DR. FIDA MUHAMMAD KHAN, J.---This appeal filed by Aftab Hussain son of Gul Tasib Khan is directed against the judgment, dated 27-4-1998 passed by learned Sessions Judge, Karachi East, whereby he has convicted him under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced him to undergo R.I. For fifteen years with whipping numbering thirty stripes. The benefit of section 382-B, Cr.P.C. Has been extended to him.
2. Briefly stated the case of prosecution as disclosed in F.I.R., recorded on the statement of Jamshed Khan on 14-9-1996 at police station, Shah Faisal Colony, Karachi, by A.S.H.O./Inspector Wajahat Hussain, is to the effect that he along with his five daughters and wife reside in House No,A-96, Hazara Chowk, Natha Khan Ghoth, Karachi and is employee in National Bank. His eldest daughter Mst. Nazia Parveen, aged about 12 years, used to visit the house of accused to learn embroidery work from his wife. On 4-8-1996 when Mst. Nazia Parveen went over there, wife of the accused was not present in the house. The accused took her inside the room and subjected her to Zina-bil-Jabr and, thereafter, also continued the same. In the meanwhile the younger sister of the victim informed the complainant about what had happened. Thereafter, he lodged the F.I.R. On 14- 9-1996. After registration of the case the Investigating Officer arrested the accused and visited the place of occurrence. He brought the victim Mst. Nazia Perveen before Medical Officer for examination and recorded the statements of witnesses. He also got the accused medically examined. He produced the victim Mst. Nazia Parveen before .Magistrate First Class for recording her statement under section 164, Cr.P.C., which was recorded in the presence of accused. After completion of investigation he challaned the accused in the Court. The appellant/accused was formally charged on 1-12-1996 to which he did not plead guilty and claimed trial.
3. At the trial prosecution examined seven witnesses in all. P.W.1 is Muhammad Ansar Khan. He is a witness to arrest of the accused on 14-9-1996. P.W.2 is Jamshed Khan, Driver. He is the complainant who with some further explanation reiterated his statement as mentioned hereinabove. P.W.3 is Mst. Parveen. She is the victim who made the following statement:--- "Complainant Jamshed Khan is my father. I know accused Aftab Hussain present in the Court who resides in our muhallah. I have studied up to 4th Class. About nine months back I used to go the house of the accused for the purpose of learning embroidery work. About 9 months back at about 9-10 a.m. When I went to the house of accused for the purpose of learning embroidery work, his wife was not present in the house. Only the accused was present all alone in the house. The accused is working in police department: The accused closed the door of his house and asked me to remove the clothes. I resisted and refused to remove my clothes i,e, shalwar as well as shirt. The accused then put me on cot and forcibly committed sexual intercourse with me. I felt very much pain as well as I cried but nobody came for my rescue. The accused after finishing the intercourse with me took the pistol and said that he was working in police department and nobody can touch him therefore, I should not inform about this incident to any other person otherwise he would kill me. I then put on my clothes and came to my house. I had narrated the whole incident to my younger sister P.W. Ms. Farzana. I did not disclose the above incident to any other person due to fear of the accused. My sister Ms. Farzana also did not disclose this fact to anybody. After about 2 days the accused came to our house. I and my 4 younger sisters were present in the house. It was morning time. The accused then took out pistol and asked me to remove the clothes. I and my sisters started weeping, the accused showed his pistol to all of us and asked to keep quite and not to tell anybody else. The accused then forcibly put off my clothes and then in presence of my minor sisters put me on cot in the room of our house. He put off his shalwar and then put his organ inside my private part and committed Zinabil-Jabr with me. I all the time was weeping. The accused then put on clothes and left our house giving threats that we should not disclose this incident to anybody else as nobody can do anything to him and further that he would kill me and my father.
My younger sister Ms. Farzana disclosed these facts to my father when he returned from his work.
My father is serving in National Bank of Pakistan and he used to come from his work in the evening.
My mother did not use to live with us as she had dispute with my father. She used to live in Jhelum and we all sisters used to reside with our father. The accused had two times called me in his house after threats and had Zina-bil-Jabr with me. The house of the accused is adjacent to my house and he used to call me by showing pistol from the wall of his house. My father after receiving information from my sister called his brothers and informed the police about the incident. The accused was also arrested by the police. I had disclosed all the facts to the police. I was referred by police to lady Medical Officer, who had examined me. Police had also produced me before Magistrate who had recorded my statement which I produce as Exh.9. It is same, correct and bears my signature. The accused present in the Court is same who had committed Zina-bil-Jabr with me."
P.W.4 is Mst. Farzana. She is sister of Mst. Nazia Perveen. She has supported the version made by Mst. Nazia Perveen. P.W.5 is Muhammad Ejaz. He is brother of complainant. He is a witness to the mushirnama Exh.12 and Exh.5 relating to the place of Wardat and arrest of accused. P.W.6 is Dr. Rubina Hassan, Senior Women Medical Officer, Civil Hospital, District Karachi Central. On 15-9-1996 she medically examined Mst. Nazia Parveen and made the following observations:- "According to her she was 14/15 years old. On Examination I was found that there was no marks of violence on her body. External Genitelia were normal. Hymen was torn healed at 6'0 clock x 9'O clock position. Pestivule slightly lacerated and in healing stage. Vagina admitted one finger loose and two tights. I sent her urine for pregnancy test but it was negative. I took her vaginal slides and sent the same for chemical examination. For the examination I came to this conclusion that girl Nazia Perveen was subjected to sexual intercourse."
