' Appellant Aijaz Memon was charged by the Additional Sessions Judge, Mehar (District Dadu, Sindh) that on 8-1-1998 at about 5-30 p.m. On the heap of paddy husk, known locally as "Palal" near the house of Sikander Memon in village Umedero (Taluqa Mehar) had committed Zina-bil- Jabr with Shazia daughter of Sikander Memon (aged 7/8 years) but Aijaz Memon pleaded not guilty to the charge. The trial took place, and the learned Additional Sessions Judge, Mehar finding the appellant guilty of the offence under section 10(3) (wrongly mentioned as section 10(2) in the judgment) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 convicted and sentenced him to undergo R.I. For seven years in addition to payment of fine of Rs,25,000, in default of which he had to undergo further R.I. For two years. The above judgment is challenged by this appeal.
2. The facts of the case in short are to the effect that baby Shazia daughter of Sikander Ali Memon aged 7/8 years on 8-1-1998 at about 6-00 p.m. Came weeping to the house of her father Sikander Ali, where her uncle Ali Muhammad was also sitting alongwith other family members. She was crying and in that condition she informed her father that she was standing outside the house near the heap of the paddy husk (Palal) when appellant/accused Aijaz, already known to the family, removed her Shalwar and committed Zina-bil-Jabr with her. The girl cried but accused put his hand on her mouth, to stop the voice from attracting other persons. When the accused left the girl and went away, she came to the house and narrated the above story to her father. Sikander Ali went to his cousin P.W. Arbab Ali who came with him to the house and enquired the story from Shazia. Shazia narrated the above facts to him also. Sikander Ali and Arbab Ali then approached Mahmood, father of accused Aijaz who at first, in order to pacify Sikander Ali, promised to get the matter decided by a Faisla but he had kept Sikander on false hopes, and ultimately issued threats of dire consequences to Sikander Ali, and refused to get any decision by a Faisla.
3. The alleged incident had taken place on 8-1-1998 and Sikander Ali reported the matter to the police on 11-1-1998 when father of accused had finally refused and threatened him of dire consequences. The police started the investigation, and produced Shazia before a Medical Officer P.W. Dr. Niaz Ali on 12-1-1998 at about 11-00 a.m. Dr. Niaz Ali did not conduct the detailed examination of the girl and referred her to a Gynaecologist at Chandka Medical College, Larkana, on the same day. The girl Shazia reached Chandka Medical College, Larkana on the same day when Dr. Safia, Registrar of Shaikh Zaid Hospital for Women at Larkana examined her at 5-30 p.m.
The opinion of Dr. Safia was that the girl had been subjected to rape. The police after completing the investigation challaned the accused who had already obtained bail before arrest from the Court of Sessions Judge.
4. During the trial the prosecution examined Sikander Ali, the father of the victim (P.W.1 Exh.4) who related the story as given to her by the victim Shazia. He stated further that on her such story he contacted his cousin Arbab Ali who came to his house. Arbab Ali inquired the facts from Shazia. He was given the same facts by victim Shazia. Thereafter, Sikander Ali and Arbab Ali went to Mahmood, the father of the accused/appellant and informed him of the incident. Sikander Ali also stated that Mahmood had first promised that he will get the matter decided by private negotiations (Faisla) but ultimately he refused to go for a Faisla and instead, issued threats of dire consequences to Sikander Ali which forced Sikander Ali to approach the police. Sikander Ali then went to Police Station Mehar, on 11-1-1998 where his F.I.R. Was recorded as Crime No,4 of 1998 for the offences under sections 7, 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The F.I.R. Was produced by Sikander Ali as Exh.4/A in the trial Court.
5. The prosecution also examined victim girl Shazia aged about 8 years after the Court had satisfied itself that Shazia was intelligent enough to be examined as a witness. Her deposition was recorded as Exh.5, P.W.2. She narrated the facts of the incident and implicated accused/appellant Aijaz to be a person residing near their house and that he had taken her forcibly to the heap of paddy husk. She was laid down forcibly and when she tried to raise alarm, accused Aijaz put his hand on her mouth and after removing her Shalwar committed rape with her.
6. P.W.3 (Exh.6) examined by the prosecution was Arbab Ali, the cousin of victim's father Sikander Ali. He corroborated the story given by Shazia and Sikander Ali to the trial Court. He also supported the contentions of Sikander Ali that he had accompanied Sikander Ali to the father of accused by name Mahmood and narrated the facts of the incident to him. Mahmood in the beginning promised to get a Faisla effected within 2/3 days but after 2/3 days he refused to get the matter settled by a Faisla and instead issued threats of dire consequences to Sikander Ali. Thereafter, the F.I.R. Was recorded by the police.
7. The other P.W. Produced in the trial Court was Shahan, a marginal witness in whose presence the police had visited the place of incident and prepared the Mashirnama which was signed by P.W.
