1. Appellant Bhola has filed this appeal against the judgment dated 16th January, 1980 of learned Ex Officio 4th Additional Sessions Judge, Karachi whereby he has been convicted for offences under section 376, P. P. C. And has been sentenced to R. I. For seven years and a fine of Rs. 1,000. In default of the payment of fine it is directed that appellant would further undergo R. I. For six months.
2. Briefly stated the prosecution case is that on 24th August, 1975 at 5 a.m. Mst. Anisa aged three years was found missing from her cot by her mother Mst. Farida, who went out in search of her raising cries and found Mst. Anisa lying in injured condition bleeding from her private parts and two persons near her who were adjusting their clothes. This incident took place in the Municipal Park, Liaquatabad which is at a short distance from the house of Mst. Farida complainant. Mst. Farida attempted to catch hold of the two assailants and on her cries other persons from the neighbourhood came to the spot. In the meantime co-accused Anwar Rahim succeeded in running away from the scene of offence while one assailant was caught by Mst. Farida and the other witnesses. Immediately F. I. R. Teas lodged at Police Station Liaquatabad and the person apprehend--ed at the spot was also taken there and he gave his name as Bhola, the present appellant. His shalwar was secured which was found to be stained with semen and blond as such put into scaled parcel and sent to the Chemical Examiner. Co-accused Anwar Rahim was arrested subsequently and his underwear, which was also stained with semen and blood, was secured, put into sealed parcel and sent to the Chemical Examiner. After the completion of the steps of investigation the challan was presented.
3. The trial Court has acquitted co-accused Anwar Rahim on the ground that his name does not appear in F. I. R. And secondly that his description was also not given in F. I. R. So far the present appellant is concerned before the trial Court prosecution has examined as many, as 10 witnesses.
4. P. W. 1 Mst. Farida complainant, P. W. 2 Muhammad Hanif, P. W. 3 Aminuddin, P. W. 4 Muhammad Usman and P. W. 5 Muhammad Shamim leave deposed before the trial Court that when they reached the spot they found Mst. Anisa aged three years lying in the garden in injured condition and was bleeding from her private parts and the present appel--lant was there near her and was apprehended at the spot and was taken to the police station. One witness P. W. 6 Shaikh Muhammad Ayub, whose evidence was also on similar lines, when appeared before the trial Court did not support the prosecution case and was declared hostile. Prosecution has also examined A.
5. S. I. Akbar Hassan who recorded F. I. R. And made recovery of shalwar from the person of appellant who was brought at the police station. P. W. 9 Dr. Hamid Qureshi ideas deposed before the trial Court that on 25August, 1975 at about 10 a.m. She examined minor girl by name Mst. Anisa and found her hymen completely torn with tear on the right wall of vagina extending to the perineum.
6. She further opined that rape was committed on her. P. W. F Yadgar Hussain has conducted the investigation of the case when he was given copy of F. I. R. He re--corded 161, Cr. P. C. Statements of the witnesses and on the same day arrested co-accused Anwar Rahim on the pointation of Mst.
7. Fardia. Prosecution has also examined Syed Hassan Siddiqui P. W. 10 who is clerk of police Surgeon and he deposed before the trial Court that co-accused Anwar Rahim was examined h), Doctor Malik Muhammad Khan, who left the service and his whereabouts were not known this witness has identified his handwriting and signature in medical report Exh.
25. Prosecution has also produced before the trial Court report of Chemical Examiner Exh. 20 which is to the effect that shalwar of appellant has been found not to be stained with blood and semen but underwear of acquitted co- --accused Anwar Rahim has been found to be stained with semen. Chemical Examiner has also found flood in the parcel which contained earth secured from the scene of offence.
8. Appellant and the acquitted co-accused in their statements under section 342, Cr. P. C. Recorded before the trial Court took up the plea of false implication and denial simpliciter of all prosecution allega--tions. Appellant Bhofa has further stated in that statement that the P. Ws. Have deposed against him due to enmity because they are interested, false and set up. He has been implicated as the complainant and wit--nesses are his enemies. No witness has been examined before the trial Court in defence either by the appellant or by the acquitted co-accused.
