MIAN MAHBOOB AHMED, C.J.---Dilshad Shah son of Murtaza Shah, Azhar Hussain Shah son of Yousuf Shah the appellants have instituted this appeal against judgment dated 4-11-1996 by which the Sessions Judge, Abbottabad convicted and sentenced them as under:-- Dilshad Shah under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
25 years rigorous imprisonment; and whipping numbering 30 stripes.
Azhar Hussain Shah under section 19(2) read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
5 years rigorous imprisonment and whipping numbering 30 stripes.
The appellants were also allowed the benefit of section 382-B, Cr.P.C.
2. The facts, necessary for the purposes of the appeal briefly stated are that Nazir Hussain Shah complainant P.W.3 father of the victim Tehseen Bibi (P.W.4) lodged report on 13-7-1994 with Police Station Lora Abbottabad at about 12.05 afternoon alleging that on 12-7-1994 at about 5.00 p.m. in the out-skirts of village Dhakka Rakh near a place known as Ber Poonja, he heard her daughter weeping and crying on which, he rushed to the site from where the voice was coming and saw that Azhar Shah and Shahid Shah residents of his village with their Shalwars in their hands were running away while Mukhtar Shah son of Murtaza Shah and Habib Shah son of Sabir Shah also residents of his village were hiding themselves at some distance who also seeing him ran away. Mst. Tehseen Bibi her daughter with her Shalwar in her hand was lying on the grounds and was weeping who on enquiry, told him that Azhar Shah and Shahid Shah one after the other caught hold of her and committed Zina with her forcibly. It was further alleged that Mukhtar Shah and Habib Shah instigated the commission of this crime. The motive given was that there was litigation between him and Murtaza Shah the father of two of the accused. It was also stated in the report that the accused party tried to prevail on him for compromise and that finding an opportunity he has immediately come to lodge the report.
3. The case was registered against the appellants and the aforementioned Mukhtar Shah and Habib Shah under sections 6 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 114, P.P.C. The victim was got medically examined on 14th of July, 1994 and a report was submitted by the Lady Doctor. Both the appellants were also got medically examined and the reports of their medical examination were also obtained. The vaginal swabs taken by the Lady Doctor were sent to the Chemical Examiner whose report is Exh.P.W.7/3 whereas the Chemical Examination Report of the Shalwars of the appellants is also marked Exh.P.W.7/3.
4. After due investigation the challan was submitted in the Court.
5. Charge was framed against the appellants under sections 6 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 while against Mukhtar Shah and Habib Shah co- accused charge was framed under section 19(2) of the said Ordinance. All the accused did not plead guilty and claimed trial.
6. The prosecution in support of its case examined 9 witnesses namely P.W.1 Dr. Jehangir who examined Azhar and Dilshad appellants on 14-7-1994 at 6.00 p.m. The reports of medical examination are respectively (Exh.P.W.1/1) and (Exh.P.W.1/3). According to (Exh.P.W.1/1) the report pertaining to Azhar Shah it has been opined that he was incapable of performing sexual intercourse while Dilshad according to his medical examination report (Exh.P.W.l/3) was found capable of performing sexual act, P.W.2 Ghulam Ali Shah a brother of the complainant is marginal witness of recovery memo. (Exh.P.W.2/1) of the shalwar of victim (Exh.P/1), P.W.3 Nazir Hussain Shah the complainant corroborated the contents of the F.I.R. (Exh.P/A), P.W.4 Tehseen Bibi the victim gave version of the incident and attributed the act of zina with her by Dilshad and Azhar while no role was attributed by her to the other two accused, P.W.5 Ali Akbar Khan S.I./S.H.O. Police Station Lora submitted the challan in the Court, P.W.6 Mushtaq, constable of police was a witness of recovery. memo. (Exh.P.W.6/1) regarding the recovery of shalwar of Azhar (Exh.P/3) and of (Exh.P.W.6/2_ recovery memo. of the shalwar of Dilshad (Exh.P/4), P.W.7 Muhammad Tayyab recorded the formal F.I.R. (Exh.P.A.) and got the victim medically examined, P.W.8 Shakeel Ahmed a Junior Clerk of District Headquarter Hospital, Abbottabad proved the medico-legal report (Exh.P.W.8/1) of medical examination of the victim conducted by Dr. Samina Gul who had left for abroad, and P.W.9 Dr. Muhammad Idrees, Radiologist who determined the age of the victim on 16-7-1994 and vide report (Exh.P.W.9/1) found her to be of about 11 years of age.
