MIR HAZAR KHAN KHOSO, J.--- This appeal is directed against the judgment, dated 8-12-1991 passed by the learned Additional Sessions Judge, Rawalpindi, whereby the appellant was convicted for offence under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer R.I. For fifteen years and fifteen stripes.
2. The case of the prosecution is that on 24-6-1989 when victim Mst. Anaran Bibi aged about 10/11 years was alone in her house the appellant, who comes from the same caste, committed Zina-bil- Jabr with her and left her bleeding with urine. At the time of going the appellant extended threats to the victim of dire consequences if she disclosed the incident. Hence she did not disclose the incident and she was given treatment by a private practitioner. After 7 days she disclosed the matter to her sister-in-law Mst. Shamim Akhtar and her (victim's) brother Lal Khan, who reported the matter to the police on 30-6-1989. The victim was sent for medical examination to hospital where Dr. Ghazala Gulraiz examined her. Her evidence is as under:-- "On 1-7-1989 at 1-00 p.m. I have examined Mst. Anaran Bibi daughter of Ahmed Khan, Caste Pathan, resident of Gall No.27, Peoples Colony, Rawalpindi. She was brought to me by police. There were no marks of violence on private parts. Hymen was torn and was fresh at that time. Two vaginal swabs were taken and were sent to chemical examiner, Rawalpindi, through police for semen detection.
Bleeding from edges and vagina seen. There were 3rd degree prenial tear. Shalwar was also marked as it was also stained with blood and was sent in the same envelope alongwith the swabs.
In my opinion, she had been subjected to sexual intercourse. She was advised admission in Gynae ward for stitching. My report is Exh.P.B. Which is in my hand and bears my signature. According to report of chemical examiner Exh.P.C. The swabs and Shalwar were found stained with semen and blood. x x x x by the learned defence counsel In tropical region like Pakistan girl starts menstruation from 11 to 13 years. In age of 11 to 13 years, a girl cannot be induced to menstruation by just having sexual intercourse with her. When I examined the victim she was wearing the same Shalwar, which I took into possession and sent to Chemical Examiner. I did not find any semen stain on the Shalwar of the victim as it was blood-stained. It is possible that after urination and bleeding from vagina the semen be retained by vagina till 7-8 days of the sexual intercourse. After 7-8 days hymen tears are healed. In the present case I found the hymen tear fresh. I cannot give my opinion whether the victim offered any resistance or not because l had not found any mark of violence on her private part. The Victim remained under my examination for about 2-3 hours. Her vagina was yet bleeding when she was advised to be admitted in gynae ward. I had asked the victim whether she had been examined by any other doctor prior to me and she replied in affirmative, but I did not mention this fact in my report Exh.P.B.
I did not enquire from her whether she was given any medicine by that doctor or not neither she told herself about this fact."
The appellant was arrested and also examined by Dr. Humayoon Safdar, who found him fit to commit sexual intercourse. After usual investigation the appellant was challaned before the Court to face trial for offence under section 10(3) of the Ordinance. The case came for trial before the Court of the learned Additional Sessions Judge, Rawalpindi, where the appellant did not plead guilty to the charge and claimed trial.
3. In support of its case the prosecution examined P.W.1 Muhammad Nazeer; H.C. a formal witness, P.W.2 Feroz Khan, S.I. a formal witness, P.W.3 Dr. Ghazala Gulraiz, W.M.O., P.W.4 Dr. Humayoon Safdar, M.O., P.W.5 Muhammad Nawaz, Foot Constable, a formal witness, P.W.6 Mst. Anaran Bibi, victim, P.W.7 Lal Khan, complainant, P.W.8 Mst. Shamim Akhtar and P.W.9 Muhammad Taj, S.I./Investigating officer.
4: In his statement recorded under section 342, Cr.P.C. The appellant denied the allegation and advanced the following defence plea:-- "On 24-6-19891 was away to Murree alongwith my friends and was not present in Pindi at the relevant time. In fact father of Mst. Anaran Bibi demanded the hands of my sisters Mst. Zahida and Naseem for his sons but my father refused to marry my sisters with his sons. Due to that grudge I have been falsely implicated in the present case. Even during the trial of the case father of Mst.
Anaran Bibi has been asking us to give him Rs.50,000 and to marry Zahida and Naseem with his sons for non-persuing the case against me."
He examined himself on oath and also produced defence witnesses Muhammad Shafiq, Amir Hussain, Mehr Khan and Dost Muhammad. However, the learned trial Judge did not believe his defence plea and convicted him for the offence as mentioned hereinabove. Hence this appeal.
5. Mr. Iltaf Elahi Shaikh, Advocate, appeared for the appellant and Mr. Muhammad Aslam Uns.
Advocate appeared for the State.
6. In support of the appeal the learned counsel for the appellant raised following grounds:-- .
(i) In F.I.R. The delay has not been explained. The explanation given by the prosecution in Court is unplausible.
(ii) The medical evidence belies the prosecution version.
(iii) Evidence of P.Ws. Lal Khan and Mst. Shamim Akhtar is hearsay; hence inadmissible.
(iv) The evidence of the prosecution was recorded in piece-meal.
(v) Nothing incriminating was recovered from the place of incident.
(vi) Age of the victim has not been legally determined. .
(vii) There exist enmity between the parties and the defence is plausible which should be accepted.
