' IBADAT YAR KHAN, J.--Appellant Burhan aged twenty years has been convicted by the learned Sessions Judge, Bahawalnagar, Camp at Chishtian under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on charge of Zina-bil-jabr with a minor girl Mst.
Rukhsana Bibi aged five years. He has been sentenced to undergo R.I. For twenty-five years, whipping numbering thirty stripes and a fine of Rs,10,000. In default of payment of fine further imprisonment for one year.
2. The facts of the case are very simple. The crime is very heinous. On 1st October, 1987 at 6.15 p.m.
Mst. Zubaida wife of Jan Muhammad caste Kamhar lodged an F.I.R. In the Police Station Sadar, Chishtian, Bahawalnagar that four days before she was bringing hay from the field to her house. It was sunset time and her minor child Rukhsana aged five years was also trailing behind her.
Suddenly she heard the cries of the child Rukhsana from the nearby cotton field. She rushed to the place from where the child's cries were coming and found that Burhan son of Ibrahim appellant had taken the child into the field and after putting her on heap of straw was busy committing forcible sexual intercourse with her. On seeing the child in such a plight she also raised alarm and on hearing her alarm Qasim Ali son of Jalal Din and Hyder son of Ishaq both Kamhar by caste were attracted. On the arrival of these people the appellant left the girl and ran away into the cotton field. Mst. Zubaida collected the child and brought her home. In the meantime her husband Jan Muhamamd also reached the house. They reported the matter to the notables of the area and asked for help. But the notables did not do anything. Being disappointed from the conduct of the notables she came to lodge the report.
3. This F.I.R., Exh. P.A. Was recorded by P.W.8 Ch. Ghulam Rasool S.H.O. Police Station Sadar, Chishtian.
On this complaint Ch. Ghulam Rasool took up the investigation. He visited the scene of occurrence, prepared a site plan, Ex-PF, immediately got the victim medically examined from P.W. Selma Naheed, Gynaecologist, Civil Hospital, Chishtian, arrested the accused on 5-10-1987 and got him medically examined by P.W.7 Dr. Muhammad Ashraf Medical Officer, D.H.Q. Hospital, Chishtian. The vaginal swa bs of the victim taken by Dr. Salma Naheed were sent for chemical examination and result obtained which were found to be positive. On the above facts the case was challaned by the police and tried by the learned Sessions Judge. As stated above the accused was convicted and he has filed this appeal.
4. The prosecution have examined in all nine witnesses.
5. P.W.1, Mst. Rukhsana is the victim. She appeared in the Court but as she was. Too tender in age to make any statement her statement was not recorded.
6. P.W.2 Mst. Zubaida mother of the victim appeared and reproduced her version in the F'.I.R. She has described in details how on hearing the cries of the young daughter she rushed to the place in the cotton field where the appellant was found committing forcible intercourse with the young daughter. She alsO stated that on her alarm Qasim All and Hyder were attracted. She has, identified the accused very well as he also resides in the same village.
7. P.W.3 Qasim Ali and P.W.4 Ghulam Hyder the two eye-witnesses who had rushed to the place of occurrence on hearing the alarm and cries of Mst. Zubaida have been examined and have fully corroborated the version of Mst. Zubaida. They have added that they tried to apprehend the appellant but he disappeared in the' cotton field.
8. P.W.5 Muhammad Yaqoob who was duty officer of Police Station Sadar on 1st October, 1987 stated that on 1st of October, 1987 he was entrusted with one sealed parcel containing vaginal swa bs of the victim. These swa bs were packed in a sealed parcel. He had kept them in safe custody in the Malkhana and on 10-10-1987 he had sent them to the Chemical Examiner through P.W. Muhammad Tufail F.C.
9. Muhammad Tufail has been produced as P. W.9 and has supported the version of P.W.S. He has stated that on 10-10-1987 he had collected the parcel pertaining to this case from Muhammad Yaqoob and delivered them in the office of the Chemical Examiner.
10. P.W.7 Dr. Muhammad Ashraf has stated that on 5th of October, 1987 he had carried out the potency test of the appellant and found him fully fit for performing sexual act.
11. The next important witness is P.W.6 Dr.Salma Na heed, Gynaecologist, Civil Hospital, Chishtian.
The girl was examined by her on two occasions. First this witness examined the girl for rape on 1st of October, 1987 at 9.50 p.m. Again on 7th October, 1987 she examined the girl for age and found her age to be about 5-7 years. She had produced two reports Ex-PB and Ex-PC. On her examination of the vaginal region she has recorded her opinion that hymen was torn, small perineal tears were present. She also noticed blood-stained discharge. She prepared vaginal swabs for chemical examination. In her opinion Mst. Rukhsana had been subjected to intercourse. In her cross- examination she replied as follows:- "I cannot say with regard to the number of persons who committed this offence with the victim. It is not possible to cause such injuries by thrusting hard substance in the vagina and it was definitely a case of forcible rape. The victim can die also in such an incident. I cannot say if such a victim of this age, can give evidence in the Court, because, it depends upon her mental age."
12. The next witness is Ch. Ghulam Rasool, P.W.8, who was the S.H.O., Incharge. He is the Investigating Officer. He recorded the statement of P.W's, visited the site and prepared a site plan, Ex-PE, arrested the accused on 5-10-1987, got the victim examined by Lady Doctor Salma Naheed and challaned the case.
13. The appellant pleaded not guilty. He has denied the occurrence. When questioned how the witnesses and mother of the victim were deposing against him, his answer was "I cannot say as to why I have been involved in this case. However, I am innocent." No witness has been examined in defence.
14. The learned counsel for the appellant tried to argue that it is a case of mistaken indentity. He wanted to take support from an answer in cross-examination of Mst. Zubaida. The. Answer was "Nasir was apprehended on the second day of the registration of the case". The learned counsel tried to built up a theory that some Nasir was also associated during the inquiry stage as a suspect. Later he was let off. But Investigating Officer has categorically denied the suggestion and has plainly stated". It is incorrect that Nasir was arrested in this case. It is incorrect that Nasir was named in this case by Mst. Zubaida. It is incorrect that Nasir was the real culprit and was let off and the present accused is innocent and has been falsely involved in this case. There was no evidence before me about Nasir".
15. As no enmity has been shown between the accused and the complainant party nor any allegation has been made against the police there is no reason to disbelieve the three eye- witnesses who have actually seen the occurrence. There is no doubt that this innocent girl of 5 years was brutally subjected to sexual intercourse. The testimony of the Lady Doctor Salma Naheed confirms the sexual violence to which she was subjected. Merely because the two eye-witnesses P.W. Qasim Ali and P.W. Ghulam Hyder happen to be the relations of the complainant their testimony on oath cannot be rejected.
16. The findings of the learned Sessions Judge resulting in the conviction are fully justified and we would, therefore, dismiss this appeal and affirm the conviction.
17. The learned counsel appearing for the appellant, however, pleaded for reduction in the sentence of imprisonment of the appellant. It was argued that the boy of twenty years if sentenced for twenty-five years would spend the prime of his youth in the prison and when he would come out of the prison at that advanced stage of his age he would be worth nothing either to the family or to the society. Appreciating this argument we would reduce the term of imprisonment from twenty- five years to ten years. Sentence of whipping numbering thirty stripes is affirmed. Sentence of recovery of Rs,10,000 (ten thousand only) from the appellant to be paid to the victim or in default of payment of this amount as compensation to the victim further imprisonment of one year R.I. Is also affirmed. With the above modification in the sentence the appeal is dismissed.
Sentence reduced.