' This is an appeal filed by Anwarul Haq against the order of Chaudhry Muhammad Nasim, Sessions Judge, Rahimyarkhan dated 25-1-1983 by which he convicted the appellant under section 10(3) with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and giving him benefit of section 7 of the Ordinance, sentenced him to two and a half years' R. I 10 stripes and a fine of Rs, 1,000, in default of payment Of which he directed him to undergo R. I. For six months.
2. The prosecution case is that the complainant Mst. Majeeda Bibi is a resident of Quarter No, 208 in Abu Dabbi Colony No. 1, Chak No, 52/P while the appellant is a resident of Quarter No, 245 in the same Colony. On the 17th of March, 1979 at about Maghrib Nimaz-Wela, the complainant Mst.
Majeeda Bibi, P. W. 1 aged about 10/11 years went to ease herself on a nearby sand mound. When she returned therefrom she was caught by the appellant who took her by force to a room and from there to the kitchen. He bolted the door from inside. He tied her hands and mouth with her "dopatta" and tried to untie the Shalwar's string. The complainant raised an alarm which attracted her grandmonther Mst. Zohran, P. W. 2 and Saleem and Sadiq (who were given up) as well as Feroze Din, P. W.
3. The appellant feeling perplexed, came out of the kitchen, bolted it from outside but it was opened and Mst. Zohran, P. W. 2 untied the hands and mouth of her vand-daughter Mst.. Majeeda Bibi, P. W. 1,
3. The appellant was caught immediately. The First Information Report of this occurrence was recorded at Police Station, Rahimyarkhan which is at a distance of 15 kilometres from the place of occurrence, at about 10.00 p.m., the same day.
4. The complainant was examined by lady Dr. Mrs. Aisha Sher Muhammad, P. W. 5, on the 18th of March, 1979. She found the following injuries on her person :---
(a) A linear abrasion 1" covered with scab on inner side of left elbow joint on radial side.
(b) A linear abrasion 1" covered with scab on ulnar margin of inner side of left elbow joint.
(c) An abrasion 1/8" x 1/8" to first finger of left foot.
(d) An abrasion very superficial 1" x 1/8" on left knee joint.
(e) She complains of pain in chest and back but no mark of injury seen.
5. The appellant was also medically examined the same day by Dr. Anwarul Haq (not produced) who found him psychologically impotent. He was re-examined for potency by Dr. Muhammad Latif, P. W. 4 on the 25th of June, 1979. Dr. Muhammad Latif also examined him in order to determine his age. He found him to be between 16/17 years of age. On the question of potency, he was of the view that there was nothing to suggest that the appellant was not capable of performing the sexual intercourse. He arrived at this finding on the following observations :-
(i) Penis well developed.
(ii) Testicles well developed.
(iii) No abnormality seen in the penis and testicles.
(iv) No other abnormality found.
6. In order to prove the prosecution case on merits, Mst. Majeeda Bibi, P. W. 1, Mst. Zohran, P. W. 2, and Feroze Din, P. W. 3 were produced. Mat. Majeeda Bibi supported the case completely. Mst.
Zohran Bibi, her grandmother had to be cross-examined by the Public Prosecutor since she turned hostile. The statement of Feroze Din also is of the same calibre but it is also based on hearsay.
Sadiq and Saleem both were given up. It was stated that Sadiq had been won over and whereabouts of the Salem were not known. Another witness Tufail was also given up as won over.
7. The appellant denied the charge and all matters appearing in evidence against him except his medical examination by Dr. Muhammad Latif, P. W.
4. He neither led any defence evidence nor gave an explanation for his involvement in this case though he stated that the case was false.
8. It appears very clear from these facts that there has been some compromise between the complainant party and the appellant as a result of which Mst. Zohran Bibi did not support the prosecution case. The witnesses had also to be given up for that reason. The only evidence which requires consideration is the evidence of Mst. Majeeda Bibi.
9. The evidence of Mst. Majeeda Bibi, P. W. 1 who was aged about 10/11 years only on the date of occurrence and had also given the First Information Report Exh. P. A., fully supported the prosecution case and there is nothing on the record on account of which her testimony may be disbelieved. The version given by her is corroborated by the medical evidence of Dr. Mrs. Aisha Sher Muhammad, P. W.
5.
