OMAR SIAL, J.---Through this judgment I will dispose of the captioned appeal which has been preferred against the judgment of the learned Additional Sessions Judge (III), Malir, Karachi in terms of which the Appellant was sentenced to R.I. of ten years and a fine of Rs. 20,000 (or in default to undergo R.I. for six months more) for an offence under section 376, P.P.C.
1. The brief facts of the case are that on 7-11-2010 complainant Mst. Sadia Bano recorded her statement under Section 154, Cr.P.C. stating therein that she was working as a teacher in Pilot Public School, which is situated in Sector 20-B, Shah Latif Town, Karachi. Aijaz Hussain (the Appellant) is the principal of the said school. On 5-11-2010 at about 9.15 a.m. she was teaching in her classroom when she asked a student to deliver a list of required practical to the principal Aijaz Hussain. The student came back and informed her that the principal wanted to see her. She went to the principal who then asked her to go downstairs. The principal followed her and dragged her in a room on the ground floor and raped her. Thereafter, she again went to the office of the accused to take her purse, where the accused asked her not to disclose the incident to anybody. However she returned to her house where she narrated the facts to her mother. Later, an FIR was lodged against the accused.
2. In order to prove the case, prosecution has examined six witnesses. PW-1 Muhammad Akbar was the police official who recorded the FIR on the complaint of Sadia Bano. PW-2 was the complainant Sadia Bano who was the victim of the crime. PW-3 was Niaz Mohammad who was the father of the victim and the witness to the memo. of site inspection. PW-4 was Muhammad Ashfaq who was the Judicial Magistrate who recorded the victim's statement under section 164, Cr.P.C. 1898. PW-5 was Dr. Sumaiya Syed Tariq who was the doctor who examined the victim at the Civil Hospital. PW-6 Rana Muhammad Muneer, the Investigating Officer of the case.
3. On 07.03.2013, statement of accused was recorded under Section 342, Cr.P.C. in which he has denied the prosecution allegation and stated:-- I am innocent and have been falsely implicated in this false case, therefore, I pray for justice in respect of my dispute on payment with the victim. I produce the application which I moved before P. S. Quaidabad prior to this incident.
4. He also recorded his statement in terms of Section 340(2), Cr.P.C. and produced DWs Muhammad Bux and Sabir Ali in his defence.
5. I have heard the learned counsel for the Appellant as well as the learned counsel for the complainant and the learned ADPP and have also examined the record with their able assistance.
The advocate for the Appellant reiterated the grounds taken in his memo. of appeal whereas the advocate for the complainant and the APG reiterated the prosecution case. As the stance of both parties is a part of the record, for the sake of brevity, the same is not reproduced herein. My observations are as follows.
6. This case primarily hinges on the testimony of the rape victim. It is well settled that it is not the quantity of evidence but the quality of it that is important in either proving or disproving a case. In the present case, the victim in spite of the apparent trauma that a rape victim would go through, has been consistent on all material facts in the statements she gave to her parents on the day of the incident, in the FIR which was lodged, in her statement recorded under section 164, Cr.P.C. 1898 before a magistrate and then in her testimony given during trial. In her cross-examination though attempts were made to disgrace her, she has been honest and upright and has made no attempt to improve her case. A solid testimony of the rape victim is sufficient to maintain conviction.
7. The incident occurred on 5-11-2010 at about 0915 hours and the FIR was registered on 7-11-2010 at 1830 hours. The learned counsel for the Appellant has argued that this delay in the lodging of the FIR creates doubt. The delay has been explained well by the victim. Initially, the family was not sure whether due to embarrassm ent and family honor (the victim being a single, young girl) they should register an FIR and subsequently there were unwanted visitors forcing the family to not record their complaint. A difficult irony for women in countries such as ours is that should a victim speak up about physical or sexual abuse, she is seen as having lost her and her family's dignity coupled with the feeling that the victim has become worthless in the society. The delay of two days in lodging the FIR in my view, in the circumstances of the case, is not detrimental to the prosecution case. The same is my observation for the learned counsel's argument that the medical examination was delayed by three days and statements under section 161, Cr.P.C. were also recorded after four days.
