-S. 376--Criminal Procedure Code, (V of 1898), S. 410--Conviction and sentence--Challenge to--Offence of rape--In general, how could it be possible that appellant was called by complainant at odd hours of night just to pay outstanding rent amount-

 PLJ 2021 Cr.C. (Lahore) 101

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 376--Criminal Procedure Code, (V of 1898), S. 410--Conviction and sentence--Challenge to--Offence of rape--In general, how could it be possible that appellant was called by complainant at odd hours of night just to pay outstanding rent amount--Suggestions and arguments of learned counsel further supplemented prosecution version that he entered into house of complainant on day and time as mentioned therein and was apprehended at spot red-handed when he was committing sexual intercourse with victim--During investigation appellant was found fully involved in case in hand being sole perpetrator Court have no reason to discard prosecution evidence which is otherwise quite natural, straightforward and confidence inspiring--As per learned defence counsel report of Punjab Forensic Science Agency being negative negates prosecution version--Appellant was found while committing sexual intercourse with victim and he had not exhausted till time, rather he was committing said offence when he was apprehended and his apprehension prior to his ejaculation is itself denotes that report of aforesaid office should have been negative--In given circumstances negative report is fully endorsed prosecution version--Prosecution has been able to prove charge of, committing Zina with victim by appellant through cogent, reliable and confidence inspiring evidence--Appellant at odd hours of night entered into house of victim while scaling over wall and committed sexual intercourse with her--On hue and cry witnesses apprehended accused at spot red-handed and produced before police--Appellant has admitted his apprehension but with pled that he was called by complainant to pay outstanding rent amount which has not been given any approval neither by trial Court nor by High Court--ocular account is fully supported with medical evidence--Accused was found involved in alleged occurrence by Investigating Officer even otherwise appellant being sole perpetrator could not be substituted without any just cause and even substitution is always a rare phenomenon in such like matters--Court have no hesitation to concur with conclusion arrived at by trial Court qua conviction and sentence of appellant--Appeal was dismissed.     

                                                                      [Pp. 104 & 105] A, B & C

M/s. Shabbir Hussain and Muhammad Haseeb Khalid, Advocates for Appellant.

M/s. Lala Shakeel-ul-Rehman and Basharat Abbas Gondal, Advocates for Complainant.

M/s. Azhar Hussain Malik and Sultan Akbar Chatha, Deputy Prosecutors General for State.

Date of hearing: 8.7.2019.

 PLJ 2021 Cr.C. (Lahore) 101
Present: Asjad Javaid Ghural, J.
AMIR MASIH--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 183162 of 2018, heard on 8.7.2019.

Judgment

Through this criminal appeal under Section 410, Cr.P.C. appellant Amir Masih has challenged the vires of judgment dated 06.03.2018 passed by the learned Additional Sessions Judge, Lahore in case FIR No. 1021 dated 11.10.2014, in respect of offence under Section 376, PPC, registered at Police Station South Cantt., District Lahore, whereby he was convicted and sentenced as under:

Under Section 376, PPC

Rigorous imprisonment for 10-years with fine of Rs. 1,00,000/- payable to the victim which shall be recoverable from the land revenue, and in default thereof, to further undergo simple imprisonment for three months.

2. The prosecution story unfolded in the crime report (Ex.PA/2) registered on the complaint of Abbas Masih (PW-1) is that in the intervening night of 10/11.10.2014 he along with his family members was sleeping in his house. His daughter namely Mst. Hina (victim) aged about 19-years was sleeping in veranda. At about 12:30 to 01:00 a.m. accused Amir Masih entered into his house while scaling over the wall and committed Zina with her daughter. After hearing hue and cry of his daughter, he and other inmates woke up and caught hold the accused at the spot. His daughter was smeared with blood and become unconscious.

3. Muhammad Arif, S.I/(PW-7) visited the place of occurrence and took into possession all the relevant material. On 15.10.2014 he got conducted medical examination/DNA test of the accused through Punjab Forensic Science Agency and after completion of investigation, got prepared report under Section 173, Cr.P.C.

4. Lady Doctor Rozina Mustafa (PW-6) conducted the medico-legal examination of the victim on 12.10.2014 at 02:00 p.m. having the history of sexual assault by Amir Masih and observed mark of violence i.e. abrasion (i) 3 x 0.5 cm (ii) 2 x 1 cm. (iii) and 1 x 1 cm on her left cheek. On local examination there was first degree perianal tear at her introtous and hymen was absent. Two vaginal (external and internal) swabs were taken and sent to Punjab Forensic Science Agency and also urine for confirmation of pregnancy.

5. Dr. Ayad Akhtar (PW-4) had conducted medical examination including potency test of the appellant on 12.10.2014 and found five injuries on his person. He was of the opinion that the appellant was sexually active and there was no possibility which could indicate that the appellant could not perform sexual activity.

6. At the commencement of the trial, learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.

7. The prosecution produced 08-witnesses. At the closure of the prosecution evidence, the appellant in his statement recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against him. He opted not to make statement under Section 340(2), Cr.P.C., however produced Ex.DA and Mark-A in his defence.

8. Learned trial Court, upon conclusion of the trial had convicted and sentenced the appellant as stated above. Hence, this appeal.

9. Learned counsel for the appellant submits that the appellant is innocent and has nothing to do with the alleged offence; that the appellant being Rickshaw Driver was giving pick and drop to the victim which developed intimacy between them; that the appellant was called for by the victim herself for the said offence; that the victim was partner in crime and noting could be done forcible by the appellant as alleged for, that the offence, at the most, falls under the ambit of Section 496(b), PPC.

