' ABDUL WAHEED SIDDIQUI, J.--- This criminal appeal is directed against a judgment of acquittal in connection with the charges under Articles 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereafter to be referred to as the said Ordinance. The impugned judgment was delivered by the Court of Additional Sessions Judge, Rawalpindi on 13-6-1998.
2. Story of the 15rosecution as transpiring from a complaint (Exh.P.C.) made by the complainant Afzal Mehmood (P.W.4) is that he is resident of village Bhanati falling within the jurisdiction of Police Post Paghwari and Police Station Murree. According to the complainant he was married with Mst.
Shafaqt Jan about 9 years back and at the time of his marriage Mst. Shafat Jan was a widow whose first husband Muhammad Inam had died earlier. Mst. Shafat Jan had given birth to 3 daughters from her first husband out of whom two daughters were got married. The only one remaining was Mst. Nighat Rani (P.W.3). She was aged about 15/16 years and was a virgin girl living with complainant being her guardian step-father. According to the complainant, on 20-2-1997 when he was present along with his children at about 9 p.m., Mst. Nighat Rani went out of the house to urinate. A lot of time passed and she did not return. Then the search of the said virgin girl Mst.
Nighat Rani was started in the neighborhood. During the search, inter alia, Khalid Mehmood (P.W.5) and Saghir Ahmed also came and made efforts in her search. During the search, all of them reached the house of Sajjad Ahmed son of Khalil Ahmed Abbasi resident of Bhanati and from the house certain hue and cry was coming. They went near the house of this Sajjad Ahmed and peeped from the holes of the door inside the room in which the light was on. Complainant party found that Sajjad Ahmed was indulging into Zina with his step-daughter Mst. Nighat Rani. On finding these persons outside his house, the culprit ran away from another door of the house while leaving Mst. Nighat Rani in a naked condition. Then the complainant brought his step-daughter back, to his house. Later on the said culprit remained trying for compromise through the residents of the Same village but compromise could not be concluded. On the day of the complaint i,e, 22nd February, 1997 on finding a chance, the complainant came to police post and filed this complaint in writing. On the basis of this complaint an F.I.R. Was registered at Police Station Murree under Article 10 of the said Ordinance. Afterwards the culprit/respondent was challaned.
' Respondent was charged by the trial Court firstly under Article 11 and secondly under Article 10(3) of the said Ordinance to which charge he did not plead guilty and claimed trial.
3. To prove its case, prosecution examined 9 witnesses. Dr. Wasiq, Medical Officer, Civil Hospital, Murree (P.W.1) deposed that he was posted as Medical Officer Civil at Tehsil Headquarter Hospital Murree. On 3-4-1997 police constable Muhammad Nawaz produced before him accused Sajjad Ahmed who was of about an age of 24 years. This witness examined the accused and gave his opinion that he was physically fit for sexual intercourse. The accused had also one old lacerated wound partially healed and stitched with two stitches on left side of scalp and according to him he had received an M.L.R. From D.H.Q. Hospital, Rawalpindi. This witness has proved M.L.R. As Exh.P.A.
Muhammad Zareef (P.W.2) P.C. Has deposed that on 22-2-1997 he was posted at Police Post Paghwari. On the same day, he took Mst. Nighat Rani, the victim, to T.H.Q. Hospital for her medical examination. After the medical examination was completed the concerned lady doctor handed over to him one M.L.R. And one sealed envelope said to contain the swabs and Shalwar. He PC,'.
