AALIA NEELUM, J:- The appellant-Muhammad Mushtaq son of Seraj Din, caste Lohar , resident of Mauza Sangat Singh Wala Tehsil & District Kasur , was involved in case F.I.R. No.464 of 2011, dated 26.06.201 1, offence under Section 376 P.P.C., registered at Police Station Kot Radha Kishan, District Kasur and was tried by the learned Sessions Judge, District Kasur . The learned trial court seized with the matter in terms of judgment dated 13.06.2013 convicted Muhammad Mushtaq (the appellant) under section 376 PPC and sentenced him to undergo twenty five years rigorous imprisonment with the direction to pay Rs.1,00,000/- as fine. In case of default in payment thereof, to further undergo simple imprisonment for a period of 06-months. The benefit of section 382-B Cr .P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Mushtaq, the appellant has assailed his conviction through filing instant jail appeal bearing Criminal Appeal No.314-J of 2013.
3. The prosecution story as alleged in the F.I.R (Ex.PB/1) lodged on the application (Ex.PB) of Muhammad Younas (PW-4)-the complainant is that on 26.06. 2011 at about 10:30 a.m., he (PW-4) was present in his house. Karamat Ali (PW-6) and Muhammad Yasin (given up PW) came to his house. The complainant (PW-4) sent his daughter Mst. Shabana (PW-5) victim aged about 10 years to bring bottles from the grocery shop of Mushtaq (the appellant), but she became late on which, he (PW-4) himself went behind her and he heard shrieks of her daughter from the residential room of Mushtaq, whereupon the complainant (PW-4) raised alarm, which attracted to Karamat Ali (PW- 6) and Muhammad Yasin (given up PW). When they entered the room of Mushtaq, they saw that Mushtaq (the appellant) was committing Zina bil jabar with Shabana (PW-5)-victim, who fled away from the spot. The complainant and PWs stepped forward and found Shabana naked and smeared with blood.
4. After the occurrence, the complainant (PW-4) went to police station and submitted application (Ex.PB) before police for registration of FIR. On the basis of application (Ex.PB), Muhammad Saleem S.I. (PW-7) chalked out formal FIR (Ex.PB/1).
5. Thereafter , investigation of this case was entrusted to Umer Farooq S.I. (PW-9), who being Investigating Officer visited the place of occurrence and prepared un-scaled site plan (Ex.PG). Thereafter , he (PW-9) arrested the accused on 26.06.201 1 and took into possession Shalwar (P-1) of the accused through recovery memo (Ex.PC) in presence of private witnesses. On the same day, the investigating officer (PW-9) drafted application (Ex.PH) regarding medical examination of victim Shabana and sent the victim to DHQ Hospital, Kasur through Muhammad Aalam 846/C (PW-2). He (PW-9) also moved application (Ex.PJ) for medical examination of accused on 07.06.201 1. On 25.08.201 1, the investigating officer took accused and victim to Forensic Science Laboratory Lahore for DNA test.
6. Having found the accused/appellant guilty, the Investigating Officer (PW-9) prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 20.10.201 1, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as nine (09) prosecution witnesses.
7. Ocular account of the occurrence in this case has come out from the statements of Muhammad Younis (PW- 4)/complainant, Shabana Bibi (PW-5) and Karamat Ali (PW-6), whereas lady Dr. Muneeza Taseer , W.M.O. (PW-8) who medically examined the victim-Shabana gave the following opinion:- In her opinion, in the light of report of Chemical Examiner and report of DNA, recent history of coitus is proved.
The statements of remaining prosecution witnesses are formal in nature.
8. On 10.04.2012, the learned Deputy District Public Prosecutor gave up PW-Muhammad Yasin as being un- necessary , whereas learned Deputy District Public Prosecutor closed the prosecution evidence on 09.04.2013.
9. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he neither opted to appear as his own witness in terms of section 340(2) Cr.P.C. nor opted to produce any evidence in defence. In response to a particular question that why this case was against him and why the PWs deposed against him, the appellant made the following deposition:- "I am innocent. Muhammad Akram is my nephew (Bhanja), he is employee in Elite police force. Amjad is brother of complainant and Azra is his wife. Amjad is also labourer by profession. Azra Bibi is a lady of bad character she has illicit relations with other person. My brother alongwith Barkat Jatt had seen Azra Bibi with a person in objectionable condition on which Azra Bibi felt insult and some altercation had taken place between them. As a matter of fact on the day of occurrence, Farzana victim had gone with her mother and other females to pick up vegetables from the fields where unknown person had committed Zina bil Jabar with her. Said Azra Bibi had taken the advantage of his rape and she has falsely implicated me in this false case. I am innocent. I did not commit any offence. "
10. The learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution versio n proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
11. The complainant present in person has submitted that he does not want to engage his counsel and he will be satisfied, if learned law of ficer argues case on his behalf.
12. I have heard the arguments advanced by the learned defence counsel for the appellant as well as learned Deputy Prosecutor General and have minutely perused the record available on the file.
