' Karam Hussain 25 was tried by Sessions Judge, Lodhran under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 452, P.P.C. In case F.I.R. No,19, registered at Police Station JallaArain on 1-3-1994 on the statement of Mst. Zohra Begum (victim) P.W.1. Vide judgment, dated 7-2-1996, he was convicted under section 10(3) of the said Ordinance and sentenced to undergo R.I. For ten years plus to suffer thirty stripes.
2. Occurrence in this case had taken place on 26-2-1994 at 11-00 a.m., in the house of the complainant, in Chak No,386/W.B., at a distance of twenty kilometres, from Police Station Jalla Arain.
3. F.I.R. Exh.P.A. Was registered at the police station by Khadim Hussain, M.H.C. On 1-3-1994, at 10-00 p.m. On the statement of Mst. Zohra Begum (victim) P.W.1.
' According to F.I.R. Complainant was student of 8th Class. She was in her house on 26-2-1994, her younger brother Khalid aged 8 years was also in the house. Her father Allah Bakhsh (P.W.2) brother Azhar Hussain (G.U.P.W.) along with other family members had gone to the fields for weeding onion crop. At about 11-00 a.m., Karam Hussain armed with Kulhari accompanied by his brothers Khadim Hussain and Altaf Hussain, entered the house. Karam Hussain overpowered her and lay her on the ground and threatened that if she raised noise she will be murdered. After removing her Shalwar, and opening the string, he started committing Zina-bil-Jabr with her: Khadim and Altaf Hussain stood as guard. In the meantime Allah Bakhsh and Azhar Hussain (father and brother respectively) reached the spot and witnessed the occurrence. Karam Hussain picked up Kulhari and his Shalwar and ran away along with Khadim Hussain and Altaf Hussain. Allah Bakhsh gave his Chaddar to the complainant for covering her body. The complainant alleged that Karam Hussain, Altaf Huvain and Khadim Hussain hatched conspiracy to commit. Ziadti with her. She explained that the accused party and few others had been beseeching her father, not to report the occurrence but she and her father did not agree and had come to lodge report finding opportunity.
3. Mamoor Ali, S.-I. (P.W.5) who was entrusted the investigation of the case visited the spot on 2-3- 1994, prepared site plan and recorded statements of the P.Ws. He arrested the appellant on 23-3- 1994 and got him medically examined.
4. Mst. Zohra Begum had been got medically examined from the lady Dr. Samina Rafi (P.W.4) on 2- 3-1994.
5. After completion of necessary investigation challan was submitted to Court against Karam Hussain only.
6. Statements of six P.Ws. Were recorded at the trial.
' Mst. Zohra Begum while appearing as P.W.2, repeated the facts given by her, in F.I.R. Exh.P.A. During cross-examination she stated that. She was free from the school for fifteen days before the occurrence for preparation of examination and the examination was to start on following day. She explained that apart from Khalid (younger brother) no other family member was in the house and all of them including, her grand-mother had gone to the fields for weeding onion. She stated that when the accused entered the house she was scared and had raised noise. She stated that she had struggled to rescue herself but failed to escape commission of Zina. She added that she had started bleeding because of commission of Zina. She expressed ignorance about any dispute between accused and her father. She denied the suggestion that her cousin Riaz had committed Zina with her and her father had got case registered falsely against the accused because of a dispute with them about a piece of land.
7. Allah Bakhsh, P.W.2, stated, that on 15th of Ramzanul Mubarik, he alongwith other family members had gone to the fields for weeding onion crop, leaving Mst. Zohra Begum his daughter and Khalid Masood, his ailing son aged about 7/8 years in the house. He stated that when he returned to the house at 11-00 a.m. He saw Khadim Hussain near the entrance of the door, Altaf Hussain present in the courtyard and Karam Hussain committing Zina with his daughter Mst. Zohra Begum. He added that as soon as Karam Hussain saw them, he fled away along with the hatchet. He explained that they did not report the occurrence for two days as the relatives of the accused had been entreating them. During cross-examination he stated that they owned 20 acres of land in Chak No,386/W.B. He admitted that there was a dispute between him and 'father of the accused about four acres of land. He added that the accused party had managed interpolation in the Khasra Girdawari and had obtained a stay order from the Civil Court and constructed a room in front of their house. He stated that excepting Mst. Zohra Begum and Khalid Masood all other family members were present in the fields. He stated that he had given a Chaddar to his daughter to cover herself. He stated that they remained at home for about 2/3 days after the occurrence due to worry, tension and pressure. He explained that he was under pressure of Makhdoom Iqbal a big Zimindar of their Illaqa. He denied the suggestion that Riaz son of his sister-in-law had committed Zina with his daughter and on account of dispute of land with the father of the accused he had falsely roped the accused in this case.