9. Mr. Khawaja Adeel Ahmad, learned counsel for the appellant first pointed out some discrepancies in the evidence of the material witnesses recorded before the trial Court but these discrepancies pertain to details which are insignificant and do not relate to the factum of apprehension of appellant at the spot by the witnesses who reached the scene of offence immediately after the occurrence. It was submitted by Mr. Khawaja Adeel Ahmad that only circumstance appearing against appellant Bhola is that he was apprehended at the spot soon after the commission of offence and there was no other evidence worth the name on the record to connect him with the commission of crime. He submitted that the report of Chemical Examiner is negative so far shalwar of Bhola is concerned and neither semen nor blood has been detected on that shalwar while on the other band semen was detected on the underwear of Anwar Rahim, who has been acquitted by the trial Court. It is also submitted by the learned counsel that it is not the case of the prosecution that rape was committed on the girl by two persons, first by Anwar Rahim and second time by the present appellant. In this context the learned counsel has pointed out that had it been correct that the present appellant Bhola had also committed rape then as per prosecution case Bhola was apprehend--ed at the spot from where he was taken straight to the police station where his shalwar was taken and put into sealed parcel and in such circumstances he had no opportunity to change his clothes but even then the Chemical Examiner has not detected any semen or stains of blood on the shalwar of Bhola which shows that prosecution is not in possession of any evidence connecting him directly with the commission of alleged rape-when it was pointedth out to Mr. Khawaja Adeel Ahmad as to what he has to say about the circumstance appearing against him that he was apprehended at the spot at about 5 a.m. In the morning by the witnesses who reached there immediately after the alleged commission of crime and a little girl aged three years was lying there in a pool of blood and bleeding from her private parts, what explanation he has put forward to account for his presence at the spot at that time. On this the learned counsel for the appellant conceded and rightly so that no enmity has been alleged against the witnesses for false implication, There are as many as five witnesses who have deposed with regard to the apprehension of appellant at the spot and there is no suggestion of enmity to them in their cross- examination with the exception of one Muhammad Hanif only. Furthermore in his statement under section 342, Cr. P. C. The appellant has not alleged any enmity jog his false implication and his statement is that he has been implicated falsely by the witnesses who are his enemies. This enmity is not explained by the appellant in his 342, Cr. P. C. Statement nor it has been suggested to any witness in the cross-examination. The evidence brought on the record clearly shows that appellant Bhola in fact has no explanation whatsoever against the circumstance that he was caught at the spot immediately after the occurrence by several witnesses who have no reason whatsoever to falsely implicate him. From the legal point of view it appears that the appellant stands convicted for offence under section 376/34, P. P. C. For sharing common intention. The co-accused Anwar Rahim has been acquitted by the trial Court for the reasons that firstly his name did not appear in F.I.R. Secondly there was no description of him given in the F.I.R. By the complainant and also there was no identification test and in such circumstances he was given benefit of doubt in spite of the fact that his underwear was found to be stained with semen by the Chemical examiner.
10. The learned counsel for the appellant then submitted that section 352-B, Cr. P. C. Contemplates that the trial Court while passing sentence has to take into consideration the period of detention already undergone by the accused. It is further submitted by him that previously in section 382-B, Cr. P. C., the word "may" was used and it was discretionary for the trial Court to consider the period of detention while passing sentence but since in the amendment brought about by Ordinance 71 of 1979 the word "may" has been substituted by the word "shall" in the said section as such now it has become mandatory for the trial Court to consider the period of detention while passing sentence of imprisonment. In support of this proposition the learned counsel has also cited before me the case of Ali Sher v. The State (PLD 1980 SC 317). It is further pointed out by the learned counsel that the present appellant has remained in custody during the trial proceedings from 24August, 1975 to 26December, 1977 which period was to be considered by the trial Court while passing the sentence but it has not been done. In these circumstances and for the facts and reasons mentioned above I main--tain the conviction and sentence of the appellant and dismiss the appeal with modification that benefit of section 382-B, Cr. P. C. Must be given to appellant and the period of detention of appellant during the trial proceedings as stated above is to be considered while calculating the period of imprisonment.