' CH. IJAZ YOUSAF, J.--- This appeal is directed against judgment, dated 21-10-1997, passed by the learned Additional District and Sessions Judge, Dera Allahyar, whereby the appellant was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to twenty years' rigorous imprisonment. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant.
2. Briefly stated, the prosecution case as gathered from the record is that on 23-8-1994 an F.I.R., bearing No,114 of 1994 was got registered under sections 10, 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Dera Ailahyar Police Station, by one Saifal son of Lohar Khan, Caste Dashti wherein, it was alleged that originally, the complainant was resident of Khanpur Jamali who prior to the occurrence was residing in a house situated at Suhbatpur Railway Crossing, along with his family members. On 23rd June, 1994 his step-brother-in-law, namely, Raja came to his house and stayed there at night. Since the complainant in order to see his relatives, had already planned to go to Sindh, therefore, he requested the said Raja to extend his stay. It was further alleged in the complaint that on 25-6-1994, when the complainant came back to his house neither his wife and children including Mst. Dhayani aged about 11 years were available nor Raja was present there. It was further alleged in the F.I.R. By the complainant that he searched for them but his efforts remained unfruitful. Accordingly, three persons including the present appellant were nominated in the F.I.R. To be the culprits. Record reveals that subsequent to registration of the F.I.R.
Though investigation was initiated by the police in the case yet, neither the abductees were recovered nor the culprits were apprehended, uptil 31-3-1997 when, for the first time, the complainant himself produced before the police, his abductee daughter, namely Mst. Dhayani and other minor children, namely, Hamil, Sani and Marash Ali and disclosed that the victim Mst. Dhayani subsequent to her abduction was taken by the accused to a place known as "Karachi Katora". She was confined there forcibly, in the house of one Muhammad Din and was subjected to Zina-bil- Jabr by the appellant. It was also alleged that since Mst. Dhayani became pregnant from the appellant, therefore, she was taken to Sukkur and was hospitalized there, where, she gave birth to a child. It was also alleged by the complainant that since in the meantime he had received information regarding presence of his daughter at Sukkur, therefore, he immediately rushed to the place and rescued his daughter from the clutches of the appellant. Record further reveals that subsequently Mst. Dhayani was also produced before Tehsildar Jatpat for the purpose of recording her statement under section 164, Cr.P.C. On the completion of investigation the accused/appellant along with acquitted accused Lal Bakhsh and Maula Bakhsh were challenged to the Court for trial, whereas the remaining accused remained at large.
3. At trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the accused/appellant produced six witnesses, in all. P.W.1 Saifal is the complainant. He at the trial, reiterated the version contained in the F.I.R. And confirmed that the accused/appellant was the same person who, with the help of other accused, had abducted her daughter. He produced in Court F.I.R. Exh.P.A. He, in the course of his cross-examination, admitted the suggestion as correct that he had not immediately lodged the report and at first instance had visited his father-in-law Muhammad Saleh and thereafter, went to Faridullah Khan Jamali and on his persuasion, had lodged the report. He, however, disclosed that subsequent to the occurrence he was contacted by Din Muhammad, Maula Bakhsh, Lal Bakhsh and the present appellant in Jatpat and was asked to pay a sum of Rs,30,000 in order to get back his children. He, also admitted this suggestion as correct that absconding accused Mir Hassan had illicit relations with her wife. P.W.2 Mst. Dhayani is the victim. She deposed that prior to the occurrence, her uncle Raja and grandmother Mst. Sadoori had visited their house. They stayed there for about two nights. On the second night when her father was away to Sindh her mother prepared tea which was taken by all of them. After taking the tea she became unconscious. On regaining her consciousness she found herself in the house of one Muhammad Din Marri at "Karachi Katora", where Mir Hassan and other accused were also present. On inquiry made by her mother Mirzadi, they were told by the culprits that Mirzadi should marry Mir Hassan and the victim should marry Muhammad Umar else, they would be killed. It was further deposed by her, that on their refusal to do the needful accused Mir Hassan raped her mother whereas, appellant committed Zina-bil-Jabr with her, due to which she became pregnant. It was further disclosed by her that as the pregnancy matured she became unconscious and was taken to Sukkur where she was hospitalized and gave birth to a male child.
