' The instant appeal is directed against the judgment, dated 8-7-2000 passed by the learned Judge, Anti-Terrorism Court, Bahawalpur Division, Bahawalpur, whereby, he has convicted the accused/appellant under section 450, P.P.C. And sentenced him to undergo R.I. For ten years with a fine of Rs,20,000 (rupees twenty thousand) and in default thereof to undergo two years' S.I. Further.
The appellant was further convicted under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to 25 years' R.I. With thirty stripes. The appellant was extended the benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts are that on 23-2-2000 Riaz Ahmad complainant lodged F.I.R. Stating therein that on the day of occurrence, he alongwith his wife Mst. Khadija Bibi had gone to see his wheat crop. His daughter Mst. Shaista Riaz aged about 7 years alongwith her two younger sisters was present at his home. When at about 2-00 p.m. He alongwith his wife, Muhammad Din son of Ghulam Muhammad and Abdul Majeed son of Ghaus Bakhsh reached at the door of his house, he heard the cries of his daughter Mst. Shaista. He alongwith the P.Ws. Reached near the door of the room, he saw that Abdul Majeed son of Ghulam Fareed accused was committing Zina-bil-Jabr with his daughter. On seeing them, the accused started running from the place of occurrence. The complainant tried to catch him but he scaled over the western wall of the house. They chased him but the accused succeeded to flee away. He alongwith his wife and P.Ws. Took care of his daughter who was profusely bleeding. After lifting the victim, he went to the police station and requested registration of case against the accused. The matter was investigated by the police and the accused was arrested. After making formalities and investigation, the accused was challaned to face trial.
3. A charge under section 450; P.P.C. And 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 read with sections 6/7 of the Anti-Terrorism Act, 1999 was framed against the accused/appellant to which he pleaded not guilty and claimed trial.
4. To bring home guilt to the accused/appellant, the prosecution examined 10 witnesses.
' P.W.1 Muhammad Kaleem Akhtar, Moharrir stated that on 23-2-2000 Investigating Officer handed over to him a sealed envelope said to contain swabs for keeping it safely in the Malkhana. On 12-3- 2000 he handed over the said parcel to Asghar Ali, Constable for onward submission in the office of Chemical Examiner, Multan.
' P.W.2 Lady Doctor Rizwana Naz Ex-Women, Medical Officer, stated that on 23-2-2000 Mst. Shaista Riaz was medically examined by her. She examined and observed as under:-- "External examination of genitalia ' There was tear in the perineum extending toward anal verge labia majora and minora were swollen and tender Shalwar and Qameez were blood-stained and legs were also blood-stained.
' Internal vaginal examination ' There were tears in the left lateral and right lateral wall of vagina. Whole of the vulva was red and swollen and inflamed. The hymen was ruptured and the edges were freshly inflamed and odematous and blood coming out of vagina. Urethra was also damaged. One external and one internal vaginal swa bs taken, sealed and immediately sent to Chemical Examiner of Punjab, Multan for detection of semen."
' The lady doctor opined that act of rape had been done with the examinee. After seeing the report of Chemical Examiner, she was of the considered view that the examinee was subjected to sexual act. Medico-legal report Exh.P.A. And application for requesting examination of the victim Exh.P.A/1 bore her signatures and seal of her office. Report of Chemical Examiner was Exh.P.B.
' P.W.3 Dr. Muhammad Bashir Chaudhry, Senior Medical Officer, R.H.C., Sehja stated that on 3-3- 2000 he medically examined Abdul Majeed and found him potent. Medico-legal report Exh.P.C. And application prepared by police for examination of Abdul Majeed/ accused Exh.P.C/1 bore his signature and stamp of his office.
' P.W.4 Nawazish Ali Bokhari, S.-T./S.H.O. Deposed that on 23-2-2000 the instant case was registered by Iqbal Ahmad, A.S.-I. After completion of investigation he produced the case file before him. On 4-3-2000 he prepared incomplete and on 1-4-2000 complete challan against the accused and submitted the same before the competent Court of law for trial.
