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Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
2
JUDGMENT:
Justice Shahzado Shaikh, ACJ:
2. Brief facts of the case arising out of F.I.R No.187/2005
dated 20.04.2005 Ex.PD registered under section 10 of the Offence of
Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station
Bhalwal, District Sargodha as narrated by complainant Muhammad
Yasin PW-6, are that he alongwith his family members was cutting
wheat crop of one Ahmad Yar Kahoot, on 20.04.2005. On that day, at
2:30 p.m, the complainant asked Mst.Sadia, his daughter, to bring water
from the Dera. After about 20 minutes, he heard the cries of Mst.Sadia
Bibi upon which they rushed towards the Dera. When they reached
- This appeal has been
moved by appellant Mazhar to impugn judgment dated 09.01.2009
delivered by learned Additional Sessions Judge, Bhalwal whereby he
was convicted under section 10(3) of the Offence of Zina (Enforcement
of Hudood) Ordinance VII of 1979 and sentenced to 25 years rigorous
imprisonment with benefit of section 382-B Cr.P.C.
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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near the orchard of Ahmad Yar Kahoot, Advocate, they saw that
accused Mazhar had put off the Shalwar of Mst.Sadia Bibi and was
committing Zina with her. In the meanwhile, Sarja and Amir also
rushed to the spot and saw the occurrence. Accused Mazhar was not
wearing Shalwar at that time. He after taking his Shalwar, succeeded in
fleeing away from the spot. The complainant and the PWs attended
Mst.Sadia Bibi who was in semi conscious condition.
3. The case was duly investigated; the accused was arrested
and statement of the PWs were recorded under section 161 Cr.P.C.
After investigation, challan was submitted in the Court against the
accused to face the trial. The learned trial Court framed charge against
the accused on 19.01.2006 under section 10 (3) of the Offence of Zina
(Enforcement of Hudood) Ordinance VII of 1979. The accused did not
plead guilty and claimed trial.
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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4. The prosecution in order to prove its case produced 08
witnesses at the trial. The gist of the evidence of prosecution witnesses
is as follows:-
i) PW-1: Muhammad Bakhsh ASI was handed over one
sealed envelope by the Investigating Officer which he further
handed over to Constable Wafadar Ahmad on 22.04.2005.
ii) PW-2: Constable Wafadar Ahmad corroborated the
statement of PW-1 ASI Muhammad Bakhsh.
iii) PW-3: Constable Ghulam Hussain was handed over one
sealed envelope by the lady doctor which he further handed over
to the Investigating Officer, intact. It was taken into possession
by the Investigating Officer vide recovery memo Ex.PA.
iv) PW-4: Dr.Fazal Rasool conducted potency test of the
accused Mazhar and found him fit to perform sexual intercourse.
v) PW-5: Lady Dr.Yasmeen Naeem medically examined the
victim Mst.Sadia and observed as under:-
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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“Hymen torn with fresh heavy bleeding. A lacerated wound (tear) on the upper and lower vaginal walls. Fresh heavy bleeding was positive.”
In the opinion of this witness, the examinee was subjected to
sexual intercourse.
vi) PW-6: Yaseen is complainant of the case. He not only
supported the occurrence but also corroborated the
proceedings initially conducted by the Police after
registration of the case.
vii) PW-7: Mst.Sadia aged about 10 years is victim of the
case. Her statement was recorded after finding her
competent to adduce evidence by putting her certain
questions to test her wisdom and orientation . She not only
supported the occurrence but also corroborated the statement
of complainant Yaseen PW-6 and the proceedings
subsequently conducted by the Police.
