IFTIKHAR AHMAD CHEEMA, J.--- Maqbool Ahmad alias Maqbooli son of Karim Bukhsh, caste Arain, resident of Mianwali, District Rahimyar Khan (accused-appellant) was charged under sections 10(3) and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was tried and convicted by Judge, Special Court for Speedy Trials, Multan who vide his judgment, dated 7-5-1994 sentenced him to life imprisonment plus 30 stripes under sections 11 and 20 years' R.I. Plus 30 stripes under section 10(3) of the aforesaid Ordinance.
2. Briefly stated the prosecution case is as under:- Mushtaq Ahmad, who is author of the complaint Exh.P.A. And the father of victim Mst. Karim Khatoon, is a resident of village Ghauspur, District Rahimyar Khan and his in-laws also live at a distance of 4/5 Acres from the garden of one Khan Muhammad. On 19-6-1993 at about 6-30 p.m.
Mst. Karim Khatoon (victim) aged 9/10 years, minor daughter of the complainant, went to cut grass near the house of her grand-parents. When she passed by the orchard of said Khan Muhammad and was proceeding towards the house of her maternal-grandfather (Hussain Bukhsh), she was allured by Maqbool Ahmad, accused-appellant who called her on the pretext of giving her mangoes. As soon as Mst. Karim Khatoon went near Maqbool Ahmad, the latter forcibly took her to a nearby sugarcane field on the point of knife and committed Zina-bil-Jabr with her. She cried and lamented out of pain and her screams attracted her father Mushtaq Ahmad, her maternal-uncle Sanwal (P.W.) and Muhammad Akram (not produced) who were present near the garden of said Khan Muhammad. They rushed to the spot and saw Maqbool Ahmad, accused-appellant committing sexual intercourse with Mst. Karim Khatoon. He had penetrated his penis into the vagina of Mst. Karim Khatoon and was having jolts forward and backward. Mst. Karim Khatoon was laying in a pool of blood. At the sight of the P.Ws. Maqbool Ahmad, accused-appellant ran away leaving his victim in a naked state. Mst. Karim Khatoon became unconscious. She was brought home by her father Mushtaq Ahmad and was being taken to the police station but on the way they met Shah Muhammad, A.S.-I. The complainant told him all about the occurrence and the said A.S.- I. Recorded his statement Exh.P.A. The same was sent to the police station for formal registration of the case. The police took into possession blood-stained earth from the spot. Mushtaq Ahmad, complainant produced blood-stained Shalwar of her daughter Mst. Karim Khatoon which was taken into possession. The Police Officer, seized of the investigation, recorded the statements of the P.Ws., apprehended the accused-appellant who got recovered knife P.1 which he had burried near the roots of the mango tree. The same was taken into possession. Mst. Karim Khatoon was produced before the lady doctor Aalia Rehman (P.W.4) who medically examined her. The vaginal swa bs were sent to the Chemical Examiner, Multan for opinion. The said doctor observed that the vagina of the victim admitted two fingers tightly and painfully. Lady doctor opined that the victim had been subjected to rape. The report of the Chemical Examiner Exh.P.J. Is positive. Dr. Qasim Khan (P.W.5) medically examined Maqbool Ahmad, accused-appellant on 3-7-1993 and affirmed his sexual potency for committing sexual intercourse. After the investigation the accused-appellant was challaned to face trial before Judge, Special Court for Speedy Trials, Multan.
3. Prosecution examined nine witnesses in support of its case, Mushtaq Ahmad, complainant appeared as P.W.1. He resiled from his police version which finds mention in the F.I.R. Exh.P.A.
Wherein he had alleged 'that he had seen Maqbool Ahmad accused-appellant committing sexual intercourse with his daughter Mst. Karim Khatoon. During the trial he took a complete somersault and gave a deliberate concession to the accused with a view to save him for monetary gain. He deposed as under:-- "My in-laws live in my village. The garden of Master Khan Muhammad lies near the house of my in- laws. Mst. Karim Khatoon my daughter is 9 or 10 years old. She used to go to the house of her grandmother (Nani) to cut grass. About 10/11 months ago Karim Khatoon my daughter went to cut grass and was passing near the garden of Khan Muhammad. Maqbool accused was there who ran away. On the shrieks of Karim Khatoon we went there and she was lying in a pool of blood. I did not see Maqbool accused committing rape with my daughter."
