1. ' AFTAB AHMED GORAR, J.---Through instant Criminal Appeal filed under section 410 Cr.P.C., the appellant has assailed the Judgment dated 3-12-2010 passed by Vth Additional Sessions Judge, Karachi Central in Sessions Case No,234 of 2007 whereby he convicted the appellant and sentenced him under section 376, P.P.C. To suffer R.I. For a period of ten (10) years and pay fine of Rs,50,000 and in default thereof to undergo S.I. For 6 months more. The appellant was, however.
2. Extended benefit of section 382-B Cr.P.C.
3. 'The prosecution case, in nutshell, is that on 27-7-2007 complainant Raza Khan lodged F.I.R. At Police Station Super Market stating therein that on 23-7-2007 he went to the place of his duty and his wife Saira and his maternal nephew Asif were present at home. At about 2100 hours when he came back to his house, his wife while weeping disclosed that at about 1305 hours his nephew Asif closed the doors of the house and put the dagger on her neck and directed her to keep silent and thereafter on the point of dagger he committed rape with her.
4. ' After usual investigation police submitted charge sheet against the accused and on 4-12-2009 accused was arrested.
5. ' A formal charge was framed against the accused/appellant to which he pleaded not guilty and claimed trial.
6. ' At the trial prosecution examined P.W. Mst.Saira as Exh.5. P.W. Ali Jan as Exh.6. P.W. Mohammad Afzal as Exh.7. P.W. Lady WMLO Rohina Hassan as Exh.8. PW SIP Muhammad Sharif as Exh.9. P.W. Dr. Aquil S. Khandwala as Exh.10. Thereafter prosecution side was closed vide statement Exh.11.
7. Thereafter statement of the accused was recorded under section 342, Cr.P.C. As Exh.12. After recording the evidence and hearing counsel for the parties learned trial court vide impugned judgment convicted and sentenced the appellant as stated above, hence this appeal.
8. ' Learned counsel for the appellant submitted that the appellant is innocent and has been falsely implicated due to enmity; that the trial court has not properly appreciated the evidence as there are material contradictions in the depositions of the witnesses; that the judgment of the trial court is based on surmises and conjectures. He further contended that there is unexplained delay of 4/5 days in lodging the F.I.R. Which point has not been considered by the trial court. According to him the medical evidence does not support the prosecution case as it shows that there was no mark of violence on any part of the body of the victim and even otherwise the medical examination of the victim took place after a delay of five days. He further contended that the conviction and sentence is based on the sole statement of the victim girl and there is no other evidence available against the appellant. He relied upon the case law reported in 1995 SCMR 1403, 1993 PCr.LJ 2503, PLD 1986 FSC 144, PLD 1994 FSC 34 and 1994 SCMR 755. He prayed for setting aside of the impugned judgment and acquittal of the appellant.
9. ' Conversely learned A.P.-G. Appearing for the State while supporting the impugned judgment contended that the same is well-reasoned and in accordance with the law. He submitted that the superior courts have held that the sole statement of the victim girl is sufficient for recording conviction in zina cases and in this case the victim lady has fully implicated the accused. He further contended that although the prosecution witnesses were subjected to lengthy cross-examination but their evidence could not be shattered. He prayed for dismissal of the appeal.
10. ' I have given my anxious thought to the arguments advanced by the learned counsel for the appellant as well as learned A.P.G. And perused the material available on the record.
11. ' In the instant case the star witness is the victim lady namely Mst. Saira who in her deposition stated that on 23-7-2007 she was present at her house and her husband had gone to his job at about 0900 hours. At that time along with her maternal nephew of her husband was also present in the house. At about 1300 hours accused put dagger on her neck and directed her to remain silent otherwise he would kill her. She gave slap to him, upon which he pushed her due to which she fell down on the ground and thereafter accused forcibly committed zina with her. In the evening her husband Raza Khan came at home and she narrated the entire story to him. Her husband then went to Police Station and lodged F.I.R. She further deposed that they also contacted the parents of the accused but mother of the accused denied the occurrence of incident and on the contrary she told that she and her husband have falsely involved her son in the case. Police recorded her statement under section 161, Cr.P.C. And also inspected the place of occurrence in her presence and in presence of co-mashir Ali Jan. She was then produced before the Medical Officer for her medical examination and on 3-8-2007 she was also produced before the Magistrate for recording her statement. In cross she stated that after committing zina the accused fled away. She also stated that she tried to save herself but accused pointed out dagger on her neck therefore she remained silent. She denied the suggestion that she is deposing falsely.
12. ' P.W. Ali Jan is the brother of complainant and acted as mashir of site inspection and arrest of the accused. P.W. SIP Mohammad Afzal reduced the information given by the complainant and registered the F.I.R. P.W. Dr. Rohina Hassan, WMLO conducted medical examination of the victim lady and deposed that there was no mark of violence on any part of her body, external genitalia was normal, hymen torn healed, scar noted. Vestibule slightly congested, a small laceration noted at the posterior aspect in healing stage. Vagina was roomy and vaginal slide was taken, prepared and sealed and handed over to I.O. She opined that she was not virgo intacta.
