1. ' This judgment will dispose of an appeal No.13 of 2004 directed against the judgment dated 30-6- 2004 passed by the District Criminal Court, Mirpur, whereby the judgment/order of conviction and sentence passed by the trial Court on 19-10-2002 to undergo 25 years rigorous incarceration along with punishment of whipping numbering 15 stripes under section 10(3) of The Offence of Zina (Enforcement of Hudood) Act, 1985 was maintained.
2. ' The precise facts of the case as narrated in the F.I.R. By the complainant are that on 17-9-2000 his daughter Aysha Mehreen aged seven and half years went to the shop of Sheraz Mehmood, accused. After coming back from the above mentioned shop, she lie in bed and became unconscious. At about 10-00 p.m. She came in senses and told him that Sheraz Mehmood committed rape with her. At the first .Instance he kept quiet on account of ignominy but when he noticed that in consequence of bleeding her condition was worsening, they took her to Khurshid Hospital where the hospital administration directed them first to inform the police, therefore, the F.I.R was lodged in the morning time.
3. ' On this report case under section 10(3) of the Offence of Zina (Enforcement of Huddod) Act, 1985 (hereinafter to be referred as Zina Act) was registered by Nadeem Arif, S.-I. Police (P.W.14).
4. ' On 18-9-2000 the accused/appellant was apprehended. Nadeem Arif, S.-I. (P.W.-14) took into possession cotton P/2, blood-stained clothing of the victim shirt P/3, trousers P/4 (vide recovery memo. Exh.PC), two cakes of Soap P/6 and P/7 along with a dollar pen P/8 (vide recovery memo.
5. Exh.PD), Trousers P/9 and Shirt P/10 of accused Sheraz Mehmood (vide recovery memo. Exh.PE), a copy of credit ledger P/11 showing the details of household articles worth Rs.35 purchased by the victim and her brother Adeel Ahmad on the day of occurrence (vide recovery memo. Exh.PF), a stool ( P/5 (vide recovery memo. Exh.PG), blood-stained Trousers P/12 and Shirt P/13 of Mst. Aysha Mehreen, which were put on after recovery of blood-stained shirt P/3 and trousers P/4 of the victim (vide recovery memo. Exh.PH) and a mattress P/1 (vide recovery memo. Exh.PJ) in presence of Taufique-ur-Rehman (P. W . -8) and Muhammad Amin (P.W.-9).
6. ' On the same day, he approached the Lady Doctor Rural Health Center Islam Garh for medical examination of victim vide letter Exh.PQ but due to non-availability of a female medical officer the victim was referred to D.H.Q. Hospital, Mirpur and medically examined by lady doctor Nasrren (P.W.-11) vide her report Exh. PC ' On 19-9-2000 the Investigating Officer took Sheraz Ahmed, accused/ appellant for his medical examination and obtained medical certificate Exh.PK from Dr. Aftab Ahmad Mir (P.W.-12).
7. ' On 23-9-2000 the said Investigating Officer filed an application in the Court of Additional Deputy Commissioner General, Mirpur for identification parade vide petition Exh.PN. He also prepared site plan Exh.PM on 25-9-2000.
8. ' On 27-9-2000 the above mentioned Investigating Officer prepared an identification chart. The identification parade was held by Kh. Pervaiz Ahmad, Extra-Assistant Commissioner (P.W.-13) vide documents Exh.PP and Exh.P0. Finally, he prepared challan against the appellant and submitted the same for trial.
9. ' The charge was framed against the accused under section 242, Cr.P.C. But he denied the guilt and opted for trial.
10. ' In support of its case, the prosecution produced Farooq Ahmad (P.W.-1), Fazilat Begum (P.W.-2), Aysha Mehreen (P.W.-3), Adeel Ahmad (P.W.-4), Zameer Ahmad (P.W.-5), Aamir Sheraz (P.W.-6), Abid Mehmood (P.W.-7), Taufique-ur-Rehman (P.W.-8), Lady Doctor Asima Qamar (P.W.-10), Lady Doctor Nasreen (P.W.-11), Dr. Aftab Ahmad Mir (P.W.-12), Kh. Pervaiz Ahmad Extra-Assistant Commissioner (P.W.-13) and Nadeem Arif, S.-I. Police (P.W.-14).
11. ' Thereafter the statement of accused was recorded under section 342, Cr.P.0 in which he belied the prosecution evidence and pleaded to be innocent. He also produced Muhammad Younis (D.W.-1), Muhammad Azam (D.W.-2) and Muhammad Altaf (D.W.-3).
