2000 PLP 1863 (YLR)

This reference arises out of a difference of opinion between the learned members of District Court of Criminal Jurisdiction, Muzaffarabad, whereby the learned Sessions Judge accepted the appeal by the convict appellant Muhammad Yousuf and acquitted him, whereas the other member the learned District Qazi dismissed the appeal by the convict appellant and upheld the order recorded by the trial Court. The brief facts are that Mst. Rahim Bibi on the morning of 17‑8‑1998 left the house of her maternal grand-father at about 9‑00 a.m., while on her way to the house of paternal aunt Mst. Bibi widow of Majid. She came across the accused Muhammad Yousuf with a towel in his hands. She was then forcibly lifted by the accused and taken to a nearby the maize crop field. She tried but it was not possible for her to raise alarm as he had put the towel in her mouth. She was raped by the accused and had started bleeding. The accused 4fter committing the offence made good his escape from the scene. Therefore, Mst. Gulshan who was attending her cattle nearby attracted by her cry also arrived at the scene. The victim thereafter was taken by Mst. Gulshan to her house. Mst. Rahim Bibi victim had also narrated the whole story to her aunt, her mother and. her maternal grandfather. The accused tried to affect a compromise but the parents of the petitioner did not agree. Subsequently, on a written report made by the victim a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance was registered against the accused by the Kohari Police. After the necessary investigation, the accused was forwarded to stand trial for the offence, he was charged with in the Additional Tehsil Court of Criminal Jurisdiction, Muzaffarabad on 8‑10‑1985. The trial Court after due process of law convicted the accused by awarding him the sentence for four years rigorous imprisonment alongwith ten stripes by extending him the benefit under section 382 B, Cr.P.C. The convict appellant Muhammad Yousaf feeling aggrieved by the order of the trial Court, preferred an appeal before District Court of Criminal Jurisdiction, Muzaffarabad. The said Court could not decide the case as a difference of opinion arose between the learned members of first Appellate Court. Hence this reference. The learned counsel for the convict appellant argued that there was no direct evidence in this case as the only eye‑witness Mst. Gulshan was declared as hostile by the prosecution as she did not corroborate the version given by the prosecution. It was further argued that the statement of prosecutrix did not find any support from the Medico‑legal report, therefore, in absence of any corroboration, the sole statement of the victim could not form basis for conviction of the accused‑appellant. The learned counsel also submitted that the trial Court failed to look into the case in its true perspective keeping in view the evidence on record. The learned Sessions Judge had rightly observed that the case against the accused was not satisfactorily proved and the learned District Qazi fell in error while dismissing the appeal by the convict‑appellant. According to the learned counsel, the statement of concerned doctor showed that no semen‑stains were found on the Shalwar of the victim neither the outer part of vagina was stained with semen. Therefore, in such‑like position it was not safe to convict the accused. The learned counsel also argued that a motive to falsely implicate the convict‑appellant was there and when the evidence on record was 'seen in the light of the motive, the right course was to acquit the accused by giving him the benefit of doubt. During the arguments the learned counsel for ‑the convict‑appellant referred the case‑law, PLD 1986 FSC 362, 1985 SCMR 1503 and PLD 1988 FSC 3 and maintained that in presence of the case‑law available on the subject and the evidence on record the convict‑appellant deserved his acquittal. On the other hand, the learned Assistant Advocate‑General argued that the statement of prosecutrix stood corroborated by the Medico‑legal report, recovery of blood‑stained clay taken into possession by the police from the place where the victim was subjected to rape. He further argued that though Mst. Gulshan Bibi was declared as hostile but the said witness was a relative of accused, therefore, she fell in connivance with him and thus abstained from making a truthful statement. The learned Assistant Advocate‑General also submitted that the convict‑appellant resorted to the plea of alibi and he was under a heavy burden to prove the same but he failed to do so. He also referred the case‑law; PLD 1982 FSC 123 and PLD 1982 SC (AJ&K) 28 in support of his contentions. The record of the case and the orders recorded by the Courts below were carefully examined. In this case Muhammad Yousuf is nominated in the F.I.R. which was lodged by the victim without any delay. The role in the F.I.R. is unambiguous. According to the statement of victim, he committed rape with her and resultantly her Shalwar was stained with blood. The police after registration of the case referred the prosecutrix for medical examination. She was medically examined on 18‑8‑1988. The doctor after examination observed that the hymen of prosecutrix was ruptured recently. Her vaginal tears on the posterior vaginal wall present which was irregular in shape of a size 1 inch x 1 & 1/2 inch. The blood was there and the duration of sexual intercourse was 24 hours i.e. one day. Her age by appearance and by X‑ray report was recorded as 13 years and therefore, the doctor confirmed the fact of rape with her. The doctor who conducted her medical examination also appeared before the trial Court. She affirmed her report to be correct. However, she stated before the Court that she did not find any blood stains on Shalwar of the victim. This statement might to be result of lack of memory as the blood‑stained Shalwar was not exhibited at the time of her statement before' the Court. However, the absence of blood stains on Shalwar by itself does not make the prosecution case doubtful. The blood‑stained Shalwar was taken into custody by the police in presence of witnesses. The attesting witnesses to recovery memo. pertaining to Shalwar also appeared before the Court and they testified the fact of recovery of Shalwar stained with blood. The victim while recording her statement also identified the Shalwar which she was wearing at the time of rape and it was blood‑stained as noted by the trial Court. The police also took into custody the blood‑stained clay from the place where the prosecutrix was subjected to rape and blood‑stained clay alongwith blood stained Shalwar were sent to Chemical Examiner. The Chemical Examiner Report shows that both the articles were stained with blood. The statement of the doctor and the report submitted by her, after examining the victim clearly link the convict‑appellant with offence he is charged with. The statement of prosecutrix stands fully corroborated by the Medico‑legal Report, the recovery of blood stained Shalwar and blood‑stained clay and the report of the Chemical Examiner. The motive disclosed by the defence is of such a nature which cannot be allowed to discredit the prosecution case. A young unmarried girl or her parents are not expected especially in a Musim society to expose themselves to public humiliation as to involve the future of the victim. Therefore, it is not possible to put at stake the future of a unmarried girl on account of such petty matters as disclosed by the defence. The plea of alibi taken by the convict‑appellant is also not reliable. The statements of the defence witnesses were also examined and they were found untrustworthy in presence of material contradictions and discrepancies. The case law referred to by the parties was also examined. The facts of the instant case are not identical to the case‑law referred by the learned counsel for the parties. It is settled principle of law that, the criminals cases are always decided on the basis of their peculiar facts, therefore, it needs not to be discussed. The result is that the case against the convict‑appellant Muhammad Yousuf is satisfactorily proved. He was rightly convicted by the trial Court. The act of rape is definitely a serious offence especially in a Muslim society. The sentence recorded by the trial Court, in the circumstances of the case, suffices the matter. Therefore, the appeal filed by the convict‑appellant before the first Appellate Court was rightly dismissed by the learned District Qazi. However, the enhancement of sentence in shape of fine by the learned District Qazi was not warranted under law as there was no appeal by the prosecution for enhancement of sentence. The reference stands answered accordingly. H.B.T./15/Sh.C (AJ&K) Appeal dismissed.