2011 SCMR 1665 (PLP)

JAVED IQBAL, J.

This appeal with leave of the court. is directed against the judgment dated 24-7-2003 whereby Criminal Appeal preferred on behalf of appellant has been dismissed and judgment dated 30-4-2003 passed by learned Anti-Terrorism Court, 'Mardan has been kept intact.

2. Leave to appeal was granted on 13-5-2004 which is reproduced hereinbelow to appreciate the legal and factual aspects of the matter:-- "The jail petition has been filed for leave to appeal against the judgment dated 24th July, 2003 passed by Peshawar High Court, Peshawar in Criminal Appeal No. 254 of 2003.

2. Precisely stating the facts of the case are that petitioner faced trial for the offences under sections 364A/452, P.P.C. read with section 6(b) of the Anti-Terrorism Act, 1997 [hereinafter referred to as `the Act' and under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as under section 13 of the Arms Ordinance, 1965. in pursuance of F.I.R. No.58 lodged by Mst. Bakht Haram in Police Station Lund Khore Mardan on 8th February 2003 alleging therein that when she was present in her house along with other family members except her husband, petitioner Habibullah son of Abdullah entered in her house having pistol in his hand he forcibly took away her minor daughter Anjuman to the house of his mother Zarin Qaisha. When the girl did not return, she went to the house of said Zarin Qaisha and requested her for return of her minor daughter but in vain. It is stated that other four brothers of the petitioner namely Sikandar, Asghar, Nasir and Khalid were also present there and they refused to return her on the pretext that minor girl was "Amanat" of their brother Habibullah. After some time mother of petitioner came to the house of complainant and asked for the clothes of minor girl Anjuman and told her that she is sick. On getting this information the complainant again went to the house of the accused where she came to know that petitioner along with Sikandar, Asghar and Bashir had shifted the minor Anjuman to some unknown place in the motor care of Bashir. Motive disclosed in F.I.It. for the commission of the offence was stated to be an incident, which took place a day earlier, wherein petitioner had blamed the minor son of the complainant namely Noor Mehmood for molesting his minor daughter namely Saba Gut. Accordingly, petitioner was arrested and he was subjected to interrogation during course whereof an unlicensed pistol was also recovered from his possession. On completion of investigation petitioner was sent upto face trial along with four other persons, before the Special Judge, ATA Court. As he did not plead guilty to the charge, therefore, prosecution adduced evidence including the statement of Dr. Shaishta Khattak who after the examination of minor Anjuman, daughter of Said Mehmood, aged ten years noticed as follows:- "(i) "A young girl of 10 years examined, hymen not intact one finger introduced, stitches taken (Perineal area I Batkhela Hospital) foul smelling discharge present". (ii) Vaginal Swab taken sent for chemical analysis." She also produced medical certificate Exh.PM/1. ft may be noted that P.W. Bakht Haram (complainant) stated that one day prior to the kidnapping of minor Anjuman the accused Habibullah put a blame on her minor son namely Noor Mehmood aged about 12/13 years that he has molested his minor daughter namely Saba Gul. In cross-examination she further admitted that accused Habibullah made no report of the incident of Saba Gul. She further deposed that the elders of the area decided that Anjuman should be given in marriage to the house of Habibullah but she refused this suggestion. She again stated that she was also willing to give Anjuman in, marriage to the house of Habibullah but they have committed this offence. P.W. Anjuman minor in her statement also fully supported to the prosecution case and with regard to the commission of the offence of Zina, her version was that accused Habibullah came to their house armed with a pistol, he caught hold of her from arm and took her to the house of his mother Mst. Zarin Qaisha alias Zarangaisha. He locked her in a room. He took off her clothes. He laid her on a cot and committed zina. The witness uttered the word "bura-kaam". Thereafter Mst. Zarin Qaisha and Sikandar put her in the motorcar of Bashir and they all drove to Batkhela, where they took her to the house of one lady doctor where she was given treatment. She was kept in a house at Batkhela for three days."

3. On completion of prosecution evidence petitioner was examined under section 342, Cr.P.C. He also opted to make his statement under section 340(2), Cr.P.C. On completion of the trial learned trial Court convicted/sentenced him as follows: 1 Under section 452, P.P.C. read with section 6(b), A.T.A. Sentenced to 5 years' R.I. with fine of Rs. 5,000 in default where of to undergo 3 months' S.I.