She deposed that since her father was already searching for them, therefore, he, on the receipt of information came to see her and rescued her from the appellant. In the course of her cross- examination she disclosed that at the time of the commission of Zina, they raised alarm but none from the neighborhood, came on the spot for their rescue. She also deposed that as they were confined in the house, therefore, she was not aware as to whether Muhammad Din's house had any approach or not. She further disclosed that she remained in the house of Din Muhammad for about three years and when she ultimately lost her senses then she was taken to a hospital at Sukkur where she was operated upon. She refuted this suggestion as incorrect that her uncle Raja and grandmother Sadoori had in fact taken them from Jatpat and had left them with her uncle Muhabat and Peeral. On re-examination she categorically stated that the child born to him was of the appellant. P.W.3 Ejaz Ahmad, Constable is a formal witness to the inspection of site by the Investigating Officer. He produced in Court inspection memo. Exh.P.B. And correctly identified his signatures thereon. P.W.4 Manzoor Hussain is a witness to the production of abductee and other children by the complainant before the police on 31-7-1997. The witness correctly identified his signatures on Exh.P.C., the production memo. P.W.5 Zakir Hussain is also a formal witness to the production of accused Lal Bakhsh before police by one Haji Khan Marri. P.W.6 Abdul Ghafoor is Investigating Officer of the case. He deposed that subsequent to the occurrence he had inspected the site, prepared the site plan, Exh.P..E. As well as inspection memo. Exh.P.B. And had also recorded the statements of prosecution witnesses under section 161, Cr.P.C. He further deposed that on 31-3- 1997 the complainant produced the abductees including the victim before him, who were accordingly taken into custody vide recovery memo. Exh.P.C. He further deposed that subsequent to her recovery, the victim was also produced by him before Tehsildar, for the purpose of getting her statement under section 164, Cr.P.C. Recorded.
4. On the completion of prosecution evidence, the accused/appellant was examined under section 342, Cr.P.C. Wherein, he denied the charge and pleaded that he was innocent. He, however, refused to lead any evidence in his defence or to appear as his own witness in terms of section 340(2), Cr.P.C.
5. After hearing arguments of the parties the learned trial Court convicted the appellant and sentenced him to the punishment as mentioned in the opening para. Hereof. It would be pertinent to mention here that though two other accused, namely, Lal Bakhsh son of Saz Khan and Maula Baldish son of Barkhan Marri were also challenged to the Court for trial and were charged for the offence yet, both were acquitted of the charge vide the impugned judgment, dated 21-10-1997. Rest of the culprits could not be apprehended and, therefore, declared as proclaimed offenders.
6. We have heard Mr. Gohar Yaqloob Khan Yousafzai, Advocate, learned counsel for the appellant and Mr. Zahid Muqeem Ansari, Advocate, learned counsel for the State, and have also gone through the relevant record with their helped.
7. Mr. Gohar Yaqoob Khan Yousafzai, Advocate, learned counsel for the appellant has contended that F.I.R. Was lodged with a delay of about two months and the instant case was of no evidence, solitary statement of Mst. Dhayani was not sufficient to warrant conviction of the accused/appellant, the impugned judgment suffers from misreading and non-reading of material evidence and the prosecution story is improbable rather unbelievable. In order to substantiate his contentions he placed reliance on the following reported judgments:--
(1) Muhammad Arif v. The State PLD 1982 SC 402 in which case it was held that in view of contradictions in the statements of witnesses of occurrence (prosecutrix) as well as her sister and uncle and absurd nature of story given by her, and the fact that her own husband appearing as defence witness had contradicted her, the prosecution story was not worthy of reliance.
(2) Muhammad Zafar v. Zahoor and others PLD 1983 FSC 480 wherein, it was held that version of occurrence given by prosecutrix being full of discrepancies and contradictions was not believable unless corroborated by substantial evidence.
