Appellant Aqeel Ahmed was tried for the offence under section 376, P.P.C. By Mr. Arshad Noor Khan, 1st Additional Sessions Judge (East) Karachi, who found him guilty and vide judgment, dated 3-7- 1991 sentenced him to suffer R.I. For five years and to pay a fine of Rs.1,000 or in default to suffer R.I.
For six months.
2. The prosecution story lay within a very narrow compass. On 23-4-1976 complainant Mst. Samina daughter of Abdul Ghaffar, aged about 13 years had gone to the house of the husband of her aunt (Khaloo) to invite him for a dinner. At about 8 p.m. While she was returning to her house she was stopped by absconding accused Muhammad Arif who took her inside his house where the present appellant who was already present there committed rape upon her by force. After about 15 minutes Mst. Samina was allowed to go away, but with a threat. Mst. Samina informed her brother Muhammad Iqbal about the incident, who tried to capture the appellant but he managed his escape. On return to her house Mst. Samina narrated her woeful story to her father Abdul Ghaffar and other relatives. On the same day at 9 p.m. Mst. Samina lodged F.I.R. At New Town Police Station.
On 24-4-1976 Mst. Samina was produced before Dr. (Mrs.) Razia Qureshi who found her hymen torn on account of forcible sexual intercourse. During the course of investigation both the accused, viz., the present appellant and co-accused Muhammad Arif were arrested. The appellant was referred to Police Surgeon for medical examination. After usual investigation both the accused were sent up to stand trial for the offence under section 363-376-342/34, P.P.C. During the pendency of trial accused Muhammad Arif absconded and the trial continued against the appellant.
3. The prosecution examined Syed Taqi Raza (P.W.1), Mst. Samina (P.W.2), Abdul Ghaffar (P.W3), Muhammad Iqbal (P.W.4), Dr. (Mrs.) Razia Oureshi (P.W.5), and Oazi Abdul Rasheed S.I.P. (P.W,6).
4. The appellant met the charge with a denial. His defence in his own words is as follows:-- "Arif was my friend who had enmity with the father of complainant and due to that enmity I have been falsely implicated."
The appellant examined himself on oath (D.W.1), but led no other defence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty for the offence under section 376, P.P.C. And convicted him accordingly. It is in these circumstances that the appellant has filed this appeal under section 410, Cr.P.C.
6. I have heard Mr. IA. Haslvni, learned counsel for the appellant and Mr. Shoukat H. Zubedi, learned AA: G. For State. The latter has not supported the impugned judgment.
7. Mr. IA. Hashmi, learned counsel for the appellant has referred to several points but eventually confined his arguments in main to the following contentions:--
(i) That the appellant was a `child' within the meanings of section 5 of the Sindh Children Act, 1955, at the time of alleged incident and consequently his trial alongwith co-accused before the Court of 1st Additional Sessions Judge was illegal, thereby vitiating the whole trial;
(ii) that the medical evidence did not support the allegation of rape as there was no penetration which is an essential ingredient for an offence under section 376, P.P.C.
(iii) that no corroborative evidence was available to lend support to the case of the prosecution , and it was not safe to convict the appellant upon the uncorroborated testimony of Mst. Samina, the alleged prosecutrix; (iv) the evidence of Mst. Samina (P.W.2), Abdul Ghaffar (P.W.3), and Muhammad lqbal (P.W.4) is unreliable, who besides being interested have contradicted each other on material particulars.
8. On the first question about the jurisdiction of the trial Court, it is urged that the appellant was below 16 years of age at the time of incident and consequently he should have been tried by Juvenile Court constituted under section 7 of the Sindh Children Act, 1955. Section 5 of the said Act provides as follows:-- "Continuation of proceedinga against child on his attaining specified age: -- For the purpose of this Act, a person shall be deemed to be a child, if at the time of initiation of any proceedings against him under this Act or at the time of his arrest in connection with which any proceedings are initiated against him under this Act, such person has not attained the age of sixteen years: Provided that if during the course of the proceedings under this Act such person attains the age of sixteen years the proceedings already commenced shall be continued and orders may be passed in respect of such person under this Act as if such person was a child notwithstanding anything to the contrary in this Act."
