1. ' Javid accused aged 14/15 years has been tried by this Court under sections 364-A PPC as well as 377 PPC for abducting Mst. Saira aged at that time about 6 years from the lawful guardianship and committing carnal intercourse against the order of the nature with her.
2. The facts of the prosecution can as laid down in the complaint Ex.PB are:- ' That Mst.Saira daughter of Mst.Asia complainant (PW 4) went to school on 27-5-1986 but did not return after school time. The complainant, therefore, started from her house in her search alongwith her son Mohammad Ashfaq (PW.7) and while going in the lane, heard shrieks emanating from Quarter No, 242-A Railway Colony situated near the house of the complainant. On hearing the shrieks the complainant as well as her son Ishfaq Ahmad, went inside the courtyard of Quarter No,242-A and saw that Mst. Saira was lying on the ground with her shalwar lying near her. Javid accused on seeing them, approaching, ran away by scaling over the broken wall having the string of his shalwar in his hands.
2. ' Mst. Saira PW was weeping as well as bleeding from her rectum. Mst. Saira complainant (PW.4) first took her to house and then started for going to the Police Station alongwith Mst.Saira (PW.8) and in the way met Sub-Inspector. Allah Ditta PW.9 Chowk Railway Khanewal where he recorded the statement Ex.P.B. Of Mst. Asia (PW.4) at 12.40 noon the same day.
3. ' The Sub-Inspector sent the complaint Ex.P.B to the Police,--Station Khanewal for formal registration of case where F.I.R. Ex.P.B/1 was recorded by Mohammad Sharif (PW.2) at 12.50 noon the same day. The distance between the house of the complainant and the Chowk Railway where the complaint Ex.P.B. Was recorded was 21 furlongs while the distance between the Chowk and Police Station was 3 furlongs.
4. ' The Sub-Inspector then sent the girl to Civil Hospital where she was medically examined by the Lady Doctor Zahida Khanum S W M 0 (PW.5) at 1.30 p.m the same day. The Lady Doctor Zahida Khanum (PW.5) found that the 'Pajama' of the girl was stained with some secretion. She also found three small lacerations on her anus towards mucus membrane, at 12.00 o'clock, at 6.00 o'clock and at 7.00 o'clock position respectively. Blood was also oozing out of laceration on touching and she was feeling pain and tenderness during medical examination. Anal sphincter was patulous than normal. She gave the medico-legal report Ex.P.0 with the opinion that penetration had been done.
5. The Lady Doctor also took four anal swabs of Mst. Saira and sealed the same in a bottle. She also prepared a sealed parcel of the Pajama of Mst. Saira and handed over the same parcel of the Pajama as well as the anal swa bs and the sealed envelop to Allah Ditta SI PW.9 for onwards transmission to the office of Chemical Examiner Multan.
6. ' Javid accused was arrested on. 27-5-1986 by Allah Ditta Sub-Inspector PW.9 from the lane near the mosque in the Railway Colony Khanewal. He sent the accused to the Civil Hospital for medical examination in order to know whether the accused was sexually fit.
7. ' The accused was medically examined by Doctor Mohammad Irshad PW.1 Senior Medical Officer Khanewal at 1.00 p.m on 28-5-1986 and gave the opinion vide his report Ex.P.A/1 that he was sexually fit to perform intercourse. Allah Ditta Sub-Inspector PW.9 had earlier inspected the spot, prepared sketch Ex.P.D of the place of occurrence and had recorded the statements of the witnesses. He got the accused challaned.
8. ' The accused was charged under section 364-A PPC and 377 PPC to which he pleaded no guilty to both the charges and claimed to be tried.
9. ' The prosecution examined 11 witnesses including Dr.Mohammad Irshad PW.1 who medically examined the accused in regard to his potepcy. Lady Doctor Zahida Khanum PW.5 who medically examined the victim and Allah Ditta SI PW. 9 who investigated the case. The ocular account in this case is furnished by Mst. Asia complainant PW.4, Mohammad Ashfaq PW.7 and Mst. Saira the victim PW.8. The rest of the evidence is of formal nature.