8. Mr. Zahid Muqeem Ansari, Advocate, learned counsel for the State, on the other hand, while controverting the above contentions submitted that guilt of the accused/appellant was substantially and materially brought home by the prosecution at the trial, through independent, reliable and trustworthy evidence, therefore, the impugned judgment was unexceptionable. He pleaded that since the statement of Mst. Dhayani was duly corroborated by the statement of P.W.1, the complainant, therefore, the trial Court had rightly convicted the appellant. He argued that even otherwise, solitary statement of the prosecutrix was sufficient to prove the charge. He placed reliance on the following reported judgments:--
(1) Mst. Nasreen v. Fayaz Khan and others PLD 1991 SC 412 wherein it has been laid down by the Humble Supreme Court of Pakistan that sole testimony of victim was enough for conviction, in case it inspires confidence, and that since victim's husband being an insane person was in jail and was not available to impregnate her, therefore, obviously pregnancy had resulted out of third party cohabitation.
(2) Muhammad Akram v. The State PLD 1989 SC 742 wherein it was held that the Court below having carefully tested the veracity of testimony of prosecutrix, the assumption that she might have been used to sexual intercourse and mere opinion of the doctor in that behalf could not have weakened her testimony and would not for that reason, necessitate any further corroboratory or supporting evidence for basing conviction thereon.
9. As to the first contention raised by the learned counsel for the appellant regarding delay in lodging the F.I.R. It may be observed here that in the instant case, occurrence took place on or about 24-6-1994, F.I.R. In respect thereof was got registered by the complainant on 23-8-1994 after about two months of the occurrence. Record reveals that the delay in lodging the F.I.R. Has been properly explained at the trial by the prosecution witnesses. It has come in evidence through the statement of P.W.1 that the complainant subsequent to the occurrence had initially tried to search out the abductees in the area. Thereafter, he went to Tehsil Bachalwah in Jacobabad District in order to make an inquiry from Muhammad Saleh Marhata father of the absconding accused Raja Marhata. Being unsuccessful in tracing out the abductees he, according to him, again came back to Jatpat and reported the matter to the elders and notables of his tribe and area and on their persuasion ultimately, reported the matter to the police. This portion of complainant's statement has not been challenged by the defense at the trial. Therefore, to our mind, nothing on record is available to disbelieve the explanation offered by the complainant. Even otherwise, delay of such type in reporting the occurrence of this sort to the police is not uncommon in this country particularly, in the tribal society where people are normally hesitant to report to the police the matters concerning womenfolk and involving their honor. Thus, this contention raised by the learned counsel for the appellant, in our view, has no force.
10. As regards the second contention raised by the learned counsel for the appellant that the instant case was of no evidence, it has been vehemently argued by the learned counsel for the appellant that except statement of the prosecutrix no evidence was available on record to substantiate the charge. It appears that the learned counsel appearing for the appellant is trying to blow hot and cold in the same breath. On one hand it is being pleaded that the instant case was of no evidence and on the other, it is being argued that statement of the prosecutrix was there to support the prosecution version. He has failed to point out that as to why, and on what count, the statement of the victim should be discarded. It may be observed here that it is not the number of witnesses but quality and credibility of the evidence which is to be considered. In cases of Zina, there are generally hardly any witnesses other than the victim herself, as it is very rare that such offence takes place in view of others or at public place. That is why, the Superior Courts in this country have attached great sanctity to the statement of the victim and it has been repeatedly laid down that sole testimony of the victim would be sufficient to base conviction thereon if it inspires confidence. It would not be out of place to mention here that P.W.2 Mst. Dhayani, the victim in the instant case, has not only fully supported the prosecution case, but has deposed, at the trial, in a straightforward and unequivocal manner that she alongwith her mother and minor children were abducted by the culprits through deceitful means. Intoxicant was administered to them against their will by the culprits and when they became unconscious, then they were removed from their house and were taken to and confined elsewhere. It has also come on record that the victim was initially asked to marry the appellant and thereafter on her refusal, she was forcibly subjected to Zina-bil-Jabr by the appellant. The prosecutrix has also explained at the trial that all the time when she was kept in the house of Jan Muhammad she was under restraint and despite the alarms raised by her nobody from the neighborhood or the vicinity came to her rescue. In the course of her cross-examination while replying a suggestion from the defense she has also pointed out that having been confined in the said house, she was not aware as to whether the said house had any access or not. She was subjected to lengthy cross-examination, but nothing favorable to the defense or damaging to the prosecution was elicited from her. Further, it has also come on record through P.W.2 that she having been subjected to Zina-bil-Jabr by the appellant became pregnant and was ultimately taken to hospital at Sukkur where she was operated upon and gave birth to a child and was ultimately rescued from the clutches of the appellant. Relevant portion of her statement reads as follows:- {{URDU TEXT}} ' The above portion of her statement, was not challenged by the defense, at the trial though suggestion was made to this effect that the child born to the victim was not a progeny (offspring) of the appellant. On the contrary, it was confirmed by the prosecutrix that the child born to her was of Muhammad Umar. The following portion of her statement is explicit in this regard:-- "Re-examine {{URDU TEXT}} ' The victim at the time of her alleged abduction was a girl of tender age. She was unmarried. Thus, her remaining in custody of the appellant for about three years and ultimately giving birth to a child is ample proof that she was subjected to sexual intercourse. Further, neither any enmity has been alleged against her nor it has been pleaded that she had any motive to falsely implicate the accused. The factum of her giving birth to a child lends further support to her testimony. Therefore, he statement in our view, cannot be disbelieved. This contention as such has also no force.
