' Appellant namely Imtiaz Hussain son of Mumtaz Hussain was tried by the learned Special Judge Anti-Terrorism Court, Sargodha Division, Sargodha in case bearing F.I.R. No,114 of 2000 dated 14-5- 2000 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII, 1979 registered at Poli'e.Station Sadar District Sargodha, who vide judgment dated 17-11-2000 convicted and sentenced him 'under section 10(3) of the Offence. Of Zina (Enforcement of Hudood) Ordinance No,VII, 1979 to imprisonment for twenty five years' rigorous imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant.
2. Being aggrieved by the conviction and sentence, the appellant filed instant criminal appeal bearing Criminal Appeal No,167-J of 2001 through jail.
3. In nutshell the facts of the prosecution case as narrated in the F.I.R., Exh.P.E, lodged upon the statement of one Muhammad Waris are that on 5-5-2000 at about 7-00 a.m. Daughter of the complainant namely Mst. Anam aged 4/5 years went to ease herself in an unoccupied house of Muhammad Riaz situated opposite to the house of the complainant. After a short while, up or hearing shrieks' of Mst. Anam, complainant along with other witnesses went to the said house saw Imtiaz Hussain (appellant) committing Zina-bil-Jabr with Mst. Anam. Statedly, on seeing the witnesses. Irmiaz Hussain ran away from the spot. The matter was reported to the police on 14-5- 2000 by Muhammad Waris, complainant P.W.8, and on his statement F.I. "Exh.P.E, was recorded by Mukhtar Ahmad, A.S.-I./P.W.10 who after formal investigation submitted challan before the trial Court.
4. During the trial, prosecution produced ten witnesses in, order to prove the charge against the appellant.
' Ghulam Shabbir, F.C/P.W.1, took the 'parcels of this case (case property) to office of the Chemical Examiner and delivered the same intact. Laved Khalid, F.C/P.W.2 kept the parcels (case property of this case) in Malkhana for safe custody and later on deliveted the same to the constables for onward transmission to the relevant ofticers. _Muhammad Ramzan, F.C/P.W.3, took [mtiaz Hussain appellant to the hospital for medical examination.
' Dr. Tasneem Hayat, P.W.4, prepared medico-legal reports (Exh.P.B) of Mst. Anam and observed following 'injuries on her person:-
(i) Second degree perennial tear (involving three layers i,e, vaginal wall, perennial muscles and perennial skin).
(ii) A long tear in the posterior vaginal wall involving whole length of vagina.
' Stately, both these wars were bleeding. Restoration of normal vaginal wall was done by stitching..
Second degree perennial tear was stitched in three layers. The patient. Remained in the ward under treatment for 7 days.
' Muhammad Sarfraz, P.W.5 medically examined Imtiaz Hussain appellant and opined that he was a young healthy man, sex organs were fully developed, cremestric reflux were fully developed on both sides.
' In the opinion c' the doctor, there is nothing to suggest that the appellant was unable to perform sexualact.
' Muhammad Igbal, F.C/P.W.6,_ took the parcels containing semen/swabs of Imtiaz Hussain appellant for onward transmission to the office of chemical Examiner and delivered the same intact.
' Dr. Rizwana Anjum P.W.7, on 16-5-2000 medically examined Mst. Anam aged 4/5 years and observed to following injuries on her person:- " A long tear in the posterior vaginal wall the whole length was involved. Both these tears were bleeding.
' At the time of "examination, hymen was absent, a moderately healed second degree perennial tear and an already stitched long tear in the posterior vaginal wall were present. Three swabs were taken and sent for semen analyses and grouping. In a sealed pack.
' In the opinion of the doctor, Mst. Anam was definitely raped. It is further clarified by the doctor that semen is not expected to be present in the vagina because at the time of repair of tear under anesthesia victim was extensively cleaned with antiseptic solution. Even then these swabs were taken and sent for semen analyses and grouping.
' Muhammad Waris, P. W.8, and Muhammad Sher, P. W .9, ' being eyewitnesses of this case narrated the circumstances under which the appellant was seen by them committing Zina-bil-Jabr with Mst. Anam. Both of them had supported the prosecution case in verbatim. Mukhtar Ahmad, A.S.- I./P.W.10,_ conducted form,a1 investigation of this case and submitted challan before the trial Court.
