' IBA DAT YAR KHAN, J.--Phalla Masih is the appellant in this case. He was fried by the learned Additional Sessions Judge-II, Sahiwal and convicted under section 364-A P.P.C. And section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). Under section 364-A P.P.C. He has been sentenced to suffer imprisonment for life while under section 10(3) of the Ordinance he has been sentenced to a further term of R.I. For fifteen years and also with whippipg numbering thrity stripes. Both the sentences of imprisonment are to run concurrently.
2. The case started on a complaint filed by PW.5 Muhammad Ashiq. Ashiq lodged the FIR (Ex.PC/1), that on 29-10-1986 at 9-00 a.m. His sister Mst. Nazia aged 7 years was playing in front of her house.
The appellant appeared and deceitfully took her to the Chobara of his house where he committed Zina with her. During the intercourse Mst. Nazia cried and on hearing her shrieks P.W. Muhammad Ashiq, who happened to be in his house at that time, rushed to attend to the alarm. While he was on his way to the Chobara of the accused Muhammad Yasin son of Muhammad Sharif and Nazir Ahmad son of Faqir Ahmad also joined him. The three persons reached the Chobara and according to complainant Muhammad Ashiq when he reached there he saw that Mst. Nazia was stripped off her Shalwar and was being subjected to Zina-bil-jabr by the appellant. On noticing PW Muhammad Ashiq and two other persons the appellant took to his heels. Mst. Nazia was bleeding.
She was picked up and brought home. It is alleged in the F.I.R. That soon after the incident some relations of the appellant reached the house of the complainant and started pleading for pardon and mercy. Few hours delay in filing the F.I.R. Was occasioned due to the presence of the relations of the accused in the home.
3. The prosecution has examined 8 witnesses. Out of these witnesses only P.W. 5 Muhammad Ashiq, who had also lodged the complaint, is the only eye-witness. The other two persons who had joined him at the time while he was going to the Chobara have been given up by the prosecution because they were allegedly won over by the accused. Besides Muhammad Ashiq and Mst. Nazia the victim herself all other witnesses are formal witnesses.
4. P.W.5 Muhammad Ashiq has made a detailed statement in Court and repeated his version in the F.I.R. He has stated that on the day of the incident at about 9.00 a.m. While he was present in his house he heard shrieks of Mst. Nazia. He rushed to the house of the appellant in response to the shrieks. Two persons Nazir and Yasin also joined him. He proceeds on to state that "I saw Bhallah Masih committing "Zina with Mst.Nazia PW. Mst. Nazia PW was lying unconscious and -blood was bleeding out from her vagina." He has identified the Shalwar (Ex.P1) of Mst. Nazia with stains of blood, which was produced in the Thana on the day of the incident. In his cross-examination he made an admission that Bhallah Masih was arrested from Jehanian Mandi which was at a distance of 100 miles from the Chak where this incident took place.
5. P.W.6 Mst. Nazia whose age has been mentioned as 8 years at the time of making of her statement on 13-6-1989. She has stated that "Bhallah Masih accused resides in Gau Shale near my house. Bhallah accused on the day of occurrence at about 9.00 offered me to provide me maize butts and took me to his Chobara. Accused then committed bad acts with me. I then cried out with pain. I was then medically examined. My brother and the witnesses Yasin and Nazir had taken me and had come to the Chobara after hearing my hue and cries." In her cross-examination she has admitted that her parents and brothers were present in the house when the appellant enticed her to the Chobara of his house. She says that she became unconscious while she was being subjected to sexual intercourse.
6. The next witness of some importance is P.W.2 Lady Dr. Arjmand Rizwan of D.H.Q. Hospital, Sahiwal.
She stated that on 29-10-1986 at 8.00 p.m. She had examined Mst. Nazia daughter of Khadim Hussain caste Butcher aged 71 years. She then gives her opinion that the victim had been forcibly raped. Portion of her statement deserves to be quoted verbatim:- "I have seen the report of the Chemical Examiner Exh. PA/1 which is before me. According to my opinion the victim was attempted for rape. There was no penetration. However, the swabs were collected from the hymen. It is incorrect to suggest that the swabs were taken from outside the vagina. There was no dried blood. In fact the blood was still oozing out of the wound."
She has also admitted that hymen was intact but her Shalwar was stained with blood and it was handed over to the police after being stamped and signed. She also prepared vaginal swabs which were sealed and sent for chemical analysis.
7. P.W.1 is Muhammad Shahbaz, Constable. He states that on 2-11-1986 he obtained two sealed parcels from Abdul Salam Moharrir and delivered them in the office of the Chemical Examiner, Multan on 3-11-1986 without tampering with them..
8. P.W.3 Ghaffar Ahmad, Constable has 'stated that on 29-10-1986 he was posted at Police Station City Chichawatni when he had escorted Mst. Nazia to the D.H.Q. Hospital, Sahiwal. Mst. Nazia was examined by the lady doctor in the hospital and after her medical examination the lady doctor handed over to him the Shalwar (P-1) which he delivered to the investigating officer alohgwith two sealed envelopes.
