' ZAFAR PASHA CHAUDHARY, J.--- Rasheed Ahmad has come in appeal against judgment, dated 24-4-2003, passed by Syed Auon Muhammad Rizvi, Additional Sessions Judge, Rahimyar Khan, whereby the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), and sentenced to undergo 25 years R.I. He has also been convicted under section 11 of the Ordinance and sentenced to suffer imprisonment for life. Both the sentences have been ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. According to the prosecution, Mukhtar Ahmad complainant (P.W.3) moved an application before S.H.O. Police Station Saddar Rahimyar Khan stating therein that, his daughter Sanam Bibi aged about 8 years is deaf and dumb since birth. On 5-3-2002 at about 3-30 p.m. She left her house to purchase some articles from a nearby shop but did not return to the house within speculated time.
The complainant Mukhtar Ahmad alongwith Meher Din (P.W.4) and Allah Ditta left for search of the girl. When they reached near the house of Rasheed Ahmad, appellant they heard shrieks. They all entered the house and saw that Rasheed Ahmad appellant had removed the Shalwar of the girl Sanam Bibi and was committing Zina-bil-Jabr with her. On seeing the complainant approaching him he fled away. The witnesses attended to the girl who had been soaked in blood. The complainant took his daughter alongwith him to the police station and lodged the report Formal F.I.R. Was registered on the basis of the application. Necessary investigation ensued. The appellant having been found guilty was sent up to face trial. The learned trial Judge framed charge on two counts i,e, under section 11 of the Ordinance for kidnapping Sanam Bibi in order to commit Zina-bil- Jabr and secondly under section 10(3) of the Ordinance for committing Zina-bil-Jabr. The appellant pleaded not guilty and claimed trial.
3. The prosecution in support of its case examined seven Witnesses. Mukhtar Ahmad, complainant was examined as P.W.3. He reiterated and re-affirmed the version as recorded by him in contents of the application moved before the police. He deposed having witnessed the commission of Zina- bil-Jabr by appellant Rasheed Ahmad with Sanam Bibi himself. He further stated that Sanam Bibi was smeared with blood. He took the victim to the police and moved an application. Thereafter criminal proceedings were initiated.
' P.W.4 Mehar Din is another eye-witness of the occurrence. He accompanied Mukhtar Ahmad for search of the missing girl Sanam Bibi. They heard shrieks of the girl from the house of the appellant Rasheed Ahmad and were attracted towards the scene of crime. They scaled over the wall and after entering the house they witnessed that Rasheed Ahmad was committing Zina-bil-Jabr with Sanam Bibi who was bleeding. Rasheed Ahmad fled away from the place of occurrence. He alongwith Mukhtar Ahmad removed Sanam Bibi to the house of the complainant and thereafter took her to the police station. He accompanied the complainant and the report was made in his presence. The Shalwar of the victim P.1 and Shirt p.2 both blood-stained were produced before the police, which were taken into possession, vide memo. Exh.P.D. Attested by this witness.
' Dr. Maqsood Hussain, P.W. I examined Rasheed Ahmad, appellant and found him capable of committing sexual intercourse.
' P.W.2 Dr. Saima Zulfiqar is an important witness. She medically examined the victim Sanam Bibi.
Her age was recorded as eight years. She was deaf and dumb. On internal examination, she observed as under:-- "On internal examination, I found that vulva was healthy, midline tear in perineum about 2 x .5 c.m.
Involving posterior forchette with muscle deep, small laceration in lateral, vaginal wall was present about 1 x .5 c.m. Hymen was absent. Vagina admitted one finger. Bleeding present. Three vaginal swa bs were taken for onward transmission to the Chemical Examiner."
' As per report by the doctor, sexual intercourse has been attempted on the above mentioned girl.
However, as regards evidence of fresh intercourse, the report was reserved till the receipt of the report of Chemical Examiner. As per Exh.P.F. The report of Chemical Examiner, the vaginal swabs obtained by the lady doctor from Sanam Bibi were found to be stained with semen and blood.
