1. ' ABDUL WAHEED SIDDIQUI, J.---Appellants have assailed a judgment delivered on 30-10-1995 by the Court of iInd Additional Sessions Judge, Nawabshah whereby they have been convicted under Article 18 read with Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and are sentenced to suffer R.I. For 12-1/2 years each and whipping of 15 stripes each. Benefit of section 382-B, Cr.P.C. Has not been extended to them.
2. One Muhammad Ismail Khoso, (P.W.2) appeared at Police Station Qazi Ahmed District Nawabshah on 2-9-1994 at 2300 hours (11 p.m.) and lodged, F.I.R. Stating therein that he is a fanner on the lands of Chaudhry Arshad in Deh Tharo Unnar. He had cultivated cotton and sugar-cane at that time. Appellants/accused who were residents of his village used to pass near his house and they were restrained to do so as there was some displeasure between the parties. On 30-8-1994 his daughter Nimani (P.W.3), aged about 12 years, went towards the south of the village accompanied by his son Khadim Hussain, aged about 8 years, with a purpose to cut grass from the sugar-cane crop. At about 8.30 a.m. When the complainant was going to look after the lands, he heard cries from the directions of his daughter and son from the sugar-cane fields. He himself alongwith Mooso (P.W.5) and Gul Bahar (P.W.4), who were present nearby, rushed towards the site of alarm. When reached near the sugarcane cultivation, they found appellant Wazir indulging into an evil act with his daughter whereas appellant Lal Muhammad alias Laloo had put his hand upon her mouth. Seeing the complainant party nearby, both the appellants ran away to the eastern side.
2. His daughter Mst. Nimani informed that both the appellants came and took her from the arm dragging her forcibly inside the sugar-cane field. Then they opened her azarband and first of all Lal Muhammad committed rape with her then Wazir did the same. Later on the complainant party came towards the village and informed the co-villagers. The relatives of the appellants and other members of the clan advised them not to make a complaint as they were going to decide the matter on their own. Since no decision could be made, so this complaint was being lodged.
3. To establish its case, prosecution examined seven P.Ws. Dr. ZaibunNissa (P.W.1) has deposed that partial penetration was performed with the examinee victim Mst. Nimani. Ismail Khoso (P.W.2), the complainant, has proved his complaint and lodgment of F.I.R. (Exh.9-A). Mst. Nimani (P.W.3), the victim girl, has proved the occurrence. Gul Bahar (P.W.4) and Muhammad Moosa (P.W.5) are ocular witnesses and they have supported the case of the complainant and the victim girl. Muhammad Hassan (P.W.6) is a mushir of the production of Mst. Nimani (Exh.13-A) and her clothes (Exh.13-B). He is also a mushir of the place of occurrence (Exh.13-C) and has proved it as such. Shoukat Ali (P.W.7)
3. S.I.P., has deposed as an Investigation Officer and has proved entire line and chain of his investigation from the registration of F.I.R. Up to the challanging of the case before the trial Court. In their statements under section 342, Cr.P.C. Both the appellants/accused have taken the plea of defence of such a long standing enmity between the parties which has resulted into the lodgment of criminal cases against each other. Consequently, according to them, the present case is the result of another criminal case of dacoity registered by the appellant party against the complainant party and in fact this case is a counter blast for the earlier case or cases. They have declined to be examined on oath and have not produced any witness in their defence.
4. We have heard the learned counsel for the appellant and State. The contentions raised in favour of the appellants are that an unplausibly explained delay in report is fatal to the story of prosecution specially when it is coupled with a proved and admitted fact of the existence of a long-standing animous between the parties; that the present case is exactly a counter-blast of another criminal case registered against the complainant and his witnesses earlier in time to the present one; that there is conflict between the medical, ocular and the victim's evidence; that there is an undue delay in despatch receipt of the vaginal swabs which were not sealed by the I.O. And this doubts of substitution; that no report of serologist was called for and for that semen of the appellants was not procured which the case of prosecution; that the parties are closely related inter se and so is the case of P.Ws. Who are highly interested; that the victim was examined four days after the occurrence and therefore, detection of semen from vagina of the victim is not coherent with the established principles of the medical jurisprudence; that one Amb is a fictitious person introduced by the prosecution to establish its case; that the swabs were not referred to the chemical examiner by the Investigation Officer which conduct creates doubts of substitution; that the complainant went towards the police station at suntime, but F.I.R. Was lodged at 11 p.m. Which conduct indicates the existence of some negotiation and deliberation going one; statements under section 342, Cr.P.C. Are devoid of the crux of certain questions asked specifically; that the documents produced in defence have evidentiary value under the Qanoon-e-Shahadat Order, 1984; that there are damaging improvements made by the complainant. Learned Assistant Advocate-General representing state has not supported the impugned judgment.