10. The learned counsel however urged that uncorroborated testimony of a prosecutrix is not sufficient for conviction of the appellant. In the present case, this question does not arise because I have already held that the testimony of Mst. Majeeda Bibi is amply corroborated. It is a point worth-noticing that there is no explanation on the record why the appellant should be involved by the complaint party in a false case. Only a suggestion A was made to Mst. Majeeda Bibi that her uncle Shah Nawaz wanted to take possession of the quarter in which the appellant is residing which she denied but this was not followed by either further cross-examination or any thing in' the statement made under section 342 or by defence evidence. The case against the appellant is fully established beyond any reasonable doubt.
11. The next question is whether the offence amounted to an attempt to commit Zina-bil-Jabr or simply an offence under section 354, P. P. C. The prosecution case is that Mst. Majeeda Bibi was first dragged inside the house to a room and from there to the kitchen obviously with the intent to subject her to Zina-bil-Jabr; her hands and mouth were tied by the Dopatta and an attempt was made to untie the string of her Shalwar. On these findings the learned counsel for the appellant relied upon Yaseen v. The State .
12. In that case the conviction under section 18 of the Ordinance was substituted by one under section 354, P. P. C. Para. 9 of the judgment gives the ratio of this distinction between the two provisions and is as follows :- "Now it is clear from the record that the appellant was at most found lying on Mst. Sardaran and trying to make her naked by removing her Shalwar. He did not succeed in the attempt at removal of the Shalwar. Some of the judgments of the Federal Shariat Court have gone only to the extent of holding that if the accused takes away his own Shalwar and is also successful in removing the Shalwar of the victim, it would amount to attempt at Zina-bil-Jabr. But in the present case even that stage was not reached. In the circumstances of the case if the Shalwar had been removed. I would have agreed with the finding of the learned Additional Sessions Judge that this was an attempt since the appellant was not only lying upon Mst. Sardaran but was also making an effort to commit sexual intercourse with her. 1 would also have agreed on this point with the learned Additional Sessions Judge if there had been evidence that the Shalwar had been torn from a place which would have facilitated the commission of the sexual act but even that evidence is not forthcoming since the Shalwar is not available. In these circumstances it cannot be held that the appellant had, been guilty of committing the offence of attempt under section 18 of the said Ordinance. Since he had committed another offence, under section 354, P. P. C. He can only be convicted and sentenced under that section."
This case is almost in all force with the present case. The appellant is therefore, held to have committed an offence under section 354, P. P. C.
13. Before parting with this case I would like to touch some other points arising in this case for the sake of future guidance. The learned Sessions Judge had given the benefit of section 7 of the Ordinance to the appellant' merely on consideration of age and given him light punishment. Notice for enhancement of sentence in exercise of provisional jurisdiction of this Court was therefore issued to the appellant. I have heard detailed arguments on the question.
14. It is no doubt true that despite the fact that the appellant in his own statement gave his age as 23 years, he was found on his medical examination to be less than 17 years old. If only his age is taken into consideration the order of the learned Sessions Judge cannot be said to suffer from any mistake in respect of applicability of section 7 but if it is proved that he had attained puberty on the date of occurrence, the consideration of his age will become futile and it will not be open to the Court to give him the advantage of the lesser sentence under section 7.
15. It is correct that there is no specific evidence on the record whether the appellant is in a position to discharge semen. The evidence of the two Doctors i,e, Dr. Anwar Hussain Shah, who found him to be psychologically impotent and Dr. Muhammad Latif who found nothing to suggest that he could not perform the sexual act is not different on the point of potency. Both excluded the possibility of there being any malformation which could result in organic impotence. Psychological impotence presupposes that a person is not physically impotent. The word impotence has been defined in varioue dictionaries. The following definition is given in Butterworths Medical Dictionary (Second Edition) at page 974. It defines impotence as :- "Inability to perform the sexual act (in contradiction to sterility-inability to reproduce), owing to failure of the reflex mechanism. As the female can perform the sexual act even without activation of the normal reflexes, impotence is correctly used, in a strict sense, only of the male.
Functional impotence.-Impotence in the healthy and fully matured male, invariably due to psychological causes.1 Organic impotence.--Impotence due to disease or abnormality of development, e.g. Extreme hypospadias, infantilism, tabes, etc. Primary impotence.-Impotence due to psychogenic causes; also used to denote relative or total failure of the primary sexual urge with resulting incapacity, e.g. The impotence which comes on with advancing age.
Psychic impotence, psychogenic impotence.-Functional impotence. Relative Impotence.-Inability to perform the sexual act with one or more particular women, though not generally. Secondary impotence.-Impotence due to organic causes; organic impotence.
