1. ' This is a reference by the District Criminal Court, Muzaffarabad under section 23 (2) of the Islaami Tazeerati Act as there had been a difference of opinion between the member of the said Court while disposing of the case challaned by the police against the accused Abdul Latif Shah under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance. The learned Sessions Judge convicted Abdul Latif Shah under section 10 (3) of the said Ordinance and sentenced him for the offence of rape to two years' rigorous imprisonment and was also awarded the punishment of whipping numbering 30 stripes. The District Qazi passed an order of acquittal of the accused.
2. ' The facts of the case were elaborately given by the trial Court in their orders of disposal of the case and so they need not be reproduced herein in proxility-longueur vide orders of the trial Court dated 5-10-1981. However, a brief account of the facts to understand this order, on its face, to be made are that on 9-9-1980 Mst. Safiea Begum, the victim was all alone in a way at her house as no adult male or female member of her family was prescat therein. Her mother Mst. Begum Jan and brother Muhammad Shafi P. Ws. Had gone to the fields in order, to cut grass. At about 10 a.m. Her mother returned as rain started to pour. The son also followed the mother soon after for this very reason.
3. ' The mother on reaching the house found Mist. Safiea Begum absent from there who was told by small children that she had gone to the house of Abdul Latif Shah alongwith him. This struck the mind of the mother, who left for the house of Latif Shah. She on her way while nearing the house of the accused heard her daughter crying in the house of the accused. She reached the house when on opening the door went inside, and found that Abdul Latif Shah accused was busy in committing bad act (rape) with the small girl who was about 11 years of age. She separated him from the girl.
4. The trousers of both were found taken off. Muhammad Shafi also followed her mother to the house of Abdul Latif Shah where he found the girl victimized and who was again followed by Muhammad Farid. Both of them found that the ravisher and the girl revished were naked of their persons from below. The rape was committed upon the girl as she was bleeding from her vagina and was almost lying unconcious. She was a minor girl and could not have the power of resistance, presumably.
5. ' Abdul Latif Shah was seen trembling by the persons arrived at the scene of occurrence. He beseeched to be pardoned for the wrong (rape) committed by him. Raj Wali was also brought to the scene of occurrence who also had the sight of the circumstances prevailing after the commission of the offence. He narrated the circumstances seen by him and facts disclosed to him as well.
6. ' The people assembling round the scene of occurrence tried to conciliate the matter but to no avail. For the intervention of the people to conciliate and on account of rains the report to the police could not be made on the day of occurrence.
7. ' The police station is at a distance of about 7 miles and so it was on the next day at about 12-30 p.m. That the report was made vide report Exh. P. A. By Muhammad Shafi. Trousers which were worn by the victim after occurrence were also seized by the police, which were found besmeared with semen and blood both.
8. ' The accused was also arrested on the day the report was made. His 'Shalwar' was also seized.
9. Some of the marginal witnesses of the seizure memo. Of his `Shalwar' say that it was recovered from his house in the village wherefrom it was brought to be seized at the house of the complainant whereas the investigating officer states that it was stripped off the person of the accused at the police station.
10. ' The Shalwars' seized were sent to the Chemical Examiner which were found stained with blood.
11. The `Shalwar' of the victim was also stained with semen. Mst. Safiea Begum and the accused were both examined respectively by a Lady Doctor and a medical man. The age of the girl, according to Lady Doctor, was found between 11 and 13 years. Her report was based on X-ray obtained. The by Abdul Latif Shah accused was 16 years of age at the relevant time.
12. ' The Lady Doctor gave report Exh. P. A. She found that sexual intercourse was committed with the girl whose vagina was even bleeding slightly at the time of her examination. There was also a bruise received on one of her elbows.
13. ' Abdul Latif Shah accused pleaded not guilty and stated that it was out of enmity that the case was falsely made against him just to deprive his father of the landed property. No evidence in defence was adduced by him. His father also does not appear to have come forward to support his son.
14. ' The prosecution examined Mst. Safiea Begum the victim, Messrs Khawaja, the Lady Doctor, Begum Jan, Muhammad Shafi, Muhammad Farid and Raj Wali and also some others being formal.
15. ' It was stated by the victim that she was taken to the house of the accused by the accused on the pretence that walnuts were to be sent to her brother. As soon as she entered his house alongwith him she was given some walnuts and thereafter soon she was gagged by him with his hand.
16. Furthermore, she was threatened not to speak or raise any alarm, whence her truusers were forcibly taken off and was forced to lie down on the floor on the side of her back. And in this way she was overpowered and subjected to carnal intercourse. On her crying or say weeping bitterly, her mother was attracted to the scene of occurrence who after witnessing the incident herself raised alarm which attracted her son and one Muhammad Farid also to the spot. They all saw the victim in a very bad state on account of bad act (rape) committed upon her by Abdul Latif Shah accused. Mst. Begum Jan was the first to reach the scene of occurrence who witnessed Abd Latif Shah accused while committing the offence of rape. The other persons reaching the scene after the occurrence were also told that rape was committed upon her by Abdul Latif Shah and Abdul Latif Shah himself admitting his wrong (guilt) beseeched to be pardoned. Raj Wali was also brought to the scene of occurrence by Muhammad Farid. He also examined the condition of the girl who was not in her voice. The state of the by Abdul Latif Shah accused was also noticed by him.