Thus, commission of sexual intercourse with Sanam Bibi was confirmed by the medical report as well as the report of Chemical Examiner.
' Sanam Bibi, victim admittedly was aged about eight years at the time of incident. She was deaf and dumb, therefore, was unable to speak and narrate the incident through her own tongue. She, being the most important witness, it was imperative for the prosecution to have associated her with the investigation. She, as noted above, was got medically examined after taking consent of Mukhtar Ahmad, P.W.3, her father.
' Rana Muhammad Ashraf, Inspector, P.W.5 carried out the investigation. He performed the necessary formalities and also collected the incriminating evidence. On 14-3-2002 he arrested Rasheed Ahmad, appellant. On the same day Sanam Bibi, victim appeared before him alongwith her father Mukhtar Ahmad. This witness deposed on oath in Court that in his presence Sanam Bibi who was deaf and dumb pointed out to the accused and identified him as the assailant who committed Zina-bil-Jabr with her. The statement of Rana Muhammad Ashraf, Inspector apart from proving the relevant proceedings during investigation also provided a direct evidence whereby Sanam Bibi in presence of her father pointed out Rasheed Ahmad and confirmed that he was the person who criminally assaulted her.
' The rest of the witnesses are mainly police officials who described various functions performed by them during course of investigation. The learned prosecutor submitted report of the Chemical Examiner Exh.P.F. And with that closed the case of the prosecution.
4. The appellant was examined under section 342, Cr.P.C. He denied the allegations levelled against him. He pleaded his innocence in the following terms:-- "I am innocent. I cannot think even to commit this type of offence. I am father of a daughter. So- called victim is also like my daughter."
' He did not appear as his own witness as permissible under section 340(2), Cr.P.C. However, he examined Khan Muhammad, A.S.-I. In defence who moved an application before the Ilaqa Magistrate seeking permission to get Sanam Bibi medically examined. In that application while recording reasons for medically examination, he stated that an unknown person committed Zina with Sanam Bibi, therefore, she was required to be medically examined. The defence attempted to make a big capital out of the word "URDU TEXT". This witness was examined as D.W.1. He during cross-examination clarified the ambiguity or misconception if at all that existed with regard to the word "unknown". He stated that the application was not even signed by him. He had not even seen the police file before moving the application. Obviously the application was meant to get the girl medically examined and it was not in any manner required to state or incorporate the prosecution version. This witness clarified that the girl was deaf and dumb and was unable to tell the facts of the case. He stated that the application was drafted without knowing the facts of the case.
5. Malik Rab Nawaz Noon, Advocate, the learned counsel for the appellant in support of the appeal initiated his arguments with the averment that venue of the occurrence is not the same as stated by the prosecution. In support of his contention he argued that no blood-stained earth or any other blood-stained articles were secured from the place of occurrence. Further the place of occurrence i,e, the house of Rasheed Ahmad, appellant is admittedly located within the inhabited area. No one from adjoining house of the vicinity came to the place ,of occurrence. According to the learned counsel, had there been any shriek or cry made by the victim, the people living in the neighbouring locality would have witnessed the same. Since no one has been cited from the adjoining house, therefore, the prosecution version that the occurrence took place in the house of Rasheed Ahmad has not been proved by the prosecution. The argument is neither based on any sound reason nor any evidence has been referred in support of the same. Rana Muhammad Ashraf, P.W.5 who recorded statements of P.Ws. Under section 161, Cr.P.C. Prepared the site plan Exh.P.E. Exh.P.E. Clearly indicates the place of occurrence under Point No,
1. The place of commission of occurrence has been specifically described. No question whatsoever was put to him during ' cross-examination disputing or negating the place of incident. It appears that the learned counsel just took up the plea considering that the house of the appellant was located within inhabited area, the people around the house should have noted the incident. The argument does not.Contain any substance.
The clinical examination of the victim who was extremely a young girl was found bleeding from her private parts. When she was being subjected to such a brutal act she must have raised cries out of pain and injuries. It is inconceivable that in such a situation a young girl of very tender age when subjected by a grown up person aged about 34 years would not have undergone severe pain and agony. The mere fact that the people living in the surrounding area did not reach the place of occurrence does not in any manner belie the prosecution version regarding the site of incident.
