This appeal arises out of judgment dated 22-10-1991 passed by the IInd Additional Sessions Judge, Karachi (South), in Criminal Case No.501/86 whereby he convicted the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter referred to as `the said Ordinance'), and sentenced him to rive years R.I. With 30 stripes.
2. According to the prosecution, the occurrence took place on 30-8-1986 at about 2-00 a.m., and the F.I.R. Was lodged on the same day at 6-00 a.m., i.e. About four hours after the occurrence by complainant Madad Khan cousin of Mst. Rashida, alleging that he alongwith his wife, children and Mst. Rashida resided in Gali No.18, Baghdadi Area, Karachi. On 30th August, 1986, after taking night meals he went to asleep when at about 2-00 a.m., his aunt woke him up and informed him that Mst. Rashida alongwith ornaments had disappeared from the house. On his such information he alongwith other relatives started search for her but got no clue. However, he suspected that the appellant Saeed son of Iqbal who had garrage near his house might have enticed her away. The F.I.R. Of the incident was registered at his complaint by Anwar Ali, S.I.P. Of Baghdadi Police Station.
No progress was made in the case till 21-9-1986 when Haider Bux Jatoi, Chairman Town Committee Mehar on telephone informed Anwar Ali, S.I.P. That abductee Mst. Rashida was available in village Ayub Kara. Anwar Ali alongwith complainant Madad Khan, Gul Nazar went there to Haider Bux Jatoi with whose good offices Mst. Rashida was recovered. Her statement under section 164, Cr.P.C. Was recorded by Magistrate She was examined by Medical Officer Dr. Qamrunnisa, who opined that the abductee with torn healed hymen was not virgin, and was used to sexual intercourse.
3. However, after usual investigation the appellant and co-accused Sajjad, Eijaz and Nisar were arrested and challaned. The case came up for trial before the Court of IInd Additional Sessions Judge, Karachi South, where a charge under sections 10(3), 11 and 19 of the said Ordinance was framed against the appellant and his associates, who did not plead guilty to it and claimed trial.
4. In support of the case the prosecution examined P.W.1 Madad Khan, is cousin of Mst. Rashida and from whose house Mst. Rashida disappeared. He lodged the F.I.R. Wherein he suspected that the appellant had enticed her away He alongwith A.S.I. Anwar Ali and other witnesses went to Haider Bux Jatoi at Mehar and got her recovered on 21-9-1986. He is not an eye-witness of the incident.
P.W.2 Gul Nawaz who resided in the neighbourhood of the complainant Madad Khan and who, was informed by Muhammad Khan about the incident. He is also not eye-witness of the incident. He accompanied the complainant for recovery of Mst. Rashida. P.W.3 Syeda Qamarunnisa, W.M.O., who examined Mst. Rashida on 24-9-1986 deposed as under, "On 24-9-1986 when I was posted as M.L.O. In Civil Hospital, Karachi, Mst. Rashida daughter of Muzaffar Hussain was brought to me from P.S. Baghdadi for medical examination. I examined her and found the following observations: On general examination she was a girl of fair built and with secondary sex characters developed.
There were no marks of violence found on the body. On local examination clothes of the incident were in police custody. Hymen had old healed tears at 3, 4, 5 and 6 o'Clock position vagina congested and admitted two fingers easily. Vaginal smear prepared and handed over to police for chemical examiner.
Pregnancy test was advised and found negative as per report from Clinical Pathologist of Civil Hospital, Karachi.
Opinion based on clinical findings she is not virgo intacta and habitual to sexual intercourse.
However, for the fresh act final opinion was kept reserved for the want of chemical examiner's report. I produce medico-legal certificate No.193/SO/86 dated 24-9-1986 as Exh.23 and say it is same correct and bears my signatures. Further reserved for want of chemical report.
Recalled and reaffirmed on 2-9-1991 To A. P. P.
The slides were sent by me to the 1.0. On the same date but the vaginal slides were not sent by S.I.