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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viii) PW-8: Sarja made his statement on 18.05.2006. He
stated that about one year ago they were cutting the wheat
crop; it was about 2:30 p.m when they were at the distance
of four acres, they heard hue and cry of the victim, the
mother of the victim reached first and then they reached at
the place of occurrence. When they reached at the place of
occurrence the victim was in precarious condition and
bleeding was oozing. On seeing them the accused tried to
run away but he was caught hold by brother of the victim
and accused was locked in the room. The victim told them
that the accused had committed Zina with her. This witness
joined the Police investigation but the Police only asked his
name and the name of his father.
ix) Moharrar Muhammad Bukhsh made his
supplementary statement on 11.03.2007 and stated that he
was well conversant with the handwriting of Ghulam
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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Murtaza S.I since dead. FIR Ex.PD was in the handwriting
of said Ghulam Murtaza. The recovery memo in sealed
envelope Ex.PA was prepared by the said S.I. He further
stated that according to the investigation of Ghulam Murtaza
S.I, the accused was found guilty of the offence.
5. The learned trial Court thereafter examined accused
Mazhar under section 342 of the Code of Criminal Procedure on
09.04.2008. He, inter-alia, pleaded his innocence. In reply to the
question “why this case against you and why the PWs deposed against
you?” the accused Mazhar stated as follows:-
“PWs have deposed against me falsely due to relationship with the victim and complainant. I am driver of Abdur Rehman Koot, Nazim Union Council and Yaseen complainant is personal servant of Abdur Rehman Koot. I was engaged with the daughter of the complainant/victim. I demanded my two years salary from the said Nazim who promised that he will give the hand of victim/daughter of complainant Yaseen. In the mean time, the complainant refused to give me the hand of his daughter/victim. When I demanded my salary from Nazim, a quarrel was taken place between me and said Nazim Union Council. Nazim abused me and I gave slap to Nazim. The Nazim with the help of other servants detained me in a room till five days and then in the connivance with the Police and doctor
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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and complainant falsely involved me in this case. PWs are personal servants of said Nazim due to this reason they deposed falsely against me.”
6. The accused neither made his statement under section
340(2) of the Cr.P.C nor produced any defence witness.
7. Learned counsel for the appellant while arguing the case
has raised the following points:-
i) That no weapon of offence was either reported or recovered from
the appellant.
ii) That the appellant and complainant were working with the same
Zamindar and the said Zamindar had enmity against the appellant.
iii) That no independent witness has been produced by the
prosecution.
iv) That no DNA test or matching has been made.
v) That no sign of violence on the body of the victim has been
reported.
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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vi) That the accused is a first offender. He has no criminal history or
record.
vii) That the I.O died and no cross examination could be conducted
against him.
viii) Mother of the victim who was reported to have reached the place
of occurrence has not been produced as witness,
ix) Site Plan has not been signed by any private witness.
viii) There are infirmities in the evidence of the prosecution, and
mitigating circumstances in the case, which need to be considered for
lesser sentence.
x) While appearing as her own witness, the victim girl stood the
orientation test, which indicates that she was a well grown up girl,
In this connection he has placed reliance on the following judgments:-
PLD 1958 Dacca 111
1997 P Cr.L.J 556 (FSC)
PLJ 1980 page 58
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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1986 SCMR 122
PLD 2011 S.C page 554
As a last resort, the learned counsel has alternatively submitted that
the sentence be reduced to the one already undergone by the appellant.
8. Learned D.P.G assisted by complainant Muhammad Yasin
in support of their contention, raised the following points:-
i) That the FIR was promptly lodged.
ii) That the occurrence is of about 2:30 p.m whereas the FIR was
recorded at 4:10 p.m on the same day.
iii) That recovery of weapon of offence is not relevant as the same
has not been alleged that the appellant was armed with any weapon at
the time of commission of the offence.
iv) That mother of the victim was not produced as it is not deemed
appropriate in our society to produce the women in the Courts,
particularly in a case of rape, like this, and the best possible evidence
has been produced by the prosecution.