8. The learned counsel for the Appellant has argued that there are no signs of injuries to the victim and as such a case of rape is not made out. In this regard it is my view that the mere absence of injuries on the body of a victim is not proof enough of the crime not having been committed. A rape could be committed without injuries by putting a victim under fear. The Hon'ble Supreme Court in a case titled Makha v. The State reported at 1975 SCM R 394 was confronted with the question of whether in a case of brutal criminal assault marks of struggle should be present on the body of the victim and assailant. Although the victim was eleven years old and the accused twenty four in that case, the Hon'ble Court made an observation "the existence of marks of struggle presupposes struggle which in turn would depend on the capability of the witness to offer resistance again relatable to several factors........ no hard and fast rule can, therefore be laid down in this regard." The victim in the present case is a twenty-four year old, 4' 11" tall petite girl whereas the accused was a twenty seven year old robust male. It is pertinent to point out that PW-5 DR. Summaiya Syed Tariq, who examined the victim, in her cross-examination deposed "It is correct to suggest that there are no marks of violence on any part of the body but it was seen in vagina of victim." This victim also deposed that there was "blood inside the vagina" even though the victim "had washed her private parts". The victim was examined three days after the incident and the doctor concluded that the hymen was torn and bleeds to touch and that the victim had been subjected to sexual intercourse in the past four days. The medical report that is on record also reveals that the victim was not used to sexual intercourse. A vaginal swab was taken which also detected human sperm and blood.
9. The learned counsel for the Appellant has argued that as the victim did not raise hue and cry and as after the incident she did not tell any student or teacher that she had been raped but instead left for home, in itself suggests that the Appellant is innocent. I am not impressed with this argument of the learned counsel. The victim has explained that she did raise hue and cry but that the Appellant had his hand on her mouth and that the things lying in the room were scattered.
Expecting a victim of a rape to go tell the students and her colleagues of the rape immediately thereafter may very well not be the normal reaction of a person who has gone through this trauma in Eastern societies such as ours. When asked specifically if the learned counsel thought that the first thing a rape victim would do would be to tell her colleagues at work, the learned counsel for the Appellant preferred to remain silent.
10. The learned counsel in defence of the Appellant has argued that there are no independent witnesses to the incident. Here I would like to mention that rape is a crime that is often committed in private, where there are no witnesses to corroborate the claims made by a victim. If the necessity of eye witnesses was mandatory, no perpetrator would ever be convicted if all he had to ensure was that he got the victim alone in a deserted place. Accordingly, this argument of the learned counsel is devoid of any force.
11. The learned counsel for the Appellant has attempted to attack the morality of the victim by implying that she was having an affair with her father's friend. The only evidence he relies on for this allegation is that the father's friend in question had accompanied the victim and the family to the police station to register the FIR. Suffice to say that the allegation based on this evidence is absurd.
12. Now I will revert to the defence taken by the Appellant in trial in his section 342, Cr.P.C. statement.
The Appellant takes the plea that the victim owed him Rs. 10,000. When he asked for the money back, she falsely implicated him in this case. The defence taken by the Appellant simply does not appeal to logic. Why would a woman expose herself to ridicule and shame in our society, especially when it has been established through medical evidence that she is not used to sexual intercourse for the sake of Rs. 10,000 is a question that eludes me. When the defence version is put in juxtaposition with the victim's story, the story of the victim is more confidence inspiring.
13. The learned counsel for the appellants has also argued that the vaginal swab taken by the medico-legal doctor on 8-11-2010 was sent to the chemical examiner after a delay of thirteen days.
He also argues that a DNA test was not conducted to establish a nexus between the sperm found and the Appellant. He also has argued that the victim did not hand over her clothes and undergarments to the police. The arguments raised by the counsel are factual. It is true that conducting the tests suggested by the counsel and production of her clothes would have further strengthened her case, however, I am also cognizant that this is a rape case and have taken into account the likely behavior of a genuine victim and the administrative and financial restraints existing with regards to DNA testing especially when it is the underprivileged people of our society who are the victims. As mentioned above, this is a case that conviction has been awarded on the sole testimony of the victim which I find confidence inspiring. The Hon'ble Supreme Court in a case titled Mst. Nasreen v. Fayyoz Khan reported at PLD 1991 SC 412 has held that "a sole testimony of victim is enough for conviction in case it transpires confidence." Similarly, in Ibrar Hussain v. The State reported at 2007 SCM R 605 the Hon'ble Supreme Court held that "conviction can be awarded in rape/hadood cases, on the sole testimony of the victim subject to the condition that the statement of the witness was confidence inspiring."
14. The learned counsel has not been able to point out any illegality in the judgment nor any non- reading or misreading of evidence. He has also not been able to point out any other mistake of fact or law. His desire is that the trial Court should have reached a different verdict.
15. The above are the reasons for the short order dated 27-3-2017 in terms of which this appeal was dismissed.