1. AFTAB AHMED GORAR, J.---Through instant Criminal Appeal filed under section 410, Cr.P.C., the appellant has assailed the Judgment dated 20-11-2012 passed by VIth Additional Sessions Judge, Karachi East in Session s Case No, 303 of 2008 whereby he convicted the appellant and sentenced him under section 376(1), P.P.C. And to pay fine of Rs,50,000 and in default whereof to suffer SI for three months.
2. The prosecution case, in nutshell, as disclosed in FIR No,189/2008 lodged by complainant Mst.
3. Treesa at P.S. Zaman Town Karachi on 29-5-2008, are that she was working in Sultan Medical Hospital Korangi as a Nurse. On 28-5-2008 she left her house to attend her duty in the hospital and when she reached at Korangi No,3 and while crossing the main road when she reached on the passage between the two road's she felt that somebody hit on her head from the backside thereafter put a handkerchief on her mouth and she became unconscious. When she regained her senses, she found herself in a house where accused Khurram, his wife Mst. Fouzia, Emanuel and sister of accused Khurram namely Sumaira were present. It is further alleged that in the first instance both the women had beaten her and thereafter asked accused Khurram to disgrace her modesty. The complainant begged Khurram but he did not listen and closed the door and after turning everybody out, he raped the complainant. She further stated that thereafter she found a chance and hit an empty bottle of liquor on the head of the guard and made her escape good and came to her house in the evening and narrated the entire story to her family members.
4. After registration of FIR, on the pointation of the complainant/victim, the Investigating Officer inspected the place of incident from where victim was kidnapped and thereafter arrested the accused on 29-5-2008. He also visited the place where zina was allegedly committed. She was referred for medical examination and her clothes were also sent for chemical examination.
5. Accused Khurram was also medically examined on 29-5-2008 and after usual investigation, challan was submitted in the court.
6. At the trial prosecution examined P.W.1 complainant Mst. Treesa as Exh.3 who produced mashirnama of place of abduction as Exh.3/B, mashirnama of arrest of accused Khurram as Exh.3/D, P.W. Younus Bhatti as Exh.4, P.W. Haji Nazeer as Exh.7, P.W. Hameeda as Exh.8, Dr. Ghulam Sarwar as Exh.10 who produced medical certificate of Khurram Shahzad as Exh.10/A. P.W. ASI Syed Hamid Ali as Exh.11, P.W. Dr. Rohina Hassan as Exh.13 who produced medical certificate of victim Treesa as Exh.13/A, final report as Exh.13/B, P.W. SIP Saeedullah Khan as Exh.14 who produced notices as Exh.14/A and 14/A-1, chemical report as Exh.14/B, P.W. S.I. Muhammad Umar as Exh.15 who produced letter addressed to the police surgeon as Exh.15/A, letter addressed to MLO as Exh.15/A-1, letter for permission addressed to the SSP for sending clothes for chemical examination as Exh.15/B, certain photographs as Exhs.15/C to 15/C-4. Learned ADPP filed statement enclosing therewith report of Special Medical Board as Exhs. 16/A to 16/E and thereafter prosecution side was closed.
7. However, three witnesses namely Muhammad Shahid, Muhammad Babar and Nash,' Gul could not be examined for the reason that their whereabouts were not known as per report of process server ASI Momin Ali Exh.6.
8. There after statements of the accused persons were recorded under section 342, Cr.P.C. As Exhs.18 to Exh.21 wherein they denied prosecution allegations. Accused Khurram Shahzad further asserted that the medical certificate was managed as victim belongs to the paramedical staff and that she was interested to marry him, thus insisted and forced him to divorce his wife and when he refused to do so, he has been falsely involved in the case. Along, with his statement he produced photocopies of some diaries in order to show relation between them. However, the accused neither examined themselves on oath nor produced any witness in their defence. After recording the evidence and hearing the counsel for the parties, learned VIth Additional Sessions Judge Karachi East vide impugned judgment convicted and sentenced the appellant Khurram Shahzad as stated above, hence this appeal. However, vide the same judgment he acquitted co-accused Fozia, Sumarira and Emmanuel.