10. Conversely, learned Deputy Prosecutors General appearing for the State assisted by the learned counsel for the complainant have vehemently contended that the appellant, in odd hours of night, by scaling over the wall entered into the complainant’s house and sexually assaulted the victim; that the, victim specifically alleged that she was subjected to sexual intercourse by the appellant in her house; that upon her hue and cry the appellant was arrested at the spot read-handed by the witnesses; that the ocular account fully supported with the medical evidence; that there was no occasion for the prosecution to implicate the appellant falsely while letting off the real culprits. At the end, a prayer has been made for dismissal of the appeal in hand.

11. 1 have heard learned counsels for the appellant, learned Deputy Prosecutors General appearing for the State assisted by the learned counsels of the complainant and perused the record.

12. Abbas Masih, (PW-1), complainant/father has deposed in the witness box what he had narrated in the crime report that in the intervening night of 10/11.10.2014 he alongwith his family members was sleeping in his house, his daughter Mst. Hina (victim) aged about 19-years was sleeping in veranda. At about 12:30/01:00 a.m. Amir Masih (accused) entered into his house while scaling over the wall and committed Zina with his daughter. After hearing hue and cry of his daughter he and other inmates woke up and caught hold the accused at the spot. Mst. Hina was smeared with blood. He along with witnesses took the accused in muffled face to the police station in Rickshaw at 01:30 a.m. and got lodged the crime report. Faiz Masih (PW-2) had deposed in line with the complainant’s deposition. They were cross-examined by the defence and remained firm and consistent on all material aspects of the case whereas the defence could not extract any favourable material from their mouths.

13. The star witness of the occurrence was Mst. Hina (victim) appeared as (PW-3). She had deposed that on 11.10.2014, she was sleeping, in veranda of her house at about 12:30/01:00 a.m. accused Amir Masih entered into her house while scaling over the wall and committed rape with her. He threatened to kill her in case she made a noise but she made hue and cry which attracted his father and uncles who apprehended him at the spot. She has fully endorsed the statement of the complainant qua the date, time, place, mode and manners of the occurrence. The defence, during cross-examination, remained fail to de-track any witness and they were not confronted with any part of their previous statement. Learned counsel for the appellant has argued that due to previous intimacy between the victim and the appellant he was called by the victim for sexual act. This argument has no substance because the appellant was not certain with his defence plea and arguments advanced before this Court. During cross-examination the suggestion was put to the witnesses that the appellant was called by the father of the victim on the pretext to pay outstanding rent, which was quite different as argued by the learned counsel before this Court. In general, how could it be possible that the appellant was called by the complainant at odd hours of the night just to pay the outstanding rent amount. The suggestions and arguments of the learned counsel further supplemented the prosecution version that he entered into the house of the complainant on the day and time as mentioned therein and was apprehended at the spot red-handed when he was committing sexual intercourse with the victim. During investigation the appellant was found fully involved in the case in hand being sole perpetrator. I have no reason to discard the prosecution evidence which is otherwise quite natural, straightforward and confidence inspiring.

14. Dr. Rozina Mustafa (PW-6) conducted medical examination of victim Mst. Hina on 12.10.2014 at 02:00 p.m. wherein the victim had given the history of sexual assault at her home by Amir Masih on 11.10.2014 at 02:30 a.m. The medical officer has observed that the victim was looking depressed and there were marks of violence i.e. abrasion (i) 3 x 0.5 cm (ii) 2x1 cm. (iii) and 1x1 cm on her left cheek. On examination, there was first degree perianal tear at her introtous and hymen was absent. Two vaginal (external and internal) swabs were taken and sent to Punjab Forensic Science Agency and urine for confirmation of pregnancy, if any. The report of aforesaid office does not show the presence of seminal material. As per learned defence counsel the report of Punjab Forensic Science Agency being negative negates the prosecution version. I am not in agreement with the aforesaid submission because the appellant was found while committing sexual intercourse with the victim and he had not exhausted till the time, rather he was committing the said offence when he was apprehended and his apprehension prior to his ejaculation is itself denotes that the report of the aforesaid office should have been negative. In the given circumstances the negative report is fully endorsed the prosecution version.

15. Muhammad Arif S.I. (PW-7)/Investigating Officer arrested the accused and found him to be fully involved in the case in hand being real culprit. He was medically examined and medico-legal certificate evinces that he was sexually active and there was no possibility which could indicate that the accused could not perform sexual activity.

16. Gathering the facts and circumstances of the case, I am of the considered view that the prosecution has been able to prove the charge of committing Zina with the victim by the appellant through cogent, reliable and confidence inspiring evidence. The appellant at odd hours of night entered into the house of the victim while scaling over the wall and committed sexual intercourse with her. On hue and cry the witnesses apprehended the accused at the spot red-handed and produced before the police. The appellant has admitted his apprehension but with the pled that he was called by the complainant to pay the outstanding rent amount which has not been given any approval neither by the trial Court nor by this Court. The ocular account is fully supported with the medical evidence. The accused was found involved in the alleged occurrence by the Investigating Officer

even otherwise the appellant being sole perpetrator could not be substituted without any just cause and even substitution is always a rare phenomenon in such like matters. I have no hesitation to concur with the conclusion arrived at by the trial Court qua the conviction and sentence of the appellant.

17. For what has been discussed above, the appeal in hand, having no merits, the same stands dismissed.

(A.A.K.)          Appeal dismissed