Handed over all these things to the Investigating Officer who took the same into possession vide recovery memo. Exh.P.B. During Cross this witness has admitted that Shalwar was not brought on the day of his deposition in the Court. He has also admitted that he had delivered only one parcel to the office of Chemical Examiner, Rawalpindi. Mst. Nighat Rani (P.W.3) the victim has deposed in the beginning in conformity with the complaint Exh.P.C. She has deposed further that she was brought up by her mother and her step-father as her real father had died in her childhood. On 20 February, 1997 in the evening time she went out of the home for urination that all of sudden the accused/respondent who reside in front of her house came there. He was armed with pistol. He forcibly caught hold of her from her arm and took her to his home and then in his room he committed Zina-bil-Jabr with her on a cot. She raised alarm and hue and cry. On this alarm the people including his stepfather were attracted towards the spot and saw the occurrence themselves from a hole in a door. The culprit ran away from another door of the room and she came back to her home after wearing the clothes. The respondent tried to patch up the matter but the compromise could not be effected. Afzal Mehmood (P.W.4), the complainant, has proved complaint Exh.P.C. He has also deposed further that he peeped from the hole of the door inside the room and had seen the accused committing Zina with Mst. Nighat Rani. Khalid Mehmood (P.W.5) had also peeped inside and had seen the occurrence with his own eyes. Khalid Mehmood (P.W.5) had deposed in corroboration of the complainant as well as the victim girl. He has deposed further that on the fateful day he was present in his house that complainant Afzal Mehmood came and informed him that his stepdaughter Mst. Nighat had gone out of the home for urination but had not returned back. So, they started searching the girl and finally found her victimized by the accused as has been deposed by the victim and the complainant. Muhammad Saleem (P.W.6), S.-I. Special Branch, Rawalpindi has deposed that on 324-1997 he was posted at Police. Station-Murree. On the said day he arrested the respondent and moved an application for his medical examination which is Exh.P.D. Next day he applied for sending the accused for judicial lock-up and he was sent to the judicial lock-up. Mukhtar Hussain Shah (P.W.7), S.-I.P., has deposed that on 22-2-1997 he was posted at Police Post Paghwari. On the same day complainant Afzal Ahmed alongwith the victim Mst. Nighit Rani appeared before him at Police Post and got recorded the statement which-is Exh.P.C. He prepared the injury statement of Mst. Nighat Rani which is Exh.P.E. And sent her for his medical examination through Muhammad Zareef Constable (P.W.2). After the medical examination of the victim, the said Muhammad Zareef P.C. Produced before him one sealed parcel which was taken by him into possession vide memo. Exh.P.B. Next day he visited the place of occurrence and prepared the site plan. He recorded the statement of witnesses and searched for the respondent but he could not be found. Thereafter, the respondent after obtaining the pre-arrest bail joined the investigation. Afterwards the investigation was transferred from him. Rabnawah (P.W.8), A.S.-I., has deposed that on 23-2-1997 he was posted at Police Post Paghwari as Moharrir. On the same date Mukhtar Ahmed, .-I. Handed over one sealed parcel containing swabs and one Shalwar for keeping it in safe custody in the Malkhana. On 24-2-1997, he handed over the sealed parcel to Muhammad Zareef, Constable (P.W.2) for onwards transmission to the office of the Chemical Examiner. Nobody tampered with these articles as long as these remained in his custody. Lady Dr. Najma Aslam, (P.W.9) has deposed that on 22-2-1997 she was posted as Lady doctor Rural Health Centre Paghwari District Rawalpindi. She medically examined Mst. Nighat Rani, the victim, who was brought by Muhammad Zareef, Constable (P.W.2). On examination she made the following findings about the victim:-- "On external examination of geniteria no injury was observed.
(2) Vaginal orifice admitted one finger easily.
(3) There was no tenderness and pain on internal examination and there were no sign of blood or any other abnormal secretion were seen.
(4) Status of hymen could not be ascertained as victim was unmarried.
(5) Three vaginal swa bs were taken which were sealed in separate bottle and were handed over to police for onwards transmission to the Chemical Examiner, Rawalpindi for detection of semen."
' She found the Shalwar of the victim was stained with blood and discharges which were marked and signed and stamped and handed over to police for further submission to the Chemical Examiner. This witness has further deposed that in the beginning she did not give the final result for want of the report of the Chemical Examiner. This witness also found the following external injuries.
"(a) Longitunal abrasions 1 x 3 inches on the back of the left chest.
(b) Ecchymosis and abrasion on left lateral of left thigh. Kind of injuries was kept under observation."
She has further deposed that probable duration of the injuries was one to four days.
' When she received envelope from the office of Chemical Examiner Rawalpindi, dated 10-3-1997 which was opened, it contained the Report of Chemical Examiner and according to this Report of the Chemical Examiner, all the specimen sent were found stained with semen and blood including the Shalwar. After having received this report, this witness came to the conclusion that the rape was committed with the victim. She has proved Exh.P.G. Which is carbon copy of her M.L.R.
