The Appellant was convicted and sentenced by the learned III-Additional Sessions Judge, Malir, Karachi for offence punishable under Section 376 of Women Protection Act, 2006 to suffer R.I. for twenty five years and to pay fine of Rs, 100,000/- and in default in payment thereof to further suffer S.I. for one year. Benefit of Section 382 (B), Cr.P.C. was extended to the appellant, vide Judgment dated 11.5.2009.
The version of the prosecution case: On 09.9.2008 at 1500 hours, the complainant Mst. Naseeran got her FIR lodged bearing Crime No, 247/2007 with PS Ibrahim Hyderi, Karachi alleging therein that she resides alongwith her children and husband (appellant) in their house. Her marriage was solemnized twenty years back with appellant Allah Bachayo alias Riaz and from the said wedlock, they have three sons and two daughters, her elder daughter namely Ambreen (victim) is aged about 16 years. According to the complainant that her husband was jobless for many years and she was working as maid servant in Bungalows. On 08.9.2008, at about 8:00 a.m., as usual, she went to perform her job and her children also went to attend the School except her daughter Ambreen, whereas her husband was sleeping in a room. When she returned back at her house at 4:00 p.m., her daughter Ambreen was weeping and disclosed that at about 10:00 a.m. she was cleaning her father's room, all of sudden her father bolted the door inside the room and threw her on the cot and forcibly committed rape with her. She raised hue and cry but her father did not any attention to her cry. The complainant further contended that such narration she called upon her brother and disclosed the above act to him then she reported the matter at PS.
After completion of the investigation the report under Section 173, Cr.P.C. (challan) was submitted and the trial was commenced against the appellant.
The trial Court framed the charge at Ex.2 against the appellant r offence punishable under Section 376 of WPA, to which appellant/accused did not plead guilty and claimed to be tried.
In support of its case, the prosecution examined P.W.I ASI Muhammad Khursheed at Ex.3, who produced the FIR as Ex.3/A. PW2, complainant Naseeran Bibi at Ex.4, who produced the memo., of inspection of the place of incident as Ex.4/A. PW-3 victim Mst. Ambreen at Ex.5, she produced her statement under Section 164, Cr.P.C. as Ex.5/A. PW-4 Dr. Farida Ayaz at Ex.6, she produced the age certificate' of the victim as Ex.6/A. PW-5 Ashique Hussain at Ex.7, who produced the memo. of arrest of appellant/accused as Ex.7/A: PW-6 Dr. Noor Ahmed Chachar, MLO of Civil Hospital, Karachi, at Ex.8, who produced the medico legal certificate of appellant/amused as Ex.8/A. PW-Dr. Rohina Hassan, WMLO of Civil Hospital, Karachi, at Ex.9, who produced the medico legal certificate of victim as Ex.9/A. PW-8 Ahmed Ali at Ex.10, who produced the chemical report of chemical analyzer as Ex.10/A. Thereafter prosecution closed its side vide statement as Ex.11.
Statement of appellant/accused under Section 342, Cr.P.C. was recorded by the trial Court at Ex.12, wherein he denied all prosecution evidence.
After hearing the parties, learned trial Court convicted the appellant/accused for offence punishable under Section 376 WPA, 2006, to suffer R.I. for twenty five years and to pay fine of Rs, 100,000/- and in default in payment thereof to further suffer S.I. for one year Benefit of Section 382 (B), Cr.P.C. was extended to the appellant.
I have heard the learned counsel for the appellant and learned Assistant Prosecutor General for the State at great length, crux of their submissions are as under:-- Submissions of learned counsel for the appellant: It is contended by the learned counsel for the appellant that FIR was lodged after the delay of 29 hours and such delay was not accounted-for by the complainant. He further contended that the medical certificate does not reflect any mark of violence on the person of PW/victim Mst. Ambreen and PW Dr. Rohina opined that victim was subjected to a fresh act of sexual intercourse whereas the allegation of sexual intercourse is of 29 hours old, therefore, it does not come within the ambit of fresh act of sexual intercourse, which creates a reasonable doubt in the prosecution case. He further contended that it is against the norms and ethics of our Muslim society that a father can commit rape with her real daughter. He further contended that the entire alleged offence was un witnessed and relations between the appellant and complainant as husband and wife were strained; such allegation could be levelled at the instigation of some intriguer, which appears improbable for the man of common prudence that a father could attempt to commit Zina with his real daughter. In support of his contentions he relied upon the cases of Ijaz Ahmed v. State, reported as 2010 SCM R 141, Allah Bux v., State reported as PLD 1963, (W.P), Karachi 684, Golay Khan v. State, reported as 1982 P.Cr.L.J. 271 [Lahore], Imdad Hussain v. State, reported as 1989 MLD 1671 [Lahore], and Ali Muhammad v. State, reported as 2010 P.Cr.L.J. 1950 [Karachi]. He lastly contended for acquittal of the appellant.
Submissions of learned APG for the State: Learned Assistant Prosecutor General for the State contended that there is no material contradiction in the evidence of PWs and mere evidence of victim being a daughter of appellant is sufficient to prove the version of prosecution.
He further contended that the appellant has committed a very heinous offence, which is against the norms of the society, therefore, he is not entitled for any concession or lenient view.
Discussion and opinion formation:
2. I have considered the respective submissions of learned counsel for the parties and have also examined the record meticulously.
