' MUHAMMAD ZAFAR YASIN, J.--- Through this criminal appeal Fayyaz Ahmad Khan has challenged the judgment dated 16-10-2006 passed by learned Additional Sessions Judge, Multan whereby the appellant has been convicted under section 16 of Offence of Zina (Enforcement of Hudood)
Ordinance and sentenced to three years' R.I. With a fine of Rs,10,000 and in default to further suffer six months' S.I. The appellant has further been convicted under section 10(3) of the said Ordinance and sentenced to five years' R.I. Both the sentences are to run concurrently. He has further been given the benefit of section 382-B, Cr.P.C.
2. Brief facts as emerged from the F.I.R. Are that, Talib Hussain, complainant made statement to Haq Nawaz, S.-I. Police Station Gulgasht, Multan that he is a rickshaw driver by profession and has seven daughters and three sons; that his younger daughter Mst. Neelam is student of 5th class in Government Primary School, Chah Tibbiwala, Shalimar Colony and she is a kidney patient. On 24- 4-2006 she went to school where she felt kidney pain and at about 12-30 p.m. She sought leave from the school and was on way to her house when Fayaz son of Kamal who is son of complainant's cousin, met her in front of school and asked that why she was weeping, whereupon she told that she was feeling kidney pain. Fayyaz assured her to provide medicine and thereafter shall drop her in her house. He took Mst. Neelam forcibly in "Falsa" garden on the southern side of Bosan Road bypass by his own rickshaw, where he committed Zina with her. As per chance at about 1-35 p.m. Complainant along with Muhammad Ajmal, his son and Muhammad Safdar were going to his house by rickshaw when suddenly Mst. Neelam came out of the Falsa garden with naked head while running and Fayyaz was chasing her. He stopped the rickshaw. On seeing them, accused Fayyaz went back into Falsa garden and disappeared. Mst. Neelam told the occurrence to them who was in bad condition. Complainant went to his house along with Neelam. Fayyaz sent respectables/elders of the family to the complainant with request that criminal case be not lodged and Fayyaz be pardoned. The complainant has further alleged that as the accused has committed Zina-bil-Jabr with her daughter Neelam aged 12/13 years, therefore, he got registered the instant case on 27-4-2006.
3. The case was investigated by the police. The accused was arrested and evidence was collected by the Investigating Officer. The victim was also got medically examined by lady doctor on 27-4- 2005 who had also taken swa bs. Thereafter the accused was challaned. He was charge-sheeted on 8-8-2006 to which he denied the same and claimed trial. The swabs sent to the Chemical Examiner, Multan were also found stained with semen.
4. The prosecution to prove its case produced as many as 10 witnesses and statement of the accused was recorded under section 342, Cr.P.C. Wherein he claimed innocence and also alleged that he has been falsely implicated in the case as the complainant had taken lacs of rupees from him from time to time on several occasions and promised to give the hand of Mst. Neelam to the accused/appellant but on demand the complainant along with the P. Ws. Have involved him in this case. He declined to make statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in his defence.
5. Learned counsel for the appellant has argued that there is no ocular evidence of commission of Zina-bil-Jabr by the appellant with the victim Mst. Neelam, hence his conviction is not maintainable. Further argued that learned trial Court has not taken into consideration the defence version while passing the impugned judgment. Further argued that no mark of violence were found on the body of the victim, while she was got medically examined. According to the vaginal examination the lady doctor has found and opined as under:--- "Vaginal orifice torn into old healed pieces. Hymen torn and orifice allows two fingers to pass easily.
Three vaginal swa bs were taken and handed over to police for Chemical Examiner, Multan for semen analysis, if any, for final opinion."
6. Mst. Neelam alleged victim is aged 12/13 years and according to medical examination she has torn hymen and admits two fingers easily, thus, it is evident that she was used to sexual intercourse and there were no fresh injuries on the body of the victim or on private part to substantiate the prosecution version that Zina-bil-Jabr has been committed with her.
