1. ' This is an appeal against the judgment dated 14-1-1979 passed by the Additional Sessions Judge VIII, Karachi convicting the appellant under section 376, P. P. C. And sentencing him to 7 years' R. I.
2. And a fine of Rs, 3,000 or in default further R. I. For one year. The relevant facts are contained in F. I. R.
3. Exh. 2-A filed by the prosecutrix Mst. Zatoon Bibi on 20th September, 1976 at 5 hours at Mahmoodabad Police Station, Karachi. F. I. R. Reads as under:- "Today at about 4-30 p.m. I had gone to fetch water from the tap. I was present at the tap when a person namely Wali also arrived there. He called me towards his side. But I didn't go. Then he came near me and while catching hold of me he took me into the bushes at some distance and after taking me there he muffled my mouth with my dupatta and thereafter he untied the tape of my `shalwar' and after removing my `shalwar' he kept the same on the ground and made me lie thereon and he removed his 'dhoti' and after making my legs wide open he forcefully thrust his male organ into my vagina due to which I shreaked and I felt much pain. Even then, Wali did not leave me and went on penetrating his male organ into my vagina several times, to which I felt much pain and thereafter he left me. Then my vagina was bleeding. I put on my shalwar. He went away after putting on his dhoti. I started feeling giddiness. I reached my house with difficulty and narrated the whole facts to my sister Shamim. My father came home late at night and then I narrated the facts to him. I lodged complaint. Action be taken."
4. ' The F. I. R. Was registered by P. W. 7 Nisar Ahmed. He recovered the clothes of the girl under mashirnama Exh. 6-A which shows the date 20-9-1976 and a time of 02.00 hours whereby showing that it was done before the recording of the F. I. R. He arrested the accused at about 11.a.Rn. And recovered a dhoti from his person in presence of mashirs one of whom was P. W. 4 Rehmatullah under mashirnama Exh. 9-A. He also sent the prosecutrix and the accused to the doctors for examination and prepared memo of vardat as Exh. 6-13 in presence of the same mashirs and also recorded statement of P. Ws. Namely Rehmatullah and Abdul Hameed and thereafter the statement of Abdul Sattar the father of the girl and Mrt. Sahmim Akhtar.
5. ' The prosecution examined Mst. Zatoon Bibi P. W. Who reiterated the contents of the F. R.
6. Substantially in her statement. She stated that the accused took off her dopatta when she was filling water and shoved it into her mouth and then dragged her to nearby bushes and untied her shalwar and committed rape upon her and she felt severe pain and she related the incident to her father when he returned home at 10 or 10-30 p.m. She was thereafter taken to police station where she lodged her F. I. R. Where her clothes were also secured by police. In her cross-examination she admitted that she used to go to the public tap which was 200 paces from her house while there was a tap in her own gall which was 20 paces from her house while another tap was 10 paces from her house. She stated that the bushes were inside an open plot where plinth was constructed and there were 5 or 6 houses on either side of the plot and bushes are 7 or 8 feet high. She asserted that she raised cries when the accused was dragging her into the bushes, but no one came on her cries. She denied that rape upon her had been committed by one Akram who was her relative, She had admitted that they had gone to the police station at about 11 p.m. She denied that accused was on visiting terms with them. She further denied that her father had enmity with the accused.
7. She admitted that Rafiq and Rehmatullah P. W. Had gone with them to the police station. She also admitted that P. W. Abdul Majeed was her relative.
8. ' The statement of Mst. Zatoon Bibi was corroborated in material particulars by P. W. 2 Abdul ,Sattar who is her father, and by statement of P. W. 3 Mst. Shamim Akhtar who is her sister. Abdul Sattar stated that he returned at about 10 or 10-30 p.m. And elder daughter Shamim Akhtar told him that Mst. Zatoon was abducted from the water tap by Wali Mohammad and he committed rape upon her. He then took Zatoon to police station where Zatoon lodged a report. Police sent Mst. Zatoon Civil Hospital for examination. He admitted in cross-examination that his daughter Shamim Akhtar had told him that she washed the shalwar of Zatoon. He stated that he had taken 3 clothes to the police station. He stated that he had gone to Jinnah Hospital to see his son who had been operated earlier and therefore he returned to his house at 10-30 p.m. He denied that he knew any man by name Akram or that he was on visiting terms with them. He denied that accused Wali Mohammad had filed a complaint of theft against him. He denied that he was falsely implicating the accused. He asserted that Zatoon was 11 years old at the relevant time and her elder sister Shamim Akhtar was about 13 years old. He stated that his sons are younger than Zatoon and Shamim and when he came back his son was present in the house. He denied that he had told Abdul Majeed that rape on her daughter had been committed by Akram.