She issued M.L.R. Exh.15. Report of the Chemical Examiner Exh.16 reveals that semen was not detected in the vaginal slide. She also stated in the cross that the laceration was not fresh in nature. P.W.7 is Wajahat Hussain, S.H.O./Inspector. He recorded F.I.R. On the statement of Jamshed Khan, arrested the accused, got Mst. Nazia Perveen as well as the accused medically examined, recorded the statements of P.Ws., recorded statement of Mst. Nazia Perveen under section 164, Cr.P.C. On 18-9-1996 and after completion of investigation submitted challan against the accused.
4. The appellant/accused made a statement under section 342, Cr.P.C. Wherein he denied the allegation and pleaded innocent. Responding to question No,3 "why the P.Ws. Have deposed against you"? He made statement in the following words:--- "Due to enmity they have deposed against me. There is no independent witness against me in this case."
He examined Muhammad Ashraf, M. Ayaz Shahid, Muhammad Siddique as D.Ws. 1--3 in his defence.
5. We have heard the learned counsel for the parties and have perused the record with their assistance. Learned counsel for appellant made detailed submissions in respect of delay in F.I.R., improbable nature of the story of prosecution, M.L.R. Read with Chemical Examiner's Report as not supporting, conduct of the victim Nazia Parveen and submissions of D.Ws. Learned counsel for the State supported the impugned judgment.
6. We have thoroughly appreciated the evidence on record in the light of submissions made by both the learned counsel. Actually the case of prosecution mainly rests on the statements of P.W.3 Nazia Parveen, P.W.4 Mst. Farzana and P.W.6 Dr. Rubina Hasan. P.W.3 is the victim girl who was subjected to Zina-bil-Jabr. Her statement inspires confidence and it does not suffer from any infirmity. She has remained firm in the cross-examination and her statement has not been shattered. Her statement is fully corroborated in material particulars by the statement of her sister P.W.4 Mst. Farzana who had also informed P.W.2 Jamshed Khan, her father, who reported the matter to police. Statements of both P.W.3 and P.W.4 are fully consistent in material particulars.
P.W.4 has also remained firm during the cross-examination. It is not believable that dispute over a Jaman tree could prompt the complainant to falsely implicate the appellant/accused in a case of this nature wherein not only the honour of his family was involved but it also seriously damaged the career of his unmarried daughter. Statement of Mst. Nazia Parveen is corroborated by the M.L.R.
Submitted by P.W.6 Dr. Rubina Hasan. After examining Mst. Nazia Parveen she observed that her hymen was torn and that she was subjected a sexual intercourse. Although report of the Chemical Examiner is negative but that has no adverse effect on the case of prosecution. The visual observation made by the lady doctor carries sufficient weight to lend full support to the deposition made by the victim in respect of her subjection to sexual intercourse, even without the corroboration of Chemical Examiner, in the circumstances of this case, wherein Zina was committed many days prior to its report to the police. Regarding the delay in F.I.R., it may be mentioned that mere delay per se is not sufficient to shatter the case of prosecution especially when no enmity between the parties is established on record. Contention of the learned counsel about the improbable nature of the occurrence having taken place in a jointly populated house is also without force as Mst. Farzana has explained in the cross-examination that her step mother was sleeping in another room and the appellant/accused, having pistol in his hand, had threatened all of them who were very minor, to keep quiet and not to disclose anything to anybody otherwise he would kill them. Regarding the contention of the learned counsel in respect of conduct of Mst. Nazia Parveen it is sufficient to mention that the observations made by Woman Medical Officer Dr. Rubina Hasan P.W.6, do not at all support the same. Had she been a girl of easy virtue the Medico-Legal Report would have been definitely different from the one issued by P.W.6.
Contention of the learned counsel about the statement of D.Ws. Is also of no value to the appellant/accused as dispute regarding a Jaman tree, as desposed by DMA and D.W.2, cannot be a sufficient ground for the complainant to go to an extreme of putting at stake his family honour as well as the career of his unmarried minor girl. Deposition of D.W.3 is also of no use, in view of the dubious nature of entries in Roznamcha, as admitted by him in the cross-examination. In this view of the matter we have come to the conclusion that the prosecution has established its case against the appellant/accused beyond any reasonable shadow of doubt.
7. Consequently, for the reasons stated above, the conviction of appellant Aftab Hussain son of Gul Tasib Khan is maintained and his appeal is dismissed. However, the sentence awarded to him by the learned Sessions Judge, Karachi East on 27-4-1998 is reduced to ten years R.I. The sentence of whipping is set aside as no more legally required. The benefit of section 382-B, Cr.P.C. Extended to him by the Trial Court shall remain intact.