15. It is clear from this definition that impotence in a male may be of several kinds. Organic impotence may be due to disease or abnormality of development. Primary impotence is due to psychogenic causes. Psychic impotence is inability to perform the sexual act with one or more particular women though not generally. Secondary impotence may also be due to organic causes.
The psychic or psychogenic impotence is the same as functional impotence which in the healthy and fully matured male, is invariably due to psychological causes.
17. In Price's Text Book of the Practice of Medicine (Oxford University Press, 1973) at page 601 it is stated that inability to achieve normal sexual intercourse due to persistent inability to have or sustain an erection constitutes impotence. Under the heading Etiology, it is stated.
"Penile erection and ejaculation depend upon a spinal reflex at the sacral (parasympathetic nerves derived from sections 2, 3 and 4 through the nervi- erigentes) and the lumbar levels (sympathetic nerves derived from L. 2 and 3). No less important are psychological stimuli from the higher cerebral centres which together with androgen secretion govern libido. Temporary impotence is common in any generalized illness, and also at times of psychological stress.
' Local causes of impotence include hypo- and epispadias, Peyronie's disease and Leriche's syndrome (atherosclerosis of the iliac arteries or aorta leading to intermittent claudication in the thighs and impotence). F Prostatectomy may also be followed by impotence. Neurological disorders that may cause impotence include diabetic neuropathy, in which impotence may be a very early complaint, other causes of peripheral neuritis, tumours or injuries to the caudal equine, spina bifida, disseminated sclerosis, tabes dorsalis and syringomyelia. Lesions of the cerebral temporal lobes are also some-times associated with impotence. Sympathetic ganglionic blocking drugs, used for the reduction of hypertension, may cause impotence, or more often failure of ejaculation. Most patients with hypogonadism (p. 598) experience impotence.
' In practice the commonest cause of impotence is a psychological disturbance. Sometimes this is an expression of a depressive illness but more often it is of a complex psychoneurotic nature particularly when the onset of the impotence occur early in life."
18. It is stated that in practice the commonest cause of impotence is a psychological disturbance and more often it is a complex psychoneurotic nature particularly when the onset of the impotence occurs early in life. In Medical Jurisprudence & Toxicology by Dr. S. Siddiq Hussain, the following psychological factors are given at page 167 i,e, "In males, e.g. Fear, timidity, aversion, hypochondriasis, excessive passion, or sexual over indulgence. These are a common cause.
' A man may be impotent with one woman, but potent with another."
' Detailed analysis is given in Modi's Medical Jurisprudence Toxicology at page 306, para 5, wherein it is said that: "Psychogenic origin.-A temporary absence of desire for sexual intercourse may result from fear, anxiety, guilt sense, timidity, aversion, hypochondriasis, excessive passion, and sexual over- indulgence. Persons with homosexual tendencies may be impotent. Sometimes, an individual may be impotent with one particular woman, but not with another. It should be noted that in a divorce suit the question to be decided is the incapacity of the husband for sexual intercourse with his married partner; his capacity for intercourse with other women is of no consequence in deciding case. Ignorance of sexual technique or infrequent intercourse in non-ovulating period may cause sterility."
In Attorney's Text Book of Medicine, Third Edition, Vol, 4-B, by Gordy Gray, para 301.32 Psychic Impotence is explained as under :- "Psychic impotence, far more common than organic, does not lend itself to orderly classification. In general such temporary or permanent impotence is caused by conscious and unconscious mental conflicts in the sexual sphere. Such conflicts may concern fears and anxieties, repeated frustrations and inhibitions, guilt complexes, a sexually incompatible wife, and the individual's inability to accept the mature sex role for any one or a combination of the latter. In addition, problems of latent homosexuality may play a large part.
' Libido which is an essential ingredient of potency is then described; ' Libido.-Libido, or sexual desire, is wholly dependent upon conscious and unconscious mental processes. Fear or failure, anxiety about impotence, false modesty, wounding of self-pride, boldness, timidity, and roughness, to name but a few of the many mental obstacles to satisfactory sex relations, may so destroy the delicate co-ordination between intellectual, sensory, and motor centers that impotence follows. Any significant stress in the life of an individual may temporarily cause impotence. This is not at all unusual and has no grave significance. Generally, impotence of this type is reversible when the stressful situation corrects itself.
' The discussion on Selective Impotence is explanatory of negative ingredients of impotence.