5. We propose to initiate our discussion from the admitted delay in reporting such a heinous crime to the competent authority. This delay is that of 3 days and 14-1/2 hours. Distance between the place of occurrence and the police station shown to be 5 or 6 Kilo meters in F.I.R. To certain suggestions Ismail (P.W.2), the complainant, has deposed that he is uneducated, and that he had stated before police at the time of lodging of F.I.R. That present incident took place 3-4 days back and he was kept under assurance for decision by accused person. In the end of cross, to certain suggestions he has replied:-- ' "There is no Nekmard of our village. As soon as I returned to my home Amb, a relative of the accused came to me for settlement of the dispute. Amb is not related to me. Voluntarily says sister of Amb is married with my brother. I was waited for 3-4 days by the accused persons for Faisla and thereafter they refused to have any settlement with me in respect of present incident."
4. ' F.I.R. Itself do contain this explanation for delay in its substance.
5. ' Now the question arises as to whether this explanation is plausible. In this context we rely on a ruling of a D.B. Case of this Court reported as 1997 PCr.L1 1500. In para. No,5 it reads:--, ' "The impugned judgment has also been assailed by the convicted appellants on the point that it has not considered an inordinate unexplained delay in reporting. We have pondered upon this contention from the point of view as to whether this delay of four days and some hours generate doubts in the story of prosecution. Firstly we find in F.I.R. An explanation for delay that accused appellants were requesting for not lodging complaint for all these days, but then the complainant was finally brought by his mother for report at police station. Column No,1 of F.I.R. Is indicative that there existed some earlier report No,11 on the record of police and with its reference this F.I.R., was lodged at 4.30 p.m. On 17-11-1994. In his examination-in-Chief, Muhammad Faisal (P.W.4) has explained this situationthe following words "for about three/four days, the parents of accused persons requested us for a compromise." Delay in rape cases is a universal phenomenon. It cannot be brushed aside unless the very commission of offence itself is clearly dubious. Quoting from the book "Understanding the Rape victim", written by experts like Sedelle Katz and Mary Ann Mazur of the Department of Psychiatry, University of Washington, U.S.A., (Publication 1979 by John Willey & Sons, New York page 191). "Whereas most crimes permit complaints years later without undermining credibility, for rape the statue of limitations, is 30 days in Colorado, three months in Connecticut, six months in New Hampshire, 12 months in Massachusetts and 18 months in Iowa. The majority of rape victims decided not to report at all. Instead of penalising the victim who delays in reporting the case, she should be rewarded by kindness and consideration for her difficult decision to help society apprehend a criminal, even at some sacrifice to her own well-being". This observation equally applicable upon male victims of rape as well. After all their male-ego and family honour is involved and in the social fabric of Pakistan nekmards of the area do make efforts for compromise specially when the parties belonging to the same village and/or tribe. This creates double mindedness of the young victim and his guardians ultimately resulting into such delays. We find that in the present case both the parties are all the sundry residents of the same village Hasil and all of them are Bhatti by caste. Police record itself is indicative that dozens of nekmards on both the sides were indulging into hectic efforts for compromise which resulted into this delay.
6. Medical and other evidence is clearly suggesting that the victim has been molested severally and the existence of animus with the examining doctor has not even been suggested. Consequently we consider this delay to be a natural result of the socio-ethnic situations coupled with painful mental condition of the victim and his close relatives. The contention is rejected accordingly.