' P.W.5 Riaz Ahmad complainant has stated that about more than four months back, he alongwith his wife Mst. Khadija had gone to see their wheat crop. His daughter Mst. Shaista aged about 7 years and other two her younger sisters remained at home. At about 2-00 p.m. He alongwith his wife, Muhammad Din and Abdul Majeed P.Ws. Came back to his house. When they reached near his house, they heard the shrieks of his daughter Mst. Shaista coming from his house. They attracted and rushed towards the spot. When they entered into the house they saw that Abdul Majeed accused was committing Zina-bilJabr with his daughter Mst. Shaista Riaz. On seeing them, the accused fled away from the scene by scaling over the western wall of his house. He further deposed that they chased to apprehend the accused, but the accused succeeded in fleeing away from the spot. He took care of his daughter who was profusely bleeding. He took his victim daughter to police station and got recorded his statement Exh.P.D. Mst. Shaista was got medically examined through police. One month after the occurrence, he produced a birth certificate of his daughter Mst. Shaista before the police which was taken into possession vide recovery memo.
Exh.P.E.
' Mst. Shaista Riaz victim appeared as P.W.6. Certain questions of preliminary nature were asked from her to check I.Q. Level of the witness but she was unable to answer any of the questions, therefore, she was allowed to go as she was not competent to depose in favour or against the accused.
' P.W.7 Mst. Kandija mother of the victim has also corroborated the statement of P.W.5/Riaz Ahmad.
' P.W.8 Asghar Ali, Constable stated that on 12-3-2000 Muhammad Kaleem Akhtar, Moharrir handed over to him a sealed envelope said to contain swabs for onward submission in the Office of Chemical Examiner, Multan.
' P.W.9 Niaz Ahmad, Secretary, Union Council, Ghena Larr, has deposed that on 22-3-2000 he issued a certified copy of birth entry of Mst. Shaista Riaz Exh.P.F. Which was in his hand and the same bore his signature, according to which date of birth of Mst. Shaista was 23-9-1994.
' P.W.10 Iqbal Ahmad, A.S.-I. Was the Investigating Officer. He has stated that on 23-2-2000, Riaz Ahmad complainant appeared before him at the police station and got recorded his statement Exh.P.D. Thereafter, he prepared the injury statement of Mst. Shaista Rfiaz Exh.P.A/1 and victim was got medically examined by Women Medical Officer, R.H.C., Sehja, who issued medico-legal report Exh.P.A. He further deposed that the W.M.O. Also handed over to him blood-stained clothes of the victim, Shalwar P.1, and Qameez P.2 which were taken into possession vide recovery memo. Exh.P.G.
The W.M.O. Also handed over to him a sealed envelope containing swabs for onward submission in the Office of Chemical Examiner, Multan which he handed over to Moharrir for keeping it safely in the Malkhana. He proceeded to the place of occurrence and after inspecting the spot, he prepared unscaled site plan of place of occurrence Exh.P.H. He also procured the blood-stained earth from the place where victim girl was subjected to sexual act. The same was taken into possession vide recovery memo. Exh.P.J. On 2-3-2000 Abdul Majeed accused was arrested. On 3-3-2000 the accused was got medically examined with regard to his potency. The application requesting therein for medical examination was Exh.P.C/1. On 4-3-2000, S.H.O. Prepared incomplete challan against the accused. On 22-3-2000 he recorded the statements of Kaleem Akhtar and Asghar Ali, Constable and on the same day Riaz Ahmad complainant produced birth certificate of Mst. Shaista Riaz Exh.P.F. Which was taken into possession vide recovery memo. Exh.P.E. He recorded the supplementary statement of the complainant and P.Ws. On 23-3-2000 he recorded the statement of Niaz Ahmad, Secretary, Union Council. He added section 450, P.P.C. Vide Case Diary No,9. On 1-4- 2000 the S.H.O. Prepared complete challan against the accused.
