2018 P Cr (PLP)

MUHAMMAD SHERAZ KIANI, J.

The above titled appeals have been directed against the judgment passed by the learned District Court of Criminal Jurisdiction Muzaffarabad dated 30.08.2016, whereby the appellant, Ahtisham Mughal was convicted and awarded sentence under section 364-A, A.P.C. and 18, Z.H.A. for seven years' R.I. and three years' R.I. respectively.

2. Brief facts forming background of the instant appeals are that complainant Dr. Mehmood Hussain Kiani, lodged a report on 03.08.2014, at Police Station Civil Secretariat Muzaffarabad, stating therein that he is resident of Sund-Gali Upper Chatter. On that day, his daughter aged 8 years, who was studying in class three at Dukhtran Islam Academy, at about 3:30, when she was playing outside in front of her home, suddenly an unknown person put his hand on her mouth and took away to an under construction house and committed rape forcibly and then released her. On the pointation of her daughter, the owner of the house was Ibrar Qureshi son of Ahmed Din Qureshi resident of Sund-Gali where she was subjected to the lust of the offender. She also disclosed the features of accused as clean shaved and he was wearing dress of light brown colour at the time of occurrence.

3. On filing of this report a case under sections 364-A, A.P.C. and 10, 18, Z.H.A. was registered as FIR No. 115/2014 against an unknown person and investigation was started. During investigation, the complainant filed another application, wherein he nominated Ahtisham Mughal convict as accused, who committed unnatural act with his daughter. On registration of said complaint the accused fled away to Lahore and was arrested on 03.09.2014. After his arrest the victim Mst. Marryaim also identified him and during investigation it was established that accused committed zina with daughter of complainant.

4. After completion of investigation, challan was submitted against the aforesaid accused. The accused, Ahtisham Mughal was examined under section 242, Cr.P.C. wherein he pleaded not guilty and opted for the trial of the case. The learned trial court directed the prosecution to produce evidence in support of its case. Prosecution produced eight witnesses out of nine. After completion of prosecution evidence, an opportunity was provided to the accused for explanation, under section 342, Cr.P.C. wherein he again refuted the allegation levelled against him and submitted that false evidence and recoveries have been made against him. Accused also recorded his statement on oath under section 340(2), Cr.P.C.

5. The learned District Court of criminal jurisdiction Muzaffarabad after hearing the learned counsel for the parties convicted the accused, Ahtisham Mughal under section 364-A, A.P.C. for seven years' R.I. and under section 18, Z.H.A. for three years' R.I. He was acquitted in the offence under section 10, Z.H.A. Convict-appellant was also given the benefit of section 382(b), Cr.P.C. vide its judgment dated 30.08.2016, hence these appeals. One appeal filed by the convict-appellant for setting aside the conviction order, while the other appeal filed by the complainant for enhancement of sentence and also against the acquittal order recorded in offence under section 10, Z.H.A. As both the appeals arise out of the same judgment, therefore, these are being heard together and decided through this common judgment.

6. Kh. Arshad Mehmood, Advocate the learned counsel for the convict-appellant argued that Court below committed grave illegality while recording the impugned judgment. He further argued that convict-appellant was not nominated in the FIR. There is contradiction in the statement of victim recorded before the trial Court. The offence under section 364-A, A.P.C. does not attract against the convict-appellant because the victim was not recovered from him. The prosecution has miserably failed to prove his case against the appellant, but the trial Court failed to appreciate the same in its true perspective and arrived at wrong conclusion. Zahoor-ul-Haq was shown to be the eye-witness, who stated to have seen the accused in company of the victim recorded his statement under section 161 of Cr.P.C. after one month of the occurrence. The said witness is a government employee and working at Hattian-Bala, therefore, his presence at the place of occurrence was also doubtful. The doctor, who examined the victim stated that the victim was brought to her at l:00 a.m. night and it was written that she was subjected to unnatural act 4/5 hours before the examination, while according to FIR occurrence took place at 5:00 p.m. evening, which also casts serious doubt upon the prosecution story. The convict-appellant was also acquitted in offence under section 10, Z.H.A. No independent witness has been cited. Finally, the learned counsel prayed that by accepting the appeal, the convict-appellant may be acquitted of the charge. In support of his contentions, the learned counsel referred the following authorities;- 1. 2002 PCr.LJ 2021. 2. 1988 PCr.LJ 1978. 3. 1988 PCr.LJ 1978.

