' FAKHRUDDIN H. SHEIKH, .1.-The appellant has filed this appeal from the judgment of the Additional Sessions Judge, Leiah, dated the 20th September, 1983, whereby the learned Judge had convicted the appellant of offence under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance,.1979, and sentenced to undergo R. I. For 7 years and whipping numbering 30 stripes. He was further directed to pay a sum of Rs, 5,000 to the victim Mst. Naheed Kausar as compensation, or in default of payment of the fine to suffer S. I. For 6 months as provided by section 544-A of the Code of Criminal Procedure.
2. The case of the prosecution is that on 23-5-1982 at about 5 p. m. Complainant Abdul Hameed and his brother Abdul Majid were returning to their house after day's work. When they reached the reed bushes near their village, they heard shrieks of Naheed Kausar, aged about 10 years, the daughter of the complainant. Abdul Hameed and Abdul Majid reached towards the bushes and found that the appellant was committing rape upon the child. On seeing the complainant and Abdul Majid, the appellant ran away. The child Naheed Kausar was found bleeding from her vagina.
In the mean time two more persons namely Abdul Rehman, Lambardar and Rahim Bakhsh also arrived. It is alleged that they had also seen the appellant running away towards the village.
3. Complainant Abdul Hameed removed Naheed Kausar to his house and on the next day lodged report of this incident which was recorded by Mr. Ghulam Shabir, Head Constable of Police Station, Leiah which was 31 miles away from the village of the complainant.
4. Naheed Kausar was referred to Lady Medical Officer of Leiah for examination and report. The blood-stained Shalwar of the victim was also produced by the complainant which was sealed into a parcel and sent to the Chemical Examiner.
5. It may be stated that earlier on 24-5-1982, Mr. Muhammad Amir, A. S. I. Of Police Post, Chowk Azam, had recorded the complaint of Abdul Hameed and sent the same to Police Station, Leiah for being recorded as F. I. R. Which was done by H. C. Ghulam Shabir. Mr. Muhammad Amir started investigation. On 25-5-1982 the A. S. I. Went to the scene of offence and prepared the site plan. The same day he recorded statements of witnesses Abdul Majid and Rahim Bukhsh. On 5-6-1982 the appellant was arrested and on the next day he was referred to Rural Dispensary, Chowk Azam for examination. After completing the investigation the case was sent up for trial.
6. In support of the prosecution case, there is ocular testimony of P. W. 1 Abdul Hamid, complainant, P. W. 4 Abdul Majid and the victim A Naheed Kausar (P. W. 2). They are corroborated by P. W. 3 Abdul Rehman who had arrived on hearing the cries and had seen the appellant running away.
7. Dr. Muhammad Assadullah (P. W. 5) had examined the appellant on 6-6-1982. According to him the appellant was aged 14 to 16 years, and was capable of committing sexual intercourse. In cross- examination he has stated that he could not say if the appellant present in the Court was the same person who was examined by him. There can be no doubt about the identity of the person who was examined by Dr. Assadullah. The identity is established by P. W. 7 Muhammad Amir, A. S. I. Who has deposed that he had himself produced the appellant before Dr. Assadullah for examination.
8. The next important witness is Dr. Yasin Javed, W. M. O. Of Leiah, who had examined Naheed Kausar on 24-5-1982 and found the following :- "(1) No marks of violence on body and private parts at the time of examination.
(2) No marks of blood/semen on her body and private parts and clothings at the time of examination.
(3) Her gait is not normal, she walks with little difficulty. On Internal Examination :
(1) No marks of brussing lacerations on her external genitus.
(2) Hymen torn small swollen granular tags of tissue and it allows two fingers to pass in with difficulty due to pain."
