2018 P Cr. L J 1275
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SHAUKAT ALI ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 64 of 2017, decided on 31st October, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 376, 377 & 34 ---Rape, unnatural offence, common intention---Appreciation of evidence --
-Sentence, reduction in---Ocular account supported by medical evidence ---Prosecution case was
that the daughter of complainant and the witness were kidnapped by t he accused and acquitted
co-accused, in a vehicle and were taken to the abandoned place where accused committed Zina-
bil-Jabr with her ---Ocular account was furnished by the witnesses including complainant and
victim---Complainant of the case appeared as wi tness and reiterated the contents of her fard -e-
bayan and confirmed that the accused abducted the victim, took her towards jungle and
committed Zina -bil-Jabr with her ---Victim narrated the story with regard to her abduction, when
she was accompanied by wit ness, by the accused persons and accused committed Zina- bil-Jabr
with her ---Witness, who at the relevant time had accompanied the victim, had supported the
statement of victim---Statement of said witness to the extent of commission of Zina was corroborated by the victim---Medical Officer, who examined the victim had opined that
unnatural sex was committed with the victim--- Abrasions on different parts of the body of the
victim suggested that Zina was forcibly committed and the victim at the time of Zina mad e
resistance to rescue herself ---Victim being a minor child of about fourteen years failed in her
attempt to rescue herself due to which, she received abrasions on different parts of her body ---
Defence had objected that the case of prosecution lacked indep endent corroboration---Facts
remained that the crime had taken place in the abandoned area, where the presence of general public or third person to witness the crime was not possible ---Prosecution had produced direct
and medical evidence against the accused---Accused had failed to take any specific plea regarding false implication ---Medical evidence was in line with the ocular testimony ---
Prosecution had produced corroborative and confidence inspiring evidence and the defence had failed to cause any dent in the evidence of prosecution---Accused, in the circumstances, had
failed to point out any material illegality or irregularity in the impugned judgment---Trial Court however had harshly treated the accused by awarding the sentence of life imprisonment under S.
376, P.P.C. instead of S. 377, P.P.C. as S. 377, P.P.C. was attracted in the case of accused who had committed unnatural offence of sodomy with the victim ---High court interfered to the extent
of quantum of sentence in the circumstances, and reduced li fe imprisonment to that of three years
with reduction in fine ---Appeal against conviction was dismissed with the said modifications.
Kamran alias Kami v. the State 2012 PCr.LJ 1200 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 376 & 34 ---Rape, common inte ntion---Appreciation of evidence ---In presence of direct
evidence supported by medical evidence, report of serologist was always deemed to be
corroborative piece of evidence.
(c) Penal Code (XLV of 1860) ---
----Ss. 376 & 34 --- Rape, common intention--- Appreciation of evidence---Slight contradictions
in the statements of witnesses who were minors ---Effect ---Record showed that accused remained
fugitive from law for a decade---Witnesses, who were minors were not expected at the relevant time, to give tape -recorded statement after lapse of such a long period ---Memories became fade
after lapse of some time ---Minor or slight contradictions in the statements of such witnesses were
not fatal.
(d) Penal Code (XLV of 1860) ---
----Ss. 377 & 376--- Unnatural offence---Solitary statement of victim--- Evidentiary value ---In
case of sodomy or Zina, the solitary statement of the victim was sufficient to convict the accused.
Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 and Mushtaq Ahmed
and another v. The St ate 2007 SCMR 473 rel.
Taj Muhammad Mengal for Appellant.
Muhammad Yahya Baloch, D.P.G. for the State.
Date of hearing: 23rd October, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.64 of
2017 filed by the appellant Shaukat Ali son of Ali Dost, against the judgment dated 8th March,
2017 passed by learned Sessions Judge Noshki, (hereinafter referred as "the trial Court") whereby the appellant was convicted under section 376, P.P.C. and sentenced to suffer imprisonment fo r life, with fine of Rs.100,000/ - and in default thereof to further suffer three
years' S.I., with the benefit of section 382- B, Cr.P.C.