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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v) That there is no substitution and the appellant has rightly been
nominated as he was seen by the witnesses while committing the
offence.
vi) That from the medical examination which was conducted within
03 hours of the occurrence, it reveals that there was bleeding from the
vagina of the victim and report of the Chemical Examiner being
positive corroborates the prosecution story that rape was committed
with the victim.
vii) That the appellant was reported to be physically potent.
viii) That only single accused/appellant Mazhar was nominated in the
FIR and solitary statement of the victim duly corroborated with the
medical evidence etc. is sufficient to convict the accused, therefore,
there was no need to get conducted the DNA or matching test.
ix) That the Investigating Officer died after completion of the
investigation, therefore, Moharrar Muhammad Bakhsh ASI who was
working with him in the same Police Station was produced to testify his
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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handwriting, signatures and the facts known to him although the said
Moharrar was not associated in the investigation, as such. However,
report under Section 173 Cr.P.C prepared by the Investigating Officer
has not been challenged by the appellant side.
The record shows that he was not cross-examined by the
prosecution.
x) That the sentence awarded by the learned trial Court is most
appropriate and commensurate with the severity of the offence.
xi) That the I.O’s report has not been challenged
xii) That keeping in view the above mentioned circumstances, there
is no mitigating circumstance which could justify reduction in the
sentence.
9. We have heard the learned Counsel for the parties and
perused the record with their assistance.
10. This is an unfortunate case wherein a minor girl Mst. Sadia
Bibi, aged 9/10 years was forcibly subjected to sexual intercourse by
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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appellant Mazhar. Occurrence took place on 20.04.2005 at 2.30 p.m.
and FIR was promptly lodged on the same day at 4.10 p.m. by
Muhammad Yasin complainant wherein the complainant had
categorically levelled allegations of zina-bil-jabr with her minor
daughter Mst. Sadia Bibi, victim by Mazhar, appellant. The
complainant appeared at the trial as PW.6 and recorded his version as
contained in the FIR. PW.8 Sarja is an eye witness who reached at the
place of occurrence on hearing the hue and cry of the victim and at that
time the occurrence had been committed. He found the victim in a
precarious condition. He while appearing as PW.8 fully supported the
version of the complainant. He was cross-examined but no material
question was put to him in order to establish innocence of the accused.
11. Mst. Sadia Bibi, victim appeared as PW.7. She being
minor at that time, the learned trial Court put some questions to her in
order to ascertain her ability to give evidence. Although she was of
tender age at that time yet she gave full account of occurrence in her
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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statement by testifying allegations of zina-bil-jabr against the appellant.
She was cross-examined but her veracity could not be shattered. Her
statement before the trial Court was recorded on 18.05.2006 and she
was cross-examined on the same day. In this view of the matter it seems
that she had given true account as there was no possibility to tutor her.
12. PW.5 Lady Doctor Yasmeen Naeem had medically
examined Mst. Sadia, victim on 20.04.2005 and gave her age as 9/10
years. She observed her hymen torn with fresh heavy bleeding and a
lacerated wound (tear) on the upper and lower vaginal walls. Her
condition was so severe that she could not bear deeper internal
examination by the lady doctor. After providing first aid to Mst. Sadia,
victim the lady doctor took three vaginal swabs and handed over to the
police. The lady doctor opined that she was subjected to sexual assault.
The report of Chemical Examiner is also positive as the swabs were
found stained with semen. Mst. Sadia was referred to Gynecologist at
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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DHQ, Hospital for further management. Her tears were stitched under
general anesthesia.
13. The ocular account, medical evidence and the statement of
the victim are all in line with each other and are sufficient to prove the
allegations levelled against Mazhar accused. The plea taken by the
accused in his statement under section 342 Cr.P.C. is not sufficient to
belie the prosecution evidence as it is not possible for a father to falsely
level such heinous allegation against the accused wherein the
honour/respect and whole life/future of his own daughter and entire
family is involved. Furthermore, if it is considered for the sake of
argument that there was a dispute of money, the same was not between
the complainant and the accused but between the accused and his
employer Abdur Rehman. It is inconceivable that a father/family would
have agreed to give their minor daughter in discharge of debt of some
other person. It is also entirely unbelievable that the appellant worked
and remained silent for two years without salary, without even referring
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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to a single occasion on which he demanded it. If this unbelievable plea
is admitted, then he would be more involved in totally condemnable
purchase/deal of a minor girl of some body else in consideration for the
alleged emolument. If he could go to such extent of inhuman
transaction, then he could also go to any extent, as in this case, to
realize immoral ‘return’ of completely illegal transaction. Anyway the
accused had not produced any material on record in the shape of
documentary evidence or by recording his statement on oath under
section 340(2) Cr.P.C. or by producing any witness in his defence, or
even by referring to any step for firming up or actualizing the
transaction, alleged to foment enmity of the complainant side, in order
to prove his plea.
