JUDGMENT JUDMGENT ABDUS SATTAR ASGHAR, J.---This jail appeal is directed against the judgment dated 11-12-2010 passed by learned Judge Anti-Terrorism Court, Bahawalpur, Division Bahawalpur, in case F.I.R.
No.22 of 2010, dated 23-1-2010, in the offences under section 376, P.P.C. And 6/7 Anti-Terrorism Act, 1997, Police Station City C-Division, Rahimyar Khan, whereby the appellant Jahangir was convicted under section 376, P.P.C. And sentenced to 25 years rigorous imprisonment with fine of Rs.1,00,000 and in default of payment of fine to further undergo two years simple imprisonment. He was further convicted under section 7(1) Anti-Terrorism Act, 1997 and sentenced to suffer 10 years rigorous imprisonment with fine of Rs.50,000 and in default of payment of fine to further undergo one year simple imprisonment. The benefit of section 382-B, Cr.P.C. Was also extended to him.
2. Epitome of the prosecution case is that on 23-1-2010, at about 7-00 p.m. In the bushes near the railway line Habib Colony, Rahimyar Khan accused Jahangir committed sexual intercourse with Mst.Rabia Bibi a minor girl aged about 5/6 years and commission of said act created fear, panic and insecurity amongst the public in general.4
3. After having completed legal formalities including the medical examination of the victim, the challan was submitted against the accused before the learned trial court, where he was charge- sheeted under section 376, P.P.C. And 7(1) of Anti-Terrorism Act, 1997. The accused pleaded not guilty and claimed to be tried.
4. To prove the charge, the prosecution produced as many as 13 witnesses including Dr. Muhammad Siddique Hamid (P.W.1), who medically examined the accused, Dr.Khizra Akram (P.W.3) who conducted the medical examination of the victim, Hafiz-ur-Rehman (P.W.8.) complainant/eye-witness and father of the victim Jalil-ur-Rehman's (P.W.9) eye-witness/brother of the complainant, Tariq Mehmood (P. W.10) resident of locality i.e. Habib Colony Rahimyar Khan and Ghulam Mohy-ud-Din A.S.-I. (P.W.13) the Investigating Officer of this case. The prosecution also brought on record application. (Exh.PE) on the basis whereof formal F.I.R. (Exh.PE/1) was recorded, injury statement of the victim (Exh.PF), site plan (Exh.PG), Medico-legal Report of Jahangir accused (Exh.PA), Medico-legal Report of Mst. Rabia Bibi victim (Exh.PC) and report of Chemical Examiner (Exh.PH).
5. In statement under section 342, Cr.P.C. The accused pleading his innocence denied the allegations and stated his version as below:-- "1 have falsely been involved in this case. My uncle Ghulam Mustafa alias Nannah was murdered by Fazal Ellahi, Karam Elahi, Manzoor Eahi and Mst. Mansooran Bibi and in this regard case F. I.R.No. 61 of 2002 was registered at Police Station City C-D. Rahimyar Khan on 9-3-2002 and in said case Ghulam Dastgir complainant was my real father and in that murdered case Fazal Elahi has been sentenced to death whereas remaining accused are undergoing imprisonment while appeal is still pending in the August Supreme Court of Pakistan. Fazal Elahi etc., are the friends and relatives of Hafeez-ur-Rehman's and only in order to save them in the murder case of Ghulam Mustafa alias Nannah, this false case has been registered against me.
No independent person has been produced in the witness box and the witnesses have deposed against mews they are related inter se."
However, he neither opted to make statement on oath under section 340(2), Cr.P.C. Nor produced any defence.
3. We have heard Syed Munawar. Hussain Bukhari, Advocate learned defence counsel for the appellant on state expenses and Mr. Muhammad Ali Shahab, D.P.-G. Record is carefully perused.
7. Hafeez-ur-Rehman's (P.W.8), the complainant and father of Mst.Rabia Bibi reiterating his version as set forth in the F.I.R. Deposed that on 23-1-2010, at about 7-00 p.m., his daughter Mst. Rabia Bibi aged 5/6 years went out to get sweets from a shop in the street of his house but did not turn up for 10/15 minutes, therefore, he set out in her search; that in the street his brother Jalil-ur-Rehman's informed him that he had seen Mst. Rabia Bibi in the company of accused Jahangir present in the court proceeding towards Railway line; that he along with his brother Jalil-ur-Rehman's and Khalid Mehmood went towards the railway line where they heard shrieks and noise of weeping of his daughter Mst. Rabia Bibi from the bushes near the railway line; that when they reached the spot accused Jahangir having sight of them fled away by lifting his shalwar; that Mst. Rabia Bibi was found subjected to forcible zina by the accused; that she was in fainted condition and her shalwar was stained with blood; that they took her to Police Station where application Exh.PE was made for registration of case and then she was carried to Hospital for medical treatment.
8. Jalil-ur-Rehman's (P.W.9) the other eye-witness stated that on 23-1-2010, at about 7-00 p.m. He was coming home from work when he saw his brother Hafiz-ur-Rehman standing in the street out of his house in perturbed condition; that on his asking Hafiz-ur-Rehman's told that Mst. Rabia Bibi had gone to get sweet but has not turned up; that he informed him that he had seen the accused Jahangir present in the court taking away Mst. Rabia Bibi towards railway line; that after five minutes his brother Khalid Mehmood also reached in the street and they all went towards railway line in search of Mst. Rabia Bibi; that when they crossed the railway line they heard the noise of weeping and shrieks of Mst. Rabia Bibi from bushes; that when they reached near Mst. Rabia Bibi the accused Jahangir while lifting his shalwar fled away; that they attended Mst. Rabia Bibi stained with blood due to forcible zina; that they went to Police Station and reported the matter and then carried Mst. Rabia Bibi to the hospital for treatment.