2. Under section 354-A, P.P.C. read with section 6(h), A.T.A. Sentenced to 10 years' R.I.

3. Under section 10(3) of the Offence of (Enforcement of Hadood) Ordinance, 1979 Sentenced to 20 years' R.I.

4. Under section 13 of the Arms Ordinance Sentenced to 2 years R.I. with a fine of Rs.3,000 or in default whereof to undergo two months' S.I.

5. Under section 544-A, Cr.P.C To pay Rs. 1 lac as compensation to the minor victim in default six months' S.I. Feeling aggrieved from his conviction/sentence, petitioner preferred appeal before the High Court, which has been dismissed by means of impugned judgment. "I have gone through the record of the case as well as the impugned judgment and the judgment of the trial Court carefully. A perusal whereof indicates that prior to the happening of incident, which has given rise of instant proceeding another incident, in which allegedly Saba Gul minor daughter of the petitioner was molested by the son of complainant namely Noor Mehmood took place and in sequel of that incident complainant had agreed to marry her daughter in the house of petitioner and it seems that thereafter petitioner Habibullah forcibly took her minor daughter namely Anjuman away, perhaps in view of the earlier settlement arrived at between the parties through the elders of the area and allegedly committed zina with her as per the medical evidence reproduced herein above but his own case is that he has been falsely involved in the commission of the offence because Noor Mehmood son of complainant Bakht Haram had molested to his daughter a day earlier and in order to avoid the implementation of the settlement, a false case was got registered against him. As far as happening of incident of molesting of Saba Gul is concerned it is also not denied by the complainant in her statement in examination-in-chief as well as in cross-examination. Therefore, petitioner's case is required to be examined in depth for safe administration of justice. Therefore, under the circumstances, in my opinion, case for grant of leave to appeal is made out".

3. It is mainly contended by Malik Ainul Haq learned Advocate Supreme Court on behalf of appellant that the evidence which has come on record has been misinterpreted and misconstrued by the learned trial Court which also escaped the notice of learned High Court which resulted in serious miscarriage of justice. It is next contended that prosecution has failed to establish the guilt to the hilt and no convincing and concrete evidence could be led in support of accusation. It is next contended that statement of Bakhat Haram (P.W.7/complainant) should have been discarded being mother of the victim. It is further contended that victim namely Mst. Anjuman (P.W.8) was not mature enough to furnish all the necessary, details and her statement being discrepant should have been ignored. It is argued that the statements of Mst. Bakhat Haram (P.W.7), Mst. Anjuman (P.W.8) and Mst. Jumairaat (P.W.9) were never corroborated by any supporting factor and therefore, conviction could not have been awarded merely on the statement of Mst. Anjuman (P.W.8) who was not capable enough to give certain details. It is next contended that medical evidence is in conflict to that of ocular version which escaped the notice of learned trial and appellate courts causing serious prejudice against the appellant.

4. Mr. Muhammad Aslam Gumman, learned Advocate Supreme Court entered appearance on behalf of Province of KPK and vehemently controverted the view point as portraited at bar by Malik Ainul Haq, learned Advocate Supreme Court on behalf of appellant and supported the judgment impugned for the reasons enumerated therein. It is further submitted that prosecution has proved the case on the basis of forthright and worthy of credence evidence. In this regard the statements of Mst. Bakhat Haram (P.W.7), Mst. Anjuman (P.W.8) and Mst. Jumairaat (P.W.9) have been referred. It is further contended/that ocular version finds full support from the medical evidence furnished by Dr. Shaista Khattak who appeared as P.W.1 with the following opinion: "A young girl of 10 years examined, hymen not intact, one finger introduced, stitches taken (Perineal area I Batkhela Hospital) foul smelling discharge present". It is also contended that incident had taken place in the day light and hence the question of any wrong identification does not arise and besides that the appellant was well known to the family of complainant.