' In her opinion the victim was not virgin at the time of the examination. In other words she was subjected to sexual intercourse. The lady doctor has avoided to say in clear words that rape has been committed upon the victim. Instead she chose to depose that the victim who was admittedly 10 years old, was not virgin. From the tenor of the statement of the lady doctor it appears that she has not been quite honest in giving frank and straightforward opinion about rape having been committed upon the child. She had taken 3 vaginal swabs and forwarded them to the Chemical Examiner, Punjab. The report of the Chemical Examiner which has been produced as P/F shows that the swa bs were stained with semen and blood.
9. It is not necessary to refer to the other witnesses whose evidence is a formal nature, as they are police officials.
10. In his statement under section 342, Cr. P. C., appellant Muhammad Razaq has denied having committed rape upon Naheed Kausar. He has also denied that he was sent to Medical Officer of Chowk Azam for examination. He has given his age as 12 years and has also produced School Leaving Certificate Exh. DJA, which shows his date of birth as 17-6-1971. When asked as to why the witnesses had deposed against him, his answer was that they have deposed due to enmity. He does not elaborate as to what was the nature of the enmity and with whom. He has not produced any evidence in defence.
11. The fact that the appellant had committed rape upon the 10 years old child Naheed Kausar, is proved beyond any shadow of doubt from the ocular testimony of P. W. 1 Abdul Hameed and P. W. 4 Abdul Majid. They are further corroborated by P. W. 3 Abdul Rehman, who is resident of the same village in which the parties reside. He had seen the appellant running away from the scene of offence. It may be stated that the complainant and the appellant are residents of the same village and their houses are adjacent to each other. Perusal of the statements of the victim and the witnesses shows that there is a ring of truth in their evidence. No question has been asked from any of them about the enmity. Even the learned counsel for the appellant conceded that he could not challenge the evidence of the eye-witnesses on the ground of any alleged enmity. This being the case we do not find any reason to disbelieve the child victim and Abdul Hameed and Abdul Majid who are neighbours of the appellant. There was no motive whatsoever to implicate the boy, as the appellant who is, in a false case. The learned counsel for the appellant has argued that the Chemical Report and the Report of the Serologist regarding clothes of the victim, cannot be taken into consideration, because no question in respect of these documents was asked from the appellant during his examination under section 342, Cr. P. C. The argument has force, but even if these two documents are kept out of c consideration, still the ocular testimony proves beyond any shadow of doubt that the appellant had ravished the child. The version of the victim and the two ocular witnesses is supported by the lady doctor from whose evidence it is clear that the child was subjected to sexual intercourse.
12. The learned defence-counsel has further argued that the identity of the person who was examined by Dr. Assadullah has not been established because the doctor has not obtained any thumb-mark or signature of the person examined by him on the medical certificate Exh. P/C.
Moreover, the Medical Officer was unable to say if the appellant was the same person who was examined by him. No marks of identification even D have been mentioned in the medical certificate. The admission of Dr. Assadullah relied upon by the defence counsel does not help the defence in any way because P. W. 7 Mr. Muhammad Amir, A. S. Has categorically stated that he himself had produced appellant Muhammad Razaq before Mr. Assadullah for examination. Thus, the evidence of Mr. Muhammad Amir leaves no doubt the identity of the person who was examined by Dr. Assadullah and in respect of whom the medical certificate Exh. P/C was issued.
13. It has also been argued that the clothes of the victim were sealed into a parcel on 24-5-1982, but were sent to Chemical Examiner on the 10th of July, 1982, that is after about 14- months. It has further been argued that there is nothing on the record to show as to how these parcels were handled during the intervening period because the Police Officer who had kept these parcels with him during this period has not been examined. There is no force in this argument because there is ocular testimony to the effect that Mst. Naheed Kausar was found bleeding at the spot by Abdul Hameed, Abdul Majid, Abdul Rehman, P. Ws. And that they had also seen blood at the Shalwar of the child.
14. For the above reasons we do not find any reason to disbelieve the prosecution evidence, and hold that the appellant was rightly convicted of committing Zina-bil-Jabr with Mst. Naheed Kausar.
