NAZIR AHMAD BHATTI, J.---Complainant Sanwar and his two relatives Rasool Bux and Makan were ploughing their cotton field on 23-8-1991 when at about 8-10 hours they heard the cries of Mst.
Zahida, minor daughter of the complainant, from inside the sugarcane field of Makan. All the three went to the spot and saw appellant Haji Ayoob running away from the spot along with accused Younis and Ali Faqir. The complainant and his relatives went inside the sugarcane field and saw Mst. Zahida lying on the ground with her trouser way down. Upon their enquiries she told them that she was bringing meals for them when the three accused, who were standing on the Bannah, dragged her to the field where appellant Haji Ayoob committed Zina---bil-Jabr with her while the other two accused held her by the arms and mouth. The trouser of the girl was stained with blood.
The complainant first went to village Moro and narrated the occurrence to his Zamindar Jam Qarar Din and from there he went to Police Station Pabjo, District Nawabshah and recorded F.I.R. No. 17/91 at 18-10 hours.
2. Mst. Zahida, aged about 10 years, was examined by P.W.1 Lady Dr.Khalida Qadir on 23-8-1991 at 7- 00 p.m. The lady doctor found serious pain and bleeding during pervaginal examination of Mst.
Zahida. The lady doctor also found vaginal tear 1 c.m. In length extending from vagina towards perinium, hymen torn and recent tear found posterior laterly and veginal orifice admitted passage of one finger. According to the lady doctor the girl had lost her virginity. Two vaginal swabs were taken by the lady doctor to determine if they were stained with semen or not through chemical analysis. The girls was admitted in the hospital and discharged on the next day.
3. After investigation all the three accused were sent up for trial before the Ist Additional Sessions Judge, Nawabshah who charged appellant Haji Ayoob under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the other two accused under section 10(3) read with section 114, P.P.C. All the three accused pleaded not guilty to the charge and claimed trial.
4. After the conclusion of the trial the learned Additional Sessions Judge convicted appellant Haji Ayoob under section 10(3) of the Hudood Ordinance and sentenced to undergo rigorous imprisonment for 25 years and to suffer 30 stripes but acquitted the other accused Younis and Ali Faqir. Convict Haji Ayoob has challenged his conviction and sentence by the appeal in hand.
5. The testimony of the lady doctor would show that Mst. Zahida had been subjected to sexual intercourse some time before her medical examination. Mst. Zahida had directly charged Haji Ayoob for subjecting her to Zina-bil-Jabr in the morning of that day. Her father complainant Sarwar and the other relatives reached on hearing her cries and had seen the occurrence and the accused ran away from the spot on seeing the complainant and witnesses leaving the girl there.
6. It was the contention of the appellant that he was a pious and religious man and had not committed the offence but he had enmity with Senator Jam Qarar Din who was landlord of the complainant and on that account had been falsely implicated. In so far as this contention is concerned, in view of the clear charge by the victim and the complainant and coupled with the medical evidence it was fully established that the victim had been subjected to sexual intercourse forcibly by the appellant and the question of previous enmity was immaterial.
7. The appellant made a simple denial of the charge in his deposition under section 342, Cr.P.C. And in his statement on oath. He also attempted to show that on the day of occurrence he was not present in the village and was confined in jail at Lasbela but he did not produce any evidence in this respect. Had he been confined in jail at some other place, he could have produced documentary evidence to prove the same. His simple assertion regarding this aspect is not worthy of any credit.
8. It was also contended that there was a delay in recording the F.I.R. Inasmuch as the occurrence was alleged to have taken place at 8-10 hours while F.I.R. Was recorded with a delay of 10 hours at 18-10 hours and no explanation had been given for this delay which showed that the F.I.R. Had been recorded after deliberation. We have considered this aspect of the matter very anxiously but we are unable to accept the contention of the appellant for the reason that the girl was actually subjected to rape and the occurrence took place at day time and there was no question of misidentification or any fabrication of a false case. The delay in disclosing the occurrence at the police station did not make any difference. The original F.I.R. Did not disclose that the appellant and the other acquitted accused had muffled their faces. The deposition of the victim to the effect that the appellant had muffled his face would actually disclose the manner in which turbans are worn around the face in the Province of Sindh.
9. It was then contended by the learned counsel for the appellant that although the vaginal swabs were taken but the report of the Chemical Examiner was not on the record and the presence of semen inside the vagina of victim was not proved. This contention can also not be given any serious consideration for the reason that penetration is sufficient to cause the offence of rape and very material evidence was brought on the record to prove that penetration had actually taken place and the medical examination had clearly established that penetration did take place.
10. It was also contended that the victim had pot been examined under section 161, Cr.P.C. And the occurrence had become doubtful. The recording of the statement under section 161, Cr.P.C. Is only a step in investigation of the case and non-recording of any statement of a witness by the Investigating Officer would not cause any prejudice to the accused.
11. It was also contended by the learned counsel for the appellant that there was an improvement in the prosecution case inasmuch as the complainant and the other witnesses had not seen the actual offence of rape according to the F.I.R. But at the time of evidence all the three had deposed that they had actually seen the appellant committing Zina with the victim. Although some improvement was made in the prosecution case during trial but even if the testimony of the other witnesses ignored, the solitary statement of the victim was sufficient to bring home the guilt of the appellant. Mst. Zahida was a minor girl, she was subjected to rape and she had directly charged the appellant for that offence. She had also deposed that her cries had attracted her father and other relatives who had reached the place of occurrence whereupon the appellant and other acquitted accused decamped from the spot. Such testimony was sufficient to bring home the guilt of the appellant, even if the testimony of other witnesses be ignored.
12. The appellant had committed a very serious offence. He had subjected a minor girl of about 10 years to rape. The offence committed by him was proved without any doubt whatsoever. He did not deserve any indulgence. He was appropriately convicted and sentenced by the learned Additional Sessions Judge. We do not find any merit in this appeal which is dismissed. The appellant shall be entitled to the benefit under section 382-B, Cr.P.C.