9. Learned counsel for the appellant submitted that the appellant is innocent and has been falsely implicated for ulterior motives; that the trial Court did not appreciate that the prosecution has failed to prove its case beyond reasonable doubt. He further contended that the judgment of the trial court is based on surmises and conjectures. According to him, the witnesses namely Muhammad Shahid, Muhammad Babar and Nasim, who were the material witnesses of the case, have not been examined, as such the case of the appellant has been seriously prejudiced. He further contended that S.I. Muhammad Umar in his cross-examination has categorically stated that he recorded statements of persons of the locality but they did not support the version of the complainant in their statements. He further contended that there is no ocular testimony of the incident and the trial Court while convicting the appellant was impressed by the solitary statement of the victim/complainant. He emphasized on the point that there is no mashirnama regarding clothes of the victim. According to him, there is contradictory statements as to the colour of the clothes of the victim which makes the case of doubtful nature benefit whereof must go to the accused, particularly in view of the fact that there is no mashirnama in this regard and that no DNA report of the victim has been collected by the prosecution. He also contended that the alleged victim is herself of doubtful character as it has come in evidence that she had objectionable relations with the appellant and had forced him to divorce his wife and on his refusal, he was falsely implicated in the case. He further contended that the evidence of the victim/complainant was not corroborated by any other piece of evidence, therefore, in view of the contradictions/discrepancies in the evidence of the prosecution Witnesses, the solitary statement of the victim could not be made basis for conviction. He prayed for setting aside the impugned judgment and .Acquittal of the appellant. He relied upon the case-law reported in 2012 PCr.LJ 1903 and 2012 PCr.LJ 437.
10. Conversely, learned counsel for the complainant while supporting the conviction of the appellant, contended that the prosecution has proved its case beyond reasonable doubt, as such the appellant has rightly been convicted and sentenced. He further contended that the it is now well settled that solitary statement of the victim, if rings truth and inspires confidence, may be sufficient for conviction and in cases where solitary statement of the victim is corroborated by the medical evidence, conviction can be awarded. He also contended that minor contradictions and discrepancies in the evidence are to be ignored. He prayed for dismissal of the appeal. In support of his contentions, he relied upon the decisions reported in 2013 YLR 866, 2011 PCr.LJ 1443, 2011 PCr.LJ 1964.
11. Learned A.P.G. Appearing for the State also supported the impugned judgment contending that the same is well-reasoned and in accordance with the law. She submitted that prosecution has proved its case beyond reasonable doubt and as the appellant is involved in heinous offence, he does not deserve any leniency. According to him, it is now well settled that solitary statement of the victim if inspires confidence can be relied upon for convicting the accused. She also prayed for dismissal of the appeal.
12. I have heard 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.
13. The star witness in this case is the victim girl. She in her deposition has fully implicated the accused. In her evidence, she has reiterated the contents of the FIR. In her cross-examination she admitted that before the incident quarrel had taken place between the accused and her family Members and sister of accused Khurram Shahzad had come to her house and abused them. She further admitted that accused Khurram Shahzad used to send SMS from his mobile to her.
14. However, she denied the suggestion that she has falsely deposed against the appellant because despite pressure and force put by her, he denied to divorce his wife. The evidence of witnesses, councillor Younus Bhatti and Haji Nazeer is formal in nature.
15. The next important witness is Dr. Rohina Hassan who was examined as Exh.13. She has deposed that on medical examination of the victim Treesa, she found external genital was normal. Hymen torn at 8 O'clock and 5 O'clock position, margins were very tender and bleeding on touch. Vestibule deeply congested all round. Fresh laceration noted at poet aspect and slight bleeding positive. Viginal slide was taken, sealed and handed over to I.O. Of the case. In her opinion, the complainant Treesa was subjected to fresh act of sexual intercourse. The final certificate issued by her is based on the report of the Chemical Examiner which is available on the record as Exh.14/B. The said report shows that the articles in question contained human sperms and human blood was found in the articles.
16. The said certificate was challenged before the Medical Board, however the Board also confirmed the opinion given by Dr.Rohina Hassan. The report of the Medical Board is also available on the record as Exhs.16/A and 16/B.
17. The learned counsel vehemently contended that there is contradiction regarding the colour of the clothes of the alleged victim which makes the case doubtful particularly in view of the fact that there is no mashirnama in respect of the said clothes. From the careful examination of the evidence of the concerned witnesses. I find that not a single question was put to the said witnesses by the defence in respect of the colour of the clothes of the victim Treesa which she was allegedly wearing at the time of commission of rape, as such now at this stage learned counsel for the appellant cannot be allowed to raise this point. Even otherwise, in view of the fact that the victim has fully implicated the appellant in her deposition, such fact cannot be given due weight so as to set aside the conviction.
18. Now question arises as to whether solitary statement of the victim could be made the basis for conviction. 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 inspires 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.
19. 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."
20. 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."
21. The defence could not succeed in establishing that the evidence of the victim lady, Mst. Treesa, 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.
22. There is no cavil to the propositions of law mentioned in the case-law relied upon by the learned counsel for the appellant, however each criminal case is to be decided on its own merits and the facts of the cited cases and that of the present case are distinguishable.
23. The upshot of above discussion is that the prosecution has succeeded in proving its case beyond reasonable doubt against the appellant, as such the appeal merits no consideration.
24. Consequently the appeal is dismissed and the judgment of conviction is upheld.
25. Above are the reasons for short order passed on 16-5-2014.