The appellant has been convicted by the 1st Additional Sessions Judge, Karachi for offences under sections 452 and 376, P. P. C. And he has been sentenced to undergo R. I. For 3 years and to pay a fine of Rs. 1,000, or in default to suffer R. I. For 3 months more for offence under section 452 and to suffer R. I. For 7 years and to pay a fine of Rs. 1,000, or in default to suffer further R. I. For 3 months for offence under section 376, P. P. C, the substantive sentences to run concurrently.
2. Mst. Uzma a girl of 12 years resided with her father Nisar Ahmed in a house at Liaquatabad, Karachi. Her mother was dead. Her elder sister Salma resided with her along with her minor children. On the day of the incident on 25-5-1976 at about 3-30 p. m. Uzma was in the house as usual. Her father who worked at Union Biscuit Factory had gone to attend to his duty after locking the front door. Her elder sister Salma worked in a Company and she had also gone out. The only other persons with her in the house were her nephew Salim aged about 8 years and two other minor children. The house had also a back door which was chained from inside. There was a knock at this door and the door was opened by Mst. Uzma thinking that some one from the family bad arrived. Accused Bashir, a milk-seller, residing in the same neighbourhood was at the door and he entered the house in spite of the protest of the girl. He was a young man of 28 years. Bashir took the girl to the adjoining room of the house, kicked aside Salim who was present and closed the door of the room. He removed the clothes of the girl, put her down on a wooden bench and had forcible sexual intercourse with her. Salim then knocked at the door of the room saying that some one from the family had come. Accused then left the girl and ran away. Salma, sister of Uzma, returned from her work at 5-00 p. m. And she was informed by Uzma that accused Basbir had come from the back door and he had dragged her inside the room, removed her shalwar and performed the sexual act on her after threatening her with a knife. Salma waited for her father who returned home after sunset. He was informed of the incident by his daughters and by that time the neigbbours had also come to know what happened. He then took his daughter to Liaquatabad Police Station where F. I. R. Was lodged at 11-30 p. m. Sub-Inspector Ahmed Hussain visited the scene of offence.
He secured the shalwar of Uzma and sealed it in presence of mashirs. He recorded the statements of Salma, Nisar Ahmed and others. After midnight he arrested accused Bashir. The shalwar and kamiz of Bashir were also secured from his house. The girl and accused were then sent for medical examination, while the articles were sent to the chemical examiner. The accused was examined by Dr. Ashfaq Hussain. He was found to be about 28 years of age. The girl Mst. Uzma was sent for examination as to age to the Police Surgeon, Karachi. He found that she was about 12 years of age.
Her menstruation periods had not yet commenced. She was also examined by Dr. Hamida Qureshi of Civil Hospital, Karachi. She found abrasion on the left cheek of the girl ----- x 1/6". She was a minor girl and her secondary sexual characters had not developed. Her vagina was found congested; hymen showed fresh tear of 12 to 24 hours duration at 6 O'clock position. The vagina was still tender to touch. In the opinion of the lady doctor sexual act had been committed on her.
The parcel containing the clothes of the girl and the accused sent on 8-6-1976 to chemical examiner was received in his office on the next day that is on 9-6-1976. He issued a certificate dated 11-11-1976 that semen had been detected on the printed shalwar of Uzma and the greenish shalwar of Bashir Ahmed. No semen was, however, detected on the vaginal and urethral slides taken at the time of the examination of the girl and the accused.
3. The accused in his examination denied having entered the house ofNisar Ahmed and having committed rape on the girl. He cited two witnesses in his defence but examined only one of them, namely, Nazir a vegetable seller of 60 years, He deposed that a week prior to the incident there was exchange of hot words between son of the complainant and the accused and the accused had fought with his son; that he knew nothing about the case.
4. The prosecution has led the evidence of Mst. Uzma who at the time of her examination was about 13 years of age; her sister Salma who returned home soon after the incident and to whom the incident was narrated by Uzma and Salim son of Mst. Salma aged about 8 years. Then there is the evidence of Nisar Ahmed father of the girl who had accompanied the girl on the same night and lodged the F. I. R. Apart from this evidence there are depositions of Dr. Hadi, Police Surgeon, Dr. Hamida Qureshi, the lady doctor of Civil Hospital and Syed Hassan Siddiqui, a clerk of the Police Surgeon who produced certificate of Dr. Ashfaq regarding age of accused Bashir. The report of the chemical examiner has been produced and the mashirs and the Investigation Officer have also been examined.
