2006 S C M R 360

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Mian Shakirullah

Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmood and
Dr. Rashid Ahmad Jullundhari, Members

RASHEED AHMAD----Petitioner

versus

THE STATE----Respondent

Criminal Petition No.34(S) of 2004, decided on 15th November, 2005.

(On appeal from the judgment, dated 3-6-2004 of the Federal Shariat Court, Islamabad
passed in Criminal Appeal No.133/L of 2003).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Constitution of Pakistan (1973), Art.203-F(2B)---Victim girl aged eight

years was deaf . and dumb---Lapse on the part of the Investigating officer to examine
the victim through a Teacher of Deaf and Dumb School was of no benefit to the defence
in the absence of any strong reason or motive for false implication of accused in the
case---F.I.R. was promptly lodged after the incident and the victim girl was got
medically examined on the same day---Opinion of the Lady Doctor and the report of
the Chemical Examiner had proved that the girl had been subjected to sexual
intercourse---Vaginal swabs of the victim were found to be stained with semen and
blood---Father of the minor deaf and dumb girl could not be supposed to have made a
false allegation against the accused at the cost of his family honour---Ocular evidence
was consistent, straightforward and convincing on all material particulars, which had
been deeply scrutinized and appraised by the Courts below in its true perspective
without misconstruing any part of the incriminating evidence---Petition was also barred
by time of 53 days for which so plausible explanation had been furnished---Leave to
appeal was refused to accused on merits as well as on the ground of limitation in
circumstances.

Mst. Siani v. The State PLD 1984 FSC 121; Mst. Elahi Sain v. The State 1986 SCMR
148 and Muhammad Ali and another v. The State 1987 PCr.LJ 671 ref.
Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 15th November, 2005.

JUDGMENT

JUSTICE RAJA FAYYAZ AHMED (MEMBER).--- By this criminal petition, leave

to appeal has been sought for from the judgment of the learned Federal Shariat Court,
Islamabad, dated 3-6-2004, whereby Criminal Appeal No.133-L of 2003 filed by
petitioner, Rashid Ahmed, has been partly allowed by the learned Federal Shariat Court,
maintaining his conviction under section 10(3) of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979, hereinafter referred to as "the Ordinance", and the sentence
of 25 years awarded to the petitioner under the above said section by the Additional
Sessions Judge, Rahim Yar Khan was reduced to 15 years' R.I. He was acquitted under
section 11 of the Ordinance with benefit of section 382-B, Cr.P.C. extended in his
favour in case Crime No.130 of 2002 dated 5-3-2002 of Police Station Saddar, Rahim
Yar Khan.

2. The brief facts of the case are that pursuant to the written complaint dated 5-3-2000
Exh.P.C. submitted to the S.H.O. of Police Station Saddar, Rahim Yar Khan by
Mukhtar Ahmed P.W.3, father of the victim girl/minor, the above mentioned F.I.R. was
registered on the same date at 8-30 p.m., wherein it has been disclosed by the
complainant that he is resident of Mouza Khairpnr, Tehsil and District Rahim Yar Khan.
His daughter Sanam Bibi congenitally deaf and dumb went out of the house at about 3-
30 p.m. on 5-3-2002 to a shop for purchasing some sweets, but did not return. On which,
he along with Mehr Din P.W.4 went in search of her and when they reached near the
house of petitioner, Rashid Ahmed son of Abdul Malik, heard hue and cries of his
daughter, so they entered into the house of the petitioner and saw that the petitioner
was committing Zina-bil-Jabr with his daughter having removed her Shalwar, who
thereupon; fled away on noticing their presence. He lifted the girl smeared in blood
and took her to the police station along with Mehr Din P.W.4.

3. After registration of the case under sections 10(3)/11 of the Ordinance, the victim
girl was sent to the hospital for medical check up. The statements of the P.Ws.
under section 161, Cr.P.C. were recorded by the Investigating Officer but failed to
record the statement of the victim girl, as she was a deaf and dumb person. The
Investigating Officer inspected the place of incident and prepared the site plan and
on receipt of M.L.C. of the victim of the offence arrested the nominated accused
and submitted incomplete challan in the Court, as the report of the Chemi cal
Examiner to whom vaginal swabs of the victim were sent for examination was still
awaited. Subsequently, on receipt of report of the Chemical Examiner, complete
challan No.665 of 2002 was submitted in the Court of learned Additional Sessions
Judge Rahim Yar Khan, hereinafter referred to as "the learned trial Court".

4. The accused was indicated in view of the accusation, as contained in the report
and incriminating material produced with the challan under sections 10(3)/11 of
the Ordinance, to which he did not plead guilty.

5. The prosecution in order to substantiate the accusation, produced seven

witnesses. Dr. Maqsood Hussain C.M.O., Sh. Zaid Hospital, Rahim Yar Khan P.W.
medically examined petitioner Rashid Ahmed on 15-3-2002 in respect of his
potency and submitted and produced M.L.C. containing positive findings as
Exh.P.A.

