' SHAHZADO SHAIKH, ACJ.--This appeal has been moved by appellant Mazhar to impugn judgment dated 9-1-2009 delivered by learned Additional Sessions Judge, Bhalwal whereby he was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to 25 years rigorous imprisonment with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case arising out of F.I.R No,187 of 2005 dated 20-4-2005 Exh.PD registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Bhalwal, District Sargodha as narrated by complainant Muhammad Yasin P.W.6, are that he along with his family members was cutting wheat crop of one Ahmad Yar Kahoot, on 20-4-2005. On that day, at 2-30 p.m, the complainant asked Mst.Sadia, his daughter, to bring water from the Dera.
After about 20 minutes, he heard the cries of Mst.Sadia Bibi upon which they rushed towards the Dera. When they reached near the orchard of Ahmad Yar Kahoot, Advocate, they saw that accused Mazhar had put off the Shalwar of Mst.Sadia Bibi and was committing Zina with her. In the meanwhile, Sarja and Amir also rushed to the spot and saw the occurrence. Accused Mazhar was not wearing Shalwar at that time. He after taking his Shalwar, succeeded in fleeing away from the spot. The complainant and the P. Ws. Attended Mst.Sadia. Bibi who was in semi-conscious condition.
3. The case was duly investigated; the accused was arrested and statement of the P. Ws. Were recorded under section 161, Cr .P.C. After investigation, challan was submitted in the Court against the accused to face the trial. The learned trial Court framed charge against the accused on 19-1- 2006 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The accused did not plead guilty and claimed trial.
4. The prosecution in order to prove its case produced 8 witnesses at the trial. The gist of the evidence of prosecution witnesses is as follows:--
(i) P.W.1: Muhammad Bakhsh A.S.-I. was handed over one sealed envelope by the Investigating Officer which he further handed over to Constable Wafadar. Ahmad on 22-4-2005.
(ii) P.W.2: Constable Wafadar Ahmad corroborated the statement of P.W.1 A.S.-I. Muhammad Bakhsh.
(iii) P.W.3: Constable Ghulam Hussain was handed over ' one sealed envelope by the lady doctor which he further handed over to the Investigating Officer, intact. It was taken into possession by the Investigating Officer vide recovery. Memo. Exh.PA.
(iv) P.W.4: Dr.Fazal Rasool conducted potency test of the accused Mazhar and found him fit to perform sexual intercourse.
(v) P.W.5: Lady Dr.Yasmeen Naeem medically examined the victim Mst.Sadia and observed as under:-- "Hymen torn with fresh heavy bleeding. A lacerated wound. (tear) on the upper and lower vaginal walls. Fresh heavy bleeding was positive."
' In the opinion of this witness, the examinee was subjected to sexual intercourse.
(vi) P.W.6. Yaseen is complainant of the case. He not only supported the occurrence but also corroborated the proceedings initially conducted by the Police after registration of the case.
(vii) P.W.7. Mst.Sadia aged about 10 years is victim of the case. Her statement was recorded after finding her competent to adduce evidence by putting her certain questions to test her wisdom and orientation. She not only supported the occurrence but also corroborated the statement of complainant Yaseen P.W.6 and the proceedings subsequently conducted by the Police.
(viii)P.W.B. Sarja made his statement on 18-5-2006. He stated that about one year ago they were cutting the wheat crop; it was about 2-30 p.m. When they were at the distance of four acres, they heard hue and cry of the victim, the mother of the victim reached first and then they reached at the place of occurrence. When they reached at the place of occurrence the victim was in precarious condition and ,bleeding was oozing. On seeing them the accused tried to run away but he was caught hold by brother of the victim and accused was locked in the room. The victim told them that the accused had committed Zina with her. This witness joined the Police investigation but the Police only asked his name and the name of his father.
(ix) Moharrar Muhammad Bukhsh made his supplementary statement on 11-3-2007 and stated that he was well conversant with the handwriting of Ghulam Murtaza, S.-I. Since dead. F.I.R. Exh.PD was in the handwriting of said Ghulam Murtaza. The recovery memo in sealed envelope Exh.PA was prepared by the said S.I. He further stated that according to the investigation of Ghulam Murtaza S.I., the accused was found guilty of the offence.