2. Facts of the prosecution case are that on 11th August 2006, the complainant Bibi
Haleema wife of Haji Khuwasti, lodg ed FIR No.49/2016 at Police Station Noshki, under section
10 of Zina (Enforcement of Hadd) Ordinance, 1979 read with section 34, P.P.C., stating therein that on the day of occurrence at about 10.15 a.m. her daughter namely Habiba in company of Yasir went t o the house of her girl friend at Killi Qaziabad and returned back at about 12.15 p.m.
On her return, she informed her mother (complainant) that when she and Yasir were on their way
towards Killi Qaziabad, the Shaukat and Shehzad, who were in a pickup came there and Shaukat
after alighting from vehicle forcibly boarded her and Yasir in front seat of his vehicle. During
which she was also told not to raise alarm, otherwise she will be killed and thereafter accused rashly proceeded towards a jungle at Kharan Road, where accused Shaukat alighting Shehzad and Yasir from vehicle taken her to some distance, where on front seat of vehicle he committed
Zina with her. It was further alleged that after doing so, accused Shaukat again took Yasir and
Shehzad in vehicle and proceeded towards Noushki and on arrival at Noshki she and Yasir were
alighted from vehicle and Shaukat including Shehzad proceeded towards Killi Jamaldini.
3. After registration of FIR, accused Shehzad was arrested, who was investigated by SI Sher
Ahm ed, who during investigation recorded the disclosure of the accused Shehzad, got conducted
the medical examination of victim, visited the place of occurrence and prepared site sketch; recorded the statements of witnesses under section 161, Cr.P.C. On compl etion of investigation
he was challaned before the trial Court and ultimately, he was acquitted of the charge. The present appellant was arrested 29th March 2015, who was subjected to investigation and on completion of investigation, the challan was submit ted in the trial Court for trial of the appellant.
4. At the trial, the prosecution produced eight (08) witnesses. The appellant was examined
under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court vide impugned judgment dated 8th March, 2017 convicted and sentenced the appellant as mentioned in para- I above, whereafter instant appeal has been fil ed
before this Court.
5. Learned counsel for the appellant argued that the evidence produced by the prosecution
suffers from material contradictions and dishonest improvements; that the impugned judgment suffers from misreading, non -reading and mis -appreci ation of evidence available on record; that
the prosecution version is lacking independent corroboration as only interested witnesses were produced; that the disclosure of co- accused is not admissible against the appellant; that on the
same set of evidence the co -accused Shehzad has been acquitted of the charge; that the
prosecution has miserably failed to prove the charge against the appellant beyond any shadow of doubt and the learned trial Court while awarding conviction and sentence to the appellant has
badly erred in appreciating the evidence available on record.
6. Learned D.P.G. while supporting the impugned judgment contended that the judgment of
Court below is based upon direct evidence of victim, whose solitary statement is enough to award convicti on and sentence to the appellant and it needs no further supportive evidence; that
since the accused -appellant has remained fugitive from law for more than a decade, thus it is not
expected from the witnesses to record a tape recorded statement in the trial Court; that the case of prosecution is supported by medical evidence as well as supported by the witnesses at the trial and the conviction awarded to the appellant is based upon proper appreciation of evidence by the Court below.
7. Heard the learned counsel and perused the available record. According to the case of
prosecution that on 11th August, 2006 the victim having the age of 14- years was accompanied
by PW -3 Yasir were kidnapped by the acquitted accused Shehzad and present appel lant Shaukat
Ali in a pickup vehicle, who were taken to an abandoned place and appellant Shaukat Ali
committed Zina -bil-Jabr with her. However, after registration of FIR, the appellant remained
fugitive from law for considerable long period expanded in a decade, while the accused Shehzad was arrested and after trial he was acquitted of the charge as inadequate evidence was produced against him. The present appellant was arrested on 29th March 2015 i.e. after delay of decade.