3. It appears that the star witness of this case Mst. Ambreen, who is 16 years old, entirely supported the version of the prosecution on each aspect of the case. In her evidence she has stated that Allah Bachayo alias Riaz is her father, on 08.09.2008, while she was cleaning the house, it was about 10:00 a.m., when her father was lying on cot, who caught hold and threw her on the cot and took off her all clothes, on the conduct of her father she raised cry, thereafter her father committed Zina- bil-Jabr (rape) with her. At about 4:00 p.m., when her mother came back to her house, she narrated the offence which was committed by her father. On that both were weeping for sometime. Consequently, the complainant called on her brothers and disclosed such fact to them.
Later on she went at police station for lodging report. Police registered their FIR at 12-00 midnight.
On the following day she went to Civil Hospital alongwith two police constables, where her medical examination was conducted, then she went to her house alongwith her mother. Thereafter she alongwith her maternal uncles, her mother and police went to the Court for recording her statement under Section 164, Cr.P.C. The Magistrate recorded her statement under Section 164, Cr.P.C. in presence of accused (father). In her cross-examination she admitted that her father and mother used to make quarrel with each other as her father used to take intoxication. She denied that her house is situated in thickly populated area; she admitted that there is one hotel and people reside with some distance, she admitted that she has not disclosed the facts of the incident, to her neighbours. She denied that police obtained her signature on any paper and has specifically stated that the Magistrate has obtained her signature on statement under Section 164, Cr.P.C. she admitted that two WMLOs had examined her. She denied that due to dispute between her father and mother she has implicated the present accused/her father in this case.
4. In the light of evidence of victim Ambreen and her statement under Section 164, Cr.P.C., in which she categorically stated that accused Allah Bachayo alias Riaz is her father and on the day of incident he forcibly committed Zina (rape) with her.
5. PW Dr. Farida Ayaz, WMLO of Civil Hospital Karachi. She, in her evidence, stated that on 10th of September, 2008, she was posted as WMLO at Civil Hospital, ASIP Ahmed Ali from PS Ibrahim Hyderi brought victim Ambreen daughter of Allah Bachayo alias Riaz with police letter for determination of the age. She examined the victim through due process and found that victim was 16/17 years of age.
6. PW Dr. Rohina Hassan, WMLO has completely corroborated the version of the victim. She, in her evidence, stated that on 09.9.2008, at 5:00 p.m., she was posted at Civil Hospital, victim Ambreen brought by the police of PS Ibrahim. Hyderi with history of rape which was allegedly committed by her father. She examined her and found the following examination: "Gait was normal, parts were washed, she has taken a bath, she was fully conscious on per vaginal examination of her genital area she opined the same was normal. Hyman was torn at 6 O'clock and 3 O'clock position which bleed on touch, vestibule were deeply congested all around, a triangular laceration noted as posterior aspects on. Vaginal examination she found entering one tight finger. She taken the vaginal slide and sealed the same and handed over the same to the I/O for chemical analysis."
In her opinion, she opined that her opinion was based on clinical finding anal she specifically opined that the victim subjected to a fresh act of sexual intercourse.
7. PW Doctor Noor Ahmed Chachar, MLO of Civil Hospital, Karachi conducted :nedical examination of the appellant/accused. He, in his evidence, stated that the accused was able to perform sexual act under natural course.
8. Learned counsel for the appellant has relied upon the cases (supra), with profound respect the facts and circumstances of the cases are distinguishable to the instant case for the reasons as under: Ijaz Ahmed v. State, reported as 2010 SCM R 141 (supra), (i) that in the above case the abductee had left her house on her own accord and (ii) the Honourable Supreme Court altered the conviction and sentence of the accused and converted the same into a period as already undergone' Allah Bux v. State reported as PLD 1963, (W.P), Karachi 684. (i) In this case the accused was the step father of the victim, (ii) Further the alleged abductee left her house on her own accord, therefore, the prosecution failed to prove the charge against the accused for offence of forcible Zina. Golay Khan u. State, reported as 1982 P.Cr.L.J. 271 [Lahore] (i) there is no blood relation between the victim and accused and the victim was allegedly abducted and returned back on her own accord, (ii) she failed to establish the allegation levelled against the accused and explanation for extra ordinary delay in lodging of FIR. Imdad Hussain v. State, reported as 1989 MLD 1671 [Lahore]. In this case hymen was found torn, but prosecutrix was already a married women and mother of two children. Ali Muhammad v. State, reported as 2010 P.Cr.L.J. 1950 [Karachi], in this case the observation was made by this Court being tentative in nature by deciding bail application.
9. It is worthwhile to mention here that on the very day of incident the victim narrated the date, time, place and manners of the offence to her mother. Moreover at the time of recording her statement under Section 164, Cr.P.C. she stated the facts in the same manners and again for the third time she corroborated her version during recording her evidence, which shows the sanctity of the evidence regarding the offence of rape within the definition of penetration. Besides, all the prosecution witnesses have fully supported the prosecution version without any material contradiction in their evidence and there is not any discrepancy found on-the part of prosecution.
10. I am of the view that in our Society it is impossible for a wife and real daughter to level jointly such type of allegation against her husband and real father, despite knowing the consequences, which can ruin their moral and dignity in the society.
11. The appellant has committed the offence of rape by completing all the stages of the offence i,e,
(i) intention (ii) preparation (iii) attempt (iv) commission, which is sufficient to establish that the appellant has intentionally committed rape with his real daughter. The said fact is supported by the corroboration of circumstantial evidence including medical evidence.
12. For what has been discussed above, the prosecution has established the charge against the appellant under Section 376 of the Protection of Women (Criminal Laws Amendment) Act, 2006 beyond any shadow of reasonable doubt. I, therefore, do not find any merit for consideration in the instant appeal and maintain the conviction and, sentence awarded to the appellant by the trial Court vide its judgment dated 11.5.2009.
These are the reasons, for which I have dismissed the instant appeal by my short order dated 13.10.2012.