MALIK HAQ NAWAZ, C.J.--- The appellant stood trial for the offences under sections 376, 377, 354-A, 337-A, P.P.C. read with sections 6/7 of Anti-T errorism Act, 1997 vide FIR No.01/2017 of Police Station Mehdiabad. The brief facts of the case have been highlighted in FIR No. Ex. PW-2/A, which finds mentioned in the impugned judgment/order of learned trial Court dated 31-07-2017, which are re-produced as under:- "Briefly stared the prosecution story is that Kacho Nasir Hussain SIP/SHO of Police Station Mehdiabad, District Kharmang has registered FIR ET. PW-2/A on the written application Ex. PW-1/A submitted by complainant Ghulam Muhammad son of Haji Hussain resident of Zahoq Madhupur , District Kharmang, wherein it has been stated that, "Stated that today on 8th March, at 1400 hours the occurrence took place when my grand daughter Miss Seher Banu daughter of Ghulam Abbas residen t of Zahoq whose is a child of about 8 years and was studying in Girls Primary School Zahoq Madhupur . At 1400 hours, after the school was off, Hamid Hussain son of Mehdi resident of Zahoq Madhupur forcefully took her to the school inside the side room and committed Zina Bil Jabar (Rape) due to which the said child is smeared in blood. Accused Hamid Hussian closed her mouth by putting his hand and treated her extremely callously . Therefore, legal action may be taken as per procedure." After registration of FIR Ex. PW- 2/A, the investigation of the instant case was entrusted to Investigation W ing."
2. After completion of investigation the challan of the case was submitted in the Court for trial. The charge of the convict/appellant was framed on 19.04.2017, to which he did not plead guilty and claimed trial. Prosecution examined 12 PWs and the learned District Public Prosecutor tendered in evidence the DNA report, which was exhibited in the trial Court as Ex. PW-12/E. On conclusion of trial the learned trial Court examined the accused under section 342, Cr.P.C. on 16-06-2017, in which he did not took any specific defence nor examined himself under section 340(2), Cr.P.C. The arguments were heard on 08 07-2017. On 31-07-2017, the verdict of guilt was announced against the convict/ appellant.
3. The relevant portion of judgment, wherein the convict/appellant was convicted and various punishments were awarded under dif ferent provisions of law is reproduced as under:- "In the light of the discussions made in my detailed judgment, I hold that the prosecution has proved the guilt of the accused Hamid Hussain for committing Zina Bil Jabar and causing injuries to Miss Shere Banu (PW3), hence, I convict accused Hamid Hussain under section 376, P. P. C. read with section 7 of the Anti-T errorism Act-1997 and sentence him to undergo rigorous imprisonment for 25 years and fine of Rs.100000/- (Rupees one hundred thousand only). Accused Hamid Hussain is also hereby convicted under section 377, P.P.C. and sentence him to imprisonment for 10 years and fine of Rs.50000/- (Rupees fifty thousand only). Accused Hamid Hussain is also convicted under section 337-L, P.P.C. and sentence him to imprisonment for 2 years and daman of Rs.100000/- (Rupees one hundred thousand only) to be paid to the victim Miss Seher Banu."
4. Being aggrieved from the above judgment/order of conviction, the convict/ap pellant filed instant Cr. Appeal bearing No. 34/2017, which came for hearing before this Court today .
5. The learned counsel for the appellant submitted that the conviction order passed by the learned trial Court is illegal, incorrect and against the available record. There are material contradictions in the statement of the prosecution witnesses, which aspect of the case went un-noticed and caused miscarriage of justice. Per learned defence counsel, there is an unexplained delay of about 19 hours in lodging the FIR. The statement of the appellant under section 21-H of Anti- Terrorism Act, 1997 was recorded on 27- 03-2017, after a long detention of the appellant over a period of 19 days , which is not only illegal but also unwarranted and not admissible in evidence. No reasons have been advanced by the prosecution for non production of the appellant before a Judicial.