7. ' In the present case parties belong to the same village and same tribe i.e, Khosos, and in other material particulars both these cases are identical. This way, this very Court has observed in headnote (a) in a judgment reported as 1997 PCr.LJ 1095 as under:-- 1997 PCr.LJ 1500; 1997 PCr.LJ 1095; "(a) (Zina Enforcement of Hudood) Ordinance (VII of 1979)--- ' S.10. Delay in reporting zina cases might be stretched upto months provided a plausible natural explanation for such a delay has been placed on record".
8. ' In view of the above-mentioned discussion, we find that the delay in reporting the incident is property explained keeping in view the socio-ethnic values and the customs, mores and folkways prevalent in the area in which the offence had been committed. Consequently this contention is repelled.
6. Another limb of the above-mentioned contention is that this delay should be considered fatal for prosecution in the special circumstances of the mutually admitted existence of long-standing enmity between the parties, the litigations and a case of dacoity registered against the complainant party one day prior to the registration of the present F.I.R. Which F.I.R. Is in fact a counterblast to that case for the sake of cowing-dow the appellant party.
9. ' Indeed major issues of enmity between the parties are transpiring from the record of the case before us. Ismail (P.W.2) has admitted that appellant Wazir was challaned in the murder of Ali Bux Khoso, but he is acquitted in the said case. This deceased Ali Bux Khoso has been shown to be a relative of Ismail, complainant of the present case, by the appellants in their statements under section 342, Cr.P.C. In a document produced in defence as Exh.18/D which is a direct complaint filed against the present complainant party in the Court of Additional City Magistrate Naushahro Feroze by Kauro Khan Khoso, father of appellant Wazir, it has been observed that Wazir's involvement in the murder case got compromised due to the efforts of the brothery, but due to the fear of Ismail, the present complainant who was not satisfied with the compromise, the appellant party had shifted from their village towards a Khosa's village near Tharushah. To a suggestion, Ismail (P.W.2) has replied, "It is incorrect to say that accused Wazir had shifted due to enmity from his village."
10. Muhammad Hassan (P.W.6) has admitted an animus in continuum between the parties since 2-1/2 years prior to the present incident. He has deposed:-- "I know both the parties viz, accused as well as complainant. It is correct that present accused Wazeer was previously challaned in a murder case. It is correct that accused Wazeer and his uncle were injured in an incident, voluntarily says the said incident had taken place 2-1/2 years prior to the present incident. It is incorrect that Ghulam Hyder is father-in-law of P.W. Mossa. It is correct that Ghulam Hyder and Rano were challaned in the case which accused Wazeer and his uncle Suleman were issued. The said case is till pending trial in the Court. I know Kouro Khan, father of accused Wazeer. It is correct that a case against complainant, Mst. Nimani P.Ws. Moosa and Gul Bahar is pending before the learned Sessions Judge, Naushahroferoze in a case of theft, filed by Kouro Khan, father of accused Wazeer."
11. ' Reference is made to various criminal cases pending in many Courts in which both the parties are either complainant-accused or witnesses for their side. For example appellant Wazir is P.W.2 in the calender of witnesses in a challan No,112 of 1993 filed in the Court of Civil Judge Sakrand and one of the accused under arrest is Rano Khoso who has been admitted by Muhammad Moosa (P.W.5) to be his nephew. Another accused in the said challan is shown the column for absconders and in Ghulam Hyder Khoso who has been admitted to be his father-in-law by the above-mentioned P.W.S. This challan Exh.18.0 stitches the animus at least as back as upto July 1993.
12. ' Immediate cause of action for the present case as alleged by the appellant is a criminal case registered by the Court of Additional City Magistrate Naushehro Feroze on 1-9-1994 directing to issue bailable warrants against All the accused vide Diary exhibited as Exh.18-E. The said diary is showing that a direct complaint was submitted in the said Court on 16-8-1994 by complainant.
13. Kauro Khan Khoso, father of appellant Wazeer. The direct complaint itself (Exh.18-D) indicates Muhammad Ismail (present P.W.2) Mooso (present P.W.5), Gul Bahar (present P.W.4) and Mst.
14. Nimani (present victim P.W.3) to be the accused persons having committed offences in the nature of section 382, 323, 342, 506/2, 109 and 120-B, P.P.C. In the said direct complaint (Exh.18.D.), the calendar of P.Ws. Includes present appellants and one Hakimzadi, mother of appellant Wazeer. The Diary of the Court (Exh.
