' JUSTICE KARIMULLAH DURRANI (MEMBER).--- Ch. Muhammad Naseem Sessions Judge, Multan vide his judgment dated 9-6-1981 convicted under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 the accused-appellant Muhammad Hussain son of Noor Muhammad, Shopkeeper of Chak No,9/T, Tehsil and District Multan and sentenced him to rigorous imprisonment for a period of 15 years and whipping by 20 stripes for committing Zina-bil-Jabr with Mst. Shamim, a girl of tender age. Being not satisfied with the judgment the accused-convict has come up on appeal to this Court.
2. According to the prosecution Mst. Shamim P.W.4 is a young girl of about 6 or 7 years of age who, on 9-12-1979, at Degarwela, was left alone in her house which is situate at Chak No,9/T in the Police Station Makhdoom Rashid, Tehsil and District Multan by her mother, Mst. Nazir Bibi, P.W.3 and Fateh Muhammad P.W.8 the maternal-uncle of her mother who had gone to fields for picking cotton.
While returning from the fields these two P.Ws. On reaching near the house of the accused heard cries of Mst. Shamim and were attracted to the house. In the meanwhile P.W.9 Qamaruddin and P.W.10 Muhammad Khan also reached the spot and having been attracted to the cries of the victim also followed the former two into the house of the accused. The accused was seen committing forcible sexual intercourse with the victim who was lying naked and was bleeding from vagina. On the arrival of the P.Ws. Accused decamped from the spot with his Shalwar in his hand. The husband of P.W. Nazir Bibi being absent from the house and in the meantime the dusk had already fallen she awaited the return of her husband till the next morning. As he had not come by then she took her maternal-uncle P.W. Fateh Muhammad with her to the police station where F.I.R. Was lodged on 10- 12-1979 at 1-40 p.m. The distance between the village of the complainant and the Police Station Makhdoom Rashid is stated as 7 miles.
3. Raja Fida Hussain now S.I., who then was an A.S.I., after registering the report reached the spot for investigation. On the same evening he sent Mst. Shamim for medical examination to P.W.1. Lady Dr. Kishwar Saeed, W.M.O. Civil Hospital, Multan who in her turn conducted examination at 7 p.m. On the same day and took two vaginal swabs from around the vagina and Labia Majora of the victim and sent these for chemical examination in a sealed parcel. The Shalwar of the victim was also taken into possession by the Investigating Officer and sent for the same examination in a sealed parcel which was alleged to have been stained with blood and semen. On the same day the accused-appellant was produced by his brother Zulfikar before the police and was placed under arrest. His Shalwar was also taken into possession for onward transmission to the Chemical Examiner for ascertaining the existence of stains of semen etc., if any.
4. The accused on appearance before the trial Court pleaded not guilty to the charge and was therefore put to trial. The prosecution introduced into witness-box not less than 4 ocular witnesses of the occurrence besides the victim herself. These are Mst. Nazir Bibi, Fateh Muhammad, Qamaruddin and Muhammad Khan, P.Ws. 3 and 8 to 10. Muhammad Akram A.S.I. P.W.5, who at that time was a Muharer/H.C. Had registered F.I.R. And was delivered two sealed parcels containing respectively the Shalwar of the victim and that of the accused and also a phial containing vaginal swa bs, appeared before the Court to prove these facts P.W.7. Fida Hussain S.I. Had acted as Investigating Officer in the case while P.Ws. 1 and 2 Dr. Kishwar Saced and Muhammad Ashraf Shah had medically examined the victim and the accused, respectively. It seems from the cross- examination of the P.Ws. That the defense had taken the plea that Fateh Muhammad P.W.8 who is maternal-uncle of the mother of the victim and who resides with them in their house had illicit relations with the wife of the maternal-uncle (Mams) of the accused and for this reason was forbidden to come near the house of the accused. He nursed a grudge against the family of accused on this account which caused the false accusation of the accused on the part of the family members of the victim. It may however he noted that no such ground was taken by the accused himself in his statement recorded under section 342 of the Code of Criminal Procedure wherein he confined himself to denying the charge and of the ownership of the Shalwar P.2. He claimed that the P.Ws. Were interested. The accused also chose to not to produce any evidence in his defence.
