HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 471 of 2017
Appellant : Hamza Alam son of Faiz Alam
through Mr. Syed Junaid Alam Rizvi,
Respondent : The State through Mr. Abrar Ali Khichi,
Additional Prosecutor General, Sindh.
Date of hearing : 19.9.2019
Date of Judgment : 19.9.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this Criminal Appeal, the appellant has assailed the legality and propriety of the judgment dated 29.07.2017 passed by the learned Xth-Additional District & Sessions Judge, Karachi East, in Sessions Case No.124/2016 (Re: The State v. Hamza Alam), in Crime No.371/2015 registered under Section 376(1) PPC at police station Korangi, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as stated in Point No.2 of the impugned judgment. For the sake of convenience, it would be proper and relevant at this stage to reproduce the findings on the said point, which reads as under:-
“After evaluation of whole evidence available on record, I am of the firm opinion that prosecution has succeeded to prove the charge against accused. I, therefore, convict the accused Hamza Alam son of Faiz Alam U/s. 265-H(2) Cr. P.C. for the offence punishable under section 376(1) PPC. The accused is of young age and first offender, therefore, taken lenient view, I sentence him to suffer R.I. for 10 years and fine of Rs.50,000/-. In case of default in payment of fine he shall suffer further S.I. for six months. The accused is entitled for benefit of period he remained as under trial prisoner as provided under section 382(b) Cr. P.C. The accused present on bail. He is taken into custody and remanded to Central Prison Karachi to serve out the above noted sentenced. The bail bond stands cancelled and surety discharged”.
2. The brief facts of the prosecution case as alleged in the FIR are that on 21.11.2015 Complainant Muhammad Khalild son of Muhammad Irshad reported the matter at P.S. at about 2115 hours, alleging therein that on 19.11.2015 he in routine went to perform his duty and his 6½ years daughter baby Samreen went to Madressa. She returned back from Madressa and went to purchase something from shop. When she went out from the house where accused Hamza took her to Plot No.286 Sector 32-A, Labour Colony at his dancing club Korangi No.1 and committed forcible sexual intercourse with her. The victim returned back to house and narrated the details of incident to her mother, when he returned to his house it was disclosed to him by his wife that victim was feeling pain in her private part, therefore, she went to doctor where she was treated but pain could not reduce. Then actual story was disclosed that accused committed sexual intercourse with her. It is alleged that he went to JPMC where medical examination of victim was conducted and report also obtained which shows in positive, hence, the instant FIR was registered against the accused.
3. After registration of FIR usual investigation was carried out and on conclusion of investigation, I.O. of the case submitted Charge Sheet before the concerned Judicial Magistrate Karachi East on 31.12.2015 showing the name of the Appellant/accused under custody.
4. As per record, the charge was framed against the appellant/ accused on 25.01.2016 by the learned trial Court at Ex.2, for the said offence to which he pleaded not guilty and claimed to be tried vide his plea at Exh.2/A.
5. In order to substantiate its case, the prosecution has examined PW-1 Complainant Muhammad Khalid at Ex.3 who produced FIR, memo of place of inspection and memo of arrest and recovery at Ex.3/A to 3/C respectively. Process server ASI Rao Zulfiquar recorded his statement in respect prosecution witnesses Qamarul Islam son of Dr. Islamuddin, Mst. Aneela w/o. Muhammad Khalid and victim Mst. Samreen D/o. Muhammad Khalid, and according to his evidence these witnesses were not found residing at their residential addresses and their present whereabouts were not known to him vide his statement at Ex.4. He produced his report at Ex.4/A to 4/C respectively, thereafter prosecution examined PW-2 Judicial Magistrate Zohaib Ahmed at Ex.5, who during his evidence produced the statements of PWs Mst. Samreen and Anila, recorded u/s. 164 Cr. P.C. at Ex.5/B & 5/C. PW-3 MLO Dr. Pardeep Kumar at Ex.6, who during his evidence has produced certificate at Ex.6/A and according to his opinion the Appellant was capable to perform sexual intercourse. PW-4 WMLO Dr. Feroza Akhund at Ex.7, during her evidence she has produced certificate at Ex.7/B and according to her opinion, the sexual intercourse has been made to the victim. PW-5 Investigation Officer ASI Ali Akbar at Ex.8. Thereafter, learned DDPP for the State closed the prosecution side vide statement dated 12.04.2017 at Ex.9.
