SHAHZADO SHAIKH, J.---The appellant Zafar Ali has filed this Jail Criminal Appeal against the judgment dated 22-5-2010 whereby he has been convicted under section 376 of the Pakistan Penal Code and sentenced to Imprisonment for life with fine of Rs. 10,000 or in default of payment further to undergo 3 months' Simple Imprisonment. The benefit of section 382-B of the Code of Criminal Procedure has been extended to the appellant.
2. The brief facts of the case arising out of F.I.R. No. 447 of 2009, dated 4-6-2009 lodged at Police Station B. Division, Sheikhupura by complainant Abdul Latif, are that Hira Latif daughter of complainant was sick for a long time and he used to get performed 'Dam' on her daughter from various places. Some person told him that there is a Baba namely Zafar Ali Noshahi Sabiri son of Nizam Din, Caste Mochi residing at Mohallah Ramgarha Street Babey Boley Wali, City Sheikhupura.
Complainant took his daughter to the above said 'Baba' and got performed 'Dam' from him on his daughter and took her back home. His daughter remained O.K. For one month, but she again suffered from same disease: The complainant again took her daughter to the said 'Baba' for 3-4 days. Because he was resident of Gujranwala, he requested Zafar Ali Noshahi Saberi 'Baba' that he suffered great difficulty in coming to Sheikhupura, time and again, therefore he should solve his problem. The said 'Baba' asked the complainant to leave the girl with him in his house and he would spiritually treat her for 15 days and practice all 'Dam' upon her so that she would be O.K. The complainant left his daughter with the, 'Baba' and returned home. After 15 days, complainant took back his daughter who told him that Baba Zafar Ali Noshahi had been committing zina-bil-jabr with her and he also threatened her that if she told about this fact to any person, he would set the Ghost free, who would again make her sick. Therefore, the complainant produced his daughter before the learned. Illaqa Magistrate and got permission for conducting her medical examination, and that a case should be registered against 'Baba' Zafar and be dealt with according to law.
Hence this case.
3. Investigation ensued as a consequence of lodging of the above F.I.R. Sub-Inspector Safdar Ali, P.W.6, investigated this case. He inspected the place of occurrence and prepared the site plan Exh.PD. On the same day, he also recorded the statement of victim under section 161, Cr.P.C. On 7-6- 2009, he arrested accused Zafar Ali and interrogated him. During interrogation accused stated that he used to perform 'Dam' on patients. The father of Hira left her for fifteen days in the house of accused for 'Dam'. Accused confessed before him that he had committed this offence. He produced accused before Magistrate on 8-6-2009 for his medical examination and on 9-6-2009, he got medically examined Zafar Ali accused from the Medical Officer. On 26-6-2009 he recorded the statement of Muhammad Akhtar and Abdul Salam P.Ws. On 25-6-2009 he prepared the challan and produced it before the S.H.O. Considering the accused as guilty.
4. After completing investigation police submitted report under section 173 of the Code of Criminal Procedure requiring the accused to face trial.
5. The learned trial Court framed the charge against the accused on 22-7-2009 under section 376 of the Pakistan Penal Code to which he pleaded not guilty and claimed trial.
6. The prosecution in order to prove its case produced seven witnesses. The gist of prosecution evidence is as follows:--
(i) Mst. Hira Latif (victim), appeared as P.W.1, who deposed that about 5 months ago, she was having fits and used to suffer headache and other body pains. Her father got her checked from different doctors but problem remained the same. Someone told them that at Sheikhupura there is a peer namely Baba Zafar Ali who effectively provided spiritual treatment for these types of problems. Her father brought her to Sheikhupura at the Dera of Zafar Ali accused who performed some spiritual activity and practised 'Dam'. She felt somewhat better. Her father took her back to Gujranwala. She remained O.K. For 5/6 days but thereafter again suffered fits. Her father again brought her to the Dera of Zafar Ali accused, who practised 'Dam' and she had been visiting the Dera of accused for 4/5 days continuously. Her father requested Zafar Ali that he is poor person and unable to bear the expenditures of daily visiting his Dera at Sheikhupura. Either he should provide some medicine, 'Taveez' etc. Zafar Ali replied that it was not possible to practise 'Dam' at once. He persuaded her father to leave her at his house by saying that he would keep her as patient for about fifteen days and would continuously practise his 'Dam' and then she would be O.K.