4. PLD 1989 FSC 72.

7. On the other hand, Messrs Maqsood Ahmed Qureshi and Sardar Jameel Khan, Advocates the learned counsel for the complainant/ appellant while controverting the arguments raised by the learned counsel for the convict-appellant has submitted that the convict-appellant involved in heinous offence and committed zina with a girl of tender age of 8 years. Convict-appellant is a habitual criminal and he is also involved in many other cases. The learned counsel further contended that the prosecution has proved its case beyond any shadow of reasonable doubt, but the trial Court without giving maximum punishment awarded lesser sentence, which is not the requirement under law. Finally, the learned counsel prayed that by accepting the appeal, the sentence awarded to the convict may be enhanced. In support of his contentions, the learned counsel referred the following authorities;- 1. 2005 PCr.LJ 793. 2. 2010 SCR 01.

3. PLD 2010 SC 47. 4. 2002 YLR 137.

8. The learned AAG, supported the arguments raised by the learned counsel for the complainant.

9. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

10. It may be stated here that although convict-appellant, Ahtisham Mughal was not nominated in the FIR however, later on, on the second application filed by the complainant, wherein he specifically nominated the convict-appellant and shown his full suspicion upon him. The convict-appellant remained absconder after the occurrence and he was arrested from Lahore on 03.09.2014. The learned counsel for the convict-appellant strenuously argued that the convict-appellant was neither nominated in the FIR nor victim was recovered from him, as such the offence under section 364-A, A.P.C. does not attract in this case. In this regard it is pertinent to note here that section 361, A.P.C. is very much clear, wherein it is provided that whoever takes or entices any minor without the consent of guardian is said to have committed kidnapping. For having true perception, I would like to reproduce section 361, A.P.C., which reads as under;- "

361. Kidnapping from lawful guardianship. Whoever takes or entices any minor under fourteen years of age, if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship." Therefore, in view of above provision of law, it is crystal clear that when anyone who takes or entices any minor from his lawful guardian is said to have committed the offence, irrespective of the fact that minor/abductee is recovered from the accused or not and whether rape is committed or not. Once a person entices any minor female less than age of 16 years and takes away without the consent of the guardian, he is said to have committed the offence of kidnapping. It is to be noted even that the consent of the minor does not exonerate the offender. Once the accused took away the child, offence completed. In a similar case reported as 1990 SCMR 323, the Supreme Court of Pakistan observed in the following words;- "The prosecution evidence shows that the accused had picked up the little child and was taking him towards the forest and that he was apprehended, with the child in his arms, more than two furlongs from the spot from which he had picked him up. The Court below was, therefore, right in holding that the evidence showed that the offence under section 363, P.P.C., fully established the case of kidnapping a minor child from the lawful guardianship."

11. Furthermore, P.W.2, Zahoor-ul-Haq, who had seen the convict-appellant when he was taking the daughter of the complainant along with him, he also identified the convict. The victim child girl also appeared in the witness box and supported the version taken by the prosecution and she also identified the convict-appellant. The learned trial Court, after putting some questions to the victim certified that she was enough intelligent to understand and narrate the occurrence and her narration with the corroborative evidence is enough to convict the accused. In such cases single evidence of a victim, if shown to be confidence inspiring can be made a basis of conviction, as generally such offences are committed behind the curtain, not in front of the public, so, the insistence of the defence for more ocular evidence is not tenable. My this view finds support from the case reported as 2004 PCr.LJ 716, wherein it was held as under;- "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 22.05.1999 at about 7:00 a.m. The matter was reported to the police on the same day i.e. 22.05.1999 at 3:15 p.m. without any notable delay. She was medically examined on the same day i.e. 22.05.1999. The statements 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 1979 is fully established. The learned trial Judge has awarded seven years' R.I. which according to the learned AAG, 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."

12. The lady doctor Dr. Sadaf Yaqoob Mughal, who examined the victim, Mariyam and prepared the medico legal report Ex.PPP stated in her Court statement that she examined the victim and found redness and swelling on her private parts. The relevant portion of the report is given below:- "Redness and swelling of labia majora which shown the attempt of rape." The above opinion of the Doctor when read with the statement of the victim is sufficient to prove the offence of attempted rape under section 18, Z.H.A. In such matters even solitary evidence is sufficient to prove the case. My this view finds support from the case reported as PLD 2010 SC 47, wherein it was held as under:- "The appeal has been examined on the touchstone of the criterion as mentioned hereinabove. By now it has been well-settled if the statement of prosecutrix is considered trustworthy, no corroboration would be needed and such need would only arise in the circumstances indicating the possibility of her being consenting party to sexual intercourse which is a rare phenomenon in case of Zina-bil-Jabr. In such like cases the corroboration of evidence of such a character which could connect the accused directly or indirectly with the alleged offence. Be as it may the statement of Mst. Asia Bibi (P.W.1/prosecutix) has been corroborated by medical evidence. Chemical examiner's report and the recovery of naked photographs, video film and movie camera which was got recovered at the pointation of Arshad. The naked photographs and video film were watched by the trial Court and hence we have no hesitation in our mind to hold that the recovery of naked photographs and video film and medical evidence lend full corroboration to the statement of Mst. Asia Bibi (P.W.1/prosecutix)."