6. Statement of accused has been recorded under section 342 Cr. P.C. vide Ex.10, wherein he denied the allegations of the prosecution and stated that he is innocent and has falsely been implicated in this case. He further stated that his mother contested the councilor election and complainant and his friend Saeed want that his mother do not to contest the election. Therefore, he was falsely implicated in said case due to political enmity. However, the appellant did not examine himself on oath nor examine any defence witness to disprove the prosecution case.
7. Learned presiding officer of the trial Court after assessment of evidence, document on record and after hearing the parties’ advocate, convicted and sentenced the Appellant/accused as detailed in the introductory part of the Judgment.
8. Mr. Syed Junaid Alam Rizvi learned Counsel for the Appellant has contended that the Appellant is innocent and has falsely been implicated in this case with political enmity with the complainant party; That FIR has been lodged by Complainant with delay of two days for which no explanation has been furnished, therefore, false implication of the appellant in this case with due deliberation and consultation could not be ruled out; That medical examination of the alleged victim girl was conducted after two days, and the opinion of the Doctor is not supported by law; That I.O. of the case taken into custody the clothes of the alleged victim after about five days of the incident which created doubts in the prosecution case; That according to medical report no marks of violence, injury, fusion and bleeding seen. The WMLO Dr. Feroza herself admitted that apparently the swelling may be caused by a hit; That admittedly neither the victim baby Samreen nor her mother (Anila) were examined during trial yet the Appellant was convicted on the basis of their 164 Cr. P.C. Statement which was not sufficient evidence under the law for the conviction of the Appellant; That the complainant in this case admitted in his cross examination that I.O. of the case has taken Rs.12,000/- from him for preparation/ arrangement of the medical certificate and this fact alone shows that the whole case was concocted by the complainant with the connivance of the police and doctor against the Appellant, but these aspects of the case has not been properly considered by the learned trial Court while passing impugned Judgment. Therefore, he prayed that in view of the above facts and circumstances this Appeal may be allowed. In support of his argument he has relied upon the cases of (1) Muhammad Rafiq and others v/s. The State and others, reported in 2010 SCMR page 385, (2) Imtiaz @ Taj v/s. The State and others reported in 2018 SCMR page 344 and (3) Muhammad Siddiqu v/s. The State, reported in 2018 SCMR page 71.
9. Conversely Mr. Abrar Ali Khichi, the learned Additional Prosecutor General Sindh for the State, while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the Appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and impugned conviction and sentenced awarded to the Appellant is the result of proper appreciation of evidence brought on record. He also submits that in this case the allegation against Appellant that he committed forcibly sexual intercourse with the victim baby Samreen aged about 6 ½ and she and her mother in their statements recorded U/s. 164 Cr. P.C. have implicated the accused with specific allegation before the Judicial Magistrate namely Zohaib Ahmed, therefore, according to him u/s. 265-J Cr. P.C. the learned Trial Court has rightly considered the said statements as piece of evidence. In this connection he has also relied upon the cases of Nadir Shah v/s. The State and others reported in 2012 P. Cr. L.J. 588 and Ashiq Ali and another v/s. The State and another reported in 2007 P.S.C. (Cr.) 359. He, however, in view of above submissions prayed for dismissal of this appeal.
10. I have heard the learned Counsel for the parties at a considerable length and perused the evidences and documents on record with the able assistance of their Counsel.
11. After going through the record, I have come to the conclusion that prosecution has proved its case against the appellant for the reasons that the allegation against the appellant / accused is that he committed forcibly sexual intercourse with the victim baby Samreen, aged about 6½ years, therefore, he was booked in this case. It appears from the record that this heinous and serious incident was reported by the complainant Muhammad Khalid who is the father of victim on 21.11.2015, at P.S. Korangi, stating therein all the facts of the incident. Prior to registration of the case, Police referred the minor victim to JPMC Karachi, for medical examination where she was examined by WMLO namely Dr. Feroza Akhund, whose evidence is on record at Ex. 07, who in her evidence confirmed that according to medical point of view sexual assault has been made. She in her evidence produced the letter dated 21.11.2015, as Ex. 7/A, Medical certificate issued by her, as Ex. 7/B and chemical reports as Ex. 7/C & 7/D respectively, though she was cross examined but nothing come on record in favour of the appellant.
12. I have also gone through the evidence of Dr. Pardeep Kumar, available on record of trial Court at Ex. 06, showing that after the arrest of the appellant, he was produced before the said Doctor in order to determine his male potency. This witness on the basis of medical examination was found that appellant was fit to perform sexual intercourse and in this regard, the said Dr. produced such certificate at Ex. 06/A on the file. This witness was cross-examined but no favorable answer was come out from the mouth of the witness.