5. After producing 10 P.Ws., the prosecution closed its evidence and gave up Muhammad Din and Abdul Majeed P.Ws. As they were won-over by the accused.
6. When examined under section 342, Cr.P.C. The accused/ appellant denied the prosecution version and stated that he has been implicated in this case falsely. The appellant produced two defence witnesses namely, Munir Ahmad and Abdul Malik as D.W.1 and D.W.2 respectively.
' D.W.1 Munir Ahmad has deposed that he is relative of accused and the complainant. After hearing the alarm when he reached at the place of occurrence, nobody named out Abdul Majeed as an accused. He was also interrogated by the police, when he reached at the spot at about 3-30 p.m.
On the same day at about 9/10 p.m. He came to know that Abdul Majeed had been nominated as accused in this case. He was of the view that Abdul Majeed was innocent but he never appeared before police or in Court to prove his innocence. He further stated that he tried to prove innocence of the accused before the Thanedar when he inspected the place of occurrence.
' D.W.2 Abdul Malik has also stated that when he visited the place of occurrence at that time nobody nominated Abdul Majeed as accused of this case. He also admitted that police reached at the place of occurrence at 3-30 p.m. But on the next morning, he came to know about the registration of case. He is also of the same Bratheri and relative of accused and complainant. He also did not appear before the police to prove the innocence of Abdul Majeed accused.
7. After going through the evidence produced by the prosecution, the trial Court convicted the accused/appellant vide judgment under appeal.
8. The appellant being felt aggrieved of the said judgment has assailed the same through the instant appeal.
9. Learned counsel for the appellant contended that the trial Court has not tested the competency of Mst. Shaista Riaz/P.W.6 and did not record her statement declaring her incompetent to testify; that it was incumbent upon the trial Court to test the intellect of the child witness by putting question to her and these questions itself should have been in writing in shape of question and answer. Learned counsel relied on Umar Jahan v. State 1979 SCM R 186. He further submitted that the sentence of whipping has been abolished and the trial Court has illegally punished the appellant for awarding him 30 stripes; that the conviction to the extent of whipping is contrary to law, hence, not sustainable; that when the child witness has narrated the story of the occurrence to her father as well as Investigating Officer she was competent to testify in the Court, therefore, the trial Judge has erred in law by not recording the evidence of P.W.6 and thus, has prejudiced the case of the appellant; that from the medical examination- of the victim it was not established that forcible intercourse has been committed by the appellant with the victim/P.W.6, that no independent witness has been produced to substantiate the prosecution story and the conviction has been based only on the statements of mother and father of the victim who are interested witnesses and no conviction can be based on the testimony of such interested witnesses; that the independent witnesses Abdul Majeed and Muhammad Din who have been won over, were not produced by the prosecution and non-production of these witnesses would create doubts in the prosecution story; that no mark of violence had been detected by the Lady Doctor while medically examining the victim; furthermore that the prosecution story is not believable as according to P.W.5, the outer door of the room was opened. Learned counsel stressed that there are material discrepancies and contradictions in the statements of prosecution witnesses; that four persons were shown to have been witnessed and in their presence the appellant has left the place of occurrence by scaling over the wall. The prosecution story is not plausible.
10. Conversely, learned State Counsel has vehemently opposed the arguments of the learned counsel for the appellant and supported the judgment of the trial Court. He contended that no person of this society can ruin or put at stake the honour of his minor daughter without any reason; that minor discrepancies in the statements of P.Ws. Are natural which are not beneficial in any manner to the appellant; that the prosecution has proved its case beyond any shadow of doubt by producing ocular as well as medical evidence; that no enmity has been established by the defence against the complainant or mala fide against the police; that defence witnesses have not joined the investigation nor any of them has approached the higher Police Officer for exoneration of the appellant from the charge; that to testify the competency of a witness is the discretion of the Court and writing of question and answer is not essential nor it is a legal requirement.