11. As to the next contention of the learned counsel for the appellant that solitary statement of the victim was not sufficient to warrant conviction of the accused it may be mentioned here that though as discussed above, the instant case was not based upon the solitary statement of the victim and sufficient corroboratory evidence was available yet, it is well-settled that solitary statement of the prosecutrix is sufficient to warrant conviction in case it inspires confidence. The above proposition finds support from the cases cited at the Bar by the learned counsel for the State i,e, Mst. Nasreen v. Fayaz Khan and others PLD 1991 SC 412 and Muhammad Akram v. The State PLD 1989 SC 742 as the facts and circumstances of these cases particularly, the case of Mst.
Nasreen v. Fayaz Khan and others PLD 1991 SC 412 are almost identical to the case in hand. In Mst.
Nasreen's case husband of the victim being insane was confined in the jail and had neither any access nor opportunity to impregnate her. In the circumstances it was held that the pregnancy was the result of third party cohabitation. In the instant case too, the victim was a virgin girl. She was taken and confined by the appellant and was subjected to Zina-bil-Jabr as a result whereof she became pregnant and gave birth to a child, therefore, the pregnancy itself lends support to her statement that she was subjected to sexual intercourse by the appellant.
' So far as the cases cited at the Bar by the learned counsel for the appellant are concerned, it may be noted here that facts of the present case are wholly distinguishable from the facts of cited cases. In the case of Muhammad Arif v. The State PLD 1982 SC 402 solitary statement of the prosecutrix was discarded by the Court in view of the fact that the same was contradicted by her sister and uncle and the story given therein was absurd in nature and her own husband appeared as a defense witness to contradict her, whereas in the instant case the facts are completely other way round. Likewise, in the case of Muhammad Zafar v. Zahoor and others PLD 1983 FSC 480 the statement of the prosecutrix was disbelieved as the same was found full pf contradictions and discrepancies and was not corroborated by substantial evidence, whereas, the, statement of the prosecutrix in the instant case, is not only corroborated by other reliable evidence, but inspires confidence, as well. This contention raised on . Behalf of appellant must, therefore, fail.
12. As to the last contention of the learned counsel for the appellant that the story given by the prosecution was improbable rather unbelievable it may be mentioned here that we have ourselves minutely gone through the record of the case. Neither improbability of any sort has been found in the prosecution version nor there appears to be any material discrepancy in the evidence. On the contrary, the victim has given an explicit testimony about the incident and has categorically attributed the commission of heinous act with her by the appellant. Her testimony also finds support from the statement of P.W.1 and the fact that she was impregnate and gave birth to a child. Testimony of the victim inspires confidence and is worth believing. Therefore, the learned Trial Court in our view, had rightly believed the same. There appears to be no reason as to why a different view may be taken. This contention too, therefore, falls.
13. In view of the above discussion we are of the view that judgment of the lower Court does not suffer from any infirmity or error meriting any interference by this Court. The same is accordingly maintained and the appeal is hereby dismissed. Benefit of section 382-B, Cr.P.C., however, shall remain intact.