13. It appears from the record that appellant was arrested on 24.11.2015, whereas the statement of baby Samreen was recorded before Mr. Zuhaib Ahmed, Judicial Magistrate, Karachi East, u/s 164 Cr.P.C. in presence of appellant on 25.11.2015, without any delay and she in her statement implicated the appellant as her culprit and supported the contents of the FIR, though she was cross-examined by the Counsel for the appellant at length but she did not shatter. Not only this, the statement of mother of the victim namely Anila u/s 164 Cr.P.C. was recorded on the same day in presence of appellant, who also supported the contents of the FIR. This witness was also cross-examined by the Counsel for the appellant but no answer was come out from her mouth in favour of the appellant.
14. The evidence of Mr. Zuhaib Ahmed, Judicial Magistrate, Karachi East, is on record at Ex. 05, who in his evidence confirmed the fact that these witnesses were appeared before him and he had recorded their statements u/s 164 Cr. P.C. in presence of appellant after fulfillment of all required procedure. This witness was also cross-examined at length and during his evidence he has affirmed that the said PWs were appeared before him and he recorded their statements. During the course of argument I have specifically asked the question to learned counsel for appellant to point out any illegality or irregularity in recording of statement of witnesses by Judicial Magistrate, but he has no plausible answer with him.
15. The evidence of I.O. of the case is on record at Ex. 08, who in his evidence has deposed that after FIR was lodged, police papers were entrusted to him for investigation and according to his evidence, he after completing investigation submitted the challan against the accused appellant before the Court of law.
16. It has vehemently been argued by the learned Counsel for the appellant that FIR is delayed by two (02) days for which no satisfactory explanation has been furnished and this case is outcome of enmity on political basis as such false implication of the appellant in this case with due deliberation and consultation cannot be ruled out and its benefit must be given to appellant. I have, however, not felt persuaded to agree with learned Counsel for the appellant and in this connection it is suffice to say that in such like cases the people/victim(s)/families ever remain under fear, coercion, and compulsion and may not dare to even disclose the facts to their elders or community people. It be kept in view that in instant matter, the allegation against the appellant, that he has forcibly committed sexual intercourse with a minor girl aged about 6½ years, therefore, the question of the honor of the family and the victim was involved, therefore, reluctance to go to police station immediately was also quite believable. Record shows the delay so caused in this case has been explained plausibly and same is not helpful for the appellant. Each case has its own merit and circumstances, therefore, delay in every criminal case cannot be presumed to be fatal for the prosecution case because mere delay in lodgment of FIR alone is not sufficient to give its benefit to the accused. As far as the enmity of the appellant with the complainant party is concerned, it is also suffice to say that though appellant claimed political enmity with the complaint party but in this respect no convincing/cogent evidence has been produced to prove this fact. Merely saying that there was a political enmity with the complainant is not enough. Be that as it may burden to prove the political enmity in between the parties was/is lay on the appellant and under article 121 of Qanun-e-Shahadat order 1984 says that if any accused took up any specific plea, then burden to prove same would shift upon him, but as observed above, no convincing evidence on record to prove the enmity, however, on the contrary there was a serious allegation against the appellant with regard to committing sexual intercourse with the daughter of the complainant and the factum of intercourse with the minor baby girl stands established through medical evidence.
17. It appears from the above evidence that prosecution witnesses have supported the version of the prosecution case, no material contradiction in their statements comes on record. No doubt, complainant has forgiven the accused in his evidence, but admittedly offence is not compoundable and it is held in case of Kashif Ikram vs. The State, 2005 PSC (Crl.) 79 (Federal Shariat Court). In this case law, it has been held that, “Admittedly complainant/PW was not an eyewitness of the said occurrence, therefore, any obliging statement by him could not extend any benefit to accused.