10. ' The parcels of blood-stained Shalwar, sealed phial and sealed envelope by Allah Ditta SI PW.9 were handed over to Iltaf Hussain PW.6 who gave the same to Mohammad Iqbal FC PW.3 intact.
11. Mohammad Iqbal constable PW.3 secured the same and delivered the same in the office of Chemical Examiner on 3-6-1987.
12. ' The prosecution submitted an application to get the accused medically examined in respect of his age. The application was allowed in the interest of justice.
13. ' The accused was examined by Medical Board consisting of Dr. Mohammad Afzal Hashmi, Medical Superintendent, Civil Hospital, Multan PW.11 as well Dr. Mohammad Ashraf Associate Professor of Radiology Nishter Hospital, Multan. After taking X-Ray etc. And the opinion of the Board vide report Ex.P.H, Dr.Mohammad Afzal Hashmi PW.11 stated that his age was 14 to 15 years.
14. ' The substance of the evidence of Mst. Asia complainant PW.4 is that about 1(1/2) years earlier when Mst. Saira PW.8 did not return home from the school, she, alongwith her son Mohammad Ishfaq PW.7, went in search of her towards her school and while going in the lane in front of Quarter No,242-A of their own Colony (Railway Colony) they heard cries emanating from inside the said quarter. On hearing cries she as well as Mohammad Ishfaq entered the courtyard of the said quarter and saw Mst.Saira lying on the ground and her shalwar was lying by her side. She also saw the accused near Mst.Saira having the string of his shalwar in his hands. On ,seeing the complainant and her son Mohammad Ishfaq, the accused ran away from the spot by scaling over the broken boundary wall of the said 'uurtyard. Mst.Saira was bleeding from the rectum. She was taken to her home where Mst.Saira PW.8 told the complainant as well as Mohammad Ishfaq PW.7 that Javid accused had laid her on the ground with her back towards the sky and that thereafter the 'accused had committed carnal intercourse against the order of nature with her. The complainant then took the victim towards the police station and when they reached Chowk Railway Station Khanewal, Allah Ditta SI PW was present there, who recorded her complaint Ex.P.B which she thumb marked in token of its correctness.
15. ' Mst.Saira the was sent to the Civil Hospital for medical examination where she was medically examined. She denied the suggestion of the learned Defence Counsel that she had made any statement or affidavit in favour of the accused but admitted that her husband was employed as a Driver in the Railways and that the Officers of Railways alongwith father and mother of the accused had come to them and had pressed them that the accused should be pardoned. She further stated that the Railway Officers accompanied by the father of the accused had told them that the accused was ill in the jail as well as the mother of the accused was ill and therefore, she should have mercy and put her thumb-impression on some paper so that the accused is released on bail.
16. She admitted to have put her thumb-impression on some paper in these circumstances. She denied the suggestion that she had not seen the occurrence. She also denied the suggestion that she had named the accused out of suspicion.
17. ' Mohammad Ishfaq PW.7 who is son of Mst. Asia complainant PW.4 has also supported the version given by Mst.Asia PW.4 in minor details. He also stated that he had seen the accused running from the spot while scaling over the broken boundary wall. He also stated that Mst. Saira PW.8 had also stated immediately after the occurrence, while in her home, that Javid an accused had committed carnal intercourse against the order of nature with her by laying her on the ground with her face towards the ground. He stated that point No,1 in the sketch Ex.P.D where the accused was standing, was 5/6 feet away from the point No,2 from where he had seen him. He also denied the suggestion that he had involved the accused out of suspicion.
18. ' In order to ascertain, whether Mst. Saira PW.8 being about 6 years of age, was competent to give evidence, I .Put her a few questions and after being satisfied that she was quite intelligent to understand the questions and was capable to give rational answers, I examined her on oath. She fully supported the prosecution case and stated that she was coming from the school the accused- met her in the lane and offered to get toffee for her. The accused then got toffees to her from a vendor in the lane and then took her inside the quarter where he committed this act with her. She cried and at that time her mother and brother came to the spot when the accused was still there. She further stated that the accused had met her in the lane outside the quarter and had taken her inside the courtyard from the lane from in front of the said quarter. She denied the suggestion that she had been tutored by anybody.
