2004 P Cr (PLP)

WAHID BUX BROHI, J.

Appellant Muhammad Asif has been convicted by learned Judge Anti-Terrorism Court No.2 at Karachi on 22-4-2000 for an offence punishable under section 10(3) of the Offence of Zina (EOH) Ordinance, 1979 and sentenced to rigorous imprisonment for 10 years with 10 stripes; he has also been directed to pay compensation of Rs.10,000 to the victim or in default thereof shall undergo R.I. for 6 months more.

2. It is the case of prosecution that on 16-2-2000 the appellant committed Zina with baby Nadia. It is stated that on that day at 10-00 a.m. Nadia had gone out of her house for playing and at about 3-00 p.m. her sister baby Alia aged about 8/9 years heard cries and got out of the house. She saw that Nadia was unconscious, her clothes were stained with blood and was being held in his lap by boy of neighbour wearing cream colour clothes. The boy threw Nadia and ran away. Alia approached the brother of said boy Asif to counsel his brother as he had thrown Nadia in front of his house in unconscious state and had gone away. She then rushed to inform her father Syed Abdus Samad who was present in a street of the Mohallah with his push-cart on which he used to sell fruits. Her father went to clinic of Dr. Sheno. The doctor saw the baby and even the complainant noticed that the baby was bleeding from her private part. He lodged report with police at P.S. Shah Latif Town, Karachi alleging therein that the boy, son of Rahmat Gul had committed Zina-bil-Jabr with Nadia.

3. The police inspected the place of incident and noticed slight blood drops in front of the door of appellant and a trail of blood leading towards the room of the house where it was further noticed that an attempt had been made to wipe off the blood drops. The blood-stained Shalwar of Nadia was secured and she was referred for medical examination. The appellant was arrested on the pointation of baby Alia on 18-2-2000 and his Shalwar stained with semen was secured. On completion of investigation the case was challaned for trial.

4. At the trial formal charge was framed against the appellant for an offence punishable under section 7 of the Anti-Terrorism Act and section 10(3) of the Offence of Zina (EOH) Ordinance. The victim Nadia could not be examined. The observations in' the judgment of the trial Court show that when Nadia was called in Court she was found reluctant in entering the Court room and site grappled with legs of her father and pushed him outside. She was found too young and very much perturbed to be examined as a witness. Perhaps, looking to the time frame for conducting trial in anti-terrorism cases the learned trial Court examined the remaining witnesses namely P.W.1 Dr. Ghazala Rahman; P.W.2 Dr. Muhammad Hanif; P.W.3 Ali Ahmed, Judicial Magistrate; P.W.4 Syed Abdus Samad, complainant and father of the victim Nadia; P.W.5 Alia; P.W.6 Tanveer Ahmed; P.W.7 Muhammad Sher; P.W.8 Naib Khan; and P.W.9 Malik Abdul Haq, Investigating Officer.

5. Statement of the appellant was recorded under section 342, Cr.P.C. wherein he stated that he had taken wife of his brother Nazir Ahmed to the house of her parents in Korangi and there he remained for 3/4 days. On the day of incident in the evening he came back to his house where he was told that he was wanted by police. On this he was taken to police station and on the following day i.e. 17-2-2000 his Shalwar was secured by police. He alleged that he was maltreated by police. He showed his ignorance about the semen stains on his Shalwar. He examined himself under section 340(2), Cr.P.C. and examined his sister Sobia, aged 11 years, in defence. The learned trial Judge inspected the place of occurrence on 19-4-2000 and placed a note dated 21-4-2000 on record to this effect. On appraisal of the evidence, learned trial Court convicted the appellant and sentenced him as already mentioned.

6. We have heard Mr. Umer Farooq Khan, learned counsel for appellant and Mr. Habib Ahmed, learned Assistant Advocate-General for the State and with their assistance perused the material on record.

7. Mr. Umer Farooq Khan, learned counsel for appellant contended that the trial has proceeded without examining the victim Nadia and in particular when the name of accused was not given in the F.I.R., absence of the evidence of victim was a damaging drawback. He also argued that in absence of the evidence of victim the medical evidence of doctor, who examined the victim was also of no value. He further questioned the recovery of Shalwar from the person of appellant which was stained with semen. According to him, there was no eye-witness of the incident and the evidence of the other witnesses examined in the trial Court was not enough to connect the appellant with the offence. In the alternative he argued that the appellant is in custody for a period of 4 years, leniency may, therefore, be shown in the matter of sentence. Mr. Habib Ahmed, learned Assistant Advocate-General argued that there is reliable evidence to show that the victim Nadia was in the lap of appellant and was unconscious when he threw her in presence of witness Alia, whose evidence is confidence inspiring and cannot be disbelieved. He further stated that even father of the victim had reached the place of incident soon after the occurrence and found the plight of his daughter. According to him, medical certificate supports the case of prosecution as to the act of Zina committed with Nadia and the presence of semen on the Shalwar of accused/appellant is also a piece of circumstantial evidence rendering adequate support to the case. He further argued that even the evidence of appellant recorded on oath shows that his family members were not present in the house, which is a factor indicating that he was in a position to commit Zina with the victim in his house which was vacant.

