JUDGMENT: Justice Shahzado Shaikh, ACJfederalshariatcourt.gov.pk/Leading Judgements/Justice...

Criminal Appeal No. 15/L of 2009 Jail Criminal Appeal No.8/I/2009

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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.


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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.


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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:-


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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.


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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


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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


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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.


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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


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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.


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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.


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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


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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,


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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.


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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

JUDGMENT: Justice Shahzado Shaikh, ACJfederalshariatcourt.gov.pk/Leading Judgements/Justice...

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