7. The Court recalled Muhammad Tayyab A.S.I. as C.W.1 who stated that the lady doctor had left the country and had gone abroad.
8. On the conclusion of the prosecution evidence the statements of all the accused under section 342, Cr.P.C. were recorded. All of them asserted that they have been roped in this case on account of enmity due to civil litigation between the complainant on the one side and the father of Dilshad and Mukhtar accused on the other side. Azhar Shah and Habib Shah accused in reply to the question, why this case against them, stated that they have been involved because they refused to be witness against Dilshad on the asking of Nazir Hussain Shah complainant.
9. Except Dilshad all the other accused did not opt to appear and depose on oath as provided by under section 340(2), Cr.P.C. Dilshad appeared and made the statement under the above provision. No other witness in defence was produced.
10.The learned counsel for the appellant has raised the following contentions:--
(i) That the statement of Tehseen Bibi has not been believed in toto and should not have been partially believed and made basis of the conviction of the appellants;
(ii) The story of rape by Azhar Shah as given in the F.I.R. and statement of witnesses has been disbelieved by the trial Court and, therefore, his conviction should not have been recorded on any count; (iii)That there is no evidence of safe custody of swabs for their transmission to the chemical examiner and as to who took and when and, therefore, the report of chemical examination is of no consequence; (iv)That there is delay of 19 hours in the lodging of F.I.R. without any satisfactory explanation thereof; (v)That the accused are not adults and, therefore, the sentence awarded is not in accordance with law and should at the worst be as provided under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; and (vi)That in any case in view of the tender age of the appellants the sentence awarded is highly excessive and harsh and, therefore, is liable to be reduced considerably. Reliance in support of the above contention was place on:-- Saraj v. The State 1993 PCr.LJ FSC 156, Muhammad Sardar alias Billa and 2 others v. The State 1994 P.Cr.LJ Vol-l-Page 162, Yousaf v. The State PLD 1991 SC 179, Bali Khan v. The State PLD 1995 FSC Vol-2 Page 13, Riaz v. The State 1994 SCM R Vol-1 Page 358, and Zahoor Ahmed v. The State 1995 SCMR Part-III Page 1338.
11. The learned counsel appearing for the State submitted that delay in the case in hand is not fatal to the case of the prosecution inasmuch as it is neither inordinate nor unexplained. As regards the other contentions raised on behalf of the appellants the learned counsel for the State simply contended that they have no force.
12. On the point of reduction in sentence it was urged by the learned counsel for the State that the case having been proved against the appellants, reduction of sentence is not called for.
13. The learned counsel for the complainant contended that a minor girl has ravished who has given a flawless testimony of the incident which coupled with the medical evidence on record establishes the case of the prosecution without any iota of doubt and, therefore, the impugned judgment merits to be sustained.
14.It was also urged by him that by virtue of section 2 (a) of Ordinance VII the appellant Dilshad being an adult the provision of section 7 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 is not attracted to his case. It was also submitted that in the attendant circumstances of the case where no material illegality or irregularity has been made while passing the impugned judgment there is no occasion for reducing the sentence awarded by the trial Court.