9. There is nothing on record to even faintly suggest that the appellant was below 16 years of age at the time of incident. The age certificate of the appellant (Exh.23) i% on record which suggests the age of appellant between 16 and 17 years. This opinion is based on clinical as well as rediological examination and was not questioned by the appellant at the initial stage of the case. He came out with this plea for the first time after 15 years of the incident when his statement was recorded on oath on 15-6-1991. He has, however, not produced any documentary evidence to claim benefit under section 5 of the Sindh Children Act, 1955. In this view of the matter, the rule laid down in Bacho alias Abdul Jabbar v. The State reported in 1981 P Cr. L J 299, Amjad Ali alias Kaloo v. The State reported in 1985 P Cr. LJ 428 and Zar Muhammad v. The State reported in 1990 P Cr. L J 1756 will not be attracted to the facts of the present case.
10. Coming now to the second contention about the quality of medical evidence, all that is contended on behalf of appellant is that there was no penetration constituting the offence under section 376, P.P.C. The case affords a very striking example of the difficulties which may occur where the prosecutor acts negligently. The report of Chemical Examiner which was not brought on record could have provided a complete answer to this contention raised on behalf of the appellant.
The evidence of Dr. (Mrs.) Razia Oureshi (P.W.5) in this behalf is self-explanatory, which for the sake of convenience is reproduced below:-- "Thin built with poorly developed breast. No axillary hairs were developed. Very scanty and poorly developed pubic hairs. Small wound inside the lower jaw. There was no mark of injury or wound on any part of body. As per vaginal examination, very scanty and poorly developed pubic hairs were stained with blood. Vulva was stained with blood. No bruises or wound on thighs or vulva was visible. Hymen torn at 4, 7, 8, 11 O'clock with slight bleeding from hymen. One finger went with difficulty into the vagina. She had started her menses also. According to her she had started her menses four months back. According to my opinion she is not virgo intacto. Tear looked fresh; otherwise no vaginal tear. Intercourse could have been forcibly tried, but not completely penetrated because one finger went with difficulty into the vagina..."
11. On a careful examination of the above evidence it will be found that there was a partial and not a complete penetration. The penetration required to prove a case under section 376, P.P.C. Could be partial one which may not be sufficient to deprive the woman of the marks of virginity. However, in this case the hymen was found ruptured with fresh tear marks which in my view indicates that there was complete penetration. The opinion of an expert is only a piece of evidence, which has to be examined like any other evidence that might be adduced in a case. There is nothing in law which even faintly suggests that a Judge has to surrender his judgment to the opinion of an expert.
The evidence of Dr. Mrs. Razia Oureshi (P.W.5) when read together with the evidence of Mst. Samina (P.W.2) leaves no room of doubt in my mind about the rape committed upon Mst. Samina (P.W.2).
12. Mst. Samina (P.W.2) as her own witness has testified the facts leading to this incident. The evidence of Mst. Samina (P.W.2) shows that she was subjected to this inhuman act during menstruation, which fact was even noticed by Dr. Mrs. Razia Oureshi (P.W.5) when she examined her. The evidence which has come on record shows beyond any shadow of doubt that Mst. Samina (P.W.2) was subjected to rape and the appellant Aqeel Ahmed and none else was the author of this crime. The evidence of Mst. Samina (P.W.2) was in fact not challenged by the appellant who did not put a single question to her. No enmity is alleged by the appellant with Abdul Ghaffar (P.W.3) father of Mst. Samina (P.W.2) and it is his case that Abdul Ghaffar (P.W.3) had enmity with absconding accused Muhammad Arif and since he was a friend of absconding accused Muhammad Arif he was involved in this case falsely. Ordinarily, a father can hardly be conceived to bring disgrace to himself by ascribing the disgraceful role like the one under consideration and that too in respect of his minor unmarried daughter. I cannot persuade myself to believe that he could have accepted all this humilation for nothing. I have, therefore, no hesitation in rejecting the defence version as wholly concocted and false.