9. P.W.4 Muhammad Islam, H.C. Was posted as Moharrir at P.S. City Chichawatni on 29-10-1986. He has recorded formal F.I.R. On 29-10-1986 and received sealed parcels containing swabs and the bloodstained Shalwar and kept them in safe custody. He then handed over these parcels to Shahbaz Ahmad Constable for onward transmission to the Chemical Examiner, Multan.
10. P.W.7 Irshad Ahmad was posted as S.I. In P.S. City Chichawatni. He had sent the victim for medical examination and investigated the case. He visited the spot, prepared site plan, and recorded statements of the witnesses. He had also taken into possession blood-stained Shalwar (P-1) vide memo. Ex.PE. He arrested the appellant on the next day. According to him he arrested the appellant from Chowk of Chak No,176/9-L and not from Jehanian as claimed. He further stated that there was a protest ( ) in the city on this outrage.
11. P.W.8 is Medical Officer Dr. Muhammad Salim of T. H.Q. Hospital Chichawatni. On 30-10-1986 he has examined appellant Phalla Masih and opined that the appellant was potent. He Las given the age of the appellant as 20 years but unfortunately not substantiated his opinion on this point by any medical test.
12. The accused has denied the charge and pleaded not guilty. According to him he was falsely involved in this case on account of enmity with Muhammad Ashiq PW. He has pleaded alibi and stated that on the day of the incident he was not even present at the place of occurrence. He claims that he was in Jehanian on that day. He has also examined one Shamshad Masih son of Parkash Masih in his defence. But the evidence of this witness is not of much consequence. The accused has himself appeared as his own witness under section 340(2), Cr.P.C. And he has been cross-examined.
13. The learned counsel for the appellant has made an effort to point out minor contradictions in the statements of the witnesses. But in our opinion they are insignificant and are not even worth mentioning. After perusal of the evidence and hearing the counsel for the appellant and also the counsel for the State we have come to the conclusion that an attempt was made to rape this girl but luckily the plan of the aggressor did not fully materialise as the medical report discloses that her hymen remained intact and there was no penetration. May be that it was on account of the weak organ of the boy who was aged about 13 years at that time or on account of the fact that before he could accomplish the job P.W.5 Ashiq and other two persons reached the scene of occurrence and he took to his heels.
14. The first point for consideration is whether the offence of abduction has been proved or not. The learned Additional Advocate-General has conceded and we agree with him that in the situation on hand this is not a case of abduction because the Chobara is just by the roadside. Moreover on the offer of maize butts the girl herself willingly accompanied the appellant to the Chobara and in the circumstances it cannot be said that she was kidnapped or abducted within the meaning of section 364-A P.P.C. Consequently his conviction under section 364-A, P.P.C. Is set aside.
15. Turning to the conviction recorded under section 16(3) of the Ordinance we are of the view that the prosecution has proved its case of attempt to Zina-bil-jabr. The statement of the girl inspires confidence and it needs no further corroboration. The statement of the girl read with medical report establishes that an attempt to rape her was made by the appellant and as no enmity is shown and no motive against the accused we have reasons to believe that this attempt was made by none else than the present appellant. So far as the question of sentence is concerned, the learned counsel for the appellant has drawn our attention to section 7 of the Ordinance, which runs as under:- "7. A person guilty of Zina or Zina-bil-jabr shall if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes: Provided that, in the case of Zina-bil-jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment."
According to the learned counsel the appellant was not an adult but a minor within the meaning of section 2(a) of the Ordinance, which runs as under:- "2. In this Ordinance, unless there is anything repugnant in the subject or context,--
(a) "adult" means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty."
Now an adult must be a person, who has attained the age of 18 years or has attained puberty. As attaining puberty is a question of fact and in the present case all the requirements necessary to establish that the appellant had attained the age of puberty have not been proved, we have to fall back upon the other definition and see whether he had attained the age of 18 years on the day of the incident. On this point the casual mention by the doctor without giving any reasons that the age of the appellant was 20 years cannot be of much help. The only reliable evidence is the statement of the appellant himself in the Court where his age has been described as 16 years. It is to be noted that this statement was recorded after 25 months of the incident. As such the age of the appellant on the day of the occurrehce would be even less than 16 years i.e, about 14 years. His case, therefore, falls not under section 10(3) of the Ordinance but under section 7 of the Ordinance for which maximum punishment prescribed is five years imprisonment or fine or both. The appellant could, therefore, be sentenced to five years' imprisonment. But in the present case he is further entitled to the benefit of section 18 of the Ordinance, which is as follows:- "18. Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed,, and in such attempt does an act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments."
16. In this regard the medical evidence, which definitely indicates that the hymen of the girl remained intact and there was no penetration, must be taken to be conclusive of the fact that there was only an attempt to commit Zina-bil-jabr and the offence remained incomplete. In this situation the punishment of five years would further be reduced to half i.e, two and half years and we affirm this sentence of two and half years R.I. So far as the question of thirty stripes is concerned, this will have also to be set aside in view of the proviso to section 7 of the Ordinance, which lays down that the punishment of whipping can be awarded only if the age of the offender is 15 years or above. We have already noted above that the age of the appellant at the time of the offence was less than 14 years. As such the sentence of whipping also cannot be sustained. The upshot of the whole discussion is that the appeal is dismissed, conviction maintained, but the appellant should suffer only a term of two and half years' R.I. On account of the benefits he has obtained due to his age.
Sentence reduced.