8. The prosecution has produced the evidence of eight witnesses. The complainant appeared
as PW -1, who reiterated the contents of her fard- e bayan Ex.13/1- A and confirmed that the
appellant Shaukat Ali initially abducted the victim/PW -2, taken her towards Jungle and accused
Shaukat Ali has submitted Zina -bil-Jabar with her. The star witness of the occurrence is the
victim Bibi Habeeba, with whom forcible Zina was committed by the appellant Shaukat Ali. She narrated the story with regard to her abduction when she was accompanying PW -3 Yasi r (age
about 10- years) by the accused Shehzad and Shaukat Ali in a pick -up, taken them towards an
abandoned place, where the accused Shaukat Ali alighted PW -3 Yasir and acquitted accused
Shehzad and in the vehicle committed forcible Zina with victim/PW -2, whereafter the accused
took them towards Noushki and alighted them from vehicle near Levies Thana. PW -3 Yasir is
the witness of the occurrence, who at the relevant time was accompanying the victim. The PW -3
in his statement fully supported the statement of victim/PW -2 and stated that he along with
victim/PW -2 were abducted by the appellant Shaukat Ali along with accused Shehzad in a pick-
up vehicle and thereafter they were taken to an abandoned place, where the accused Shaukat Ali alighted him and acquitted accused Shehzad from the vehicle and committed forcible Zina with
the victim. He further deposed that during the course of forcible Zina he heard the hue and cry of the victim and after half an hour the appellant alighted from the vehicle for a necessary call of
nature then he and Shehzad moved towards vehicle, where he saw the victim Habeeba in nude condition and left away till she worn her clothes, though in cross -examination P W -3 deposed
that:
Be that as it may, by either way to the extent of commis sion of Zina his statement is
fully corroborated by PW -2.
9. The prosecution produced medical evidence through PW -5 Dr. Geeta Devi, Lady
Medical Officer, who examined the victim/PW -2 on 11th August, 2006 at 05.00 p.m. and alter
examination of victim, PW -5 issued MLC Ex.P/5- A and opined as under:
1. Abrasion of the skin near anus.
2. Anal swelling with pain.
3. Tear inside the anus.
4. Abrasion on right elbow joint and left knee joint on the ulterior aspect.
10. The perusal of MLC Ex.P/5- A establishes the fact that unnatural sex was committed with
the victim PW -2. The abrasions on different parts of body of (sodomy) the victim/PW -2 is
suggestive of the fact that Zina was forcible and the victim at the time of Zina was making
resistance to rescue her, but bein g a minor child or about 14- years, she failed in her attempt, due
to which she received abrasions on her right elbow joint and left knee joint on the ulterior aspect.
11. We have taken into consideration the medical evidence with ocular testimony and
obser ved that both the ocular and medical evidence are in line with each other. In ocular
testimony the witnesses have alleged that forcible Zina was committed with the victim/PW -2 by
the appellant and the medical evidence has established the ocular testimony t hat forcible
unnatural offence was committed with the victim and she also made resistance. Even otherwise,
soon after the commission of crime, the victim was taken to hospital and immediately she was examined by a lady doctor. Besides, the FIR has been lod ged promptly without any delay, thus
the prompt lodging of FIR has ruled out the possibility of deliberation or consultation. As far as the report of Serologist is concerned, the same was timely dispatched, however found insufficient material for chemical analysis, even otherwise such report is a corroboratory piece of evidence, in presence of direct evidence supported by medical evidence having no weight.