Magistrate for recording of his statement under section 164, Cr.P.C. Per learned defence, the medical examination of the victim was conducted by a Lady Health Visitor. The said Lady Health Visitor has contradicted the case of prosecution on almost all martial points and her statement was wrongly relied upon by the learned trial Court. The medical reports and DNA reports are all fabricated and the local police made all possible efforts to falsely involve the appellant in the commission of of fence and introduced some fabricated evidence in the case.
6. On the other hand the learned Dy. Advocate General submitted that the appellan t is nominated in the FIR for the commission of offence with a minor of girl of 08 years. The statement of the victim in the Court remained consistent and defence despite a lengthy searching and laborious cross-examination could not shatter the witnesses. The medical evidence exhibited in Court as PW-5/B is also in line and DNA laboratory being positive is a strong piece of evidence. Per learned Dy. Advocate General the accused confessed his guilt unde r section 21-H of Anti-T errorism Act-1997, which when read with other available evidence, strongly connect the appellant with the commission of crime. The site plan was prepared on the pointation of the accused in presence of a Magistrate and exhibited in the trial Court as Ex. PW-7/A which is also fully in line with the prosecution evidence. Lastly that the appellant committed a heinous offence, and the offence, when came public created a terror and panic in the area especially among the parents of school going children which attracted the provisions of Anti Terrorism. Lastly that the judgment handed down by the learned trial Court be maintained.
7. We heard both the learned counsel of the respective parties at a considerable length and gone through the entire material available on record, with the able assistance of learned defence/ State counsel.
8. The appellant is directly charged in the FIR for commission of the offence and the victim namely Seher Bano when appeared in the trial Court as a PW-3 has fully supported the prosecution case. Her age at the time of occurrence was about 8 years and she was student of 1st class. Before recording of her statement in the Court, the learned trial Court put certain questions to her and after being satisfied that the child witnesses is fully capable to depose in court, recorded her statement in the Court. The examination in chief of the victim (PW-3) Sher Bano, PW-4 Mst. Masooma, (her mother) and PW-6 Mst. Fizza, LHV of Civil Hospital Mehdiabad are reverent, which are reproduced as under:- PW-3 Sheher Banu: [Court Note: Before recording the statement of the minor victim Sheher Banu, she was put certain questions, to which she replied correctly and I am of the firm view that the minor is capable of giving correct evidence' as she fitly understands, however she if finding it difficult to use Urdu as such, Mr. Ghulam Ishaq, LDC of the Anti-T errorism Court No.11, Gilgit-Baltistan is declared as translator to translate the statement of the victim from Balti language to Urdu language. Mr. Ghulam Ishaq, LDC was also given Oath. The learned defence counsel stated at bar that he can understand Balti language; as such he has no objection].
PW Sher Banu stated that, "1 am student of class 1. On the day of occurrence on 08-03-2017, when the school was off, I as usual came out of the Girls Primary School Madhupur with the story book in my hand, in the meanwhile, my neighbor Hamid Hussain 'son of Ghulam Mehdi took the book from my hand and started reading the book. I stood there waiting to take back my book. When the other girls went from there, Hamid Hussain lifted me and took me to the school by scaling the wall and took me to one of the rooms of the school, forcefully undressed my trouser and then laid me down on the ground and committed Zina-bil-Jabbar with me. During zina- bil-Jabbar , I felt severe pain, I started weeping and crying loudly . Hamid Hussain closed using chador and his hand closed my mouth. After the sexual torture, he took me outside by scaling the said wall and also gave me a note of Rs.10 and threatened me not to tell anyone and left me there. [Court Note: At this stage, the victim Miss Seher Banu while weeping, pointed towards the accused Hamid Hussain present in Court and stated that he is the one who has committed Zina-bil-Jabbar with her. She further stated that the accused is her neighbor and she already knew him].
From there, I went weeping towards home and told my mother and maternal grandfather about the incident who took me to Police Station and from Police Station, they took me to Hospital."
