KHAN RIAZ-UD-DIN AHMED, J.---This appeal is directed against the judgment dated 3-1-2000 passed by learned Additional Sessions Judge, Sargodha, whereby Shahid Maqsood Siddiqui, the appellant, was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter called the Ordinance) and was sentenced to undergo R.I. for 25 years.
He was however, awarded the benefit of section 382-B, Cr.P.C.
2. Briefly, the facts of the case as contained in the F.I.R. Exh.P.A, lodged by Shahzadi Saima Naureen, the victim, (P.W.1) at Police Station City Sargodha at 8-30 a.m. on 17-2-1998, are that she was a student of 5th class and was residing with her parents alongwith her five brothers and four sisters.
Three years ago, when they were living in Saudi Arabia, her father, the appellant, has subjected her to Zina-bil-jab', which was told by her to her mother, but being in a foreign country, they kept quite.
About two years back, she alongwith her parents had shifted back to their home at Sargodha, where the appellant continued to commit Zina-bil-jabr on her under the threat of killing her, if the same was disclosed by her to her mother or anybody else. Two months prior to the occurrence, she was sleeping in her room when her father (the appellant) turned up and started committing rape on her. She raised an alarm, which attracted her mother Mst. Shahida Tabassum, who caught hold of him at the spot. The appellant aimed pistol at her and threatened her of the dire consequences and promised that within 15 days he will marry the victim. She and her mother being afraid of the threat kept quite, however on the 13th of Ramzan-ul-Maubarak her marriage ceremony was performed with one Imtiaz, aged about 14/15 years, the nephew of her father. Thereafter on the following day of her marriage her father brought her back to his house on the pretext of her appearance in the ensuing examination. It was on 11-2-1998 at about 3/4 p.m. when the victim was preparing for her examination, the appellant entered her room, closed the door and after gagging her, started committing Zina with her forcibly. On the alarm raised by her, Mst. Shahida Tabassum, her mother and Asma Naureen, her sister, rushed to her room, but the accused-appellant after threatening them of dire consequences made good his escape. The victim and her mother kept quite, so that the same may not be known to the in-laws of the victim as it would destroy her future life. On the eve of lodging of the report i,e, 17-2-1998 the accused/appellant again caught hold of her for the commission of Zina-bil-Jabr, but the alarm raised by her made him to flee from the spot. Having been fed-up from such incident her mother narrated the whole occurrence to her brother Naeem Ahmad, who took the victim and her mother at the police station, where the victim lodged the F.I.R. Exh.P.A which was recorded by S.I/S.H.O, ,Sabir Hussain Shah (P.W. 9), who read it over to the complainant and got it singed by her in token of its correctness.
The investigation was resumed by S.-I. Sabir Hussain Shah who visited the place of occurrence, prepared the site plan Exh.P.G and recorded the statements of the P. Ws. On 18-2-1998 he got medically examined Mst. Shahzadi Saima Naureen, the victim, from Lady Dr. Tahira (P.W.8) WMO of the District Headquarters Hospital Sargodha. On the same day at about 12-30 noon, on receipt of the secret information, the Investigating Officer arrested Shahid Maqsood Siddiqui accused from bus stop Varran Adda, on whose personal search 22 bore pistol PI alongwith 22 live cartridges P.2/1- 22 and cash of Rs,200 were recovered, which were taken into possession through memo. Exh.P.0 for which he was separately challened under section 13/20/65, of the Arms Ordinance. The Investigating Officer got the appellant examined by Dr. Muhammad Latiff (P.W.3) Medical Officer of District. Headquarter Hospital Sargodha for potency and after completion of the necessary investigation he challaned the accused/appellant to Court to face his trial under section 10(3) of the Ordinance.
3. The prosecution produced as many as 9 witnesses to prove the guilt of the accused/appellant at the trial.
Shahzadi Saima Naureen, the victim appeared as P.W.1, and reiterated the contents of the F.I.R. lodged by her. She further disclosed that she was medically examined by the Lady Dr. Tahira, P.W.B.
During cross-examination, she stated that on 11-2-1998, the appellant was discharged during the commission of the offence, and her clothes were besmeared with semen but the same were washed and cleaned away and were not produced before the police. She refuted the suggestion that the appellant had not committed Zina with her and that she had falsely implicated him in this case. She also denied the suggestion that her father had a row with her mother and maternal uncle and therefore, this case was planted falsely against the accused.