Selective impotence.-Perhaps the most characteristic symptom of psychic impotence is that it is selective in nature, that is, it occurs under one set of circumstances but not necessarily under another. There are various combinations of such circumstances. For example, a man may be impotent with his wife but potent with his mistress, or a man be impotent with a loved one, yet potent with a prostitute. This generally occurs because a man believes that the sex act is lowly and indecent and is under impression that sex belongs to the low instincts of his nature and is therefore incompatible with his spiritual life or feelings for a decent woman.
' The selective nature of impotence necessitates an awareness and understanding of the uniqueness of each individual, his psychology and his impotence. Generalizations made about causative factors in psychic impotence should not be applied indiscriminately. They do not tell much about a particular individual and the conflicts within him giving rise to impotence. In cases where a man is only impotent with his wife, for example, conditions such as prostrate trouble, anemia, and overwork may be blamed. In actuality, however, they serve as a "smokescreen" excusing feelings of hostility and resentment toward his wife which are more basic to the cause of his impotence.
' Impotence with a loved female, another prevalent form of selective impotence, may be explained as follows In the emotional development of a male child feelings of love towards his mother are older than sensual feelings arising at puberty. These love feelings must be freed from the mother and fused with the newer sensual feelings and both must be transferred to the wife in order for satisfactory sexual adjustment to occur. If this fusion and transference do not take place, the newer sensual feelings become attached to incestuous fantasies and the result may be impotence.
Hence, a man with genuine affection for his wife may be incapable of erection and coitus with his wife but not be impotent with women for whom he has no affectional attachment such as prostitutes.
' Still another common form of selective impotence is impotence prior to organism and ejaculation.
In such cases of impotence, the penis generally becomes limp after vaginal entrance and coitus is therefore terminated before orgasm and ejaculation have occurred. This sometimes occurs because lax musculature in a well-lubricated and multiparious vagina does not provide sufficient tactile stimulation to the glands penis to keep the erection in force.
' At the psychological level this type of impotence may be related to such factors as feelings of guilt, fear of discovery. Or fear of pregnancy. An additional cause may lie in the male feeling that his partner is unresponsive or disinterested. On a consistent basis this may lead a male to stop- making approaches to his wife or to be impotent on attempts at intercourse.
Acquired patterns.-Guilts, anxieties, and frustrations may develop as the result of a parental peer, religious, or environmental education which consciously or inadvertently promotes the concept that sexual activity is dirty and indecent." This conditioning may prove problematic to the degree that impotence will occur in varying degrees.'
' In Hexagon Roehe (Volume 10, 1982 Number 4) the psychological impotence is explained in the following manner :- "Psychological impotence.-Psyehological impotence is much the commonest sort. Often commencing with failure of erection at a hastily contrived and inappropriate first encounter, confidence is, shattered, and if reinforced with a further failure, more or less continuous failure supervenes. Such a clue to psychological impotence sometimes emerges clearly on detailed discussion. Another clue to this type is the admission that spontaneous erections do indeed commonly occur, such as on waking in the morning.
' Another common setting for psychological impotence is seen in the professional man, where huge protracted and unavoidable stresses are encountered, and preoccupation with business worries leads to impotence. Here, however, it is likely that the condition is only intermittent, with successful intercourse occurring at periods when his attention is diverted into more pleasant avenues. Excessive use of alcohol seems to aggravate the condition and reduction proves difficult when extensive entertaining goes with his job. Counseling might include regular exercise, a hobby or a holiday. Neurotic impotence has been considered in detail previously in this journal by Benedenfit. Depression also commonly causes impotence, but here the predominant concern is usually related to the features of the mental illness rather than the sex disturbance."
19. It is, therefore, clear from these definitions that psychological impotence is not a complete physical impotency. The only disability is disability to perform the act on account of psychological factors at a particular time. It is not however, of any significance in a case of attempt to commit the offence of zina or zina-bil jabr.
20. The next question is whether the word "potent" carries with it a sense of puberty because it is the word 'puberty' which has been used in section 2(a) definition of adult. The word puberty has been explained by this Court in a Full Bench decision in Sgrwar v. The State Cr. A. No, 156/I of 1982 decided on 15-2-1983. It was held that it is attained in a male when he is in a position to ejaculate. The proposition is well-settled that, "In the case of male, potency is indicated by power of erection of penis discharge of healthy semen containing live spermatozoa."
(Medical Jurisprudence & Toxicology) by Dr. S. Siddiq Hussain ' In Attorney's Text Book of Medicine by Gordy-Gray, paras.
301.02, potency is defined as follows : "Potency is a term commonly used to describe the ability to perform the sexual act. It includes the emotional and physical capacity for sexual desire and erection satisfactory for purposes of heterosexual intercourse, orgasm, and ejaculation."
