' FAKHRUDDIN H. SHAIKH, J.--This is an appeal from the judgment of Mr. Sabah Mohy-ud-Din Khan, Additional Sessions Judge, Rawalpindi, dated 31-3-1986, whereby the appellant was convicted of offences under sections 450, P.P.C. And 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced as under:-
(i) Under section 450, P.P.C. To R.I. For three years and to pay a fine of Rs,1,000 or in default of payment of fine to further undergo R.I. For six months.
(ii) Under section 10(3) of the said Ordinance to R.I. For ten years and whipping numbering fifteen stripes.
2. The allegation against the appellant was that on 30-5-1985 at about 2 p.m. The appellant had entered the house of Mst. Hajran Bibi and subjected her daughter Mst. Rukhsana Bibi to Zina, when she was alone in the house.
3. It is alleged that Mst. Rukhsana Bibi had raised alarm which had attracted her mother Mst.
Hajiran Bibi, who had rushed to her house and found Mst. Rukhsana lying naked, but the appellant had, on seeing her, ran away. This incident had taken place on 30-5-1985 at 2. p.m. In village Shakrial, where the parties lived in different portions of the same house as tenants of one Gulzar, Mst. Hajiran Bibi had gone to the Police Station Saddar on 3-6-1985 and lodged report, which was recorded by Mr. Altaf Hussain S.1. Mst. Rukhsana Bib!, whose age has been stated as 15/16 years, was sent to Woman Medical Officer for examination. The report of the Woman Medical Officer, namely, Lady Dr. Fauzia Syed F.W.2 was that there were no marks of violence on any part of the body of the alleged victim, that her hymen was torn and healed with slight laceration on the posterior fourchette and that the vagina admitted one finger easily and two fingers with difficulty.
Two vaginal swa bs were taken and sent to the Chemical Examiner for detecting semen. The report of the Chemical Examiner was that semen was detected in the vaginal swabs. The Shalwar of the girl was also taken and sent for chemical analysis, the result of which was in the positive.##TE# 4.It support of the prosecution case there is evidence of P.w.1Dr Tahir Aziz, who had taken X-Ray of Mst. Rukhsana Bibi to determine her age on the basis of. Rukhsana Bibi, the alleged . Hajiran Bibi, an eye-witness of the incident and Ahmad, who had examined the appellant to determine ossification test, P.W.2 Lady Dr. Fauzia Syed, referred to above, P.W.3 Altaf Hussain, H.C. , P.W.4 Ehsan Ali F.C.
5. The main witnesses are Mst. Rukhsana Bibi and Mst. HajiranBibi (P.Ws.6 and 7 respectively). Mst.
Rukhsana Bibi has stated that the appellant, who was her close neighbour resided in, different portion of the same house, finding her alone came to her house made her lie in the room and committed Zina-bil-Jabr with her, that she had cried which attracted her mother Mst. Hajiran Bibi but the appellant ran away. The very statement of the prosecutrix shows that no force or threat was used to compel her to submit herself to the sexual lust of the appellant. From her statement it appears that for about half an hour the appellant had continued the sexual intercourse with her which was impossible, unless she was consenting party.
6.P.W.7 Mst. Hajiran Bibi has stated that on the day of inciden she had gone to Bazar for shopping leaving her daughter Mst. Rukhsana Bibi in the house and that she returned on 1-00 or 2-00 p.m.
And near her house when she heard shrieks of Mst. Rukhsana Bibi, that she rushed into the room where Mst. Rukhsana was raising shrieks and found the accused running away with his Shalwar while Mst. Rukhsana was lying on the floor with her Shalwar lying aside. It would appear that Mst. ,Hajiran Bibi had reached her house after the appellant had completed sexual intercourse and had discharged that is why semen was detected in her vaginal swabs. The appellant must have taken sufficient time to complete the act and if the prosecutrix was unwilling party to this affair she must have continued raising cries all the time. But she does not say that she continued raising alarm during the entire period she was covered by the appellant. It is in evidence that on the first floor of the same house the landlord of the parties namely Gulzar lived with his family. If the girl had actually raised alarm then the most probable person to be attracted would have been Gulzar and inmates of his house, but none of them had reached. The presumption, therefore, is that Mst.
Rukhsana was consenting party and had raised cries only when she was surprised by the sudden arrival of her mother Mst'. Hajiran.
7.The medical evidence also suggests that she was a willing party, because na marks of resistance or violence were observed on her person, although the act was committed on the floor of the room in which she lived.
8. The only question that remains is whether her consent in the present case would bring the case within the purview of section 10(2) of the said Ordinance. According to Dr. Tahir Aziz P.W.1 who held ossification test, the bony age of Mst. Rukhsana was 15 years. But in cross-examination he admitted that the age can be one year more or less than mentioned in the report. It means that possibility of the prosecutrix being aged 16 years at the time of the incident is not ruled out. From the evidence of P.W.2 Lady Dr. Fauzia Syed, it would appear that the prosecutrix had already attained puberty. In any case at the age of 16 years she should have attained puberty and as such was capable of giving free consent to the sexual act. Consequently we hold that the appellant had committed Zina punishable under section 10(2) of the said Ordinance. The conviction is, therefore, altered from section 10(3) to section 10(2) of the said Ordinance and sentence is reduced to R.I. For four years with whipping numbering thirty stripes and also to pay fine of Rs,1,000 or in default of payment of the fine to further undergo R.I. For two months. The conviction and sentence under section 450, P.P.C. Is, however, maintained. The substantive' sentences shall run concurrently. The appellant shall also get benefit of the period of detention suffered by him during the trial as laid down in section 382-B, Cr.P.C.