15. 18.E) is indicative that on 28-9-1994 all the male accused persons appeared voluntarily in the Court and furnished the sureties as directed by the Court on 1-9-1994. On 2-10-1994 Mst. Nimani (present victim girl P.W.3) appeared and prayed for adjournment to furnish surety which was done. On 19- 10-1994 she furnished surety in the sum of Rs,2Q,000 as was done by her other co-accused. In spite of serious allegations of such a harabah against the present complainant party in which property worth many times more than Nisab was said to have been robbed which in total comes to not less than many hundred thousands of rupees, no effort were made to recover the same. On the contrary, case diary (Exh.18.E.) shows that Kauro Khoso the complainant, in the said case of Harabah, had lost interest after the sureties were furnished by the accused (present complainant party). He was marked absent on 19-10-1994 and 28-12-1994 and so, resultantly, the accused were acquitted under section 247, Cr.P.C. On the said date. This acquittal seems to be the result of Magistrate's judicial satisfaction that the complaint itself was false and vexatious, otherwise he could have adjourned the hearing of the case to some other day as is envisaged in section 247, Cr.P.C.
16. ' Now the question before us is as to whether the present case is the immediate counterablast against the direct complaint case of dacoity brought by the appellant party. We have pondered about this contention and have come to the conclusion that it is not so. Firstly because the victim girl is corroborated in material particulars by the medical evidence as shall she shown later and secondly because appellant Wazeer in himself appears to be a hazardous persons having no regard for traditions or law. He is the person who was involved into the murder of a relative but to the intervention of tribal elders a compromise got him acquitted. Then he is the person who becomes a witness alognwith second appellant in the direct complaint case of dacoity/harabah which was not followed and no efforts for recovery of the alleged theft property seems to have been made. He is the person who is claimed to have roped and injured alongwith the second appellant in the direct complaint but it does not appear that he and his co-injured companion were ever referred for medical treatment. He is also one of the prosecution witnesses in challan No,112, dated 18-8-1993, (Exh.18.C.). If so, then, under such circumstances, 'animus' works as a doubl- edged sword. Appellants cannot be exonerated because there existed long-standing enmity and in the circumstances of the present case it could be presumed easily that due to laxities prevalent in our society at least appellant Wazir had turned into a hardened and desperate criminal capable of doing anything any way he chose. Consequently we reject this contention and propose to decide the case on merits.
7. It has been contended that there exists material conflict between the ocular and medical evidence, Mst. Nimani (P.W.3), the victim girl, is deposing:-- ' "They pushed my brother Khadim Hussain at some distance from me and thereafter and accused Lal put off my shalwar and forcibly committed zina with me and thereafter accused Wazeer committed zina with me. Accused dragged me in the crop for 15 feet. It took 5 to 10 minutes time to the incident."
17. Gul Bahar (P.W.4) is deposing:-- ' "I found accused Lal Muhammad and Wazeer running towards sugar cane crop while Mst. Nimani was lying naked on the ground, we enquired from Mst. Nimani about the incident, who disclosed that first accused Lal Muhammad had committed Zina with her and thereafter accused Wazeer was committed Zina with her and had run way. Mst. Nimani pointed out that the place at a distance of about 2-3 where she was cutting the grass in the same acre at the place from where Mst. Naimani was dragged but it was thin suggar cane, the place where accused committed offence was thickly planted sugar cane."
18. ' Muhammad Moosa (P.W.5) is deposing:-- ' "I and Gul Bahar also rushed towards the same place when we reached I found accused Wazeer committed Zina with Nimani while accused Lal Muhammad standing on the side. The accused persons while seeing us run away inside the sugar cane crop. Mst Nimani was naked on her lower part of body. Khadim Hussain was also available there. We enquired from Nimani, who disclosed that first accused Lal Muhammad committed Zina with her and thereafter accused Wazeer. It was a sugar cane crop and I noticed marks of struggles. It is incorrect to say that it was sugar cane cutting season. I enquired from Mst. Nimani about the incident and she expressed that first accused Lal Muhammad committed rape with her and thereafter accused Wazeer has committed rape."
