' JUSTICE RAJA FAYYAZ AHMED (MEMBER).--- By this criminal petition, leave to appeal has been sought for from the judgment of the learned Federal Shariat Court, Islamabad, dated 3-6-2004, whereby Criminal Appeal No,133-L of 2003 filed by petitioner, Rashid Ahmed, has been partly allowed by the learned Federal Shariat Court, maintaining his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as "the Ordinance", and the sentence of 25 years awarded to the petitioner under the above said section by the Additional Sessions Judge, Rahim Yar Khan was reduced to 15 years' R.I. He was acquitted under section 11 of the Ordinance with benefit of section 382-B, Cr.P.C. Extended in his favor in case Crime No,130 of 2002 dated 5-3-2002 of Police Station Saddar, Rahim Yar Khan.
2. The brief facts of the case are that pursuant to the written complaint dated 5-3-2000 Exh.P.C.
Submitted to the S.H.O. Of Police Station Saddar, Rahim Yar Khan by Mukhtar Ahmed P.W.3, father of the victim girl/minor, the above mentioned F.I.R. Was registered on the same date at 8-30 p.m., wherein it has been disclosed by the complainant that he is resident of Mouza Khairpur, Tehsil and District Rahim Yar Khan. His daughter Sanam Bibi congenitally deaf and dumb went out of the house at about 3-30 p.m. On 5-3-2002 to a shop for purchasing some sweets, but did not return.
On which, he along with Mehr Din P.W.4 went in search of her and when they reached near the house of petitioner, Rashid Ahmed son of Abdul Malik, heard hue and cries of his daughter, so they entered into the house of the petitioner and saw that the petitioner was committing Zina-bil-Jabr with his daughter having removed her Shalwar, who thereupon; fled away on noticing their presence. He lifted the girl smeared in blood and took her to the police station along with Mehr Din P.W.4.
3. After registration of the case under sections 10(3)/11 of the Ordinance, the victim girl was sent to the hospital for medical checkup. The statements of the P.Ws. Under section 161, Cr.P.C. Were recorded by the Investigating Officer but failed to record the statement of the victim girl, as she was a deaf and dumb person. The Investigating Officer inspected the place of incident and prepared the site plan and on receipt of M.L.C. Of the victim of the offence arrested the nominated accused and submitted incomplete challan in the Court, as the report of the Chemical Examiner to whom vaginal swa bs of the victim were sent for examination was still awaited. Subsequently, on receipt of report of the Chemical Examiner, complete challan No,665 of 2002 was submitted in the Court of learned Additional Sessions Judge Rahim Yar Khan, hereinafter referred to as "the learned trial Court".
4. The accused was indicated in view of the accusation, as contained in the report and incriminating material produced with the challan under sections 10(3)/11 of the Ordinance, to which he did not plead guilty.
5. The prosecution in order to substantiate the accusation, produced seven witnesses. Dr. Maqsood Hussain C.M.O., Sh. Zaid Hospital, Rahim Yar Khan P.W.1, medically examined petitioner Rashid Ahmed on 15-3-2002 in respect of his potency and submitted and produced M.L.C. Containing positive findings as Exh.P.A.
' Lady Dr. Saima Zulfiqar, W.M.O. Sh. Zaid Hospital, P.W. 2 medically examined the victim girl aged about 8 years and found her to be deaf and dumb. On external examination no mark of violence on her body was seen and on internal examination i,e, p.v.; the lady doctor in her M.L.C. Exh.P.B.
Recorded the following findings:- "Internal examination ' On internal examination, I found vulva of healthy, midline tear in perineum about 2 x .5 c.m.
Involving posterior forchette with muscle deep, small inceration in internal vaginal wall was present about 1 x .5 c.m. Hymen was absent. Vagina admitted one finger, bleeding present. Three vaginal swa bs were taken for onward transmission to The Chemical Examiner.
' Final report ' On the basis of my above examination intercourse has been attempted on the above mentioned girl. But the evidence of fresh intercourse depends upon the report of Chemical Examiner. I noted the following marks of identification on the body of the examination.
(1) A scar mark above left eye.
(2) A mole on mid of nose in upper portion.: ' After completion of the medical examination of the victim girl, she handed over copy of the M.L.C.