9. Bare reading of examination-in chief of both the eye-witnesses mentioned above makes it clear that their statements on the vital dimensions of the prosecution case i.e. Time and place of occurrence, nomination of the accused, particular attribution of commission of rape with the minor victim are in line and corroborative to each other.. Both the eye-witnesses have also furnished probable and plausible reasons of their presence at the time and place of occurrence. The testimonies of both the witnesses bear intrinsic value and inherent worth of truthnes and are safely reliable. Despite searching cross- examination upon both the witnesses nothing material elicited in favour of the defence.
10. Dr. Khizra Akram (P.W.3) examined the minor victim on 23-1-2010 at about 10-24 p.m. In her report the victim was found fully conscious, oriented with time place and person (in accordance with her age) but frightened and in psychological stress however vitally stable. On external examination she observed that inspection of vulva and vagina was not possible as the child victim was agitated and frightened,. Therefore, 'examination was conducted under general anesthesia whereby she found blood-stains in both inguinal area and vulva. Fresh blood oozing from vagina..
Hymen freshly turned with irregular ragged margins and absent at 6' 0 clock position, permitting tip of little finger. External and internal swabs were taken and sent for chemical examination. After obtaining the reports of ultrasound and report of Chemical Examiner she recorded her final report that sexual assault has been done to victim. Her medical reports are Exh.PC and Exh.PC/1. Dr. Muhammad Siddique Hamid (P.W.1) examined the accused Jahangir aged about 24 years and found him physically capable of performing sexual act in his medico legal report (Exh.PA). The above referred medical evidence produced by the prosecution, therefore, furnishes sufficient corroboration to the ocular account.
11. Accumulating appraisal of the confidence inspiring ocular account having reliable corroboration of the medical evidence, therefore, leads us to the conclusion that the prosecution has sufficiently established the charge of commission of rape with minor Rabia Bibi against the accused Jahangir.
Subsequent conduct of the accused in fleeing away from the place of occurrence along with his shalwar having sight of the witnesses also indicates his guilt.
12. It is pertinent to mention that ordinary criminal assault and physical violence to a victim do not fall within the purview of 'terrorism' as defined under section 6 of Anti-Terrorism Act, 1997. To take cognizance under the Act (ibid) it remains incumbent upon the court to examine impact of alleged violence and also to see as to whether alleged criminal act was designed to create a sense of terror, fear and insecurity in the mind of general public creating panic in the society. Existence of above parameters is vital to bring the offender within the purview of the offences under the Anti- Terrorism Act, 1997.
13. As regards the charge under section 7(1) of Anti-Terrorism Act, 1997 in this case both the eye- witnesses i.e. Hafeezur-Rehman's (P.W.8) and Jalil-ur-Rehman's (P.W.9) have not uttered even a single word in their examination-in-chief with regard to striking of any panic, terror, fear or insecurity in the public or locality in result of the alleged occurrence. Singular statement of one Tariq Mehmood (P.W.10) that after the incident of molestation there was panic all around the area of Habib Colony is neither reliable nor confidence inspiring for the simple reason that while facing the cross-examination he stated that the occurrence came to his knowledge on 23/24-1-2010.
Admittedly, he is a motor mechanic and leaves the house for work at 8-00 a.m. And remain at his place of work till night. The above noted solitary statement of Tariq Mehmood (P.W.10) lacking inherent worth without any further corroboration is totally insufficient to prove the charge that the alleged occurrence resulted into striking terror, fear or sense of insecurity among the public in the relevant vicinity, therefore, we are of the considered opinion that the provisions of sections 6 and 7 of the Anti-Terrorism Act, 1997 are not attracted at all in the peculiar circumstances of this case and thus the charge under section 7(1) of Anti-Terrorism Act, 1997 is not proved against the accused. Therefore, to this extent appeal is accepted and the appellant is acquitted in the charge under section 7(1) of the Anti-Terrorism Act, 1997.
14. The arraignment of accused Jahangir in the charge under section 376, P.P.C., however, is established to the hilt with the help of ocular account and medical evidence. The defence side has miserably failed to create any dent or doubt in the prosecution evidence with any speck of material, therefore, we have no reason to take exception to the conviction of the accused under section 376, P.P.C. As judged by the learned trial Court. However, the quantum of punishment awarded by the learned trial court deserve some consideration by this Court. It is evident on the record that accused is unmarried young person aged about 24 years. He has no criminal history of involvement in any case of like nature. Since the accused is not a habitual offender, therefore, chances of his rehabilitation cannot be ruled out. Keeping in view the tender age of the accused with genuine hope that he can come up as a useful member of the society, a lenient view is taken, and thus maintaining the conviction under section 376, P.P.C. The sentences are modified and reduced to 20 years rigorous imprisonment with fine of Rs.50,000 and in case of default in the payment of fine to further undergo one year simple imprisonment. He will be also Entitled to the benefit under section 382-B, Cr.P.C.
15. Appeal is partially accepted accordingly..