13. Lyon in his Medical Jurisprudence, 10th Edition, states at page 446, while dealing with the signs of loss of virginity:-- "There are obviously only available as evidence of rape in cases in which the female was virgo intacto previous to the commission of the offence. Rupture or laceration of the hymen is the chief sign of defloration available as evidence of rape, the various other signs of virginity, being, as a rule, not lost as consequence of one intercourse."
14. Mst. Samina (P.W.2) was admittedly unmarried. The medical evidence which has come on record shows that her hymen was found ruptured with fresh tear marks. This factor, therefore, lends support to the case of the prosecution that on the relevant date and time Mst. Samina (P.W.2) was subjected to rape by the present appellant.
15. The question still remains to be decided whether the testimony of the prosecutrix not corroborated in material particulars is sufficient to record conviction against the accused. The answer to this contention is furnished by A.S. Faruqi, J. (as he then was) in the well-known case of Saleh Muhammad v. The State reported in PLD 1966 Kar. 101, in the following words:-- "In a case of this kind after taking into consideration all the circumstances if the conclusion is reached that the woman's statement has been honestly made and is in accordance with all probabilities, then the Court would .Got refuse to sustain the conviction of the accused on the ground that there should have been some corroboration."
16. No doubt in this case the recovery of semen stained piece of cloth from the scene of occurrence could have, furnished strong corroboration to the version of Mst. Samina (P.W.2), but unfortunately the report of Chemical Examiner was not placed on record. However, for the reasons recorded above, I am satisfied that the evidence given by Mst. Samina (P.W.2) is substantially true and can form basis for the conviction of appellant with whom she had absolutely no enmity.
17. The main attack on the evidence of Mst. Samina (P.W.2), Abdul Ghaffar (P.W.3), and Muhammad Iqbal (P.W.h1) is that all of them are related inter se. Abdul Ghaffar (P.W.3) is father of Mst. Samina (P.W.2), while Muhammad Iqbal (P.W.4) is her brother. That no doubt is true, but their testimony cannot be brushed aside for this reason alone. It could be the relatives alone who are expected to figure as 'witnesses in such cases where family honour is involved. I have also considered the alleged contradictions with particular reference to the statement made by Mst. Samina (P.W.2) in Court about the dislocation of her two teeth. The medical evidence shows that Mst. Samina (P.W.2) had wound inside the lower jaw. These errors in the statements which were bound to appear in the testimony of witnesses deposing to an incident which took place about 10 years back are thus not material.
18. On consideration of the entire evidence as discussed above. I am fully satisfied that the occurrence took place in the manner as alleged by the prosecution.
19. Lastly, Mr. Hashmi, learned counsel for the appellant has touchingly pressed upon my attention to the case of Zulfiqar v. The State reported it 1991 P Cr. L J 1143, wherein a learned Single Judge of the Lahore High Court was pleased to reduce the sentence for the following reasons:-- "As noted above, the occurrence had taken place in March, 1978. The petitioner was arrested soon thereafter. The trial continued til October, 1980. The appeal filed by the petitioner after conviction, was disposed of on 19-12-1981. The petitioner, thus, had undergone stress and strains of trial for about 3 years. Since thereafter the petition is pending in this Court. During all this period, the petitioner must haft remained under a suspended state of mind. He had remained in jail for 20 days after conviction by the trial Court, and had suffered about 3 months' R.I. After dismissal of the appeal and before he was released on bail after suspension of sentences by this Court on 10-3- -1982. Thus, he has already undergone about 3-1/2 months sentence, apart from having remained under stress and anxiety during all these years.
Mst. Rifat also during this period might have married and settled: In fact, she might be having children. Sending back the petitioner to jail after such a long time would be reminding all concerned that Mst. Rifat had one been a victim of rape. Repetition of such A, story might affect her matrimonial relations and career of her children.
In the circumstances, I think, it will be in the fitness of things that sentence of the petitioner is reduced to that of already undergone. Order accordingly."
20. With all humility I confess that I am unable to follow the reasoning of the learned Judge. This is a reason, which if accepted, would do away with all punishments awarded in a case of this nature.
Mst. Samina (P.W.2), cut unmarried minor girl was made a laughing stock and she was forced to live with a stigma attached to her. No case for reduction of sentence is made out.
21. In the result the appeal fails and is dismissed. The appellant who is in custody be informed accordingly.