1. ' ABDUL WAHEED SIDDIQUI, J.--- Muhammad Riaz, appellant, has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo R.I. For 10 years with punishment of whipping numbering 30 stripes by the Court of Additional Sessions Judge, Chakwal. A revision petition has been filed by Mst. Zakia Parveen, the prosecutrix/victim, for enhancement of the sentence of R.I. For 10 years to R.I. For 25 years. In the same judgment another co-accused Samar Abbas has been acquitted. This acquittal has been impugned by the said Mst.
2. Zakia Parveen through a Criminal Appeal praying for conviction of Samar Abbas under section 10(3) of the Ordinance mentioned supra. We propose to dispose of Criminal Appeal No,61/I of 1996 and Criminal Revision No,13/I of 1996 together as these have arisen from the same judgment.
2. Facts of the case, in brief, are that Mst. Zakia Parveen aged 16 years, resident of Village Gahi, appeared before D.S.P. Saddar, Chakwal on 24-6-1995 at 3 p.m. And reported that on 22-6-1995 at 8 a.m. She was alone in her house and came out in the street to find her goat which had escaped.
3. On the indication of some three ladies present there, she followed the goat towards Agwara. At Agwara two persons, Riaz and Samar, were sitting who forced and fetched her inside the house of Riaz and committed Zina with her. At that time none else was in the house. They, then detained her inside the house, closed it from outside and went out. She started crying during the incident, but she was silenced on point of threat of murder. When darkness of the night prevailed, they came, unlocked the house and at 10 p.m. Made her sit outside the place of incident on the ground and kept on standing for some time. After some time her relative Zafar Iqbal came there and informed her that for the whole day members of her family have been searching her. She went along with Zafar Iqbal to her house and told the entire story to her mother. Her statement was recorded by Maqsood Khan, D.S.P., (P.W.9) with his own endorsement on it to the effect that the complainant lady was accompanied by her mother Mst. Saleem Akhtar (P.W.5) and her uncle Subedar Muhammad Aslam.
3. Both the accused were charged under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which they did not plead guilty. Prosecution examined 9 P.Ws. And both the accused gave their statements under section 342, Cr.P.C. However, they declined to be examined on oath. Accused Muhammad Riaz did not produce any witnesses in defence, however, another accused Samar Abbas examined 2 witnesses in defence.
4. We have heard learned counsel for appellants, petitioner and State. The learned counsel for appellant/convict has contended that the star witness, P.W.4, has not been believed by the trial Court so far as the guilt of co-accused Samar Abbas is concerned. Therefore, she should not have been believed about the guilt of the appellant/convict, that there is an unexplained delay of two days in reporting the offence, that the animus between the family of the complainant and accused is evident from the evidence laid before the trial Court, that the alleged rape was committed at a house in which other family members of the appellant/convict were residing which included his sisters as well and therefore, it appears unnatural that such a heinous offence could have been committed before their eyes, that the medical examination of the victim (P.W.4) had taken place almost 58 or 59 hours after the occurrence hence it is doubtful. Further contention of the learned counsel was that the Lady Doctor (P.W.3) having examined the victim could not conclude as to whether rape was committed upon her or not and she gave her opinion about the offence mainly relying on the positive report from the Chemical Examiner which report in itself is dubious on the ground that according to her deposition, she handed over the sealed phial containing vaginal swa bs alongwith sealed envelope and Ddi.P.B. To A.S.-I. Karam& Ali (P.W.7) on 24-6-1995 around 6 p.m. And this witness in his deposition has said that on the same date he produced the sealed phial etc. Before Suhbat Hussain (P.W.8) who took the possession of these articles under Memo.
4. Exh.P.G. This witness has deposed that he handed over this case property to the Moharrir intact on the same day and has denied its deposit with Mazhar Hussain (P.W.1) on 25-6-1995. In contradiction to this Mazhar Hussain Shah (P.W.1) has deposed that on 25-6-1995 Sohbat Hussain, S.-I. (P.W.8) gave him this property which was handed over to Sabir, Constable (P.W.2), intact, for its onward transmission to the concerned office. This P.W. Has been endorsed by the deposition of Sabir Hussain (P.W.2), who has also deposed that he was handed over this property on 26-6-1995 and he conveyed the same to the office of Chemical Examiner, Rawalpindi intact on the same date. According to the learned counsel this contradiction has far-reaching effects inasmuch as that the only corroboration of the prosecution story is the opinion of the Lady Doctor (P.W.3) but she has deposed that the locus standi of her positive opinion is the positive report of the chemist.