19. ' The Public Prosecutor tendered in evidence the report of the Chemical Examiner Ex.P.J and closed the prosecution case.-Accoding to the report Ex.P.J the anal swabs as well as-Pajama of the victim was stained with semen.
20. ' According to the prosecution the parcel of S.Halwar of the victim after having been received back from the Civil Hospital had been lost in the Malkhana' and therefore a case u/s. 409 PPC had been registered in this regard.
21. ' The prosecution examined Bashir Ahmad- A.S.I. P.W.10 who stated this fact and produced original copy of the F.I.R. Ex.P.F. For the reasons stated above the Pajama of the victim, therefore, could not be produced in the Court.
22. ' The accused when examined u/s. 342 Cr.P.C. Denied that he committed carnal intercourse against the order of nature with Mst, Saira PW.8 and stated that he had been involved due to suspicion as well as due to mistaken identity.
23. ' The accused appeared in the Court and made the statement on oath as provided in section 340
(2) Cr.P.C. And reiterated that he had not committed any offence and had been involved due to suspicion and mistaken identity. He admitted that his father or anyone else did not submit any application to any authority about this fact that he had been involved due to mistaken identity or suspicion. He admitted that during the days of occurrence he and his father used to live in a quarter of Railway Colony Locoshed.
24. ' I have heard the arguments of the learned Defence Counsel as well as the Public Prosecutor and have also gone through the evidence thoroughly. The ocular account in this case, as furnished by Mst. Asia PW.4 and Mohammad Ishfaq PW.7 is consistent, straightforward and confidence inspiring.
25. There is nothing on record to cast doubt on their testimony. When the girl Mst.Saira PW.8 did not return from A the school, it was quite natural for her mother Mst. Asia (PW.4) t be worried as she was a girl of tender age and therefore her goin in her search was obvious. The reason given by Ishfaq PW.7 fo coming back to his house at 11.00 o'clock looks quite plausible when he stated that he was observing fast, therefore, had come back a 11.00 a.m. Both these witnesses have no enmity or reason to depose falsely.
26. ' The learned Defence Counsel has argued that both the witnesses had admitted during the cross- examination that they had put their thumb-impression on certain paper on the asking of the father of the accused as well as the Railway Officer, the contention of the learned defence counsel is that due to this reason their evidence should be disbelieved qua, the involvement of the accused in this case.
27. ' I find no force in the contention because both the witnesse have very frankly and straightforwardly stated that pressure ha been put upon them by Officers of the Railways as well as the father of the accused saying that the accused was ill in Jail as well a mother of the accused was ailing, therefore, they should pardon the accused and let the accused be released on bail. It is a matter of common experience that the accused or his relations "do put ever sort of pressure on the complainant and eye-witnesses and so there was nothing unusual for them to had done so.
28. Nothing can be pointed out in the evidence which could show that the eye-witnesses had ever given any indication that the accused was not the real culprit. The evidence of both the eye- witnesses therefore, is quite natural and worth reliance.
29. ' In addition to their statements the evidence of Mst. Sair PW.8 is very consistent and she has stated without any ambiguit that it was accused who, had committed the offence with her. In normal circumstances the evidence of the victim if it rings true and inspiring confidence, is sufficient to prove the prosecution case.
30. ' Lady Doctor Zahida Khanum PW.5 had opined after the medical examination of the girl that penetration has been done in this case. Her opinion is further supported by the report of the Chemical Examiner Ex.P.J according to which the anal swabs as well as the Pajama of the victim were stained with semen.
31. ' The learned Defence Counsel has argued that there were material improvements and omissions in the statement of Mst.Asia PW.4 and Ishfaq PW.7 and therefore, they should not be believed. He has pointed out certain improvements for example Mst.Asia PW.4 has stated that Mst.Saira (PW.8) was wearing Shalwar while the lady doctor has stated that she was wearing Pajama when she was medically examined by her. He also pointed out that Mohammad Ishfaq PW.7 had improved his statement by stating that he had seen Mst. Saria PW lying on the ground and that he had seen the accused at the spot holding the string of his Shalwar in his hands.
