar Ji Bhatyoon for purchasing household articles and his wife Mst: Mukhtiar had also gone to the house of neighbors and his daughter Miss. Fozia aged about 13/14 years was present in the house alone. After purchasing articles, the complainant was coming back to his house and in the way; he met with his brother-in-law Saindad and cousin Dildar who also accompanied him. At about 1630 hours when they reached outside the house of complainant they saw that the motorcycle of Ali Murad was parked outside of the house. When they entered into a house they saw Miss Fozia and Ali Murad naked and Ali Murad was forcibly committing Zina with her in the chapra constructed in the house and daughter of the complainant was crying. Thereafter, complainant party hakaled accused who seeing complainant party ran away. Thereafter, the daughter of the complainant after wearing shalwar by crying disclosed the complainant that accused Ali Murad seeing her alone in the house forcibly committed rape with her. Thereafter, the complainant appeared at a police station and registered the instant FIR. After completing the investigation, the Investigation Officer submitted the challan of the case against the accused.

3. The learned trial court framed the charge against the appellant to which he pleaded not guilty and claimed trial.

4. In order to prove the case, the prosecution examined PW-01 Ghulam Nabi, PW-02 PC Khair Muhammad, PW-03 ASI Kareemdad (investigation officer), PW-04 Dildar Shaikh, PW-05 victim Mst. Fozia Shaikh, PW-06 Azizullah Shaikh, PW-07 Women Medical Officer Dr. Aisha Khokhar and PW-08 Medical officer Dr. Jotoo Mal, the witnesses also produced the relevant documents in support of their evidence, thereafter the ADPP for the State closed the prosecution side.

5. Statement of accused/ appellant as provided under section 342, Cr.P.C. was recorded wherein he denied the allegations of prosecution and did not examine himself on oath under section 340(2), Cr.P.C. even not lead defence evidence.

6. The trial court hearing the counsel of the parties and appreciation of evidence convicted the appellant as stated above.

7. Learned counsel for the appellant contended that appellant is innocent and falsely been implicated by the complainant; that there are contradictions in the evidence which were not considered by the trial court; that complainant party has apprehended one Bashir alias Kandero who was committing Zina with the victim but they leave him and implicated the appellant; that recovered motorcycle was of said Bashir and not of the appellant; that Zina was not by force but it was by consent of the victim and said Bashir; that no DNA was held; that semen was not detected from the swabs taken by the doctor; that entire case was doubtful and lastly, he prayed that appellant may be acquitted by extending him the benefit of the doubt.

8. Learned Assistant Prosecutor General appearing for the State contended that prosecution has proved the case against the appellant beyond a reasonable doubt; that all the witnesses supported the case including the victim of Zina; that oral evidence is supported by the medical evidence; that it is not possible that one can leave the real accused of Zina and involved another person; that lady doctor who examined the victim confirmed that Zina was committed with victim Fozia. He lastly prayed that the sentence awarded by the trial court may be maintained and appeal of the appellant may be dismissed.

9. I have heard the arguments of learned counsel for the parties and have perused the material available on record with their able assistance.

10. The incident took place on 07-09-2017 at 1630 hours and the FIR was registered on the same day at 1830 hours (after two hours of the incident) which is prompt and the complainant has given all the particulars of the offence without loss of any time, therefore the question of false implication and substitution of the accused as alleged by the appellant could not arise.

11. PW-1 Complainant Ghulam Nabi the father of the victim Fozia fully supported the case; he deposed that this incident took place on 07-09-2017 and the appellant is his relative having visiting terms with him. He further deposed that on the day of the incident he went to Sadar ji Bhatyoon for purchasing some household articles and his wife also went to the neighbor's house, his daughter aged about 13 years was alone in the house. He deposed that he along with Dilbar and Saindad came to his house at 4-30 pm and saw one motorcycle was standing outside of his house and when they entered in the house they saw appellant was naked and was committing Zina with his daughter Fozia who on seeing complainant party run away leaving his motorcycle on spot. The complainant immediately approached the police where his FIR was registered. He was cross-examined by the defence counsel but his evidence was not shattered. His version was supported by the other eye-witness PW-4 Dildar. The victim Mst. Fozia was also examined as PW-5 and deposed that on 07-09-2017 his father went outside of the house and at 4-30 pm she was alone in the house, appellant came into the house and removed her shalwar and started Zina with her she cries and her father and maternal uncle Saindad and Dilbar came there, on seeing them accused after taking his shalwar runaway. She narrated the facts to her father who lodged the FIR, she was examined by the doctor and her statement was recorded by the police. All these witnesses were cross-examined but no major contradiction is pointed out by the defence counsel.

