Asjad Javaid Ghural, J. Through Criminal Appeal No.630 of 2014 under Section 410 Cr.P.C. appellant Mujahid Islam alias Zahid alias Zahidu has challenged the vires of judgment dated 26.03.2014 passed by the learned Additional Sessions Judge, Nankana Sahib in case FIR No.147 dated 02.04.201 3, in respect of offences under Sections 376 & 364-A PPC, registered at Police Station, Mangtanwala, District Nankana Sahib whereby he was convicted and sentenced as under:- Under Section 364-A PPC Imprisonment for life and to pay fine of Rs.50,000/-, in default thereof, to further undergo simple imprisonment for six months.
Under Section 376 PPC Imprisonment for life and to pay fine of Rs.50,000/-, in default thereof, to further undergo simple imprisonment for six months.
He was held entitled to the benefit of Section 382-B Cr .P.C. and all the sentences were ordered to run concurrently .
2. Complainant Atta Muhammad has preferred Criminal Revision No.471 of 2014 seeking enhancement of sentence of respondent No.1/ appellant, which shall also be decided through this common judgment.
3. The appellant has alleged to have committed forcible sexual intercourse with Mst. Ifra Atta, a minor daughter of the complainant Atta Muhammad (PW-8) on 02.04.2013 when she was present in the school after closing hours.
Muhammad Boota S.I. carried out the investigation, got conducted medico-lega l examination of the victim on 03.04.2013 and recorded the statements of the witnesses under Section 161 Cr.P.C. He arrested the appellant on the same day, got conducted his potency test. He recorded the statement of the victim on 12.04.2013 after getting permission from the Medical Officer and upon conclusion of investigation found the appellant involved in this occurrence.
4. At the commencement of the trial, learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
5. The prosecution produced 11-witnesses. The appellant in his statement recorded under Section 342 Cr.P.C., had denied and controverted all the allegatio ns of fact leveled against him. He did not opt to make statement under Section 340(2) Cr .P.C., however he produced two witnesses in his defence.
6. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant as stated above.
Hence, this appeal and the connected criminal revision.
7. I have heard learned counsel for the appellant, learned District Public Prosecutor appearing for the State assisted by the learned counsels for the complainant and perused the record.
8. Atta Muhammad (PW-8), complainant/father of victim Ifra Atta runs the law in motion while stating that her daughter Ifra Atta was studying in second class at Government Girls Primary School, Mangu-T aru. On the fateful day, she did not return till 03:15 p.m., he fell worried and reached her school alongwith one Waris but she was not available there. When they reached near the back side of the wall of the school, they heard shrieks and weeping and saw over the wall that the appellant was committing rape with his daughter in the field. He alongwith Waris while scaling over the wall proceeded towards the place of occurrence, the appellant made a fire shot with his pistol and made his escape good. They attended the victim, who was lying smeared with blood, took her on the roadside, made a call for vehicle and while boarding in the car they took her to the police station. Thereafter , in the company of one constable they took the victim to Rural Health Center Natha, then District Headquarter Hospital, Nankana Sahib where she was provided first aid and referred to Lahore. After admission of the victim in the Children Hospital, Lahore he came back and got recorded his statement to the police. Ifra Atta (PW-9)/victim aged about 08- years had deposed the circumstances stating therein that on 02.04.2013 when she came at the main-gate of the school uncle Mujahid Islam (appellant) was present, "present before me in the Court", was standing there. He asked her to give "bair" and took her to the backside of the school, took out his pistol, she started weeping, he threatened to kill her in case of weeping, then he removed her Shalwar as well as his own Shalwar and after lying her down on the ground, committed rape with her. She felt pain, bleeding started and cried due to pain but the appellant slapped her. In the meanwhile, her father and uncle came there, the appellant took out his Shalwar and pistol and while threatening his father made an ineffective fire shot and succeeded to flee away from the place of occurrence. Her father took her to the hospital where she was operated 5/6 times and then she came back to her house. She was still feeling pain and had to go for urination time and again due to that very reason and was constrained to wear pampers. Both the eye witnesses were cross-examined by the defence at full length but they remained consistent inter-se and supplemented each other in minute detail of the incident qua time, date, place, mode and manner of the occurrence, the identity of the appellant and his role for committing rape with the victim.
9. Learned counsel for the appellant has sought acquittal on following points:- i. The complainant got registered the case with the delay of 7/8 hours, which was an afterthought story and possibility cannot be ruled out that the same was lodged after deliberation and consultation. ii. The case was registered against one Zahid alias Zahidu whereas the appellant' s name was Mujahid Islam. The appellant being resident of the same locality , near to the house of the complainant and his misidentification as to the name creates some doubt. iii. Report of Punjab Forensic Science Agency had been received with negative result. iv. The appellant took a specific plea of alibi, which remained un-attendant by the trial Court. v. At the time of medical examination of the victim she had given the history of rape that when she left the school, a boy caught hold of her and while putting his hand on his mouth took her aside and committed Zina with her and due to excessive bleeding she cried and one women rescued her .