Her father agreed, leaving her at the Dera of accused, left for Gujranwala. Two days thereafter at about 11/12 Noon accused took her to the upper floor room of his house. Chained the door from inside and directed her to remove the clothes, as he had to write down Taveez on her abdomen and legs. She refused to put off her clothes upon which accused took out knife from his pocket and threatened her to kill her if she made noise and disobeyed him. He forcibly removed her clothes and committed zina-bil-jabr with her and kept on performing sexual activity 2/3 hours. Her clothes were stained with blood which was coming out from her private parts. Accused wiped of her legs and body with those clothes and thereafter burnt the same. She was unable to move, hence accused called his wife and they both took her down stairs. Accused used to provide her some medicines and after 2/3 days he used to commit zina-bil-jabr with her and he continued it for about 15 days. Thereafter her father came from Gujranwala and asked Zafar about the condition of his daughter. The accused replied that he had taken out the problems, hence her health had deteriorated. Her father took her along where she narrated the entire episode to him. Her father took her to Sheikhupura, where under the orders of Magistrate, she was medically examined and case was registered against Pir Zafar.
(ii) Abdul Latif, complainant real father of victim Hira Latif appeared as P.W.2 and 'recorded his statement. In his statement he reiterated the same story and supported his version as given by him in his complaint Exh.PB.
(iii) C-709 Abdul Salam, appeared as P.W.3, who deposed that on 26-6-2009 Moharrar handed over to him one bottle and two envelopes for transmission to the office of Chemical Examiner, Lahore. On the same day, he produced the said articles in the above said office, intact.
(iv) Doctor Masroor Kaifi, appeared as P.W.4; who deposed that on 9-6-2009 at 2-00 p.m. He examined Zafar Ali who was brought by police. He was an adult of average built. Primary and secondary sexual characteristics were well developed. Vitals were stable and cremasteric reflex was positive. Prostatic message revealed semen. In his opinion, the examinee was completely fit for performing sexual activity.
(v) Umer Saeed, S.-I. Appeared as P.W.5, who deposed that on 4-6-2009, the complainant Abdul Latif presented an 'application Exh.PA before him for registration of case on the basis of which, he formally recorded F.I.R. Exh.PA/1, without any addition or omission; the F.I.R. Was in his hand and bore his signature.
(vi) Safdar Ali, S.-I. Appeared as P.W.6. He was Investigating Officer and his role has already been mentioned in para No.3 of this judgment.
(vii) Lady Doctor Waalia Mohsin appeared as P.W.7, who deposed that on 2-6-2009 at 3-00 p.m.
She medically examined Hira Latif daughter of Abdul Latif brought by Imran Hussain constable No.1941. She gave history of zina-bil-jabr by one person for two weeks. "on examination, she was a young girl of average built and height. There was no mark of violence seen on the examinee at the time of examination. Clothes were not produced. On local examination, hymen was torn old healed allowing one finger loose with difficulty. No tear was present. Four vaginal swa bs were taken and two sent for chemical examination and two C.C. Blood and two vaginal swa bs were sent for DNA analysis. Exh.PE is the correct carbon copy of MLR which is in her hand writing and bear her signatures. Report of Chemical Examiner is Exh.PF keeping in view the finding at the time of first examination and report from Chemical Examiner, semen detection in above swa bs. One swa b was being sent to Serologist for semen grouping. In her opinion there was recent loss of virginity. Act of zina was observed."
7. Learned trial Court after close of the prosecution evidence recorded statements of accused under section 342 of the. Code of Criminal Procedure. However, the accused/appellant did not tender evidence on oath.
8. After hearing both the parties the learned trial Court convicted and sentenced the appellant as mentioned in opening para of this judgment.
9. Learned counsel for the appellant contended that there is unexplained delay in reporting the occurrence to the Police; that none of prosecution witnesses had seen the incident, except solitary statement of victim and in absence of reliable corroboration conviction cannot be maintained on this evidence; medical evidence conflicted with ocular evidence; there was no semen grouping , and there was no DNA test report available on the record. Place of occurrence mentioned in site plan in view of the circumstance of the case created serious doubt regarding offence committed by the appellant as the Family of the appellant was also residing at the same place.
10. The learned Additional Prosecutor-General appearing for the State on the other hand supported the impugned judgment. He was of the view that the solitary statement of the victim is a corroborated piece of evidence and has given a truthful and confidence-inspiring account of occurrence.
11. We have studied the record in the light of points raised by the appellant side and the reasons given in the judgment of the trial court supporting the findings of the guilt.
12. We would first scrutinize and weigh the objection of delay in making the report and its implications in the present case. The incident, according to the complainant occurred after two days of leaving his daughter with the accused and throughout the period of 15 days, the accused had been committing zina-bil-jabr with the victim on point of knife every 2/3 days. When the complainant took his daughter back to Gujranwala where she told about the offence committed with her by the appellant along with the explanation that appellant Zafar Ali had threatened her that in case she informed anybody about the occurrence she would be killed. For further verification, the complainant brought his daughter to Sheikhupura and after seeking permission from the Court of Magistrate his daughter was medically examined and after proving that she was subjected to zina-bil-jabr with her, he moved application on 4-6-2009 for registration of case against the appellant.