5 Learned Public Prosecutor tendered in evidence export of Chemical Examiner as Exh.P.1 and closed the case for the prosecun,
6. After recording entire prosecution evidence, learned trial Court -examined appellant under section 342, Cr.P.C. Wherein the appellant while answering to the question " Why this case against you and why P.Ws. Have di._ osed against you " replied as under:- "In, fact, it was a blind occurrence. I was arrested in another case under section 377, P.P.C. And was sent to judicial lock-up. The police instead of tracing real culprit of this case, falsely involved me in this case for which 1 have no concern at all."
' The appellant neither made any statement under section 340 (2), Cr.P.C. Nor produced any evidence in his defence.
7. Learned Trial Court after appropriate appraisal of evidence available on record, vide judgment dated 17-11-2000 convicted and sentenced the appellant as narrated in the earlier part of this judgment.
8. Learned counsel for the appellant submitted that this occurrence was reported to the police after the delay of nine days and this delay in lodging the F.I.R. Itself was sufficient to create doubt about the authenticity of the prosecution case; that it was an unseen occurrence, the presence of both the witnesses at the spot was doubtful, the victim of this case was never examined by the trial Court and in the circumstances conviction and sentence of the appellant was illegal. Conversely, learned State counsel had vehemently opposed the contentions raised by the learned counsel for the appellant.
9. Arguments heard. Record perused.
10. In order to prove the charge against the appellant, prosecution has mainly relied upon the statement of two eye-witnesses namely Muhammad Waris, P.W.8, and Muhammad Sher, P.W.9, and sought corroboration from the medical evidence. This occurrence statedly took place in a vacant house situated opposite to the house of the complainant. Statedly, on the day of occurrence at about 7-00 a.m, Mst. Anam aged 4/5 years (daughter of the complainant) went to the said house to ease- herself when she subjected to Zina-bil-Jabr by the appellant. The father of Mst. Anam namely Muhammad Waris, P.W.8,. Along with Muhammad Sher, P.W.9, and his brother Anwar (given up P.W. ) reached at the spot upon hearing the shrieks of his daughter and witnessed the occurrence. As narrated earlier the house of Muhammad Waris, P.W.8, is just opposite to the place of occurrence. Similarly, Muhammad Sher,_ P.W.9/first cousin of Muhammad Waris complainant, is also resident, of the same locality. Both the witnesses are labourers by profession.
At the time of occurrence, Muhammad Sher, P.W.9, was present in the house of Muhammad Waris, P.W.8, for going to earn their livelihood. The presence of both the eyewitnesses at the spot in the circumstances of this case seems to be natural. Both these witnesses successfully stood the test of cross-examination. There is nothing on record to show that these eye-witnesses had any motive to falsely implicate appellant -in this case. Even in case of single accused substitution by the kith and kin of the victim is a rare phenomenon. The medico-legal reports prepared by Dr. Tasneem Hayat, P.W.4, and Dr. Rizwana Anjum P.W.7, affirm the fact that Mst. Anam aged 4/5/ years was sexu-lly assaulted and corroborate the ocular account. The statements. Of both the eye-witnesses inspire confidence, ring true and the same can be relied upon safely to uphold the conviction and sentence of the appellant.
11. About the delay in lodging the F.I.R. Muhammad Warfs, P.W.8, has explained that the matter was reported to the police after nine days because accused party was trying for a compromise through respectables of the locality but he did not agree to it. Even otherwise, in cases where reputation of a young girl or family is at stake. People are usually reluctant to report the matter with the police and delay in lodging the F.I.R. In such-like cases is immaterial. Similarly under Article 3 of Qanun-e- Shahadat, only those persons are competent to testify to whom Court considers that they% are competent to understand and give rational answers to the questions put to them, but where a person is of tender age or extreme old to understand the proceedings a Court may refuse to call him as witness. In the present case, undoubtedly Mst., Anam (victim) was only 4/5 years of .Age and being a child of tender age Mst. Anam was not a competent witness. The arguments of learned counsel for the appellant that in the absence of statement of Mst. Anam (victim), the case of the prosecution is doubtful, have no force:
12. The upshot of the above discussion is that, the evidence available on record show that the prosecution has proved its case to the hilt and this appeal .Having no force stands dismissed.