14. The argument that no independent witness has been
produced by the prosecution does not seem to be correct as Sarja PW.8
is an independent witness from the village. Furthermore, in such cases
of zina bil-jabr, it is not matter of high probability that more witnesses
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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would be available. For a minor victim girl, father is the most natural
and legally responsible person (wali) to stand witness for her for the
sake of God, as a duty, and in their own interest.
15. The claim that no sign of violence on the body of the
victim was reported, has no material weight. To violate a minor girl’s
chastity to bleed, in itself is an appalling sign of violence on her
innocent person, so much so that she suffered hospitalization for
stitching under general anesthesia.
16. I.O died after presenting the challan, therefore his report,
writings, signatures, etc. all were verified by the police official working
closely with him in the same police station, without any ambiguity,
contradiction, or even any suggestion or question from the defence.
17. Demand, at this stage, that mother of the victim who was
reported to have reached the place of occurrence, should have been
produced as witness, is not sustainable, because no fact or link in the
chain has been attributed to her which she could be considered
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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necessary to complete the picture. General customary objection has no
specific object to assist and complete the process of justice.
Furthermore, in such Hadd cases, women witnesses are not required by
legal theory and practice of legal system of Islam.
18. Learned counsel for the appellant stated that while
appearing as her own witness, the victim girl stood the orientation test,
which indicates that she was a well grown up girl, is not legaly
sustainable, as couple of orientation questions, in no way provide any
proof of age or majority. Even by any farthest stretch of imagination, it
does not afford a license to the offender to violate person and piety of a
poor, minor victim girl.
19. The argument of the learned Counsel for the appellant that
no weapon was recovered from the appellant is of no value as no where
the complainant mentioned in the FIR or anywhere else that the accused
was armed with any weapon. Similarly there is no need to conduct
DNA test in this case as only one accused is involved in this case and
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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his offence has been established from the prosecution evidence of day
light seen occurrence, duly corroborated, on record. Furthermore the
accused himself had also not demanded DNA test, grouping or
matching. The prosecution has fully proved its case beyond any shadow
of doubt. The learned Counsel for appellant raised a point that there
was no eye witness at the time of actual commission of offence of zina-
bil-jabr as the complainant alongwith alleged eye-witnesses reached at
the spot after the occurrence. Natural narration of the prosecution shows
that it was on the cry of the minor victim girl during the forcible
commission of the immortal brutality that the parents were attracted to
reach her. Natural course of the occurrence nowhere suggests that the
appellant/accused had left the place of occurrence and the minor victim
was spotted afterwards in precarious medical condition. This point,
even otherwise, by itself is not sufficient to disprove the statements of
the complainant and eye-witness. It is settled proposition that in such
cases solitary statement of the victim is sufficient to prove the
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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prosecution case. In this case Sadia Bibi victim gave unimpeachable
evidence against the accused detailing specific act of zina-bil-jabr
against him. Her statement was corroborated by the medical evidence,
her father Yaseen complainant and Sarja PW.8. In view thereof, the
case is fully proved against the appellant.
20. The learned Counsel for the appellant at the end of his
arguments requested for reduction of sentence of the appellant, on the
plea that the appellant was first offender young man, but he has not
been able to point out proper mitigating circumstance in favour of
reduction of sentence. It was an occurrence of shocking nature, with a
little girl of 9/10 years, who was subjected to such brutality that she
remained in precarious condition and was admitted in hospital for many
days i.e. about nine days where her operation was conducted in order to
stitch tears on her private parts, under general anesthesia. In this view
of the matter no mitigating circumstance emerges on the record to
reduce sentence of the appellant.