7. With the assistance of the learned counsel for the appellant we have gone through the evidence of P.W.6 Mst. Anaran Bibi. P.W.7 Lai Khan and P.W.8 Mst. Shamim Akhtar. The evidence of witnesses Lai Khan and Mst. Shamim Akhtar is of formal nature. They are not eye-witnesses of the incident.
They came to know about the incident through victim Mst. Anaran Bibi. The main witness in the case is Mst. Anaran Bibi herself. In her statement recorded before the trial Court she has fully implicated the appellant for having committed Zina-bil-Jabr with her. In cross-examination no material was brought on the record to discredit her positive evidence. No enmity has been assigned with the' prosecution witnesses for false implication. The only suggestion put by the defence was that the complainant party demanded hands of two sisters of the appellant for marriage with complainant's brothers which was refused. Such assertion could not be said to be an enmity. Besides, it has been brought on the record that two brothers of the victim were already married. Thus, there existed no enmity between the two parties at the time of incident. The objection taken by the learned counsel for the appellant in that respect fails. However, the victim is a girl of 9/10 years. She had been threatened by the appellant to desist from disclosing the fact which is a plausible explanation for lodging the complaint with delay. However, in spite of all efforts when bleeding did not stop, the victim had to disclose the true facts. Besides, it may be observed that serious objection in respect of the first treatment was taken by the learned counsel for the appellant claiming that the medical report does not show that she was, already examined by a medical practitioner. The objection is of trivial nature and needs no comments. It may be seen that the victim had been bleeding till the day when she was brought before the Woman Medical Officer.
Hence it may had given an impression to the W.M.O. That the injuries were fresh. The objection of the learned counsel for the appellant that the medical evidence does not support the version of the victim is of no substance. From the very F.I.R. Till the disposal of the case the age of the victim has been shown as 9/10 years, which has not been challenged by the defence at any stage.
Defence seems to have admitted the same. Objection for the same cannot be taken at this stage.
Besides, Dr. Ghazala Gulraiz has said that she was of 9/10 years of age. Even the learned Judge while recording her evidence has shown her age as 9/10 years. The objection has thus no force. The offence was committed on 24-6-1989 and the report-was lodged on 36-6-1989, hence nothing can be recovered from the place of incident. The objection raised in that respect is frivolous.
Besides, the appellant has talon a plea of alibi of being in Murree at the time of the incident. Such plea was not taken before the police during the investigation. Investigating Officer Muhammad Taj has categorically denied the same. The plea seems to be an afterthought. Even otherwise during cross-examination or in his statement recorded under section 342, Cr.P.C. The appellant has not disclosed name of Muhammad Shafiq or any other witness. Thus, no importance can be attached to evidence of defence witnesses Muhammad Shafiq. Evidence of defence witness Amir Hussain and Mehar Khan is of no consequence. However, evidence of defence witness Dost Muhammad reveals that the appellant's father approached the parents of victim Mst. Anaran Bibi who demanded hands of two sisters of the appellant and Rs.60,000 as compensation. Evidence of this witness on the contrary supports the version of the prosecution that the incident had taken place.
Even otherwise the appellant himself admitted that somebody else had committed the offence and his name is substituted. The Courts in our country do no recognize the phenomenon for substitution. The authorities 1975 P Cr. L J 1319, 1985 P Cr. L J 2826, PLD 1984 SC 72 and PLD 1988 FSC 119 have no relevancy with the facts of this case, hence are of no help to the appellant. The evidence of the victim corroborated by the -medical evidence is sufficient for proving the charge against the appellant. Reliance is placed on 1983 SCMR 901. There is no merit in the appeal which is dismissed accordingly.
8. Besides, it may be observed that during the cross-examination the defence counsel had put indecent and scandalous questions to P.Ws. Mst. Anaran Bibi, Lai Khan and Mst. Shamim Akhtar.
Such questions as a matter of fact has no relevancy with the offence of Zina-bil-Jabr committed upon Mst. Anaran Bibi. The trial Court should have disallowed putting of such questions under Article 146 of the Qanun-e-Shahadat Order, 1984. For guidance of the trial Court we are inclined to reproduce the Article herein as under:-- Indecent and scandalous question.--- The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matter, necessary to be known in order to determine whether or not the facts in issue existed."
We are constrained to observe that the learned trial Judge had given undue latitude to the defence who had put very serious scandalous questions to an innocent woman witness whose only fault was that she appeared as a witness in a rape case. Firstly it was the duty of the learned counsel to have avoided to put such questions to a woman who was indeed not a prosecutrix but merely a witness and then the duty of the learned Judge to have disallowed the defence counsel to put indecent and scandalous questions in respect of character of a witness. Such questions indeed if not proved may lead to prosecution under the provisions of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.
9. However, at the time of admission of the appeal it was found that mandatory punishment of thirty stripes was not awarded to the appellant by the trial Court, hence a suo motu notice for enhancement of the sentence of stripes was issued to the appellant. Under section 10(3) of the Ordinance, the sentence of thirty stripes is mandatory, but the learned trial Judge has awarded fifteen stripes to the appellant. The number of stripes is, therefore, enhanced from fifteen stripes to thirty stripes. Criminal Appeal No.284/I of 1991 anti Criminal Suo Motu Notice No.1/1 of 1992 are disposed of accordingly.
The above said are the reasons of our short order passed on 26-5-1992.
N.H.Q./717/FSC