Lady Dr. Saima Zulfiqar, W.M.O. Sh. Zaid Hospital, P.W. 2 medically examined
the victim girl aged about 8 years and found her to be deaf and dumb. On external
examination no mark of violence on her body was seen and on internal examination
i.e. p.v.; the lady doctor in her M.L.C. Exh.P.B. recorded the following findings: -

"Internal examination

On internal examination, I found vulva of healthy, midline tear in perineum

about 2 x .5 c.m. involving posterior forchette with muscle deep, small
inceration in internal vaginal wall was present about 1 x .5 c.m. Hymen was
absent. Vagina admitted one finger, bleeding present. Three vaginal swabs
were taken for onward transmission to the Chemical Examiner.

Final report

On the basis of my above examination intercourse has been attempted on the above
mentioned girl. But the evidence of fresh intercourse depends upon the report of
Chemical Examiner. I noted the following marks of identification on the body of
the examination.

(1) A scar mark above left eye.

(2)A mole on mid of nose in upper portion.:

After completion of the medical examination of the victim girl, she handed over
copy of the M.L.C. Exh.P.B. to the A.S.-I. including a sealed envelope comprising
of a bottle, which contained vaginal swabs for onward transmission to the Chemical
Examiner.

Mukhtar Ahmed complainant P.W.3, is father of the victim, deposed inline to what
he stated in the report made by him before the S.H.O. of said police station.

Mehr Din P.W.4 supported to the version of Mukhtar Ahmed P.W.3. He deposed
that on 5-3-2002 at about 3-30 p.m. on the disclosure of P.W. Mukhtar Ahmed that
his daughter had not come back, therefore, they should go to search her. He along
with Mukhtar Ahmed father of the girl started the search of the victim girl and
when they reached in front of house of the petitioner present in the Court,
they heard the shrieks of Sanam Bibi from the house of the petitioner, who on seeing
them made good his escape and they had seen the petitioner committing Zina-bil-
Jabr with the girl in a room of the house, which was open at that time. According
to the P.W., they attended the minor girl, lifted by her father and took her to the
police station, where report was lodged and the blood-stained Shalwar of the victim
was also taken into possession by the Police Officer produced as article P.1 and
seizure memo. was produced by the witness as Exh.P.D.

Rana Muhammad Ashraf, I.P. P.W.5 registered the formal F.I.R. Exh.P.C.1 on
submission of complaint Exh.P.C. and sent the victim girl Sanam Bibi to the
hospital for medical examination. He produced the site plan prepared by him after
visiting the place of occurrence as Exh.P.E. and took into possession th e blood-
stained clothes of the victim consisting of Shalwar and shirt produced as articles
secured vide memo. Exh.P.D. He arrested the accused on 14-3-2002 and on the
next following day submitted application to the Illaqa Magistrate Exh.P.A./1 for
the medical examination of the accused and prepared incomplete challan.

The sealed parcel containing swabs were handed over to constable Habib-ur-
Rehman P.W.6 by Munir Ahmed Moharrir for onward transmission to the office of
Chemical Examiner, Multan and till such time the sealed parcel remained in the
Malkhana duly intact.

6. The petitioner in his examination made by the learned trial Court under section 342,
Cr.P.C. in the light of the incriminating evidence adduced at the trial, denied and
disputed the same in toto. In answer to question No.4, he explained that it was not
possible for him in such eventuality to escape from he scene of incident and while
answering to questions Nos.8 and 9, he stated that P.Ws. are related to the complainant
party and inimical towards him and because of political rivalry he has been implicated
in the case by the police and further submitted that he is father of a daughter and the so-
called victim girl is like his daughter. He did not record his statement on oath in disproof
of the charge within the purview of section 340(2), Cr.P.C. and produced only one
witness in defence namely, Khan Muhammad A.S.-I. of Police Station Saddar Rahim
Yar Khan as D.W.l, who produced copy of application dated 5-3-2002 Exh.D.A.
submitted to the Illaqa Magistrate, Rahim Yar Khan seeking direction of the Court for
medical examination of the victim.

7. We have heard the learned senior Advocate Supreme Court for the petitioner at
length. He contended that the evidence produced by the prosecution has been
substantially misconstrued and misapplied by the learned Courts below inasmuch as;
commission of alleged offence has not been proved beyond shadow of any reasonable
doubt. He argued that the petitioner, in view of the well-settled principles of safe
administration of criminal justice envisaged by the Islamic Law and Jurisprudence, is
entitled to earn acquittal on account of inherent doubts of substantial nature in the
prosecution case. The learned senior Advocate Supreme Court in the light of the opinion
given by the lady doctor strenuously argued that at best an act of attempt to commit
Zina?bil-Jabr, spells out as per expert opinion, which too does not connect the petitioner
with the commission of offence. The learned counsel in view of the expert opinion and
findings recorded in the M.L.C. of the victim argued that no penetration was
made/appears to have been done, therefore, conviction of the petitioner under section
10(3) of the Ordinance is not sustainable. In support of his above contentions reliance
has been placed on the reported judgments i.e. (1) Mst. Siani v. The State PLD 1984
FSC 121; (2) Mst. Elahi Sain v. The State 1986 SCMR 148 and (3) Muhammad Ali and
another v. The State 1987 PCr.LJ 671.