4. Mst. Karim Khatoon (victim) appeared as P.W.2 before the trial Court and reiterated what she had stated before the police. She deposed on oath that on the day of occurrence i,e, 19-6-1993 towards evening when she was going to the house of her mother's mother to cut grass and passed by the orchard of Khan Muhammad. Maqbool Ahmad, accused-appellant offered her Mangoes.
She went near him, he took her to a sugarcane field where he showed her a knife and committed Zina-bil-Jabr with her by putting off her Shalwar. She raised alarm which attracted her father Mushtaq Ahmad, Sanwal and Muhammad Akram her maternal-uncle. On seeing them approaching the accused ran away. She further deposed that her father Mushtaq Ahmad then took her to the police station. A Thanedar recorded her statement and took into possession her Shalwar. She was medically examined. She also alleged that she bled from her private part during the sexual intercourse and her Shalwar was stained with blood.
5. The statement of Mst. Karim Khatoon (victim) P.W.2 was further fortified by the statement of Sanwal P.W.3 and received corroboration from the medical evidence. Lady Dr. Aalia Rehman P.W.4 who had medically examined the victim observed as under:-- "Vulva was stained with old blood, hymen was torn and slightly fresh bleeding was seen from the hymen showing injury. Vagina admitted two fingers tightly and painfully. There vaginal swabs were taken which were blood-stained for onward transmission to the Chemical Examiner, Multan."
She unambiguously opined that the victim had been subjected to rape which was confirmed by the Chemical Examiner's Report Exh.P.J. The potency of Maqbool Ahmad, accused-appellant stands established by the evidence of Dr. Qasim Khan P.W.S.
6. Maqbool Ahmad, accused-appellant denied the prosecution allegation and pleaded false implication on account of previous enmity with the complainant party. He, however, did not produce any evidence in his defence nor he opted to enter the witness-box as envisaged under section 340(2), Cr.P.C.
7. Learned trial Judge after a careful analysis of the entire evidence believed the prosecution story in toto and convicted the accused-appellant (Maqbool Ahmad) under the aforesaid offences and sentenced him to life imprisonment plus 30 stripes under section 11 of Offence of Zina .(Enforcement of Hudood) Ordinance, 1979 and 20 years' R.I. Plus 30 stripes under section 10(3) of the aforesaid Ordinance, vide the impugned judgment, dated 7-5-1994.
8. Feeling aggrieved Maqbool Ahmad, accused-appellant has come up in appeal and we have heard the learned counsel for the appellant and the learned State Counsel at length.
9. The learned counsel for the appellant has raised the following contentions:--
(i) That prosecution evidence is hardly sufficient to warrant the conviction of the appellant.
Mushtaq Ahmad, complainant (P.W.1) having resiled from his police statement, unambiguously stating that he did not see Maqbool Ahmad, accused-appellant committing Zina with his daughter, Mst. Karim Khatoon (P.W.2) his evidence does not carry any evidentiary value. Sanwal P.W.3 is a false and made up witness and the solitary evidence of Mst. Karim Khatoon (victim) without substantial corroboration is inadequate to rest a conviction under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
(ii) That an offence under section 11 of the said Ordinance is not made out in the circumstances of the case. Reliance is placed on--
(i) PLD 1993 FSC 21, (ii) 1987 SCM R 1167, (iii) 1989 SCM R 438 and (iv) 1997 PCr.LJ 1261.
(iii) That the appellant being an old man of round about 60 years was incapable to perform sexual intercourse. His age is also a relevant circumstance in arriving at the conclusion that he has been falsely raped in the instant case due to party-faction, ;rid
(iv) Last but not the least is that in case we come to an irresistible conclusion that the accused- appellant has committed the aforesaid offence/offences we should take a lenient and charitable view in awarding sentence to him.
