Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: WISHAL MASIH VS Respondent: The STATE and others
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: WISHAL MASIH vs The STATE and others Case No.: Crl. Appeal No.34 of 2016 Date of Judgment:2016-06-03 Reported As: 2017 YLR 2031 Result: Appeal dismissed
JUDGMENT
JUDGMENT MOHSIN AKHTAR KAYANI, J.--Through the instant appeal, the appellant has challenged the judgment dated 25.01.2016, passed by learned Incharge/ Sessions Judge (West) Islamabad, whereby the appellant was convicted and sentenced under section 376, P.P.C. to undergo 10 years, imprisonment. The appellant was also extended benefit of section 382-B, Cr.P.C. 2.Brief facts giving rise to the filing of the instant appeal are that complainant Sadia Bibi submitted written application Exh.P.0 to the police station that on 26.06.2013 her daughter Kainat aged about seven years was playing outside the .house, when the appellant/accused while blind folding her daughter took her to his house, where he committed rape with her. The daughter narrated the matter to her mother/ complainant. The FIR Exh.P.C/1 was lodged. After completion of the investigation report under section 173, Cr.P.0 was submitted before the learned Trial Court. The charge was framed, to which the appellant/ accused pleaded not guilty, therefore, prosecution evidence was summoned. 3.The prosecution produced Naveed Akhtar 5511/HC as P.W.1, Dr.Nasreen Butt, MLO PIMS Hospital as P.W.2, Dr.Zahoor Ahmad Rana, Dental Sugeon as P.W.3, Asif Khan ASI as P.W.4, Dr.Shumaila Zainab Gardezi as P.W.5, Muhammad Kashif 8053/C as P.W.6, Kainat Shahbaz as P.W.7 and complainant Sadia Bibi as P.W.B. Muhammad Ashfaq S.I appeared as C.W.1. Statement of the appellant was recorded under section 342, Cr.P.C. After hearing the learned counsel for the parties, learned Trial Court passed the impugned judgment. 4.Learned counsel for the appellant has contended that the sentence awarded by learned Trial Court is against the law and facts of the case; that partial trial was conducted by the Juvenile Court and remaining trial was conducted by the Incharge/Sessions Judge (West) Islamabad,
---
## Page 2
which is violation of Juvenile Justice System Ordinance, 2000; that learned Trial Court against the law has extended the benefit of doubt in favour of the prosecution instead of appellant; that learned Trial Court has not appraised the contention of appellant in its true perspective; that the impugned judgment is result of misreading and non-reading of evidence; that the impugned judgment is whimsical; that there was no direct evidence against the appellant; that statement of the complainant has created serious doubts in the case; that in absence of motive, the appellant could not have been sentenced; that all the P.Ws. were interested witnesses and no independent witness was produced; that the sentence awarded to the appellant is severe, against the evidence and is not maintainable in the eyes of law. Learned counsel for the appellant has relied upon 2016 SCMR 267, 2012 PCr.LJ 437, 2013 PCr.LJ 182, 2010 PCr.LJ 1296 and 2012 PCr.LJ 142. 5.Learned State Counsel as well as learned counsel for respondent No.2 has contended that case against the appellant was registered promptly after narration of the story by the victim to her mother/complainant; that medical evidence proved the case of prosecution, in which Dr.Shumila Zainab/P.W.5 has categorically stated that victim was raped and hymen was torn, even the other corresponding bruises on shoulders, wrist and on right thigh confirmed the incident of rape; that victim appeared as P.W.7, who in expressed terms stated before the Court that she was raped and the defence failed to discredit the testimony of the said victim, hence, it is manifestly clear that Trial Court has rightly convicted the appellant; that the appellant has not taken any defence version although he has raised certain motive part in his testimony under section 342, Cr.P.C. but no evidence has been brought on record in this regard. 6.I have heard the arguments and perused the record. 7.The complainant/P.W.8 submitted a complaint/Exh.P.0 in the Women Police Station, Islamabad, in which she alleged that her daughter Kainat aged about 07 years was playing in front of her house situated at 166 quarter Katchi Abadi G-6/2, Islamabad, where Bashoo son of Shamma Masih had blind folded her daughter took her to his house, there he committed rape with her. The complaint was entertained by the police and as a result whereof FIR No.47,dated29.06.2013,under section 376, P.P.C. was registered with P.S. Women Islamabad, which is Exh.PC/1. After registration of the case, the police investigated the matter, arrested the appellant and the appellant having found involved in the offence, .SHO submitted the report under section 173, Cr.P.C. before the Court against the appellant to face the trial. The appellant was charged under section 376, P.P.C. for committing rape with Mst. Kainat aged 07 years on 30.01.2014. After framing of the charge, the prosecution produced eight witnesses and one witness appeared as. Court Witness, where-after statement of appellant was recorded under section 342, Cr.P.C. After hearing the learned counsel for the parties, the appellant was convicted and sentenced under section 376, P.P.C. to undergo 10 years imprisonment vide judgment dated 25.01.2016. 