5. Mr. Ejaz Baig Mirza the learned counsel appearing on behalf of the appellant has assailed the conviction of the accused-appellant on a number of grounds. According to him the so-called eye- witnesses cannot be believed as they had stated that when they reached the door of the house of the accused they saw him committing the offence with the victim in one of the rooms which did not have a door which was not possible. He has referred to the site plan, Exh.P.E. In aid of this contention and pointed out that the outer door has been shown in this plan as being situate towards north wherefrom the door of the room at point 'A', where the occurrence was alleged to have taken place, is not in a direct line, rather a corner of a Jarni (Kotha) intervenes in between and cuts off the line of vision from the door to this spot. The next ground taken in assailing the judgment has been the fact that the Investigating Officer had failed to record under section 161, Cr.P.C. The statement of the victim at the time of the investigation which according to the learned counsel in view of the judgment in Mst. Hamida Begum v. The State PLD. 1978 SC (AJ & K) 102 had deprived the defence of a chance to confront the victim with that statement in order to bring in light the contradiction or the improvement made later in the statement on tutoring from some quarters. It has also been alleged that P.W.1. Lady Dr. Kishwar Saeed had estimated the time of the injuries on the vagina of the victim as within 48 hours of the examination whereas according to the prosecution the occurrence had taken place only 27 hours prior to the said examination. Thus, the margin of difference between the alleged actual time of occurrence and the expert's estimate was so wide as would render the prosecution story not a plausible one. Lastly it has been alleged that all the witnesses have stated that the victim was profusely bleeding and the blood was spread over the person and the Shalwar of the victim, but the blood was found neither on the person of the victim during the medical examination nor its stains on her Shalwar in the chemical examination.
Finally learned counsel has pleaded for the reduction of the sentence on the ground of the extreme youth of appellant.
6. Before entering into discussion on the argument of the learned counsel it would be desirable to state at the outset that in spite of the very tender age of the victim she has behaved in the witness- box like a sensible person and has narrated in most clear and unambiguous terms what was done to her by the accused. According to her, her younger brother was weeping at the time of occurrence and she wanted to take him to her mother but the moment she came out of the house to look for her mother the accused took her to his Kotha and pulled off her Shalwar and then after taking off his own committed Zina with her. She raised shrieks which attracted her mother, the maternal-uncle and two other persons to the spot. The blood was coming out of her private parts and that the accused fled away by scaling over the wall. The accused being next door neighbor she knew him well. Although this girl of 7 years of age was subjected to severe cross-examination she withstood the test and the defence utterly failed in shaking her. [
7. P.W.1 Lady Doctor Kishwar Saeed had found the victim in the following condition on examination on the day next to the occurrence:- "Labia Majora was not developed. Labia Minora was rudimentary. The hymen was intact. There was slight redness at the lower edge of the hymen. The vaginal orifice was very small and did not allow tip of little finger. There was redness on both the Labia Majora. Labia Majora and Labia Minora are full of secretion."
8. The testimony of P.Ws. 3 and 8, the mother and the maternal-grandfather of the victim respectively has also remained unshakable despite the efforts of the defence. Thus, there is nothing in the evidence to cast doubt on the veracity of these P.Ws.
The two swa bs taken from around the vagina and from Labia Majora of the victim were sent for chemical analysis and were found stained with semen vide Chemical Examiner's Report Exh.P.A./1 and so was found her Shalwar vide Report Exh.P.A./2. Now, the statement of the victim alone when corroborated by the state of injuries found on her private parts in the medical examination would ordinarily be sufficient to prove the prosecution case but in the instant case a number of other eye-witnesses of the occurrence are also available to further strengthen the version of the victim of the offence against the accused-appellant. It may here be noted that P.Ws. 9 and 10 Qamaruddin and Muhammad Khan for some discrepancies in their statements were disbelieved by the learned trial Court to which view we are unable to subscribe. The discrepancies pointed out by the learned Court in their statements arc not of such a nature as to completely discredit these two witnesses.