5. When, according to what has been contended by the learned counsel of the appellant/convict, the very basis of the report of chemist is crumbling i,e, the receipt of the vaginal swabs in really intact and non-tampered form is doubtful then in that case the whole edifice built upon this report must crumble and fall on the ground. Further contention was that the Lady Doctor (P.W.3's) silence about the hymen of the victim, her finding that there were no marks of violence on the body of the victim, her note that the vagina admitted two fingers with difficulty vis-a-vis complainant's deposition that she was raped by two young healthy persons many time and on P/V examination the note that there was only redness around the external vaginal orifice is sufficient to disbelieve the prosecution. He relied, inter alia, upon 1993 PCr.LJ 156 and 1988 PCr.LJ 949. The learned counsel for petitioner has contended that the delay in reporting the offence is properly explained by Mst.
6. Saleem Akhtar, mother of the victim (P.W.5) in her deposition, that the place of incident was a deserted house, that the non-presence of marks of violence on the body of the victim was due to overwhelming position of two healthy young and threatening persons in comparison to a 16 year's young unmarried girl of average height and built who could not resist, the silence of Lady Doctor about the rupture of hymen may be due to the presence of an elastic hymen, and acquittal of co- accused does not help the convicted appellant inasmuch as that the acquittal has been challenged in Criminal Appeal No,59/I of 1996 which was admitted by this Court on 6-11-1996 and notices were issued but the accused has become fugitive of law; that the discrepancy among the depositions of P.W.8, P.W.1 and P.W.2 regarding the transmission of the sealed vaginal swabs is a minor one and can be explained. He relied, inter alia, on 1993 PCr.L1 651, 1993 PCr.LJ 1839, 1992 PCr.LJ 1817, PLD 1985 SC 305, PLD 1985 FSC 282 and 1990 SCMR 886. The counsel for State supported the impugned judgment and has not supported the proposition of revision petition to enhance the quantum of sentence.
5. We have carefully examined the impugned judgment, have gone through the records of the case, the case-law cited and the relevant portions of some of the standard works on forensic science. The argument of the learned counsel for appellant/convict that such a heinous crime of rape could not take place in a house in which parents and sisters of the appellant/convict were residing is not tenable. Mst. Zakia Parveen (P.W.4), the unfortunate ravished girl, has clearly stated during cross-examination as under:-- "Towards south of Agwara there are three deserted houses. Towards West of Agwara across the lane there is a house of one Sardar Khan. I had not seen any one in that house. Sardar Khan aforementioned resided in that house. It is incorrect to suggest that the house of Muhammad Riaz son of Karam Bukhsh is located towards north-east of Agwara. Towards east of Agwara, there is agricultural land. The accused persons held me when I was in the lane. I raised alarm. The accused persons immediately took me in the house. I continuously raised alarm inside the house. For half an hour I raised alarm but no one came for my rescue. I was kept in the western room. It is incorrect to suggest that a lane passes close to the eastern room. It is correct that there is a lane close to the western room. The door and the window of the western room open in the courtyard and not in the lane as suggested. Towards north of the spot, there is a house of Hazir Khali. Voluntarily stated, said Hazir does not reside there. The house of Muhammad Riaz son of Karam Bukhsh adjacent to the spot on its eastern side was lying deserted."
7. We have compared the site plan, Exh.P.H., with this piece of the deposition and have found it in its total continuity. The deposition inspires confidence and is further corroborated by the deposition of Mst. Saleem Akhtar, P.W.5, who replied during cross:-- "I have seen the house of Riaz accused where the occurrence took place which is deserted one and is not surrounded by inhabited houses."