19. ' Ismail (P.W.2) is deposing:-- ' "The contents of F.I.R. Were readover to me, I had stated before the police at the time lodging of F.I.R. That when I reached I found accused Lalo keeping his hands on the mouth of Mst. Nimani. I had stated in F.I.R. That mouth of my son Khadim was tied with a towel. I heard cries at the distance of about 1/4 acres from the police of wardat. I gave hakls in response to cries. When I reached at the place of wardat Mst. Nimani was without shalwar. As soon as I reached at the place of incident Mst. Nimani started wearing shalwar."
20. ' In view of these pieces of depositions of the victim and 3 ocular witnesses, following pieces of deposition of Dr. Zaibun-Nissa (P.W.1) appears to be in conflict with them as alleged:-- ' "Mst. Nimani was aged 12 to 14 years. At the time of examination of Mst. Nimani I find, breast well developed, auxiliary hairs present with maddy colour, pubic hair present no mark of violence or injury was found on the body of victim, no sign of injury found internally, vulva was normal, hymen was intact, vagina admitted one little finger. According to that certificate no complete intercourse was performed, however, partial penetration was performed. I did not find any injury internally, there was also no mark of blood."
21. ' It has been alleged that hymen found intact, no sign of internal injury and vagina admitting one little finger do prove that Zina had not taken place. No-existence of the mark of violence of injury on the body of the victim negates the allegation of her being dragged inside the fields of thick sugar cane. We have carefully examined this plea of defence and hold that the word zina used by the victim and ocular witnesses has not been used for complete penetration. As opined by P.W.2 (Dr. Zaibun-Nisa) only partial penetration was performed. In such a situation, hymen's remaining intact is not a rare phenomenon. In the words of Modi's Medical Jurisprudence and Toxicology, chapter Examination of the victim, following lines provide guide to come to the rightful conclusion:-- ' "In girls under fourteen years of age the vaginal orifice is usually, so small that it will hardly allow the passage of the little finger through the hymen. The fourchette and posterior commissure are not usually injured in cases of rape, but they may be torn, if the violence used is very great indeed.
22. The amount of injury to the hymen and genital canal depends upon the degree of disproportion between the genital organs of both parties and the violence used on the female."
23. ' So far as the allegation of dragging is concerned, Mst. Nimani (P.W.3), the victim, has simply deposed that the accused dragged her in the crop for 15 to 20 feet. The usage of the English word "drag" has been translated from some Sindhi word which was used by the victim while deposing. To that word following piece of F.I.R. Is indicative with F.I.R. Is in Sindhi language:-- ' "Then we enquired from our girl Mst. Nimani who informed that Lal Muhammad alias Laloo and Wazeer both came and forcibly took her from her arms and pulled her inside the sugar-cane."
24. ' The word 'dragged' has many shades of meaning. One of the meanings, per Oxford Advanced Learner's Dictionary" is to pull alongwith effort and difficulty, another is to pursude to come or go some where unwillingly. It cannot be said with exactitude as to what were the words used by the victim in Sindhi, but the translation made, in the circumstances of this case, is in that shade of meaning in which she was pulled and taken inside the sugar-cane fields forcibly in a manner that no abrasion, bruise or external injury on the body had taken place. A lot of confusion is created by direct translation from vernacular depositions and this Court had already taken a notice of this fact in a DB case reported as 1997 PCr.LJ 1261 in the following words:-- ' "We are not left with any other alternative but to take a judicial notice of the fact that whenever deposition/statements are made in vernaculars the same are immediately translated by the Courts either in English or in Urdu and recorded as such. This creates possibilities of wrong and erroneous translations. In this age of electronics, It is possible to record vernacular utterings in cassettes and make it exhibited record of the Courts in the interest of safer dispensation of justice."
25. Resultantly, we hold that there is no conflict between medical and other evidence and reject this contention of defence.