For example they were shown to have stated before the police under section 161, Cr.P.C. That they were on their way to a marriage ceremony in the house of one Fazal Dad when they heard the cries of the child and went inside the house of the accused and saw him in the sexual act with the girl. As against this they stated before the Court that it happened when they were returning after attending the said ceremony. Now these two witnesses were examined in the Court on 28-5-1981, after about 11 years of the occurrence. This lapse of time could certainly effect the memory in this minor detail. Similarly, if Qamaruddin P.W. Gives the number of persons attending the marriage at the place of Fazal Dad at about 20 to 25 and Khan Muhammad, P.W. Reduces it to 4 or 5 persons, it would still remain a minor discrepancy and not a contradiction of a major nature. Or if one of them had heard the alarm from 5/7 Karams and the other from the hundred still it would not render them as untruthful witnesses because difference might have been in their respective senses of hearing. Apart from these, there is nothing in their statements to suggest that they had resorted to lying against the accused. Rather they seem to be very truthful witnesses of the event when none of the two claim to have actually seen the commission of sexual intercourse with the victim and contain themselves to nature only in what state they found the victim. Also that the accused was seen decamping from the spot by them on arrival.
9. Now coming to the time gap in between the estimated duration of the time of injuries by the expert on the person of the victim and alleged time of actual occurrence, we are constrained to repel the contention of the learned counsel on the ground that more than a day and night had already elapsed before the victim was subjected to medical examination (actually 27 hours). If the lady doctor estimates the injury having been caused within 48 hours what she means thereby is that it was within the last two days as it was. Moreover, such estimates are always capable of fluctuation of a few hours on either side. The learned counsel has relied upon Muhammad Ali v.
Gulistan 1980 SCMR 889 and Khuda Bukhsh v. The State PLD 1980 Kar. 22 in contending that at the most a margin of two to three hours could be allowed in such estimates and if ocular evidence stretches the time of occurrence to more than that in either way it has to be disbelieved. Both these cases are of murder which had a difference of several hours in between the opined time of death before the post-mortem examination by the expert and that given by the eye-witnesses who were discredited as having not seen the occurrence. With due deference, the ratio decidendi of these two cases cannot be applied to cases other than those of murder. In case of death a number of pointers to the time of death as temperature of the body, rigour mortis, etc. Are usually available to a medical expert to help form the opinion. Moreover, the body of the victim is split open before his eyes for the visual examination of the internal organs of a human being after his death. It is, therefore, these circumstances, which impart much weight to the opinion of the expert vis-a-vis the almost exact time of death and for these reasons an error of two or three hours in the estimated time would only be permissible. The case of rape is entirely on different footing than that of the conditions of a dead body. Here the colouring of the private parts of the victim and visible injuries could only be the basis of the estimated duration which would necessarily warrant a greater margin of allowance in accuracy of the estimate. Moreover, the Expert opinion available on record in this case is not of an exact nature but is in vague terms as of the occurrence having taken place within 48 hours. The use of word 'within' would certainly connote a much wider margin which could even be stretched even to about 20 hours which is the case here. The expert opinion in itself, therefore, would not be sufficient to render the ocular evidence discreditable. Now coming to the next contention in this context raised on behalf of the appellant that medical evidence does not show commission of rape but at the best could only point out an attempt thereto, but the signs and state of injuries found by P.W.1 in themselves are sufficient to establish that the rape was committed on the victim even if total penetration could not be affected due to the smallness of the vagina of a girl of 6 or 7 years.