13. ' P.W. SIP is the investigating officer who conducted the investigation of the case, completed legal formalities, arrested the accused and submitted charge sheet before the competent court of law.
14. ' P.W. Dr. Aquil S. Khandawala conducted medical examination of the accused and on the basis of examination, opined that the accused was mature enough to perform sexual intercourse in natural course of life.
15. ' The evidence of the victim lady namely Mst.Saira is of much importance. In her evidence she has fully implicated the appellant in the commission of the alleged offence. Although she was subjected to lengthy cross-examination but the defence could not put any dent in her evidence.
16. Appellant has claimed that he was falsely implicated in the case due to enmity as there are several litigations between his elders and the complainant party. Firstly; it is beyond imagination that the victim lady or for that matter her husband would involve the accused due to enmity at the cost of her honour. The most precious thing for a gentleman is the Honour (Izzat) of her wife and it does not appeal to the mind of a man of prudent mind that one would scarify such a sacred thing just to achieve a goal of causing harm to his rival by implicating him in a false case. Secondly; the appellant miserably failed to produce any material in order to prove his plea of enmity and existence of several litigations between his elders and the complainant party, as alleged by him in his statement under section 342, Cr.P.C. Although in his statement he had stated that he will produce his witnesses namely Mohammad Khan Baloch and Shams Khan in his defence but he did not produce them. It is also not understandable as to why despite there being enmity and litigations between the parties, he, opted to stay in the house of complainant. This fact too belies his statement.
17. ' So far as the contention of the learned counsel for the appellant that besides the statement of the victim lady prosecution has not produced any other material evidence to prove the charge against the appellant is concerned, it may be observed that the superior courts in a large number of cases arising out of convictions under section 10 of the Offence of Zina (EOH) Ordinance, 1979 have considered the sole testimony of victim as 'enough for conviction in case it inspirers confidence. In this context reference can be made to the decisions reported in PLD 1991 SC 412, 2005 SCMR 1936, PLD 1989 SC 742, 1999 PCr.LJ 699, PLD 1966 Karachi 101 and 1996 (2) SCC 384.
18. ' In 1999 PCr.LJ 699 it was observed as under:-- "It may be observed here that it is not the number of witnesses but quality and credibility of the evidence which is to be considered. In cases of Zina there are generally hardly any witnesses other than the victim herself as it is very rare that such offence takes place in view of other or at public place. That is why the Superior Courts in this country have attached great sanctity to the statement of the victim and it has been repeatedly laid down that sole testimony of the victim would be sufficient to base conviction thereon if it inspires confidence."
19. ' In 1996 (2) SCC 384 it was held : ' The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable."
20. The defence could not succeed in establishing that the evidence of the victim lady, Mst. Saira is not confidence inspiring or is not reliable. In this view of the matter her statement could be made the basis for conviction of the accused. In this view of the matter no cogent and convincing, reasons have been shown by the learned counsel for the appellant to justify interference with the impugned judgment of conviction.
21. ' Yet there is another aspect of the case. The complainant could not be examined in this case for the reason that allegedly the appellant after getting him out on bail along with his brother and father committed murder of the complainant and F.I.R. No,68 of 2008 was lodged for such offence at Police Station SITE Hyderabad which has also been exhibited as Exh.4/C.
22. ' It is well settled principle of law that in the criminal administration of justice each case is to be decided on its own merits. The facts in the cases relied upon by the learned counsel for the appellant and that of the instant case are distinguishable. In 1995 SCMR 1403 the prosecutrix/victim had been found a Zania and a woman of easy virtue and her statement that she was forcibly taken to a room where she was subjected to Zina-bil-Jabr had been found false. In 1993 PCr.LJ 2503 it was held that the medical evidence did not support the ocular evidence rather belied the same totally and it was highly risky to rely on the oral evidence and maintain conviction of the accused, which is not the case here. The case reported in PLD 1986 FSC 144 was a case of rape after abduction and it was held that the abductee/victim was not recovered from the accused which is not the position in the instant case. In PLD 1994 FSC 34 it was held that accused could not have entered the place of occurrence as claimed by the prosecution whereas in the present case presence of the accused in the house where the alleged offence of zina was allegedly committed is an admitted position. In 1994 SCMR 755 it was observed that the story put forward by the prosecutrix implicating the accused was too absurd to deserve any credit and could not be possibly believed whereas in the instant case the statement of the victim lady seems to be confidence inspiring.
23. The upshot of above discussion is that the prosecution has succeeded in proving its case beyond reasonable doubt as such appeal merits no consideration. Consequently the appeal is dismissed and the judgment of conviction is upheld.
24. ' Above are the reasons for short order passed on 13-5-2013.