This criminal appeal is directed against the judgment dated 02.10.2010 passed by the learned Additional Sessions Judge, Burewala, District Vehari. The appellant was convicted u/S. 365-B, PPC and sentenced to life imprisonment with a fine of Rs, 10,000/- and in case of non-payment of fine he would further suffer simple imprisonment for two months. He was also convicted u/S. 376(i), PPC and sentenced to imprisonment for ten years with a fine of Rs, 10,000/- and in case of non- payment of fine he would further suffer simple imprisonment for two months. He was given the benefit of Section 382-B, Cr.P.C.
2. Brief facts of the case are that the complainant namely Khushi Muhammad 'got recorded his statement before the police that on 8.4.2008 his daughter Mst. Asia Noreen who was aged 14/15 years and student of Class-V went to school but it was informed by the chowkidar of the school that his daughter Asia Noreen had not reached school. He further told that one boy had taken her on a motorcycle. Upon this, the complainant alongwith his son Shahid and wife Zubeda Bibi searched for Asia Noreen but could not find her. Mst. Asia Noureen at 02:00 p.m. Returned home.
She was not feeling well and on asking, she started weeping and told that she was going to school at 07:30 a.m. When Ismail son of Sultan (accused) had stopped her at some distance from school and administered some intoxicant due to which she became unconscious. Then accused took her on his motorcycle to an unknown place where he committed zina with her. Earlier to it, the accused had committed zina with her after committing zina extended her threats that if she was to tell that fact to anyone else, he would kill her. The victim kept silence due to fear of accused but on the day of occurrence the accused was intending to take her with him and on her refusal, he made her inhaled something and fulfilled his evil desire. The accused had been beseeching complainant but the complainant did not concede his request. He had filed his complaint alongwith the order dated 20.05.2008 passed by the Court of learned Justice of Peace, Burewala and requested for registration of case.
3. After registration of the case, the investigation was conducted by Abdul Latif SI/I.O. (PW-5) and on its completion, the challan was submitted in the trial Court. The learned trial Court framed the charge which was denied by the appellant and he claimed trial.
4. To prove guilt of the accused, the prosecution examined as many as seven witnesses during the trial. Dr. Muhammad Asghar Medical Officer appeared as PW-1, who examined Muhammad Ismail accused/appellant and, as per MLC No, 729/08 Ex.PA, opined that there was nothing to suggest that he was an impotent person. PW-7 Dr. Muhammad Anwar Medical Officer deposed that on 11.04.2008 he was posted at THQ Hospital, Burewala and on the same day, lady doctor Zahida Waqas was posted there and as being her colleague, he could identify her writing as well as signature and the copy of MLC No, 77-W/08 dated 11.04.2008 issued by Lady Doctor Zahida Waqas in favour of Asia Noreen which was in his hand writing and with her signature. According to her statement, victim was not conscious at that time and on her p/v examination, hymen ruptured and healed two fingers easily. No vaginal and vulvas tear, lacerations and bleeding seen. Abdul Latif S.I.
Appeared as PW-5, who conducted partial investigation of the case. Latifullah SI/I.O. As PW-6 deposed that he arrested accused Ismail in this case and on 22.07.2008 declared him guilty and sent to judicial lock up. The evidence remaining witnesses less or more are formal, therefore, there is no need to mention the same. Whereafter, the accused was examined under Section 342, Cr.P.C.
And in reply to the question as to why this case against him, he answered as under: "No independent PW has deposed anything against me. The alleged victim Mst. Asia Noreen is known as girl of immoral habits in the Chak we both the parties reside. She has always played in the hands of her father Khushi Muhammad as a tool to fetch money from the innocent persons as prior to the registration of case, he received Rs, 10,000/- from Abdul Ghani, caste Mirasi, resident of our chak because his son Ghulam Abbas was involved in a false case of zina through an application addressed, to SHO, P.S. Sahuka. Due to that habit, he had implicated me in this case whereas I am totally innocent. In proof of that I was declared innocent during investigation of this case by the Police Officer Abdul Latif SI/I0 who conducted investigation independently."