11. I have heard the learned counsel for the parties and perused the record. First objection of learned counsel for the appellant is that the trial Court while observing intellect of the appellant has not taken into writing the question put to the witness.
12. Article 3 of the Qanun-e-Shahadat Order enacts that "all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those question, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind".
' Although Article 3 of the Order has contemplated that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years. If the Court considers that a particular witness does not understand the question put to him and that witness fails to give rational answers to questions put to him, it must not proceed to record the evidence of that witness. The law does not provide that Court must ask preliminary questions to test the capacity of a witness to testify, though it is a wholesome course to be adopted. The object of preliminary questioning is not legalise the evidence but only to save time of the Court, and not to further proceed with the examination of such witness, if it is satisfied that he is not a competent witness.
13. In case of Karu Singh and others v. Emperor AIR 1942 Pat. 159 it has been observed by a Division Bench of Patna High Court that the object of putting questions to a child witness is that the time of the Court may not be wasted if it is found, as the result of a preliminary enquiry, that the child is neither intelligent nor can he give evidence which may be acceptable. The holding of a preliminary enquiry is merely a rule of prudence and is not a legal obligation upon the Judge. The absence of a preliminary inquiry is a mere irregularity.
' The same view has been followed by the said Court in case of Lakhan Singh v. Emperor AIR 1942 Pat.
183.
14. In another case of Orissa High Court reported as State of Orissa v. Machindra Majhi and another AIR 1964 Orissa 100 the Honourable Division Bench has held that if the Court would consider that a particular witness does not understand the question put to him and fails to give rational answers to those questions, the Court would not proceed to take the evidence of that witness. There is no provision in law to ask preliminary questions to test the capacity of a child witness to testify. The only object of such preliminary questioning is not to legalise the evidence but only to save time of the Court not to further progress in the examination of such witness if it is satisfied that the child is not competent witness.
15. The Honourable Judges of Azad Jammu and Kashmir High Court in Qadeer Hussain v. The State 1994 PCr.LJ 788 have also followed the same view that the holding of preliminary inquiry by the trial Court is a rule of prudence and not a legal obligation upon the Court and omission to hold preliminary inquiry does not render the evidence of minor inadmissible.
16. The Honourable Judges of Azad Jammu and Kashmir Supreme Court in Qadeer Hussain v. State 1995 PCr.LJ 803 have observed that Rule enunciated in Article 3 of Qanun-e-Shahadat, 1984 is not an absolute or inflexible rule. It means that the observing intellect of a child in the shape of writing question and answer is not the requirement of law. The Court was quite competent to give its observation with regard to the intellect of the witness. It would mean that only requirement is the satisfaction of the Court.
17. Thus, the contention of the learned counsel for the appellant that the trial Court has erred in law by not taking into writing the questions put to the witness, having no force is repelled.
18. The Lady Doctor Rizwana Naz/P.W.2 has opined that she had medically examined the victim/Mst.
Shaista Riaz on the external examination. She found tear in the perineum extending toward anal verge labia majora and minora were swollen and tender Shalwar and Qameez were blood-stained and legs were also blood-stained. On internal vaginal examination the lady doctor had found tear in the left lateral and right lateral wall of vagina. Whole of the vulva was red and swollen and inflamed. The hymen was ruptured and the edges were freshly inflamed and odematous and blood coming out of vagina. Urethra was also damaged. The swabs taken from internal and external were sent to the Chemical Examiner and according to his report, the same were found stained with semen and blood.
' The lady doctor in her medico-legal report clearly stated that the rape has been committed with the victim. The opinion of lady doctor had further been corroborated by the report of Chemical Examiner.
