' Appellant, Sarwar Shah was tried for the offence under section 376, P.P.C. By II-Additional Sessions Judge, Khairpur. He has been convicted and sentenced to suffer R.I. For 7 years and to pay a fine of Rs, 1,000 or in default to suffer R.I. For 6 months more. Being aggrieved with the judgment he has filed this appeal.
2. Briefly stated the case of prosecution is that complainant Mst.Husna made an application to S.P., Khairpur in which she stated that about 10 days ago at evening time while they were sitting in their house, they heard cries of her daughter from the lands of Imam Ali Shah which is 30 paces away from their house. She and Mst. Badar wife of Anadal Shah went towards that direction and saw that Sarwar Shah was committing rape on Mst. Mukhtiar. They rescued her and accused ran away. It is stated in the application that clothes of Mst. Mukhtiar were blood-stained and blood was coming from her private part of the body. Mst. Mukhtiar informed her mother Mst. Husna that Sarwar Shah has forcibly committed rape on her. Mst. Husna informed Alam Khan, Haji Kuro and Mohabbat Khan. Accused contacted Haji Kuro and told him that he will decide the matter with complainant and they should not file complaint with police. Nekmards told them that by filing complaint, they could be defamed. Finally the matter could not be settled and their Nekmard told Mst. Husna to file complaint as such she made an application to S.P. On 6-7-1977. The case under section 376, P.P.C.
Was registered on 7th July, 1977 at Police Station Town Khairpur as Crime No, 138.
3. The case proceeded and appellant has been convicted under section 376, P.P.C., as stated above.
4. At the trial the prosecution examined five witnesses in support of the case. P.W.1 Mst. Husna is mother of victim Mukhtiar and she is eye-witness of the incident. P.W.2 Mst. Mukhtiar is victim P.W.3 Dr. Abdul Sattar is Medical Officer, P.W.4 Muhammad Paryal acted, as Mashir of Wardat and clothes of Mst. Mukhtiar produced by complainant. P.W.5 Ghulam Hussain A.S.I.P. Is Investigating Officer.
5. Appellant in his statement under section 342, Cr.P.C. Has denied the allegation and stated that case has been filed due to enmity, as Andal Shah filed a case against his father Shahbaz All Shah.
He has produced notice Exh.12-A.
6. Dr. Abdul Satter produced medical certificate of Mst. Mukhtiar. While hearing the appeal it transpired that Lady Doctor who examined Mst. Mukhtiar was not examined before the trial Court.
Not only this but original certificate, issued by Lady Doctor relating to the above-said victim was also not produced. Therefore, it was found necessary to examine the Doctors. Upon hearing Mr. Usman Ghani Rashid, learned Advocate for the appellant and Mr. Rashid Tariq Khan learned Advocate appearing for the State, it was ordered that both the Doctors be summoned and examined in this Court. An order under section 428, Cr.P.C. Was passed on 30-9-1984. In pursuance of that order Dr. Abdul Sattar Shaikh and Dr. Mrs. Mukhtiar Gajani have been examined in this Court in presence of the appellant and counsel of the parties.
7. Mst. Husna, in her statement before the trial Court has stated that Mukhtiar alias Mukhi aged about 10 years is her daughter, and on the day of the incident she was sitting with womenfolk of appellant Sarwar Shah in their house and Mst. Bader her daughter-in-law came and informed her that she had heard cries of Mukhtiar from the lands of Imam All Shah. She came out from the house and went there where she found that her daughter Mukhtiar was lying naked and Sarwar Shah was committing rape on her and had kept his hands on her mouth. She found trouser of Mst.
Mukhtiar was torn and she was lying unconscious and was bleeding. On seeing her, the appellant Sarwar Shah ran away towards his house. She removed Mukhtiar to the house of the appellant in the same condition and narrated this incident to the mother of the appellant who told her that her husband Shahbaz All Shah is sick, therefore, she should keep quite and the matter would be settled.
After about a week Shahbaz All Shah died and mother of the appellant again requested her to wait for another four days. After that she approached the Nekmards Aslam Khan, Haji Kuro (wrongly written in deposition in English as Porho but in Sindhi it is Kuro) and Mohabbat and narrated the incident. They also promised, they would get the matter settled and asked her not to file report with the police. Finally Haji Kuro informed her that accused party has no intention to arrive at compromise, therefore, he directed her to lodge report. She went and lodged report of the incident at Police Post, Lukman, and also made a written report to the S.P. Who forwarded the same to the concerned police. She has produced application as Exh.4.
