1. HAFIZ SHAHID NADEEM KAHLOON, J.---Through this Criminal Appeal No,93 of 2010, Khursheed Ahmad-appellant has assailed his conviction and sentence awarded by learned Additional Sessions Judge, Dera Ghazi Khan vide judgment dated 02.12.2009, whereby appellant was convicted for commission of rape with her real daughter namely Mst. Farzana in case FIR No,972/2008 dated 28.11.2008, registered under section 376(i), P.P.C. at Police Station Saddar, D.G.
2. Khan and sentenced as under:- Under section 376, P. P. C.
3. Twenty Five years Rigorous Imprisonment with fine of Rs,1,00,000/-, in default thereof to further undergo six months' S.I. He is also given benefit under section 382-B of Cr. P. C.
4. 2.The brief facts as narrated by Mst. Farzana-complainant (PW-7) in Complaint (Exh.PD) are that she is bachelor and living with her parents at Mouza Hazara, Basti Chalwala; that six months prior, one day she along with her younger sisters was present at home but her mother was not present as she had gone to the house of her mother; meantime her father (accused) came to home and seeing complainant alone his porn spirit developed, he went inside room, summoned the complainant there and committed rape with her and gave her threats that if she shared the same with her mother, she would be done to death; that she being threatened by accused remained mum and accused finding opportunity had been committing rape with her; finally she disclosed the same to her mother and her mother quarreled with her father (accused) who severely beaten the complainant and her mother; this fact spread over the Ilaqa, thereafter, two months back they shifted to city D.G. Khan in a rented house situated at Shamas Abad Colony where her father continued to commit rape with her; last night her mother witnessed her father while committing rape with complainant, on raising outcries witnesses namely Faiz Kareem and Ghulam Hussain (maternal grandfathers of victim) reached at the spot, they narrated whole story to PWs who tried to make the accused understand but he also extended them threats of dire consequences. In consequence of complaint (Exh.P-D) of complainant, a formal FIR (Exh.P-D/1) was registered under section 376, P.P.C. at Police Station Saddar, Dera Ghazi Khan.
5. 3.After registration of the said FIR the investigation was launched by Police Authority and during investigation accused-appellant declared guilty and challan/report under section 173, Cr.P.C. was got prepared and submitted before the Court for commencement of the trial against the accused; after submission of challan the learned trial Court handed over copies to the accused person under section 265-C of Cr.P.C. and in this respect formal charge was framed against the accused who denied the charge and claimed for trial, the prosecution produced as many as ten witnesses to prove its case. Dr. Farhaj Shumile medically examined Khurshid Ahmad (accused) and observed that Khurshid Ahmad (accused) is incapable of doing the sexual inter-course. Lady Dr. Amna Waqar W.M.O. appeared as (PW-4) who medically examined Mst. Farzana-complainant (victim) on 29.11.2008 and opined as under:- "Vagina admitting two. fingers, hymen not intact. No fresh injury on private parts."
6. 4.Learned ADPP through separate statement recorded on 30.10.2009 after submission of report of Chemical Examiner (Exh.P-G) closed the prosecution evidence. The appellant was examined under section 342, Cr.P.C. who denied the allegations and professed his innocence. In reply to a question that why this case has been registered against him and why the PWs have deposed against him, he replied as under:- "Even I cannot think to commit rape with my real daughter, before such thought I was to embrace death. I am innocent. I may please be acquitted from this case"
7. 5.Appellant neither opted to make his statement on oath as provided under section 340(2), Cr.P.C., nor did he adduce any defence evidence. Learned trial Court after hearing the arguments of both parties, passed impugned judgment.
8. 6.Learned counsel for the appellant argued that the statement of the victim regarding the commission of rape was the result of influence of her mother and grandfathers who were inimical towards the appellant, even the accused being real father of alleged victim Mst. Farzana even cannot think to commit such act with his real daughter. Further submits that in the cases of this nature "due caution" was necessary to assess the evidence of the victim who was liable to be tutored by her mother. Further submits that there are major contradictions in the statements of prosecution witnesses and prosecution had failed to prove its case against accused and in this regard accused Khurshid Ahmad is entitled for acquittal.
9. 7.On the other hand Mirza Abid Majeed, Deputy Prosecutor General for the State controverted the contentions raised by the learned counsel for the appellant and submitted that prosecution has proved its case beyond any shadow of doubt against the accused by producing Mst. Farzana PW-7 whose testimony was duly corroborated by Mst. Anwar Mai PW-8 wife of appellant, having no enmity with him, statement of the lady Dr. Amna Waqar who had materially supported the prosecution version and the report of Chemical Examiner (Exh.PG).
10. 8.I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the record.