Anwar. Ali for chemical examination as stated by him before this Court in his evidence recorded on 21-3-1991. Therefore, I am not in a position to give any opinion about the fresh act of intercourse as to whether the fresh act of sexual intercourse was committed or not upon her."
P.W.4 Mst. Rashida is the prosecutrix, who has deposed that on the night of incident she had gone out of the house for the purpose of easing, where she Was abducted by two persons on gun point and taken in rickshaw to Mohajir Camp then to Korangi where appellant committed Zina-bil-later with her. She was then taken to Dadu by appellant and Wazir Malang who is absconder, and detained in the house of Ghulam Hussain by whose help she succeeded in getting freedom and returned to her house. P.W.5 is Atta Muhammad, whose evidence is identical with that of Madad Khan and Gul Nawaz. P.W.6 Anwar Ali, A.S.I., recorded F.I.R., investigated the case, recovered Mst.
Rashida from Dadu and challaned the appellant and his associates. P.W.7 Asghar Ali Baloch is a District Health Officer who physically examined the prosecutrix and found her of 17 years of age.
5. The appellant and his co-associates denied the allegations in their replies to questions put under section 342, Cr.P.C. And claimed that involvement in the case was due to enmity over business. His explanation is as under:-- "I am innocent. Case against me is false. Co-accused Sajjad is my brother so also accused Eijaz.
My cider brother Sajjad has enmity with complainant Madad Khan over the business-matter. He, therefore, falsely involved me in this case."
6. The appellant neither examined himself on oath nor produced any witness in defence.
7. The learned Additional Sessions Judge found the appellant guilty for offence under section 10(3) of the said Ordinance and convicted and sentenced him for the same as mentioned hereinabove.
His co-accused were acquitted. :Appellant has challenged his conviction and sentence in this appeal before this Court.
8. Mr. Raja Qureshi, Advocate appeared for the appellant and Mr. Rasheed Akhtar Qureshi, Advocate, appeared for the State.
9. At the very outset Mr. Raja Qureshi, the learned counsel for the appellant (sic) that the material witness with whose help Mst. Rashida was restored has not been examined which gives fatal blow to the prosecution and shatters the entire false prosecution story. It may be noticed that it is not the case of prosecution that Mst. Rashida was recovered from the possession of the appellant.
Even the learned Additional Sessions Judge has indeed not held recovery of the alleged abductee from or at the instance of the appellant. Thus, non-production or non-examination of Haider Bux Jatoi is of little consequence. Besides Nekmards of the nature who help in restoration of abductees act as mediators and always avoid to appear as witness. After using their good offices they remain unconcerned with the cases and Leave the parties to their own fate. In such situation Courts have to consider the evidence brought can the record and draw no adverse inference against the prosecution.
10. The learned Additional Sessions Judge has held in unequivocal terms that Mst. Rashida had gone out of her house at her own accord. The observations of the learned Judge in that respect are as under:-- "The story put forward by the prosecution on the point of abduction appears to be highly ridiculous and unnatural that a girl will take ornaments and clothes with herself while going to a latrine, as stated be complainant in the F.I.R. The allegations that accused were standing for her near the latrine also suggest that she herself had gone with them. She was taken to numbers of places but her evidence does not show that she raised cries anywhere or try to escape. The Medical Certificate issued by Mr. Asghar Ali Baloch shows her age to be 17 years which clearly shows that she was a major at the time of incident. All these facts conjointly shows that she left the house of her parents on her own accord and was not kidnapped by any one. In such circumstances the prosecution has failed to prove that she was kidnapped by the accused. So the case of the prosecution, is not free from doubt on the point of abduction:'
Regarding Zina-bil-Jabr the observation of the learned Judge is as under:- "On this point the evidence of prosecutrix Mst. Rashida-is supported by medical evidence. Mst.