8. Mst. Mukhtiar Exh.5, in her statement has deposed that on the day of the incident at evening time Nazal younger brother of appellant asked her to accompany to the dates garden, she went there and found that appellant was sitting on the cot under the shed, who forcibly laid her on the ground and torn her Shalwar thereafter, committed rape. She raised cries on which her mother came and rescued. She was bleeding and became unconscious. After some time she regained consciouness and narrated the incident to her mother Husna, Mst. Badar and other members of the family. She further states that she was taken to the house of accused where appellant's mother was informed about the incident but she asked her mother not to file report with police as the matter would be settled. She has stated that she was sent to Medical Officer for examination.
9. Dr. Abdul Sattar Exh.7 has stated that on 10-7-1977 he was R.M.O. At Civil Hospital, Khairpur. On the same day at about 11-00 a.m. He received Mukhtiar daughter of Andal for examination and certificates. Mst. Mukhtiar was examined by a Lady Doctor in the hospital and she gave a report. He has produced medical certificate as Exh.7-A, which is reproduced as under:-
(1) History of rape 16 days back.
(2) No marks of violence externally on the body.
(3) Vulva is normal and underdeveloped.
(4) Hymen is ruptured.
(5) Vagina admits one finger easily.
(6) No bleeding per vagina.
' On 16-7-1977 Dr. Abdul Sattar examined Ghulam Sarwar Shah and his report is as under:-
(1) There was history of rape 20 days back, as reported by police.
(2) Male genital organs are of normal size and shape.
(3) Pubic hair of black are present.
' In his cross-examination this witness has stated that there were no tears or injury on the vagina of the girl or surrounding the female genital organ. He has further stated that vagina of the girl admitted one finger easily and according to his opinion girl was already used to sexual intercourse and even on touching the vagina there was no bleeding. He cannot definitely say whether rape was committed on the girl. Age of Mst. Mukhtiar was determined to be 10 years.
' Dr. Abdul Sattar Shaikh, Exh.H.C.1 stated before this Court that he had not examined Mst. Mukhtiar but she was examined by Lady Dr. Mukhtiar Gajani. He on the basis of report of the Lady Doctor, issued certificate Exh.7-A. He produced that report as Exh.H.C.1/1 which is signed by Lady Doctor. He has stated that he gave evidence before the trial Court on the basis of the report of the Lady Doctor.
10. Dr. Mrs. Mukhtiar Gajani Exh.H.C.2 has stated before this Court that on 10-7-1977 she examined Mst. Mukhtiar who was about 10 years of age and such certificate which is at Exh.H.C.1/1 is signed by her. She has stated that she found hymen of Mst, Mukhtiar was ruptured and according to her examination the rape was committed on her. She has deposed that Mst. Mukhtiar was not habitually used for intercourse but hymen was ruptured due to that intercourse. She in her cross- examination has stated that she had given a definite opinion that when intercourse is committed the hymen is ruptured.
11. P.W. Muhammad Paryal Exh.8, has stated that he was called by police to act as Mashir of Wardat which was in the lands of Sarwar Shah. There were four date trees and a shed. He has produced Mashirnama as Exh.8/A. He acted as Mashir of Shalwar of Mukhtiar. He has produced Mashirnama Exh.8/B. In his cross-examination he stated that he had not seen any blood-stains on the Shalwar as it was already with the police before he went to Or Wardat. He has not identified the Shalwar correctly. He has stated that Wardat is situated few paces away from the village consisting of 100 houses and if any one raises cries it would attract the attention of the villagers. He has stated in cross-examination that Andal Shah is father of victim Mukhtiar and is step-brother of notorious dacoit Mahram Janwari. He admits that there is a dispute between Andal Shah and accused over the land for the last 5/6 years.
12. P.W. Ghulam Hussain Exh.10 is A.S.I.P. And he has stated that on 7-7-1977 he was incharge Town Police Station, Khairpur, when he received a written application of Mst. Husna for enquiry. He called Mst. Husna and recorded her statement and registered the case. He has produced F.I.R. As Exh.10-A.
He has stated that he received application of Mst. Husna Exh.4/A and recorded her statement which is at Exh.4/B. He went to the Wardat and prepared Mashirnama. Mst. Husna produced Shalwar of her daughter which he secured in the presence of Mashirs and prepared such Mashirnama. He recorded the statements of Mukhtiar, Mst. Badar, Alam Khan, Haji Kuro and Mohabbat Khan. He referred Mst. Mukhtiar to Civil Surgeon, Khairpur for examination and certificate.
On 14-7-1977 he arrested the appellant and on 16-7-1977 sent him to Civil Hospital for examination.
He has stated that after completing the investigation he sent the papers to the S.H.O. Who challaned the case. He has produced the report of the Chemical Examiner as Exh.10/B. He admits in his cross-examination that there are about 100 houses near the Wardat. He found no marks of struggling or blood there. He has stated that Andal Shah father of victim Mukhtiar is known to him and he is step-brother of notorious dacoit Mahram Janwari. He has admitted that Andal is history- sheeter of Town Police Station, Khairpur, and several cases against him are pending in various Courts and he is a person of bad character.
