' Yaseen appellant was convicted by Mr. Iftikhar Ahmad Cheema, Additional Sessions Judge lInd, Sahiwal on 18th of January, 1982 under section 10 (3) read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 7 years' R, I. And 15 stripes.
2. Hence this appeal.
3. The appellant and the victim of the offence namely Mst. Sardaran aged about 12 years are real cousins. The prosecution case is that on 23-10-1980 at about 8-00 a.m. When Mst. Sardaran was in the maize field of her father, she was made to lie on the ground by the appellant who unsuccessfully tried to remove her shalwar and in this manner attempted to commit rape or Zina- bil-Jabr with her. Mst. Sardaran raised hue and cry which attracted to the spot her father Yusuf Ali, P. W. 2, Musa P. W. 4 and Talib P. W.
5. Yusuf Ali was milking his cows at that time in his Dhari which is at a very short distance from the abovementioned maize field. Musa was irrigating his lands at that time while Talib was a passerby.
Seeing them arrive towards the spot the appellant fled away. The prosecution case in the F. I. R. Is that the said report was delayed by about 24 hours since the accused had been trying to hush up the matter by bringing about a compromise between the patties, but Yusuf All P. W. 2 did not agree to this suggestion. The prosecutrix was medically examined by Lady Doctor Farhat Atthar, S. W. M.
0. Hospital, Okara on the 22nd of October, 1980, at about 4-45 p. m., who found the following injuries on her person : (0 An abrasion 5' x1' on back and outer side of left upper arm side of the left upper arm about 1" above left elbow joint.
(2) An abrasion I x 1 on back of right upper arm about 1' above right elbow joint.
(3) Multiple abrasion in an area of 4 x on right seapalm.
(4) An abrasion 4' x 1" on right side of the back about 1" below and 2" middle to injury No, 3.
(5) An abrasion ir x j' below arm and upper to the left seapalm, Scapula.
(6) Multiple abrasion in an area of 6' x 2' on left side of the back, about 1#" on seft side of the spine and about 1" below injury No, 5.
' The Shalwar of Mst. Sardaran was taken in possession by the police by Memo. Exh. P. C., but this piece of evidence is not material since the Shalwar was not produced in Court and was stated to be missing.
4. The prosecution version was supported in its entirety by P. W. 2 Yusuf Al P. W. 3 Sardaran, P. W. 4 Musa and P. W. 5 Talib. Except for very minor discrepancies the evidence is straightforward and there is nothing which may render it unbelievable. Moreover it finds ample corroboration from the medical examination.
5. It is clear from the record that the relations between the complainant and the appellant have never been inimical. Only a remote suggestion was made to Yusuf Ali that Musa who had contested the election for Vice-Chairmanship of the Local Council against the father of Yaseen appellant was supported by Yusuf Ali. This suggestion was denied. It is however strange that no such suggestion about such support was put to Musa. Even otherwise it is not believable that Yusuf will become a party to any vengeance by Musa against the father of the appellant by dishonouring his own daughter, who was aged about 12 years only.
6. In his statement under section 342, Cr. P. C. The appellant stated as follows : "I have been falsely implicated in the instant case because I surprised Mst. Sardaran and Ghulam Rasool of or village making love in the sugarcane field. I gave beating to said Ghulam Rasool and informed the parents of Mst. Sardaran who got annoyed with me on the ground that I had disgraced their daughter."
' To support this assertion he produced D. W. 1 Muhammad Shafi his maternal uncle who is also similarly related to Mst. Sardaran but this witness did not give whole-hearted support to him. On the other hand he, only stated that about a year ago at about chhahwela when he was present in his field he was attracted by an alarm coming from the sugarcane field of one Ghulam Hussain He rushed towards the spot and found Yusuf Ali, P. W. 2 and his daughter, Mst. Sardaran P. W. 3 standing at a public path. On his enquiry they informed him that Ghulam Hussain had molested Mst. Sardaran and had disappeared in the sugarcane field. He also joined the search party who ultimately found Ghulam Hussain and brought him before the Superintendent Stud Farm Bahadar Nagar.
7. It will be seen from this that the complaint that Ghulam Hussain had molested the girl was made by Yusuf Ali as well as Mst. Sardaran to D. W.
1. This complaint was not made by the appellant nor his presence is shown by the witnesses at the spot. In these circumstances the question of any annoyance caused by him to the complainant party does not arise. Even otherwise it is not possible to agree that the appellant would be substituted for the real offender, if any, In my view the offence has been proved against the appellant beyond any shadow of doubt.
8. The question however is whether the appellant has been guilty of an attempt to commit rape or it was merely a stage of preparation. If it is held that activities of the appellant had not crossed the stage of preparation he would be guilty under section 354, P. P. C. For having committed a different substantive offence of assaulting or using criminal force on Ms/. Sardaran with intent to outrage her modesty.
9. Now it is clear from the record that the appellant was at most found lying on Mst. Sardaran and trying to make her inked 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 attemp 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. I 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 evident 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 con evicted and sentenced under that section. I therefore allow this appeal, set aside the conviction and sentence under section 18 and convert the conviction to one under section 354, P. P. C. The appellant shall undergo two years' I. And pay Rs, 2,00 as fine. If the fine is recovered a sum of Rs, 1,500 shall be paid to Mst. Sardaran as compensation. In case of default in th payment of fine the appellant shall undergo further R. I. For a period of six months