8. It has also been argued in favour of the appellants that Dr. Zaibun Nisa (P.W.1) had examined the victim girl Mst. Nimani on 3-9-1994 and had taken the swabs of vagina for referring to the chemical examiner. The report of chemical examiner (Exh.14-B) is indicative that a letter No,282, dated 7-9- 1994 was sent alongwith one sealed bottle through police constable Abdul Hafiz, Buckle No,1331 and this was dispatched on 7-9-1994 but was received in the office of the chemical examiner on 15-9- 1994. The said sealed bottle had intact seal which contained cotton vaginal swabs of Mst. Nimani.
26. From those cotton vaginal swa bs on the chemical analysis semen was detected. Question, now, naturally, arises that four days after the occurrence vaginal swabs of the victim girl were procured and sealed in a bottle and that bottle was dispatched four days after the procurement and then it was received by the chemical examiner eight days after the dispatch, then the query will be as to whether a girl of 11 or 12 years of age can retain semen within her vaginal orfice or its surroundings for four days and whether it can be detected up to that length of time. Second query which arises is as to the whereabouts of the sealed bottle containing vaginal swabs from the date of dispatch i.e, 7-9-1994 to the date of receipt by the office of chemical examiner on 15-9-1994. The third query which arises is that the report of chemical examiner (Exh.14-B) indicates that it was Dr. Zaibu Nisa (P.W.1), Registrar of P.M.C.H. Nawabshah who had dispatched the sealed bottle containing one cotton vaginal swa b with a letter through police constable Abdul Hafiz, and this conduct is not coherent with the general practice because such material is usually handed over to the investigation Officer and he refers the same to the chemical examiner. So far as the first query is concerned, to a suggestion Dr. Zaibu Nisa (P.W.1) had replied that semen remain internally upto 48 hours, but at the same time she has denied a suggestion that semen of some other persons was put on the swa b for referring for examination. Since these two replies are contradicting each other and since the report of chemical examiner is positive, therefore, one of the two contradictory statements is correct. In case semen can remain internally upto 48 hours then the detection of the semen from the internal private parts of the victim almost after four days indicates that the second suggestion is correct and in fact semen of some other person was put on the swab which were in fact not obtained from the vaginal orifice and internal or surrounding parts of the victim girl. But in case this suggestion is incorrect and factual position is that the vaginal swabs were obtained on cotton from internal parts of the private parts of the victim , then the first reply that semen can remain internally upto 48 hours is incorrect. To find out as to where lies the truth, we have made reference to some of the most modern books available on the Forensic sciences in the libraries of Pakistan.
27. ' In Jensen v. State (153 N.W.2d 566 (Wis. 1967) it was held long ago that the presence of seminal fluid in the vagina of the female is a conclusive evidence that coitus had occurred. Seminal fluid (or semen as used in common parlance) consists of two major fractions. One is the spermatozoal fraction secreted by the testes. The other is the prostate secretion. The two major fractions are secreted independently, but the prostatic secretion precedes the spermatozoal secretion. In a classic on Forensic Science edited by Cyril H.Wecht, Vol.2 publication New York 1981 it is discussed as under: "Determination of time from intercourse to examination, based on the presence of spermatozoa is subject to much disagreement. Such disagreement may be, due in part, to the natural variation in the vaginal milieu. It is generally accepted that the amount of vaginal secretion and its chemical constituents have an effect on the residual time for spermatozoa. It is also known that these factors vary with sexual excitement, so the vaginal milieu in cases of rape is probably considerally different than it is in streility studies". (Quotation from 40-American Journal of Clinical Pathology 1963). Morpholgic survival time of spermatozoa in the vaginal milieu is calculated by Pollak to be between 30 minutes to 17 days depending upon the availability of quality and quantity of the activating agents and chemical constituents of the vaginal milieu. All this discussion made above is about non-motile sperm. So far as the minimum & maximum time of finding motile spermatozoa in the vagina is concerned, Dr. S. Siddiq Hussain in his work. "A Text Book of Forensic Medicine and Toxicology" (Published by The Caravan Book House, Lahore) is giving his authoritative point of view in 1989 as under:-- ' "In the living woman, motile spermatozoa in the vagina can be found over 100 hours after coitus and non-motile spermatozoa as for as long as 17 days. In the dead they may even survive longer (Sharp No,1963, J. Canad. Med. Ass. 89, 513)."