15.We have given due consideration to the contentions raised on behalf of the parties and have also gone through the oral as well as documentary evidence on record minutely. We are of the view that contentions raised on behalf of the appellants have no force. The victim Tehseen Bibi who is a minor has given an explicit testimony about the incident and has categorically attributed the commission of heinous act with her by the appellants. Her testimony also finds support from the deposition of the complainant and from the medico-legal report (Exh.P.W.8/1). Nothing material could be extracted from P.W.4 Mst. Tehseen Bibi during the cross-examination which in any manner helps the defence. Great stress has been laid by the learned counsel for the appellants on the medical examination report of Azhar who has been declared to be incapable of performing sexual intercourse. We are not much impressed by the report aforementioned and the same cannot be given a conclusive position in such like cases. The testimony of Mst. Tehseen Bibi cannot be overlooked totally merely because the medical report in this respect does not support her deposition. It is a well settled principle of law that the testimony of the victim in such cases, if otherwise credit worthy and not discrepant in any material aspect, may be given preference over the medical evidence. The above view is well-based even in the light of the medical jurisprudence in this respect as expressed in Moodi's Medical Jurisprudence and Toxicology 14th Edition at page
307. The following passage in this context is worth reproduction:-- "5. Psychical influence.--A temporary absence of desirc for sexual intercourse may result from fear, anxiety, guilt sense, timidity, aversion, hypochondriasis, excessive passion, and sexual overindulgence. Sometimes, an individual may be important with one particular woman, but not with another.
16.Reading the above passage conjunctively with the confidence inspiring testimony of P.W.4 Mst.
Tehseen Bibi and the portion of deposition of P.W. 3 Nazir Hussain Shah stating that he saw Azhar Hussain with shalwar in his hand gives rise to a legitimate inference that Azhar appellant may have committed zina with P.W. 4 or in any case may have made an attempt to do so. It may well be that at the time of medical examination Azhar may have lost desire for sexual intercourse temporarily on account of fear, anxiety, guilt sense etc. Yet another important factor in this regard which has very heavily weighed with us is that if she had to falsely implicate the present appellant what was the impediment in her way not to have attributed some effective role to the other co-accused about whom she appears to have truthfully stated that they kept away from the scene of occurrence. The very fact that she made statement in the Court after the lodging of the report by her father wherein a role was attributed to the aforementioned persons namely Habib Shah and Mukhtar Shah but yet came out with what was truth and did not give any statement regarding both of them to support the contents of the complaint establishes her deposition to be straight forward and correct. Her testimony, therefore, is of material value in the case and can safely be made the basis of recording conviction of both the appellants.
17.We are also inclined to agree with the contention of the learned counsel for the complainant that the appellant Dilshad Shah having attained puberty which fact is corroborated by the medical evidence as well as by the oral testimony of P.W. 4 was an adult within the meaning section 2 (a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and, thus, not entitled to be given the benefit of section 7 of the Ordinance. However, the case of Azhar appellant appears to be covered by the aforementioned provision.
18.As regards the asserted delay in the lodging of the report we suffice by observing that the delay of about 19 hours in the lodging of the report in the attendant circumstances of the case is not inordinate and would not be fatal to the case of the prosecution. The place of occurrence is at a distance of about 5 miles from the police station and the occurrence being of the evening time it can be safely assumed that the report could be lodged only next day especially when influence was being exerted on the complainant to compromise the matter. It is also worthwhile to mention that in the social conditions of our Society in such cases there are so many considerations which weigh with the partners of a minor girl that it becomes difficult for them to make a prompt decision about the registration of a case as the future of the child and ignominy that may be inflicted on the family is involved. We also find that a plausible explanation for this asserted delay of 19 hours has been given in the F.I.R. itself viz. that the complainant was being pressurised through 'Jirgah' for a compromise and for not reporting the matter and, therefore, he finding time about noon went to report the matter.
19.We are of the view that the conviction recorded by the trial Court qua both the appellants is justified and calls for no interference by this Court. The conviction of Azhar appellant by the trial Court is under section 19 (2) read with section 10 (3) of the Ordinance and we upholding that conviction also convict him under section 10(3) read with Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Resultantly, we find no merit in this appeal which is accordingly dismissed.
20.However, in view of the youth of the appellants and their ages at the time of commission of the offence we reduce the sentence of Dilshad appellant from 25 years rigorous imprisonment to 15 years R.I. and of Azhar from 5 years rigorous imprisonment to 2 years R.I. in the hope that this indulgence shown to them would bring out of them law abiding and respectable citizens.
21.The sentence of whipping numbering 30 stripes awarded to each of the appellants by the trial Court is set aside as the same stands abolished by virtue of an Ordinance Promulgated in April, 1996.
22. The benefit of section 382-B, Cr.P.C. awarded by the trial Court to the appellants shall remain in tact.