7. On the other hand learned D.P.G. Has argued that the prosecution has proved its case beyond shadow of doubt through ocular as well as medical evidence. Furthermore the delay in lodging the F.I.R. Has fully been explained. The victim is of very young age of 12/13 years and there is no earthly reason to falsely implicate or substitute the accused in this case. The report of the Chemical Examiner also fully supports the prosecution version.
8. Heard. Record perused.
9. The prosecution has proved its case against the appellant that he had enticed away the victim Mst. Neelam with criminal intent to have illicit sexual intercourse with her to a Falsa garden, where he has committed sexual intercourse with the victim. The evidence of the victim who is aged 12/13 years coupled with her medical examination and the positive report of the Chemical Examiner, the prosecution has proved beyond shadow of doubt the commission of the offence under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. There is no possibility of false implication or substitution of the real culprit. Therefore, the conviction of the appellant Fayyaz Ahmad Khan under sections 16 and 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, awarded by the trial Court is upheld. Furthermore the sentence awarded by the trial Court under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is also maintained. However, while awarding sentence under section 10 of the said Ordinance the following facts need further consideration:--
(i) According to the prosecution story the victim was having severe kidney pain at 12-30 p.m. When she left the school with permission, leaving her sister in the school while school time was up to 1-30 p.m. The accused Fayyaz Ahmad had met Mst. Neelam outside the school per chance and she accompanied the accused who had promised to provide her medical aid and thereafter to drop her to her home. The accused took the victim to Falsa garden and there he committed Zina-bil- Jabr with her, while thereafter the victim ran to Bosan Road Bypass at 1-30 p.m. Where her father, brother and cousin Safdar suddenly came there in the rickshaw and her father came to her rescue and took her back to home where she had narrated the occurrence. Neither the victim nor the complainant has stated that the victim was provided any medical aid for her kidney pain by her father. Furthermore, in cross-examination the victim has admitted that she had told her father and others about the occurrence after reaching her house. Thus, she did not narrate the occurrence nor told her father and brother at Bosan Road Bypass that she has been raped. Furthermore, in her examination-in-chief as well as in the cross-examination the victim has stated that accused had committed Zina with her and did not use the word Zina-bil-Jabr. Furthermore, she has also stated that the accused had only removed her Shalwar and not other clothes nor her other clothes were torn. Thus, there had been no resistance by her. The lady doctor who had medically examined the victim on 3rd day of the occurrence did not find any mark of violence on any part of her body nor on her private part. Furthermore, the lady doctor has recorded that vaginal orifice of the victim was torn into old healed pieces. Hymen torn and orifice allows two fingers to pass easily.
' Therefore, from the medical evidence as well as from oral testimony of the victim no doubt offence of Zina has been committed with the victim but circumstances do not support the version of the victim that offence of Zina-bil-Jabr has been committed with her particularly when there is no mark of violence on any part of the body or even clothes were not found torn and the victim having not even told the occurrence when her father and brother met her on Bosan Road Bypass when she ran out of the Falsa garden immediately after the occurrence. The report of the Lady Dr. P.W.5, who had physically examined the victim also proves that the victim was used to sexual intercourse. Therefore, it has been proved by the prosecution beyond shadow of doubt that the victim has been subjected to Zina by the appellant Fayyaz Ahmad on the fateful day but was with her implied consent as there had been no resistance from her. She had not received any mark of violence on any part of her body including private part as per medical report.
10. In view of what has been discussed above the conviction of the appellant under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not maintainable while he is liable to conviction under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance. Therefore, the appellant Fayyaz Ahmad Khan is hereby convicted under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance and sentenced to four years' R.I. The appellant is also fined Rs,10,000 and in default whereof to further undergo three months' S.I. Both the sentences recorded under section 16 by the trial Court and the sentence awarded by this Court under section 10(2) of the said Ordinance shall run concurrently. The appellant shall also be extended the benefit of section 382-B, Cr.P.C.