Shahan and produced as Exh.7/A. P.W. Shahan had observed that heap of paddy husk was lying in the plot of land belonging to accused Aijaz and his father and baby Shazia had shown the place of incident to be that heap of the paddy husk where she was subjected to Zina-bil-Jabr.
8. Dr. Niaz Ali was P.W.5 (Exh.8) before whom Shazia was produced by police for her medical examination. The letter written to the doctor for medical examination was dated 11-1-1998 but it was received by Dr. Niaz Ali on 12-1-1998 at 11-00 a.m. He had examined Shazia. He had not seen any blood or semen on the clothes or any injury or mark of violence on the person of Shazia but before giving any final opinion he referred the case to a Gynaecologist of Chandka Medical College, Larkana. He received the report from Dr. Safia Abbasi, Registrar, Shaikh Zaid Hospital for Women, Larkana on 20-1-1998 in which lady Dr. Safia had opined that Shazia was subjected to rape. Dr. Niaz Ali in his cross-examination explained that on 12-1-1998 when the victim girl was produced before him he had got the consent statement from father of the victim for examination of the baby girl, as on that day the Women Medical Officer was on leave. But the fact is that he had not examined the girl as regards her private parts and, therefore, had rightly referred the victim to a Gynaecologist at Larkana. He had informed the police by letter, dated 13-1-1998 of such position and had produced such letter (Exh.8/A) before the trial Court. Subsequently, he had also produced the opinion of the Gynaecologist before the trial Court as Exh.8/B.
9. The trial Court had also examined Dr. Safia, the Registrar of Shaikh Zaid Hospital for Women, Larkana as P.W.6 (Exh.10). Dr. Safia Abbasi in her deposition before the trial Court had stated that she had examined baby Shazia at about 5-30 p.m. On 12-1-1998 when she was sent to her through Medical Officer. She found her age about 7/8 years. On her examination- she found her vulva and vagina congested, hymen torn. It admitted index finger and in her opinion she was subjected to rape. In cross-examination by the counsel for the accused, in reply to the suggestion whether such injury as seen by her on the person of minor baby could be caused by only an adult male, she stated that such injury could be caused by even a boy who had not yet attained puberty. She also in cross-examination certified that the injury on person of Shazia was not fresh and that her opinion that the girl was subjected to rape was correct. The minute study of the case file further shows that the accused not being satisfied with the medical reports in respect of the victim given by the two Medical Officers had requested for formation of Medical Board and on his request the Medical Superintendent, Service Hospital, Hyderabad, had constituted a Special Medical Board comprising of Prof. Dr. Ghufrana Memon, Gynaecologist (as member), Dr. Sajida Muneer Kazi, Senior Gynaecologist (as member) and Dr. Ashfaq Ahmad Qureshi, Additional Civil Surgeon of Services Hospital, Hyderabad (as convenor).
10. The Board Called the victim at Hyderabad and examined her and the certificate signed by members of the Special Medical Board was also exhibited in evidence as Exh.10/A. It shows that the Board on physical examination of the victim found that her hymen was not torn, and had introduced a tip of the finger with feeling of resistence causing pain. As a conclusion the Board was of the view that it had conducted the examination of the victim after 60 days of the alleged incident and that the Board had found a contradictory finding inasmuch as according to certificate issued by P.W.6 Dr. Safia she had found "hymen torn" while the Board had found that the hymen was in tact. But at the same time in the conclusion of the Board it was observed:--
(i) At this belated stage of examination (about 60 days of alleged incident), there is no fresh finding suggestive of sexual violence observed.
(ii) Hymen is in tact. This finding is contradictory to the examination conducted by Dr. Safia Abbasi.
It is to be noted that hymen is anatomically deep seated in the girls before puberty which usually spare injury.
(iii) According to present law of land, vulva penetration is sufficient to constitute the crime of rape (Zina-bil-Jabr). Injuries to vulva can be verified if fresh.
' Opinion The healed torn fourchete is suggestive of previous application of violence at vulva; so possibility of sexual violence cannot be ruled out."
11. The evidence of other witnesses examined by the prosecution before the trial Court is formal and immaterial as far as the decision of this appeal is concerned.
12. In his statement under section 342, Cr.P.C. Appellant Aijaz denied having committed Zina-bil- Jabr with baby Shazia but in respect of the question as to why the P.Ws. Had deposed against him he simply stated that they were interested and related. He further stated in his statement that he was innocent, falsely implicated. He did not want to examine himself under section 340(2), Cr.P.C.
And he did not offer any evidence in defence.
13. Learned counsel appearing for the appellant vehemently attacked the judgment of the trial Court and argued before the Court with force that the appellant was an innocent person and that he was falsely implicated. The learned counsel pleaded forcefully that the medical evidence produced by the prosecution did not prove that baby Shazia was subjected to rape and that evidence of P.W.6 Dr. Safia Abbasi should not be relied upon.
