' JAVED IQBAL, J.--These Criminal Petitions bearing Nos.720-L, 744-L and 749-L of 2001 have been preferred on behalf of Shahzad alias. Shaddu, Muhammad Ashraf alias Kaka and Mubarik Ali assailing the judgment dated 10-10-2001 passed by learned Division Bench of Lahore High Court, Lahore, whereby judgment, dated 18-12-1999, passed by learned Judge, Special Court, Faisalabad, constituted under Anti-Terrorism Act, 1997 whereby the sentence of death was awarded to all of them under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 7 of Anti-Terrorism Act, 1997 coupled with three years' R.I. Each, to pay a fine of Rs,20,000 each or in default further to undergo R.I. For nine months under section 411, P.P.C., two years' R.I. Each and to pay a fine of Rs,25,000 each and in default further to undergo to 6 month's R.I.
Each under section 506, P.P.C. And life imprisonment was awarded under section 449, P.P.C. To all of them has been kept intact. The abovementioned appeals arising out of the same judgment are being disposed of by this judgment as common questions of fact and law are involved.
2. Briefly stated the facts of -the case as gleaned from F.I.R. (Exh.P.R/1) got lodged by Bashir Masih (complainant) are to the effect that "on the night between 6th and 7th November, 1999, Bashir Masih, complainant alongwith his wife, children and parents was sleeping in his house while Mst.
Saima, his daughter aged about 14/15 years was sleeping in the Baithak. At about 2 a.m. (night) he woke up having heard the noise and went towards the Baithak in direction of voice and saw from the holes of the door that Shahzad was committing Zina with his daughter and his daughter was weeping while Muhammad Ashraf armed with .30 bare pistol, Mubarik Ali armed with a hatchet like Bugda and Umar Hayat were standing nearby. They forcibly tried to keep mum his daughter. The complainant identified all the accused in the light of electric bulb but he kept quite for the sake of life of his daughter. Meanwhile Tanveer Masih son of the complainant also came there. The complainant also asked his son to keep quite. Tanveer Masih too witnessed the occurrence and saw Shahzad committing Zina-bil-Jabar with Saima. Thereafter, Ashraf, Mubarik and Umar Hayat committed Zina-bil-Jabr with Saima turn by turn. The complainant took her daughter towards a residential room where the household articles were lying in scattered position. On checking Rs,50,000. Cash and golden ornaments valuing 12,000 were found missing.. The petitioners were arrested and after completion of investigation. Sent up for trial. In order to substantiate accusation, prosecution produced Dr. Muhammad Zaman Cheema (P.W.1), Lady Doctor Tasneem Tahir (P.W.2), Mian Mohsan Rashid (P.W.3tMagistrate, Muhammad Abbas (P.W.4), Muhammad Yousaf (P.W.5), Mukhtar Ahmad (P.W.6), Mst. Saima Bibi (P.W.7), Bashir Masih (P.W.8), Naseer Ahmad (P.W.9) and Rjab Ali, S.-I. (P.W.10). The statements of the petitioners were got recorded under section 342, Cr.P.0 wherein they professed innocence and false involvement on the basis of suspicion. The learned trial Court after conclusion of trial having found them guilty convicted all the petitioners under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 7 of Anti- Terrorism Act, 1997 and awarded sentence of death as per details mentioned hereinabove. The petitioners being aggrieved preferred an appeal which was rejected vide judgment impugned, hence these petitions.