13. The FIR of the case was lodged on the same day i.e. 26.06.201 1, wherein the accused was named with specific role. There is nothing on the record to doubt the authenticity of the FIR (Ex.PB/1). At the time of incident, Shabana Bibi (PW-5)-the victim was wearing qameez and shalwar and having dopatta. Shabana Bibi (PW-5)-the victim has specifically stated that accused removed her 'shalwar' and committed rape on her. Muhammad Younis (PW-4), father of the victim, stated that when they entered the room, the accuse d was busy in committing rape forcibly with his daughter . His (PW-4) daughter was lying there in naked condition and blood was oozing out from the vagina. Shabana Bibi (PW-5)-the victim stated that she raised hue and cry but the accused did not restrain from his bad action. The accused left her (PW-5) in naked position stained with blood and fled away . Definitely , she had worn the same 'shalwar' without washing herself immediately after the act. It is, therefore, quite possible that her clothes were stained with semen. This is not a case where the prosecuting agency can be charged of having concocted evidence against the accused. This court has taken notice which has not been disputed by the defence, is that the victim or the prosecution witnesses do not have any motive to make a false accusation against the accused, that too with the charge of rape at the risk of victim's and family honour. Besides, there was no time or occasion to manipulate semen stains on victim's clothes and that too of the accuser's group. Shabana Bibi (PW- 5)-the victim clothes were sent for chemical analysis and DNA by Lady Doctor Muneeza Taseer, WMO (PW-8) on 26-06-2011. The report of the chemical examiner (Exh.PD) shows that her clothes were stained with semen. The semen found on victim's clothes and accused shalwar was of group of the accused, vide Exh.PE. The finding of semen tends corroboration, if corroboration is at all needed to the version of the victim.
14. The evidence of Lady Doctor Muneeza Taseer , WMO (PW-8) shows that she had taken the vaginal semen on 26-06-2011 at about 08:30 a.m., whereas, medical examination report (Ex.PF) reveals that she (PW-8) had taken the vaginal semen on 26-06-2011 at 10:00 a.m. almost after shot span of time. As per medical science spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. The appreciation of the materials in rape cases is quite different from the appreciation in normal criminal cases. The observations made and noted by Lady Doctor Muneeza Taseer, WMO (PW-8) during medico legal examination of Shabana Bibi (PW-5) clearly make out the victim having been subjected to rape. The victim has spoken of rape committed upon her, in her statement. Lady Doctor Muneeza Taseer, WMO (PW-8) stated in her statement that victim was wearing red and yellow qameez and shalwar, white printed dopatta. Clothes were blood stained. She (PW-8) also observed multiple reddish abrasions present in pre-hymeneal area; hymen ruptured, posterior fresh, bleeding present. In the cross examination Lady Doctor Muneeza Taseer, WMO (PW-8) deposed that:- "I do not tell the exact time of rupture of hymen. However bleeding is presen t. No clothes were produced by the victim separately before me. Swabs which were taken by me same were handed over to the police for chemical office for determination of semen."
It is true that time of incident varies in the instant case but that by itself does not negate the prosecution case.
Further, it is to be noted that after short span of the time of the incident, medical examination of the victim and accused was conducted and DNA report is positive. Since this is a rape case, it is necessary at the outset to find out as to what is medical evidence and medical evidence in the instant case corroborates the evidence of the victim.
15. It was one of the main contentions of the learned counsel for the appellant that there are important omissions in the evidence of Muhammad Younas (PW-4), Shabana Bibi (PW-5) and Karamat Ali (PW-6). Whether the incident took place in residential room or shop of accused Mushtaq is concerned, from the prosecution evidence, it is established that the alleged rape has taken place in the residential room of the accused-Mushtaq adjacent to the shop. It is necessary to be clarified that this fact was mentioned in the FIR and similarly deposed by the victim (PW- 5) that on hearing the shrieks of the victim coming from the residential room of the accused, they entered into room. Therefore, according to them door was not bolted. Shabana Bibi (PW-5) deposed during cross examination that "The accused did not bolt the door of the room where he committed rape with me he however closed the same. The outer door was opened however , the inside door of the room was closed where occurrence took place with me by the accused. " Rest of the omissions and contradictions pointed out in the evidence of the prosecution are not on very important aspects but are minor in nature. Basic facts given by the victim (PW-5) were not shaken in the cross-examination. I, therefore, find the statements of the prosecution witnesses reliable.
16. A girl or woman in our social setup will not normally make false allegations of sexual assault. Because, a woman in the tradition bound non-permissive society would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame. It is not disputed by the defence that rape was not committed on the victim.
17. For the reasons stated above, none of the grounds urged by the learned defence counsel for the appellant, in my view, would deserve acceptance. In my considered opinion, the testimony of Shabana Bibi (PW 5) is cogent and credible not only due to her social background but also due to the fact that her version has been clearly corroborated by the other materials.
18. As far as contention of the learned defence counsel for the appellant that the appellant is first offender , therefore, he deserves some leniency qua awarding the sentence is concerned, I, can only say that when a person commits such a serious crime of rape on a young girl of nine years, there is no room for sympathy or pity. The punishment must in such cases be exemplary . I, therefore, do not justify in reducing the sentence awarded by the trial court to the appellant which is not harsh. In the opinion of this court, the trial court had adopted a correct approach and had properly evaluated the evidence. In view of what has been discussed above, this court finds no merit in this appeal, which is hereby dismissed.