12. ' After completion of the trial, Tehsil Criminal Court Mirpur convicted the appellant under section 10(3) of Zina Act and sentenced him to undergo 25 years R.I. Along with punishment of whipping numbering 15 stripes vide its judgment dated 19-10-2002. The above stated judgment was assailed through an appeal before the District Criminal Court, Mirpur on 6-11-2002, which was dismissed and the judgment of Tehsil Criminal Court was upheld vide its judgment dated 30-6-2004. Hence this appeal.
13. ' Arguing on behalf of the appellant, Ch. Bashir Ahmad, Advocate, submitted that the alleged commission of rape has not been proved by the prosecution and both the Courts below failed to form an opinion about the occurrence but in spite of that an order of conviction has been passed against the norms of law and justice. The learned counsel further contended that according to the prosecution the occurrence took place on 17-9-2000 at 5 p.m. Whereas the F.I.R. Was lodged on 18- 9-2000 at 9 p.m. After considerable delay, which adversely affects the case of prosecution. The learned counsel also argued that according to Adeel Ahmad (P.W.-4), an eye-witness, the accused did not commit rape with Aysha Mehreen but only took her in his lap, which Creates a considerable doubt in the prosecution story. It is further pointed out by the learned Counsel that the medical report of the victim Exh.PC does not disclose neither her age nor any mark of identification and also the name of the father of victim, therefore, it cannot be relied upon. The learned counsel maintained that the blood-stained clothes of the victim were not sent to the Chemical Examiner for its expert opinion thus, the recovery of clothes does not lend any support to the prosecution version. The learned counsel pressed into service the submission that the statements of victim and 'Dr. Nasreen are inconsistent and self-contradictory, therefore, reliance cannot be placed neither upon their testimony nor on the medical examination report of the victim. In support of the arguments, reliance was placed upon 1997 PCr.L.J 331.
14. ' On the contrary, Muhammad Azam Khan, the learned counsel for the complainant, contended that the accused is nominated in the F.I.R and the prosecution witnesses have named the accused in their statements recorded under section 161, Cr.P.C. And also before the Court. The learned counsel further argued that the ocular version of the victim and Adeel Ahmad (P.W.-4) has been confirmed by the medical evidence and other corroboratory circumstances. The learned counsel also submitted that the delay in F.I.R has been fully explained by the prosecution. The learned counsel maintained that " the defence has not challenged the evidence of recovery and in this context not a single suggestion was put to the prosecution witnesses. According to him, Adeel Ahmad (P.W.-4) aged 11 years has supported the facts that the accused took Aysha Mehreen into the shop and held her in his lap, therefore, the portion of statement of P.W. Which supports the prosecution case has to be considered and cannot be discarded from the evidence. The learned counsel zealously argued that the medical examination report Exh. PC has been testified by Dr. Nasreen (P.W.-11), which reveals that the penetration was done. The learned counsel submitted that the medical report Exh. PC was not recorded on the printed form, therefore, the absence of the name of victim's father or mark of identification loses its importance. The learned counsel further maintained that both the Courts below have reached the conclusion that the prosecution has established its case beyond any reasonable shadow of doubt, therefore, the impugned judgment may be maintained.
15. ' Syed Tayyab Gillani, Assistant Advocate-General, appearing on behalf of the State has fully supported the arguments raised by the learned counsel for the complainant.
16. I have given my due consideration to the arguments addressed at Bar and examined the record with care. First of all, I want to resolve the objection of delay in lodging F.I.R. Raised by the learned counsel for the appellant. A perusal of the F.I.R. Shows that a plausible explanation has been furnished by the complainant that due to ignominy he kept quiet and about 10 p.m. When the condition of victim deteriorated, he approached Khurshid Hospital but no medical treatment was provided to the victim on account of its being a police casethereafter in the morning he went to the police station and lodged an F.I.R Exh. PA. The complainant has categorically supported this fact in his statement recorded in the trial Court. It will not be out of place to mention here that delay in lodging F.I.R per se is not a ground to reject the prosecution case downright as every case proceeds on its own facts and surrounding circumstances, therefore, delay in registration of case which otherwise has been fully explained would not affect the veracity of the prosecution case and an accused cannot be acquitted on that score.
