5. Mst. Rifat Parveen on 27.1.1996, got recorded her statement Exh.P.D, on the basis of which formal F.I.R No. 20/96, Exh. P.D/2 was registered at Police Station Saddar, Chishtiaan,' under section 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) read'with sections 392/411 P.P.C. In pursuance of the said FIR all the three above mentioned accused were arrested, tried and finally convicted and sentenced, on 19.9.1997 by the Special Judge, Special Court, Anti- Terrorist, Bahawalpur Division, Bahawalpur, as under:- . ' .
(i) Each of the accused convictf d under section 10 (3) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 14 years R.H and to whipping numbering 30 stripes.(ii)
Each of the accused convicted under sectic r. . t .i .C, anu sentenced to 10 year's R.1, and to a fine of Rs. 20,000/-,and in case of default thereof to further imp'-t'-onment for one year's R1.(hi) Each of the accused convicted under section 411 P.P.C and sentenced to 3 years R.1.All the sentences were made to run concurrently. The accused were given benefit of section 382-B Cr.P.C.
3. Imam din accused through Cr.A.S.C. (Tribunals) No. 1 of 1997 and Muhammad Ismail and Ghulam Hussain accused through Cir. A.S.C (Tribunals) No. 2 of 1997 challenged their convictions and sentences. Through this judgment both the said appeals are being disposed of.
4. The learned counsel for the appellants submitted that the prosecution had failed to prove its case beyond a reasonable doubt. In this regard he pointed out the weakness in the prosecution case as follows:-
(i) that the FIR was recorded after un-explained delay of six hours.(ii) that Ghulam Muhammad was a chance witness being not a neighbor of the victim.(iii) that the husband (Munir Ahmad) and the son ( Kashif Munir) of the complainant were not produced although witnesses of the occurrence, and(iv) * that the recoveries in this case were doubtful being effected from thesame place but on different dates.
5. The above contentions when examined in ;he light of the evidence available on record proved to be without any merits. The distance between the place of occurrence and the police station in 6 a.m. It is a night time occurrence. The nature of the offence i.e. Gang rape and dacoity, is such- that.a considerable time is required by the victim to came out of the shock and to gather her senses. It should not be expected in such a case that the victim would immediately run to lodge a complaint with the police On learning about occurrence of such type the neghboursand villagers gather on the spot and much of the time is consumed in narrating the events to them. Hence, m fact, there is no delay in lodging the FIR which could justify the presumption that the F.I.R,, was recorded after meditation and contained a concocted story. Even no such suggestion was given to Mst. Rifat Parveen (complainant), when she appeared as P.W.2 Ghulam Muhammad (P.W.3) is not at all a chance witness as he is resident of the same locality. He also gave a plausible reason for his presence-at the time of occurrence. He deposed as P.W.3 that he was going to his tubewell from the Otak and he was attracted to the place of occurrence t house of Munir ) by the hue and cry raised by Mst. Rifat Parveen. The apex Court in the case of Muhammad Ahmed Versus The State and others (1997 S.C.M.R 89) held as follows:-"the presence of pass-by cannot be rejected by describing them as mere chance^witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation of their presence at or near the spot at the relevant time".The presence of Ghulam Muhammad P.W.3 is clearly recorded in the F.I.R and in no way he can be termed as a chance witness.6. In the above-mentioned case, the Supreme Court also held as under:-"Law is also fairly well-settled that the prosecution is not required to examine every eye-witness of a crime. Refer 1978 SCM R 136. That being so. The learned Courts were right in not drawing adverse iiiierencc against the prosecution for not examining Arshad P.W.".Munir Ahmad was mentioned in the calendar of witnesses. He was given-up being unnecessary, while Kashif Munir being a child was mentioned as a witness. Their non-examination as witnesses has no adverse effect on the prosecution case as n is the right of the prosecution to decide about the .Evidence to be produced during the trial.7. The accused were arrested on 27,1.1996 and recoveries of the allegedly looted cash and articles were effected from them on 3.2.1996, while the arms were , recovered on 7.2.1996, The learned A.A.G, rightly submitted that the recoveries , w'ere effected as and when the accused persons disclosed about them. He submitted that if those were to be planted upon the accused, the recoveries could have been made on the same day. The human mind and his nature differs from person to person. Different persons act and react differently in different circumstances. It is not necessary that an accused or all the accused give in during investigation and \ disclose every thing at one time. Some times it does happen, but mostly the accused make disclosures in pieces according to then nurves and tolerance to the questioning pressure of the Investigating Officer. So, this is no reason to consider the recoveries , as fake, particularly, when Khan Muhammad (D.W.l) admitted that "'Gathri'" (containing'stolen articles) was handed over to him by Imam Din accused.5 8. It was next contended on behalf of the accused that solitary statement ofvictim was not sufficient to warrant conviction under section 10 (3) of the Offence of zina (Enforcement of Hudood) Ordinance, 1979. Reliance was placed on the case of Muhammad Maroof Versus The state (NLR 1994 S.D. 419). A perusal of this ruling shows that the solitary statement of the-victim was found insufficient when , I the prosecution story was also found to be to absurd to deserves any credit. The learned AAG, on the other had, contended that even a truthful and confidence ( inspiring solitary statement of the prosecutix was sufficient for the conviction of the accused. He submitted that in case of rape or gang-rape the presence of persons actually witnessing the happening was not practicable-. He relied upon the following cases to support his contention(1) Mst. Nasreen Versus Favvaz Khan and another (PLD 1991 S,C, 412).(2)
Muhammad and other Versus The State (1984 S.C.M.R. 954) and' (3) Abdul Hameed Versus The State (1988 SCMR 1772).In the absence of any enmity between the parties, the statement of the prosectix .Supported by medical evidence and the positive report of the Chemical { Examiner is more than sufficient to establish allegations of rape. In the case of Riaz-ul-Haq and others Versus The State (1989 S.C.M.R. 1927) the followings are the observation of the Shariat Appellate Bench(J't L''
I ^ f TJ> O' V------------ #tbs......I o :. r.-O '*'">.Jj '> Zil#to#tbsr >#to#tbsVL'r CO.^X t/ y^ L'p* riw* _* /#to#tbs1998#to#tbsKey Law Reports#to#tbs64 Cr.C.#to-r-This concludes the matter.9. The learned counsel for the appellants then referred to the statement of Lady Doctor Shaista Khalida (P.W.4) to show that no marks of-violence were present over the body or private parts of the complainant and there was simply trendness on right cheek and right side of neck. He submitted that the version of the complainant that she was tied to a cot and intercourse was forcible committed was not borne out from the medical evidence. Th? Learned counsel failed to note that the examine was subjected ' to sexual intercourse. In cross-examination, she categorically stated that she was of the firm view that the examine was subjected to sexual inter-course. It is very relevant to mention here that as per reports of the Chemical Examiner (Exh.P.E./I) both the vaginal swa bs and the 'Shalwar' of Mst. Rifat Parveen were found to be stained with semen.10. Dr. Abdu!
Ghaffar as P.W.1 proved his reports Exhs. P.A, P.B, and P.C and deposed that all the three accused persons were found capable of performing sexual intercourse. He was not cross-examined at all and thus the defiance did not dispute this fact.11. In the context pf medical evidence, the learned counsel for the appellants submitted that as the vaginal swabs of the victim were not sent to the Serologist for semen grouping, the report of the Chemical Examiner had no evidentiary value in this regard. He placed reliance on the case of Abid Javed alias Mithu Versus The State (1996 Cr.P.L.J.
1161), wherein the relevant portion reads as fol lows:-"It is unfortunate* that the prosecution in such cases does not obtain semen of the culprit for semen grouping and for matching it with the semen found on the swa bs. The semen on the swabs even if is sent to the Serologist for semen grouping and report is obtained the same is not produced in Court. The semen found on vaginal swabs loses evidentiary value if the semen of the accused is not obtained and got examined and matched with semen found on vaginal swa bs by the Serologist. In cases of Zina the prosecution will be well- advised to obtain the semen of the accused and have it analyzed by sinologist for matching with the semen found on the swa bs. This Court even earlier in the case of Mst. Ehsan Begum Vs. The State PLD 1983 FSC 204 emphasized on the Investigating Officers and Medical Officers the importance of obtaining material evidence by having matched the semen of the alleged culprit11.
Admittedly, the vaginal swa b were not sent to the Serologist for semen grouping and for matching it with the semen found on the swa bs and 'Shalwar' of the victim. The semen of the culprits were never obtained. When confronted with this proposition, the learned A.A.G, submitted that in the presence of direct, truthful and confidence inspiring evidence available regarding the commission of offence through the mouth of the victim,-the nonperformance of the semen grouping test had no damaging effect on the prosecution case. He further submitted that in all the cases referred supra, the Supreme Court maintained the conviction without asking for such a test.12. The learned A.A.G, referred to a recent case of Muhammad Nawaz(1997 P.Cr.L.J 893) to show that the statement of prosecutrixcorroborated by independent ocular testimony and medical evidence in the shape of positive Chemical Examiner's report about the vaginal swabs of the prosecutrix was found sufficient for the conviction of the accused. He submitted that even earlier this view was held by a Division Bench