5. The learned trial Court thereafter examined accused Mazhar under section 342 of the Code of Criminal Procedure on 9-4-2008. He, inter alia, pleaded his innocence. In reply to the question "why this case . Against you and why the P.Ws. Deposed against you?" the accused Mazhar stated as follows:-- "P.Ws. Have deposed against me falsely due to relationship with the victim and complainant. I am driver of Abdur Rehman Koot, Nazim Union Council and Yaseen complainant is personal servant of Abdur Rehman Koot. I was engaged with the daughter of the complainant/victim. I demanded my two years salary from the said Nazim who promised that he will give the hand of victim/daughter of complainant Yaseen. In the meantime, the complainant refused to give me the hand of his daughter/victim. When I demanded my salary from Nazim, a quarrel was taken place between me and said Nazim Union Council. Nazim abused me and I gave slap to Nazim. The Nazim with the help of other servants detained me in a room till five days and then in the connivance with the Police and doctor and complainant falsely involved me in this case. P.Ws. Are personal servants of said Nazim due to this reason they deposed falsely against me."
6. The accused neither made his statement under section 340(2) of the Cr.P.C. Nor produced any defence witness.
7. Learned counsel for the appellant while arguing the case has raised the following points:- (i)That no weapon of offence was either reported or recovered from the appellant.
(ii) That the appellant and complainant were working with the same Zamindar and the said Zamindar had enmity against the appellant.
(iii) That no independent witness has been produced by the prosecution.
(iv) That no DNA test or matching has been made.
(v) That no sign of violence on the body of the victim has been reported.
(vi)That the accused is a first offender. He has no criminal history or record.
(vii) That the I.O. Died and no cross-examination could be conducted against him.
(viii) Mother of the victim who was reported to have reached the place of occurrence has not been produced as witness,
(ix) Site Plan has not been signed by any private witness.
(x) There are infirmities in the evidence of the prosecution, and mitigating circumstances in the case, which need to be considered for lesser sentence.
(xi) While appearing as her own witness, the victim girl stood the orientation test, which indicates that she was a well grown up girl.
' In this connection he has placed reliance on the following judgments:-- ' PLD 1958 Dacca 111 1997 PCr.LJ 556 (FSC) PLJ 1980 (sic) page 58 1986 SCM R 122 PLD 2011 SC Page 554 ' As a last resort, the learned counsel has alternatively submitted that the sentence be reduced to the one already undergone by the appellant.
8. Learned D.P.-G. Assisted by complainant Muhammad Yasin in support of their contention, raised the following points:--
(i) That the F.I.R. Was promptly 'lodged.
(ii) That the occurrence is of about 2-30 p.m. Whereas the F.I.R. Was recorded at 4-10 p.m. On the same day.
(iii) That recovery of weapon of offence is not relevant as the same has not been alleged that the appellant was aimed with any weapon at the time of commission of the offence.
(iv) That mother of the victim was not produced as it is not deemed appropriate in our society to produce the women in the Courts, particularly in a case of rape, like this, and the best possible evidence has been produced by the prosecution.
(v) That there is no substitution and the appellant has rightly been nominated as he was seen by the witnesses while committing the offence.
(vi) That from the medical examination which was conducted within 03 hours of the occurrence, it reveals that there was bleeding from the vagina of the victim and report of the Chemical Examiner being positive corroborates the prosecution story that rape was committed with the victim.
(vii) That the appellant was reported to be physically potent.
(viii)That only single accused/appellant Mazhar was nominated in the F.I.R. And solitary statement of the victim duly corroborated with the medical evidence etc. Is sufficient to convict the accused, therefore, there was no need to get conducted the DNA or matching test.
(ix) That the Investigating Officer died after completion of the investigation, therefore, Moharrar Muhammad Bakhsh A.S.-I. Who was working with him in the same Police Station was produced to testify his handwriting, signatures and the facts known to him although the said Moharrar was not associated in the investigation, as such. However, report under section 173 Cr.P.C. Prepared by the Investigating Officer has not been challenged by the appellant side.
' The record shows that he was not cross-examined by the prosecution.
(x) That the sentence awarded by the learned trial Court is .Most appropriate and commensurate with the severity of the offence.
(xi) That the I.O's report has not been challenged
(xii) That keeping in view the above mentioned circumstances, there is no mitigating circumstance which could justify reduction in the sentence.
9. We have heard the learned counsel for the parties and perused the record with their assistance.
10. This is an unfortunate case wherein a minor girl Mst. Sadia Bibi, aged 9/10 years was forcibly subjected to sexual intercourse by appellant Mazhar. Occurrence took place on 20-4-2005 at 2-30 p,m. And F.I.R. Was promptly lodged on the same day at 4-10 p.m. By Muhammad Yasin complainant wherein the complainant had categorically levelled allegations of zina-bil-jabr with her minor daughter Mst. Sadia Bibi, victim by Mazhar, appellant. The complainant appeared at the trial as P.W.6 and recorded his version as contained in the F.I.R. P.W.8 Sarja is an eye-witness who reached at the place of occurrence on hearing the hue and cry of the victim and at that time the occurrence had been committed. He found the victim in a precarious condition. He while appearing as P.W.8 fully supported the version of the complainant. He was cross-examined but no material question was put to him in order to establish innocence of the accused.