' Azhar Hussain brother of the victim named as eye-witness, was given up as unnecessary.
8. Lady Doctor. Samina Rafi who had medically examined Mst. Zohra Begum at 6-00 a.m. On 2-3- 1994 appeared as P.W.4. She observed as follows:-- "She was in senses. Mental status was normal. Gate was normal. Patient seems worry. There were multiple small scratches on both hands left arms and also some scratches on the back of right thigh. It means sign of struggle were present. Breast was well developed and nonpandulous. Nipple and a afeola were pinkish brown. Abdominal wall was tight. Hymen was torn and fresh healed tear were present, which slightly bleed on touch. Vagina is very tight and she feel severe pain during examination. During examination two swabs were taken cervical and vaginal swabs, which were sent to Chemical Examiner Multan for the deduction of semen."
' She stated that on the basis of examination and the positive report from the office of the Chemical Examiner Multan Exh.P.C. She had expressed the opinion that the examinee was subjected to sexual intercourse. During cross- examination she stated that she had not mentioned the dimentions of scratches since they were multiple. She added that scratches were not self-suffered. She stateditiat marks of struggle found by her on the body of the examinee were mentioned by her in her report. While answering a question she stated that probable duration of the marks were within 24 hours. She denied the suggestion that she had medically examined Mst. Zohra Begum under the influence of police.
9. Mamoor Ali, S.-I. Who had investigated the case, recorded statements of the witnesses, arrested the accused got him medically examined and submitted challah to Court appeared as P.W.5 and gave the details of investigation done by him. During cross-examination he stated that at the time of occurrence other family members of Mst. Zohra Begum, were not present at the place of occurrence and that, only, her brother Khalid Masood aged about 8 years was present there.
Muhammad Pervaiz constable who had transmitted, sealed phial containing swabs to the office of the Chemical Examiner Multan and Dr. Muhammad Riaz who had medically examined the appellant about potency were examined as P.W.3 and P.W.6. P.W.3 stated that he had delivered the parcels in tact in the office of the Chemical Examiner. P.W.6 stated that Karam Hussain was fit to perform sexual intercourse.. Positive report from the office of the Chemical Examiner was also tendered in evidence as Exh.P.C.
10. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. He neither produced any evidence in defence nor made statement on oath under section 340(2), Cr.P.C.
11. Learned counsel for the appellant after going through the .Evidence contended that the prosecution had failed to explain the delay of more than two clays in reporting the occurrence, that enmity between the father of the victim and father of the appellant was admitted, that there were contradiction between the ocular account and medical evidence. Lastly learned counsel submitted that. The sentence of R.I. For ten years was excessive and not commensurate with the facts of the case.
' Learned counsel for the State defended the judgment of the trial Court.
12. The victim in this case was a girl of 15 years. She was a student of 8th class. The victim and her father who appeared as P.W.2 stated on oath that the occurrence was not reported earlier as there was pressure from the party of the accused. Father of the victim stated that Makhdoom lqbal a big landlord of the area was helping the accused and putting pressure on him for not reporting the occurrence. The victim while lodging F.I.R. Stated that they had come to report the occurrence finding opportunity. She also stated that she was not prepared to compromise with the accused.
Although his father and other family members were under pressure from the accused party. In the cases, like the one, in hand, the pressures about which the victim and her father spoke, are usually. exerted.
' Even otherwise in such cases the parents of the girl take time to decide whether to lodge the report or not, because they are afraid that if the report is lodged the matter will become widely known and their family will be put to shame and they might find it difficult to settle the girl having been subjected to Zina. In the circumstances I am of the view that the delay stands explained.
