' ABDUR REHMAN KHAN KAIF, J.--The present appeal by Suleman son of Mushtri Khan r/o. Togh Payan, Tehsil and District Kohat, is directed against the judgment of the learned Additional Sessions Judge, Kohat, dated 13-4-1988 whereby the appellant was convicted under section 10(3) read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and was sentenced to seven years' R.I., whipping numbering ten stripes and to a fine of rupees five thousand. In default of payment of fine, the convict was to suffer further R.I.
For one year. The allegation against the appellant was to the effect that on 17-10-1986 at 11-30 a.m.., he attempted to commit Zina with Mst. Sidra Aman, a minor girl of six years in the area of Cadet College; Kohat. On a written report (Exh.PA/1) of Rana Amanullah, father of the victim (P.W.5) a case was registered in P.S. Saddar Kohat vide F.I.R. (Exh. P.A.) by Faheed Gul, A .S.I. (P.W.4). It was stated by the complainant in the said report that on his return from Jumma prayers on the day of occurrence, he was informed by his wife, Mst. Mehmood Khanum, (R.W.7) that the accused took his daughter to' his quarter and there he attempted to commit Zina with her by removing her Shalwar and shirt. The complainant then informed the Principal of the Cadei College where he is employed and charged the accused for the alleged offence with his minor daughter, Mst. Sidra Aman.
' The written report (Exh.PA/1) was handed over to Saeed Ahmed, Inspector (P.W.8), the then S.H.O.., P.S. Saddar, which was sent for registration of the case. He took up the investigation of the case, prepared the site plan (Exh. P.B.), recorded the statements of P.Ws., referred Mst. Sidra Aman to doctor for medical examination and took into possession a chadar and pair of clothes (Exh.P1 to Exh.P3) of accused vide recovery memo (Exh.PC). He arrested the accused and referred him to medical officer for his medical examination and after the completion of investigation a complete challan was sent to Court for trial.
2. At the trial the prosecution examined 8 witnesses in support of its version.
' Dr. Fazal Rehman (P.W.1) medically examined the appellant on 18-10-1986 at 12-15 p.m., and found him potent. In his opinion, the accused was capable to perform sexual intercourse. Rehmanuddin, S.H.O. (P.W .2) submitted a complete 'challan for trial against the accused on 7-6-1986 while Abdul Muheet son of Sharbat Khan (P. W.3) is a marginal witness to the recovery memo. (Exh.P.C.) vide which a chadar and clothes of the accused and the victim were taken into possession. In his cross- examination he has, however, admitted that the abovementioned Were already available in the house of the Principal. Faheed Gul, A.S.I. (P.W.4) recorded the formal F.I.R. (Exh.P.A.) on the receipt of written complaint (Exh.P.A/1) and Rana Amanullah Khan (P.W.5) has reiterated almost the same facts as given' in the F.I.R. He deposed that he saw his daughter in a depreased condition and found semen marks on the clothes and person of his daughter. According to him, his daughter informed him that the accused took her to his quarter and after undressing her urinated upon her.
Direct account of the occurrence was furnished by Mst. Sidra Aman, aged six years (P.W.6) the victim in this case. Before recording her statement her intelligence was tested by the learned trial Court and being satisfied that she was capable to give rational answers, her statement was recorded. In her statement she charged the accused by stating that on the day of occurrence while she was playing with another girl, the accused took her to his quarter and then to a room where he removed her Cameez and Shalwar and then he urinated at her. According to her she informed her mother of the incident on her return to the house. During her cross-examination a specific question was put to her about the removal of her shalwar and the child witness categorically stated that the accused had removed her Shalwar. Mst. Mehmood Khanam (P.W.7) is the wife of the complainant and mother of the victim, who has supported the version given in the F.I.R. By stating that on her return the victim informed her of the occurrence and she examined her clothes and found them stained with human semen. She summoned the accused and his mother and also slapped the accused on his face. According to her, on the return of her husband she narrated the incident to him. In her cross-examination she denied the suggestion about the washing of the clothes of the victim after the incident. As already stated Saeed Ahmad, Inspector, had conducted the investigation of the case and after the completion of the investigation submitted a complete challan for trial against the accused through Rehmanuddin, S. H.O.