117 Mst. Sadia Bibi, victim appeared as P.W.7. She being minor at that time, the learned trial Court put some questions to her in--order to ascertain her ability to give evidence. Although she was of tender age at that time yet she gave full account of occurrence in her statement by testifying allegations of zina-bil-jabr against the appellant. She was cross-examined but her veracity could not be shattered. Her statement before the trial Court was , recorded on 18-5-2006 and she was cross- A examined on the same day. In this view of the matter it seems that she had given true account as there was no possibility to tutor her.
12. P.W.5 Lady Doctor Yasnieen Naeem had medically examined Mst. Sadia, victim on 20-4-2005 and gave her age as 9/10 years. She observed her hymen torn with fresh heavy bleeding and a lacerated wound (tear) on the upper . And lower vaginal walls. Her condition was so severe that she could not bear deeper internal examination by the lady doctor. After providing first aid to Mst.
Sadia, victim the lady doctor took three vaginal swabs and handed over to the police. The lady doctor opined that she was subjected to sexual assault. The report of Chemical Examiner B is also positive as the swa bs were found stained with semen. Mst. Sadia was referred to Gynecologist at DHQ, Hospital for further management. Her tears were stitched under general anesthesia.
13. The ocular account, medical evidence and the statement of the victim are all in line with each other and are sufficient C to prove the allegations levelled against Mazhar accused. The plea taken by the accused in his statement under section 342, Cr.P.C. Is not sufficient to belie the prosecution evidence as it is not possible for a father to falsely level such heinous allegation against the accused wherein the honour/respect and whole life/future of his own daughter and entire family is involved. Furthermore, if it is considered for the sake of argument that, there was a, dispute of money, the same was not between the complainant and the accused but between the accused and his employer Abdur Rehman. It is inconceivable that a father/ family would have agreed to give their minor daughter in discharge of debt of some other person. It is also entirely unbelievable that the appellant worked and remained silent for two years without salary, without even referring to a single occasion on which he demanded it. If this unbelievable plea is admitted, then he would be more involved in totally condemnable purchase/deal of a minor girl of somebody else in consideration for the alleged emolument. If he could go to such extent of inhuman transaction, then he could also go to any extent, as in this case, to realize immoral 'return' of completely illegal transaction. Anyway the accused had not produced any material on record in the shape of documentary evidence or by recording his statement on oath under section 340(2), Cr.P.C. Or by producing any witness in his defence, or even by referring to any step for firming up or actualizing the transaction, alleged to foment enmity of the complainant side, in order to prove his plea.
14. The argument that no independent witness has been produced by the prosecution does not seem to be correct as Sarja P.W.8 is an independent witness from the village. Furthermore, in such cases of zina bil-jabr, it is not matter of high probability that more witnesses would be available.
For a minor victim girl, father is the most natural and legally responsible person (wali) to stand witness for her for the sake of God, as a duty, and in their own interest.
15. The claim that no sign of violence on the body of the victim was reported, has no material weight. To violate a minor girl's chastity to bleed, in itself is an appalling sign of violence on her innocent person, so much so that she suffered hospitalization for stitching under general anesthesia.
16. I.O. Died after presenting the challan, therefore his report, writings, signatures, etc. All were verified by the police official working closely with him in the same police station, without any ambiguity, contradiction, or even any suggestion or question from the defence.
17. Demand, at this stage, that mother of the victim who was reported to have reached the place of occurrence, should have been produced as witness, is not sustainable, because no fact or link in the chain has been attributed to her which she could be considered necessary to complete the picture. General customary objection has no specific object to assist and complete the process of justice. Furthermore, in such Hadd cases, women witnesses are not required by legal theory and practice of legal system of Islam.
18. Learned counsel for the appellant stated that while appearing as her own witness, the victim girl stood the orientation test, which indicates that she was a well grown up girl, is not legally sustainable, as couple of orientation questions, in no way provide any proof of age or majority.
Even by any farthest stretch of imagination, it does not afford a license to the offender to violate person and piety of a poor, minor victim girl.
19. The argument of the learned counsel for the appellant that no weapon was recovered from the appellant is of no value as no where the complainant mentioned in the F.I.R. Or anywhere else that the accused was armed with any weapon. Similarly there is no need to conduct DNA test in this case as only one accused is involved in this case and his offence has been established from the prosecution evidence of day light seen occurrence, duly corroborated, on record. Furthermore the accused himself had also not demanded DNA test, grouping or matching. The prosecution has fully proved its case beyond any shadow of doubt. The learned Counsel for appellant raised a point that there was no eye-witness at the time of actual commission of offence of zina-biljabr as the complainant along with alleged eye-witnesses reached at the spot after the occurrence. Natural narration of the prosecution shows that it was on the cry of the minor victim girl during the forcible commission of the immortal brutality that the parents were attracted to reach her. Natural course of the occurrence nowhere suggests that the appellant/accused had left the place of occurrence and the minor victim was spotted afterwards in precarious medical condition. This point, even otherwise, by itself is not sufficient to disprove the statements of the complainant and eye-witness.