13. Mr. Osman Ghani Rashid, learned counsel appearing for the appellant has contended that there is inordinate delay in lodging of the F.I.R. Which has not been properly explained. His contention is that this case is outcome of enmity between the parties. He has argued that witnesses are interested and Mst. Badar, eye-witness, and other independent witnesses who were informed about the incident have not been examined by the prosecution. He submits that prosecution case does not get support from medical evidence as it is clearly mentioned that Mst. Mukhtiar has already been used for sexual intercourse.
14. Mr. Rashid Tariq Khan, appearing for the State, has submitted that Mst. Husna and Mst. Mukhtiar have fully supported the prosecution case. He argues that Shalwar of the victim, was sent to the Chemical Examiner and report is in positive as semen has been detected on the Shalwar. He has cited 1975 SCMR 69 and PLD 1982 F SC 87 and stated that corroboration in rape case is not necessary and statement of prosecutrix is sufficient for conviction.
15. As Doctors were examined in this Court a further statement of appellant was recorded and I have heard further arguments of Mr. Rashid Tariq Khan, learned counsel for the State. Mr. Usman Ghani Rashid was not present on 13-12-1984 but in spite he was given opportunity to file written arguments, if any, within a week but he has not filed any written arguments.
16. In the present case Mst. Mukhtiar prosecutrix has fully supported the case. She is a minor girl and at the time of incident she was hardly 10 years old. Her statement has been fully corroborated by her mother Mst. Husna. There is no reason to disbelieve the version given by these two witnesses. The enmity is shown that father of Mst. Mukhtiar made an application against the father of the appellant. On the contrary complainant had grudge against the accused party because they made application against him. Moreso, notice Exh.12/A is, dated 15-1-1972. It was issued five years before the occurrence. The Mashir has tried to give obliging replies and in my view such concessions are not sufficient to discard the evidence of prosecution.
17. The arguments of the learned defence counsel that the father of the victim girl is history-sheeter and he got the false case registered have not impressed me. It is hardly believable that any person could set up his own innocent girl of 10 years to come to Court and depose that she had been raped and play with the future life of his daughter. The evidence of a girl cannot be discarded because she is a daughter of a history-sheeter.
18. The delay in lodging of the F.I.R. Has been fully, explained. The parties are Syeds and complainant was avoiding to give publicity to this unfortunate incident. From the endorsement of S.P. It appears that he called the parties and tried to bring compromise but his efforts failed, therefore, after being satisfied about the prima facie case he ordered that case be registered.
19. The ocular testimony get support from medical evidence. It has been clearly mentioned in the certificate that "Hymen was Ruptured" and History to rape is 16 days back and her age is given 10 years. The time of the rape has rightly not been given as she was examined after 20 days. Dr. Abdul Sattar has not examined Mst. Mukhtiar, therefore, the replies given by him in the cross-examination that "Even on touching the vagina there was no bleeding" etc. Are inadmissible as he had not examined Mst. Mukhtiar. The opinion that girl is used to intercourse is hardly believable when it is clearly mentioned that "Hymen is Ruptured".
20. Lady Doctor Mrs. Mukhtiar Gajani has corroborated the version given by her in the certificate which has been produced as Exh.H.C.1/1 and she has clearly stated that rape was committed on Mst. Mukhtiar due to which hymen was ruptured. Under these circumstances, this witness has also fully supported the case of prosecution and I have no reason to disbelieve the evidence of Lady Doctor Mrs. Mukhtiar Gajani.
21. The torn Shalwar was produced. The blood as well as semen has been detected and report of Chemical Examiner Exh.10/B is in positive. The Investigating Officer has supported and no enmity is alleged with the police officer.
22. In a case of Haji Ahmed v. The State reported in 1975 SCMR 69, it was held that mere absence of mark of injury of violence on prosecutrix would not imply non-commission of rape and nor possible for a girl of 12/13 years to falsely implicate in cases of such type."
Federal Shariat Court in the case of Janoo alias Jan Muhammad v. The State reported in PLD 1982 F SC 87 observed that no corroboration of testimony of prosecutrix to be required in case of rape or Zina-bil-Jabr and further that law not providing against acceptance of evidence of relations of victim as witnesses of offences.
23. In the result of the above discussion I am of the view that appellant has rightly been convicted for the offence under section 376, P.P.C. For committing rape. The prosecution has proved the case.
' The appeal is dismissed. The appellant is on bail granted by this Court. He may be taken into custody to serve out the sentence.