PW-4 Mst. Masooma, stated that, "On the day of occurrence, I was present in my home. On 08.03.2017, my victim daughter Miss Seher Banu has gone to Primary School Madhupur . It was after 02:00 P.M., that 1 heard the weeping voice of my victim daughter . I rushed towards her. I inquired from her what happened. She told me that accused Hamid Hussain has forcefully committed Zina-bil-Jabbar . I saw that blood was oozing and her shirt and trouser were stained with blood. 1 took my victim daughter and narrated the same to my father Ghulam Muhammad. Thereafter , 1 and my father took the victim Seher Banu to Police Station. From Police Station, my father and I along with Police taken Miss Seher Banu to Civil Hospital Mehdiabad for medical checkup."
PW-5 Dr. Muhammad Wazeer Sadiq, stated that, 1 am performing my duties as M. 0. in Civil Hospital Kharmang since 2009, On 8th March, 2017 victim Sheher Banu was brought before me by the local police along with injury sheet Ex. PW-2/B. there is no lady medic al legal officer In the entire District Kharm ang. Since the condition of the victim Seher Banu was worsening due to bleeding and pain while the mother and the maternal grandfather were reluctant to take the victim to another district due to risk and fear of life and the mother and the maternal grandfather of the victims submitted appli cation Ex. PW-5/A, as such, I called senior LHV Mst. Fizza who was also serving in Civil Hospital Mehdiabad. In my presence, on my direction and medical guidance, the senior LHV Mst.
Fizza medically examined the victim behind the screen/ curtain. The LHV examined and told me the injuries/observations which I reduced into writing in Ex. PW-2/B, the observations/ examination contained in injury sheet Ex. PW-2/B bear my signature and its contents are correct. I also examined accused Hamid Hussain through examination from Ex. PW-2/C. the observations which I found immediately after the occurrence on the body of accused Hamid Hussain which I have written in Ex. PW-2/C are true and correct. The examination from Ex. PW- 2/C bears my signature and it is correct. During the examination, I handed over the trouser , shirt and vest (Baniyan) of victim Miss Seher Bantt, blood sample of both victim and accused and seems sample of accused to police, I prepared Medical Examination Report Lx. PW.S/B containing 3 pages. The Medical Examination Report Ex.
PW.S/B bears my signature duly countersigned by DHO Kharmang and its contents are correct"
9. The above, reproduced statements show that the statements are quite in line with each other and the witnesses deposed in the trial Court in natural mann er, without any material improvement/ exaggerations. The statements of these PWs are further supplemented by PW-5 Dr. Muhammad lqbal, who stated that due to non availability of a lady Doctor in the hospital and the conditi on of the victim, there was no alternate except to get medical examination of the victim through, available LHV as an urgent medical treatment was needed. The mother/grandfather of the victim refused to take the victim to any other hospital of any other District due to risk and fear of life of the family . As evident from the statement of the medical officer no option was left with him to get examination of the victim through an available Lady Health Visitor. It is pertinent to mention here that an application in this regard submitted by mother/grandfather of the victim that they are not willing to shift the victim to any other hospital of any other District is also available on record.
10. The Medical examination of the victim Exh.PW -5/B is also in line with the prosecution evidence and fully supported the version of the victim girl. The Medical examination report reflected that the victim was in school uniform at the time of her medical examin ation further strengthen the stance of the victim and other PWs, that she was raped by the accused, while she was to leave school after closing of school . The conclusion of the medical report is as under:- "Conclusion: Chemical examination report result still awaited. In the light of medical examinations, I can say that this eight years old girl forcefully vaginal and anal region by a young adult. "
11. As evident from letter No. DHOKHR-18(12)/States/2015 dated 08.03.2017, one trouser (Shalwar), Urine test, urethral swab two samples were sent to chemical examiner Forensic Science Lab, Government of KPK, Hayatabad Peshawar . Likewise the sample of Shalwar/ Qamiz of victim, some pieces of cement and soil, stained with blood, Shalwar of accused Hamid Hussain and blood samples were sent to Project Director National Forensic Science Islamabad for expert opinion. The result of DNA profile has been produced in the judgment of learned trial Court, which is also re-produced for ready reference.
