' ASSADULLAH KHAN CHAMKANI, J.---Appellant Feroz Khan, stood trial in case FIR No. 28 of dated 7- 2-2012, registered under sections 376/ 337-L, P.P.C., at Police Station Haved, District Bannu, and on conclusion of trial, learned trial Court/Additional, Sessions JudgeBannu, convicted him under section 376, P.P.C. And sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000 or in default thereof to undergo 2 years S.I. Further. Benefit of section 382-B, Cr.P.C. Has been extended to him. Being aggrieved from his conviction and sentence, the appellant has filed the instant appeal.
2. That FIR mentioned above has been registered on the written application/ complaint of complainant Qismatullah (P.W.7), submitted before SHO Police Station Haved, alleging therein that his sister Mst. Noor Jehana was married to one Sheroz Khan some four years back and from their wedlock a daughter was born, but died after few days of her birth; that Sheroz Khan, his sister's husband then proceeded to Saudi Arabia for earning livelihood and is still there. In January, 2012, Feroz Khan, father-in-law of his sister, brought her sister Mst. Noor Jehana to his house and left her there, whose physical condition was not sound. On query, she disclosed the complainant that her father-in-law Feroz Khan (appellant herein) used to commit sexual intercourse with her; as a result, she has conceived of about 4 months, but due to "Sharam and Haya/honour of his family, she remained mum and at last, one day she told the appellant that she could not keep it secret any more and would apprise her brothers and relative, on, which the appellant infuriated and he with the help of co-accused Irfanullah, Safir-ur-Rehman and Faizullah thrashed her severely. That complainant shifted his victim sister to the hospital, where she was admitted and it was confirmed that she is pregnant of 04 months. He charged the above named accused for commission of the offence.
3. On completion of investigation, challan was submitted against all the above named accused except co-accused Faizullah, who being a juvenile, separate challan under the Juvenile Justice System Ordinance, was submitted against him. The accused were formally charge sheeted by the learned trial Court, to which they pleaded not guilty and claimed trial. To bring home the guilt of accused, prosecution examined as many as eight witnesses. On closure of the prosecution evidence, the accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution allegations and professed their innocence, they, however, declined to be examined on oath under section 340(2), Cr.P.C. Or to produce evidence in defence. On conclusion of trial, learned Trial Court, except the appellant, acquitted all the accused, whereas appellant was convicted and sentenced as mentioned above, hence, this appeal.
4. Learned counsel for the appellant argued that it is a case of no eye-witness which has been registered with a delay of four months, without any plausible explanation; that in such like cases the statement of victim is of worth importance but victim has not been examined, and in absence of her statement, conviction of the appellant cannot be recorded; that appellant being a man of advance age of 65/70 years, as per his medical report was unable to perform sexual intercourse, hence, he has falsely been roped in the case; that the prosecution evidence is suffering from material contradictions and discrepancies; that the learned trial Court has recorded conviction of the appellant on the basis of pregnancy test and DNA report, which being the circumstantial evidence/ corroborative pieces of evidence, has no value in the eye of law, in absence of direct substantial evidence of unimpeachable character, hence, the impugned judgment of the trial Court being not sustainable in the eye of law, is liable to be set at naught.
5. Complainant present in the Court stated at the bar that he being a destitute is unable to engage a counsel, as such will rely on the arguments of learned Additional Advocate-General. Learned A.A.G. Contended that this fact has never been denied by the defence that victim was not the wife of son of the appellant and that she was not living in his house; that it is also proved on the record that during pregnancy of the victim, her husband was abroad; that not an iota of evidence has been brought on record by the defence to prove that victim was a woman of easy virtue; that there is no report qua impotency of the appellant; that if the complainant had any ulterior motive against the appellant, he could easily charge any young male member of his family but he has come forward with true account of the incident and has advanced whatever her victimized sister had disclosed before him. He went on to say that learned trial Court has appreciated the evidence in its true perspective and has reached to a right conclusion by holding the appellant guilty of the offence. He sought dismissal of the appeal.