19. The occurrence was witnessed by the natural witnesses/the inmates of the house, P.Ws.5 and 7, the father and mother of pitiable girl. Both the witnesses have deposed in line with the story of the F.I.R. Bashir Ahmad Chaudhry, Doctor/P.W.3 examined the appellant and found him potent, fit to perform the sexual intercourse. The medical evidence supported by the ocular testimony and circumstantial evidence, recovery of blood-stained clothes of the victim is sufficient proof to establish that a heinous offence has been committed with the victim (poor tender age girl) by the appellant.
20. Learned counsel for the appellant has- not been able to point out any material discrepancies and contradictions in the statements of the P.Ws. Which could shatter the prosecution story. The statements of D.Ws. Also did not support the appellant. D.W.1 Munir Ahmad has admitted that he did not go to police station in support of the accused to prove his innocence. He also did not appear at the police station. The other D.W. Abdul Malik has also deposed that at the time of visit of place of occurrence he was present there and the Investigating Officer had not enquired from him about the incident and he himself did not state anything to the Investigating Officer about the occurrence. He did not appear before any Senior Police Officer to prove the innocence of the appellant. Both the D.Ws. Did not join the investigation of the case. They were neither associated by the police nor they themselves asked the police to join them in the investigation. Both have stated that at the time of occurrence at about 3-30 p.m. They were present and at that time the police reached at the spot but nobody has nominated Abdul Majeed/appellant as accused of this case.
21. The most significant feature of the case is that the occurrence has taken place at 2-00 p.m.
While the F.I.R. Has been registered at 3 p.m. After one hour of the occurrence and in the F.I.R. The complainant has nominated the accused-appellant, thus, the statement of the D.Ws. That at the time of occurrence or at the time of inspection of the site by the police, the name of the accused was not heard, is belied from the record. The deposition of the D.Ws. Is of no use and not helpful to the appellant.
22. As to the argument of the learned counsel for the appellant that eye-witnesses of the occurrence are interested witnesses and their testimonies cannot be relied upon, it is sufficient to say that mere relationship of the witnesses is no ground for discarding the evidence of the witnesses unless it is coupled with the enmity of the witness with the accused, as observed in Qadeer Hussain's case (supra). There is no such evidence on the record from the defence side that there was any enmity of the accused-appellant with the prosecution witnesses.
23. So far as the stand taken by the appellant in his statement under section 342, Cr.P.C. That the complainant had demanded the hand of his sister Mst. Shahnaz for his relative one Abid son of Khadim Hussain in marriage and on his refusal, the complainant had involved him in the instant case, it is suffice to observe that Khadim Hussain is only relative of the complainant party and this defence plea is not plausible to believe that only for this simple reason one can put at stake the honour and reputation of his minor daughter. The evidence of D. Ws. Is not trustworthy and cannot be relied upon.
24. In view of the above discussion, the arguments of the learned counsel for the appellant being artificial and imaginary are devoid of any force.
25. For what has been stated above, I am of the considered view that the prosecution has proved the guilt of the accused-appellant to the hilt by producing a weighty evidence, therefore, learned counsel for the appellant has not been able to persuade me to interfere with the judgment passed by the learned Judge, Anti-Terrorism Court, Bahawalpur.
26. The sentence of punishment of whipping has been abolished by Abolition of Punishment of Whipping Act, 1996. The relevant section of the Act is reproduced as under:-- "Abolition of punishment of whipping.--- Except in cases where the punishment of whipping is provided for as Hadd, the sentence of whipping provided under any law, rule or regulation for the time being in force shall stand abolished."
27. Resultantly, the sentence awarded to the appellant for thirty stripes is set aside whereas the conviction and sentence of appellant under section 450, P.P.C. For 10 years' R.I. With a fine of Rs,20,000 as well as under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for twenty-five years shall be maintained.
28. As a sequence thereto, the appeal to the extent of punishment of stripes is accepted and to the extent of remaining sentences the same is dismissed.