2004 P Cr (PLP)

4. The prosecution in support of its case examined nine prosecution witnesses in all. Muhammad Ashraf A.S.‑I P.W.1 is a formal witness. P.W.2 Dr. Zulfiqar examined the appellant Zafar Naeem aged about 30 years. He was found to be capable to perform sexual intercourse, vide medico‑legal report Exh.P.B. P.W.3 Akber Ali, S.‑I. is the Investigating Officer. His statement and functions performed by him has been referred to (supra). P.W.4 Muhammad Asghar constable carried the sealed parcel containing swabs for onward transmission to the office of the Chemical Examiner. He delivered the same in his office on 27‑5‑2000. P.W.5 Mst. Maryam Bibi is the, complainant and mother of the victim Mumtaz Bibi. She reiterated tier statement already made by her in her statement Exh.P.C. She testified her earlier statement before police in Court under oath. Her statement in Court is in fact substantiating the same as already made by her. She was subjected to fairly long cross‑examination but nothing damaging to the prosecution case could be elicited from her. P.W.6 Mumtaz Bibi is the victim. She gave her age as 13 years at the time of her statement, which was recorded on 10‑1‑2002 i.e. after about two and half years of the occurrence, meaning thereby that at the time of occurrence, she was in between 11 and 12 years of age. Mumtaz Bibi supported the complainant's version on all material points. According to her, she accompanied by her brother Allah Ditta aged about 5/6 years went to the shop of the appellant Zafar Naeem. He made her brother to sit in the shop whereas she was caught hold and took to another room in the premises. Her Shalwar was forcibly removed and was made to lie down on the cot and Zafar Naeem appellant committed Zina‑bil‑Jabr with her. She raised hue and cry, which attracted Imam Bakhsh and Majeed P.Ws. Both the witnesses saw the occurrence. On seeing the witnesses, the appellant Zafar Naeem managed to run away. She was medically examined by the lady doctor. She was cross‑examined at length but the learned counsel after going through her entire cross‑examination could not point out anything, which would falsify her statement. Despite large number of questions touching various points, the victim could not be detracted from her version. She fully implicated the appellant and unequivocally stated that she was forcibly subjected to Zina‑bil‑Jabr. P.W.7 Muhammad Aslam A.S.‑I. received the vaginal swabs on 22‑5‑1999 and handed over the same on 26.5‑1999 to Muhammad Asghar Constable P.W. who transmitted the same to the office of the Chemical Examiner intact. P.W.8 Imam Bakhsh and P.W.9 Abdul Majeed, both the witnesses belong to the vicinity. They were attracted the place of occurrence on rearing the noise. Both of them have made statements in line with each other. Both witnesses stated unequivocally that they saw the appellant Zafar Naeem committing Zina‑bil‑Jabr with Mst. Mumtaz Bibi. They also stated that at that time Mst. Mumtaz Bibi was bleeding from her vagina. The witnesses also attested the recovery memo. Exh.P.E. of Shalwar, Qameez and Dopatta.

5. On close of prosecution evidence, the appellant was examined under section 342, Cr.P.C. He stated that he has been falsely implicated due to political rivalry with Ishaq and Shahid resident of the village.

6. The learned trial Judge examined Muhammad Asghar Constable as C.W.1. He was entrusted with the process to be served on the lady doctor Horia Maqbool, who was informed that she had left for Saudi Arabia. She submitted her report Exh.C.W.1/1. C.W.2 Dr. Rashida Shaheen was examined on behalf of Dr. Horia Maqbool, who was her colleague and identified her handwriting and signatures. According to the medical report Exh.P.F. submitted by Dr. Horia Maqbool, Mst. Mumtaz Bibi was stated to be a young girl and thin built. Her Dopatta, Shirt and Shalwar had blood stains. No other mark was seen on her body. Hymen was found to be torn with red bruises and irregular margins. The vagina admitted one finger with difficulty due to severe tenderence. A small pariannel muscular tear present about 1 c.m. in size. Three vaginal swabs both internal and external were taken and sent to the Chemical Examiner. As per the report of the Chemical Examiner Exh.P.H., the swabs were found to be stained with semen and blood.

7. The learned counsel for the appellant have vigorously argued that the appellant was possessed with reliable pieces of defence evidence but he was not afforded sufficient opportunity to produce evidence as such a grave injustice has occurred to him; that the medical evidence does not support the statement of Mumtaz Bibi; that the prosecution story was not acceptable or believable because according to the site plan the room behind the shop comprised only one door then how it was possible for the accused to escape or run away in the presence of two witnesses. That there were discrepancies in the statement of the witnesses, which falsify the entire prosecution story. Lastly, the envelope containing the vaginal swabs also contained the pieces of clothes were neither examined by the Chemical Examiner nor there was any mention. According to him the sealed envelope had been interpolated. As against this the learned Assistant Advocate‑General associated by Sardar Muhammad Farooq Khan, Advocate for the State contested the appellant's contention with the same vehemence and vigour. According to them the prosecution has proved the cafe against the appellant beyond any doubt. According to the learned Assistant Advocate‑General, the learned trial Judge has rather taken a lenient view by awarding seven years imprisonment.