9. ' P. W. 3 Mst. Shamim Akhtar stated that Mst. Zatoon Bibi came from fetching water after 4-30 p.m.
10. And when she arrived she became unconscious and her clothes were blood-stained. She changed her ciothes and also washed the previous clothes. After 1 hours Mst. Zatoon regained her senses and told Shamim Akhtar that Wali Mohammad had taken her to nearby bushes and committed rape upon her. Mst. Shamim Akhtar related these facts to her father P. W. 2 Abdul Sattar when he came to the house in the night at 10 p.m. In cross-examination she stated that she had identified Wali Mohammad in spite of the fact that she was in purdah. She denied that Akram was on visiting terms with them and that Akram had committed rape on Mst. Zatoon. She admitted that blood was coming after change of shal war.
11. ' The case has been'further strengthened by recovery of clothes of complainant vide a memo. Exh.
12. 6-A and memo. Of vardat Exh. 6-B and seizure of dhoti from the person of accused Wali Mohammad vide a memo. Exh. 9-A. These memos. Were proved by the I.
0. P. W. 7 Nisar Ahmed S. H.
0. Who made them. They were also proved by P. W. 4 Rehmatullah who is the mashir of the same.
13. He is also relative of Mst. Zatoon and lives in the same colony. Nothing has been brought against him in cross-examination which could condemn these memos. The clothes had been sent to the chemical examiner and his report Exh. 12-A has been filed which shows that semen had been found on the shalwar of Mst. Zatoon Bibi and dhoti of Wali Mohammad. Blood was also found on the gra/war of Zatoon. No semen was detected on swab.
14. ' The accused Wali Mohammad was examined by Medical Officer P. W. 5 Dr. Syed Iqbal Ahmed who did not find any mark of external injury on his body on 20th September, 1976. Urenthal slide was made and was handed over to police for its transfer to Chemical Examiner. He admitted that if the act of intercourse is committed one day before the examination and the active agent is produced on the next day the mark may not be visible. He produced the medical certificate Exh. 7-A in respect of the accused which showed no mark of blood on the external genitalia and no mark of blood or semen on the thais or external genitalia.
15. ' Mrs. FIameeda Qureshi P. W. 6 had examined Mst. Zatoon Bibi on 20-9-1976, and her certificate Exh.
16. 8-A shows the following:- ".No mark of violence seen on body. Clothes has blood stains. She is minor girl of average built and height, secondary sexual characters not developed. Vagina shows fresh tears at interior and posterior vaginal blood is oozing out from tear. Hymen is torn at 2, 4, or 6 or 10 O'clock positions.
17. Vagina is tender to touch."
18. ' The finding in this Exh. 8-A was that act had been committed on her, but final report depended upon the report of Chemical Examiner. She found blood oozing out from the tears of vagina. She also stated that seminal slides were sent to Chemical Examiner. She was not cross-examined at all by the defence.
19. ' P. W. 7 Nisar Ahmed conducted the investigation and he has proved that he registered the F. I. R.
20. Exh. 2-A, and stated that he arrested the accused at 1-30 a.m. And secured dhoti from him vide Exh.
21. 9-A which was made at 11 a.m. On 20-9-1976. He sent accused as well as Mst. Zatoon to Police Surgeon and prepared memo of vardat Exh. 6-B which is dated 20th September, 1976 at 08.48 hours. The clothes secured from Mst. Zatoon were secured under Exh. 6-A which is dated 12-9-1976 and shows the time of preparation as 02.00 hours. Mashir of all the memos is P. W. Rehmatullah. In the cross-examination Nisar Ahmed stated that he rushed to arrest the accused since he recorded the F. I. R. He admitted he did not prepare any memo of arrest of the accused but made a note in the Station Diary and immediately brought the accused to the police tation. He admitted in cross- examination that the remand report which was written by him for obtaining the remand of accused on 21-6-1976 had given the reason that accused had to be medically examined and that he had also to secure the clothes which the accused was wearing at the time of incident. He also admitted that he did not prepare any investigation memo. Of vardat. He asserted that bushes might be about 6 to 7 feet high. He denied, that he did not prepare sketch because the bushes were not so high where such an offence could be committed. He denied any knowledge if there were two water taps near the house of prosecutrix.