"Results and conclusion."
"The human semen identification test result of ABA card p30 test for shalwar of Shahar Bano (01-A0596-1A) was found positive."
A DNA profile was identified in epithelial fraction of sample shalwar of Shahar Bano (01-A0596-1A) which can be interpreted as a human female DNA profile. The profile identified, matched the DNA profiled identified in sample blood of Shahar Bano (01-A0596-4).
A DNA profile was identified in sperm fraction of sample shalwar of. Shahar Bano (01-A0596-1A) which can be interpreted as a human male DNA profile. The profile identified fin sample blood of Hamid Hussain (01-A0596-5).
A human male DNA profile was identified in sample shalwar of Hamid Hussain (01-A0596-3B) which matches the DNA profile identified in sample blood of Hamid Hussain (01 1 A0596-5).
A mixture of DNA profile was identified in sample piece of cement containing blood stain (01-A0596-2). Mixture can be interpreted as a DNA profile and a minor partial DNA profile. The major DNA profile, which matches the DNA profile identified in sample blood of Shahar Bano (01-A0596-4). The minor partial DNA profile can be interpreted as a human male DNA profile which matches (he DNA profile identified in sample blood of Hamid Hussain (01-A0596- 5) on said loci"
12. The DNA analysis report Ex-P A is a strong piece of corroboratory evidence, Needless to say that in the cases of "rape" there is no legal requirement of any further corroboration if the statement of the victim is natural and convening. In the instant case, there is not an iota of doubt in our mind that either the story has been tailored by the prosecution or over exaggerated to falsel y implicated the accused in this heinous crime, which ruined the life of a minor school going girl. She will bear this stigma for all the time to come till her last breath. In our society such unfortunate events are exploited for all the time to come and life of the victims of such crimes and their families are made miserable for decades.
13. In view of above detail discussions, we are of the view, that prosecution has successfully proved the case against the appellant beyond any shadow of doubt. Each and every piece of prosecution evidence is solid and supportive in pitch and substance. The appellant was rightly convicted by the learned trial Court and we maintain all the sentences awarded to him by the learned trial Judge.
14. The case came for hearing before us on 16.09.2019. The learned counsel for the, convict/appellant raised a preliminary objection that both the pauper counsels engaged on State expenses to defend the convict/appellant were not eligible to defend the accused, as they were lacking the basic criteria of seven years practice, which was a pre-requisite as provided under section 18(8) of Anti-T errorism Act. The learned counsel in support of his contention relied on PLD 1986 Lahore 115, 1997 MLD 1130 (Lahore), 1997 MLD 1632 (Karachi) and 2010 PCr.LJ 812 (Lahore).
15. We carefully and minutely examined the law cases, which are not applicable in the instant case and the above judgments have been rendered in different scenarios. Section 18(8) of ATA though provides that the counsel provided to the accused should have 7 years experience at bar. Section of law does not expressly provide that non compliance of above section would result into vitiating of trial. Even otherwise the standing of a lawyer at bar does not and should not made him entitle for appearing as a defence counsel, if this proposition is accepted then all the practicing lawyers having less than 7 years practice would be debarred to conduct trial in Anti- Terrorism Court.
Only standing at bar should not be criteria as the competency varies from man to man and some young lawyers, while appearing in Court, assist the Court much better with certain new developments taking place in legal sphere. The cross-examination conducted by both the lawyers shows that they tried their level best to defend the accused. The contentions that trial of the accuse d was not properly conducted is not tenable in the eyes of law. In our considered view no prejudice has been caused to the accused in his trial and any irregularity committed during trial is curable under section 537, Cr.P.C. The Chief Court is competent to cure any irregularity/ illegality committed during trial, while hearing an appeal and we in given circumstances of the case do not attach much weight to the contentions of the learned counsel for the appellant regarding inadequate experie nce of learned defence counsel, who conducted the trial of the accused.
16. There is no merit in the case, which is dismissed accordingly .