' Briefly stated the facts of the case are that on 7-3-2000 Mst. Surraya Bibi complainant lodged an F.I.R. No, 73 of 2000 under section 377, P.P.C. At Police Station Kot Samaba, District Rahimyar Khan, alleging therein that her daughter Mst. Sana Sattar aged about six years used to go to recite Holy Qur'an in the house of Mst. Bashiran Bibi widow of Faqir Muhammad. There are two portions of the house of Mst. Bashiran Bibi, in one portion Shabbir Ahmad son of Dakhal resided. On the same day at about 5-00 p.m. Her daughter went to recite Holy Qur'an in the house of Mst. Bashiran as usual.
After some time she went to see her daughter in that house but Mst. Bashiran was not available in her house. At the same time, she heard the cries of her daughter and attracted to the place of occurrence where she saw that Shabbir was committing sodomy with her daughter. On seeing this, she raised alarm which attracted Muhammad Azhar and Irfan P.Ws. Who also saw the occurrence.
They tried to apprehend Shabbir accused but he fled away. After registration of case, the matter was investigated by the police and police arrested Shabbir Ahmad and got medically examined victim and accused.. After completion of investigation, the case was ,submitted in the Court for trial.
2. On 8-7-2000 the accused was charge-sheeted under section 377, P.P.C. In which, he pleaded not guilty and claimed for trial.
'3. To bring home the guilt of the accused-appellant, the prosecution had produced as many as ten witnesses. Mst. Surraya Bibi P.W.1, Mst. Sana Sattar P.W.2, Irian Ahmad P.W.3, Bashir Ahmad Constable P.W.4, Bashir Ahmad, A.S.I. P.W.5, Hamid Mukhtar, Inspector./S.H.O., P.W.6, Dr. Muhammad Azhar lqbal P.W.7, Riaz Azeem Shahid P.W.8, Bashir Ahmad, S.I. P.W.9 and Dr. Andleb Ghani P.W.10.
4. Mst. Sana Sattar P.W.2 had deposed in her statement that she used to go to recite Sipara at the house of Mst. Bashiran. On the day of occurrence when she went to recite Qur'an, Mst. Bashiran was not present at her house. Shabbir Ahmad accused was present at the house. He removed her Shalwar as well as his own and subjected her to unnatural offence: She started weeping and crying which attracted her mother, her uncle Irfan and another person. She was also medically examined.
5. Dr. Andleb Ghani, Women Medical Officer had stated that on 7-3-200 she examined Mst. Sana Sattar medically and observed as under:-- Physical examination: Genital Signs ' Anal Orifice was dilated, tender to touch and blood and faecal stained. A triangular tear on the posterior part of anus with fresh raw margins. It bleeds on touch. A tag, of mucus meberane also protruding out. Examination was very painful to the victim. Tear was at 6 O'Clock position.
Proctoscopic Examination ' Red, bruised, oedematous anal canal. Two swabs i,e, one perineal and the other anal taken and sent to. Chemical Examiner for detection of semen plus lubricant. The clothing of victim sent to Chemical Examiner for presence of stains either seminal faecal or blood.
' The Lady doctor had opined that the act of sodomy was committed with the examinee Mst. Sana Sattar. She also tendered in evidence the medico-legal report Exh. P.H.
6. Dr. Muhammad Azhar Iqbal, P.W.7, had stated that on 9-3-2000 he examined medically Shabbir Ahmad with regard to his potency and found him quite able to conduct sexual act. He also tendered in evidence the medico-legal report Exh.P.D.
7. Mst. Surraya Bibi P.W.1, the complainant of the case had reiterated the narration as contained in the F.I.R.
8. The complainant was also supported by Irfan Ahmad P.W.3, who is eye-witness of the occurrence.
9. P.W.6 Hamid Mukhtar, Inspector/ S.H.O. Had stated that on 12-3-2000 he prepared incomplete challan under section 173, Cr.P.C. And on 31-3-2000, after receiving the report of Chemical Examiner he prepared complete challan against the accused.
10. P.W.9 Bashir Ahmad, S.I. Had stated in his statement that on 7-3-2000 Mst. Surraya Bibi alongwith her, husband and her daughter Mst. Sana Sattar appeared before him and got recorded her statement Exh.PA. He prepared injury statement Exh.PE and sent to victim girl to R.H.C. Kot Samaba for her medical examination through Munawwar Masih; Constable. On 8-3-2000 he inspected the spot and prepared unsealed site plan of place of occurrence Exh. P.F. He recorded the statements of. P.Ws. Under section 161, Cr. P.C. On 9-3-2000 he arrested Shabbir Ahmad accused and got him medically examined . With regard to his potency. On 10-3-2000 he got his judicial remand and sent him to judicial lock-up. All other witnesses are of formal nature.
11. When examined under section 342, Cr.P.C., the accused-appellant had denied all the prosecution evidence. Neither he wished to produce any defence evidence nor to appear himself in his defence as D.W. As envisaged in section 340(2), Cr.P.C.
12. After going through the evidence of the parties, the, trial Court convicted the appellant under section 377, P.P.C. And sentenced him to life imprisonment with a fine of Rs,25,000 or in default thereof to undergo further six months' S.I. The appellant was also extended the benefit of section 382B, Cr.P.C., vide judgment dated 14-7-2000.