7. We have given our anxious considerations to the respective arguments of the learned counsel for the parties and perused the record with their valuable assistance.
8. The appellant/accused is directly charged by the complainant/brother of victim for committing forcible sexual intercourse with victim Mst. Noor Jehana, his daughter-in-law. What the complainant has narrated in his report were complained off by her victim sister. The defence has not denied the relationship of Mst. Noor Jehana with the appellant being her father-in-law. This fact is also proved that husband of Mst. Noor Jehana was in Saudi Arabia during the days of incident.
The defence has also not brought any shred of evidence to prove that victim was not residing in the house of the appellant/her father-in-law during the days of incident, during which period, the victim girl remained prey of the sexual lust of the appellant and she due to fear, shame and honour of the family kept mum. The argument of the learned counsel for the appellant that the report has been lodged with a delay of four months, would not advance the case of defence, as keeping in view the norms of our society, particularly, this part of the country, where fathers-in-law are regarded by their daughters-in-law as their real fathers and the signs of honour and dignity, how an innocent rustic daughter-in-law, could complain of his bestiality to any body because we are conscious of the fact that she would have remained mum because of the fear that no body will believe her if she open her mouth and may be because of her own family honour and of the fear of her husband that she is blaming his father. But when she was conceived and find the opportunity of reaching the house of her brother, she narrated the entire episode to his brother, who without any delay, reported the incident.
9. As regard the contention of the learned counsel for the appellant that it is a case of no eye- witness, suffice it to say that the offences of a like nature are never committed in view of the general public. For commission of such an immoral offence, the delinquent makes arrangement or chooses a place which is secluded and out of the view of any outsider. In this case, the victim being the daughter-in-law of the appellant was under his dominate day and night, being living in his house, so the moment he find the opportunity he would have committed sexual intercourse with her, so obviously there was no likelihood of being viewed by any outsider. Thus, the aforesaid argument of the learned counsel for the appellant is not tenable.
10. So far as the non-examination of victim Noor Jehana is concerned, it is manfiest from the record that she had been examined by the medical board andaccording to opinion of the Medical Board, she was not able to give evidence, as such she was abandoned on valid ground. The relevant portion of the report is reproduced below for convenience:- "Mst. Noor Jehana daughter of Hayatullah victim in the case attended the office of the undersigned on 29-5-2013 for Standing Medical Board at DHQ, Teaching Hospital Bannu. The Standing Medical Board DHQ Teaching Hospital Bannu examined Mst, Noor Jehana and declared as unable to give correct statement".
' In the circumstances, the moot question before us would be that in such like circumstances, what would be the evidentiary value of statement of complainant Qismatullah Khan (P. W.7), her brother.
As stated earlier, the moment victim reached her brother, she narrated the occurrence to him and he lodged the report. In such eventuality, it is a case which fully attracts the rule of 'Res gestae'. The rule of Res gestae is that where a remark is made spontaneously and concurrently. It is defined as a matter incidental to main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of transaction and without a knowledge of which main fact might not be properly understood. They are events themselves E speaking through instinctive words and acts of participants, circumstances, facts and declarations which grow out of main fact are contemporaneous with it and serve to illustrate its character. Restesta includes everything that may be fairly considered as an incident of even under consideration. It carries with it inherently a degree of credibility and will be admissible because of its spontaneous nature. Res gestae means literally thing or things happened and, therefore, to be admissible as exception to hearsay rule, words spoken, thought expressed and gestures made must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening. It is a spontaneous declaration made by a person immediately after an event and before the mind has an opportunity to conjure a false story. It represents an exception to the hearsay rule. Res gestae is a concept which is a matter of principle is employed in the English system of administration of criminal justice under the name of res gestae. In our system of administration df justice Article 19 of Qanun-e-Shahadat Order, 1984 corresponding is an enacted provision of law under which statement made immediately after the occurrence under the influence of occurrence in, order to characterize it and connecting therewith would be admissible under this article as "res gestae" evidence.