17. ' The next question which needs determination is as to whether the commission of offence against the accused/appellant has been proved beyond any shadow of doubt. It may be observed that Tehsil Criminal Court and District Criminal Court had reached the conclusion that the accused /appellant has committed rape with Aysha Mehreen and in this regard the evidence of victim along with Adeel Ahmad (P.W.-4), an eye-witness, coupled with other corroboratory and circumstantial evidence was relied upon. Mst. Aysha Mehreen, the victim, has deposed in unequivocal manner that when she went to purchase soap, pen and sweets etc. On the shop, the accused caught hold of her, closed the shop and committed rape with her {{URDU TEXT}}at that time Adeel Ahmad was standing outside the shop. The victim also recognized her blood-stained clothes, a piece of cotton and mattress, which were taken into possession by the police. In cross- examination she repeated that accused had caught hold of her and committed rape {{URDU TEXT}}with her. After going through the statement of victim, I am of the view that it rings true and natural thus, I do not find any reason to disbelieve the same. At the time of the commission of offence she was about 7 and half years old and the time of recording of her statement before the trial Court her age was 10 years.
18. ' I am not impressed by this argument of the learned counsel for the appellant that the testimony of Adeel Ahmed (P.W.-4) lends support to the defence instead of prosecution. A deep appreciation of the testimony of said Adeel Ahmad shows that even though he did not state about the commission of rape but he has proved the fact that he along with victim went to the shop of accused, who was sitting there and he caught hold of his sister and took her in his lap. He also witnessed the fact that when he along with his sister was proceeding towards the shop, Zameer Ahmed (P.W.-5) and Amir Shahzad (P.W.-6) met them in the way and when they came out of the shop, Abid Mehmood (P.W.-7) met them.
19. The facts of penetration and commission of rape also find ample support from the medical examination report Exh.PC and the statement of Dr. Nasreen (P.W.-11). Dr. Nasreen has fully proved the contents of the medical report Exh. PC which was prepared by her. It reveals that thighs of the victim were stained with blood and bleeding was positive with bleeding on the pad also. Fresh mild bleeding with tags of hymen was present which were bruised at the time of medical examination.
20. According to her opinion, the rapture of victim's hymen proved the commission of intercourse and high vaginal swa b's result shows no sperm, probability is that penetration was done. Lady Dr. Nasreen also deposed that at the time of medical examination her condition was so much bad that she was unable to move, therefore, she (doctor) also obtained the advice of gynecologist. In such state of affairs, it has been proved that rape was committed with Aysha Mehreen. On the other hand, Dr. Aftab Ahmad Mir (P.W.-12), has testified the medical examination report of accused Exh. PL which shows that at the time of examination accused was potent. He also deposed that the accused was able to commit a sexual intercourse.
21. ' It will be useful to mention here that the appellant, has filed documents a state subject Exh.DA, a form B Exh. DB and a copy of birth register Exh.PC in his defence, which show that at the time of commission of offence, the age of accused was 16 years and 5 months but the accused did not opt for ossification test or medical test as required, to prove the fact that at the time of commission of offence he was unable to perform a sexual intercourse. According to Modi's Medical Jurisprudence and Toxicology, 1979, 2nd Edition, page 303, the relevant portion of which has been cited in Raqib Ali's (2003 PCr.LJ 413) "Boys are considered to be sexually potent at the age of puberty which usually occurs at the fifteenth or sixteenth year, sexual intercourse is, however, possible at about the thirteenth or fourteenth year, as the power of coitus commences earlier and ceases later than the power of procreation." It may be mentioned here that the point of adulthood of accused was neither incorporated in the memorandum of appeal nor raised before me at the time of arguments rather according to the judgment of District Criminal Court, the learned counsel of the accused/appellant conceded the same before the 1st Appellate Court. Even though according to section 2 (a) of Zina Act `adult' means a person who has attained being a male the age of eighteen years or being a female the age of sixteen years, or has attained puberty. The words "or has attained puberty" appearing in the aforesaid section are of vital importance, therefore, in such-like cases if it is proved that at the time of commission of offence the accused had attained puberty, he will be treated adult and could be punished according to law. The absence of age and mark of identification of the victim or the name of her father in medical examination report Exh. PC does not make it unreliable because the report Exh. PC was not recorded in a printed form prescribed for the purpose, therefore, the aforesaid objection of the learned counsel is repelled being misconceived and without substance.
22. So far as this objection of the learned counsel that the bloodstained clothes of the victim were not sent to the chemical examiner for his opinion is concerned, has no substance because it has been amply proved that the rape was committed with Mst. Aysha Mehreen (P.W.-3). The report of chemical examiner could have been material only if the fact of commission of rape had been doubtful. Even in cases where the chemical examiner's report is negative by itself is not sufficient to shatter the case of prosecution unless some doubt arises about the commission of offence of rape.
