' Siiehzad alias Shadda son of Muhammad Ibrahim, has laid challenge to the judgment dated.10-6- 2000 passed by the Judge Special Court, Anti-Terrorism Lahore-IV, whereby the appellant was convicted under section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 for abducting Nagina Bibi and sentenced to imprisonment for life and a fine of Rs,100,000 or in default to undergo R.I. For two years. Subsequent his act of rape earned him conviction, under section.10(3) of the Zina Hadoon Ordinance as well and was awarded by way of sentence rigorous imprisonthent for 25 years. However, sentence were ordered to run concurrently and benefit of section. 382-B, Cr .P.C. Was extended.
2. Vide the same judgment Muhabbat Ali co-accused was extended the benefit of doubt and acquitted.
3. The unfortunate occurrence resulting in abduction of Nagina Bibi and her subsequent rape took place on 8-101999 at 11 p.m in the vicinity of Muza Duraiwala at a distance of 10 k.m. From the Police Station Saddar Sheikupura. The complaint was lodged by Abdul Ghafoor father of the victim on 11- 104999 at 9-30 a.m. Through written application with Nazir Ahmad A.S.I who recorded the first information report on the basis of the complaint.
4. The version of the prosecution portrayed in the complaint Exh.P.A authored by Abdul Ghagoor is that on 8-10-1999 he slept in the Baithak of the house whereas his family slept in the courtyard of the house and at about 11 p.m Muhabat Ali along with Shahzad, the present appellant armed with fire-arms scaled over the wall and entered the courtyard of the house. Muhabat Ali was armed with pistol whereas Shahzad was armed with 7-M.M. Rifle who caught hold of his daughter Nagina Bibi, aged 16/17 years gagged her and forcibly took her away by opening the latch of the outer door but his wife Mumtaz Bibi and another daughter Samina Bibi were awakened by the shout of Nagina Bibi by that time the accused had dragged her daughter Nagina Bibi outside the house, however, on the hue and cry raised by his wife and other daughter he also got up and getting the assistance of Abdul Razzaq his brother-in-law and Muhmmad Zafar Iqbal, they started search for his daughter and when they reached near the Haveli of one Ibrahim they heard the wails of Nagina Bibi upon which they entered the Haveli and saw Muhabbat Ali and Shahzadd committing Zina-bil-Jibar with his daughter. The culprits on seeing them and others left Nagina Bibi in a naked position and took to their heels. After asking his daughter to wear her dress they brought her back and they were told that Muhabat Ali and Shahzad committed rape with her. The respectables of the locality persuaded him to compromise the matter and get it hushed up, but thinking otherwise as injustice has been done to him, he decided to lodge a report.
5. Nazeer Ahmad A.S.I. After getting the case registered through F.I.R. Exh.P.A/1 proceeded to visit the place of occurrence and prepared a rough site-plan Exh.P.G and Shalwar P.1 , Qameez P.2 along with Dupatta P-3 were taken into possession vide recovery memo. Exh.P.B Both Muhabbat and Shahzad were arrested on 22-10-1999. He got them medically examined through a doctor who found both of them fit to perform the sexual act.
6. Mst. Nagina Bibi was first examined by Dr. Suhaill Khizer, Medical Officer, D. H. Q. Hospital, Sheikhupura on 9-10-1999 at 7-55 p.m. And found the following three injuries:-
(1) Contusion 2.5 c.m. x 1.5 c.m. On left upper arm.
(2) Swelling 2.5 c.m. x 2.5 c.m. On back of right elbow joint.
(3) Contusion 2.5 x 0.4 c.m. On the back of right ankle joint.
' All injuries were classified as Ghayr Jaifah Damiyah under section 337L(2), P.P.C. And probable duration was within 24 hours. Injuries caused were with a blunt weapon.
7. Mst. Nagina Bibi was subsequently examined by Dr. Farah Naaz, W.M.O. District Headquarter, Hospital, Sheikhupura on 12-10-1999 having been brought by Nazeer Ahmad, A.S.I of Police Station Saddar, Shiekhpura. The doctor also found a bruise 5x5 c.m. On outer side of left arm. The vaginal examination led her to the opinion that hymen was torn at 1-0 clock, 4-0 clock, 6-0 clock and 8-0 clock position. Vagina admitted two fingers easily. Two vaginal swabs taken and sent to Chemical Examiner for semen detection. The report of the Chemical Examiner Exh.P.H after examination of swa bs were found to be stained with semen.
8. The challan was submitted in Court. The appellant along with his co-accused were indicted they denied the charge, pleaded not guilty and claimed a trial.
9. The prosecution examined as many as nine witnesses. Ocular testimony account was furnished by Nagina Bibi P.W.1, her father Abdul Ghafoor P.W.2 her mother Mst. Mumtaz Bibi as P.W.4.
10. Appellant when examined under section 342, Cr.P.C. Denied his participation in the occurrence and stated that the case has been brought against him because of the enmity which the prosecution witnesses had against him, as a result of which they deposed falsely.
