' HAZIQUL KHAIRI, C.J.--- The appellant Muhammad Yameen is aggrieved by the judgment, dated 29-11-2004 whereby he was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to R.I. 10 years with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that on 5-2-2003 at about 12-00 noon complainant Mst. Sabhlan Mai (P.W.3) was alone in her house and taking bath there. Suddenly appellant Yameen entered into the house and the bathroom. Seeing her in naked condition, he placed his hand on her mouth and started committing Zina with her. On her hue and cry, Bashir Ahmed (P.W.4) nephew of complainant and Bachaya brother of the complainant rushed to her rescue and saw the occurrence. On seeing them, accused fled away. She lodged F.I.R. Same day at 7-30 p.m.
3. The prosecution has produced the following witnesses:---
4. P.W.1 Muhammad Qaisar 772/C who delivered sealed parcel containing swabs to the concerned office intact on 6-2-2003.
5. P.W.2 Muhammad Sarwar 258/H.C. Received on 5-2-2003 complaint, Exh.P.A., through Riaz Hussain, which was drafted by Muhammad Nasir, A.S.-I.
6. P.W.3 Mst. Sabhlan complainant in her examination-in-chief repeated the same story of her rape as in F.I.R. In cross-examination she stated that the house of appellant is situated at the distance of two squares from her house so also the house of the P.Ws. Her husband at the time of occurrence was in the cotton field and collecting cotton through ladies collectors. She narrated the whole occurrence to her husband. The appellant is her first cousin. On her hue and cry Allah Bachaya was the first person who came to the place of occurrence. Her husband had stopped appellant Yameen about a year back to come to her house. There was dispute between Bashir (P.W.4) and Mst. Amir Mai on the question of inheritance of land and Bashir refused to give proper share to Mst.
Amir Mai. Her Basti consisted of 7/8 houses where 20/25 male and equal number of females live there. They went to police station in the afternoon because they did not have fare of journey and it took some time to collect the fare. She also, disclosed in her cross-examination that she had four daughters and six sons out of whom two daughters and one son were married. Her unmarried sons and daughters live with her.
7. P.W.4 Bashir Ahmad son of Ghulam Rasool stated that on 5-2-2003 he was present in his house when at about 12-00 noon, he heard hue and cry of MA. Sabhlan. He along with Allah Bachaya rushed to the place of occurrence. They saw appellant Yameen committing Zinabil-Jabr with Mst.
Sabhlan. He fled away from the place of occurrence through the window. They chased him but their efforts were in vain. She was also medically examined same day. The same day and the next day police inspected the place of occurrence and recorded the statements of P.Ws. Under section 161, Cr.P.C. In cross-examination he admitted that the appellant is his maternal-nephew and appellant's mother is his stepsister. He heard the shrieks of Mst. Sabhlan and called Allah Bachaya and then both of them arrived at the place of occurrence. Thereafter he chased the accused but Allah Bachaya P.W. Could not chase the appellant because of his ailment. He denied the suggestion that there was a dispute on the inheritance of land between him and the mother of appellant. He also denied that he had refused to give the possession of the land to the mother of the appellant.
8. P.W.5 Lady Dr. Fatima Sherin was W.M.O. On 5-2-2003 at R.H.C. Qadir Abad. She examined Mst.
Sabhlan Mai, 40 years and found no sign of inflammation over her vulva and vagina. But she found slight redness over nasal bone of the victim. In cross-examination she admitted that it was incorrect that redness on the nasal bone was not a result of any injury, however, it was correct that if rape was committed on any woman then there should be marks of violence or marks of defence on her body which was not there. According to chemical report, dated 27-2-2003, the vaginal swa bs were stained with semen.
9. P.W.6 Muhammad Nasir, S.-I. Of Police Station Darkhast Jamal stated that on 5-2-2003 he was patrolling during which Mst. Sabhlan Mai came there along with Bashir Ahmad her husband and her Devar Allah Bachaya. She got recorded her statement on the basis of which her formal F.I.R.
Was lodged . He inspected the place of occurrence, prepared the rough site plan and recorded the statements of P.Ws. Under section 161, Cr.P.C. In cross-examination he admitted that the complainant did not come to the police station that day. The distance between Pul Budroo and R.H.C. Qadir Abad is about 6/7 K.M.
10. P.W.7 Dr. Hafeez Ullah stated that on 21-3-2003 he was posted as C.M.O. At D.H.Q. Hospital, D.G.
Khan. On the same day he examined Muhammad Yameen, appellant brought by the police for medical examination. In his opinion there was nothing to suggest that he was impotent.
11. Appellant Muhammad Yameen recorded his statement under section 342, Cr.P.C. On 2-10-2004 and stated:--- "It is incorrect. There is serious enmity between my family and the family of complainant. They went to settle the dispute/issues on their terms and conditions. For this purpose this false and concocted case has been registered against me. The allegations against me are totally incorrect. In fact, my mother Mst. Amir Mai sold out the inherited land through Mutation No,893 dated 31-3-1996 against the wishes of her brother and P.W. Bashir Ahmad."
' He elected not to produce any defence evidence, or to. Appear his own witness. However, to a question put to him as to why this case against him and why P.Ws. Have deposed against him, his reply was as under:-- "It is incorrect. There is serious enmity between my family and the family of complainant. They went to settle the dispute/issues on their terms and conditions. For this purpose this false and concocted case has been registered against me. The allegations against me are totally incorrect. In fact, my mother Mst. Amir Mai sold out inherited land through Mutation No,893 dated 31-3-1996 against the wishes of her brother and P.W. Bashir Ahmed."
12. The victim, as per medical report of P.W.5 Lady Dr. Fatima Sherin, is 40 years and the appellant, as per his own said statement, was 35/40 years. The victim was an elderly lady and had four daughters and six sons. She is also on record stating that her husband had asked the appellant not to come to his house, thus, even though he was a near relation of the victim, he was considered an undesirable person to visit the house. Keeping in view her age and fact that she was the mother of ten children and grandmother of many more grand children, it is impossible to believe that she will put her honour and of her entire family at stake by lodging a false case against her near relation. I find that the reasoning of the learned trial Judge in this respect is also the same as under:-- "In our society it is not easy to live with the stigma of Zina specially when a woman had daughters.
In this case the complainant's four daughters are married and others are not married. If complainant would take risk of registration of false case against the accused just to satisfy her ego then she would put stake the future of her married daughters as well as the future of her unmarried daughters because in our society it is almost very difficult for any man to accept any girl whose mother-in-law have the stigma of Zina on her face. The man of common prudence cannot take risk of the future of her daughters."
13. Learned counsel for the appellant brought to my notice that according to the testimony of P.W.5 Dr. Fatima Sherin, W.M.O. There was no marks of violence on the body of Mst. Sabhlan Mai and that if rape is committed on any woman there should be marks of violence or marks of defence. This contention stands rebutted by her own observation that she found "slight redness over nasal bone of the victim".
14. It was next urged by learned counsel that the chemical report being positive cannot be relied upon as the complainant Mst. Sabhlan Mai was a married woman. It is true that no D.N.A. Or similar test was carried out in order to ascertain the truth. However, her testimony duly supported by other P.Ws. Has remained unshaken and irrbutable, independently of medical report etc. Convincingly furnish ground for conviction of the appellant.
15. For the foregoing reasons, the appeal fails, the conviction of the appellant is maintained, however, the sentence of the appellant is D reduced from ten years' R.I. To seven years' R.I. With benefit of section 382-B, Cr.P.C.