10. The learned counsel for the State while supporting the judgment of the trial Court has vehemently contended that there is nothing on the file which may tend to show any background of enmity between the parties nor the accused-appellant led any evidence in order to establish his innocence. Hence his plea of false implication has no legal foundation whatsoever. Mst. Karim Khatoon P.W.2 has made a consistent and convincing statement and despite a slashing cross- examination the defence hopelessly failed to elicit anything which may tend to discredit her testimony which stands further fortified by the statement of Sanwal P.W.3. The ocular evidence receives corroboration from medical evidence and the Report of Chemical Examiner Exh.P.J.; contention raised by the learned counsel for the accused-appellant are without substance. There is sufficient evidence available on the file which may tend to show that victim (Mst. Karim Khatoon) was removed against her will and without her consent to the sugarcane field where she was subjected to Zina-bil-Jabr by the accused-appellant by show of force, hence an offence under section 11 of the aforesaid Ordinance is clearly made out against him. He has also pointed out that Mushtaq Ahmad (complainant) made deliberate concession to the accused-appellant for ulterior motive. The complainant was fully exposed in his cross-examination and he has frankly conceded that the accused-appellant had agreed to give his brother-in-law the hand of his daughter in marriage and also a sum of Rs,35,,000 as compensation for the mischief he had done, hence the evidence of this hostile witness does not falsify the prosecution case. Even otherwise, the concessions made by the complainant (Mushtaq Ahmad) do not adversely affect the testimony of other eye-witnesses; Sanwal P.W.3 was present on the spot which is spelt out from the contents of the F.I.R. Exh.P.A. And from his statement made before the A.S.-I.; the same was recorded on the following day of the occurrence. Sanwal P.W.3 stood firm to the ordeal of cross-examination and his testimony cannot be rejected/discarded by the testimony of a won-over P.W. As regards the sentence, learned State Counsel vehemently contends that keeping in view the tender age of the victim and the nature of the offence the accused-appellant does not deserve any leniency.
We have given our anxious consideration to the arguments propounded by the learned counsel for the parties and have also perused the record. The first question which falls for the determination of this Court is whether the prosecution has fully established the guilt of the accused-appellant (Maqbool Ahmad) for the aforesaid offences through reliable evidence of unimpeachable character. To answer this question we propose to examine the evidence available on the file.
12. The prosecution case chiefly rests on the statements of Mushtaq Ahmad, complainant P.W.1, Mst.
Karim Khatoon (victim) P.W.2 and Sanwal P.W.3. It is indeed true that Mushtaq Ahmad, complainant has resiled from his police statement by taking a complete somersault at the trial and has alleged that he had not seen the appellant (Maqbool Ahmad) committing sexual intercourse with his daughter Mst. Karim Khatoon. He was, however, fully exposed in his cross-examination. He has frankly admitted that the accused-appellant had promised to give the hand of his daughter to the brother of his wife and also promised to pay a sum of Rs,35,000 so that he might be pardoned. This was the quid pro quo for pardoning the appellant for his immoral act which he committed with the victim and we are fully satisfied that the complainant has extended deliberate and conscious concessions to the accused/appellant with a view to save him by taking this device of resiling from his police statement because the offence with which the accused-appellant is charged being non-compoundable and the complainant with whom the appellant had agreed to give the hand of his daughter in marriage to his wife's brother and also to pay a sum of Rs,35,000 as penalty, had no option but to exonerate the appellant from the commission of the aforesaid offences of abduction and Zina-bil-Jabr by saying that he was not an eye-witness of the occurrence. The aforesaid admissions of the complainant led us to an irresistible conclusion that he had intentionally perjured on this point. Anyhow, we are satisfied that there important circumstances stand fully established from his statement. First, the venue of the occurrence, second the subjection of his daughter Mst. Karim Khatoon P.W.2 to Zina-bil-Jabr by someone because on his own showing she was crying and lamenting and her, shrieks of cries attracted him and the other P.Ws. To the spot and she was lying naked in a pool of blood in the sugarcane field, and third the offer by the accused/appellant Maqbool Ahmad to give the hand of his daughter in marriage to the wife's brother of the complainant plus a sum of Rs,35,000 as compensation for obtaining pardon from the complainant. All these facts go a long way to support the prosecution version and the culpability of the appellant in the commission of the offences with which he is charged.