13. Convict-appellant recorded his statement on Oath, but he failed to produce any other evidence in defence and his statement is not sufficient to rebut the prosecution evidence. He stated that he went Lahore to purchase some spare parts of the vehicle, but he could not produce any such purchase receipts or voucher. So soon after occurrence he left the area and after one month arrested from Lahore indicates that he absconded, which further strengthened the prosecution version. So, the prosecution has proved its case beyond any shadow of reasonable doubt against the convict-appellant that he enticed the victim for sexual intercourse; however, he failed to do so, but made an attempt, which is proved from medico legal report when read with statement of victim. The convict could not bring on record any enmity of the complainant against him. In absence of element of any enmity it cannot be believed that a father can involve his minor daughter of 8 years old in such ignominious act affecting her future as well. Thus, there is no possibility of any false implication of the convict. The record reveals that previously another case of the same nature was also registered against him, however, there is nothing on record about his conviction. It may also be noted here that under section 237, Cr.P.C., if any accused is not charged in an offence, but after conclusion of the trial he is found guilty to have committed any other offence then he can be convicted in that proved offence. Section 237 of Cr.P.C. reads as under:- "

237. When a person is charged with one offence, he can be convicted of another; (1) If in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it." So, it is proved that convict-appellant has committed the offence under sections 364-A, A.P.C. and 18, Z.H.A. Therefore, the learned Court below committed no illegality or irregularity while convicting the accused through impugned judgment.

14. It has also been submitted that convict-appellant may also be sentenced in offence under section 10(2), Z.H.A. So far as the allegation against the convict-appellant under section 10(2), Z.H.A. is concerned, in this regard the MLR Ex.PPP states that the attempt of rape was committed. Although, it has been clarified that due to washing of the private parts of the victim, semen were not found, but sufficient evidence of penetration or semen when not available, the benefit of doubt to the extent of Zina has rightly been given to the convict-appellant.

15. With regard to the enhancement of the punishment of the accused/convict, the case of the prosecution merits consideration. The cumulative reading of the evidence shows that the convict-appellant is not an ordinary culprit. He comes within the definition of an hardened, desperate and habitual criminal. P.W. Shoukat Hussain deposed in his Court statement that previously another case No.28/11 in offence under section 18, Z.H.A. was also registered against the convict-appellant. It is also averred in the content of the appeal filed on behalf of the complainant that in that case convict-appellant was acquitted due to compromise with other party. In support of his contention an affidavit has also been filed by the complainant. Furthermore, the complainant in his Court statement narrated the previous record of the convict-appellant in the following words;- Although previous cases mentioned in the above para, besides the case No.28, were not reported before police, but it is a common observation that generally such type of cases are not reported due to the fear and disgrace or lengthy trial and agony of litigation. From the defence side no evidence has been produced which may suggest that convict-respondent was of good character and no such alleged incident ever taken place. So when it is proved beyond any reasonable doubt that convict-appellant after kidnapping a girl of 8 years age and made an attempt of rape, he does not deserve any leniency. The learned trial Court has awarded minimum punishment under section 364-A, A.P.C. The maximum punishment is death sentence or imprisonment for life or rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years. So, the offender who is hardened, desperate and dangerous criminal, and as his previous record also shows his tendency to commit such offence, does not deserve such leniency, but at the same time as the offender is previous non-convict and other cases of rape etc. were not reported against him, therefore, in my view death penalty or life imprisonment would be much harsher and he is liable to be sentenced for imprisonment of 10 years' R.I. which would meet the ends of justice. Therefore, partly accept the Appeal No. 176/17 filed by the complainant, Dr. Mehmood Hussain Kiani and enhance the sentence of the convict-appellant to imprisonment of 10 years' R.I. instead of seven years' R.I under section 364-A, A.P.C., the other sentence under section 18, Z.H.A. is maintained. Consequently, the other Appeal No.177/17 filed by the convict-appellant is hereby dismissed. JK/10/HC(AJ&K) Order accordingly.