17. Even before him, the accoused expressed himself for the wrong done by him, for which he begged pardon.
18. ' Mst. Begum Jan, mother of the victim testified the prosecution case as it was presented and so was done by Muhammad Shafi, Muhammad Farid and Raj Wali P. Ws. Even if, we ignore the seizure of `Shalwar' seized from the accused as an incriminating article, the stains of semen and blood on the `Shalwar' of the girl when taken and read with medical report corroborate the victim and her witnesses in their statements just coming to the house of Abdul Latif Shah at the times indicated above and convince that the crime of rape as alleged was committed upon the girl by Abdul Latif Shah accused. There was also a bruise on the elbow of the victim which goes to show that violence was used in order to subdue her for committing the offence of rape and to which there had been a resistence on the part of the victim. The sexual intercourse on the part of the accused with the girl stands proved.
19. ' The learned Sessions Judge has very well appreciated the evidence and came to a conclusion that the offence of rape on Mst. Safiea Begum was committed by Abdul Latif Shah accused. This is a correct finding arrived at by him to which finding I subscribed after having a critical examination of the evidence. However, the punishment was to be awarded under section 10 read with section 7 of the Ordinance as the convict was a minor below the age of 11 years and so subsections (3) was not attracted as it provides sentence for offence of rape committed by an adult liable to `Tazeer'.
20. ' On the other hand, the District Qazi absolutely failed to understand the case. This was a case of `tazeer' and not that of %add'. The Qazi has discussed the principles and rules of Islamic Laws in relation to zina (adultery) liable to %add' and for which there exists a provision in the Ordinance itself for proof of which at least for Muslim adult male witnesses about whom the Court is satisfied having regard to the requirements of `Tazakia-tushShahood' that they are truthful persons and abstain from major sins and give evidence as eye-witnesses of the act of penetration necessary to the offence, vide section 8.
21. ' There can be no quarrel to this proposition of law. He has irrelevantly gone discussing a case of adultery liable to `Hald' and there was nothing in his hand to dwell upon this point, that is to say, there was no case against the accused either under section 5 or 6 of the Offence of Zina (Enforcement of Hudood) Ordinance. All references made to Islamic books by him could have become relevant only if there had been a case brought in respect of an offence liable to `Hald'. He could not appreciate the law concerned in relation to the case in hand constituting offence of rape liable to Tazeer', for proof of which a proof as warranted for an offence liable to 'Hald', was not required. In a case of `Tazeer' if the Court is satisfied on any kind of evidence admissible that a certain offence was committed by a person charged then that offender could be convicted for the offence committed and sentenced to `Tazeer ' accordingly. In other words, the circumstantial evidence coupled with the bare statement of a victim or some other evidence even of a woman ocular in nature is sufficient to record a finding of conviction and a sentence thereof. Such being the case, relationship of witnesses is not to hamper a Court from taking their evidence in view, provided, it establishes the offence against the person charged beyond a reasonable doubt, that is to say, there is no motive on their part just to implicate a person falsely. Here the statement of the victim is affirmed by the statement of her mother a an eye-witness and further corroborated by the persons reaching the scene just after the occurrence before whom the incident was related and the offender made on extra-judicial confession in respect of his guilt. The medical evidence also supports the prosecutrix that the rape was committed upon her. No motive to implicate the accused falsely could be made out by the offender and no such circumstances to hold as such, could reasonably located. As a matter of fact, there was no motive on the part of the mother and brother of the victim so as to concoct a case against Abdul Latif Shah at the cost of their honour.
22. ' The District Qazi has pointed out some discrepancies in the statements of the witnesses which were taken by him as of importance so as to create a doubt in mind in respect of the crime in hand. He failed to keep in mind the evidence adduced by the prosecution for proof of the offence for which the accused was brought before the Court to stand his trial. Very insignificant and immaterial discrepancies, if at all, taken as discrepancies in evidence were pointed out by him which were natural to occur in the statements of the witnesses examined. The observations of witnesses in respect of certain things on spot may differ from man to man.
23. ' The delay in lodging the report was also very well explained by the prosecution and as a matter of course, this delay of a day explained satins fact gorily in no way would affect the case adversely.
24. ' The prosecutrix was below the age of 14 years at the time of occurrence. Her consent being immaterial as such, even if pleaded, though this is no-herein a case of consent and in any case, the offence of rape is established and brought home to Abdul Latif Shah convict.
25. ' The District Qazi has not picked up law under which he was to deal with the case brought within the ambit of Shariat Law as a case of `Tazeer'. He had generally discussed a case of adultery committed by a man and woman who could be liable to %add'. He did not care to see that the offence of rape brought before the Court under section 10 read with section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance was dealt wit and in this context it was to be disposed of as a case of `Tazeer'.
26. ' That being so, I endorse the judgment passed by the Sessions Judge and taking the judgment of the Qazi as no judgment in eye of law as it lacks elements forming a judgment and set aside the same. In the result, the punishment awarded to Abdul Latif Shah convict for commission of offence of rape by the learned Sessions Judge is maintained with a little bit of modification. The sentence shall be taken as having been passed under section 10 read with section 7 of the Ordinance. The convict had to remain in detention during the investigation and trial of the case for over a period of one year and so his sentence in respect of whipping is reduced to 15 stripes. The bail bonds of the convict are hereby cancelled and he is remitted to Muzaffarabad Jail to undergo the punishments awarded to him in accordance with law concerned. The reference, stands disposed of accordingly.