1975 S C M R 69

 
Present : Muhammad Yaqub Ali and Abdul Kadir Shaikh, JJ
 
HAJI AHMAD‑Petitioner
 
versus
 
THE STATE‑Respondent
 
Criminal Petition for Special Leave to Appeal No. 249 of 1974, decided on 28th November 1974.
 
(On appeal from the judgment and order of the Lahore High Court, Bahawalpur Circuit,
Baghdadul Jadid, dated the 29th March 1974, in Criminal Revision No. 37/73‑BWP).
 
Penal Code (XLV of 1860)‑‑
 
‑‑‑ S. 376‑Rape‑Prosecutrix a girl of 12/13 years overpowered, threatened with death in case she
raised alarm, raped, and found lying unconscious‑Medico‑legal report clearly revealing
commission of rape‑Tears on lateral margins found bleeding on touch by lady doctor‑Vaginal
swabs found by Chemical Examiner stained with semen‑Mere absence of mark of injury or
violence on pro secutrix's person, held, would not imply non‑commission of rape, nor possible for
a girl of 12/13 years to falsely implicate in cases of such type‑Petition dismissed.
 
Mahmood Ahmad, Advocate‑on‑Record for Petitioner.
 
Nemo for the State.
 
Date of hearing : 28th November 1974.
 
JUDGMENT
 
ABDUL KADIR SHAIKH, J: Haji Ahmad son of Qadir Bakhsh, petitioner herein, was
convicted by Magistrate, Ist Class, Bahawalpur, under sec tion 376, P.P.C. and sentenced to 3
years' R.I, and to pay Rs. 500 in default to further undergo six months' 'R.I. for having committed
rape on his step daughter, Mst. Sardar Khatoon, aged 12/13 years, in his own house. The
conviction and the sentence have been upheld by the Sessions Judge, Baha walpur and the Lahore
High Court on appeal and revision application by the convict. All the three Courts believed the
testimony of the prosecu trix which was supported by the medical evidence that she was subjected
to rape.
 
In support of this petition for special leave to appeal, learned counsel submitted that the
prosecution case stands falsified by the medical evidence which shows that no mark of injury or
violence was found on the person of the prosecutrix. We find that learned Single Judge in the
High Court has already appreciated this aspect of the case. According to him "this would not
imply that she had not been raped by the petitioner. A perusal of the Medico‑legal Report Exh.
P.D. clearly reveals that Mst. Sardar Khatoon had been raped. The lady doctor stated that tears on
lateral margins bleed on touch. The lady doctor sent vaginal swabs to the Chemical Examiner,
who found these stained with semen. The report of Chemical Examiner is Exh. P.C. It is not
possible to believe that a young girl 12/13 years of age wanted to falsely implicate her step‑father
in a case of this type."
 
We whole‑heartedly agree with these conclusions. According to Mst. Sardar Khatoon, her
step‑father threatened her with death in case she raised an alarm and committed rape on her after
gagging her mouth with a piece of cloth. The prosecutrix. a young girl of 12/13 years, was thus
overpowered by the petitioner, her step‑father, and she found herself too helpless to offer any
resistance. This conclusion finds support from the fact that she was found lying unconscious by
her mother Met. Allah Wasai who returned to the house soon after the occurrence.
 
There is no merit in this petition. It is, therefore, dismissed.
 
Petition dismissed.
 
 
 
 
 
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