5. It has been argued by Syed Nasiruddin on behalf of the appellant, that there is hardly any corroboration of the evidence of the prosecutrix, namely, Mst. Uzma. That boy Salim aged 8 years has deposed as an eye--witness of the act of rape. That according to the evidence of the girl herself, the door of the room had been closed and the boy could not have seen what happened inside. Syed Nasiruddin has then pointed out that there was absence of blood from the clothes as well as the wooden bench and the floor at the scene of offence; that these circumstances show that the necessary corroboration of the evidence of the girl was absent; that the report of the chemical examiner regarding presence of semen on the shalwars of the girl and the accused had been admitted in evidence but no question with regard to that piece of evidence had been put to the accused in his examination under section 342, Cr. P. C, that this piece of evidence should therefore, be excluded from consideration.
6. P. W. Salim is no doubt a child of about 8 years. He has stated in" evidence that the accused had taken his aunti in the room and after removing her shalwar he lay on her. It is not clear whether he saw this himself by peeping through any chink of the door or learnt this from his aunti Uzma after the incident. There is also no indication from the record of this deposition whether the learned Additional Sessions Judge before recording his evidence bad tested the intellectual capacity of the child by putting questions to him to see whether hecould be a competent witness. The deposition shows that the statement of this child witness was taken on solemn affirmation but it is not known whether the child was able to understand the sanctity of oath administered to him. Under section 118,1, Evidence Act, all persons are competent to testify unless the Court considers "that they are prevented from understanding the questions put to them, on from giving rational answers to those questions on account of tender years. In case of a child witness, therefore, his competency would depend on his degree of intelligence and the capacity to understand the questions and to answer them in a rational manner, Therefore, the trial Judge before examining a child witness must determine the question whether the witness is competent or not. Test is intellectual capacity (sic).
He should put simple and ordinary questions him and should record their answers, and at the close of the enquiry give his impressions briefly and thereafter he should commence the recording of evidence if in his opinion he is satisfied as to the child's capacity to give evidence. If the Judge is not so satisfied he should decline to examine a child witness. The question of administering an oath to a child witness for the purpose of recording evidence could also be determined separately.
If the child is otherwise mature and can understand the questions and make rational answers though he is not able to understand the obligation of an oath, his evidence without administering the oath could still be recorded and taken into consideration. Omission to administer the oath would not invalidate the proceedings or render the evidence inadmissible. It is a duty of the Court in all such cases to record a finding on these points in order to enable the appellate Court to properly assess the evidence s recorded. In the absence of such an enquiry and determination of these questions much reliance cannot be placed on the evidence of P. W. Salim.
7. The evidence of P. W. Uzma, however, appears to be reliable and true and it is corroborated by the medical evidence and the surrounding facts and circumstances. Mst. Uzma had informed her sister immediately after the incident and also her father on arrival at home. The medical evidence positively showed that rape had been committed on her and the abrasion on her face corroborated that the act had been performed without her consent, although in the case of Mst.
Uzma any such consent would be immaterial she being a- girl of 12 years of age.
8. Syed Nasiruddin has argued at length regarding the necessity of corroboration of the evidence of prosecutrix in cases of rape. It might, however, be pointed out that this is only a rule of guidance and has come to be regarded as a rule of prudence to guide the Courts in assessment of the evidence of the prosecutrix. Ordinarily the solitary evidence of the prosecutix when she is a woman of full age is not accepted as sufficient particularly in cases where such woman appears to be a willing party. Absence of an injuries and the fact that the woman was used to sexual intercourse would lend support to the version that the alleged intercourse may not have been performed against her wishes. In such cases the Court would be well advised to treat the woman or the prosecutrix as an accomplice and insist on the necessity of additional evidence to prove whether the story of the complainant could be regarded as true. In cases such as these corroboration is require to prove the fact of rape and to connect the accused with the crime. Where on the other hand the prosecutrix was a girl of tender age and a virgin, no used to sexual intercourse, and her story finds support from the marks o violence on her person and the injuries on her private parts, she could not be regarded as an accomplice she being a victim of the outrage. Where she is a victim and there is nothing to doubt the identity of the culprit, nothing more would appear to be necessary to connect the culprit with the offence other than the evidence of the prosecutrix. Thus the rule as to corroboration is one for guidance of the Courts and is not a rigid rule of law. If the circumstances show a woman of mature age used to sexual intercourse and her conduct raised a suspicion that she might have been a willing party, her story would certainly require strong corroboration as she could be regarded as an accomplice. But where the prosecutrix is a minor girl and she has been the victim of the outrage she cannot be regarded as an accomplice and her evidence has then to be decided by the ordinary principles suggesting its intrinsic worth or credibility. In such cafes the conduct of the girl may be more than enough to justify acceptance of a story. These principles have been laid down by the Courts in their decisions from time to time. In Mumtaz Ahmed Khan v. The State (1968 P Cr. L J 1818 (2)) it was observed that where