2002 PLP 2156 (YLR)

2. The facts in brief of the case as narrated by Muhammad Khalid through complaint, are that on the day of occurrence at about 11 a.m. the complainant sent his daughter Mst. Mah Para aged about 6 years to purchase sweet (Barb) from the shop of Muhammad Imran appellant. When she did not return after quite some time, he became worried and he himself proceeded towards his shop. Zulfiqar Ahmad and Haq Nawaz were also going towards the shop of the appellant. When they reached near the shop of Imran and were talking with each other Imran accused came out of the shop on hearing their conversation. The complainant and his companions entered in the shop of Imran, they saw that Mst. Mah Para was lying naked in unconscious condition. Her Shalwar was off. Blood was oozing from her vagina. Matter was reported to the police.

3. After receiving the information about the occurrence the police completed all the necessary proceedings and then Abdul Latif S.‑I. alongwith his subordinates proceeded to the spot and he inspected the place of occurrence. He took into possession the Shalwar P.2 stained with semen and blood vide memo. Exh.P.E. On the same day i.e. 17‑9‑2000, he recorded the statement of Mah Para victim vide memo. Exh.P.F./2. On 17‑9‑2000 he arrested the accused/appellant and he got him medically examined also, vide memo. Exh.P.D. Ultimately he prepared the challan and submitted for trial.

4. The prosecution in order to prove its case has produced as many as 10 witnesses including doctors, Investigating Officer, eye witnesses and other formal witnesses. Thereafter, statement of the accused/appellant was recorded under section 342, Cr.P.C. in which he pleaded not guilty and claimed to be tried.

5. Learned counsel for the appellant in support of this appeal submits that it is a case of circumstantial evidence, that there is no eye‑witness of the occurrence and that two eye‑witnesses produced by the prosecution are father and paternal‑uncle of the victim Mst. Mah Para, that there is an unexplained delay of six hours and 30 minutes in lodging the F.I.R. that the occurrence had taken place at some other place and had not taken place at the place where the prosecution wants this Court to believe, that Mst. Mah Para who was six years of age was produced before the learned trial Court but she was not found to be competent to make her statement so her statement could not be recorded. He submits that no case is made out against the appellant, that no neighbouring shopkeeper has either been interrogated, cited or produced by the prosecution to prove its case against the appellant, that there is no independent corroboration to prove the case against the appellant as all the eye‑witnesses are interested witnesses. Lastly he submits that for the sake of arguments if the submissions made by him do not find favour with this Court then he prays for lesser sentence because maximum sentence has been awarded to the appellant.

6. On the other hand learned A.A.‑G. assisted by the learned State Counsel submits that it was broad daylight occurrence. Parties were known to each other and there was no previous background of enmity between the parties, that prosecution has proved its case against the appellant beyond any shadow of doubt. They both support the judgment of the learned trial Court.

7. I have heard the learned counsel for the parties. In the instant case F.I.R. was lodged by Muhammad Khalid father of the victim Mst. Mah Para who was 6 years of age. On the day of occurrence at 11 a.m. when he was present in her house he sent his daughter Mah Para the victim of this case to the shop of Imran accused (appellant) to purchase sweet (Barfi). When for sometime Map Para did not return home the complainant became suspicious and he went to the shop of Imran appellant. When he was going there Zulfiqar Ali and Haq Nawaz P.Ws. were also going to the shop of Imran. When they reached there and were talking with each other, Imran appellant heard their conversation and he came out from the shop and ran away. Complainant became more suspicious and entered in the shop of Imran and he saw Mst. Mah Para lying naked in semi conscious condition. Her Shalwar was lying on the ground and blood was oozing from her vagina on which the complainant raised hue and cry. The other Mohallahdars attracted to the spot. Thereafter, he went to the police station and submitted an application for registration of the case. The police station was at a distance of 16 Kms. from the place of occurrence. In examination in‑chief the complainant had stated in categorical terms that Imran was related to him. No cross‑examination was conducted in this regard. Though, Mah Para was examined under section 161, Cr.P.C. on the same day but the learned trial Court did not think it proper after questioning her to record her statement. Both the eye‑witnesses namely Muhammad Khalid and Haq Nawaz, though, are father and paternal‑uncle of Mst. Mah Para but they have got no animous against Imran to falsely implicate him in this case. The contention of the learned counsel that offence had 'been committed but not at the place where the prosecution wants this Court to believe has no legs to stand because in cross‑examination it has come on record that the shop where the occurrence had taken place was owned by Imran appellant and there was signboard titled as Imran Cold Drinks Corner. The victim was found there by her father. Her Shalwar stained with semens and blood was also taken into possession from that spot and there was no evidence to disbelieve this important piece of evidence. It has also come on record during the cross-examination that the vehicles are not available from the place of occurrence to the police station so the delay in this case cannot any way dislodge the prosecution case. If the appellant was falsely implicated in this case, an application in this regard could have been made to the higher police Authorities for the transfer of investigation of the matter or a writ petition could have been filed before this Court for to transfer of the same. It is also important to note that the condition of Mst. Mah Para after the occurrence as per statement of Dr. Iqbal Ahmad, Gynecologist who has appeared as P.W.10 before the learned trial Court is as under:‑‑ "On 17‑9‑2000, I was posted in D.H.Q. Hospital Sheikhpura. Mst. Mah Para was referred to me for treatment. I treated her in the Operation Theater by stitching her vaginal tears. According to my report she was having a tear extending from parimeum upward into posterial vaginal wall about 2 inches long and 1 c.m. deep hymen absent. Vaginal wall tear and parineum tear repaired. She was given anasethesia by consultant Anesthetist Doctor Javaid Jaffery (underlining is mine)

8. After the perusal of this statement of Doctor Iqbal Ahmad, Gynecologist it proves that the act of the appellant was brutal one. Another contention of the learned counsel for the appellant is that nobody from the nearby shops has appeared in this case. Everybody known the social condition of the society. Independent and impartial people do not come forward to depose true facts against the culprits so that they may not earn enmity of the adverse party. As far as unnatural conduct of the P.Ws. is concerned, I may state here that the first anxiety of the father of the victim and her paternal uncle was to save the life of Mst. Mah Para minor who was semi conscious. The report of the Chemical Examiner Exh. P.A. regarding the swabs on the Shalwar is positive in nature. As far as semen grouping is concerned, the same according to the report of the Serologist which is on record as Exh.P.C., is as under:‑‑ "Specimen insufficient so grouping could not be done."

9. The appellant was also medically examined by P. W.5 Dr. Zulfiqar Ahmad Butt and he found him potent to commit sexual intercourse.

10. After having read the prosecution evidence, specially statement of two eye witnesses namely Muhammad Khalid and Haq Nawaz, report of Dr. Zahida Noor who examined Mst. Mah Para, examined as P.W.8 and the statement of Dr. Iqbal Ahmad, Gynecologist examined as P.W.10 coupled with the positive report of the Chemical F Examiner, I have no hesitation in my mind that the prosecution has proved its case beyond any shadow of doubt. There is no merit in this appeal and the same is dismissed. As far as contention of the learned counsel for the appellant that maximum sentence has been awarded to the appellant and it is a case of lesser sentence, is concerned, I do not agree with the same as the appellant has committed the actually with a minor girl of 6 years. With these observations, this appeal stands disposed of. Appeal dismissed. H.B.T./M‑1253/L