11. 9.Having epitomized foregoing discussions as well as perusing record with the marvelous assistance rendered by learned counsel for the parties, alleged victim Mst. Farzana-complainant (PW-7) of this case appeared in witness box, deposed that her mother went to house of her Nani; she was alone in the house, pornicious spirit awakened, waded the sanctity of relationship, accused/her father took her to a room, bolted door, started quenching demonic thrust and committed rape against her volition; further menaced her that if she would disclose this fact, she would be murdered thereafter; whenever accused got opportunity he reiteratedly committed rape and outraged the modesty and sanctity of emblem of honour attached to the father, after the passage of time she disclosed this fact to her mother because said act was intolerable for her, her mother endeavored to mend her father's ways and restrained accused-appellant to refrain from committing Zina with her daughter and not to call for wrath and catastrophe of Almighty Allah; her mother further narrated this story to her grandmother/Dadi, subsequently this fact became talk of the town and they were constrained to leave Mauza Hazara and went to D.G. Khan settled in Shamas Abad Colony in order to save themselves from vilification and devilish acts of accused- appellant. Even changing of abode could not abide accused-appellant from reoccurring the offence and again committed rape with her, her mother awoke and took a glance when her father was engaged committing rape with her, she raised hue and cry, her Nana Ghulam Hussain and Parnana Faiz Kareem gravitated over there and matter was brought into their notice; they scolded and condemned her father Khurshid accused for this pernicious act for committing rape with his real daughter, her father beseeched and conceded that he would not do again such kind of malicious act, the matter was reported to police and got recorded her statement and preferred application before police (Exh.P-D) whereupon formal FIR was lodged; Mst. Farzana victim (PW-7) was subjected to lengthy cross-examination but learned defence counsel failed to twist her evidence as well as remained unable to create a dent in the case of prosecution, during her cross- examination she deposed that house of Ghulam Hussain, Nana was at distance of 2/3 houses from her house at Shamas Abad Colony, she further deposed that she tried to raise hue and cry but her father kept her mum and took her in the room, when he was in compromising position her mother appeared there, her mother tried her level best to restrain her father to avoid committing of rape with his daughter, accused gave severe beatings to her mother. As regard the testimony of mother of victim Mst. Farzana and wife of Khursheed Ahmad-accused appeared in the witness box as (PW-8), she fully corroborated the story of complainant Mst. Farzana victim, Hafiz Noor Muhammad Inspector/I.O appeared in the witness box as PW-10 who deposed in his cross-examination that PWs who appeared from victim side were all impartial but none appeared from accused side before him, the alleged victim Mst. Farzana was medically examined by Dr. Amna Waqar W.M.O. who appeared in the witness box as PW-4, medical report of the victim Mst. Farzana also fully corroborated the deposition of complainant-victim Mst. Farzana (PW-7).
10. While viewing the testimonies of PWs, ocular account and medical account one thing is admitted that accused Khursheed Ahmad had been committing rape with her real daughter Mst.
12. Farzana complainant about six months back before registration of criminal case, but on the other hand, relations between the accused and the victim was of father and daughter, victim being real daughter as well as being immature was constrained to be tight lipped and when the occurrence was witnessed by Mst. Anwar Mai (PW-8) mother of Mst. Farzana and wife of Khursheed Ahmed- accused she being sane condemned her husband and complained the same to mother of the accused Khursheed Ahmed/her mother in law but accused Khursheed Ahmed did not restrain himself and continued to have lust with her real daughter i,e, Mst. Farzana victim, Mst. Anwar Mai (PW-8) irrupted and raised hue and cry and narrated the same to PWs owing to mend her husband/accused; since previously accused was living in his native town and when the said factum became talk of the town owing to camouflage the sanctity, chastity and family honour, Mst.
13. Anwar Mai was constrained to leave her native town and settled in City D.G. Khan in Shamas Abad Colony but despite of the fact accused Khursheed Ahmed did not mend his demonic spirit and victim was compelled to resort to the police and got registered criminal case against accused Khursheed Ahmed had been committing rape with her real daughter Mst. Farzana victim/complainant. During examination lady doctor took into possession swabs from vaginal parts and same were transmitted to the office of chemical examiner and according to the report of the chemical examiner (Exh.P-G) swabs were stained with semen; so medical account also corroborated the case of prosecution; it is strange to mention here that such kind of persons should not be spared who tried to undermine the dignity of relations and being voluptuous in nature should be curbed down with iron hands so that they may become as emblem of sorrow and grief for the society so that peace and tranquility may prevail within the society and misconceptions/dogmas eclipsing the relationship should be washed away and the virtue and the vice must be dissected from each other and such kind of slave of gluttony who quenched their parched throats by adopting Freudian acts must be snubbed with iron clad hands; before parting with the judgments. I am constrained to comment that such kind of acts should not be encouraged by the families and must be banished by all means so we may raise the dignity and honour of family-hood in our society; conspicuously prosecution had proved his entire case diligently scrupulously wherefore, no leniency can be bestowed upon the accused, finding no force in the instant appeal which is hereby dismissed. Conviction and sentence handed down by the learned trial Court is upheld.