22. ' The accused in his statement denied the entire case of the prosecution and stated that he had not committed any rape upon girl and story is false and the complainant party had involved him due to enmity. He further stated that P. Ws. Were interested and related to the complainant and that he had reported against Abdul Sattar father of the girl on 21-4-1975 and shown his suspicion of theft against Sattar.
23. ' I do not find any justification for the statement made by the accused as the accused never suggested any enmity to Abdul Sattar P. W.
2. In his cross-examination nor did accused ask from P. W. Sattar any question whether the accused had reported on 21-4-1975 any suspicion of theft against Sattar. The suggestion of enmity against P. W. Sattar is, therefore, completely unfounded.
24. ' After hearing the argument of Mr. Azad Bin Hyder on 2-12-1979 I found that the Exh. 9-B which was the certificate of the age of Mst. Zatoon issued by Police Surgeon had not been properly proved and the X-ray report and the chemical findings on which the said certificate was based had not been brought on record. Consequently, I directed the trial Court to examine the Police Surgeon. The trial Court examined the Police Surgeon on 24-3-1980 in presence of the accused/appellant and his deposition as P. W. 9 is Exh.
15. The radiological examination report is Exh. 15-A which states that as per ossification test age is about 13 years. Exh. 15-B are the two X-ray plates of the bones. The Doctor in his statement has proved his certificate Exh. 9-B where he stated that on 23-9-1976 the age of the girl Mst. Zatoon Bibi was about 13 years. In cross-examination this P. W. Asserted that he had entertained about 500 and 600 cases of like nature. He stated that he had not examined girl for the purpose of injury. He stated that he did not conduct the ossification test but the Radiologist conducted the same. He admitted not to have measured the size of nipple of Zatoon Bibi. He ,conducted the examination of pubic hair of girl but did not examine the vagina, in the end he stated that the girl could be below 13 years or over 13 years of age.
25. ' Mr. Azad Bin Hyder, learned counsel for the appellant has submitted that the F. I. R. Which is shown to have been lodged on 20th September, 1976 has been lodged after great deal of deliberation and the same is worthless document. He based his argument on the fact that most of the P. Ws. Had stated that they went to the pofiee station after 10-30 p.m. On 19-9-1976 and reported the matter to the police. Even Exh. 6-A which is the memo of recovery of clothes of the girl Mat. Zatoon shows that her clothes were recovered on 20th September, 1976 at 2 a.m. Even P. W. 4 Rehmat had admitted in cross-examination that accused was arrested at 1-30 a.m. In the night on 20th September, 1976.
26. The criticism of the learned counsel appears to be justified and it is apparent that the F. I. R. Was recorded after some steps towards investigation had been taken after the accused was arrested.
27. Even I, 0. Had stated that he arrested the accused at 1-30 a.m. On 20th September, 1976. Mr. Azad Bin Hyder relied upon PLD 1965 Kar. 76 where it was held that F. I. R. Recorded after commencement of investigation is inadmissible. He also relied upon 1976 P Cr. L J 364 where it was observed that in a case where there was inordinate delay in filing the F. I. R. And Medical report did not corroborate the F. I. R. The accused was entitled to be. Acquitted. He also relied upon AIR 1916 Lab. 292 where it was observed that where no blood or semen had been found on the person of the prosecutrix and further that there was a great delay in filing the F.
1. R. The accused was acquitted.
28. ' Mr. Azad also contended that since the age of the girl was shown to be about 13 years and there could be a margin of error of one year on either side possible, therefore, the age of the girl should be treated as 14 years as held in 1975 P Cr. L J 936. He further argued that since there' was no mark of violence either on the prosecutrix and on the accused and moreover there were no cries raised by the prosecutrix at the time of the occurrence as no neighbors had been attracted on the cries, therefore, it should be presumed that she had consented to the same and hence there was no rape. He relied upon 1970 P Cr. L J 163 .Where in a case where the age of the prosecutrix was over 14 years and the prosecutrix had eloped with the accused willingly and she was neither put in any fear by accused nor sign of injuries were visible on her person nor she was subjected to forcible intercourse, therefore it was held that the circumstances led to a conclusion that the girl had consented to the intercourse.
