' Muhammad Ramzan alias Jan Muhammad, son of Taj Muhammad, aged 22 years, caste Gujjar, resident of Mauza Saleem Kot, Police Station Malka Hans, District Sahiwal, was tried and convicted by Qazi Javed Ahmad Shafi, Magistrate Section 30 Pakpattan, District Sahiwal, for having committed an offence punishable under section 376 of the Pakistan Penal Code. He was sentenced to rigorous imprisonment for five years and also to 15 stripes under the Whipping Act, 1909. He filed this appeal (Criminal Appeal No, 369 of 1979) against the order of the learned Magistrate. While admitting the appeal to a regular hearing it was directed by a learned Single Judge of this Court that a notice shall be served on the appellant to show cause why his sentence should not be enhanced to rigorous imprisonment for ten years. That notice has given rise to Criminal Revision No, 289 of 1979. This order shall dispose of aforementioned appeal as well as the criminal revision.
2. The prosecution case is that in the morning of 27th November, 1977 when Mst. Aziza (P.W.3) was returning to her house in village Saleem Kot after getting a lesson in the Holy Qur'an at the village mosque she went to a cotton field to ease herself. All of a sudden the appellant appeared at the scene and raped her despite her resistance. Her garments and vaginal parts were torn. Her cries attracted Faqir Muhammad (P.W.2) and Yaqub (P.W.4) to the spot. Mst. Aziza, on being molested as aforesaid, became unconscious and in that state she was removed to her house by Yaqub (P.W.4).
In the meantime the appellant had made good his escape.
3. Ramzan (P.W.1) who is father of Mst. Aziza, took her to Civil Hospital Pakpattan, where she was examined by Lady Doctor Mehraj Bokhari (P.W.5). She advised her X-Ray examination with a view to determining her age and eventually it was found by the Lady Doctor that the prosecutrix was aged 14 years. As regards her examination for rape it was opined by the Lady Doctor that she (prosecutrix) had suffered sexual intercourse. She took two vaginal swabs which were found to be stained with semen, vide report of the Chemical Examiner, Exh.P.J.
4. On receiving information from the hospital that Mst. Aziza, who had been taken there, was a victim of rape, Shah Nawaz A.S.I. (P.W.9) went to the hospital and recorded her statement, Exh.P.B., when according to the Lady Doctor, she was fit to make that statement. The A.S.I. Took into possession her blood-stained clothes, namely Shalwar (P.1) and shirt (P.2) vide memo Exh.P.A. On being enquired by the A.S.I. Whether the appellant was capable of having sexual intercourse he was examined by Dr. M.A. Malik (P.W.6) and a positive opinion was expressed by him, vide certificate Exh.P.C.
5. Besides producing the above witnesses and the documents in evidence the prosecution examined Muhammad Ishaq, Secretary, Union Council No, 202, as P.W.7. He placed on the record a copy of the relevant entries in the register of births, Exh.P.D. Showing the date of birth of the prosecutrix as 26th October, 1964. Ghulam Haider Chowkidar who had reported her birth was examined as Court-witness to support the above entries.
6. On the conlusion of the prosecution evidence, the appellant was examined under section 342 of the Criminal Procedure Code. He denied having committed the offence attributed to him. It was maintained by him that he was involved in the case due to enmity. He examined five witnesses to show that on the day of occurrence he was absent from the village.
6-A. Learned Magistrate was not convinced by the correctness of the plea of alibi put forth by the appellant. He did not find anything wrong with the evidence led by the prosecution and relying on that evidence it was held by him that the appellant was guilty.
7. Assailing the order of the learned trial Court, it was urged by learned counsel for the appellant that the prosecutrix was a consenting party to the sexual intercourse. There is no evidence to support the submission made by the learned counsel. Even in the statement under section 342 of the Code of Criminal Procedure that plea was not raised by the appellant. No suggestion in this behalf was made to the prosecutrix when she was in the witness-box. According to the statement of the prosecutrix she had been subjected to rape against her wishes. Muhammad Yaqub (P.W.4) who is an eye-witness of the occurrence, had corroborated her statement. It was also stated by the other eye-witness, Faqir A Muhammad (P.W.2) that he went to the place of occurrence on hearing hue and cry. Thus, the plea of the learned counsel that the prosecutrix had consented to sexual intercourse, which is not supported by any evidence of the appellant, stands belied by the evidence of the prosecution. This plea is, therefore, repelled.
8. Another point canvassed by learned counsel for the appellant was that the eye-witnesses had enmity with the appellant. No evidence was produced by the appellant in the matter. A suggestion in this behalf was put to Ramzan, Mst. Aziza and Yaqub (P.Ws.) but it was denied by them that they had deposed against the appellant because they had any grudge against the appellant. I am, g therefore, not inclined to believe that the prosecution witnesses had enmity with the appellant.