5. We have carefully examined the respective contentions as agitated on behalf of appellant and for State in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 20-4-2003 passed by the learned Anti-Terrorism Court, Mardan as well as the judgment impugned. After having gone through the entire prosecution evidence by keeping the defence version in juxtaposition, we are of the view that prosecution has established the guilt to the hilt by producing forthright and confidence inspiring evidence. In this regard first of all we would like to refer the statement of minor victim namely Mst. Anjuman (P.W.8) who has furnished the details of the episode and specific role of committing rape has been assigned in an unambiguous manner to the appellant and mentioned in a categoric manner that how she was abducted and the manner in which the rape was committed by the appellant. We are not persuaded to agree with the prime contention of the learned Advocate Supreme Court on behalf of appellant that being a minor girl and having no maturity, her statement should have been discarded for the simple reason that Dr. Ijaz Hussain Siddiqui (P.W.2), Radiologist conducted the ossification test of Mst. Anjuman (P.W.8) and determined her age as 11 years (Exh.PM/3) which went unchallenged. Besides that learned trial court has taken precautionary measures prior to the recording of statement of Mst. Anjuman (P.W.8) to test her intellectual capability and certain questions were asked to Mst. Anjuman (P.W.8) who responded in a responsible manner. There is no reason whatsoever to discard the statement of Mst. Anjuman (P.W.8) who stood firm to the test of cross-examination and nothing advantageous could be elicited in spite of various searching questions. It is well settled by now that conviction could have been awarded on the solitary statement of prosecutrix alone. In this regard we are fortified by the dictum laid down in the following authorities: Ramzan Ali v. State (PLD 1967 SC 545), Ashraf v. Crown (PLD 1956 FC 86), Ghulam Sarwar v. State (PLD 1984 SC 218), Haji Ahmed v. State (1975 SCMR 69), Shahid Malik v. State (1984 SCMR 908), Ehsan Begum v. State (PLD 1983 FSC . 204, M. Akram v. State 1989 SC 742 and Shakeel v. State (PLD 2010 SC 47). Besides that medical evidence as furnished by Dr. Shaista Khatta (P.W.1)' lends full corroboration to the statement of Mst. Anjuman (P.W.8). It is worth mentioning that statement of Mst. Anjuman (P.W.8) has been fully supported by Bakhat Harm (P.W.7) and Mst. Jumairaat (P.W.9). Learned Advocate Supreme Court on behalf of appellant could not explain that what was the conflict in between the ocular version of Mst. Anjuman (P.W.8) and that of medical evidence and the stance being baseless hardly deserves any further consideration. We are not persuaded to agree that due to lack of corroboration the statements of the prosecution witnesses should have been discarded. It is well settled by now that "there is no denying the fact that acid test of the veracity of the prosecutrix's statement is the inherent merit of her statement because corroborative evidence alone could not be made in a base to award conviction. There is no cavil to the proposition that "the extent and the nature of corroboration required may, no doubt, vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every particular, all that is necessary is that the corroboration must be such as to effect the accused by connecting or tending to connect him with the crime. The corroborative evidence should tend to show that the witness or witnesses' evidence that the accused took part in the crime is true.' To say that certain witnesses required corroboration and then to lay down that he corroborative evidence must show that the accused did not precise act attributed to him by the witnesses is tantamount to doing away with. the evidence of those witnesses. And the same would be the result if the corroborative evidence required in such as is incompatible with the innocence of the accused. The true rule governing such situation is that the corroborative evidence should at least tend to show that the evidence of the witnesses when they name the accused as taking part in the crime is true. Corroboration of the interested testimony should be such as would remove the doubt that the accused have been falsely implicated." Ramzan Ali v. State PLD 1967 SC 545 and Ashraf v. Crown PLD 1956 FC 86) ". Shahzad v. State (2002 SCMR 1009). It may be kept in view that veracity of the prosecutrix's statement is the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction. Learned Advocate Supreme Court on behalf of appellant also mentioned that no marks of violence were found on the body of Mst. Anjuman (P.W.8) and on this score benefit of doubt may be extended in favour of appellant. The said contention appears to have been made in oblivion of the fact that rape has been proved on the basis of cogent and concrete evidence including medical evidence and more so the marks of violence are not essential to establish the" factum of zina bil jabar. In this regard reference can be made to the case titled Ghulam Sarwar v. State (PLD 1984 SC 218) and Haji Ahmad v. State (1975 SCMR 69). We have also kept the defence version in juxtaposition which cannot be taken into consideration being baseless, as merely on the basis of a petty matter no body would like to stigmatize her innocent daughter for her entire life which would have a substantial bearing on her future.

6. The appeal being meritless is dismissed and the judgment impugned shall be kept intact. M.H./H-10/SC Appeal dismissed.