Exh.P.B. To the A.S.-I. Including a sealed envelope comprising of a bottle, which contained vaginal swa bs for onward transmission to the Chemical Examiner.
' Mukhtar Ahmed complainant P.W.3, is father of the victim, deposed in line to what he stated in the report made by him before the S.H.O. Of said police station.
' Mehr Din P.W.4 supported to the version of Mukhtar Ahmed P.W.3. He deposed that on 5-3-2002 at about 3-30 p.m. On the disclosure of P.W. Mukhtar Ahmed that his daughter had not come back, therefore, they should go to search her. He along with Mukhtar Ahmed father of the girl started the search of the victim girl and when they reached in front of house of the petitioner present in the Court, they heard the shrieks of Sanam Bibi from the house of the petitioner, who, on seeing them made good his escape and they had seen the petitioner committing Zina-bil-Jabr with the girl in a room of the house, which was open at that time. According to the P.W., they attended the minor girl, lifted by her father and took her to the police station, where report was lodged and the blood- stained Shalwar of the victim was also taken into possession by the Police Officer produced as article P.1 and seizure memo was produced by the witness as Exh.P.D.
' Rana Muhammad Ashraf, I.P. P.W.5 registered the formal F.I.R. Exh.P.C.1 on submission of complaint Exh.P.C. And sent the victim girl Sanam Bibi to the hospital for medical examination. He produced the site plan prepared by him after visiting the place of occurrence as Exh.P.E. And took into possession the blood-stained clothes of the victim consisting of Shalwar and shirt produced as articles secured vide memo. Exh.P.D. He arrested the accused on 14-3-2002 and on the next following day submitted application to the Illaqa Magistrate Exh.P.A./1 for the medical examination of the accused and prepared incomplete challan.
' The sealed parcel containing swa bs were handed over- to constable Habib-ur-Rehman P.W.6 by Munir Ahmed Moharrir for onward transmission to the office of Chemical Examiner, Multan and till such time the sealed parcel remained in the Malkhana duly intact
6. The petitioner in his examination made by the learned trial Court under section 342, Cr.P.C. In the light of the incriminating evidence adduced at the trial, denied and disputed the same in toto. In answer to question No,4, he explained that it was not possible for him in such eventuality to escape from he scene of incident and while answering to questions Nos.8 and 9, he stated that P.Ws. Are related to the complainant party and inimical towards him and because of political rivalry he has been implicated in the case by the police and further submitted that he is father of a daughter and the so-called victim girl is like his daughter. He did not record his statement on oath in disproof of the charge within the purview of section 340(2), Cr.P.C. And produced only one witness in defence namely, Khan Muhammad A.S.-I. Of Police Station Saddar Rahim Yar Khan as D.W.1, who produced copy of application dated 5-3-2002 Exh.D.A. Submitted to the Illaqa Magistrate, Rahim Yar Khan seeking direction of the Court for medical examination of the victim.
7. We have heard the learned senior Advocate Supreme Court for the petitioner at length. He contended that the evidence produced by the prosecution has been substantially misconstrued and misapplied by the learned Courts below inasmuch as; commission of alleged offence has not been proved beyond shadow of any reasonable doubt. He argued that the petitioner, in view of the well-settled principles of safe administration of criminal justice envisaged by the Islamic Law and Jurisprudence, is entitled to earn acquittal on account of inherent doubts of substantial nature in the prosecution case. The learned senior Advocate Supreme Court in the light of the opinion given by the lady doctor strenuously argued that at best an act of attempt to commit Zinabil-Jabr, spells out as per expert opinion, .Which too does not connect the petitioner with the commission of offence. The learned counsel in view of the expert opinion and findings recorded in the M.L.C. Of the victim argued that no penetration was made/appears to have been done, therefore, conviction of the petitioner under section 10(3) of the Ordinance is not sustainable. In support of his above contentions reliance has been placed on the reported judgments i,e, (1) Mst. Siani v. The State PLD 1984 FSC 121; (2) Mst. Elahi Sain v. The State 1986 SCM R 148 and (3) Muhammad Ali and another v.
The State 1987 PCr.LJ 671.