8. Evidence has been gone through with the help of the learned counsel for the parties. First objection raised very emphatically by the learned counsel that no fair opportunity was afforded to produce his defence. This statement is contradicted by the record. According to the interim orders as contained in the order‑sheet the proceedings initiated on 15‑10‑1999 when complete challan was submitted in Court. Thereafter, various adjournments were granted which nullifies the contention raised by the learned counsel that proceedings were conducted with undue haste. A number of adjournments were granted to examine the appellant. The appellant has no doubt stated in answer to questions Nos.6 and 7 that he wanted to produce evidence in defence, yet in spite of opportunities, failed to do so.

9. More precisely statement was recorded on 30‑4‑2003 and hearing was adjourned to 21‑5‑2003 i.e. about three weeks time was allowed to him. Next date was fixed as 4‑6‑2003. On 4‑6‑2003, the appellant Zafar Naeem who is an educated person was present in Court himself. His counsel as well as the counsel of the opposite party and D.D.A. were also in attendance. It was categorically stated by the appellant that he did not intend to produce any evidence in defence nor he intended to appear as his own witness as permissible under section 340(2), Cr.P.C. The interim order has been signed by his learned counsel.

10. The learned counsel appearing on behalf of the appellant has not denied that the statement has been signed by the counsel, he however, adds that the appellant may be an educated person yet he is not well -versed with law and he was under influence of the counsel. The counsel did not advise the appellant properly. This plea on the face of it is totally devoid of force. The learned counsel, who has been defending the appellant throughout so effectively, cannot be treated to have acted against the interest of the appellant. Not only that from 4‑6‑2003, the matter was adjourned to 11‑6‑2003. The learned counsel himself prayed for adjournment, which was allowed and the case was adjourned to 18‑6‑2003. On 18‑6‑2003 after hearing the arguments the main judgment was pronounced. Mere perusal of the interim orders, it reveals that no injustice whatsoever has been done to the appellant nor learned trial Judge acted in any manner prejudiced to the appellant. This argument, therefore, is repelled.

11. Next contention that medical evidence does not support the victim's version is apparently misconceived. According to the lady doctor the victim a young girl, who was given her age as about 11/12 years, was found to have been subjected to sexual intercourse rather in a brutal manner. Various symptoms noted by the doctor proved beyond doubt that she was subjected to Zina‑bil‑Jabr. Mere fact that the tears of hymen were found to be old does not in any manner mean that she was not subjected to the illicit lust as stated by the victim. The argument as such is without any substance.

12. The question regarding discrepancies in the statements of the witnesses has although been raised by the learned counsel but when he went through the statements of the witnesses, especially victim and eye witnesses, no discrepancy worth the name could be picked up or pointed out. According to the learned counsel in the site plan, there was one door of the room, the venue of incident, then how the appellant could have managed to run away in presence of the two witnesses. Mere statement of the victim that he went out from the other door is of little significance but the learned counsel tried to make big capital out of the same. I, after going through the statement, find that all the witnesses made consistent statements. They supported and corroborated each other on all material points. None of the witnesses including the victim or the complainant has any motive or malice to implicate the appellant.

13. Learned counsel has laid rather much emphasis on the non‑production of the pieces of clothes i.e. Shalwar, Qameez and Dopatta etc. If these clothes have not been examined the whole prosecution case cannot be thrown out merely on this alleged lapse. According to the learned counsel the envelop containing had been interpolated, therefore, authenticity of the report of the Chemical Examiner looses its value. The submission is rather fallacious. Had there been any intention of interpolation or fabrication, the prosecution could have very conveniently obtained the report of the pieces of clothes being stained with semen etc. In nutshell it is observed with deference to the learned counsel that neither of the contentions raised by the learned counsel can find favour.

14. As noted above the prosecution evidence comprises of the statement of the victim, who is a young girl and her statement inspires full confidence. There does not appear any possible reason to falsely implicate the appellant by exonerating the real culprits. The occurrence took place on 22‑5‑1999 at about 7‑00 a.m. The matter was reported to the police on the same day i.e. 22‑5‑1999 at 3‑15 p.m. without any notable delay. She was medically examined on the same day i.e. 22‑5‑1999. The statement of the witnesses are supported on all material points by the medical report submitted by the lady doctor and her statement is further strengthened by the report of the Chemical Examiner. The prosecution as such has brought home the guilt of the appellant beyond doubt. His conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1997 is fully established. The learned trial Judge has awarded seven years' R.I. which according to the learned A.A.‑G. in the circumstances of the case is extremely inadequate. There is no appeal or revision either on behalf of the State or complainant, therefore, the same has to be maintained. 14‑A. As the result of the above discussions, the appeal is dismissed and the conviction and sentence of the appellant Zafar Naeem is upheld. N.H.Q./3/FSC Appeal dismissed.