' See also the Muslim Law of Divorce by K. N. Ahmed, pp. 383, 388. This view was judicially taken in two cases of Indian Jurisdiction, T. Rangaswami v. T. Aravindamma Wand Jagdish Kumar v. S. M. T.
Sita Devi .2 3 ' Under the Muslim Law which allows divorce on proof of impotency at the time of marriage, discharge of semen in the wife' s body is not an essential condition of coition but the question is not relevant in the present case in which the question is of interpretation of the medical opinion possible on the basis of medical data.
21. In some English cases this question was raised though it does not appear to be pertinent on the interpretation of the word 'consummation' which was the subject-matter of interpretation there.
However, the medical definition referred to therein is the same. Thus in Grimes v. Grimes . Beck's Medical Jurisprudence, p. 56 was relied upon by the Counsel suggesting that emission is an essential part of intercourse. It is said in the book that, "The inability to propel the semen out of its vessels is frequently to be considered as an absolute cause ; but generally it is a curable one."
' The reference by the counsel was to cause of impotency. But Finnemore, J. Observed that : "We are not concerned here with the medical side of the point and merely seek some further authority that emission is not of the qualities essential to produce a proper act of normal intercourse."
' The question before the Probate, Divorce and Admiralty Division was not thus of potency or impotency but simply the one posed by Finnemore, J.
22. The same proposition was relied upon in Cackett v. Cackett . Reference in that case was made to Shelford on Marriage and Divorce (1941), page 202, in which the author says: "Impotence then consists in incapacity for copulation, or in the impossibility of accomplishing the act of procreation. The manifest causes of impotence in both sexes are divided into physical and moral. The causes of impotence in man arise from two sources, from malformation of the genitals or from want of action in them ; but in females impotence can only, depend on malformation, either natural or acquired."
' Hodson, J. Observed : "It is said that it appears to have been thought that an essential part of the act of intercourse was the emission of seed into the body of a' woman, and in that connection I was further reminded that at common law, before the State. Geo. 4 C. 31, the emission of seed was an essential part of the evidence in criminal cases where carnal knowledge was involved."
' He however, held that emission was not an essential part of consummation which is completed by penetration. To the same effect is R. v. R. .
' In Medical Science thus potency is attained when the male is able to dis charge semen.
Once it is held that out of the ingredients of puberty, the ingredient of ability to perform sexual act completely (after attaining seminal discharge) is common to puberty and potency both, it must follow that a person hel potent on medical examination is also a puberty and is not entitled to the benefit of section 7 of the Ordinance
23. The opinion of Dr. Muhammad Latif is stated to be a negative opinion that there is nothing in the appellant to deduce that he is not fit to perform the sexual act. The question is whether this opinion is an opinion in favour of his potency. This point was explained in Parikh's Text Book of Medical Jurisprudence and Toxicology by C K. Parikh (at pages 441 and 442) which is reproduced below :- "If the Medical Officer finds that the person is normal in all respects, that is, he is physically well- developed, his genitals are normal, his secondary sex characters are also well developed and any, obvious cause of impotence is excluded, he is justified in certifying that there is nothing to suggest that the person is impotent. Accordingly, an opinion can be given only in negative form that there is nothing found on examination which would prevent the consummation of marriage. Cases of alleged impotency from disease or following trauma, requiring medical evidence, often cause difficulty."
' In Modi's Medical Jurisprudence And Toxicology page 303, it is stated that4 5 6 "It is therefore, necessary for the medical jurist to ascertain by an examination of the individual in a case of disputed potency, if there is any abnormal condition which is likely to interfere with the normal function of copulation."
' The Doctor can, therefore, certify potency by taking the negative stance that there is no such abnormal condition.
From this it is clear that such negative opinion is given by the Doctors,IK generally wherever they find in favour of potency of the male.
24. The result is that the revisional notice is discharged, the appeal is allowed and the conviction under section 18 read with section 10(3) of the Ordinance is converted into one under section 354, P.
P. C.
25. The appellant shall now undergo two years' rigorous imprisonment and Rs, 2,000, as fine which if recovered would be paid to the prosecutrix. In case of default in payment of fine he shall undergo rigorous imprisonment for a further period of six months. The period during which he remained in Jail during trial shall be deducted from the period of imprisonment referred to above. P D 1983 FC 53 AIR 1957 Mad. 243 AIR 1963 Punj. 114 (1948) 2 All E R 147 (1950) 1 A E R 677 (1952) !All E R 1194