There is yet another aspect also which might have weighed to some extent for delay in lodging the report and that is that the examination of the girl was to start from 27th i,e, next day of the occurrence and parents of the girl might have thought that if she was taken to the police station she may get involved in the investigation and may not find time to go to school for taking the examination.
13. Although Allah Bakhsh P.W.2 admitted during cross-examination that he had a dispute with the father of the accused, about four acres of land and that the father of the accused after having made some interpolation in the Khasra Girdawari had obtained stay order also from the Civil Court, but that fact in my view cannot be a reason for lodging a false report of Zina against the accused because the reporting of an occurrence of commission of Zina with a daughter, sister or wife, not only places accused in trouble but puts on stake the reputation, honbur and future of the girl also and family as well. The plea of the appellant put to the witnesses during trial that actually Zina had been committed with Mst. Zohra Begum by her cousin Riaz and that he has been falsely involved in this case because of dispute between his father and father of the victim does not possess force.
The substitution of accused is a rare phenomerra and it happens in cases where the accused is not known because of lack of identification or for any other reason but where the accused is known, someone can he tied along with him but it does not happen that he is let off scot-free and somebody else is reported against merely because of some quarrel or dispute of property. Had there been, even an iota of truth in the suggestion that Riaz had committed Zina with Mst. Zohra Begum, neither Mst. Zohra Begum nor her father would have spared him. Their grievance against Riaz would have been more grave because it would have caused graver disappointment to them.
It appears that the suggestion was a device to counter the medical evidence. The medical evidence in this case is so categorical that no room is left to argue that such occurrence had not taken place at all. Even otherwise I cannot imagine that the father of the girl would have falsely alleged the commission of Zina against the appellant and let away Riaz so easily. In the circumstances the argument advanced by the learned counsel that the case was the result of the enmity stands repelled.
14. The argument that there were contradictions between the medical evidence and the ocular account is based on the observation of lady doctor that hymen was torn and fresh healed tears were present which slightly bleed on touch.
' Learned counsel in fact was reading as if the tears were "fresh". Actually that was not the position.
The doctor had observed "fresh healed tears" which means healing was fresh. The fact that the doctor observed that the tears would bleed on touch also shows that the healing was fresh.
' It is common knowledge that if a freshly healed wound is pressed/pushed bleeding can start. The other fact on the basis of which learned counsel had advanced the argument was the statement made by doctor during cross-examination that probable time of the occurrence was within 24 hours. The marks were the result of struggle which had caused scratches on the hand, arm and thigh of the victim. The doctor although had noted that there were multiple scratches on the hand, arm and also on the thigh but she did not note the colour of scratches nor had noted their diamentions, she had observed the scratches on 2-3-1994. She made statement in Court on 24-7- 1995, that is, 16 months after she had seen the scratches. There was no material before her on 24- 7-1995 to give opinion al?Out the duration of the scratches. It was just a guess work. Had she noted the color of the scratches she could have possibly stated about the duration of the scratches.
' In view of the statement made by the victim on oath about the date and time of occurrence I am not inclined to act merely on the basis of the opinion of 'the doctor about the duration of the scratches which she had given without there being proper material and data before her. In the circumstances I do not find that there was any serious contradiction between the ocular account and the medical evidence, warranting rejection of the ocular account. Even otherwise unless there is some positive outstanding contradiction between the medical evidence and the ocular account, the ocular account is to be preferred against the opinion by the doctor about the duration of injuries.
15. The learned counsel had also argued that it-was not possible that the appellant would have chosen 11-00 a.m. In the day to commit such a crime. The question is not what time he had chosen.
The question is what he was found to have done! There is positive and clear evidence that he had committed Zina-bilJabr with the victim in her house. There is also evidence that excepting a boy of 8 years who was also ill, there was nobody in the house, therefore, the time chosen by the appellant was also not inaccurate.
16. For all the reasons noted above no case is made out for interfering in the judgment of the conviction. The same is, therefore, maintained.
' However, keeping in view the arguments of the learned counsel for the appellant for reduction in the sentence of imprisonment. R.I. For ten years' is reduced to R.I. For six years. Benefit of section 382-B, Cr.P.C. Shall be extended.
' Sentence of thirty stripes is remitted as the same stands abolished vide notification in the Gazette of Pakistan (Extraordinary), dated 15-4-1996.
Sentence reduced.