8. From perusal of the record, it has been observed that complainant/mother of the victim recorded her statement as P.W.8 and identified the appellant in her evidence and re-affirmed her stance taken in complaint Exh.PC. She stated that her daughter/victim was playing in the street, where appellant Wishal Masih covered her eyes and took her to his house and took off her clothes, slapped her and committed rape with her She conceded that victim was frightened and the said incident was reported after the delay of 02 days as the victim remained sick during the said period. She also admitted that when the victim disclosed the said incident, she approached mother of the appellant, who abused her and there after she filed ' complaint/Exh.PC. P.W.8 is the star witness being mother of .the victim, who also brought the victim to the hospital for her medical examination, which was conducted by Dr. Shumyla Zainab Gardezi/ P.W.5, who in her examination in chief stated that victim was brought in the Poly Clinic Hospital, Islamabad by Perveen Akhtar HC in the company of her mother with history of rape 03 days back. She further stated that tram track bruises on right shoulder, similar bruises on the left shoulder as well, bruises on both wrists more on
---
## Page 3
the right one, tender to touch, multiple bruises on right thigh of the victim. KMnat Bibi were found. On vaginal examination of the victim, it was found that hymen appeared torn. Medical report prepared by P.W.5 is Exh.PB. 9.Besides the testimony of complainant/P.W.8, the case of prosecution rests upon the testimony of victim Kainat Bibi/P.W.7, in which she stated that when she was playing in front of her house with her friends, the accused present in the Court blind folded the victim and took her to his house and committed rape. P.W.7 (minor) straight away described the role of the appellant by stating that she was blind folded and subjected to rape. 10.In order to judge the competency of minor victim as a witness in terms of Article 3 of the Qanun-e-Shahadat, 1984, learned Trial Court questioned the minor victim and assessed that she is competent to give her evidence vide order dated 29.07.2015 and there after her statement was recorded as P.V.7. 11.The prosecution had to prove its case on the basis of statement of victim/ P.W.7, if the same is corroborative with medical evidence. It has been observed that statement of Dr.Shumyla Zainab Gardezi/ P.W.5 confirms the multiple bruises on different parts of the body.During cross- examination P.W.5 stated that hymen of the victim was torn and male boy of 12 to 13 years of age is capable of commiting intercourse. She further stated that the victimresisted while conducting the medical examination but the details given by the said P.W is of two folds, one portion deals with swa b taken for DNA, chemical analysis and the other is relating to the examination of the victim, which has been given in the report Exh. PB. Although the DNA test report Exh.P.Q was found negative but the examination of P.W.5 speaks otherwise, it is not the requirement of law to confirm the semens through the chemical analysis or DNA report to prove the ingredients of section 376, P.P.C. rather it is the penetration, which constituted the offence although the chemical analysis report is further evidence of strong nature, which helped the prosecution to prove its case and same can be relied upon if other evidence is slient. Reliance is placed upon 2011 PCr.LJ 1443 (Khadim Hussain v. The State), wherein it was held that:-- "Despite the fact that DNA report about the swab did not match with the profile of accused, the observations of lady doctors, were enough evidence of the fact that victim had been subjected to sexual intercourse. Opinion of the Lady Doctor lent corroboration to the statement of the victim that accused had subjected her to zina---Nonreceipt of matching report of DNA test, did not negate the ocular account of prosecution witness." But in the instant matter the victim has directly nominated the appellant and the same has been corroborated through the statement of Dr. Shumyla Zainab Gardezi/P.W.5 and her report Exh.PB and the said statement should be read with the statement of Dr. Zahoor Ahmad/P.W.3, who confirmed the age of appellant 12 to 14 years approximately. During cross-examination he stated that age of the appellant might be 11 to 13 years. 