8. This position has not been averted by the defence anywhere. As to the point of delay of two days in reporting, the explanations given by Mst. Zakia Parveen (P.W.4) and corroborated by her mother Mst. Saleem Akhtar (P.W.5) is plausible. Both of them have clearly deposed that they had tried to get the case registered with Police Post Buchal and they were made to sit at the police post on 23- 6-1995 for the whole day from 6-50/7-00 a.m. Onwards but no case was registered. Then, on 24-6- 1995, after having failed to get it registered in the morning, they went straightaway to Chakwal where they reached at 1-30 p.m. And reported before D.S.P. Who brought the incident on record. So far as the contention that enmity existed between the families is concerned, it is nothing but a conjecture advanced by defence. It appears unnatural that an unmarried young girl of 16 years will stake her reputation and future because we find no nexus between the allegation of sodomy by complainant Mohsin Abbas against Sannnar Abbas in a different case and the charge of the victim girl against the convict/appellant and his co-accused in the present case. The victim or her mother were not at all connected with that affair in any manner. So far as the doubts shown about safe conveyance of the sealed vaginal swabs of the victim from police station up to the Chemical Examiner, Rawalpindi are concerned, first of all we find that per Exh.P.C. Report of the Chemical Examiner, Rawalpindi, dated 29-6-1995, a packet consisting of one sealed bottle referred to under No,580, dated 24-6-1995 was received by hand of Muhammad Sabir (P.W.2) with intact seals on 25-6-1995. This P.W.2 while deposing that he received the said material from Mazhar Hussain, Head Constable on the same date has not denied that it was given one day earlier by Suhbat Hussain (P.W.8) to Mazhar Hussain. The denial of Suhbat Hussain (P.W.8) regarding deposit of the said material with Mazhar Hussain on 25-6-1995 and rather the deposit was made with Moharrir is a denial of deposit for safe custody with Mazhar Hussain. We do not find any denial of handing over of the said material to Mazhar Hussain for further transmission through Sabir Hussain (P.W.2) to the Ch. EXR on the same date. Consequently it transpires that it is only a misconceived proposition that there exists a contradiction of far-reaching effects and the entire edifice must crumble due to the destruction of the Report of Chemical Examiner. The doubts are ill-founded and are repelled. It has also been contended that if the victim was virgin of 16 years and her modesty was modested by two young healthy persons at least three times, her hymen must have ruptured, but the Lady Doctor who examined her namely Munira Jalil (P.W.3) is silent about this aspectIn this context we find that no question about this aspect has been asked from her or from any other P.W. By the defence. Under such circumstances, the only presumption which can possibly be drawn is that the hymen of the victim was elastic in nature. Taylor's Principles and Practice of Medical Jurisprudence, (Thirteenth Edition) reprinted in 1986 produced by Longman Group (FE) Ltd. Hong Kong at page 75 categorises hymen as under:-- "The anatomy of the hymen varies enormously from individual to individual. The membrane may be thin, very elastic, thick, rigid or a combination. In shape it may take the form of a very thin crescent with a large orifice; annular with small orifice; congenital frilly with a large orifice; strong midline bar only. Commonly the membrane is deficient anteriorly, and most pronounced posteriorly, and it follows that damage to the hymen occurs almost invariably in the posterior quadrant. Rupture of the hymen on first penetration is of course very common but it is not inevitable, for the thin elastic hymen is quite capable of stretching to accommodate penetration even by an erect adult penis without frank rupture."
9. ' Modi's Medical Jurisprudence and Toxicology, Twenty-first Edition at page 315 forwards following observations:-- "Cases are on record, of women having regular marital relations, of pregnant women and even prostitutes in whom the hymen appeared untouched. It is seen that the presence of an intact hymen is not an absolute sign of virginity."
10. ' Parikh's Textbook of Medical Jurisprudence and Toxicology, Third Edition 1977, published by Medical Publication, Bombay at page 454 describes the matter in the following words:-- "The hymen may be intact but this does not prove virginity, if the hymen is thick and distensible it may admit two fingers. In such a case; a sexual connection may not rupture the hymen. Such cases where sexual connection has taken place without rupture of the hymen are known as false virgins. Thus, with an intact hymen, there can be true virgins and false virgins."
11. ' Another authentic work on the subject namely "The Medico-legal Aspect of Sexual Offences" by R.L.
12. Gupta, Second Edition 1984, Eastern Book Company, Lucknow at page 57 describes as under:- "In odd cases, the hymen has remained unruptured after coitus and during resultant pregnancy, and has remained in tact until ruptured by the birth of the child, or until incised to permit the passage of the child. In these rare cases, the hymen has been of annular and distensible type which has permitted the entry of the male organ without rupture."