10. Coming to the argument of the learned counsel for the appellant on invisibility of the spot of the occurrence from the outer door of the house as would seem from a glance at the site plan Exh.P.E. I am constrained to say this argument is also fallacious on two-fold grounds. Firstly, no question has been put to any of the witnesses or the Investigating Officer on this aspect of the matter and thus no elaboration of the actual features of the site has been brought to light. Secondly, from the notes on the plan it is clear that the intervening Kotha which seems to cut the line of vision has been described as a Jarni Kotha. Now there is a difference between a residential Kotha and a Jarni Kotha. A Jarni is usually a sort of Chapper supported by pillars whereunder the cooking etc. Of the family is done. If that be the position, there would be no wail barring the vision from the outer door and the spot of occurrence would be clearly visible therefrom. It is also clear from the site plan that even if the Jarni had an intervening wall then the mere stepping into the courtyard from the outer door would suffice to make the whole plan of the house wide open before the eyes.
11. As regards the objection to the non-recording of the statement of the victim by the Investigating Officer soon after the occurrence under section 161, Cr.P.C. And the ruling cited in support of the contention, suffice it to say that the age of one child was of 13 years and other was round about 10 years old in the precedent case. Now children of such age although called child witnesses are almost equal to the grown up persons in the matter of their capacity to depose an incident. But the case of a child of 6/7 years would be on an entirely different footing. At the time of the investigation the Investigating Officer had no reason to believe that this child of so tender an age would he capable of making a statement before the Court rather the possibility was of her having not been produced in the Court. Therefore, if Investigating Officer probably from this point of view, did not record the statement under section 161 of the Cr.P.C. And later on the Court, on the replies to a few questions found her intelligent enough and proceeded with recording her statement then proceedings would not be vitiated for want of an earlier statement under section 161, Cr.P.C. The wording of section 161 ibid leaves it to the discretion of the Police Officer making an investigation to examine early any person supposed to be acquainted with the case and word 'may' in this context has, therefore, purposely been used in this section.
12. Now, coming to the defence taken up by the accused we find that story of the maternal-uncle of the mother of the victim having illicit relations with the Mami of the accused and his forbiddance from the house neither finds any support from the evidence nor would it be a ground for a small child of 6/7 years of age to falsely implicate the accused in such a heinous crime. It would also be very difficult for a mother to tarnish for ever the honour of her small daughter by falsely publishing her rape by the accused. Rather such an offence is tried to be hushed up by the parents who usually are shy of the publicity of this nature. Then why should Mst. Nazir Bibi falsely implicate the accused only because he had forbidden her uncle to come near the house of the Mami. This plea was not even taken up by the accused himself in his statement under section 342 of the Code of Criminal Procedure.
13. The learned counsel for the appellant has lastly urged that the prosecution story stands contradicted by medical evidence and report of the Chemical Examiner in that it was alleged by the P.Ws. That the victim had her person and clothes stained with blood which was not found on either of these. We have already discussed that a delay of about 27 hours occurred between the occurrence and the medical examination. The blood on the person of the victim would not remain there for such a long time but it is incorrect to suggest that in the medical examination the blood was not found. P.W.1 Lady Dr. Kishwar Saeed has in her medico-legal report as well as in her statement clearly stated that both Labia Majora and Labia Minora were full of the secrction.
Secretion is produced by the process of separation of the substances like blood and sap etc. The existence of secretion would clearly indicate the presence of blood in the private parts of the body of the victim. Even in the absence of the blood the medico-legal report of the examination of the victim has mention of all indications of rape on a minor. About the Shalwar it was positively asserted that it was stained with that substance then it would only be a mere exaggeration on their part which would not put their testimony to discredit.
14. The net result of the above discussion is that the prosecution has fully succeeded in proving the offence against the accused and his conviction under G section 10 of the Ordinance is, therefore, not exceptionable. This brings us to the question of the justification of the quatitam of the punishment awarded to the accused-appellant. His learned counsel has urged that he deserves some leniency on account of his age. We find justification in this contention and would, therefore while dismissing the appeal reduce the sentence of the imprisonment to 10 years' R.I. In view of the youth of the accused but we would maintain the sentence of whipping by 20 stripes. The time spent by the accused in confinement before the pronouncement of judgment of the lower Court against him will, however, be counted towards the sentence.