' The respondent Sajjad Ahmed has denied all the specific questions put to him by the trial Court during his statement under section 342, Cr.P.C. To question No,3 he has replied as under:-- "It is incorrect. The house which is alleged as place of occurrence belongs to my father Khalil Ahmed. My father Khalil Ahmed, mother. Hameeda Jan, my sisters namely Nargis Bibi, Zaida Bibi, Zobia Bibi, my brother Ejaz jointly reside in the said house. There is no question of any offence taken place there. The witnesses are false."
' To question No,4 he has replied as under:- "It is incorrect. Qua this assertion of the prosecution no Jirga member as alleged is brought before as there was nothing like Jirga or occurrence therefore, story of effort to compromise is mere concoction."
' To question No,6 as to why this case cropped against him and why the P. Ws. Had deposed against him, he has replied as under:-- "In fact the alleged victim is of bad character having multi dimensioning affairs illicitly and was also after me for the marriage. I belong to a leading tribe of the area. My father is man of honor and has placed to amongst the tribe men. I am unmarried as Mst. Nighat Rani is of the scheduled caste, thus, the marriage was denied by our side. Even prior to the registration of this false case Night Rani aforementioned abandoned her house and went to one religious scholar Hafiz Ateeq- ur-Rehman, Jamia Masjid Madrasa Village Banat, upon which a Jirga of elder was held. She and her stepfather were severely reprimanded and were socially boycotted. Due to the said grudge instant case stand fabricated against me. There is no independent witness in the case. The witnesses are inimical, interested and inter se blood related."
' To question No,7 he has deposed that he had pleaded the abovementioned version even before the Police which was partly recorded but he was not fully heard. The alleged occurrence according to him is a total Drama. He has declined to be examined on oath under section 340(2), Cr.P.C. And has also not produced any witness in his defense.
4. We have heard the counsel for appellants, respondent No,1 and State as respondent No,2. Mr. Rab Nawaz Noon, the learned counsel for appellant has contended that the delay in lodging F.I.R. Has been plausibly explained; that there exists no enmity between the parties; that the victim was a nubile virgin of less than 15 years of age on the date of occurrence and, therefore, was not a sui juris; that the respondent No, 1/accused has not examined Imam of the mosque about whom he is alleging that the victim had gone to him; that' the victim girl is a thing shuttered who could easily be overawed by a young energetic person like the accused; that the accused is a single person and, therefore, substitution is extremely rare; that lady doctor Najma Aslam's (P.W.9) remarks about hymen of the victim can easily be explained in the light of classical works on the forensic sciences; that the impugned judgment suffers from infirmities and is not Sustainable. The learned counsel for respondent No,1/accused has contended that this is a case of acquittal and in such cases double presumption of innocence of the accused is the general rule; that the complaint is delayed which is fatal to the case of prosecution; that the P.Ws. Are discrepant inter related and interested; that although P.W.6 arrested the accused on 3-4-1997 yet he did not recover the alleged pistol. The counsel for State has adopted the arguments of the counsel for respondent and has supported the impugned judgment.
5. At the outset, the question which needs resolution is as to whether this criminal appeal against acquittal can withstand the tests developed by the apex Court regarding double presumption of the innocence of the acquitted accused and the interference with the impugned judgment only when found to be in violation of legal principles developed by the superior Courts. Here is a case in which prosecutrix Mst. Nighat Rani (P.W.3) was of about 15 years of age on the date of her medical examination per M.L.R. (Exh.P.G.) and this fact has neither been challenged by the defense during cross upon the P.Ws. Nor any indication has been made to that effect by the accused/respondent No,1 during his statement under section 342, Cr.P.C. On the contrary the accused has leveled accusations of bad character against the victim/prosecutrix in reply to question No,6 during his statement under section 342, Cr.P.C. For which allegation he has not produced any witness in proof.