8. The contentions put forth on behalf of the learned counsel have been considered in
the light of the record of the case and the impugned judgments passed by the learned
Federal Shariat Court and the learned trial Court, gone through carefully and minutely.

9. Admittedly, Sanam Bibi at the time of incident was about 8 years of age and was also
deaf and dumb. She was examined by the lady doctor with the consent of her father
Mukhtar Ahmad P.W.3, therefore, in the same manner she could have been examined
by the Investigating Officer being a deaf and dumb through any teacher of a deaf and
dumb school being a principal witness of the incident but such course was not adopted
by the Investigating Officer despite being under legal duty to do so but such lapse on
the part of the Investigating Officer in the peculiar facts and circumstances of the case
would not be of any benefit to the defence in absence of any strong reason or motive
for false implication of the accused in the case which lacks. The F.I.R. after the incident
was promptly lodged and on the same date Sanam Bibi aged about 8 years was produced
by the Police Officer before the lady Medical Officer for medical examination, who
testified in the M.L.C. that Sanam Bibi daughter of Mukhtar Ahmed aged about 8 years
(female), produced by the police for her medical examination and it has been noted after
examination that there was a midline tear in perineum about 2 x .5 c.m. involving
posterior fourchette muscle deep and small laceration in the internal vaginal wall was
present about 1 x .5 c.m. and hymen was absent. Vagina admitted one finger and
bleeding present. She took the vaginal swabs for onward transmission to the Chemical
Examiner. On the basis of the above findings, she opined that intercourse has been
attempted on the above mentioned girl and the findings regarding fresh intercourse
depend upon the result of Chemical Examiner. The Chemical Examiner Report Exh.P.F.
was produced, which shows that the packet with intact seals of W.M.O. containing three
samples of vaginal swabs on examination found to have been stained with semen and
blood. Therefore, as per opinion of the Chemical Examiner and even the lady doctor it
has successfully been proved that the victim girl was subjected to intercourse. The
swabs were found stained with semen as well as; blood which if be read together with
the findings recorded by the lady examining Medical Officer in the M.L.C. proved at
the trial, leads to irresistible conclusion that the victim/minor girl was subjected to
intercourse, as it was found that the hymen of the victim was absent and vagina admitted
only one finger, bleeding present in addition to other observations of examining
Medical Officer mentioned above, therefore, it cannot be said that the victim girl was
not subjected to intercourse and no sexual penetration was made on her person. The
findings recorded by the lady Medical Officer on internal examination of the vulva of
the c victim coupled with the report of Chemical Examiner proved the fact up to the hilt
that the girl was subjected to sexual assault to which no exception can be taken. The
evidence of the lady Medical Officer could not be discredited or impeached on cross-
examination and there being no material to rebut such evidence. Consequently, the
contentions of the learned counsel that, as per opinion of Medical Officer an attempt
for sexual assault was made on the person of the victim is totally misconceived and
devoid of any substance. The findings recorded by the lady Medical Officer in respect
of the internal examination of the victim noted above abundantly lends support to the
version of the ocular witnesses, especially the father of the minor/deaf and dumb, who
would not in any case prefer to make a stigma upon his family honour by making a false
allegation of such a nature against any person. The evidence of the ocular witnesses
have been scrutinized and appraised in dept by the learned trial Court, as well as; by the
learned Federal Shariat Court in its true perspective and no part of incriminating
evidence has been misconstrued or misapplied by the learned Courts below. The case-
law cited by the learned counsel for the petitioner have been considered, which lend no
support to his contention nor relevant to the facts and propositions canvassed before us
by the learned senior Advocate Supreme Court. No case for attempt to commit Zina-
bil-Jabr appears to have been made out in the light of the prosecution evidence nor it
emerges so from the incriminating evidence adduced at the trial nor from the evidence
of the ocular witnesses any reasonable doubt can be gathered to be extendable in favour
of the petitioner. The evidence of the ocular witnesses on all the material particulars is
consistent, straightforward, convincing and fits in the circumstances of the case to
which no exception can be taken. Moreover, this petition is barred by time having been
filed after the lapse of 53 days beyond the prescribed period of limitation for which no
plausible and cogent reasons have been provided to condone the delay, as such; this
also fails on the ground of limitation as well.

10. Thus, for the foregoing reasons no case for leave to appeal has been made out,
therefore, this petition is dismissed and leave to appeal is I refused.

N.H.Q./R-
43/SC???????????????????????????????????????????????????????????????????? Lea
ve to appeal refused.