18. Learned Counsel for the appellant has also emphasis on the ground that victim and her mother Anila have not produced before the Court to give evidence. This ground has also no weight as the victim and her mother recorded their statements u/s 164 Cr.P.C. which was recorded by the learned Judicial Magistrate after completing all legal requirement, even opportunity of cross examination was also given to the Counsel for the appellant who cross examined the victim as well as PW Anila. The statement u/s 164 Cr.P.C. of victim in which she fully implicated the appellant. Record also reveals that before recording the statement of victim Samreen u/s 164 Cr.P.C. the learned Magistrate in order to test and intellegency of her, put certain questions to her and after his satisfaction recorded the statement which is reproduced as under:-
19. Though she was cross-examined, but she reiterated that the appellant has forcibly committed sexual intercourse with her. PW Anila also deposed against accused/appellant in her 164 Cr.P.C. statement. The above 164 Cr.P.C. statement cannot be ignored and cannot discarded merely on the ground that victim and her mother were not examined before the Court in trial. As per record, complainant, real father of the victim and husband of PW Anila, already forgiven the appellant, so it is common in our society when the head of family not permit to his family member for attending the Court so they cannot attend the Court. Similarly, in this matter might be complainant did not allow her daughter (victim) and wife to record their evidence before the Court. In these types of matter, usually parents also face the social pressure and said social pressure compel the person(s) to avoid the Court proceeding, which in my view is a natural phenomenon and appeal to prudent mind. Since the present case appears to heinous in nature and committed with the innocent baby girl of age 6½ years, so her statement u/s 164 Cr.P.C. which was recorded by the learned Judicial Magistrate cannot be thrown out. In this respect, I am supported with case Asighiq Ali and another vs. The State and another, reported in 2007 PSC (Crl.) 359 (Federal Shariat Court). In this case law it has been held as under:-
“A statement on oath under section 164 Cr.P.C. stands at a higher pedestal than a statement simplicitor which gives right to an accused person to cross-examine a witness---The introduction of section 1-A to Section 164 Cr.P.C. by the Law Reforms Ordinance, 1972 is perhaps aimed at to meet a situation like this or where a witness due to old-age or inordinate delay in Court proceedings may not be available to offer his evidence at a later stage”.
20. I have also gone through the statement of Rao Zulfiqar, Process Server, ASI at PS Korangi, available on record at Ex. 04, and his report at Ex. 04/A, showing that though process were issued to procure the evidence of the said witnesses but according to his report that the said witnesses were not available at their given addresses as they were tenant of one Waqar Ibrahim, owner of the said house, and according to him the said PWs vacated his house and shifted to unknown place and their present whereabouts are not known to him. This witness has not been cross examined at all by the Counsel of appellant, therefore, this position has been accepted by the appellant. Under these circumstances, there was absolutely no room left for the trial Court to accept the statement of the victim and her mother which were already recorded u/s 164 Cr.P.C. as a piece of evidence against the appellant.
21. Under-section 265-J Cr.P.C. says that the statement of a witness if duly recorded under section 164 Cr.P.C., if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined be treated as evidence in the case for all purposes subject to the provisions of Evidence Act, 1872. In the present case statements of baby Samreen (victim) and her mother Anila were recorded in the presence of the appellant, and he has cross examined them through his advocate, therefore, under the facts and circumstances as stated above, these statements cannot be thrown away and worthless. It is not necessary for prosecution to examine each and every witness. It is the quality and not the quantity of evidence to be produced.
22. Record shows that in this matter statement of victim u/s 164 Cr. P.C. and complainant evidence also corroborated with the medical evidence of the MLOs, so far as the chemical examiner report is concerned, in this regard, WMLO Dr. Feroza Akhund also deposed before the Court that “it is correct to suggest according to chemical examiner report the result is nil. Vol. says but according to medical point of view sexual assault has been made”. In case reported in PLJ 2005 Sh.C.(AJ&K) 75, it was held that, “Chemical Examiner’s Report is negative by itself is not sufficient to shatter case of prosecution unless some doubt arises about commission of offence of rape.”
23. The offence of rape is a moral turpitude which can destroy the entire psychology of a girl/victim by putting her and her family to public shame. It is a stigma with which her whole family has to face with and is the most hatred crime. The offence of rape is offence not against individual only but it is also against good conscience of the society.
24. On perusal of record it appears that the learned trial Court has dealt all the aspect of the matter quite comprehensively in the light of all the relevant laws dealing with the matter and now before me the learned counsel for the Appellant was unable to demonstrate that the impugned Judgment by any means suffers from any illegality or miscomprehension or non-appreciation of evidence by way of documents and evidence available on record. Appellant also failed to point out any enmity with the prosecution witnesses so examined in this case.
25. In view of above discussion, I see no error or illegality in the impugned Judgment warranting interference by this Court, which is maintained. Accordingly, the appeal being devoid of any force is dismissed along with listed application(s).
J u d g e