12. Section 376, P.P.C. defines rape and in explanation it has been mentioned that penetration is sufficient to constitute the sexual intercourse, which is necessary for evidence of rape. In the present case, it is proved that victim had not given any consent, rather she was forced. In order to prove the case of rape, the medical evidence plays key role, therefore, prosecution has to prove certain important medical features, which were observed by Dr. Shumyla/P.W.5 while examining the victim. In present case the technical evidence confirms the minimum standard to prove the case of rape as provided/ notified in Medical Jurisprudence and Toxicology, especially the observations made by Dr. Shumyla. Statement of Dr. Shumyla/P.W. 5 is reproduced as under:-- "The victim was accompanied with her mother. On examination of victim, it was found that she was fully conscious and oriented appearing frightened, pulse 90 per minute, blood pressure 90/60, afebrile, tram track bruises on right shoulder, similar bruises on the left shoulder as well, bruising on both wrists more on the right one, tender to touch, multiple bruises on right thigh. On vaginal
---
## Page 4
examination, it was found that hymen appear torn admitting finger tip, highly noncooperative during examination." 13. Following factors were observed by Dr. Shumyla/P.W.5:-- a. Tram track bruises on right shoulder. b. Similar bruises on the left shoulder as well. c. Bruises on both wrists, more on right. d. Tender to touch. e. Multiple bruises on right thigh. f. Hymen torn. 14.From above referred observations on injuries/marks of violence, it seems that victim was over powered by the accused by holding both writs/hands of the victim on some hard surface, which resulted into the tram track bruises on both shoulders. Similar kind of bruises were, present on right thigh. 15.It is not necessary to disbelieve the prosecution evidence, if DNA report comes negative as the DNA is only meant to corroborate the other evidence/main case of the prosecution, however, DNA alone is not sufficient to prosecute the accused but the said test strengthen the prosecution case. In present case, the medical evidence if read with testimony of the victim/P.W.7, who directly nominated and stated that she was raped by the appellant and the > above referred details of the injuries observed by the doctor confirm the oral testimony of the victim, even from the collective statement of Dr. Shumyla Zainab/P.W.5, Dr. Zahoor Ahmad, Dental Surgeon/P.W.3 and Dr. Naseer Butt, Medico Legal Officer/ P.W.2, the appellant was 13 years of age at the time of incident and was capable of performing sexual act. 16. The appellant has not taken a specific defence as to why he was nominated as accused in the above mentioned case but he denied the prosecution story and referred the dispute between his mother and the complainant, however, no such evidence was brought on the record to prove his stance, rather appellant could not extract anything in his favour during the cross-examination of victim Kianat P.W.7 and complainant P.W.8, appellant failed to cross-examine the portion of statement of Kianat where she directly charged the appellant, whereas the appellant only gave the suggestion against the allegation. 17.Learned counsel for the appellant raised an objection that a part of trial of the appellant was conducted by the Juvenile Court and the remaining trial was conducted by Incharge/Sessions Judge, Islamabad, which is in violation of Juvenile Justice System Ordinance, 2000 has no force as section 4(2)(1) of Juvenile. Justice System 2000 empowers the Court of Session to try a child, who is accused of commission of an offence. Non-mentioning of Juvenile Court in order sheets of Court proceedings and later on in the judgment by the learned Judge does not bar Court of Session to try a child, who is accused of commission of an offence and formalities of Juvenile Justice System 2000 were fully observed, even the Sessions Court is a Juvenile Court, only word Incharge was used due to administrative purpose, which does not mean that it is not Juvenile Court. 18.The upshot of the above discussion is that learned Trial Court has rightly convicted the appellant on the basis of available evidence. .Therefore, instant appeal is hereby dismissed being devoid of merits and the sentence of 10 years' Simple Imprisonment awarded to the appellant is maintained. 19.Important aspect of this case is the mode of punishment to a minor. The learned Trial Court convicted and sentenced the appellant 10 years' Simple Imprisonment under section 376, P.P.C. keeping in view the juvenility of the appellant, who was approximately 13 years of age at the time of occurrence. The minimum thrash hold of the punishment is 10 years, whereas maximum limit is 25 years. Learned Trial Court while awarding the punishment to the appellant has not considered concept of diversion, in order to understand the concept, reference has been made from the book
---