8. The contentions put forth on behalf of the learned counsel have been considered in the light of the record of the case and the impugned judgments passed by the learned Federal Shariat Court and the learned trial Court, gone through carefully and minutely.
9. Admittedly, Sanam Bibi at the time of incident was about 8 years of age and was also deaf and dumb. She was examined by the lady doctor with the consent of her father Mukhtar Ahmad P.W.3, therefore, in the same manner she could have been examined by the Investigating Officer being a deaf and dumb through any teacher of a deaf and dumb school being a principal witness of the incident but such course was not adopted by the Investigating Officer despite being under legal duty to do so but such lapse on the part of the Investigating Officer in the peculiar facts and circumstances of the case would not be of any benefit to the defence in absence of any strong reason or motive for false implication of the accused in the case which lacks. The F.I.R. After the incident was promptly lodged and on the same date Sanam Bibi aged about 8 years was produced by the Police Officer before the lady Medical Officer for medical examination, who testified in the M.L.C. That Sanam Bibi daughter of Mukhtar Ahmed aged about 8 years (female), produced by the police for her medical examination and it has been noted after examination that there was a midline teat in perineum about 2 x .5 c.m. Involving posterior fourchette muscle deep and small laceration in the internal vaginal wall was present about 1 x .5 c.m. And hymen was absent. Vagina admitted one finger and bleeding present. She took the vaginal swabs for onward transmission to the Chemical Examiner. On the basis of the above findings, she opined that intercourse has been attempted on the above mentioned girl and the findings regarding fresh intercourse depend upon the result of Chemical Examiner. The Chemical Examiner Report Exh.P.F.
Was produced, which shows that the packet with intact seals of W.M.O. Containing three samples of vaginal swa bs on examination found to have been stained with semen and blood. Therefore, as per opinion of the Chemical Examiner and even the lady doctor it has successfully been proved that the victim girl was subjected to intercourse. The swabs were found stained with semen as well as; blood which if be read together with the findings recorded by the lady examining Medical Officer in the M.L.C. Proved at the trial, leads to irresistible conclusion that the victim/minor girl was subjected to intercourse, as it was found that the hymen of the victim was absent and vagina admitted only one finger, bleeding present in addition to other observations of examining Medical Officer mentioned above, therefore, it cannot be said that the victim girl was not subjected to intercourse and no sexual penetration was made on her person. The findings recorded by the lady Medical Officer on internal examination of the vulva of the victim coupled with the report of Chemical Examiner proved the fact up to the hilt that the girl was subjected to sexual assault to which no exception can be taken. The evidence of the lady Medical Officer could not be discredited or impeached on cross-examination and there being no material to rebut such evidence.
Consequently, the contentions of the learned counsel that, as per opinion of Medical Officer an attempt for sexual assault was made on the person of the victim is totally misconceived and devoid of any substance. The findings recorded by the lady Medical Officer in respect of the internal examination of the victim noted above abundantly lends support to the version of the ocular witnesses, especially the father of the minor/deaf and dumb, who would not in any case prefer to make a stigma upon his family honour by making a false allegation of such a nature against any person. The evidence of the ocular witnesses have been scrutinized and appraised in dept by the learned trial Court, as well as; by the learned Federal Shariat Court in its true perspective and no part of incriminating evidence has been misconstrued or misapplied by the learned Courts below. The case-law cited by the learned counsel for the petitioner have been considered, which lend no support to his contention nor relevant to the facts and propositions canvassed before us by the learned senior Advocate Supreme Court. No case for attempt to commit Zina-bil-Jabr appears to have been made out in the light of the prosecution evidence nor it emerges so from the incriminating evidence adduced at the trial nor from the evidence of the ocular witnesses can any reasonable doubt be gathered to be extendable in favor of the petitioner.
The evidence of the ocular witnesses on all the material particulars is consistent, straightforward, convincing and fits in the circumstances of the case to which no exception can be taken. Moreover, this petition is barred by time having been filed after the lapse of 53 days beyond the prescribed period of limitation for which no plausible and cogent reasons have been provided to condone the delay, as such; this also fails on the ground of limitation as well.
10. Thus, for the foregoing reasons no case for leave to appeal has been made out, therefore, this petition is dismissed and leave to appeal is refused.