2002 PLP 2148 (YLR)

Rigorous imprisonment for ten years with a fine of Rs.1,00,000 and in default of payment of fine the appellant was to further undergo 3 years' R.I. All the sentences were to run concurrently. However, the sentences of whipping were to be executed consecutively. Benefit of section 382‑B, Cr.P.C. was extended to the appellant.

2. Feeling aggrieved the appellant has challenged his convictions and sentences through the instant appeal.

3. The brief facts as given in the F.I.R. No.240 of 1999 Exh.P.A. registered by Abdullah Baig, S.‑I./S.H.O. P.W.9 on the statement of Liaqat Ali P.W.1 are that the complainant lived with his brother Shaukat Ali in the same house. 7/8 days prior to the occurrence Riasat. Ali minor son and Baby Rehana minor niece or the complainant were found missing from the house at about noon time. The complainant alongwith other witnesses started search for the children and he was informed by Muhammad Amin that he had heard cries of the children coming from the deserted house situated near Jinnah Park. The complainant alongwith P.Ws. reached the deserted house situated in F.‑Block and heard the cries of the children. The complainant party started climbing down the basement of the house, when they saw Saeed Ahmad, appellant, running out of the house, who was naked at that time. The complainant party reached the basement and saw that Baby Rehana and Riasat Ali were weeping and their clothes were removed. They also saw that blood was oozing out from the vagina of Baby Rehana. Riasat Ali also informed the complainant that the appellant had committed sodomy with him. It is further stated in the F.I.R. that the matter was not reported to the police immediately as the relatives of the appellant had been beseeching for mercy and the matter was reported to the police when the appellant was found taking away Baby Saeeda and Bibi Shakeela minor children alongwith him after the earlier occurrence.

4. The appellant was arrested in this case on 12‑6‑1999 and after the completion of investigation of the case the appellant was sent up for trial.

5. During trial the prosecution produced 11 witnesses. P.W.1 Liaqat Ali. P.W.2 Ghulam Yasin and P.W.6 Shaukat Ali furnished the ocular evidence. Dr. Nasir Javaid appeared as P.W.3 and stated about the potency of the appellant. Lady Dr. Nasira Malik appeared as P.W.11 and proved the medico‑legal report Exh.P.H. relating to Baby Rehana. Dr. Effat Pasha appeared as P.W.10 and stated about the medico‑legal report of Liaqat Ali minor boy. Abdullah Baig, S.‑I./S.H.O. P.W.9 stated about the investigation of the case. Rest of the witnesses were formal in nature.

6. The appellant denied the allegation in his statement under section 342, Cr.PC. However, he did not appear as witness as contemplated by section 340(2), Cr.P.C. and also did not adduce any defence.

7. The learned counsel for the appellant has argued that the appellant has been falsely involved in the case and the prosecution has failed to prove its case; that the witnesses were related inter se and also with the victims and were not worthy of any reliance.

8. On the other hand, the learned counsel appearing on behalf of the State has supported the prosecution case.

9. I have heard the learned counsel for the parties and have very minutely perused the record of the case as well as the impugned judgment. P.W.1, P.W.2 and P.W.6 have categorically stated that they saw the appellant coming out of the basement where the children were lying nude. These witnesses have also stated that at the time of his running away from the house, the appellant was maked. It is also in the evidence that the victims informed the P.Ws. that they were subjected to rape and sodomy. There is no reason to disbelieve these P.Ws. as they have no enmity with the appellant at all. They had rather forgiven the appellant firstly but when the appellant was seen in the company of two other minor children, they reported the matter to the police.

10. P.W.11 Lady Dr. Nasira Malik stated about the medical examination of Baby Rehana, a child of the age of 6 years. According to her report Exh.P.H. the hymen was slightly red and torn in 3 O'Clock shape. The swabs were also taken and according to the report of the Chemical Examiner Exh. P.I. the swabs were found stained with semen and blood. Exh.P.H. also supports the story of the prosecution to the extent of victimization of Baby Rehana. Dr. Nasir Javaid P.W.3 examined Saeed Ahmad appellant, who was aged about 16 years at the time of occurrence. According to the medico legal report Exh.P.B. the appellant was potent.

11. So far as the delay in lodging the F.I.R. is concerned, it is not significant as there was no enmity between the parties so as f to involve the appellant falsely and the delay has also been plausibly explained.

12. A perusal of the evidence shows that the prosecution could not prove that Baby Rehana and Riasat Ali were abducted by the appellant. No adverse presumption can be drawn against the appellant and each and every point is to be proved by the prosecution beyond doubt against the appellant. According to the story of the prosecution two children were missing, from the house and were discovered in a deserted place. No one had seen that the appellant had abducted them. In these circumstances, the offences under sections 11 and 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are not made out, therefore, I acquit the appellant from the charges under sections 11 and 12 of the aforementioned Ordinance and the convictions and sentences relating to the said sections awarded to the appellant are also set aside.

13. Neither Riasat Ali, who was aged about 10 years, according to his medico‑legal report Exh. P. E. was produced during the trial nor the medical evidence shows that he was subjected to sodomy. According to Dr. Effat Pasha P.W.10, who examined Riasat Ali, there was no mark of injury or violence on the body of Riasat Alt and similarly there was no mark of violence or injury or stain on the perianal area. However, the report of Chemical Examiner Exh.P.G., the swabs taken, were found to be stained with semen. This report is totally unbelievable as the matter was reported to police after 7/8 days of the occurrence. A child would have eased himself during this period and the semen could not be retained in, the anus for such a long time. The P.Ws. had not seen the appellant committing sodomy with Riasat Ali. In these circumstances, I extend the benefit of doubt to the appellant and acquit him of the E charge under section 377, P.P.C. The conviction and sentence passed by the learned trial Court vis‑a‑vis section 377, P.P.C. is set aside.

14. The ocular evidence and the medico legal report Exh.P.H. based on the evidence of P.W.11 Lady Dr. Nasira Malik and the report of the Chemical Examiner Exh.P.I. conclusively proved that Baby Rehana daughter of Shaukat Ali P. W .6 was subjected to rape by the appellant, therefore, I F maintain the conviction of the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The appellant was minor aged about 16 years at the time of occurrence, therefore, I reduce his sentence from 25 years' R.I. to 14 years' R.I. However, the appellant would be ordered to labour only after attaining the majority.

15. The sentence of 30 stripes is not maintainable as the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for commission of Zina‑bil‑Jabr and the sentence of whipping could not be inflicted upon the appellant in view of section 3 of the Abolition of the Punishment of Whipping Act, 1996. Similarly the sentence of fine is illegal, as the same is not provided under section 10(3) (ibid).

16. The upshot of the whole discussion is that while acquitting the appellant from rest of the charges I maintain the conviction of the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, H 1979, and reduce his sentence from 25 years' R.I. to 14 years' R.I. The benefit of section 382‑B, Cr.P.C. extended to the appellant by the learned trial Court is maintained.

17. With the aforereferred modifications, this appeal stands dismissed. H.B.T./S‑462/L Order accordingly.