13. Aggrieved by this judgment, the appellant had filed the instant appeal.
14. Learned counsel for the appellant argued that all the P.Ws. Are interested witnesses and no independent witness has been produced to support the prosecution evidence, so, the conviction cannot be maintained on the testimony of interested/related witnesses; that there are material discrepancies and 'contradictions in the statements of the P.Ws. That no person from the locality has been produced in' support of the prosecution story which is sufficient to create doubt in the prosecution version and that the prosecution story is not confidence-inspiring; that nobody had seen the commission of s'odomy and the prosecution has failed, to connect the appellant with the Commission of the offence. Further submitted the DNA test has not been obtained to connect the semen with the accused and the report of. Chemical Examiner is not believable.
15. On the other hand, learned Law Officer has vehemently opposed the arguments of the learned counsel for the appellant and contended that the victim had deposed very confidently against the appellant. The eye-witnesses Mst. Surraya Bibi, mother of the victim'. And Irfan Ahmad P.W. Have supported the prosecution story.' The report of Chemical Examiner is in positive. The prosecution has established case by producing ocular, and medical evidence which is sufficient to connect the accused with the commission of the offence.
16. I have heard the learned counsel for. The parties and gone through the record with their assistance.
17. Mst. Sana Sattar, the victim of the case, who was a baby girl aged about six years had given direct, straightforward and natural evidence against the accused. The victim was questioned by the trial Court before recording her evidence. She recited .Kalima-Tayyaba' and from replies given by her, the trial Court was satisfied that she was intelligent enough to depose in the Court. Victim in her evidence had supported prosecution in all material particulars directly implicating accused. No inherent defect or lacuna could be found in the evidence of victim and no strong reason was available to suspect the truth of her version. The testimony of victim was materially corroborated by strong circumstantial evidence of her mother and Irfan P.W. The victim Mst. Sana Sattar had categorically stated that she had gone to the house of Mst. Bashiran Bibi to recite Holy Qur'an. On the day of occurrence, she was not in her house and only accused was present. He removed her Shalwar as well as his own and subjected her to unnatural offence. On her shrieks, her mother and another person Irfan were attracted at the spot. Her statement was supported by her mother/P.W.1 and Irfan Ahmad P.W.3, who also deposed' in line with P.W.2.... This evidence had further borne out by detection of human blood and semen on the clothes of victim. The victim or her mother had no reason or motive to grind an axe against the accused to involve him wrongly.
18The blood-stained Shalwar and Qameez of the victim girl had also been taken into possession by the Investigating Officer. Vide recovery memos. Lady Doctor Andleb Ghani P.W.10 opined that act of sodomy had been committed with the victim. The opinion of the lady doctor was also supported by the report of Chemical Examiner Exh.PJ which was positive. Bashir Ahmad P.W.9/S.I. Who was posed at Police Station Kot Samaba on 7-3-2000 before whom Mst. Sana Sattar appeared and got recorded her statement Exh.PA which beared his I signatures. He prepared the injury statement Exh.PE and sent the girl to the hospital for her medical examination. He went to the place of occurrence, prepared the unsealed site plan of the place of occurrence Exh.PF. He also recorded the statements of P.Ws. Under section 161, Cr.P.C. Two sealed bottles and one sealed envelope alongwith medico-legal report were also handed over to him by Munawwar Masih, Constable .
Which were taken into possession vide recovery memo. Exh.PG. He arrested Shabbir Ahmad accused and got him medically examined with regard to his potency. According to Dr. Azhar Iqbal P.W.7, the accused was found fit to conduct sexual act and he tendered in evidence the medico- legal report Extt.PD which was attested by him (P.W.7). The birth certificate of the victim Sana Sattar was also taken into possession vide Exh.PC and it was signed by the Chief Officer and the signature of the Chief Officer were attestified by P.W.8 being his subordinate. The date of birth of victim was entered at Serial No,30 as 10-9-1993 of the concerned register.
19. The prosecution witnesses were cross-examined by the defence counsel but defence failed to extract anything favourable to the accused-appellant. Although the P.W.1, Mst. Surraya mother of the victim and Irfan Ahmad P.W.3 are closely related to the victim P.W.2 but they have - categorically stated that the victim was lying in a naked position and Shabbir accused was also nude. The 'prosecution story was also supported by these P.Ws. Though they were the close relatives of the victim but this is not a ground to discard their testimony if these are confidce- inspiring. There is no universal rule exists that the evidence of. The related witness must be corroborated by some independent evidence. The Court can rely on the testimony of interested witness if it inspires confidence in the event of non-availability of an independent witness. In this respect, reference can be made to the cases of Asghar Beg v. State 1996 PCr.LJ 451, Sharif and another v. State 1973 SCM R 83. In case of Khizar Abbas reported as 1997 PCr.LJ 1757 - it has been observed that mere relationship of witness with a party is not enough to brush aside his testimony.
Therefore, these witnesses were natural witnesses and also confidence-inspiring. No material contradiction and discrepancies have been pointed out by the learned counsel for the appellant.
20. The appellant in his statement under section 342, Cr.P.C. Had taken the stand that due to enmity for the reason that his father had to get certain amount which the complainant party had refused to pay and he did not appear as his own witness in defence as required by section 340(2), Cr.P.C.
The defence had not established on the record the enmity of the accused with the complainant party. The statement of the appellant that only highly interested witnesses who were closely related to the victim had deposed against him, has no force as laid down in the cases referred to above. ,
21. Having considered these circumstances and given my anxious consideration to all the aspects of the case I am unable to find any extenuating' circumstances that can be urged in favour of the accused-appellant, therefore, I hold that the prosecution has succeeded in proving the charge against the accused-appellant beyond any reasonable doubt .By producing ocular, recovery and medical evidence. Accordingly, I maintain the conviction and sentence of life imprisonment alongwith. Fine of Rs,25,000 passed upon the accused-appellant by the trial Court. The instant appeal having no force is dismissed.