## Page 5
Participant's Manual Juvenile Justice Training: definition of Diversion and conditions of diversion are reproduced as under:-- What is Diversion? Diversion involves referring cases away from formal criminal court procedures and directing child offenders towards community support. Diversion is therefore best viewed not as diversion from criminal justice but rather as diversion to appropriate services where the formal intervention of the juvenile justice system is not required. Through diversion, a child accused of committing an offence is given the opportunity to take responsibility for his or her conduct and to make good the harm caused. Diversion is closely linked to restorative justice and may involve a restorative justice component, depending on the nature of the diversion. Diversion can occur at any point of decision-making, either as a generally applicable procedure or on the decision of the police, prosecutor, court or similar body. In theory, it can be used for any kind of offender, though in practice it is rarely used for the most serious or persistent offenders. States should ensure that the diversionary measures comply with the human rights of the child, including the right to due process Conditions of Diversion. To be consonant with the rights of the child, diversion procedures must follow five rules:- i)Diversion options should only be used where children admit to an offence and consent to the diversion. At no stage should children be pressured either into an admission or into accepting diversions. Thus, diversion should be excluded where: The child has not understood his or her right to remain silent and/or has been unduly influenced in acknowledging responsibility. The child or his or her parents (or appropriate adult substituting for the parents) do not consent to diversion or the diversion option. ii)Diversion must not involve deprivation of liberty in any form. iii)The case must be referred to a normal court system if no solution acceptable to all can be reached or if the diversionary options are not appropriate. iv)The child offender always retains the right to a court hearing or judicial review. v)Human rights and legal safeguards must be fully respected. Physical punishments-whether imposed by formal courts or as a result of a diversionary process- amount to inhuman or degrading treatment, which is absolutely prohibited. In addition, in selecting a diversion option, due regard must be given to a child's cultural, religious and linguistic context, community of origin, age and his/her best interests. No child must be unfairly K discriminated against on the basis of race, gender, sex, ethnic or social origin, colour, sexual orientation, disability, religion, conscience, belief, culture, language, birth or socio-economic status in the selection of a diversion program. All children must have equal access to diversion options. 20. The other aspect of Juvenile Justice System Ordinance, 2000 regarding Juvenile delinquency has to be seen with reference to conventions on the rights of the child. As it is proved from the record that the appellant was 13 years old at the time of occurrence, therefore, statutory protection provided under Juvenile Justice System Ordinance, 2000 has to be applied. Section 11 of Juvenile Justice System Ordinance, 2000 is reproduced as under:-- 11. Release on probation.--- Where on conclusion of any inquiry or trial, the Juvenile Court finds that a child has committed an offence, then notwithstanding anything to the contrary contained in any law for the time being in force, the Juvenile Court may, if it thinks fit--- (a) direct the child offender to be released on probation for good conduct and place such child under the care of guardian or any suitable person executing a bond with or without surety as the court may require, for the good behavior and well-being of the child for any period not exceeding
---
## Page 6
the period of imprisonment awarded to such child: Provided that the child released on probation be produced before the Juvenile Court periodically on such dates and time as it may direct. (b)make an order directing the child offender to be sent to a Borstgl Institution until he attains the age of eighteen years or for the period of imprisonment whichever is earlier. (c)reduce the period of imprisonment or probation in the case where the Court is satisfied that further imprisonment or probation shall be unnecessary. 21. Keeping in view the above statutory provisions, the concept of sentencing a juvenile has been observed from study of different reported cases and few cases are reproduced as below:- PLD 2010 Supreme Court 1080 (Faisal Aleem v. The State), in which it was held that:- "We have carefully examined the respective contentions as agitated on behalf of appellant, for the State and for complainant in the light of entire record and perused the judgment of learned trial and appellate Courts carefully. Let we mention here at the outset that factum of age was never disputed before the police and moreso no objection whatsoever was raised during the trial Court and besides that the question of age was never agitated before the High Court and no such ground was even incorporated