Apart from that the learned counsel has not been able to explain as to why the prosecution should not have shifted the venue of occurrence. Sanam Bibi had definitely been subjected to Zinabil- Jabr, presence and attraction of the witnesses to the place of occurrence was quite natural. Both the witnesses, i,e, the complainant and Meher Din resided in the same locality close to the place of occurrence. The learned counsel has next argued that in the site plan the presence of witnesses near the place of occurrence has not been indicated. The argument is factually incorrect Exh.P.E.
Site plan, which depicts and provides a pictorial diagram of incident has very clearly described the place wherefrom the witnesses saw the occurrence and the accused fled away on seeing the witnesses. It appears that the contention has been raised due to some inadvertence or omissions to examined Exh.P.E., the site plan.
6. The learned counsel has referred to the application moved by the Investigation Officer seeking permission for medical examination. The application is present on the file as Exh.D.B. It is only four lines application in Urdu, which contains that Sanam Bibi, a deaf and dumb girl aged about 8 years,. Had been subjected to illicit intercourse by "URDU TEXT" person. According to the learned counsel, this piece of evidence is of vital importance. It is inferred therefrom that by the time of medical examination it was unknown who had committed the offence. According to the learned counsel, the Investigating Officer stating there in the application that an unknown person committed Zina cannot be ignored. We cannot in any manner accept this argument. The Investigating Officer as referred to above explained in his statement in Court that the application was moved only to seek permission for medical examination and it was not supposed to contain any detailed account of the occurrence. He further explained that application has been moved without consulting police record or other relevant documents. The learned counsel has not taken into consideration that as per F.I.R. The occurrence took place on 5-3-2002 at about 3-30 p.m. And the matter was reported without any loss of time on the same day, i,e, 5-3-2002 at 8-30 p.m. It has unequivocally been asserted in the F.I.R. That Rasheed Ahmad had been witnessed by the complainant and two other witnesses including Meher Din P.W.4, committing Zina-bil-Jabr with the victim. In presence of this prompt F.I.R. Containing specific nomination of accused the argument advanced by the learned counsel does neither have any force nor any basis. Even otherwise assessing the incident logically it is totally inconceivable that the victim on whom such a crime was perpetrated which must have consumed a good deal of time would not have seen the assailant or not have identified him. The argument is totally unacceptable.
7. Apart from the submissions on factual plain, the learned counsel has raised legal objections insofar as constitution of the offence of Zina. According to him, penetration is necessary to constitute the offence. There is no cavil or dispute with this proposition. Penetration is necessary and essential ingredient of offence of Zina. According to the learned counsel, in the present case there is no evidence that, penetration did take place. According to him, presence or detection of semen inside, the vagina would not prove the commission of Zina. In support of this contention, the following judgments have been cited:--
(1) 1993 PCr.LJ 1852 (FSC), (2) 1986 SCM R 148, (3) PLD 1984 FSC 121 and (4) 1985 PCr.LJ 110.
' He has also referred to 1993 SCM R 1660 elucidating the law laid down therein that the benefit of doubt in prosecution version should be allowed to the accused persons even in matter of punishment. It is submitted with utmost respect and reverence to the law laid down in the above citations, as already observed above, to constitute an offence of Zina, penetration is necessary. It is, however, not essential that the penetration must be completed. Mere penetration is sufficient to make out a case of Zina. While citing the above authorities, the learned counsel should have attended to the factual data, which perhaps is not done. The argument, therefore, appears to be misconceived. The complainant Mukhtar Ahmad, P.W.3 and Meher Din, P.W.4 have themselves witnessed the occurrence of commission of sexual intercourse. Their statements when assessed alongwith the medical evidence furnished by the lady doctor Saima Zulfiqar, the internal examination of the girl reflects without any doubt that the penetration did take place. Laceration was observed in lateral vaginal walls. Hymen was found to be absent. This could not have happened without penetration. Apart from that the victim was bleeding from her private parts. The medical report is further confirmed and authenticated by the report of the Chemical Examiner Exh.P.F. Whereby the swa bs obtained from the vagina were found to be stained with semen and blood. With this overwhelming prosecution evidence there remains no doubt to believe that the victim was subjected to Zina. As she is only eight years old and also deaf and dumb, therefore, commission of Zina would obviously be without her consent and treated as Zina-bil-Jabr.