4. Mst. Asma Maureen appeared as P.W.2 and corroborated the version of Mst. Shahzadi Saima Naureen by stating that on 11-2-1998 she and her mother Shahida Tabassum, P.W.were in their house at Maqam-e-Hayat Sargodha City while Mst. Shahzadi Sairna Naureen, victim, was alone in her room and was preparing for her examination. It was at about 4-00 p.m. that they heard the cries from her room, upon which she and her mother Shahida Tabassum reached there and saw the victim Saima Naureen lying naked on the bed with her shalwar having been taken off and the appellant Shahid Maqsood Siddiqui, was committing Zina with her, who, on seeing them stood up, took out his pistol and threatened them to kill if they disclosed it to anybody else and escaped from the spot. She refuted the suggestion put by the defence that her mother and maternal uncle had tutored her the statement made by her in the Court and that she had not made any statement before the police. She also denied the suggestion that she, under the influence of her mother and Mamoon had made a false statement against the accused.
5. Dr. Muhammad Latif, Medical Officer, District Headquarters Hospital, Sargodha appeared as P.W- 3 and stated that on 18-2-1998, he had medically examined Shahid Maqsood Saddiqui, aged 47 years and observed that his sexual organs were normal and could attain erection on stimulation and was fit to perform sexual act,.
6. Lady Dr. Tahira appeared as P.W.-8 and stated that she had conducted the medical examination of Shahzadi Saima Naureen, aged about 12 years on 18-2-1998 and observed as under:- "Hymen was torn and healed; Three value vaginal swa bs taken, sealed and signed in a bottle and handed over to police for analysis and grouping and blood typing; Vagina was admitting, two fingers easily. Final opinion was deferred till the receipt of the report of Chemical Examiner, Report of Chemical Examiner is before' me and I am of the final opinion that according to MLC No,21 of 1998 No,Chemical Examiner 2080 dated 31-3-1998, the swabs sent to Chemical Examiner were not stained with semen. Exh.P.E is the carbon copy of MLR of the examinee prepared and signed by me, whereas Exh.P.F is the report of Chemical Examiner and PF-1 is my final opinion, prepared and signed by me".
She was not cross-examined by the defence although the opportunity was provided by the Court.
7. Sabir Hussain Shah, S.I. appeared as P.W.-9 and had narrated the details of investigation conducted by him and stated that on 17-2-1998 at about 8-30 p.m. he recorded F.I.R., Exh.P.A at the instance of Shahzadi Saima Naureen which was read over to her and was got signed by her in token of its correctness.. He also stated that she was got medically examined through F.C.
Muhamad Rafique from Lady Dr. Tahira of District Headquarters Hospital Sargodha. He also stated that he had arrested the accused on 18-2-1998 from bus stop Varran Adda and recovered .22 bore pistol P.I alongwith 22 live cartridges P.2/1-22 and cash of Rs,200 which he had taken into possession through memo. Exh.P.0 and had separately challaned the accused under the Arms Ordinance. He also got the accused examined for his potency from Dr. Muhammad Latif and after completion of the investigation, challaned the accused to face his trial. He denied the suggestion that no case was registered at the police station and that he had falsely challaned the accused in this case under influence of one Naeem Ahmad who had a dispute with the accused/appellant over the rendition of account.
Statements of the remaining witnesses more or less being of a formal nature, need not be discussed as the same have not been even challenged by the defence.
8. After close of the prosecution evidence, thestatement of the accused/appellant was recorded under section 342, Cr.P.C. He denied all the allegations levelled against him and professed innocence. In reply to question No,14, "as to why the P. Ws have deposed against him" he stated as under:- "I am a gold smith by profession and went to Saudi Arabia. I earned a good fortune there. During my absence from the country my wife starting flirting. My brothers complained to me about her immorality so I took my family also to Saudi Arabia and started living there. I was living in a flat of Multi-storyed building. One Mst. Nusrat Pakistani women who was a second wife of an Arab was also living in front of my flat in Hyle. Her husband used to work in Jeddah and Mst. Nusrat had no child till then. She developed friendship with my wife. Mst. Shahzadi my daughter was a growing child and her mother used to send her to the flat of Mst. Nusrat to sleep there because of the loneliness of Mst. Nusrat. I suspected that Mst. Nusrat was a woman of easy virtues and therefore I reprimanded my wife not to send my daughter to her house. During the above period my daughter also adopted evil ways, therefore, I came back to Sargodha and started living here. I left all my assets in Saudi Arabia with my eldest son.
During my stay in Saudi Arabia, I had been sending money to my wife at Sargodha. Her brother Naeem is a poor man. She gave my money to him I the purchase of a shop. I asked Naeem for the rendition of accounts. Naeem and my wife to avoid the rendition of accounts formed a group.
I found that my daughter Shahzadi Saima was still following her bad pursuits. I married with mynephew but my nephew told me that he had found her an immoral girl. I had a quarrel with my wife and my daughter on this issue. My wife with the support of her brother Naeem has brought this false charge against me. I am a Muslim and cannot think of committing Zina with my daughter.
I am innocent."