8. We have perused the entire material on record with the assistance of learned counsel. The Medical Officer Dr. Ghazala Rahman-M.L.O. Civil Hospital, Karachi had examined the victim Nadia on the same day at 8-30 p.m. Victim was apprehensive and was not allowing her examination, therefore, she was administered anaesthesia and examined in the operation theatre. She noted that hymen of victim was torn and on touch the hymen was bleeding profusely. The position of tear was posteriorily at 6'O clock position. Viginal tear could not be noticed, but the mucosa was severely congested and bleeding slightly. She opined that Nadia was subjected to fresh act of sexual intercourse. She obtained viginal swabs and slides. The Chemical Examiner's report (Exh.P.3), however, did not certify presence of semen in the said swabs and slides.

9. Evidence came on record through complainant 'Syed Abdus Samad that on 18-2-2000 the appellant was arrested from Dawood Chorangi, Future Colony on pointation of P.W. Alia and his Shalwar was secured by providing him sheet of cloth. P.W.5 Alia also confirmed this fact in her evidence. One of the Mashirs P.W.8 Naib Khan also supported the case on this point about arrest of the appellant on the said date on pointation of Alia and in presence of complainant Syed Abdus Samad. Shalwar of the appellant was secured at that time. Although the accused took a plea that he was arrested on the same day when he was produced by his brother at the police station, but the evidence of aforementioned witnesses, who were subjected to cross-examination also, could not be shattered in material terms to raise a doubt that the appellant was arrested earlier. Lastly, there is the evidence of Investigating Officer, who too supported the aforementioned version. Even otherwise there could be no wisdom in showing delayed arrest of the appellant when the complainant party was seriously aggrieved because of this incident and was actively cooperating with the investigating agency.

10. The Shalwar of appellant was forwarded for chemical analysis and the Chemical Examiner's report. (Exh.P.3) confirms presence of semen on the same. Thus, this piece of circumstantial evidence lends enormous support to the case of prosecution. Moreover, the appellant was examined by Dr. Muhammad Hanif P.W.2 on 19-2-2000. His age was noted to be 19 years and the said doctor was satisfied that the appellant was potent and. was capable of performing act of sexual intercourse. Nothing was elicited in cross-examination to doubt the findings of the Medical Officer.

11. Then the prosecution case is based on the evidence of Alia and her father Syed Abdus Samad. It is noted that Alia was even examined under section 164, Cr.P.C: by the Magistrate namely Ali Ahmed, who was also examined as P.W.3. He produced the statement under section 164, Cr.P.C. At the trial baby Alia, whose age was about 10 years was subjected to cross test by putting some questions to her by the learned trial Judge and the latter was satisfied that she was capable to understand the nature of questions and give rational replies. In her evidence she deposed that at about 3-00 p.m. she heard cries of her sister Nadia and went out. She saw Nadia in the lap of Asif and on seeing her Asif threw Nadia in front of door of his house and ran away towards some street. She went towards Nadia and found her soaked with blood. She rushed to a vegetable vendor Tanvir, who was in another street and informed him that appellant Asif has beaten her sister Nadia. Her father was not in the house at that time. Tanvir accompanied her to her house and then to that of accused. He picked Nadia and went towards hospital, while she went to inform her father, who was going with a push-cart in another street next to the mosque. She informed her father that Asif, the appellant had beaten Nadia. Her father went to hospital and came back at 5-00 p.m. She also confirmed the fact of arrest of accused on 18-2-2000 on her pointation. She was subjected to lengthy cross-examination. She clarified that she got the name of the appellant from his sister Sobia. Suggestions were put to her from different angles, but she denied all. Although she made mistakes in giving the answers about number of days in different months, but it was immaterial as she had given all other particulars in details precisely conforming to the prosecution story.

12. Tanvir Ahmed, the vegetable seller P.W.6 also supported the version of (Alfa) Asif (sic). He stated that (Alia) Asif (sic) informed him that his sister had been beaten by one boy Asif and she was bleeding. He picked the baby and took her to the nearest clinic where he met Dr. Sher. In fact, the said Dr. Sher was a dispenser. He has also been examined as P.W.7. He too supported the version of Tanvir. In this way all the links in the chain have been proved step-by-step at the trial.