29. ' I agree with Mr. Azad Bin Hyder that the age of the girl should be treated as about 14 years in view of the report that she was about 13 years old and there was a margin of one year's error possible on either side. But 1 did not find any justification to agree with Mr. Azad Bin Hyder that there was any consent on the part of the complainant or that consent should be presumed under the circumstances. It is correct that the complainant had gone 200 paces from her house to fill the water in spite of the fact that there were taps available near her house but she had asserted in her cross-examination that she used to go at the public tap to fetch the water daily. The defence did not seek any further explanation from the girl as to why she fetched water from that tap and the APP who wanted to put a question in re-examination about the reason of her going to that water tap was not allowed to do so. The girl in her statement has clearly stated that the appellant had dragged her to the nearby bushes and committed rape upon her. The defence has not suggested any question to her that she was a willing party to the intercourse and the accused in his statement under section 342, Cr. P. C. Has denied that he had committed any rape upon her. She had further stated that the accused had taken off her dopatta and shoved it into her mouth and that statement would show conduct far from consent. There was no cross-examination directed against that particular part of the statement. The cross-examination directed against the complainant did not suggest intimacy between the appellant and the complainant, and therefore, it is not reasonable on the part of defence to ask the Court to infer a consent to intercourse from the girl. In fact I find that the defence has asserted that it was some one Akram who had committed rape upon her white the responsibility has been shifted upon the appellant. In these circumstances, the question that girl had consented to intercourse with the appellant/accused was preposterous and there was absolutely no justification to make that submission. And going to'a far-off tap, or not raising of cries, or even lack of resistence on the part of the prosecutrix could hardly justify the inference of consent in the circumstances of this case. The height of the girl is 4 feet and 6 inches and her weight has been given as only 56 pounds and she is about 13 or 14 years of age and it was, therefore, difficult for her to show resistence to a man of 25 years who had height of 5 ft. And 8 inches and weight of 140 lbs. Particularly when the prosecutrix's dopatta had been shoved into her mouth. The statement of the prosecttrix Mst. Zatoon that she had been raped has been corroborated by her medical examination where her vagina was found torn at 4 places and her clothes were found to be stained with blood and semen.
30. The criticism that the F. I. R. Was delayed is not really justified in view of the fact that her father came into the house at about 10 p.m. And thereafte the party had proceeded to the police station for lodging the report, but it appears that the I.
0. Rushed to arrest the accused before recording th F. I. R. In these circumstances I would not rely upon the F. I. R. For th purpose of corroboration of the statement of the girl, but I am of the vie that there was no unreasonable delay in taking the matter to the polio by the complainant side and it was only the police officer who bungled in not recording the F. I. R. At the proper time.
31. ' The statement of the complainant has been amply corroborated by the statement of Mst.
32. Shamim Akhtar the elder sister of Mst. Zatoon when Zatoon returned to house after 5-30 p.m. And.
33. Shamim changed her clothes and she found Zatoon in a semi-conscious condition and Zatoon told Mst. Shamim Akhtar that Wali Mohammad had committed rape upon her. Their father was not in the house at that time, and therefore, it is unreasonable to expect that these two minor girls, when alone in their home, would go to the police station to lodge the F. I. R. Further corroboration has been provided by the statement of Abdul Sattar and Rehmatullah whom the information was conveyed by Mst. Shamim Akhtar at about 10-30 p.m. On the same day on their arrival. I am, therefore, satisfied that the prosecution has established fairly reasonable and plausible case against the appellant and the appellant has failed to make out any case of his false substitution and be has not been able to establish any enmity between him and Abdul Sattar father of the girl and he has further failed to prove that the girl had consented to any intercourse with him. Mr. Azad Bin Hyder wanted me to disbelieve that there was any recovery of dhoti from the person of the accused on 20th September 1976 at 11 a.m. Because the Investigating Officer has submitted in his application for remand 21st September 1976 that he had recovered the clothes which accused was wearing on his person. The reason for remand is hardly relevant for the purpose of disproving the previous recovery. In any case the word used in the request of remand is `clothes' while the recovery of dhoti earlier made is only a part of the clothes and therefore it could be possible that the I. O. Might have wanted to recover the rest of the clothes which the accused was wearing at the tim of incident apart from the already recovered dhoti and, therefore this circumstance is not enough to condemn the recovery of the dhoti from the appellan which has been found to be stained with semen by the appellant as foun by the Chemical Examiner and the same provides a strong incriminatin evidence against the appellant.
34. ' In these circumstances, I do not find any justification to allow this appeal which is hereby dismissed.
35. However in view of provisions of section 382-B of Cr. P. C. I would direct that in view of the period of detention of the appellant in Jail before his conviction rtz. From 20-9-1976 to 4-1-1979 amounting to 3 years, 2 months and 25 days, a period of 2 years would be treated as the period of imprisonment having been undergone by him and the same would be deducted from his 7 years' term of imprisonment.