10. The point-to-point findings are that:-
(i) The complainant and one Waris had seen the appellant committing Zina with the complainant' s minor daughter , she was smeared with blood, they took her on the road, called a taxi and straightway proceeded to the police station without any further delay . Therea fter, in the company of one constable they took the victim to the Rural Health Center Natha then to District Headquarter Hospital Nankana Sahib and then due to her critical condition, she was referred to Children Hospital, Lahore. The delay , in such state of affairs, was neither fatal for the prosecution nor any beneficial for the defence. The complainant got lodged a Rapt No.12 (Ex.DD) on 02.04.2013 at 05:20 p.m. prior to his proceedings to the hospital, which shows that he brought the victim to the police station on the same day with the allegation that at about 04:00 p.m. she was about to leave for home after closing of the school, one Zahid son of Basharat resident of "Deh" had committed Zina-bil-jabar with the victim. The wording of this Rapt recorded by the Moharrir was exactly identical as alleged by the complainant in the crime report. From bare reading of the said rapt, which was recorded at 05:20 p.m. on the same day, shows that the question of delay in reporting the matter to report for getting some legal assistance exists nowhere.
(ii) The appellant urged a question that the original rapt and the crime report was registered against one Zahid alias Zahidu, whereas the appellant's original name was Mujahid Islam. It has been observed that the appellant was resident of the same village, same area and Mohallah and both the parties were known to each other since birth. It is quite common that some people in our society are known with different names other than the names mentioned in the documents, which is Childrenly not known to the public. The appellant was well-identified by the victim while making statement before the trial court that he was the only person, who had committed forcible sexual intercourse with her. The complainant made statement before the learned trial court that he raised objection before the police that the name of the appellant was written as Zahid alias Zahidu instead of Mujahid Islam and the police assured him to correct the same, he moved application in that regard however, he clarified that the appellant and his father had 3/4 nick names. The name of the appellant was mentioned as Mujahid Islam alias Zahid alias Zahidu in the documents prepared during investigation, at the time of framing the charge by the trial court and thereafter the appellant himself mentioned his same name in his statement recorded under Section 342 Cr.P.C. In such a scenario when every document reflects the appellant's name as Mujahid Islam alias Zahid alias Zahidu then the question does not arise to make any objection that why the appellant was named in the crime report only with nick name. There is no doubt in my mind rather there is a clarity after perusing the entire record that Mujahid Islam was the person who was called with the name of Zahid alias Zahidu.
(iii) Dr. Uzma Rana, WMO, (PW-4) conducted the medical examination of the victim on 02.04.2013 at 07:55 p.m. and observed that the victim's shirt and Shalwar both were heavily blood-stained, she was confused and very depressed at the time of her examination. She observed (i) A lacerated wound measuring 3 x 1.5 cm at the junction of labia majora on lower side extending towards the anus, (ii) Tears, laceration, abrasions, swelling were present at the private parts, (iii) Hymen was badly rupture and there was heavily vaginal bleeding with clots. Four vaginal swabs were taken from the vagina, three for chemical examiner and one for DNA test. The internal injuries could not be assessed due to excessive bleeding from vagina. The patient was referred to Children Hospital, Lahore due to her precarious condition. After receiving operation notes of the victim, she observed that as per operation notes, from Pad's Wards surgery from children Hospital, Lahore there was lot of damage extending from anal verge to cervix including laceration lot of mucosa and presence of lot of blood, which declared as extreme of crime. In such condition of a baby girl, how it could be believed that no rape was conducted with the victim while relying on the negative report of the Chemical Examiner.
(iv) Learned counsel for the appellant submits that undoubtedly, the victim was raped in a brutal manner but the appellant was not the person, who had committed the offence, there may be someone else and during cross- examination to the victim and her father the defence put the suggestion that one Naveed, a cousin of the victim was actual offender but the complainant involved the appellant in this case falsely just to save the skin of said Naveed. This argument has no substance. The appellant was the sole perpetrator against whom the victim herself and her father raised finger and none else. Even there was no occasion for the complainant to falsely implicate the appellant in a case of family honour and where the future of a young baby was at stake.