It is settled proposition that in such cases solitary statement of the victim is sufficient to prove the prosecution case. In this case Sadia Bibi victim gave unimpeachable evidence against the accused detailing specific act of zina-bil-jabr against him. Her statement was corroborated by the medical evidence, her father Yaseen complainant and Sarja P.W.B. In view thereof, the case is fully proved against 'the appellant.
20. The learned counsel for the appellant at the end of his arguments requested for reduction of sentence of the appellant, on the plea that the appellant was first offender young man, but he has not been able to point out proper mitigating circumstance in favour of reduction of sentence. It was an occurrence of shocking nature, with a little girl of 9/10 years, who was subjected to such brutality that she remained in precarious condition and was admitted in hospital for many days i,e, about nine days where her operation was conducted in order to stitch tears on her private parts, under general anesthesia. In this view of the matter no mitigating circumstance emerges on the record to reduce sentence of the appellant.
21. Anyway since a plea of 'first offender' and 'young man' who has been awarded sentence of 'life imprisonment' for zina bil-jabr, has been raised as 'mitigating circumstance', may need consideration, as these terms are sometimes applied as misnomers, away from their precise legal inference and implication.
22. 'Mitigating' means making something less harmful, unpleasant or bad; that there may be mitigating circumstances/ factors which might help explain appalling behavior (Advanced Learner's Dictionary) or criminal activity of the offender. In this case no such circumstance or factor has been brought on record, which may offer even slightest explanation for the appalling behaviour.
23. Mitigating circumstance is "a fact of situation that does not justify or excuse a wrongful act or offence but that reduces the degree of culpability and thus may reduce the punishment (in a criminal case): A fact or situation that does not bear, on the question of a defendant's guilt but that is considered by the court in imposing punishment and especially in lessening the severity of a sentence. (Black's Dictionary of Law)
24. Guidance is also sought from following: -- ' No mitigation when the act is cruel. Accused acquitted by High Court---Sentenced to death by Supreme Court. [PLD 1974 SC 266].
' Supreme Court on deeper examination, of evidence and analysis of judgment passed by High Court observed that reasons assigned for mitigation of sentence were not supported by material on record and were based on conjectures, surmises and speculations which could hardly be upheld in the facts and circumstances of the case.... Set aside the view taken by High Court and resored capital punishment awarded by trial court. Appeal was allowed. [PLD 2007 SC 80(b)].
25. Term 'first offender', has also to be seen carefully in relation not only to severity and momentary course of crime, but also with reference to proportions of its lasting effects. Condonation of heinous crime of Rape with a minor girl, as a first offence, has very serious G repercussions not only for the victim or her family, but more-so for society and even more implications for moral ethos sustaining a legal system; claiming scriptural stamp also.
26. No doubt it is highly deplorable that a 'young man' will have to undergo a sentence for life.
Although incomparable, precisely, the poor minor victim girl will continue to bear ignominy and scar of zina bil-jabr, for life, for herself and for family for generations, with little possibility in our society to be accepted in respectable marital life. Sufferings of the female victim may be more agonizing than those of the male delinquent desperado.
27. In view of above, we are of the view that the prosecution has fully proved its case beyond any shadow of doubt. The learned trial Court has rightly convicted and sentenced the appellant and the impugned judgment merits no interference.
28. For what has been discussed above, Criminal Appeal No,15/L of 2009 is dismissed and conviction and sentence awarded to Mazhar, appellant by Additional Sessions Judge, Bhalwal vide impugned judgment dated 9-1-2009 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 to twenty five years' R.I. Is maintained. The benefit of section 382-B, Cr.P.C. As awarded by the learned trial Court is upheld.
29. It is pertinent to mention here that Mazhar appellant first filed Jail Criminal Appeal No,8/I of 2009 which was admitted to regular hearing on 29-1-2009 and a counsel at State expense was appointed to represent his jail appeal. Thereafter the appellant filed Criminal Appeal No,15/L of 2009 on 3-2-2009 through his private counsel. Since Criminal Appeal No,15/L of 2009 is dismissed, therefore, his other appeal i,e, Jail Criminal Appeal No,8/I of 2009 has become infructuous and is dismissed accordingly.
30. These are reasons of our short order dated 27-9-2011.