12. The learned counsel for the appellant made an attempt to discredit the ocular testimony
on the bas is of some minor contradictions in the statements of prosecution witnesses, but the fact
remains is that the alleged occurrence had taken place on 11th August 2006, whereafter the appellant remained fugitive from law for a decade and under such circumstances, it is not expected from the witnesses, who otherwise were minors at the relevant time may give tape recorded statement after lapse of a long period expanded on a decade. Even otherwise, it is natural that the memories become fade after lapse of some ti me. Irrespective of minor or slightest
contradictions, all the witnesses remained firm in their deposition the unnatural offence was committed with the victim/PW -2. The defence did not deny the taking of victim PW -2 with the
appellant and questions were put to the victim/PW -2 that:
Such admission on the part of defence support the version of prosecution that the
victim was taken by the appellant for the purpose of his "Hated act".
13. So far as the objection of defence that the case of prosecution is lac king independent
corroboration, suffice to observe here that the crime has taken place in an abandoned area, where the presence of general public or third person and witnessing the crime was not possible. Furthermore, the prosecution has produced direct and medical evidence against the appellant. It may be observed that in case of sodomy or Zina the solitary statement of victim is sufficient to convict the accused if it is confidence -inspiring. Reliance in this regard is placed on the case of
Fayyazi and an other v. The State, 2006 SCMR 1042, the relevant portion reads as under:
"... It has also been rightly observed by the learned Federal Shariat Court that conviction could be based on the solitary statement of the victim provided the same is capable to implicit reliance and is corroborated by any other piece of evidence if so available in the
case. Undisputedly victim of the offence namely Khadim Hussain at the time of
commission of offence was aged about 10 years and a school going boy, who did not carry an y ill- will, grudge or malice against the appellants to falsely implicate them in the
case. It has also been not disputed or challenged at the trial that Khadim Hussain was school going boy, who in his deposition before the Court stated that after attending the
class he was on his way for the home through pavement where wheat crop was standing.
He was ambushed by accused persons out of whom accused Abbas caught hold of his
arms while accused Fayyaz committed sodomy upon him and thereafter accused Fayyaz caug ht hold of him and sodomy was committed upon him by accused Abbas. He also
stated that accused was armed with a pistol who threatened him of serious consequences. The testimony of the victim could not be impeached or discredited though subjected to test of cross -examination by the learned defence counsel. Dr. Atta Muhammad Zafar, the
Medical Officer appeared as P.W.4 who stated that on 24- 4-1998 he medically examined
Khadim Hussain aged about 10 years was brought to him by Constable Munir Ahmed as a case of ' sexual assault. The victim was allegedly subjected to unnatural lust on 23- 4-
1998 and the matter was promptly reported to the police, which was entered as Roznamcha Rappet No.3 on 23- 4-1998 at about 2- 30 p.m. and subsequently on 25- 4-
1998 at 9- 30 p.m. FI R was registered against the nominated accused persons most
probably in view of the MLR of the victim produced by the complainant. The findings noted in the MLR after the examination by the Medical Officer mentioned above clearly indicate that the injuries were caused by insertion of some blunt object within a duration
of 20 to 40 hours. The Medical Officer was subjected to cross -examination by the learned
defence counsel and it was not even suggested to him that the noted injuries could be result of any in sensate object, therefore, in absence of any other indication or material
available on record it could not be void that the same were not caused by penetration in
respect whereof the victim expressly stated that he was subjected to sexual intercourse one a fter the other by the accused persons. Also, no suggestion was given to the Medical
Officer in cross -examination that no injury of the like nature as noted in the MLR could
be noticed on examination if conducted after 20 to 40 hours approximately on the pe rson
of the victim if so caused or inflicted. Hence, it could not he said that any symptom or injury on the person of a victim of unnatural offence could not have been noticed during the medical examination after 20 hours subsequent to the commission of the act. The Medical Officer admittedly was an independent person having no reason to issue a false certificate favouring the victim, therefore, this piece of evidence in view of the contentions raised on behalf of the appellants could not have been discarde d and rightly
so believed by the learned Federal Shariat Court."
