ABAID ULLAH KHAN, J.--- Sher Ali, son of Niamat Ali, caste Arain, aged 28 years, cultivator, resident of Niaz Colony, Tehsil Depalpur, District Okara, has approached this Court in appeal to impugn the validity of the judgment of the learned Additional' Sessions Judge, Okara, dated the 2nd April, 1991, whereby the appellant was convicted of the commission of offence of Zina-bil-Jabr with a 14/15 years old virgin girl, Mst. Shaman, P.W.3, and sentenced under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), to undergo rigorous imprisonment for 25 years and suffer 30 stripes of whipping. The prosecution version of the case as may be spelled out from the perusal of the first information report, Exh.P.D., lodged by Mst. Shaman at Police Station City Depalpur, on the 23rd April, 1989, at 10-00 a.m. May be briefly stated in the following words. It was the 16th of Ramzan-ul-Mubarak, 1409 on the 22nd April, 1989, when at about 6 o'clock in the morning Mst. Shaman went to a field of maize crop which was close by her house to answer the call of nature. She was keeping fast. After having relieved herself she had scarcely tied the string of her Shalwar when the appellant, Sher Ali, who had hidden himself nearby, suddenly came over there and started persuading her to submit to sexual intercourse. On her refusal to oblige him he forcibly felled her on the ground and putting his hand on her mouth tried to take off her Shalwar.
However, she got hold of the string with both her hands. Thereupon the appellant tore off her Shalwar from below and started committing Zina-bil-Jabr with her. She removed his hand from her mouth and raised alarm whereupon he pressed her throat. In the meantime Muhammad Ali, son of Qasim Ali, P.W.4, Muhammad Ali, son of Abdur Rehman, P.W.5, and her father, Nazeer Ahmad (who had been harvesting wheat crop nearby), came to the spot. Seeing them coming the appellant left her and started running. Nevertheless, he was apprehended and meanwhile the inhabitants of the colony came to the spot. The appellant was given a thrashing by those people and was subsequently handed over to the police. Mst. Shaman went to Police Station City Depa1pur and got the case, registered against the appellant.
2. Mst. Shaman was examined by a Lady Doctor Mrs. Sumbleen Shahid, Women Medical Officer, Tehsil Headquarters Hospital, Depalpur, P.W.2, on the 24th April, 1989, at 1-30 p.m. The Lady Doctor noted her age as 14 years. The Lady Doctor made the following observations touching Mst.
Shaman's examination:--
(1) Breasts were of medium size. Pubic and auxiliary hair was-present.
(2) Marks of violence were present. A swelling measuring 8 c.m. x 6 c.m. On the inner side of right thigh.
(3) P.V. Findings, vulva vagina well developed. Fresh absence of hymen Vagina admits one finger easily. Uterus nulliparous size.
The Lady Doctor opined that a hard object like penis had penetrated the vagina. She assessed the duration of injuries within 24 to 48 hours.
The Lady Doctor took three vaginal swabs and sent them in a sealed bottle alongwith the Shalwar of Mst. Shaman .In a sealed packet to the Chemical Examiner, Government of the Punjab, Lahore, for analysis. As per report of the Chemical Examiner, Exh.P.C. The swabs and Shalwar were stained with semen.
The Lady Doctor gave the opinion that sexual intercourse had been committed with Mst. Shaman.
Exh.P.B. Is the copy of the medico-legal examination report.
3. The appellant was- produced by the police before, Doctor Naseer Ahmad Chaudhary, Medical Officer, Tehsil Headquarters Hospital, Depalpur, P.W.1, and he examined him on the 23rd April, 1939, at 3-00 p.m. The Medical Officer found the following injuries on the person of the appellant:--
(1) Multiple contusion marks in an area measuring 20 c.m. x.12 c.m. On the back of trunk and top of left shoulder and left scapular region.
(2) Multiple contusion marks in an area measuring 20 c.m. x 25 c.m. On the right scapular region.
(3) Multiple abrasion in an area 20 c.m. x 4 c.m. On the front and outer aspect of left neck.
(4) Swelling 9 c.m. x 2 c.m: on the back of head with an abrasion over it.
(5) Multiple contusion marks in an area 15 c.m. x 11 c.m. On the outer aspect of upper part of left upper arm.
(6) Multiple contusion marks in an area 11 c.m. x 7 c.m. On the upper part of outer aspect of right upper arm.
(7) Multiple abrasions in an area 12 c.m. x 9 c.m. On the back of left lumar region.
(8) Contusion marks 6 c.m. x 2 c.m. On the back of left elbow.
(9) Complaint of pairs in the testies.
(10) An abrasion on the outer aspect of left forearm below middle measures 1 c.m. x 1 c.m.
(11) Contusion 4 c.m. x 2 c.m., on the front of right upper arm in the middle. '
(12) His head, hairs and left moustaches were shaved from places.
According to the Medical Officer the probable duration of injuries was eight to ten hours, they were simple in nature and had been caused with the application of blunt weapon. The Medical Officer declared the appellant to be fit to perform sexual intercourse. .Exh.P.A./1 is the copy of the medico- legal examination report in this behalf.
4. The appellant did not plead guilty to the charge of his committing Zina-bil-Jabr with Mst.
Shaman. In his examination under section 342 of the Code of Criminal Procedure he took up the stance that he had been falsely involved in the case just to save the skin of real culprits and the prosecution witnesses had falsely deposed against him because his father had a dispute touching closing of street with them. He did not like to give evidence on oath. He produced in defence Doctor Tahir Islam, Medical Officer, Tehsil Headquarters Hospital, Depalpur, D.W.1, and Muneer Ahmad Patwari, Depalpur Circle, D.W.2 whose evidence will he discussed at appropriate place.