3. It is mainly contended .By Mr. Ihsan-ul-Haq Chaudhry, learned Advocate Supreme Court on behalf of petitioner Shahzad alias Shaddu that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice and the petitioner was awarded death sentence in spite of the fact that prosecution failed miserably to prove the case beyond shadow of doubt. It is argued with vehemence that death sentence could not have been awarded under section 7 of Anti-Terrorism Act, 1997 and on this score alone the impugned judgment is liable to be set aside. It is next contended that the clothes of Mst. Saima were not taken into possession and, therefore, it cannot be ascertained as to whether she was subjected to Zina-bil-Jabr or otherwise. It is urged emphatically that in the absence of semen grouping the accusation cannot be proved and prosecution failed to bring on record report of semen grouping and thus, deliberately the scientific methodology was not adopted resulting in - grave prejudice. Mr. Ihasan-ul-Haq Chaudhry, learned Advocate Supreme Court further contended that the conduct and behaviour of the father and brother of the prosecutrix was neither logical nor appeal to reasons and thus the entire story appears to be false and fabricated as they could have easily saved their daughter from the petitioners as the action of Zina-bil-Jabr was allegedly seen by them. He also invited our attention to the medical report which was indicative of the fact that Mst. Saima was not found virgin and according to the learned counsel this aspect should have been kept in view by the learned Courts below but the same has been ignored without any rhyme or reason.
4. Mr. Zafar Ullah Cheema, learned Advocate Supreme Court appeared on behalf of petitioner Muhammad Ashraf alias Kaka and adopted the arguments as advanced by Mr. Ihsan-ul- Haq.Chaudhry, learned Advocate Supreme Court with the addition that various grave contradictions escaped notice resulting in serious miscarriage of justice. In this regard reference was made to the statement of Mst. Saima Bibi (P.W.7) and Bashir Masih (P.W.8). He also remained critical regarding the conduct of the complainant, which according to him was unusual and smacks of mala fides. He also contended that if the father could response the hue and cry of his daughter the neighbours should have responded immediately but their absence is indicative of the fact that, no such incident was ever occurred. He also mentioned that recoveries of the arms were not made in accordance with law and moreso, it is not clear that from which room the alleged theft was committed. It is also argued that the death sentence of petitioners may be altered by taking a lenient view in exercise of powers as conferred upon this Court under section 423, Cr.P.C.
5. We have carefully examined all the contentions as agitated on behalf of petitioners in the light of relevant provisions of law and record of the case. The entire evidence has been scanned with care and caution. The judgment of learned Special Court has been perused carefully. We have also gone through the judgment impugned. Let we mention here at the outset that being a gang rape case the most significant statement would be that of prosecutrix and subsequently it would be seen as to whether it has been corroborated by other convincing material or otherwise. Mst. Saima Bibi (P.W.7) has stated in a categorical manner that she was subjected to Zina-bilJabr by the petitioners namely Muhammad Ashraf, Shahzad, Mubarik Ali and one Umar Hayat who were also identified in identification parade held under the supervision of Mian Mohsan Rashid (P.W.3/Magistrate). Mst. Saima Bibi (P.W.7) was subjected to a lengthy cross-examination but nothing advantageous could be extracted rendering any assistance to the case of petitioners and she stood firm to the test of cross-examination. The statement of Mst. Saima Bibi (P.W.7) has been fully corroborated by medical evidence furnished by Dr. Tasneem Tahir (P.W.2) by whom three vaginal swa bs were taken and subsequently found stained with semen by the Chemical Analyser vide his report Exh.P.E. Dated 18-11-1999. Besides that factum of recovery also leads corroboration to the version of Mst. Saima Bibi (P.W.7). It is worth mentioning that at the pointation of Shahzad alias Shaddu (petitioner) recovery of Chhurri (P.1) one ear-ring (P.2) and one golden Koka (P.3) was taken into possession vide recovery memo. Exh.P.S. The other petitioner namely Muhammad Ashraf alias Kaka got recovered pistol (P.4), currency notes (P.5/1-22) and ear-ring (P.6)., which were taken into possession vide recovery memo. Exh.P.T. Similarly Mubarik Ali (petitioner) got recovered one golden ring (P.7) and Bunda (P.8) on 18-11-1999 which were secured vide memo. Exh.P.U. Umar Hayat co-accused also got recovered Chhurri (P.9) and golden ring (P.10) vide recovery memo.
Exh.P. W.