the prosecutrix was a woman of full age and married and her statement was practically unsupported by circumstantial evidence such as the long delay in recording of her statement by the police etc. Her evidence was not considered sufficient to establish charge of rape beyond reasonable doubt. This principle had been enunciated in an earlier decision of the Supreme Court in the case of Muhammad Abdul Khulig v. State (PLD 1960 SC 325) that the Court had to see whether the state--ment of the prosecutrix was in accordance with all probability and bad all appearance of having been honestly made. Before finding the accused person guilty of rape the Court should be satisfied that the woman's story is corrobo--rated either by circumstantial evidence connecting the accused person with the crime or at least by some circumstances which would by itself show that the story of forcible intercourse was true. In a recent decision of the Lahore High Court in Zarif Khan v. The State (PLD 1960 SC 325), it was observed, that where the case against the accused rested on the evidence of the prosecutrix who was a girl of 10 years corroborated by the statement of lady doctor who found the hymen of the unfortunate girl to have been subjected to forced sexual intercourse, it was held that the accused had been rightly convicted. This finding was arrived at even in the absence of finding of any blood or semen on the clothes of the girl. It was remarked in the judgment, that Mst. Sahib Khatoon was a girl of 10 years and the question of her being a consenting party did not, therefore, arise. That she had not received any injury in the struggle as she was not capable of putting up any struggle against her ravisher; that she had hardly any motive to falsely implicate the accused. In AIR 1940 Cal. 4C(?), it has been observed that there is no presumption of law which differentiates the evidence of the complainant in a rape case from that of the complainant in the case of any other offence. There can be no assumption in the absence of evidence that she is an accomplice. In the case of a prosecution for rape the statement of the girl to her mother and the neighbours shortly after the incident complaining against the accused is corroborative evidence under section 167 and section 8, illustration (j), Evidence Act. Ordinarily in case of prosecution for the offence of rape a Judge may warn the jury that it is unsafe to convict accused on the uncorroborated testimony of the prosecutrix. But the Judge may also add that if the jury is satisfied of the truth of her evidence they may after paying attention to that warning nevertheless convict. In a recent Bombay case reported in AIR 1965 Bom. 154 the accused who was convicted for an offence under section 376, Penal Code for rape of a girl of 4 years was acquitted in appeal. The offence was committed when the mother of the girl had gone out to wash clothes. The another deposed that when she returned home she saw the girl answering call of nature outside in the open and on questioning she told her that the accused had placed her on his lap and blood came out. The other circumstances in the case were that the private parts of the girl did show that she had been raped and further that the blood stains on the clothing of the accused strongly suggested that he could be the offender. Held, that all the circumstances put together would necessarily lead to the only conclusion that it was the accused who had committed the offence and hence the order of acquittal should be set aside.
9. Lastly there is case of our own High Court in Saleh Muhammad v. The State (PLD 1966 Kar 101).
The prosecutrix in that case was a major foreign girl of 24 years named Mrs. Tabias Catherine, a national of Luxumberg. She had admittedly pre-marital intercourse with her fiance. She came to Pakistan and in the course of hitch-hiking she was raped by an S. D. O. Of P. W. D. Who had offered her a lift in his jeep. After the commission of tape, she had gone and reported the incident to the police. There was absence of injuries on the private parts and no evidence of any semen or other stains. Nor was there any other corroborative evidence. It was observed by Faruqui, J., that "in a case of this kind after taking into consideration all the circumstances if the conclusion is reached that the woman's statement has been honestly made and is in accordance with all probabilities, then the Court would not refuse to sustain the conviction of the accused on the ground that there should have been some corroboration. In the present case I have pointed to the various circumstances which leave no doubt as to the truthfulness of the story of the complainant and render it safe to accept her evidence in all material parts for the purposes of basing the conviction for the offence of rape." Reference was made to Bombay decision that nature of the corroboration must necessarily depend on the facts of each particular case; that the emphasis on the corroboration had been laid only where the woman's story itself has been found to be infirm or un- -natural in certain respects. In this respect an Indian decision in the case of Rameshwar v. The State of Rajasthan (AIR 1952 SC 54) was also quoted, that "the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and injury cases must find place in the charge, before a conviction without corroboration can be sustained".
10. Applying these principles to the present case, I find that this is a case of a girl of 12 years who has been subjected to forcible intercourse by a milk-seller of 28 years residing in the neighbourhood. He had known that the inmates of the house went out to attend to their work during the day and at that particular hour the girl would be alone with the children. He also knew that although the front door was locked the back door could be got opened. He had accordingly entered the house by getting back door opened and the evidence of the girl would show that he had committed the sexual intercourse by silencing the girl with his hands. The medical evidence clearly shows that there was an abrasion on the left cheek of the girl 1/4' x 1/6. There was further evidence that the girl had been a virgin and this was the first time that entry had been effected in her vagina, tearing, the h*men at 6 O'clock position. This tear was fresh. The girl had complained to her sister and her father and the matter was reported to the police the same night.
