1. ANWARUL HAQ, C. J.-The petitioner, his mother, Mst. Shah Jehan, and sister Mst. Afsra, were tried for an offence under section 376/109, P. P. C. By the Magistrate 1st Class, Peshawar, who by his order dated 29-3-1974 acquitted all the accused. The State assailed the acquittal order under section 417, Cr. P. C. In appeal in the Peshawar High Court, and a Division Bench by its judgment dated 6-12- 1977 upheld the acquittal in respect of the co-accused, but accepted the appeal against the present petitioner, convicting him under section 376, P. P. C. And sentencing him to five years' R. I.
2. The report of the occurrence dated 28-5-1973 was lodged by the prosecutrix, Mst. Waqar-un-Nisa on 30-5-1973 at 2 p.m. With the Police Station, Dabgari, District Peshawar, situate at a distance of 5/6 furlongs from the spot. In that report it was alleged by her that on remarriage of her mother, Mst. Zakia Khanam with the petitioner, Hamid Khan, she was putting up with her grandmother, Mst.
3. Hussain Bibi in Mohallah Garhi Khana, that two months prior to the occurrence she started living with her mother in Ramdas Bazar in the house of the petitioner, where the mother and sister of the petitioner were also residing. These females tried to persuade the, complainant to marry the husband of her mother, and they would get her mother divorced in case she was willing but she did not agree to their suggestion. On the day of the occurrence, the step-father sent her mother out in search of a house. At about noon-tine, Mst. Shah Jehan and Mst. Afsra asked the complainant to enter the room with the petitioner. On entering the room Mst. Shah Jehan chained the door from the outside. The step-father by show of a knife made her lie on a cot, threatened her with death if she raised any alarm and committed rape on the complainant by force, and again threatened her with dire consequences if she disclosed-about the incident to anyone. But in view of future humiliation she narrated the incident to her mother, who further told her grandmother, the latter came to the house of the accused on the following day and took away the victim to her house, from where the complainant went to the Police Station on 30-5-1973 in the company of her mother and grandmother, and reported the matter against the three accused, afore--mentioned.
4. The investigation was conducted by the S. H. O. Irshad Khan who arrested the petitioner on 30-5- 1973. During the spot inspection the Investigating Officer took into possession a bed-sheet at the pointation of the prosecutrix from the house of the petitioner. The recovery memo was attested by P. W. Ghulam Ghaus, who was a resident of an adjacent house. This recovery was not questioned by the defence.
5. The victim was medically examined by the lady Dr. Seema Sajjad who found scratches on both her thighs and legs, hymen showed fresh lacerations, the vagina wall showed. Redness. She took the vaginal swa bs for bio-chemical examination. She opined the duration of the offence to be -within 30 hours.
6. The confessional statement of the accused was recorded on 31-5-1973 by the M. I. C. Shaukat Ali Khan which was later on retracted by the petitioner at the trial, although he admitted that the victim was living in his house during the days of the occurrence as his wife due to pregnancy was not able to perform the household work and she was helped in that regard by the complainant. He also stated that both his wife and the grand--mother of the complainant suspected him of having a liaison with her. , He asserted that he had been falsely implicated due to enmity. The prosecution placed reliance mainly on the version of the prosecution, apart from the testimony of the lady Dr. And Ghulam Ghaus, regarding the recovery of the bed-sheet and the evidence of the Chemical Examiner who reported that the hed-sheet was stained with semen.
7. The trial Court while acquitting all the accused held that the solitary statement of the victim in the absence of the corroborative evidence was insufficient to link the accused with the crime. The mother of the girl belied the prosecution version by stating that the victim never lived with her, and according to her statement as D. W. Waqar-un-Nisa had once eloped with one Javaid to Rawalpindi with whom she was betrothed.
8. The appeal by the State was accepted by the High Court, holding that there was inconsistency in the defence version inasmuch as on the one hand there was complete denial about the victim's living in the house of the petitioner during the days of the occurrence, and on the other hand the petitioner himself admitted that as his wife was pregnant, Mvt. Waqar-un-Nisa was brought to his house to help her mother in household work. The High Court observed that the statement of the girl was supported by the circumstantial evidence viz. Recovery of the bed-sheet from the house of the petitioner, medical exami--nation of the girl and the report of the Chemical Examiner to the effect that the bed-sheet was stained with semen. Further it was held that the confessional statement of the accused as proved by M. I. C. Shaukat Ali Khan was both voluntary and true. In support of the petition for special leave to appeal, the learned counsel has contended that there is a delay of three days in lodging the F. I. R., which is not explained by the complainant. He has further submitted that there is no independent evidence apart from the version of the girl to connect the petitioner with the offence.
9. We have examined the contentions raised by the learned counsel with the help of the available record: As to delay in the F.I.R. It is on the record that the victim was under constant fear and threat from the petitioner so long as she lived in -his house. On the day she left the house of the petitioner, she told the incident to his mother. Moreover, she after going to the house of her grandmother waited for her mother for reporting that matter to the Police which she did so on 30-5-1973 in the company of that mother and grandmother. We agree with the High Court that the explanation given by the petitioner in this behalf is sufficient.
10. The medical evidence supports the version of the victim. Her age a given by the lady Doctor was 14/15 years. The chemical evidence reveal that the bed-sheet which was recovered at the instance of the girl was stained with semen. It is not possible for a girl of 14/15 years to falsely implicate her step-father in such a disgraceful offence; especially in the absence any allegation front the defence side that Mst. Waqar-un-Nisa could be so motivated for any cogent reason. The petitioner made a confession statement voluntarily before the M. I. C. And its retraction later on is of no consequence. The assertion of the accused that he was falsely involved in the case due to strained relations with the grandmother of he complainant who had liaison with one Abdul Malak, is baseless in view of the fact that both the petitioner and his wife (D. W.) admitted that the illicit connection was existing between them even prior to the divorce of Mst. Zakia Khanam by Karamat Hussain. Besides, a period of about 12 years had elapsed since the second marriage of Mst. Zakia Khanam with the petitioner from whom she had six children, and it is not believable as to why Abdul Malak and Mst. HusFain Bibi kept quiet a long time. Mst. Zakia Khanam, initially a prosecution witness was examined as defence witness. By appearing as such she might have thought it better to side with the petitioner and not to support her daughter's version as the victim was betrothed to one Javaid without her consent. .
11. In the light of the above discussion, we have come to the conclusion that petitioner has. Been rightly convicted and sentenced.
12. There is thus no merit in this petition, which is hereby dismissed.