' This appeal through jail has been preferred against the judgment dated 1st April, 1980 of the Learned Sessions Judge, Hyderabad, whereby he convicted the appellant under section 10 read with section 6 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to suffer R.I. For 10 years and whipping numbering 30 stripes.
2. The facts of the prosecution case are that one Muhammad Jami, son of Amir Bux resident of Tando Wali Muhammad lodged his F.I.R., on 21st August, 1979 at police station Market of district Hyderabad which reads as under:- "Complaint is that:- I am working as ward-servant in L.M.C.H. My duty is in Casualty-Department. As usual, today I was on my duty from 14.00 hours. During my duty, at about 14-30 hours, I went towards Latrine side, where I heard some sound in the middle latrine. My suspicion arouse. I went towards the latrine. The door of the latrine was closed from inside. I climbed over the wall of the latrine and found that one sweeper Bashir was committing rape forcibly on a girl of about 6-7 years ago after carrying her in his lap. The trousers of the accused was lying on his feet and the trousers of the girl was put-off and was lying by the side. There after, I went and narrated these facts to Duty Doctor Muhammad Akram, Doctor Qaiser Zaman, Dresser Shah Nawaz, Compounder Kaillash and others. They came and saw the accused and the girl inside. Thereafter we all took out the accused and the girl out of the latrine. There were recent marks of semen on the trousers of the accused and girl. The accused admitted the guilt before all of us and begged his pardon. He said that he has actually committed the fault. Thereafter we all shaved his head, blackened his face and took him on a round in the hospital. Thereafter we have brought the accused and the girl to the police station. The girl on whom accused Bashir has committed the rape, belongs to Sarfraz Colony, she is mentally deranged. She daily walks in the hospital. She cannot speak fully.I lodged complaint that accused Bashir has committed the rape forcibly on an insane girl. Investigation be made."
3. Ghulam Ali A.S.I.P. (P.W.8) recorded the F.I.R., Exh.19. He examined the girl who was unable to speak with him.He observed semen stains on her trousers. He secured her trousers in presence of Mashirs Shah Nawaz and Kaillash. He packed the Shalwar, sealed it and prepared such Mashirnama Exh.11.
He then arrested the accused Bashir Masih and examined his person and found semen stains on his Shalwar. He packed it, sealed it and prepared such Mashirnama Exh.P.12. He thereafter recorded statements of Kaillash and Shah Nawaz. He then sent the accused to the Civil Hospital for medico- legal examination. Rashid Ahmed who claimed to be brother of the girl (victim) appeared at the police station and disclosed her name to be 'Farzana'. He recorded his statement. He thereafter proceeded to scene of offence and inspected it in presence of Mashirs Kaillash and Shah Nawaz. It was situated in a latrine at the Casualty Department, Civil Hospital, City Branch Hyderabad. There was no roof over the latrine and he prepared such Mashirnama Exh.17. He then recorded statements of Dr. Akram and Dr.Qaiser Zaman. He referred the girl 'Farzana' to the Civil Surgeon, Government Services Hospital, Hyderabad for medico-legal examination, who again referred her to Women Medical Officer, Kotri Barrage Colony, One Unit Building. The Woman Medical Officer referred the girl for radiological examination as well as her mental examination at the Mental Hospital. The Incharge Mental Hospital returned the girl for referring her through the order of the Magistrate. He then took the girl to L.M.C.H., City Branch, for her radiological examination and after obtaining the report of the Radiologist on 23rd August, 1979, produced the girl before the Woman Medical Officer on 27th August, 1979 who issued the certificate. He thereafter handed over the papers, to the S.H.O., Elahi Bux who challaned the accused.
4. The prosecution case is mainly based on evidence of the complainant Muhammad Jamil (P.W.7), Dr. Muhammad Akram (P.W.5), Dr. Qaiser Zaman (P.W.3), Dr. Surayya (P.W.1) Dr. Amanullah (P.W.2), Mashir Shahnawaz (P.W.4) Rashid Ahmed (P.W.6) and the evidence of Investigating Officer Ghulam Ali (P.W.8).
5. The accused however denied the allegations and further stated that he was involved at the instance of P.W. Muhammad Jamil who had enmity with him.
6. The point for determination is whether the accused committed sexual intercourse with the girl 'Farzana' and if it amounted to "Zina-bil-Jabr".