Similar view has also been taken in the case Mushtaq Ahmed and another v. The State,
reported in 2007 SCMR 473, wherein it has been held as under:
"It is consistent view of this Court that in rape cases mere statement of the victim is sufficient to connect the appellants with the commission of offence in case the statement of the victim inspires confidence. In the present case both the Courts below have given concurrent conclusions that statements of both the victims (P.W.9 and P.W.10) inspire confidence and connected the appellants with the commission of offence. They had faced lengthy cross -examination by the defence but defence had failed to shake their veracity.
The statement of P.W.9 was duly corroborated by the medical evidence of Dr. Tahira
Afzal Durrani who had categorically stated that her hymen was absent and she was
pregnant. Her statement was also corroborated by the statement of Dr. Malik Saeed Akhtar Radiologist P.W. who had examined P.W.9 and also performed her ultra sound according to which she was pregnant of about 18 weeks. Both the Courts below were justified to believe the statements of the aforesaid witnesses after reappraisal of ev idence.
The trial Court was justified to disbelieve the defence version and upheld by the learned
Federal Shariat Court. It is not believed or appealed to reason to observe that a sane
person would ever like to put at stake his or her family honour as well as career of young
unmarried daughter for such petty disputes as alleged by the defence." (underlines provided emphasis)
14. It has further been observed that the appellant has failed to take any specific plea
regarding his false implication. In his examination under section 342, Cr.P.C. he simply denied the questions put to him, whereas he has also not recorded his own oath statement and failed to produce any single witness in his defence. While to the contrary, the prosecution has produced ocular evidenc e supported by the medical evidence, which are fully corroborating with each
other on all material counts, thus the evidence so produced cannot be thrown aside merely on the basis of bald denial of the appellant. It has also been observed that in such like cases the prestige
of family, risk and honour is involved as the child of someone was defamed for whole of her life, hence it is not possible that a person may falsely involve any innocent person in such like heinous crimes and that too without existence of previous enmity or grudge. Undoubtedly, where a young child could be defamed for whole life, no elder would like to involve both their own child, who has to face the society for whole of her/his life as well as to an innocent person just for nothing. The prosecution has produced corroborative and confidence inspiring evidence and the defence has failed to cause any sort of dent in the evidence of prosecution, therefore, the objection so taken by the defence is without any substance. Reliance in this rega rd is placed on
the case of Kamran alias Kami v. The State, 2012 PCr.LJ 1200. For facilitation, the relevant portion is reproduced herein below:
"In the matters of family honors where a child of 11 years can be defamed for whole life, no father will involve an innocent person in a false case."
15. Diverting to the acquitted of co -accused Shehzad, it had been observed that there is no
allegation against the accused Shehzad that made any attempt to commit Zina with the victim or committed such offence, thus his case is distinguishable to the case of present appellant, hence rightly the accused Shehzad was acquitted of the charge and such acquittal of co -accused is not
helpful to the case of present appellant. The case laws referred by the learned counsel for t he
appellant are distinguishable and not helpful.
16. The trial Court has rightly appreciated the evidence in its true perspective. The learned
counsel for the appellant has failed to point out any misreading and non -reading of evidence and
major contradic tion in the statements of PWs or any material illegality or irregularity in the
impugned judgments, warranting interference by this Court. The case law so referred by the learned counsel for the appellants are not helpful to the defence. However, the trial Court has
treated harshly to the accused/appellant by awarding the sentence of life imprisonment under section 376, P.P.C. instead of section 377, P.P.C. as section 377, P.P.C. is attracting in the case of appellant having committed unnatural offence of s odomy with the victim, thus the impugned
judgment requires interference only to the extent or quantum of sentence, which is accordingly
altered from section 376, P.P.C. to section 377, P.P.C. and his sentence is reduced from life imprisonment to that of th ree (03) years, the amount of fine is reduced from Rs.100,000/ - to
Rs.10,000/ - and in default thereof to further suffer three (03) months' S.I. The benefit of section
382-B, Cr.P.C. is also extended to the appellant.
For the above reasons, while modifying the quantum of sentence, the appeal being devoid
of merits is dismissed.
JK/169/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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