Deposition of Lady Doctor Najma Aslam (P.W.9) who examined the victim two days after the occurrence is in complete corroboration of the deposition of victim and two other ocular witnesses namely Afzal Mebmood (P.W.4) and Khalid Mehmood (P.W.5). The examining lady doctor has declared that rape has been committed upon the examinee. Even otherwise in the Report of Chemical Examiner the three vaginal swabs and Shalwar of the victim were found stained with semen and blood. We do not find ourselves agreeing with the respondent's counsel that the prosecutrix is solitary in her deposition. In fact she is completely corroborated by two ocular witnesses and the medical evidence. Under such circumstances substitution also cannot be conceived. The accused/respondent No,1 is a neighbourer of the victim admittedly and was known to her to an extent that according to the accused himself she wanted to marry with him. Here then we find the citation PLD 1996 SC 138 applicable wherein at placentae A the following ruling is emerging:-- "It is difficult to believe that she made a false statement, to let off the real culprits and to substitute innocent persons in their place. Undoubtedly, the substitution is a phenomenon of rare occurrence, because even the interested witnesses would not normally allow the real murderers of their relation to escape by involving innocent persons. In these circumstances, the evidence of Mst. Bashiran Bibi cannot be discarded merely because she was the widow of the deceased and inimical towards the appellants. Furthermore, she was subjected to lengthy cross-examination with little beneficial result to the appellants.
' She lodged F.I.R. Without any loss of time and described the role played by the assailants in the commission of the crime."
' Again in citation PLD 1964 SC 26, the apex Court has considered substitution as extremely rare and this is what has been enunciated at heading (h) as under:-- "(h) Penal Code (XLV of 1860), S.302---Murder alleged to have been committed by one person alone---Substitution of innocent person in place of actual culprit---Extremely rare (per Rahman and Kaikaus, JJ.).
In the abovementioned citation we also find the following principle of law at heading (f):-- "(f) Appeal to Supreme Court---Appeal against acquittal reversing order of acquittal---Court to be satisfied independently that evidence in case was in quality and quantity adequate to support conviction (per Cornelius, C.J.) Constitution of Pakistan (1962), Art.58(3)
Consequently, we have reached a conclusion that this a fit case which needs independent satisfaction that evidence in this case has not been properly appreciated by the lower Court neither in quality nor in quantity, and therefore, this appeal withstands the tests developed by the apex Court so far as a challenge to acquittals is brought before the appellate and provisional Courts
6. The learned counsel for respondents have relied on the following observation of the Lady Doctor (P.W.9) about the victim:-- "Status of hymen could not be ascertained as victim was unmarried."
' According to the counsel, under such observation, it cannot be said with certainty that penetration had taken place. We do not agree with this contention firstly because this very witness has replied to a suggestion during cross as under:-- "It is correct that if the 'penetration in to vagina takes place then hymen must be torn. Again said that it is not necessary always."
Secondly because forensic sciences are observing that there are cases in which hymen remains in tact even after a complete coitus. Thus, Modi is writing in . His classic on Medical Jurisprudence and Toxicology as under:-- "Normally the hymen is ruptured by the first act of coitus, though it may persist even after frequent acts of coitus if it happens to be loose, folded and elastic, or thick, tough and fleshy, Cases have been recorded' in which the hymen had to be incised at the time of delivery, while even prostitutes have been known to possess an intact hymen." (Twenty first Edition p.303)."
Consequently, this contention fails.
7. Now arises the contention for the respondent/accused that the delay in complaint is fatal to the case of the prosecution. What we find in the present case is that the complaint (Exh.P.C.) was made on 22-2-1997 at 8 p.m. Wherein it was alleged that the occurrence had taken place on 20-2-1997 between 9 and 10 p.m. The explanation for delay of about 46 hours in reporting is also mentioned in the body of the complaint which is that the accused was trying to compromise through the elders of the village. In such cases of Zina which are otherwise proved beyond reasonable doubts, delay in reporting is a universal phenomenon. After all it is very difficult for families of the victim to decide as to whether they should report the offence or not. In the societies falling in the third world and specially in Islamic oriented ones, it is rather more difficult to report as the wellbeing and future of the victim is directly connected with the report. In case a family of a victim decides to report, even after a few days or weeks, to get the culprit punished and to its own stake and risk for future well- being, then such a family should he encouraged and considered sympathetically rather than discarded. After all such a family is assisting State to root out the heinous crime of rape and to create a deterrent for other rapists by way of exemplary punishments for them. Such families are the front line soldiers in war against rape and are worth appreciation. We do not find any worth in the contention under consideration and discard it accordingly.
8. For the abovementioned reasons, we hereby set aside the impugned judgment and convict respondent No,1/accused under Article 10(3) of the said Ordinance and sentence him to R.I. For 20 years with benefit of section 382-B, Cr.P.C. We had already decided so by our short order and had sent the respondent No,1 to the judicial custody to serve out the sentence. These are the reasons for the said order.