13. It appears, thus, that the presence of intact non-ruptured hymen or the silence of medico-legal certificate about hymen of pubert female victims in the circumstances of the presence of other strong signs and signates of the intercourse, even in gangrape cases, or even in the case of pregnant does not rule out intercourse with complete penetration for a considerable duration. In fact the presence of an intact hymen in adult females is not a conclusive proof that an intercourse with partial or complete penetration has not taken place.
14. ' Another limb of argument is non-presence of marks of violence on the body of the victim indicating that she had not resisted the barbarous act, also indicating that she was a consenting partner in the commission of the offence. In this context following ruling of the apex Court cited as 1990 SCMR 886 is enough to reject it:--{{URDU TEXT}} ' So far as reliance on 1993 PCr.11 156 is concerned, points of distinction from the present case are crystal clear. In that case solitary statement of the alleged victim of rape was finding corroboration from medico-legal report in different circumstances. There are alleged victim was a married pregnant lady, and that the victim's husband tutu returned in the evening and she was examined by the Lady Doctor on the following day producing positive reports which was casting doubts on the prosecution story specially when it was established that the accused had a quarrel about some land with the husband of the alleged victim. In this connection the accused had moved an application to Tehsildar Sumundary. The case in hand is that of an orphaned poor unmarried girl of 16 years corroborated by medical evidence with no proof of serious E enmity with the accused persons.
15. ' Citation of 1988 PCr.LJ 949 does not help the appellant/convict for being distinguishable. First of all that is the case of a Single Bench of the learned High Court of Peshawar and is not binding for this Court. Again the finding in that case is that when it is found that the prosecution is implicating innocent persons alongwith guilty then there must be confirmatory evidence of impeaching character to warrant conviction of one accused out of lot of persons charged. In that case prosecution story was altogether rejected by the trial Judge, no criminal acquittal appeal was preferred by the State and revision against acquittal was also not filed by the complainant. In the present case neither the prosecution story has been rejected altogether nor the complainant has neglected to file criminal acquittal appeal against Sanunar Abbas who has been acquitted by the trial Court on an alleged plea of alibi. We find that there exists confirmatory evidence of impeaching character to warrant the conviction of the appellant/convict in the case before us whereas another acquitted co-accused Sammar Abbas has absconded after issuance of B. Ws.
16. From this Court and has now to face perpetual warrants of arrest as is discussed below. Ipso facto appeal against conviction of the appellant Muhammad Riaz is dismissed.
17. ' Now we take the Criminal Revision Petition for enhancement of the sentence. It has been argued, inter alia, that the maximum punishment for the offences under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is twenty-five years and in the circumstances of the present case of a nubile fragile virgin of 16 years having been subjected to rape by two persons, punishment of more than ten years was warranted. We have carefully examined, this contention keeping in view the principles laid down by the Supreme Court of Pakistan concerning our provisional jurisdiction. Under the provisions of Article 203-DD of the Constitution of the Islamic Republic of Pakistan we have to satisfy ourselves as to the correctness, legality or propriety of the sentence passed by and as to the regularity of the proceedings of the trial Court. The learned counsel for petitioner has vehemently argued that the sentences passed by the Court below should be enhanced on consideration of the fact that two persons have gang-raped a teenaged orphan and poor girl in a shameless manner calls for enhancement of the sentence. This line of argument is of no avail to the petitioner on consideration of the medical evidence. It appears from the deposition of Lady Doctor Munira Jaleel (P.W.3) that neither there was any mark of violence on the body of the victim, nor any damage was caused to her private parts. So much so that there is total silence about the rupture of hymen. The admission of one finger into the vagina with ease and two with difficulty, the existence of only redness around the external vaginal orifice and nothing else suggests that the case we are dealing with is a case of simple rape on a grown up adult female without brutality. Therefore: neither there exist aggravating circumstances to enhance the sentence already passed nor do we find any infirmity or illegality in the impugned judgment.
18. Consequently the conviction and sentences of appellant Muhammad Riaz are maintained and criminal revision is dismissed.
19. ' So far as criminal appeal against accused Samar Abbas is concerned, it was admitted by this Court on 6-11-1996 and notices sent to him were returned with the intimation that he has gone abroad and is not available. Under these circumstances perpetual warrant of his arrest may be issued. He may be brought in this Court after his arrest for dealing under the due process of law.
20. The Criminal Acquittal Appeal No,59/I of 1996 shall be kept pending.
21. ' We had already made short orders on 25-1-1997. These are the reasons for the said order.