11. Syed Nasiruddin has pointed out that mere presence of semen on the shalwar of the girl and the accused would not be sufficient as there should have been blood at the scene of offence, on the wooden bench or on the floor. The amount of injury to the hymen and genital canal for the purpose of discharge of blood would, however, depend upon the decree of proportion between the genital organs of both the parties and the violence used on the female. A small tear in the hymen as in the present case may not cause discharge of so much blood as to stain the wooden bench and the floor. Mere absence of the blood at the scene would not, therefore, indicate that no intercourse had been effected. The medical evidence on the other hand is positive that rape had been committed on this girl of 12 years. This is further corroborated by presence of semen on her shalwar and the shalwar of the accused.
12. It has been pointed out by Syed Nasiruddin that the accused was not asked any question regarding the presence of semen as per the report of the chemical examiner. The accused had, however, denied the entire incident including his entry in the house and commission of any intercourse with the girl. A question was generally put regarding the prosecution evidence to which the accused stated that the same was incorrect. He also denied that he had an intercourse with the girl. It is true that under sec--tion 342 the Court shall question the accused generally on the case after close of evidence. There is, however a conflict of opinion as to the effect r of non- compliance with the provisions of the section. One view taken in some decisions was that non- compliance as to an express provision as to a mode of trial could not be a mere irregularity. A contrary view was however, expressed in another set of decisions that non-compliance with the section does not vitiate the trial unless the accused had been prejudiced by the procedures adopted; that a conviction should not be set aside unless failure of justice has been occasioned.
13. In the present case there is substantial compliance with the provision of section 342 and several questions have been put to the accused. The report of the chemical examiner has not, however, specifically been put in the form of a separate question. The observations of the Cornelius, J., in this respect in the case of Muhammad Sonafar Ali v. The Stare (1969 SCM R 461) would be helpful to dispose of this objection. In that case the accused was being tried for murder. The Sessions Judge examined the accused in a very superficial manner and did not take pains to state to him the circumstances appearing in evidence against him. It was urged before the High Court that Sonafar Ali had not been provided with a proper opportunity to put forward an explanation of certain circumstances. The learned Judges of the High Court with justification made strong observations in their trial disapproving of the superficial manner in which the trial Court had performed its functions under section 342, Cr. P. C. They went on to remark, however, that it had not been shown to them in what manner Sonafar Ali could be thought to have been prejudiced by this failure of duty on the part of the trial Court. They were accordingly convinced that there had been no serious prejudice cause and they, therefore, declined to set aside the trial or conviction. It was observed by the Supreme Court as under:- "The omission by the Sessions Judge is indeed a serious one. This Court, and its predecessor the Federal Court have had occasion to remark upon such a defect appearing in other cases, and the impression is gained that it is necessary for the safe dispensation of justice, that where this has not already been done, necessary instructions of general character should be issued to the trial Courts, by such means as may be available to the High Court in law, with the object of ensuring that the valuable right of furnishing explanations in respect of all evidence and circumstances adduced against an accused person should be made available to him, by taking the precaution at the time of his examination under section 342, Cr. P. C. Of putting to the accused person each piece of evidence and each circumstance having an incriminatory effect as against him in relation to the offence charged.
In present case, however, we would not hesitate in agreeing with the High Court that no prejudice has been caused to the accused by the perfunctory nature of his examination under section 342, Cr. P. C. The facts sufficient for the conviction namely, his presence near the scene of the crime with a gun immediately after the occurrence, and that the gun with which the murders were committed was the precise weapon which had been issued to him and which in his possession at the relevant time, were plainly established by the evidence, and Sonafar Ali being a police constable may be assumed to be aware of the nature of this evidence and that, when taken with the proof of the motive and of his conduct at relevant times, this evidence was entirely sufficient to show that he and he alone was the author of the two murders. Therefore, by the mere production of this evidence it may be safely assumed that had he had any explanation to offer which might have been consistent with his innocence, he was sufficiently conscious of the danger in which he stood at his trial to have put forward this explanation without the necessity of any suggestions from the Court."
14. In the present case also the whole case was sufficiently put to the accused and he had not only declined to explain any circumstances, but his defence was a bare denial suggesting that he had been falsely implicated due to a quarrel which occurred a week before the alleged incident with the son of the complainant. His clothes had been secured by the police, the mashir had been examined, the clothes must have been produced in Court and he was sufficiently conscious of that particular piece of evidence. He, however, did not find it necessary to offer any explanation even on his own, though that particular question was not put to him. He had been asked whether he had anything else to say and he replied in the negative. Therefore, I have no hesitation in corning to the conclusion that though the Additional Sessions Judge had failed to put the proper question and his examination was not properly done, this omission had in no way caused prejudice to the accused in his defence.
15. In the result the conviction and sentence passed against the appellant are maintained and his appeal is dismissed.