5. The ocular evidence from the prosecution side in proof of the charge against the appellant consists of the depositions of Mst. Shaman RW.3, Muhammad Ali, son 'of 0asim Ali, P.W.4, and Muhammad Ali, son of Abdur Rehman, P.W.5. Mst. Shaman, testified that she had gone to the field of maize for easing herself at about 6-00 a.m. That after she had been free from the call of nature she had tied the string of her Shalwar, that Sher Ali, the appellant, had appeared there suddenly and had asked her to surrender before him for sexual intercourse but she had refused. She added that the appellant had picked her up and then made her fall on the ground. She further stated that he had tried to break the string of her Shalwar but she had resisted to save her honour. Continuing her statement she said that the appellant had forcibly torn off her Shalwar from below and had started committing Zina-bil-Jabr with her. According to her she had tried to raise cry but the appellant had shut her mouth with his hand and that when she had removed his hand and raised cries Muhammad Ali, son of Qasim Ali and Muhammad Ali, son of Abdur Rehman, as well as her father had come to the spot and witnessed the occurrence and caught the appellant red-handed.
She confirmed that it was the.16th of Ranizan-ul-Mubarak when the occurrence took place and that she was fasting. She went to the Police Station City Depalpur and lodged the report, Exh.P.D.
6. Muhammad Ali, P.W.4, deposed that at about 6-00 a.m., he alongwith Muhammad Ali, son of Abdur Rehman; P.W.5, had been passing by the maize crop field when they had heard cries emanating from the field and that they had gone to the place of occurrence and had seen that the appellant had been trying to escape and they had caught him. He bore out that the appellant, who had' been present in the Court, was the same person whom they had seen grappling with Mst.
Shaman. He narrated how the appellant had been brought in Abadi Niaz Ali and beaten with fists and blows by the people of Abadi.
7. Muhammad Ali, P.W.5, gave evidence to the effect that he alongwith Muhammad Ali, son of Qasim Ali, P.W.4, had been passing by the maize crop field of Sarfraz at about 6-00 a.m. And had gone inside the maize crop and seen that the appellant had been grappling with Mst. Shaman. He said that the appellant had torn the shirt and Shalwar of Mst. Shaman and that the appellant had been committing Zina-bil-Jabr with her. He confirmed that when they had gone near the appellant had tried to run away but they had captured him.
8. Mst. Shaman, P.W.3 and for that matter Muhammad Ali, P.W.4 and Muhammad Ali, P.W.5, are not proved to bear any enmity with the appellant or to have any sort of malicious intent for falsely involving him in the case. As her medical examination indicated she was virgin girt of about 14 years of age. She and her family would in no event have taken upon themselves the calumny of indelible stigma of rape had the occurrence been not true. The appellant made an attempt to put forth the plea of his substitution for one Niaz Ali whose name had been erroneously entered by Doctor Naseer Ahmad Chaudhary in the medico-legal examination report though he subsequently made amends and confirmed that it was none else than the appellant, Sher Ali, who had been examined by him. In the written request sent by the police for examination of the appellant, Exh.P.A.
The name and description of the appellant and not of Niaz Ali is mentioned. The appellant was inhabitant of the colony where Mst. Shaman, P.W.3, Muhammad Ali, P.W.4 and Muhammad Ali, P.W.5, lived. Therefore, there was no question of mistaking the identity of the appellant as he was already known to them. They identified him with particularity as the real perpetrator of the crime.
Their testimony inspires confidence and has rightly been placed reliance upon by the learned trial Court for determining the guilt of the appellant.
9. A word about the evidence produced by the appellant in defence may be said. Doctor Tahir Islam, D.W.1, brought the original register relating to the medical examination of the appellant and said that in the original report the name of the examinee was written as Niaz Ali., However, he admitted in cross-examination that the name of the father of the accused had been described as Niamat Ali (which is the name of the father of the appellant). He confirmed that in the application made by the police requesting for the medical examination of the accused the name of the examinee was mentioned as Sher Ali. He further clarified that in that application the police had written that the accused had been arrested at the spot and the people of the Niaz Colony had given him a beating. It may be noted that the appellant had tried to dispute his identity when Doctor Naseer Ahmad Chaudhary, P.W.1, was being examined in Court. The Medical Officer had examined him with reference to the mark of identification, a black mole on the left side of neck and had stated with emphasis that the appellant, who was present in Court as accused, was the same person who had been examined by him as Sher Ali. In Exh.P.A./1, the copy of the medico-legal examination report, the name of the examinee given in corrected form appears. There was no doubt that it was the appellant and no other person who had been examined by Doctor Naseer Ahmad Chaudhary and, who was the real culprit.
10. Muneer Ahmad Patwari, D.W.2, was brought into the witness-box by the appellant to show that at the place of occurrence Dhania (croriander) and not maize was standing at the time of occurrence is of no use because he could not possibly locate the place of occurrence with reference to field number in the site plan prepared by the Investigating Officer, Exh.P.F. Which was a rough one and without scale.
11. In view of what has be said above we find that the conclusion reached by the learned trial Court that the appellant was guilty of committing. Zina-bil-Jabr with Mst. Shaman is correct and we endorse it. The conviction of the appellant recorded by the learned trial Court is maintained. We will join the learned trial Court in condemning the ghastly and abominable action of the appellant. He showed scant regard for the sanctity of the holy month of Ramzan-ul-Mubarak and raped a virgin girl who was observing fast. He deserved no sympathy or leniency in matter of punishment. We do not find ourselves inclined to order any reduction in the sentence awarded to him by the learned trial Court. His appeal is, therefore, dismissed.
B.H.Q./704/FSC