13. Complainant Syed Abdus Samad, father of victim, deposed that he was selling fruit on his push-cart when his daughter Alia informed him about the occurrence saying that a boy wearing clothes of cream colour had beaten Nadia and she was bleeding and the vegetable seller Tanvir had taken her to the clinic of Dr. Sheno. He rushed to the said clinic and found his daughter Nadia weeping and bleeding. He was advised by Dr. Sheno that it was a police case and report be lodged. He accordingly lodged report at police station.

14. The place of incident was inspected and they noted blood in front of the door of house of appellant Asif. They also noted blood drops leading to the room upto the gate and found that an attempt had been made to wash the same. He gave evidence about the arrest of the accused on 18-2-2000 as already mentioned in foregoing paras. There is apparently no reason to doubt testimony of complainant.

15. It is important to point out that the appellant, in his statement under section 340(2), Cr.P.C. admitted that on the day of incident the appellant and other family members' had gone to attend the funeral ceremony of one of the relatives. He stated that only his younger sister Sobia and younger brother Saqit were available in the house. Although he 'denied all other suggestions put to him by the prosecutor, but this admission indicates that all adult family members were -out on the day of incident in connection with the funeral ceremony of one of the relatives. The defence witness Sobia stated that her brother, the appellant, and her Bhabi were out of the house since morning. This belies the stand of accused that he had taken his Bhabi to Korangi and remained there for 3/4 days. Many suggestions were put to her on the line of prosecution story, which she denied argumentatively.

16. It was strenuously argued that the name of appellant does not find mention in the F. I. R., but In fact, the name is mentioned there. The learned trial Court, however, on appreciation of the evidence of the witness rightly concluded that there was convincing evidence to establish that the victim was found in possession of the appellant soon after the incident of rape and on the analogy of Illustration (a) to Article 129 of Qanun-e-Shahadat he drew an inference that it was the appellant who committed rape upon the victim. Learned trial Court has placed reliance on the cases Jamnadas Tharoomal v. Emperor AIR 1940 Sindh 42, Pritam Singh v. State AIR 1954 Punjab 201 and Dukhi Dei v. The State AIR 1965 Orissa 33, which support the inference drawn by him. In Dukhi Dei's case AIR 1965 Orissa 33 the observations of the Division Bench may be relied upon with advantage, which run as under:-- "Under section 114 of the Evidence Act, the Court may presume the existence of facts which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in relation to the facts of a particular case. Illustration (a) under the section says that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing those to be stolen unless he can account for his possession. It has been authoritatively pronounced' that this presumption does not rest there and can be extended to more aggravated dffence. The following passage in Wills on circumstantial Evidence is instructive: "Possession of stolen goods, recently after the loss of them, may; be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft. This particular fact of presumption only forms also a material piece of evidence in cases of murder, which special application of it has' often been emphatically recognized. " This dictum was approved in a Bench decision of the Calcutta High Court presided over by Jenkins, C.J. in Emperor v. Sheikh Neamatulla 17 Cal. WN 1077. It was followed in Emperor v. Chintamoni Shahu AIR 1930 Cal. 379 (2), Ramprashad Makundram v. The Crown AIR 1949 Nag. 277 and State v. Motia AIR 1955 Raj. 82."

17. Similarly, in Pritam Singh's AIR 1954 Punjab 201 Illustration (a) to section 114, Evidence Act (now Article 129 of Qanun-e-Shahadat) was applied in a murder case.

18. Nevertheless, the circumstantial evidence that the bleeding victim was in the lap of appellant and was unconscious and there was semen on the Shalwar of appellant were sufficient to warrant conviction. Reliance in this regard may be placed on Tariq Mehmood v. State 2002 SCMR 1602 wherein the entire case depended upon circumstantial evidence and the death sentence was upheld.

19. The learned trial Court has further dilated upon the point of act of terrorism and has come to the conclusion that the element of terrorism could not be substantiated from the evidence on record. On a thorough and minute appraisal of the evidence the learned trial Court found the appellant guilty of the offence of Zina-bil-Jabr liable to Ta'zir punishable under section 10(3) of the Ordinance.

20. We are, in view of the discussion of the evidence made in foregoing paras., convinced that the finding of conviction for the said offence has rightly been recorded as nothing could come on record to doubt the veracity of the witness. On the whole, we find no merits in the appeal and dismiss the same. However, it is noted that sentence of 10 stripes has also been imposed although after coming into force of Abolition of Whipping Act, 1996 no sentence of whipping could be awarded in a case punishable as Ta'zir. Consequently, the sentence of whipping that is to say 10 stripes is set aside. The remaining sentence is maintained. The order of compensation is also maintained. Benefit of section 382-B, Cr.P.C. extended to the appellant is also maintained. The appeal is dismissed with the above modification in the sentence.

21. These are the reasons for the short order pronounced in Court on 20-4-2004. N.H.Q./M-120/K Appeal dismissed.