(v) Learned counsel for the appellant has diverted the attention of this Court towards the appellant' s plea of alibi while relying upon the document Mark-A i.e. the roll number slip showing that the appellant was appearing in annual examination of the Board of Intermediate and Secondary Education, Lahore at Center "Government Higher Secondary School Mod Kunda (Nankana Sahib)" and on the fateful day he had to appear in the examination of Subject (Pakistan Studies) and the time mentioned therein was 01:30 to 03:30 p.m. but surprisingly the said document had never been produced by the appellant before the Investigating Officer to verify the factum as to whether he had appeared in the examination or not. If it was so, it would have been easier for the Investigating Officer to verify from the center and record the statement of examiner/invigilators qua the appellant' s arrival in the center and time of leaving the school. There were many factor which could have brought on record to paint the clear picture with regard to the appellant' s participation in the crime or his innocence. Learned counsel for the appellant though had produced a photo copy of provisional result intimation showing that the appellant had obtained 11 marks in the said paper . I have gone through the result card, which shows that the accused/appellant had obtained 03-marks in Urdu, 04-Marks in English, 04-marks in Islamiyat, 11-marks in Pakistan Studies, 12- marks in Children Mathematics, 04-marks in Children Science, 07-marks in Adva nced Islamiyat Studies and 04- marks in Punjabi . Meaning thereby , if for the sake of arguments the appearance of the appellant is admitted, even then the student is always allowed to leave the examination center after half an hour from the initial time and the distance between the place of occurrence and the examination center was hardly 4/5 kilometers, which was not far away to make the alleged offence impossible. I am aware of the fact that this photocopy of result intimation has no evidentiary value at all but if it is taken into consideration, even then the documents of roll number slip (Mark-A) and photo copy of result intimation get no favour for the appellant and the same are not sufficient to discard the eye witnesses especially the victim with whom this brutal act had been committed by the appellant.
(vi) Learned counsel has argued that the victim herself given the history of rape before the Medical Officer that one boy took her aside and committed Zina-bil-Jabr with her, due to pain she cried and when there was excessive bleeding, a woman came there and rescued her but the accused fled away. In that regard specific questions were put by the defence itself and the victim clarified the actual position while stating that "lady doctor medically examined her at District Headquarter Hospital, Nankana Sahib. I could not record statement before the doctor.
Volunteer stated doctor obtained my thumb impression and due to pain I could not record anything before the Medical Officer in which I have not named accused Mujahid Islam as culprit". In reply to another question she deposed that it was not remember to her as to how many days her father remained with her at the Children Hospital, Lahore because she was not in her senses. She had also shown ignorance that after how many days she regained her senses. In such critical condition when the Medical Officer had stated that there was profusely bleeding and due to her medical condition she was referred to Children Hospital, Lahore then how it could be said that she had narrated said history, which is being taken as shelter by the defence.
11. Learned counsel for the appellant has further pointed out that the victim got recorded her statement belatedly after about 10-days of the occurrence, which speaks volume with regard to its sanctity . This fact was clarified by Muhammad Boota S.I. (PW-11) while deposing that he visited Children Hospital, Lahore for recording the statement of the victim on 05.04.02013 but he was not permitted by the doctor because she was not in a position to make statement and then once again, he visited Children Hospital, Lahore on 12.04.2013 for seeking permission, which was allowed and he recorded her statement through application Ex.PM. This show s that it was beyond control of the victim to make statement on the day of occurrence.
12. This should not be lost sight of the fact that learned Judge, who tried the case has mentioned in Paragraph No.25, at page No.13 of the judgment impugned that "It is pertinent to mention here that when ever accused and the victim appeared jointly in the Court, victim started weeping and she became so frightened that she took refuge on the back side of her mother". This observation of the learned Presiding Officer conducting the trial, clearly depicts the mental condition of the victim due to the act of the appellant faced by her in this occurrence.
13. Having looked into the evidence from four corners, I am of the considered view that the prosecution has been able to prove the charge against the appellant through cogent, reliable and confidence inspiring evidence. Both the eye witnesses including the victim herse lf are quite natural and straightforward raising their finger towards none else but the appellant being a sole perpetrator . In such like cases of a single accused substitution is always considered to be a rare phenomenon. It is tradition of our society to conceal such like offences, as it is difficult to approach the police station while taking the minor girl in the lap smeared with blood with the allegation of rape committed by some body to take the stigma forever not only for the family but also damaging the future of a minor girl. The ocular account is supported with the medical evidence. The appellant crossed the limits ascribed by Allah Almighty , in a brutal manner and does not deserve any sympathy of this Court. While going through the evidence from the four-corners, I have no legitimate exception to differ with the opinion arrived at by the trial Court qua the conviction and sentence of the appellant.
14. For what has been discussed above, the appeal in hand is devoid of any force, the same stand dismissed. Crl. Revision No.471 of 2014
15. For the reasons recorded hereinabove, the criminal revision in hand is without any merit, the same stand dismissed in limine.