Anyhow, even if the evidence of Mushtaq Ahmad, complainant (P.W.1) is discarded by way of abundant caution, the prosecution case stands proved by the statement of Mst. Karim Khatoon (P.W.2) who is the star prosecution witness. She was subjected to a searching cross-examination but there is nothing on the file which may tend to discredit her testimony. Having no previous animus, hostility or against the accused-appellant we see no rhyme or reason why she should trump up a false case against the rapist (Maqbool Ahmad). Her evidence stands further fortified by the statement of Sanwa] P.W.3 on all material particulars. It is indeed true that Sanwal is the maternal-uncle of Mst. Karim Khatoon but mere relationship cannot be taken to be a sufficient ground to discard his evidence unless it is further shown that he was actuated with a motive or malice to falsely implicate the accused. We have carefully perused the cross-examination of Sanwal P.W.3 and find nothing which may tend to lead us to conclude that he had some hostility or against the accused appellant for falsely implicating him in a case involving moral turpitude. To us Mst. Karim Khatoon and Sanwal (P.Ws.) are witnesses of truth and we place our implicit reliance on their testimony.
13. The oral testimony of the aforesaid P.Ws. Stands fully corroborated by the medical evidence and the recovery of blood-stained Shalwar of the victim and the Report of the Chemical Examiner Exh.P.J.
14. We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. Does it appeal to reason that a girl of tender years would foist a rape charge on an innocent co-villager unless a remarkable set of facts or clearest motives were made out. The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilities the hypothesis of false implication. The injury on the person of the victim especially on her private parts, has corroborative value. Then presence of blood on her Shalwar is also testimony which warrants credence. And if rape has been committed, as counsel for the appellant, more or less conceded, why, of all persons in the world, should the victim hunt up the appellant and point at him the accusing finger. We are, therefore, satisfied that it was Maqbool Ahmad, appellant who committed Zina-bil-Jabr with Mst. Karim Khatoon as alleged by her and an offence under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 stands proved against him and he was rightly convicted under the aforesaid offence. His conviction for the commission of Zina-bilJabr under section 10(3) ibid is accordingly maintained.
15. As regards the offence of abduction within the meaning of section 11 of the said Ordinance; learned counsel for the appellant has vehemently contended that the appellant cannot be held guilty under section 11 of the said Ordinance because on her own showing Mst. Karim Khatoon was allured by the appellant on the pretext of giving her mangoes and she followed him to the sugarcane field of her own accord. Hence there was no kidnapping or abduction by the accused- appellant. Reliance is placed on PLD 1993 FSC 12(16).
16. The contention raised by the learned counsel for the appellant needs a careful scrutiny of section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which deals with kidnapping/abduction. It reads as under:-- "Kidnapping, abducting or inducing woman to compel for marriage, etc.--- Whoever kidnap or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment which may extend to life and with whipping not exceeding thirty stripes, and shall also be liable to fine... "
The word "abduction" is not defined in the said Ordinance. We are, therefore, bound to take guidance from the Penal Code. Abduction is defined under section 362, P.P.C. Which reads as under:-- "Whoever by force compels or by any deceitful means induces any person to go from any place is said to abduct that person."
On a bare reading of the aforesaid section one is apt to conclude that in order to attract the offence of abduction there should be either the element of force or deceit for the removal of the abductee, hence the element of force or decit is a sine qua non to constitute the offence of abduction. The prosecution case is that the appellant allured the victim (Mst. Karim Khatoon) on the pretext of giving her mangoes and forcibly took her to a nearby sugarcane field where he committed Zina-bil-Jabr with her. The most relevant question for the determination of this crucial point is whether the accused appellant employed/used force for the removal of the victim (Mst.
Karim Khatoon) to the sugarcane field. If the element of force is spelt out from the evidence then and then alone we shall be justified in dismissing the argument raised by the learned counsel for the _appellant that an offence under section 11 of said Ordinance amounting to abduction of Mst.