12. The ocular evidence is corroborated by the medical evidence. Dr. Aisha was examined as PW-7, and she deposed that on 09-09-2017 she examined the victim Mst. Fozia, she was subjected to Zina, and she found that hymen was ruptured. On pelvic examination, only pubic hairs appeared. The doctor took two vaginal cotton swabs and sent the same to chemical laboratory Sukkur at Rohri for semen analysis. The probable duration between the incident and examination was about three days. She issued such a provisional medical certificate on 18-09-2017 and she also received the report from chemical laboratory and on that basis, she issued the final medical certificate in which she opined that "Sexual intercourse has been committed with the victim". She was cross-examined and during cross-examination, she denied the suggestion of defence counsel that she issued a false certificate without any justification.

13. PW-8 Dr. Jotoo Mal deposed that on 20-09-2017 he examined accused Ali Murad aged about 25 years. He was well oriented with time and space. He was found cooperative. He also examined penile of accused no abrasion was around the penis, accused looks young, adult and physically fit for committing the intercourse. This witness was also cross-examined but I do not find any substance which favours the appellant.

14. Besides the other witnesses, the investigation officer was examined who deposed on the day of the incident he inspected the place of incident, he collected the motorcycle CD-70 left by the accused, prepared mashirnama of inspection of the place of incident in presence of mashir Azizulah and Muhammad Alam. He recorded the statements of the witnesses including the victim of Zina. He furnished an explanation for the delay in the medical examination of the victim and deposed that on 08-09-2017 Miss. Fozia was produced before the WMO RHC Pir Jo Goth but she refused to deal with the matter, Investigation officer Exhibited one latter at Ex: 6-G from which it reflects that after refusal by WMO he sent the latter to District and Sessions Judge Khairpur in which mentioned entire facts about the delay in examination of the victim, Victim was medically examined by the doctor on 09-09-2017. He further deposed that he sent the swabs to the chemical laboratory at Rohri. He further deposed that he arrested the appellant on 19-09-2017 and 20-09-2017 produced him before the doctor for examination and after collecting such reports he submitted challan before the court. He was cross-examined at length but no major contradictions are found in his evidence.

15. The defence plea taken by the appellant during the cross-examination was that the offence of Zina was committed by one Bashir Ahmed Shaikh who was released by Police and appellant was implicated in the offence due to an old enmity with complainant party, from the defence taken by appellant and evidence of doctor it appears that victim Miss. Fozia was subjected to Zina and the day as alleged by the prosecution.

16. On the assessment of evidence, oral as well as medical evidence and recovery of motorcycle from the spot left by the appellant I found that the prosecution proved its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy, confidence-inspiring evidence. In the instant case, the appellant in his statement under section 342, Cr.P.C. has simply denied the allegations and has not taken the defence as has been taken during the cross-examination of witnesses.

17. The contention of learned counsel regarding the absence of DNA report has no force as there is direct/ oral evidence supported by medical evidence, and recovery of motorcycle left by the appellant and the victim herself had stated that established the case of the prosecution against the appellant beyond a reasonable doubt. I do not see any reason why the victim girl aged about 13 years and her father would falsely implicate the appellant and bring upon them societal odium. The learned trial Judge has rightly convicted the appellant and has already taken a lenient view while convicting the appellant. Reliance can be placed on the judgment passed by honourable Supreme Court dated; 03.03.2020, passed in Jail Petition No.712 of 2018.

18. Based on the above reasons, the conviction/sentence awarded by learned Additional Sessions Judge-IV, Khairpur in Sessions Case No.719/2017, Crime No.10/2017 of PS Abdul Rehman Unnar for the offence under section 376, P.P.C. is maintained and the appeal filed by the appellant is dismissed. SA/A-137/Sindh Appeal dismissed.