9. Lastly, it was submitted by learned counsel for the appellant that the plea of alibi was not duly considered by the learned trial Court. What has been stated in this behalf is that the appellant was employed in the Colony Textile Mills, Multan, and that for five days, including the day of occurrence, he remained sick there. He examined five witnesses, namely Mushtaq Ahmad (D.W.1), Muhammad Aslam (D.W.2), Muhammad Akram (D.W.3), Muhammad Arif (D.W.4) and Ikram-ul-Haq (D.W.5) to substantiate his plea but the same was rejected by the learned Magistrate for the following reasons:- "During the course of arguments it was urged that, in view of the establishment of his alibi, the accused is entitled to acquittal. Far from it, an alibi has no doubt been claimed and that, too, on highly flimsy grounds. D.W.2 said that the accused was arrested at this quarter where he had gone during the recess period. According to Mushtaq (D.W.1) the room-mate of the accused, he was still on sick list and Clerk Muhammad Akram (D.W.3) said that he was confined in his quarter because of sickness. The accused was taken to a doctor on that very day and was pronounced as potent.
No sign of any ailment was either visible or told. The Social Security Dispensary record or history book with a few tablets and even injections written as prescribed cannot take away very significant assertion of the prosecutrix that he was the man who committed sexual intercourse with her on the morning of the 27th November, and his identification as the culprit by the independent witness Yaqub (P.W.4). Neither the accused nor any of the D.Ws. Raised the plea of his alibi or his illness at the time of arrest. The history book is neither here nor there. Such entries are so easy to produce.
The visual testimony of the prosecutrix and Yaqoob P.W., must and will prevail."
10. By and large, the reasoning of the learned Magistrate appears to be cogent. The Medical Case History Book, copy Exh.D.A. Referred to by the trial Magistrate is the card issued to the appellant to enable him to have medical treatment at the Social Security Dispensary. As the entries in the card, which have been relied upon by the appellant, appear at the end of the card, they could be easily manipulated. The maker thereof did not appear as a witness. No register supporting these entries was placed on the record. Also, no documentary evidence was produced showing that the appellant had not attended to his duty during the period of his alleged illness and had remained on leave. No suggestion was put to the prosecution witnesses regarding the absence of the appellant from the village where the occurrence had taken place. It is not disputed that he is resident of that very village. Even in his statement under section 342, of the Code of Criminal Procedure he had not advanced the plea of alibi or that of indisposition. All this shows that he had thought of raising that plea at a very belated stage. His plea was, therefore, rightly rejected by the learned trial Court.
11. Apart from the statement of the prosecutrix there is ocular evidence showing that she was raped despite her protest. The medical evidence and the report of the Chemical Examiner corroborate the oral evidence led by the prosecution. There is no reason to disbelieve the evidence of the prosecution. The plea of alibi presented by the appellant does not inspire confidence. The conviction of the appellant under section 376 of the Pakistan Penal Code is, therefore, unexceptionable and is upheld.
12. Now what is to be seen is the sentence which could appropriately be awarded to the appellant.
Besides sentencing him to five years' rigorous imprisonment the learned Magistrate had awarded him the sentence of whipping. In this connection, it was urged by learned counsel for the State that the sentence of imprisonment inflicted on the appellant was inadequate. According to him, the appellant should have been imprisoned for seven or eight years. The maximum sentence provided for the offence is life imprisonment. As remarked by the learned Magistrate, the appellant had overpowered a helpless girl of tender age and had raped her despite her resistance when she was returning to her house from the village mosque after getting a lesson in the Holy Qur'an. She was mercilessly molested as a result whereof she became unconscious. I, therefore, feel that proper sentence was not awarded to him. At the same time I am conscious of the fact that the quantum of sentence awarded to him was not questioned by the complainant or the State. Notice of enhancement of sentence was suo motu issued by this Court. This means that the complainant and the State were satisfied with the sentence awarded to the appellant. The appellant is a young man of 22 years age and the nefarious act indulged in by him appears to be the result of his juvenile aberration. During his trial the appellant remained in the judicial lock-up for about two years. In the circumstances, I believe that the ends of justice would be met if his sentence of imprisonment is enhanced by a couple of years. I, therefore, direct that the appellant shall suffer rigorous imprisonment for seven years.
13. As regards the sentence of whipping, according to section 393 of the Code of Criminal Procedure if a person is imprisoned for more than five years, he cannot be punished with whipping.
As a result of the enhancement of sentence as aforesaid, the appellant would suffer rigorous imprisonment for seven years. In the present state of affairs, therefore, the sentence of whipping cannot be imposed on him. In this view of the matter, the sentence of whipping is set aside.
14. The appeal and the revision are disposed of accordingly. .