He however, refused to appear and make a statement on Oath in his defence. According to him it was not necessitated, as the prosecution has failed to prove its charge against him. He however opted to produce the defence evidence but subsequently he closed his defence without producing any evidence.
9. After the conclusion of trial, the learned trial Court found the appellant guilty and convicted and sentenced him as stated above. Hence this appeal.
10.We have heard the learned counsel for the appellant as well as learned counsel for the complainant and the learned counsel for the State and have perused the record carefully. Learned counsel for the appellant has vehemently argued that the statement of the victim, Mst. Saima Naureen regarding the commission of Zinabil-Jabr has not been corroborated by the medical evidence furnished by Lady Dr. Tahira, P.W.8, who after receipt of the negative report from the Chemical Examiner was unable to opine regarding the commission of Zina-bil-Jabr on the victim.
He further stated that the 'statement of the victim was the result of influence of her mother and Mamoon who were inimical towards the appellant. He emphasised that in the case of this nature "due caution" was necessary to assess the evidence of the victim who was liable to be tutored by her mother. To substantiate his contentions, learned counsel placed reliance on the cases of Ghulam Muhammad' v. The State, PLD 1984 SC 72 and Muhammad Akram v. The State, 1992 PSC (Criminal) 463.
11.Learned counsel for the complainant and learned counsel for the State controverted the contentions raised by the learned counsel for the appellant and submitted that prosecution. has proved its case beyond any shadow of doubt against the accused by, producing Mst. Shahzadi Saima Naureen, P.W.1, whose testimony was duly corroborated by Mst. Asma Naureen, P.W.2, another daughter of the appellant, having no enmity with him, coupled with the statement of the Lady Dr. Thira, P.W.8, who had materially supported the prosecution verison.
12.We have given our anxious consideration to the submissions made by the learned counsel for the parties and have perused the case-law cited at the Bar.
We have _critically and cautiously evaluated the testimony of the eyewitnesses, furnished by Mst.
Saima Naureen P.W.1, the victim and Mst. Asma Naureen P.W.2. The narration of the occurrence rendered by P.W.-1,Mst. Saima Naureen was consistent and A cogent, and thus inspired confidence.
She was not attributed any or enmity against her father by the defence, except a mere suggestion that she had falsely implicated the appellant/father, at the instance of her mother and one Naeem Ahmad, her maternal uncle, against whom, the appellant had a dispute, over the rendition of accounts sent by him from Saudi Arabia. The victim, while narrating the sad story had unequivocally stated that three years .prior to the occurrence, when they were in Saudia Arabia, the appellant had subjected her to Zina-bil-Jabr, but the same was not disclosed to anyone except the mother, who opted to keep quite as they were of Pakistan. The brutal act was gain committed by the appellant with the victim (daughter) twice or thrice after shifting to Pakistan, but that too was also hushed up due to the threats of dire consequences hurled by the accused/appellant.
13. According to the victim, it was on 11-2-1998 that the accused/father was seen committing. Zina- bil-Jabr on her by her mother and sister, Asma Naureen, who were attracted at the spot, on hearing her crises, but they were also threatened at pistol- point that they would be killed if the, disclosed it to anybody. On 17-2-1998 the appellant again tried to commit Zina forcibly with her but the said attempt was foiled by the victim by resisting the same and rasing alarm which made the accused appellant to flee away from the spot. It was then that the matter wasdisclosed by her mother to Naeem Ahmad, her maternal uncle, who produced "1st. Saima Naureen alongwith her mother the police station where the aforesaid case was registered against the appellant. This statement of the prosecutrix was duly corrohorated by her sister Mst. Asma Naureen, P.W.2 the other real daughter of me accused/appellant, who had also no B grievance or enmity of her own against her father to falsely implicate -him in this case. She has categorically stated before the Court that on 11-2-1998, on hearing the cries of Mst. Saima Naureen from her room, she alongwith her mother, Shahida Tabbasum, reached the spot and saw the appellant committing Zina on her, who was lying naked on the bed with her shalwar having been taken off. On seeing them, the accused stood up, took out a pistol and threatened to kill them if they disclosed it and went away.
Both these witnesses were subjected to lengthy cross-examination but nothing favourable to the accused could be brought on record. ' Mst. Asma Naureen, P.W.2, however, admitted that she had no knowledge of any other incident on 17-2-1998, although she remained present in her house the entire day. This admission of the witness was not substraction of the assertion of the prosecution, because it was not their case that Mst. Asma Naureen had also witnessed the said occurrence on the said date, as such it cannot be treated as a contradiction to be the version of P.W.1. The testimony of these two daughters P.W.1 and P.W.2 stand further corroborated by the evidence of Lady Dr. Tahira, P.W.8, whose observations to the effect that hymen was found torn and healed and vagina admitted two fingers easily, were sufficient for rendering necessary corroboration, as the victim was being subjected to sexual intercourse from the last about three years by the appellant.