32. ' I have gone through the improvements and omissions pointed out by the learned defence counsel and find that they are not so material as to cast doubt on their veracity. The eye-witnesses were appearing in the Court after about 11 years of the occurrence and, therefore, it was quite natural for them to commit some omission o improvement of this nature which are not very material.
33. ' I have also examined the plea of the accused. The accused admitted that he was residing in the Railway.Colony Locoshed Khanewal where the complainant was also residing. The plea of the accused that he had been involved only due to suspicion or mistaken identity does not seem reasonably true because the accused and the complainant party were living in the same locality.
34. The occurrence had taken place at about 11.00 a.m. i,e, in the broad-daylight and according to sketch Ex.P.D the accused was seen by the eye-witnesses from distance of 10 to 12 feet. There can, therefore, be no question o suspicion or mistaken identity. The victim also, as stated earlier, has clearly named Javid accused as the person who committed the offence. The accused admitted that his father or anybody else did not take step during the investigation to tell anybody that it was case of mistaken identity.
35. ' For the reasons stated above the prosecution case has been proved beyond reasonable doubt, and the version of the accused is not such which could be reasonably true and hence is an afterthought.
36. ' The point now to be to determine as to what offences have been proved against the accused.
37. ' The evidence of Mst.Saira PW.8 is that she was taken inside the courtyard of the quarter (the place of occurrence) from the lane front of the quarter and that the accused had got toffees to he from a vendor in a lane before taking her inside the courtyard (the place of occurrence). It would mean that she was removed only a few paces and overall reading of her evidence shows that the object o her removal was to commit the act of carnal intercourse and not at all to remove or to take her away from the guardianship. The intention" of the accused gathered from the evidence of Mst.
38. Saira (PW.8) appeared to be of committing the act of carnal intercourse and that there was no intention to kidnap her. In this situation, in my view, the offence under section 364-A PPC is not made out. I find support from "1986 Supreme Court Monthly Review 533". The same view has also been expressed in PLD 1985 Federal Shariat Court 404 wherein it has been held that taking the child from a street to a close room for committing sodomy does not mean to kidnapping or abduction. This view also finds support from "Mohammad Tufail v. State PLD 1984 F SC 23" wherein, according to the prosecution case Zubair a boy of about 9/10 years of age was going to the field and when he reached near a tubewell, Mohammad Tufail accused stopped him and took him to nearby Wahn, after putting one hand on his mouth, and had committed sodomy with him there rafter. It has been held that taking Zubair PW from the path to a nearby Wahn would not constitute kidnapping or. Abduction as contemplated by section 12 of Ordinance VII of 1979. The evidence of Mst.Saira (PW.8) on its face value, therefore, does not bring home the offence under section 364-A PPC against the accused. The accused is, therefore, acquitted for the charge under section 364-A P.P.C.
39. ' As far as the offence u/s 377 P.P.0 is concerned there is ample evidence to the fact that the act of carnal intercourse against the order of nature has been committed with Mst.Saira (PW.8) a stated by the Lady Doctor as well as supported by the report of Chemical Examiner Ex.P.J.
40. ' The ocular evidence has clearly established that it was Javid accused who had committed this act with Mst.Saira (PW.8). therefore, hold the accused Javid guilty and convict him under section 377 PPC. As to the quantum of sentence, I am conscious that on the one hand the accused is 14 to 15 years old now and on the other hand that this heinous offence has been committed by the accused with a girl of about 6 years of age whose future might be tarnished for this act of the accused. Keeping in view the age of the accused as well as the nature of the offence and the victim of the offence, I therefore, sentence him to undergo 8 (eight) years' rigorous, imprisonment and a fine of Rs,2,000 (two thousand). In case of default of payment of fine he shall have to undergo further R.I. For six months.
41. He shall however, not be entitled to the benefit of section 382 (b) Cr.P.C.
42. ' Exhibited articles in this case shall be destroyed, after the decision of the appeal, if any.