6. We would like to mention here at this juncture that corroboration is not a rule of law but that of prudence. There is no denying the fact that acid test of the veracity of the prosecutrix's statement is the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction. It is well settled by now that "the extent and the nature of corroboration required may, no doubt, vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every particular, all that is necessary is that the corroboration must be such as to effect the accused by connecting or tending to connect him with the crime. The corroborative evidence should tend to show that the witness or witnesses' evidence that the accused took part in the crime is true. To say that certain witnesses required corroboration and then to lay down that the corroborative evidence must show that the accused did not precise act attributed to him by the witnesses is tantamount to doing away with the evidence of those witnesses. And the same would be the result if the corroborative evidence required in such as is incompatible with the innocence of the accused. The true rule governing such situation is that the corroborative evidence should at least tend to show that the evidence of the witnesses when they name the accused as taking part in the crime is true. Corroboration of the interested testimony should be such as would remove the doubt that the accused have been falsely implicated."'
Ramzan Ali v. State PLD 1967 SC 545 and Ashraf v. Crown PLD 1956 FC 86).
7. We have examined the case in hand on the touchstone of the criterion as mentioned hereinabove. Generally speaking the statement of prosecutrix if considered trustworthy no corroboration would be needed and such need only arises in the circumstances indicating the possibility of her being consenting party to sexual intercourse which is a rere phenomena in cases of Zina-bil-Jabr.
1. Such-like cases the corroboration of evidence needs not be the direct evidence but it may be independent evidence of such a character which could connect the accused directly or indirectly with the alleged offence. Be as it may the statement, of Mst. Saima Bibi (P.W.7) has been corroborated by medical evidence, Chemical Examiner's Report and the factum of recovery. We are not persuaded to agree with the contention of Mr. Ihsan-ul-Haq Chaudhry, learned Advocate Supreme Court that there is no mark of violence which demonstrates the absence of resistance from prosecutrix for the simple reason that a helpless girl was in the clutches of four armed persons and in such circumstances how resistance could have been made. In the word of Mst.
Saima Bibi (P.W.7) hereself: "at that time Shahzad accused was armed with Chhurri, Ashraf alias Kaka was armed with pistol, Mubarak Ali alias Makha was armed with 'Bugda' and Umar Hayat accused was also armed with Chhurri. When the accused entered the Bathak, they switched on the light of my Bathak. Shahzad accused started committing Zina with me while the other three accused mentioned above remained present with their respective weapons around me. Shahzad accused committed Zaidati with me. Volunteered that the Ziadati means dirty act. After that Muhamamd Ashraf alias Kaka accused also committed dirty act with me. Then Mubarak Ali alias Makha accused also committed dirty act with me while the other three accused remained present around me with their respective weapons. After that Umar Hayat accused also committed dirty act with me. The accused after committing Ziadati threatened me that if I would tell this, thing to anybody, I and my family would be done to death."
The above situation as portraited by Mst. Saima Bibi (P.W.7) eliminates the possibility of any resistance which otherwise not a necessary prerequisite to prove the accusation of Zina-bil-Jabr. It is, however, to be noted that a mark of violence below the chest of Mst. Saima Bibi (P.W.7) was observed during her medical examination. In the absence of visible marks of violence it cannot be inferred that the prosecutrix was not subjected to Zina-bil-Jabr as medical evidence has confirmed that sexual intercourse had taken place. In this regard we are fortified by the dictum as laid down in cases titled Ghulam Sarwar v. State PLD 1984 SC 218 and Haji Ahmad v. State 1975 SCM R 69 wherein it was held that "medical evidence confirming that sexual intercourse took place through visible marks of violence not found on body of prosecutrix would not by itself show that prosecturix was not dragged and offence was committed with her consent". The statement of Bashir Masih (P.W.8) cannot be discarded by whom F.I.R. Was got lodged promptly wherein specific role was assigned to each of the petitioners and thus, the question of any deliberation, consultation or fabrication does not arise. He supported the contents of his complaint duly incorporated in F.I.R.
And his statement is not only consistent but worthy of credence and nothing beneficial could be elicited as a result of cross-examination. No enmity whatsoever has been alleged except a suggestion made halfheartedly that too without any basis concerning false involvement. In our society irrespective of status no one would like to involve the modesty of her unmarried daughter to get someone else falsely implicated. A careful scrutiny of the circumstances of the case would show that there is nothing to suggest that either Mst. Saima Bibi (P.W.7) or her father had any reason to falsely implicate the petitioners in the absence of any enmity.
