' This judgment will dispose of Criminal Appeal No,130 of 1999 filed by Shahid Ahmad appellant who was convicted and sentenced by learned Special Judge, Anti-Terrorism, Faisalabad, vide his judgment, dated 8-3-1999, to undergo imprisonment of 25 years under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was further awarded 30 stripes. He was also convicted under section 7 of Anti-Terrorism Act, 1997 to undergo life imprisonment with a fine of Rs,1,00,000 (one lac). In default of payment of fine R.I. For 7 years. Benefit of section 382-B, Cr.P.C.
Was also granted.
2. In the instant case the allegations against the present appellant were that on 10-2-1999 he was apprehended at the spot when the complainant alongwith other P.Ws. After hearing the shriek of Mst. Amna Bibi daughter of Ghulam Shabbir, aged about 4/5 years, went into the house of Sh: Kamal Ahmad and saw ,the appellant committing Zina-bil-Jabr with Mst. Amna Bibi. The matter was reported to the police on the same day through Exh.P.D. At 3-30 p.m. By Ghulam Shabbir complainant. Formal F.I.R. Was recorded in the Police Station City Chiniot on the same day at 4-00 p.m. The appellant was arrested by the police on the same day as he was handed over to Javaid Iqbal, S.-I. By the complainant, who also sent the victim Mst. Amna Bibi, who was profusely bleeding, for medical examination. The police also took into possession pillow cover, P.1, bed sheet, P.2, Gadda P.3 as well as blood-stained clothes of the victim, shirt P.4, Vest P.5 and Shalwar P.6, all smeared with blood. Vide memo. Exh.P.E. Rough site plan Exh. P.G. Was also prepared by the Investigating Officer. Accused/appellant was also sent for medical examination. After the medical examination of Mst. Amna Bibi, victim, the lady doctor handed over an envelope, phial and a parcel which were sealed and were taken into possession vide memo. Exh.P.F. The Investigating Officer also recorded the statements of the P.Ws. After completing the investigation he submitted the challan in the Court. The appellant was charged under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 6 of Anti-Terrorism Act, 1997. Charge under section 365, P.P.C.
Against the appellant was dropped and he was convicted as mentioned above.
3. The prosecution in order to prove its case produced 9 witnesses in all. Thereafter, the statement of the appellant under section 342, Cr.P.C. Was recorded who claimed innocence but he did not produce nay defence evidence nor he himself appeared in his own defence. Mst. Amna Bibi was also summoned in the Court, some questions were put on her by the learned trial Court but she could not reply properly and started weeping, so she wag. Not examined being of very tender age as she was not in a position to depose in Court. There are two eye-witnesses of the occurrence i.e, Ghulam Shabbir, P.W.4 and Ijaz Ahmad P.W.5. Then there is statement of Lady Doctor Shazia, P.W.1 who had examined Mst. Amna Bibi, Lady Doctor. Robina of Allied Hospital, Faisalabad, where Mst.
Amna Bibi was treated for 10 days, was also examined as P.W.9. Then there is statement of Doctor A.R. Tahir who had examined Shahid Ahmad appellant about the potency to perform the sexual act.
4. Learned counsel for the appellant has read before me the F.I.R, evidence of the prosecution witnesses and the statement of the appellant. After doing this exercise he submits that appellant is innocent in this case. He has been falsely implicated in this case, that it is a case of substitution, that there were no marks of abrasions found on the body of the victim at the time of medical examination. He further submits that case of the appellant does not fall within the definition of section 6 which deals with Terrorist Act. He submits that no sentence under section 7 could have been awarded by the learned trial Court.
5. Learned A.A.-G. On the other hand very candidly concedes the submissions as regards to section 6 of Anti-Terrorism Act, 1997. As far as conviction under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is concerned, learned A.A.-G. Submits that there is sufficient evidence on the record which connects the appellant with the present occurrence and he supports the judgment of the learned trial Court.
6. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case the appellant while finding Mst. Amna Bibi a minor aged about 4/5 years in the house of Sh. Kamal Ahmad, where she was playing, committed rape upon her. On her hue and cry Ghulam Shabbir, father of Mst. Amna Bibi and other P. Ws. Went into the house of Sh. Kamal Ahmad and apprehended the appellant at the spot, gave him slaps and thereafter handed over him to the police. The Investigating Officer took Gadda, Shalwar, shirt and other clothes smeared with blood from the spot. According to the report of the Chemical Examiner the swa bs taken from the vagina of Mst. Amna Bibi and the Shalwar of Mst. Amna Bibi, both were stained with semen. There was no previous background of enmity between the parties. It was broad daylight occurrence. There was no question of substitution as the appellant was the only accused in this case and he was apprehended at the spot. Ocular account furnished by Ghulam Shabbir and Muhammad Ijaz has come from an unimpeachable source and the same is corroborated by medical evidence produced by Lady Doctor Mst. Shazia P.W.1 and Lady Doctor Mst.
Robina P.W.9, whose statements are also given below respectively:-- ' On 10-2-1999, Lady Doctor Shazia, W.M.O., T.H.Q. Chiniot, medically examined Mst. Amna and made following observations:- External examination ' On external examination following injuries were found:--
(1) Multiple abrasions .5 c.m. x 1.00 c.m. On both upper and lower lips.
(2) An abrasion about .5 c.m. On left cheek.
' On per vaginal examination hymen was ruptured and following injuries were at the level of intriotus.
(3) A lacerated wound 5 c.m. x 2 c.m. x muscle deep on left side of intriotus involving anal sphincter, muscle and muscosa.
(4) A lacerated wound 4 c.m. x 2 x muscle deep on right side of intriotus.
(5) A tear 4 c.m. x 1 c.m. x muscle deep on right lateral urrthro vaginal wall.
' Three vaginal swa bs were taken and sent to the Chemical Examiner.
Opinion In her opinion the act of rape has been done. Injuries Nos.1 and 2 Shujah-e-Khafifah under section 337-A(1), injuries Nos.3, 4 and 5 were kept under observation. Probable duration of injuries was 3 to 4 hours.
7. On 11-2-1999 the victim Mst. Amna was medically examined by Lady Doctor Robina, Registrar Gynae Department, Allied Hospital, Faisalabad and she found following injuries:--
(1) There was 3 degree parinial tear.
(2) A tear in the lateral posterior vaginal walls about 3 c.m. x 4 c.m. Which were not bleeding.
The wounds were duly stitched and the patient was remained in the hospital for about 10 days.
Statement of both the lady doctors corroborate the prosecution version. Then there is statement of Doctor A.R. Tahir who had examined the accused and found him potent. The act of the appellant was of a daredevil one. He does not deserve any leniency from this Court. Considering all aspects of the case, conviction and sentence awarded to the appellant by the learned trial Court under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is maintained. As far as conviction under section 7 is concerned, no case under section 6 of the Anti-Terrorism Act, 1997 is made out, so his conviction under section 7 of the said Act is set aside and even the learned A.A.-G.
Has conceded the submissions made by the learned counsel for the appellant in this regard.
8. The upshot of the above discussion is that conviction under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 awarded to the appellant is maintained and the appeal is dismissed.