23. My aforesaid view finds support from Janoo alias Jan Muhammad's case (PLD 1982 FSC 87).
24. The prosecution has produced sufficient corroboratory and confirmatory evidence in support of victim's version. Mst. Fazilat (P.W.-2) has supported the deposition of Farooq Ahmad (P.W.-1) along with the testimony of Aysha Mehreen (P.W.-3) and Adeel Ahmad (PW-4). She deposed that after cutting grass when she came back home and went to her daughter, who was lying unconscious and her trousers and mattress were stained with blood. Thereafter she along with her husband went to Khurshid Hospital Islam Garh where the victim was not given medical treatment and they were advised to file report at the Police Station. She further stated that she changed the clothes of victim, which were handed to the police along with mattress, two cakes of soap and a dollar pen.
25. Zameer Ahmed (P.W.-5) and Amir Shahzad (P.W.-6) stated that on 17-9-2000 they were proceedings towards their house from Islam Garh Bazaar on their way Aysha Mehreen and Adeel Ahmad met them and when they asked them where they are going, they answered that they are going on the shop of Younis to purchase soap and pen, whereas Abid Mehmood (P.W.-7) deposed that on 17-9-2000 at about 5. p.m. He was proceeding towards the house of his maternal uncle and when he reached on the shop of accused, he saw Aysha Mehreen weeping inside the shop while Adeel was standing beside her. The accused was sitting on the counter of his shop. On his inquiry, both of the children did not answer him and went to their house and at that time Aysha Mehreen was scared.
26. ' Taufique-ur-Rehman (P. W . -8) supported the factum of recoveries of bloodstained clothes of the victim along with .a piece of cotton P/2, P/3 and P/4, two cakes of soap P/6 & P/7, a dollar pen P/8, the clothes of accused trousers P/9 and shirt P/10, credit ledger P/11, a stool P/5, the changed trousers and shirt of the victim P/12 and P/13 bloodstained mattress P/1.
27. ' The aforesaid recoveries were also supported by Nadeem Arif, S.-I. Police (P.W.-14). He also stated that he prepared the identification parade forms Exh.PP and Exh.P0. The identification parade was held in his presence under the supervision of Kh. Pervaiz Ahmad Extra-Assistant Commissioner (P.W.-13) during which the victim recognized the amongst 8 persons. The factum of identification parade has also been proved by Kh. Pervaiz Ahmad, Extra-Assistant Commissioner.
28. As stated above, the commission of rape has been amply proved by the prosecution evidence. So far as the defence evidence is concerned, it does not absolve the accused from the criminal liability. Muhammad Younis and Muhammad Azam D.Ws. Stated that on the day of occurrence the accused was not present on the shop whereas Muhammad Altaf D.W has produced the proof of the date of birth of accused. The aforementioned defence evidence is not sufficient to prove the plea of alibi, which was not specifically taken by the accused in his examination under section 242, Cr.P.0 or 342, Cr.P.C.
29. It will be pertinent to point out that the record of the case does not show any enmity between the parties and it was not possible for the complainant to falsely implicate the accused/appellant in such type of heinous crime instead the real culprit because it is extremely difficult for a father to disrepute or disgrace the reputation and honour of his daughter by expressing before the public that the rape was committed with his daughter.
30. ' It will be relevant to point out that it is admitted on the part of defence that rape was committed with Mst. Aysha Mehreen but the same was done by some other person and not by accused. It appears from the trend of cross-examination and suggestions put to the prosecution witnesses.
31. For instance, it was suggested to Farooq Ahmad (P.W.-1) that Aysha Mehreen was injured while playing cricket, whereas it was suggested to Dr. Nasreen (P.W.-11) that the hymen could be ruptured while jumping. Thereafter it was particularly suggested to Nadeem Arif, S.-I. Police (P.W.-14) that the rape was committed with the victim by Sheraz but instead of him the accused was falsely involved in the case. The above stated style of cross-examination and suggestions put to the prosecution witnesses show that in a way the defence has admitted that the rape was committed with the victim.
32. ' The case-law cited by the learned Counsel for the appellant does not need any analytical survey because of the distinguishable facts.
33. A careful perusal of the above stated prosecution evidence reveals that the prosecution has proved its case against the accused/appellant beyond any shadow of doubt and I am fully convinced that the accused/appellant committed brutal offence of Zina-bil-Jabr with the minor girl aged about seven and half years and there are no mitigating circumstances in favour of the appellant. In this manner, no glaring defect, material illegality or legal infirmity could be pointed out in the finding of the Court below.
34. The upshot of the above discussion is that no good grounds for interference in the impugned judgment passed by the District Criminal Court are made out. Hence, the appeal fails and it is hereby dismissed.