in the memo of appeal. Learned counsel was asked pointedly that why objection was not raised before learned trial and appellate courts but no satisfactory answer could be given except that 'the statement of appellant got recorded under section 342, Cr.P.C. wherein his age has been mentioned as 20 years which should have been taken into consideration by the learned trial and appellate courts irrespective of the fact whether the point of age was urged or otherwise? We have perused the statement of appellant got recorded under section 342, Cr. P.C. wherein the age of appellant has been mentioned as 22 years which was subsequently converted into 20 years by interpolation,responsibility whereof could not be fixed that by whom this interpolation was made. Even for the sake of argument if it is admitted that the appellant was 20 years of age even then he could not be equated to that of a child and as such no benefit under section 2(b) and section 12 of the Juvenile Justice System Ordinance, 2000 could be extended in favour of appellant. It may not be out of place to mention here that generally the trial Court mentions the age of accused at the time of recording statement under section 342, Cr.P.C., at random and in routine manner on the basis of appearance and thus it cannot be considered as gospel truth to determine the quantum of sentence. In this regard we are fortified by the dictum laid down in case titled Muhammad Saleem v. The State (2001 SCMR 536). Learned Advocate Supreme Court on behalf of appellant has laid much stress on the factum of "tender age" in oblivion of the fact that tender age itself would not mean that an accused should not be awarded death penalty. In this regard reference can be made to the law laid down in the following cases:-- Din Muhammad v. The State (1985 SCMR 625), Abdullah v. Shaukat (1988 SCMR 370), Muhammad Hanif v. The State (1994 SCMR 1152), Hukamdin v.' The State (1994 SCMR 2134), Noor Muhammad v. The State (1988 SCMR 1640), Mushtaq Ahmed v. The State (1988 SCMR 165), Muhammad Siddiq 'v. The State (PLD (sic) SC 1079) and Zulfiqar v. State (1995 SCMR 1668). There is no cavil to the proposition that "youth of accused alone does not constitute such an extenuating circumstance as would justify imposition of lesser penalty prescribed by law" Harnamun v. Emperor (AIR 1928 Lah. 855),. Maghar Singh Naghar Singh and others v. Emperor (AIR 1941 Lah. 220), The State v. Tasiruddin (PLD 1962 Dacca 46), Sher Hassan v. The State (PLD. 1959 SC (Pak) 480), Ghulam Hyder v. The State (1970 PCr.LJ 1052)." 2013 PCr.LJ 584 [Lahore] (Shahrukh v. Bashir Ahmad and another), wherein it was held that:- "After hearing the learned counsel for the petitioner, the learned Deputy Prosecutor-General, the learned counsel for the complainant and also after going through the record it has straightaway
---
## Page 7
been noticed by this Court that the petitioner was tried as a juvenile offender by the learned trial Court and he was convicted to life imprisonment after a regular trial. It has also been noticed that major role has been ascribed to the petitioner which is proved through confidence-inspiring evidence of P. Ws. and the role attributed to the petitioner is also borne out from the Post-mortem Examination Report of the deceased. The conduct of the petitioner and the method as well as mannerism of the commission of the offence adopted by him indicates him to be an evil and a well planned designer, which also indicates more towards the mature skill of an accused than of an innocent child. The statutory protection of the legislation on Juvenile Justice was meant for a minor who was an innocent law breaker and was not an accused having a mature mind who used the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him. Ordinance, 2000 is concerned, suffice it to observe that the petitioner has been sentenced for life imprisonment under section 302, P.P.C. and not in offences of petty nature. If such like offenders are given benefit of section 11 of ibid Ordinance it would open the Pandora box." 2011 YLR 341 [Peshawar] (Muhammad Alamgir v. The State), wherein it was held that:- "This leads us to another important aspect of release of appellants on probation being "Juvenile" or "child" under the Ordinance. It is admitted by all parties that appellants Muhammad Alamgir and Raham Zaib, were both "Juvenile", at the time of commission of the offence. The circumstances for a "juvenile" to be released on probation has been provided in section 11 of the Ordinance which reads:' "Release on probation.--- (a)..................... (b)..................... (c)..................... 2015 PCr.LJ 1163 [Balochistanj (Rehmatullah v. The State), wherein it was held that:-- "With regard to quantum of sentence, it is to be appreciated that normal penalty for the offence under section 302(b), P.P. C.. if proved, is death sentence, out the appellant being a Juvenile has been awarded sentence of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.