8. The prosecution evidence as detailed above comprises ocular account of the incident furnished by the two independent witnesses who do not have any grudge or malice against the appellant to falsely implicate him. The matter was promptly reported to the police. Had there been any doubt or suspicion, the allegations could not be levelled with such a precision and exactitude. The ocular account is fully supported by the medical evidence and also supplemented by the Chemical Examiner's report. Above all, Sanam Bibi, the victim in presence of Rana Muhammad Ashraf, Inspector who was fully associated with all the matters as Investigating Officer stated on oath in the Court that in his presence the victim pointed out the accused as culprit and identified as the one who had committed Zina with her. This witness was cross-examined by the prosecution: The question pertained to identification was put to him. The witness clarified that the victim being deaf and dumb could not speak but she explained the incident through signals, which were interpreted by her father.##TE# This witness could not be detracted from his statement rather he affirmed his assertion during cross-examination.
9. The learned counsel for the complainant Mr. Saliheen Mughal, Advocate has supported the judgment and conviction of the appellant and asserted by referring to the evidence and the relevant record that the prosecution has proved the guilt of the appellant beyond doubt. He in support of his contention quoted the following authorities:--
(1) PLD 1983 FSC 33, (2) PLD 1992 FSC 87 and (3) 1994 SCM R 2102.
10. After hearing the learned counsel and going through the evidence on record, we are firmly of the view that the prosecution has successfully proveti the commission of Zina-bil-Jabr by the appellant. Therefore, his conviction under section 10(3) of the Ordinance is fully maintainable.
However, the appellant's conviction under section 11 of the Ordinance for kidnapping or abducting the victim requires consideration. According to the prosecution, Sanam Bibi left her house to purchase some articles from the nearby shop but did not return home as expected, therefore, a suspicion arose and her search was taken up. She was found in the house of the appellant being subjected to above noted act. Presumably she could have been taken to the house of the appellant but there is absolutely no evidence in this respect. To constitute an offence under section 11, evidence regarding abduction or kidnapping is necessary. There may be a very strong presumption that she would have been taken by the appellant but the presumption, however strong it may be, cannot be legally accepted as evidence. In spite of heinousness of the fence, absence of any evidence in this behalf or any doubt in this regard, the benefit should accrue to the accused.And not to the prosecution. The learned counsel for the complainant could not point out any evidence in this respect except that the girl could not have gone to the house of the appellant of her own. She would have been enticed away. The inference drawn by the complainant's counsel may not be incorrect but the fact remains that there is no tangible evidence either of abduction or kidnapping. The appellant had been convicted both under sections 10(3) and 11 of the Ordinance.
His conviction under section 11 is not free from doubt. Therefore. The same is set aside. The next question arises about quantum of punishment. The appellant has been awarded 25 years' R.I.
Under section 10(3) of the Ordinance. According to the complainant's counsel, in view of the gravity and heinousness of the offence, he has rightly been awarded the maximum sentence provided under the law. However, the learned counsel for the appellant has very passionately argued that the appellant is a first offender, has throughout leading a moral life and is a father of a daughter as well. Under the principles of Islamic Jurisprudence, to afford an opportunity for reformation or "URDU TEXT" has been considered as commendable. We by taking stock of all the facts and circumstances of the case are of the view that sentence of 15 years' R.I. Will meet the ends of justice.
10. As a result of the above discussion, the appellant's conviction under section 11 of the Ordinance and the sentence thereunder is set aside. His conviction under section 10(3) of the Ordinance is upheld. However, sentence of 25 years' R.I. Is reduced to 15 years' R.I. Benefit of section 382-B, Cr.P.C.
Shall be allowed.