28. ' Now if the time of 100 hours is taken to be the yardstick for calculation of the motile spermatozoa having stuck on the cotton swa b prepared by Dr. Zaibun Nisa (P.W.1), it shall come to 4 days and 4 hour. Therefore, in case the swa bs were prepared from inside the vaginal orifice, the motile sperm and naturally semen in its original form were correctly detected by the chemical examiner.
29. ' In forensic sciences vol.2, 25.09(b) supra, it has been authoritatively declared that "Spermatozoa deposited on surfaces other than in the vagina will survive for great length of time depending on the preservation techniques that are used. We have recovered spermatozoa from cotton garments six months after deposition."
30. ' Dornstein in his work "Investigation of Rape: Medico Legal Problems" publication 1963 has reported the recovery of spermatozoa on cotton after fifty years storage under special conditions.
31. 'Second important fraction of semen i.e, prostatic secretion contains a very active enzyme known as Acid Phoshatase. Its activity is greater than that of any other human body fluid. Although Pinto in his article "Rape for the Defence: Acid Phosphatase" published in the Journal of Forensic Medicine 147 (1959) states that Acid Phosphatase activity disappears after 48 hours in the vagina, but cyril H.
32. Wecth disagrees with him and states that the original activity of this Acid varies tremendously from persons to person and due to this factor, decay rate determination for it in the vagina is subject to a very large error.
33. ' From the above-mentioned discussion two queries raised earlier in this para stand resolved. The first one is resolved in the sense that Dr. Zaibun Nisa (P.W.1) has erroneously deposed that semen can be detected within 48 hours of its deposit in the vagina. As shown above, its non-motile sperms can be detected upto 17 days after coitus specially in cases in which female is not a consenting party and therefore, her vaginal milieu do not contain chemical constituents absorbing the fittest sperm and destroying the unfits under the principle of nature of the survival of the fittest.
34. It also stands proved that semen in its motile sperm can be detected upto 100 hours after the intercourse. With the development of Genetic Engineering and Peleo-Bacteriology in the Biological Sciences and Paleology in Geology, new methodology has been developed which can detect deposits of DNA-RNA genetic Codes of a single sperm upto Jurassic Age of Geological Epochs i.e, upto 9 crores of years. Not only that experiments are in continuum in this filed in the most advanced laboratories, but even science fictions of high standards like "Jurassic Park" are emerging on the scene dealing with this subject. Thus we find following interesting passage in the "National Geographic" issue May 1996 page 101:-- ' "The most intriguing idea-cloning a dinosaur from DNA, a scenario featured in the book and movie Jurassic Park-is also the most outlandish."
35. ' An age is fastly coming when detection of morphological DNA-RNA indicating sperm of human or non-human origin might enter pre-Cambrian Age i.e, more than 12 crores of years earlier than the present day. At page 108, the same issue of the National Geographic reports:-- ' "Can DNA be extracted from dinosaur eggs? Success was reported by a team led by molecular biologist Chen Zhangliang at the College of Life Sciences at Peking University, where he works with palenotologis Zhang Yun."
36. ' The second query about the preservation of the spermatozoa on the swabs taken on cotton from the date of procurement the. Date of chemical analysis could have been for six months what to say of few days as in the present case. The defence has not proved substitution of swabs and the chemical examiner has reported receipt of a sealed and intact bottle containing swabs on cotton.
37. Prosecution on the other hand, has proved beyond reasonable doubts the procurement and preservation of swa bs by P. W.1, despatch of the same in intact position through one police constable and receipt in the same condition by the chemical examiner. We do not find violation of any law with regard to the direct despatch of such material by the examining medical officer.
38. Consequently all the three queries arising as off-shoots from this contention by defence stand resolved. The learned counsel for appellant fails on this score as well.