15. The question which has agitated our minds is whether the appellant should be given benefit of section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. According to Dr. Assadullah the appellant was aged 14 to 16 years at the time of the examination which was held after a week to the incident. The School Leaving Certificate produced by the appellant shows that the appellant was aged 11 years at the time of the incident. No doubt Dr. Assadullah has stated that the appellant was capable of committing sexual intercourse but the question is whether this capacity alone would bring the appellant within the definition of 'adult' as laid down in section 2(a) of the said Ordinance. According to the above section 2(a) 'adult' means a person who has attained, being a male the age of 18 years or, being a female the age of 16 years, or has attained puberty. Thus, in the case of a male a person shall be deemed to be adult if-
(i) He has attained the age of 18 years; or
(ii) has attained puberty.
' The law has not defined as to when a person shall be deemed to have attained puberty.
Reference in this connection may be made to Medical Jurisprudence by Modi, 14th Edition. On page 304 of the book the learned author has this to say about the puberty of a male person :- 'Boys are considered to be sexually potent at the age of puberty which usually occurs at the fifteenth or sixteenth year. Sexual intercourse is, however, possible at about the thirteenth or fourteenth year, as the power of coitus commences earlier and ceases later than the power of procreation. The changes which occur in a boy at puberty are development of the genital organs, the ability to secrete semen, the growth of hair on the pubes, axillae and chin, and the increase in size of the larynx leading to the deepening of the pitch of the voice. When examining an individual for sexual capacity the medical jurist should depend more on physical development than on age alone."
16. From the above observations it would appear that capacity) to commit sexual intercourse alone would not be sufficient to hold all male to be a pubert. In order to establish puberty it must be shown that the genital organ is sufficiently developed, that there is ability to secrete semen, that the public and axillary hair are sufficiently grown. It would further appear th it the size of larynx should be sufficient in size so as to lead to the deepening of the pitch of the voice. Unless these signs are present in a male, it would be difficult to say that he has attained puberty. The Medical Officer Dr. Assadullah has not referred to the above signs so as to enable the Court to arrive at a definite conclusion about the puberty of the appellant.
17. The most important of all the above symptoms of puberty is the ability to secrete semen, or the capacity to impregnant a female. Dr. Asadullah has not referred to this symptom. Moreover, no semen was found on the body or clothes of the victim child. The eye-witnesses had seen only bleeding from her vagina, as a result of which her Shalwar and shirt had also got blood stained.
The Chemical Report Exh. P/G also shows that only blood stains were found on the shirt and Shalwar of the child. Reference to Chemical Report can be made if it is inj favour of the accused/appellant, although no question was put to him by the trial Court about it while recording statement under section 342, Cr. P. C. This section places embargo upon those pieces of evidence which are against an accused and not upon those which are in his favour and about which no question is put to him.
18. We are, therefore, inclined to hold that the appellant was aged about 11 years at the time of the incident according to his School Leaving Certificate and that he has not been proved to be adult by the medical evidence. This being the case, the appellant was entitled to the benefit of section 7 of the said Ordinance, which provides that a person guilty of Zina or Zina-bil-Jabr if he is not an adult, be punished with imprisonment of either description for a term which may extend to 5 years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding 30 stripes. In the case of Muhammud Hussain v. Muhammad Ramzan and another (1), the accused aged 14 years was held to be not an adult; and sentence for offence of Zina under section 7 of the Ordinance was reduced only to fine Rs, 8,000. In the present case the appellant has already suffered about 1z years' rigorous imprisonment from the date of his conviction. We, therefore, feel that the period of imprisonment already undergone plus fine of Rs, 5,000 as awarded by the trial Court shall adequate punishment for the offence proved against the appellant.
19. Consequently the appeal is partly allowed. The sentence of imprisonment is reduced to the period already undergone, but the sentence of fine amounting to Rs, 5,000 which is payable to the victim as compensation, is maintained. He shall be released as soon as the amount of fine is paid, if not required in any other case. In default of payment of fine he shall suffer simple imprisonment for six months. The sentence of whipping is also remitted. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.