11. In case before us, a simple rustic daughter-in-law being relieved of the bestiality of the appellant has so immediately reported the incident to his brother/complainant with a promptitude. There is not an iota of evidence to prove that during this period of 4 months, she had ever visited the house of her brother. In such circumstances, a simple and rustic girl would not have 6pportunity to conjure the facts motivated by any kind of malice. Had she any intention, she could easily charge any young male member of the appellant's family, but she has disclosed the true account of the events. Moreso, no girl would like to stigmatize her in the society for entire life by levelling false allegations against her own father-in-law. Therefore, we are clear in our mind that the evidence of Qismatullah complainant (P.W.7) is fully protected by section 19 of Qanun-eShahadat Order 1984 and the principle of res gestae, which can very safely be taken into consideration as an admissible evidence against the appellant.
12. The pregnancy of the victim and delivery of baby is a proof that she had been subjected to sexual intercourse. There is no denial of the fact that the husband of the victim was abroad at the time of occurrence. It is not the case of the defence that the victim was a woman of easy virtue.
The victim is a simple illiterate house girl. It is not the case of the defence that in her routine life she used to work outside. She has directly charged the appellant for committing sexual intercourse with her. In support of version of the complainant, the prosecution has conducted DNA test of the appellant and the newly born baby and victim. DNA report dated 15-1-2013 prepared by Dr. Muhammad Jamil Incharge DNA Laboratory and Ahmad Farooq Scientific Officer depicts that "Based on DNA analysis, Feroz Khan son of Gul Khan cannot be excluded as biological father of the new born baby". The relevant part of the report reads as under:- "The DNA profile identified in samples taken from new born baby (01A0240-3 and 01A0240-4), shares at least one allele at 15 STR genetic markers with DNA profile identified in blood sample of victim Noor Jehan Bibi wife of Sheroz Khan (01A0240-2) and DNA profile identified in blood sample of Feroz Khan son of Gul Khan (01A0240-1)"
According to scientific research "DNA, or Deoxyribonucleic acid, is the hereditary material in humans and almost all other organisms. Nearly every cell in a person's body has the same DNA.
Most DNA is located in the cell nucleus (where it is called nuclear DNA), but a small amount of DNA can also be found in the mitochondria (where it is called mitochondrial DNA or Mt DNA). The information in DNA is stored as a code made up of four chemical bases: adenine (A), guanine (G), cytosine (C), and thymine (T). Human DNA consists of about 3 billion bases, and more than 99 percent of those bases are the same in all people. The order, or sequence, of these, bases determines the information available for building and maintaining an organism, similar to the way in which letters of the alphabet appear in a certain order to forme, words and sentences. DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined, The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins. Certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called "allele", one inherited from each parent. In a paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child's DNA was inherited from the mother. The other half must have been inherited from the biological father. If the man's DNA types do not match with that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.
Each individual has an entirely unique genetic signature (except in the case of identical twins) derived from DNA configuration. DNA profiling has been statutorily recognized as reliable scientific evidence.
13. The argument of the learned counsel for the appellant that the appellant being a man of advance age of 65/70 years was incapable to perform sexual intercourse is not tenable. The appellant has been examined medically. According to his medical report Exh.P.W./3/1, he has been shown capable of performing sexual intercourse. While replying to a question as to whether the accused can perform sexual act? The Medical Officer has responded that from medical point of view, there is no upper age limit regarding impotency and infertility. Moreover, under conducive environment, a man of such age as the accused is, can perform sexual act.
14. For what has been discussed above, ne prosecution has proved the guilt of the i'ppellant through overwhelming evidence, oral, documentary and scientific evidence, available on the record, which the learned trial Court has evaluated and assessed in its true perspective in its judgment and reached to a right conclusion by holding the appellant guilty of the offence and thereby convicted and sentenced him. We see no infirmity, illegality or irregularly or any misreading or non-reading of evidence in the impugned judgment which may warrant interference by this Court in its appellate jurisdiction.
15. This appeal being without any substance, stands dismissed.