Notwithstanding the fact that report from the office of the Chemical Examiner about the swabs having not been found stained with semen is on record, but the observations of Lady Dr. Tahira, P.W.8, are enough evidence of the fact that Mst. Saima Naureen, victim, in this case, had been subjected to sexual intercourse, if not many times, at least more than once. The opinion of the Lady Doctor lends corroboration to the statement of the victim, that appellant had been subjecting her to Zina since about three years prior to I. the lodging of report. Had the victim been D leading an immoral life, appellant being father, would have come to know that fact---and would have taken severe action against the culprit as well as his daughter.
Apart from this fact the other important aspect is that for proving commission of Zina, penetration alone is sufficient for which the victim is always the best witness, because it. is she who undergoes that act. Mst. Saima Naureen--- victim categorically stated that appellant had committed Zina with her and during that process he had discharged as a result of which her clothes were stained with semen. Her statement in that regard was, categoric, vouchsafing of the act of the penetration.
That being so we are satisfied that non-receipt of positive support from the office of the Chemical 'Examiner, does not negate the ocular account furnished by P.W.1, and P.W.2 and the observation of the Lady doctor who had examined the victim.
14.The non-production of Mst. Shahida Tabbasum, the mother of the victim as witness before the trial Court was also challenged by the defence but we are afraid that no adverse presumption could be drawn for withholding her statement, as her two daughters had already appeared and had made coherent statements against their father (the appellant), so the prosecution had given her up as unnecessary witness. It would not be out of place to mention here that the prosecution was not bound to produce all the P.Ws mentioned in the Calendar of witnesses, except which were necessary to prove the guilt of the accused. We therefore, brush-aside this objection.
15. This has now been an established law that if the solitary statement of the pmsecutrix/victim intrinsicalry rings true, thin the reliance can safely be placed on her deposition, which would be sufficient for the conviction of the accused. We stand fortified, in this context by the observations of' the Honourable supreme Court in the case of Muhammad Akram v. The State PLD 1989 SC 742, wherein it was held that "mere opinion of, a doctor, as in this case, would not weaken the testimony of the prosecutrix and would not for that reason necessitate any further corroboratory/ suppdrting evidence for basing the conviction on her statement, if otherwise she appears to be reliable and her testimony inspires confidence." There is yet another case decided by Honourable ,Supreme Court which we -would like to refer in support of our view, is, the case of Furrukh Ikram v. The State, TO 1987 SC 84, wherein Zinahil-Jabt was corhmitted by a father on her step-daughter Who alongwith her sister had appeared as a prosecutrix before the Court and was relied on, for basing the conviction of the father under section 10(3) of the Ordinance. The above case being similar on all fours with the case in hand has also provided the necessary guidance in arriving at the collusion that the prosecution has successfully proved the guilt of the appellant in the case.
16. Adverting to the defence version that the appellant was falsely implicated at the instance of Naeem Ahmad, the maternal uncle of the victim with whom appellant had dispute over the rendition of the accounts, it is observed that it does not carry any weight and has no worth in the eyes of law, because neither the accused/appellant himself had appeared as witness of his own to make the statement on Oath to substantiate the said version nor he had produced any defence witness in proof of the charges against him, even otherwise in a normal course of events if any false accusation was levelled against any innocent person, the first and foremost reaction would be, that he would swear by Almighty-Allah or would make a statement on Oath to get him exonerated of such an heinous charge, but the accused/appellant has not resorted to any of the above two alternatives, which had reflected adversely on his conduct. We, therefore, without being prejudiced over this omission of the accused/appellant, are of the view, that the defence version that the accused was falsely implicated under the influence and at the instance of one Naeem Ahmad, the maternal uncle of the victim was a mere assertion of the defence and thus had no substance in it to cast doubt on the version of the prosecution which stands proved through cogent, reliable and trustworthy evidence.
17.We have also gone through the facts of the cases cited by the learned counsel for the appellant which are materially distinguishable from the facts of the case in hand, because in the two cases cited, supra, the relations between husband and wife, the mother of the prosecutrix, were strained and the spouses were living separately and the children from the said wedlock were being harshly treated by the father, against whom they had developed ill will and hatred, which made them to succumb to the desire of their mother to falsely implicate their father for such a heinous charge. All the above factors i,e, estrangement and separation of wife and hatred of the children due to harsh treatment of their father were prominently missing in this case, which was purely the result of a Satanic instinct of sexual lust of the appellant and nothing more.
18. The resume of the above discussion is that the prosecution has proved its case beyond any reasonable doubt against the H accused/appellant. In our view appellant has rightly been held guilty, convicted and sentenced by the learned trial Court.
There is no merit in this appeal, the same is dismissed. The benefit of section 382-B, Cr.P.C. shall be extended to the appellant.