7. The complainant Muhammad Jamil P.W.7 who was the first to find the accused committing sexual intercourse with the girl Farzana, has lodged the F.I.R., and has deposed to the facts given by him in his F.I.R. He has fully supported the prosecution case. Dr. Muhammad Akram (P.W.5.) and Dr. Qaiser Zaman (P.W.3) who have gone to the scene of offence immediately after they were informed by the complainant Muhammad Jamil have found the accused and the girl in the latrine which was bolted from inside. They have also supported the prosecution case. They have further stated that they by climbing on the shoulder of Muhammad Jamil peeped inside the latrine and found the girl and the accused inside It. They were found standing inside the latrine and wearing the clothes. They also found the Shalwar of the accused as well as the girl wet with semen. They have also stated that the girl was known to be an insane person.
' Dr. Surayya P.W.1. Who is the Woman Medical Officer, Incharge Female Medico-legal Work at Government Kotri Barrage Dispensary Hyderabad has examined Mst. Farzana (victim). According to her opinion,. Sexual intercourse was committed with the girl. She issued such certificate Exh.5.
She also produced the Radiological reports alongwith two X-ray plates Exh.6. It has also been stated by her that girl had not made any answer to many questions put to her. She appeared to be mentally deranged.
' Dr. Amanullah P.W.2, has examined the appellant. He has stated that he had secured the white watery discharge from the pubic hair on slides and had sent the same to the Chemical Analyser for report. According to his opinion, he found the accused competent to perform sexual intercourse. He had issued such certificate Exh.8.
' Shahnawaz is Mashir of recovery of the trousers of the girl Mst. Farzana, arrest of the accused and recovery of his shirt and trousers and the scene of offence. He was working as a dresser in the Casualty ward of L.M.C. Hospital. He has stated that he also reached on the scene of offence after Dr.Muhammad Akram and Dr.Qasiser Zaman. He also found the accused as well as the girl in the latrine. The accused was tying the tape of his Shalwar. The Shalwar of the accused as well as the girl Mst. Farzana were wet with semen. He has supported the contents of the Mashirnama prepared in his presence. Rashid Ahmed P.W.6 is the brother of the girl Mst. Farzana. He has stated that she was mentally retarted since her birth. She was unable to speak but could hear and that she used to go to the hospital to roam about as they resided on Pther side of the road running by the side of main gate of the Civil Hospital, City Branch O.P.D. He was informed by the neighbours that one Bashir Bhangi had committed rape with her in Civil Hospital. He went there and was informed that his sister and the accused were taken lway to the Market police station. He found his sister as well as the accused there.
8. I have heard the appellant who has been produced from the jail today. He denies to have committed rape with the girl Mst. Farzana. He as further stated that he has been implicated due to his enmity with the complainant Muhammad Jamil who used to ask him to share extra nay earned by him.
9. Mr.Ghulamally H. Agha, the learned counsel appearing for the State. As contended that it was a broad daylight incident which has occurred the latrine of the Civil Hospital, Hyderabad and has been witnessed the independent persons who were neither related to the victim nor any way connected with her except of course Rashid Ahmed who is brother. They are respectable persons and there is no reason for them to falsely implicate the accused. The evidence of Dr.Surraya supports he version of the eye-witnesses. Dr. Amanullah who has examined the accused has certified that he was potent and capable of performing sexual ltercourse. Therefore prosecution has successfully proved it's case beyond my reasonable doubt against the appellant. His appeal merits no consideration under the circumstances of the case.
10. I have considered the explanation advanced by the appellant and he contentions of the learned counsel for the State. I have also read le evidence on record. The evidence of the complainant who was the r to detect the accused committing sexual intercourse with the girl has been fully corroborated by Dr. Muhammad Akram and Dr.Qaiser Zaman ho have come on the scene of offence after they were informed by him.
' The medical evidence which has come through Dr.Surayya has supported the version of the PWs, that sexual intercourse was committed with the girl. The report of the Chemical Analyser Exh.22 has further strengthened the prosecution case as the semen has been found on the Shalwar secured from the accused as well as the girl (victim) and also on urethral swabs secured from the public hair of the accused. The prosecution witnesses are quite independent and they have stood the test of the lengthy cross-examination. Actually nothing has been brought on record creating doubt about their testimony. Their evidence is trustworthy and undoubtedly reliable. After considering all the aspects of' the case I am in agreement with the conclusions of the trial Court. The appellant has been rightly convicted and properly sentenced under the circumstances of the case.
11. In the result, there is no merit in this appeal which is hereby dismissed.