Rashida in his evidence has categorically deposed on oath that accused Saeed committed Zina- bil-Jabr with her against her wishes. The evidence of prosecutrix Mst. Rashida is supported by evidence of lady Dr. Syeda Qammarunnisa who has examined her has deposed that her hymen had old healed tears at 3, 4, 5 and 7 o'Clock position. Vagina congested and admitted two fingers easily she has opined that she was not virgo intacta and she was habitual to sexual intercourse clearly shows that she was subjected to Zina-bil-Jabr repeatedly. Though there is no evidence of fresh act of intercourse but the evidence of the prosecutrix supported by the medical evidence that she was habitual to sexual intercourse and was not virgo intacta clearly shows that she was repeatedly subjected to Zina-bil-Jabr. It may be that she has left the house of her parents of her own accord but there is no evidence that she was validly married with the accused and has stated that she was subjected to Zina-bil---Jabr clearly shows that she was used by the accused forcibly against her wishes. There is nothing on record to doubt her testimony."
11. It was the grievance of the learned counsel for the appellant that when evidence of Mst.
Rashida- regarding abduction was not believed, then her evidence regarding Zina-bil-Jabr also ought to have been discarded but the learned Judge believed the same and based conviction of the appellant thereon. The contention is devoid of force. Such contentions have been repelled byte superior Courts of this country and doctrine of `Falsus in uno Falsus in omnibus' has received no recognition.
12. It is unfortunate that in criminal cases generally and sex cases particularly parties conceal and suppress true facts favourable or befitting to I their cases, and in such cases it becomes the onerous duty of the Courts to sift corn from the chaff, accept true facts and discard the false ones to arrive at just conclusion, to dispense administration of justice. The proposition gets support from the recent case decided by the Supreme Court reported as Muhammad Sharif Khan v. The State 1991 P Cr. L J 1992.
13. The special feature of this case is that when Mst. Rashida had gone out of her house of her own accord with the appellant and did-not raise any hue and cry, she seems to be a consenting party to sexual intercourse. Thus, conviction of the appellant ought to have been recorded under subsection (2) of section 10 of the said Ordinance but not under subsection (3).
14. It was lastly submitted by the counsel for the appellant that the appellant had committed no offence. The case was the outcome of enmity over some property hence no reliance could be placed on un-corroborative evidence of Mst. Rashida. The submission is without substance. It may be observed that people in this country due to enmity over trifle matter of business or for p likewise matter do not pat at stake their honour or that of their women-folk generally and unmarried females particularly. Reliance is placed on Ghulam Kibria v. The State PLD 1982 FSC 1. Even otherwise the direct enmity has not been proved by the defence. The documents placed on record do not have E any nexus between the complainant and the appellant because of the said lapse.
15. It is noticeable that Mst. Rashida has admitted in cross-examination that appellant used to stare at her. Indeed such affair might have developed close intimacy between the appellant and Mst. Rashida. Such affairs are not uncommon which may not be believed. Besides, in her statement Mst. Rashida has deposed that appellant took her to his house in Muhajir Camp. The appellant in his statement has shown his house at Muhajir Camp. Thus, deposition of Mst. Rashida gets corroboration from the statement of the appellant himself. She has stated in unequivocal terms that the appellant committed rape upon her. Her evidence gets support from evidence of P.W.3 W.M.O. Syeda Qamarunnisa. However, in the circumstances of the case the absence of traces of fresh sexual intercourse with the prosecutrix are not material as she was recovered from Dadu and examined on 24-9-1986. Besides, the swabs were not sent perhaps, inadvertently for chemical examination. No adverse inference thus can be drawn because of the said lapse of the police officer.
16. In the circumstances discussed herein above I am convinced that appellant has committed sexual intercourse with Mst. Rashida but not without her consent. Thus, I am inclined to convert the conviction of the appellant from section 10(3) to section 10(2) of the Ordinance. He therefore, is convicted under section 10(2) of the Ordinance and sentenced to suffer R.I. For five years and whipping numbering thirty stripes with benefit as provided under section 382-B, Cr.P.C.
17. With the above said modification the appeal stands dismissed.
N.H.Q./708/FSC