11. Learned counsel for the appellant stated that three days delay in lodging the F.I.R. Was utilized in distorting the version. And concocting a case against the appellant. It was also submitted that on tile 9th of October she was first examined by a doctor for her injuries where she never disclosed that she was ravished and that subsequently on 12-10-1999 she was examined by a lady. Doctor who proved that she was used to sexual intercourse as vagina admitted two fingers easily. He also pointed out various contradictions and inconsistencies in the report lodged by Abdul Ghafoor which according to him was lethal to the prosecution as her father disowned his statement and his thumb impression on the first information report. Lastly it was submitted that the whole version unfolded by Nagina Bibi was highly improbable and as a result of the infirmities in the prosecution case benefit of doubt should be extended to the appellant who be acquitted. Learned counsel for the State supported the conviction and sentence recorded by the trial Court' Judge vide his judgment now impugned.
12. I have heard the arguments of the respective counsels and have also gone through the record.
13. Undoubtedly there is a delay in lodging the F.I.R. But I. Cannot close my eyes to the fact that a young unmarried girl was ravished and the seriousness of the offence leaves a deep trauma not only on the mind of the victim but the whole family and it takes time for regarding one's cool and composure. This aspect of the case particularly in offences of rape and sodomy can never be lost sight of and the oft repeated arguments of the defence counsel that the delay in lodging the F.I.R. Is fatal to the prosecution has to be deviated and discriminated with the cases of different nature involving harm/injury to body or property. The delay, therefore, is inconsequential, particularly when reason given in the F.I.R. That due to the intervention of the notables for hushing up the matter it took some-time for his family to decide whether to bring a vagabond to book for to eraze wounds and the unkindest cut caused to the family. Similar argument can be advanced for not getting the victim examined by lady doctor to determine whether sexual act has been committed. In the first instance physical injuries on the person of the victim were reported to the doctor P.W.6 who examined her and found that there were three blunt weapon injuries on her person which undoubtedly go to show that violence was committed while dragging her and injuries are manifestation of resistance given by her at the time when she was being forcibly taken away. It was after lodging of the F.I.R. That the police took her to the lady doctor P.W.5 who examined her and found vide report of the Chemical Examiner that sexual act was committed on her because the swa bs were stained with semen.
13-A. The acid test is the testimony of the victim Nagina Bibi. She has, in clear specific words, stated that by force she was removed from her house and taken to a nearby house where Shahzad the present appellant alongwith an unknown person committed Zina-bil-jabar turn by turn. The offence has been squarely proved more in her cross-examination then in her examination-in-chief by the questions asked from her by the defence. Not a single question has been put to her that she was deposing falsely because of rancour or ulterior consideration. I am convinced in my mind that failure of the defence to evince an answer from her as to why she is substituting the real culprit with an innocent man, her statement has a ring of truth around it and inspires confidence. Her father was also given a suggestion that the appellant has been named because of a dispute but what was that dispute and when it occurred has not been brought on record, therefore, the dispute or enmity is just a figment of imagination of the defence. The statement of the accused under section 342, Cr.P.C. That the P, Ws. Have deposed against him because of enmity is mere an afterthought and so terribly thin that it has failed to create any dent in the prosecution case. I also do not contribute t6 the suggestion made by the learned defence counsel that the victim by refusing to identify Muhabbat as the other perpetrator of the crime, brought the case to blackmail the appellant as well as the acquitted accused and having succeeded, as far as Muhabbat accused was concerned the allegations were dropped, but since the appellant did not succumb the prosecution sustained the allegation by their examination in Court. Instead of commending the victim that in case of doubt she has not raised the guilty finger towards Muhabbat the acquitted co-accused she is being accused for blackmailing. It was a dark night occurrence and the possibility is that she may have not seen the second perpetrator of the crime earlier, however, by way of abundant caution after seeing Muhabbat in the dock she did not identify him and told the truth that Muhabbat was not the other man who raped her. As far as the appellant was concerned a repeated allegation of guilt against him has proved the prosecution case regarding his culpability to the hilt.
14. The final argument, though a suppressed one by the learned counsel for the defence, that the possibility of the lady being a consenting party cannot be excluded, has not met favourably by me, rather has exasperated my perception for taking a lenient view in matter of sentence. A girl of 16/17 years was forcibly lifted and her injuries speak the truth for itself and thereafter she was stigmatized the rest of her life for the satisfaction of animal lust by the appellant, such an argument adds fuel to the fire. The so-called infirmities pointed out in the statement' of Abdul Ghafoor do not at all affect the testimony of the girl. Approach of the Court now have to be dynamic in a criminal case and technicalities should not be an impediment to dispense justice.
15. The upshot of the discussion is that the prosecution has proved its case beyond any shadow of doubt. Resultantly I see no reason to differ with the appraisal made by the learned trial Judge which is in absolute accord with the standards and norms set by the superior Courts from time to time. The appeal is dismissed and the judgment of the trial Judge dated 10-6-2000 convicting and passing the sentence recorded therein is maintained.