8. Mr. Ihsan-ui-Haq Chaudhry, learned Advocate Supreme Court also remained critical about the conduct of complainant which was not in accordance with logic or human norms and that he could have saved her daughter by making intervention or raising hue and cry to attract the attention of neighbours. We' may point out that no yardstick can be fixed to gauge the human behaviour which otherwise appears to be quite possible as his daughter was in the clutches of four armed persons and she could have been done to death in case of hue and cry or resistance from any of the family members. In case of hue and cry the incident could have been publicized which have been against the honour and dignity of the family and nobody likes such publicity.
9. Admittedly no scientific test of semen grouping could be held but it would not materially diminish the value of other overwhelming incriminating evidence, which has come on record. In the presence of semen grouping test the report of Chemical Analyser regarding the presence of semen can be taken into consideration. It is well-established by now that "the omission of scientific test of semen status and grouping of sperms is neglect on the part of prosecution but not materially affecting the other evidence". In this regard reference can be made to Haji Ahmad v.
State (1975 SCM R 69) and Shahid Malik v. State (1984 SCMR 908). The Courts of law remain conscious regarding this aspect of the matter and it was held by learned Federal Shariat Court in case titled Ehsan Begum v. State (PLD 1983 FSC 204) as follows:-- ' "The Police investigation in Pakistan is not keeping pace with scientific developments. If facilities for grouping of semen be available, as indeed they are, it is not understandable why the Medical Officer examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left, about the identity of the person committing Zina-bil-Jabr. The Police Officer in their reference to the Medical Officers should also in such cases invaribaly request the Doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and serology alongwith vaginal swabs and clothes/cloth etc. Having seminal stains."
10. We have also examined the question as to whether any advantage can be taken by the petitioners on the allegation that prosecutrix was a girl of an easy virtue. The answer would be in negative as Blanket authority cannot be given to ravish the modesty of such-like girls. While examining a similar proposition it was held in case titled M. Akram v. State (PLD 1989 SC 742) as follows:-- ' "The other argument based on the assumption that the prosecutrix in this case having been used to sexual intercourse should not have been relied upon because of her so-called moral depravity, is also not tenable as it is too wide to be accepted in every case. In the present case it is only an assumption that she might have been used to sexual intercourse and on that basis the benefit of possible consent has been allowed to the appellant in the conviction and sentence for lesser offence. Otherwise firstly, the medical evidence does not disclose as to whether, the condition of the genitals of the prosecutix was necessarily due to abusive sexual intercourse or on account of intercourse tinder compulsion or deceit etc. And/or, whether or not the condition found on examination was not on account of other causes including self-abuse. Therefore, 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/supporting evidence for basing the conviction on her statement, if otherwise she appears to be reliable and her testimony inspires confidence."
11. Insofar as the prime contention as urged by Mr. Zafar Ullah Cheema, learned Advocate Supreme Court is concerned that sentence could have been reduced in exercise of powers as conferred upon this Court under section 423, Cr.P.C, seems to be devoid of any force in view of section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 wherein only death sentence has been prescribed and thus, the question of any reduction does not arise. It is worth mentioning here at this juncture that we have also dilated upon the contention as agitated by Mr. Ihsan-ul-Haq Chaudhry, learned Advocate Supreme Court that no conviction and sentence could have been awarded under section 7 of the Anti-Terrorism Act, 1997 which was neither raised before the learned High Court nor included in memorandum of this petition. But while raising, the said plea it has been ignored that initially conviction has been awarded under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and thus, no illegality whatsoever has been committed and moreso on the day of occurrence i.e, intervening night between 6-11-1999 and 7-11- 1999 the offence of Zina-bil-Jabr was a scheduled offence.
12. In the light of foregoing discussion we are of the view that prosecution has established its case beyond shadow of doubt by producing cogent and concrete evidence which cannot be discarded on flimsy grounds. The petitions being devoid of merit are dismissed.