13. The complainant, the ignorant poor father of the minor victim, had so much faith in the deceitful 'Baba', that he did not blindly believe the victim, his own minor daughter, so that according to the categorical statement of the victim girl, she was straight taken to one hospital, and them to Civil Hospital. Being doubly sure, then the complaint, father of the victim girl, approached the Magistrate and Police for legal process.
14. The second contention of learned counsel for the appellant is regarding solitary statement of victim. In cases of rape, the testimony of the victim and her medical examination are important pieces of evidence and conviction can be based on the solitary statement of victim if same is corroborated and supported by medical examination. In this case it is clear from the record that victim was subjected to sexual intercourse as `penetration' of the victim by the appellant was proved by way of medical evidence as well as the victim had fully implicated the appellant for having committed rape upon her and her evidence which had not been shaken in spite of lengthy cross-examination was corroborated by her medical evidence. Furthermore direct charge of rape against appellant by the victim supported by medical evidence and report of Chemical Examiner coupled with a clear motive on the part of appellant is sufficient to bring home the charge of zina against the appellant. Evidence of victim girl is natural and supported by Medical evidence and also prosecution witness as well as circumstantial evidence was sufficient to bring home the guilt of the accused beyond any shadow of doubt. So far contention of learned counsel for the appellant regarding DNA test is concerned, the lady Dr. Waalia Mohsin, who conducted the medical examination of Hira Latif victim stated that at the time of occurrence the age of victim was 11 years.
Hymen was torn and old healed. Four vaginal swabs were taken; two samples were sent for chemical analysis and two blood and two vaginal swabs were sent for grouping and DNA test. Lady Doctor categorically stated that generally the DNA fee was Rs.20,000 which was not deposited by complainant therefore the report of DNA test is not available on record. Since poor complainant/victim could not afford the cost of the tests, the same are not available. The Investigating Officer, found the accused guilty of the offence, which also provides supportive material for conviction. On the suggestion put by defence, the minor victim categorically stated that accused had committed this heinous offence with her on the upper floor of his house, giving a very vivid account of the horribly immoral act of the accused with the poor minor victim. The accused after sexual activity burnt her clothes. The accused had threatened the minor victim with knife, and further frightened her with ghosts, disease, and death. Under these circumstances, the accused continued committing zina-bil-jabr with the victim minor poor girl. The minor victim Mst.
Hira Latif categorically supported the prosecution case as contained in the crime report and corroborated each and every material point of the case. The victim also corroborated medical evidence and the motive part of prosecution story narrated by the complainant Latif. There is no apparent reason and ulterior motive to falsely involve appellant Zafar Ali in this case i.e. Offence of zina-bil-jabr with the minor girl when there is no enmity between the parties so as to make such an allegation, that stigmatizes the minor girl and her poor family for all life. Even if reports regarding grouping of semen and DNA test were excluded from the consideration, the prosecution had produced enough material for the conviction of the accused in the circumstance and it is beyond comprehension that any father could ask his daughter to involve falsely any person in such an act for any blackmail or for snatching his plot. Delay in lodging the F.I.R. Had been plausibly explained by the complainant. Ocular account was substantially supported by the medical evidence and detection of semen in vaginal swa bs.
15. Defence version on the face of it was preposterous and had not been substantiated, in any respect, on this account.
16. In peculiar circumstances and the facts of the case, which were never denied by the defence, following factors weigh additionally and heavily on the side of the prosecution, which in fact underline principles on the basis of which strength of the prosecution testimony can be judged:-- -the poor victim was a minor girl, -she was already suffering agony of fits, which subjected her mind and body to pain and infirmity, so that the minor girl was under multiple pressures to succumb to blackmail, physical threat and sexual abuse, -the minor victim girl was under exclusive custody and control of the fraudulent 'Baba', who had been pretending practice of `Darn', -the poor minor girl was available to the deceptive 'Baba' in complete privacy and isolation, which is usually deceitfully designed by such black 'sorcerers', -the poor minor victim was totally disconnected from her parents, for about two weeks, at the mercy of the deceitful `Baba'.
Under these circumstances, even isolated vivid and unshakeable ocular testimony of the victim girl, who had no personal axe to grind, normally at that age of innocence of minority, is sufficient enough to believe the occurrence.
17. On careful analysis of the entire evidence available in the case we have come to the conclusion that the case against the appellant stands proved beyond any shadow of reasonable doubt and he has been rightly convicted and sentenced under section 376 of the Pakistan Penal Code. The conviction and sentence of appellant Zafar Ali are, therefore, maintained and the appeal having no merit is accordingly dismissed. The benefit of section 382-B, Cr.P.C. Shall remain intact.
18. These are reasons of our short order dated 5-4-2011.