Karim Khatoon (victim) is not made out against the appellant. In order to appreciate and determine this crucial point we have carefully and minutely examined the statement of Mst. Karim Khatoon (victim) because the evidence of the victim alone is relevant on this point for her removal to the sugarcane field was witnessed by none else. In her examination-in-chief she deposed as under:- "About a year back I was going to the house of my mother's mother to cut grass. I went near the garden of Khan Muhammad. Maqbool Ahmad, accused asked me to have some mangoes I went near him. He took me to a sugarcane field. He showed me a knife. He then put off my Shalwar and committed forcible rape with me."
17. What we have been able to conclude from the above statement is that the appellant showed her knife for the commission of Zina-bil-Jabr when they had reached in the sugarcane field, and this is what is clearly spelt out from the above narration of the victim. Because she has not alleged that when she went close to the accused/appellant he showed her a knife and took her to the sugarcane field on knife point. But unfortunately the defence counsel who represented the accused/appellant before the trial Court, due to his ignorance lost this benefit and further cross- examined the victim who qualifying her statement made in her examination-in-chief further deposed that she went to the accused when he said that he would give her mangoes and thereafter he showed her a knife. He was holding the knife in one hand and with the other hand he dragged her towards the sugarcane field. This explanation/ clarification made by the victim made the moot point more complicated and we are constrained to say that it did happened due to the ignorance and lack of knowledge of law of the defence counsel who represented the accused appellant before the trial Judge. The mode of cross-examination also deserves our condemnation.
Anyhow, our anxiety to reach to a correct conclusion again drove us to the statement of Mst. Karim Khatoon and what we have been able to conclude after due consideration, is that the victim's story which appears in her examination-in-chief that she was taken to the sugarcane field by the accused appellant and then he showed her a knife in order to terrorise her by putting her in fear of assault/death appears to be nearer to the truth because if the appellant had employed the element of force by taking out his knife when he was present near the garden of Khan Muhammad, the victim would have scremd and cried out of fear before her reaching in sugarcane field and her shrieks of cries would have certainly attracted the P.Ws., who on their own showing were present somewhere around and in that eventuality who knows, who knows what would have happened to Mst. Karim Khatoon. She has improved/qualified her statement by saying that she went near the appellant, he put a knife in one hand and dragged her to the sugarcane field with other hand but when confronted with her police statement it stands established that she had not stated so even before the police. We are, therefore, apt to conclude that the element of force which is a sine qua non for the constitution of an offence under section 11 of the said Ordinance is missing in this case and in all probability.Mst. Karim Khatoon (victim) was taken to the sugarcane field by the accused/appellant by allurement and not by force. However, the accused did use force in order to compel her for sexual intercourse and he executed his wicked design by terrorising the victim on knife point.
18. The upshot of the above discussion, therefore, is that the prosecution case to the extent of abduction stands not proved. We, therefore, set aside the conviction and sentence awarded to the appellant under section 11 of the said Ordinance and to this extent the appeal is allowed.
19. As regards the sentence under section 10(3) of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, learned counsel for the appellant has prayed for taking a lenient and charitable view on two-fold grounds. First; that the appellant is a previous non-convict and secondly, that he is an old man of about 60 years.
20. Having given our careful consideration to the abovesaid argument agitated by way of mitigating circumstance we have not been able to persuade ourselves to agree with the learned counsel for the accused/ appellant on this point. When a woman/girl is ravished what is inflicted is not merely a physical injury but "the deep sense of some deathless shame". "A rape! a rape! ... Yes you have ravished justice. Forced her to do your pleasure. The accused-appellant on his own showing was 50,years of age at the time when after the conclusion of the trial, his statement was recorded under section 342, Cr.P.C. And how can a grown up person of the age of 50 can take the benefit of old age. There is nothing on the file which may tend to show that he was infirm or impotent to commit sexual intercourse. We, therefore, see no mitigating circumstance in this case justifying for taking a lenient and charitable view. The accused-appellant has ravished a female child of tender age. Learned counsel for the accused-appellant submits that 20 years' R.I. Plus 30 stripes is too severe. We have stated earlier that rape for a woman and particularly for an unmarried girl in our society is a deathless shame and must be dealt with as a grievous crime against the human dignity. No interference on the score of culpability or quantum of punishment is called in the circumstances.