9. It has been contended that one Amb is a fictitious person and has been introduced by the prosecution to establish its case. Ismail (P.W.2), the complainant, has deposed in this context that when he came back to his house alongwith his daughter Mst. Nimani after the occurrence, his relatives and co-villagers also reached there to whom he narrated the facts and a relative of accused namely Amb also came and gave assurance for decision. To certain suggestion he has replied that their is no neckmard in their village and as soon as he returned to him home Amb, a relative of the accused came to him for settlement of the dispute. He has also voluntarily stated that sister of Amb is married with his brother. Muhammad Hussain (P.W.6) has deposed that presently there was no neckmard in their village but previously one Loung Khoso was their neckmard but he had expired. The grievance of the learned counsel for the appellant is that Amb, being named in the evidence, has not been examined and therefore, he appears to be a fictitious person. We fail to understand as to how and under what circumstances examination of a person whose name is not appearing in the calendar of witnesses in the challan is essential. Even if this piece of evidence is excluded, yet the fact remains that the victim girl is corroborated by the medical evidence on the one hand and ocular on the other. Therefore, this contention is repelled.
10. It has also been contended that question No,3 has been put to the accued under section 342, Cr.P.C. But the same do not mention the article about which question has been raised. True that it is so, but subsection (1) of section 342, Cr.P.C. Envisages the questions to be put generally. As is evident from the charge and the evidence of Dr. Zaibunnisa (P.W.1) that those articles were already in the knowledge of the appellants about which these question was put hence this contention is rejected as misconceived.
11. As to the non-procurement of the semen of both the appellants for referring for grouping and for matching to the serologist is concerned, we do agree with the learned counsel for the appellants that this essential part of investigation has been neglected by the Investigation Officer. The superior Courts of this country have, time and again, been warning about this laxity by the prosecution. In a judgment reported as PLD 1983 FSC 204 this Court observed as under:-- "It is not understandable why Medical Officers examining the man for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing the Zina or Zina-bil-Jabr. The police Officers in their reference to the Medical Officers should also in such cases invariably request the Doctor concerned to take the specimen of semen the male accused. They should send them for chemical examination and serology alongwith vaginal swa bs and clothes/cloth etc, having seminal stains. Copies of Judgment were sent to the Secretary Interior, Secretary Department of Law, Home Secretaries and the Inspector-General, Police of the Provinces but the Investigating Officers have shown no interest in complying with the said direction and requiring the Medical Officers to obtain specimen of semen of the accused for comparison with the semen found on the vaginal swabs or the clothes/cloth etc having seminal stains. This is high time that these directionsare followed in letter and spirit as this important piece of evidence will remove doubt if any with regard to the identity of the person committing Zinabil- Jabr.
39. ' In another decision of FB of this Court cited as 1991 PCr.LJ 651 the observation is:-- ' "In addition to the medical report, the report of the Chemical Examiner, which has been produced in Court by the D.D.A. Shows that semen was present on the rectal swabs and also on the shalwar and Qameez of the boy. It is a pity that the semen was not matched, which if it had been done, would have been very helpful for a proper decision of the case."
40. ' This Court has again given such rulings reported, inter alia, 1996 PCr.LJ 1161 and 1997 PCr.LJ 1107.
41. ' But this laxity and negligence in the present case is not of that type which can upset the prosecution's story ipso facto. We cannot neglect victim girl's evidence fully supported by the medical and ocular evidence. This contention, therefore, fails. However, a copy of this judgment be sent to the Secretary, Home, Govt. Of Sindh to take necessary disciplinary actions against the Investigation Officer for this laxity and disobedience of repeated directions in the form of Ruling by the Superior Courts. In fact this disobedience is now reaching a stage where even cases of the contempt of Court can be instituted against the Investigation Officers.
12. Now arises a question as to whether this is a case of attempt of zina or Zina-bil-Jabr. Entire evidence as discussed above, is proving to the hilt that part penetration had occurred. Zina has been defined in section (4) of the Offences of Zina (Enforcement of Hudood) Ordinance 1979 which reads:-- '""Zina--A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other."
42. ' Explanation:---Penetration is sufficient to constitute the sexual intercourse necessary to the Offence of Zina.
43. In view of this position we hold that this is a case in which conviction' and sentence should have been made under article 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. We, therefore, while converting the conviction from article 18 of the said Ordinance to article 10(3) of the said' Ordinance and uphold the impugned judgment. We sentence each one of the appellant to suffer R.I. For 12-1/2 years. The sentence of whipping is remitted under proviso to section 3 of the Abolition of the Punishment of Whipping Act, 1996. Benefit of section 382-B, Cr.P.C. Is extended.
44. Appeal is dismissed.