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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21. Anyway since a plea of ‘first offender’ and ‘young man’
who has been awarded sentence of ‘life imprisonment’ for zina bil-jabr,
has been raised as ‘mitigating circumstance’, may need consideration,
as these terms are sometimes applied as misnomers, away from their
precise legal inference and implication.
22. ‘Mitigating’ means making something less harmful,
unpleasant or bad; that there may be mitigating circumstances/factors
which might help explain appalling behavior (Advanced Learner’s
Dictionary) or criminal activity of the offender. In this case no such
circumstance or factor has been brought on record, which may offer
even slightest explanation for the appalling behaviour.
23. Mitigating circumstance is “a fact or situation that does not
justify or excuse a wrongful act or offense but that reduces the degree
of culpability and thus may reduce the punishment (in a criminal case).
A fact or situation that does not bear on the question of a defendant's
guilt but that is considered by the court in imposing punishment and
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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especially in lessening the severity of a sentence. (Black’s Dictionary of
Law)
24. Guidance is also sought from following:
No mitigation when the act is cruel. Accused acquitted by High Court-Sentenced to death by Supreme Court. [PLD 1974 SC 266].
Supreme Court on deeper examination, of evidence and analysis of judgment passed by High Court observed that reasons assigned for mitigation of sentence were not supported by material on record and were based on conjectures, surmises and speculations which could hardly be upheld in the facts and circumstances of the case…. set aside the view taken by High Court and resored capital punishment awarded by trial court. Appeal was allowed. [PLD 2007 SC 80(b)].
25. Term ‘first offender’, has also to be seen carefully in
relation not only to severity and momentary course of crime, but also
with reference to proportions of its lasting effects. Condonation of
heinous crime of Rape with a minor girl, as a first offence, has very
serious repercussions not only for the victim or her family, but more so
for society and even more implications for moral ethos sustaining a
legal system, claiming scriptural stamp also.
26. No doubt it is highly deplorable that a ‘young man’ will
have to undergo a sentence for life. Although incomparable, precisely,
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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the poor minor victim girl will continue to bear ignominy and scar of
zina bil-jabr, for life, for her self and for family for generations, with
little possibility in our society to be accepted in respectable marital life.
Sufferings of the female victim may be more agonizing than those of
the male delinquent desperado.
27. In view of above, we are of the view that the prosecution
has fully proved its case beyond any shadow of doubt. The learned trial
Court has rightly convicted and sentenced the appellant and the
impugned judgment merits no interference.
28. For what has been discussed above, Cr. Appeal
No.15/L/2009 is dismissed and conviction and sentence awarded to
Mazhar, appellant by Additional Session Judge, Bhalwal vide
impugned judgment dated 09.01.2009 under section 10(3) of the
Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 to
twenty five years R.I. is maintained. The benefit of section 382-B
Cr.P.C. as awarded by the learned trial Court is upheld.
Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009
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29. It is pertinent to mention here that Mazhar appellant first
filed Jail Criminal Appeal No. 8/I/2009 which was admitted to regular
hearing on 29.01.2009 and a Counsel at State expense was appointed to
represent his jail appeal. Thereafter the appellant filed Cr.Appeal
No.15/L/2009 on 03.02.2009 through his private Counsel. Since
Cr.Appeal No.15/L/2009 is dismissed, therefore, his other appeal i.e.
Jail Cr. Appeal No.8/I/2009 has become infructuous and is dismissed
accordingly.
30. These are reasons of our short order dated 27.09.2011.
Justice Shahzado Shaikh Acting Chief Justice
Justice Rizwan Ali Dodani
Date Lahore the
M. Imran Bhatti/*
FIT FOR REPORTING.
Justice Shahzado Shaikh
Acting Chief Justice