5. The appellant/accused produced defence evidence. However, he has not opted to make statement under Section 340(2), Cr.P.C.
6. The learned trial Court, after attending the facts of the case, convicted the appellant as mentioned in the opening para of this judgment.
7. Learned counsel for the appellant argued that the occurrence allegedly was committed on 08.04.2008 at 8.30 a.m. But the FIR was registered on 29.5.2008 with the delay of 21 days of the occurrence. He further argued that during the investigation the appellant was found innocent; that PW-5 Abdul Latif S.I/I.O. Stated that the Chowkidar of the school appeared before him and got recorded his statement that he had not seen the occurrence nor he had heard anything about that..
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposed the appeal and contended that there is no delay in lodging the FIR as the matter was reported to the police on 08.04.2008 but with mala fide intention police did not record the version of the alleged abductee/victim as well as the complainant, therefore, the complainant filed a petition under Section 22-A, Cr.P.C. And after getting a direction from the learned Justice of Peace, the case was got registered.
8. I have heard the learned counsel for the parties and given my due attention to the arguments advanced by them as well as perused the record.
9. Admittedly, the victim Mst. Asia Naureen was studying in 5th class and she while appearing as PW-3 categorically stated that the appellant abducted her when she was on the way to her school and thereafter he committed rape with her. While appearing as PW3 she made the following statement:- "That on 8.4.2008 at about 7.30 a.m. I was going to school. At a short distance from school, Ismail accused present in the Court, came over there on motor bike, who gave some intoxicant and took me to an unknown place, where he committed ziadti with me. He used to commit Ziadti with me before the day of occurrence. The accused Ismail advanced threat to me if I told to my parents I shall meet the serious consequences. After that nothing happened and at about 2 p.m. I returned to my house and told about this incident to my father, mother and brother. After that we reported the matter to the police. But the police paid no heed to our information regarding the occurrence.
Then we approached the Court at Burewala, from where I sought the permission to get my medical examination from the concerned Medical officer, on 11.4.2008. After my medical examination, we also approached the concerned police but the case was not registered. Then we again came in the Court for registration of the case and the Court had passed order for registration of the case and the police registered the case against the accused. Investigation officer recorded my statement during investigation."
' The factum of rape has been admitted by Dr. Muhammad Anwar who appeared as PW-7 as a secondary evidence in place of lady doctor Zubaida Waqas who was abroad and he admitted the issuance of MLC by her. PW-5 Abdul Latif S.I admitted in his cross-examination that the alleged occurrence took place on 08.04.2008 and Mst. Asia Bibi victim was not medically examined by the Court's order dated 10.04.2008 on 11.04.2008. He further admitted that on 11.6.2008 sixteen persons of the same locality appeared before him in support of complainant's version. He further admitted that on 15.6.2008 also ten persons appeared in support of version from the complainant's side. As far as the statement of PW-5 that he found during his investigation that the complainant was habitual to lodge false applications of zina with his daughter and he used to get money from the persons on that pretext is concerned, no father can file such a false application involving his minor daughter for such a heinous offence. If the complainant was in habit of filing such type of applications of zina, he can involve so many persons in this case but he did not involve any innocent person. The appellant has failed to point out any ill-will or malice on behalf of the complainant to falsely involve the appellant in this case. From the facts and circumstances it appears that the appellant enticed a minor girl victim and thereafter he committed zina with her, therefore, the appellant committed a heinous offence. In fact, the mala fide of the I.O. Is apparent from the fact that he did not collect the report of the Chemical Examiner and also he did not record the statement of the chowkidar who informed the occurrence to the father of the abductee/victim that a boy abducted her daughter at motorcycle. The prosecution has failed to point out any material contradiction in the statements of the complainant as s well as the victim. The prosecution has fully proved its case against the appellant beyond any shadow of doubt by ocular account coupled with medical evidence.
10. In view of what has been discussed above, the appeal in hand is dismissed having no force.