14. As regards the contention of the learned counsel that P.Ws. Sikander Ali Memon and Arbab Ali Memon being near relatives of baby Shazia should be relied, the learned counsel could not, however, reply that as to who should be an uninterested witness in case of female child of 7/8 years if molested? The very fact that Shazia implicated appellant Aijaz before her father Sikander Ali, repeated the allegations before her uncle P.W. Arbab Ali and she herself deposed in the Court and identified the accused, is confidence-inspiring and looks natural. Besides, it is unbelievable that for false implication of accused, the P.Ws. Incurred permanent stigma on the family, specially on the 7/8 years old girl. Therefore, the Courts are inclined to believe the statements of victim in Zina cases.
15. The main thrust of the challenge of the learned counsel to the medical evidence is to the effect that the members of the Special Medical Board had supported the version of the defence and not the prosecution. But it is also not correct. Here it is necessary to refer to the document Exh.10/A the certificate of the Special Medical Board on which the learned counsel forcefully relied. Close scrutiny of this document and the portion titled as "conclusion" which has already been reproduced in the above paragraph, lends support to the prosecution story rather than the defence. The fact is that hymen is anatomically deep seated in the girls, before puberty, and usually spared injury. This observation in the conclusion of the Medical Board is of no small significance. On the top of it, in the final opinion of the Special Medical Board reproduced above it is clearly stated that the healed torn fourchette is suggestive of previous application of violence at vulva so possibility of sexual violence cannot be ruled out. Thus, in the opinion of Special Medical Board it cannot be said that they had set aside or done away with the finding of Dr. Safia Abbasi, Gynaecologist. Thus, I find no force in the argument of the I B learned counsel as regards the medical evidence.
16. The learned counsel also argued that in the statement under section 342, Cr.P.C. No question was put to the accused with regard to the deposition of P.W. Dr. Safia Abbasi (Exh.10) and production of the certificate of the Special Medical Board (Exh.10/A). The contention of the learned counsel was that on account of non-subjecting the accused to such a question in his statement under section 342, Cr.P.C. His interests have been prejudiced. The learned counsel, therefore, relied on the case of Muhammad Afzal v. The State reported in 2001 PCr.LJ 72 (FSC). I have considered the above argument and have also gone through the judgment in the case Muhammad Afzal cited above. There is no cavil with the principle laid down by the Full Bench of this Court. In the reported case recovery of the pistol which was an incriminating piece of evidence said to have been recovered from the accused was not put in the statement under section 342, Cr.P.C. To the accused, to seek explanation from the accused. Thus, the Court came to the conclusion that the trial Court had not adopted the mandatory procedure in the conduct of the trial of the accused and had passed its judgment on considerations not borne on record. However, in that case the Court had held that the crime weapon neither produced at the trial nor recovery thereof alongwith magazines from the possession of the appellant was proved in accordance with law, therefore, the trial Court should have taken and considered the recovery against the appellant. It was also further held in the said case that the Court should. Have directed the prosecution to produce and prove the said recovery in accordance with law by either recalling P.W.3 if it appeared to the Court that it was essential for just decision of the case. For that purpose reference was made to the contents of section 540, Cr.P.C.
17. Needless to point out further that in paragraph No,13 of the above reported judgment it was held that the impugned judgment was found unsustainable as it had materially prejudiced the appellant.
18. Therefore, it is to be seen, whether in the present case, the accused was prejudiced in his case when he was not asked to explain that medical evidence was against him. In my view the interests of the appellant do not appear to be prejudiced because it could be explained by arguments by the counsel as to why disbelieve the evidence of Dr. Safia and the certificate of the Medical Board.
While arguing the case before me the learned counsel could not convince me to disbelieve the medical evidence. Not only this, but the oral evidence can also not be discarded. Besides, the judgment of trial Court in the reported case was set aside and the case was remanded to the trial Court with the consent of the parties, which is not the case here.
19. The report of the Special Medical Board bearing Exh.10/A shows that its copy was dispatched to Mr. Mahmood Memon, resident of Ummedero who was the father of the appellant, suggesting clearly that the Special Medical Board was constituted on the complaint of the father of the appellant. It was already in the knowledge of the appellant what was stated in the report of the Medical Board. There appears to be an attempt to suppress the report of Medical Board from trial Court. The record also shows that Lady Dr. Safia Abbasi in her evidence had denied the knowledge of the fact that the certificate issued by her was challenged before the Medical Board. For the first time during her examination, a photostat copy of the report of the Medical Board was shown to her, during cross-examination when she stated that she had not received such report of the Medical Board. It was accepted in evidence by the trial Court and apparently the prosecutor was also not in knowledge thereof. Possibility could not be ruled out that presence of such certificate of the D Medical Board was only in knowledge of the accused which he wanted to suppress but somehow the same came to light in cross-examination of Lady Dr. Safia by M.S. Kazi, Advocate for the accused. In my humble view the report of the Medical Board helped in doing justice in the case and doing justice could not be said to cause prejudice to any party.
20. Under the circumstances, I find no reason to disagree with the findilig of the trial Court. I, therefore, find no force in the appeal. The appeal is, therefore, dismissed.