3. When examined under section 342, Cr.P.C., the accused denied the allegations and stated that he was falsely involved in the case because father of the victim had a grudge against his father and that the police officials were influenced by the Principal and father of the victim against him. In his statement on oath under section 390(2), Cr.P.C., he stated that being innocent he was falsely charged. No evidence was, however, produced by the accused in his defence.
4. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance.
5. In this case the prosecution is mainly based on the statement of Mst. Sidra Aman and the report of Chemical Examiner supported by Mst. Mehmood Khanam and Rana Amanullah Khan mother and father of the victim. The learned counsel appearing on behalf of the appellant contended that the provisions of law under which the accused/appellant has been convicted are not applicable to the facts of the case, that the learned trial Court had totally ignored the material and major contradictions in the statements of the prosecution witnesses and had failed to appreciate the evidence on record in its true perspective. The learned counsel also questioned the quantum of sentence and submitted that the sentence awarded, in the given circumstances was too harsh and severe and prayed for leniency in the matter of sentence if the conviction of the appellant is upheld under the mentioned provisions of law.
6. As already stated, before recording the statement of Mst.Sidra Aman, the. Prosecutrix, several questions were put to her by the learned trial Judge to determine whether she was intelligent enough to be examined as a witness in this case and whether she was in a position to understand the questions and give rational answers. Perusal of the answers furnished by her to the questions put to her would show that she was intelligent enough to give correct account of the occurrence.
From her statement it also transpires that she was quite mature and intelligent in giving the correct account of the occurrence. It has been clearly stated by her that the accused removed her shalwar and shirt after taking her inside the room in his quarter and urinated at her. Although a minor girl, the account given by her appears to be quite consistent and true. According to the medical report the appellant was capable to perform sexual intercourse and the report of Chemical Examiner (Exh.P.F.) further corroborates the version stated by the victim. From the material available on the record it has nowhere been proved that the complainant party had any grudge or motive to falsely implicate the appellant.
7. Learned counsel appearing for the appellant had also made a half-hearted submission that the complainant had strained relations with the father of the accused and that he was charged falsely but the submission made is devoid of any force as there is nothing material on the record to support the plea of the accused raised in his statement under section 342, Cr.P.C. The accused in his statement under section 342, Cr.P. C. , stated as under:- "The P.Ws. Have deposed wrongly against me because father of the child Mst. Sidra Aman had some grudge against my father, so he made false report against me. The police officials were influenced by the Principal and father of Mst. Sidra Aman, so they deposed against me."
' On the other hand in his statement on oath under section 340(2), Cr.P.C., he in his cross- examination has given altogether a different version which reads as under:- "I do not know whether my father has got any strained relations with -Rana Amanullah. Prior to the incident no report/complaint was: filed by the father of Mst. Sidra Aman against my father."
' Furthermore, Rana Amanullah Khan (P.W.5) was not put any question or suggestion during his cross-examination to the effect that he charged the accused due to his strained relations with his father. As such there is nothing on the record to show or suggest that the accused was charged by the complainant with some ulterior motives. If it is assumed that the complainant had any quarrel or grudge with the father of the accused prior to the occurrence even then he would never have brought such a charge against the appellant involving the honour of his family and future of his minor daughter.
8. Learned counsel for the appellant in the course of his arguments submitted that even if the allegations are found correct the offence committed would come within the purview of section 354, P.P.C. As the ingredients to attempt Zina have not been clearly proved. The question whether the appellant has been found guilty of an attempt to commit rape or it was merely the stage of preparation is to be determined in the light of material available on the record. If it is held that the appellant had not crossed the stage of preparation he would obviously be guilty for an offence punishable under section 354, P.P. C. For having committed a different offence of assault or using criminal force on Mst. Sidra Aman with intent to outrage her modesty.
9. In the instant case it has been clearly proved on the record that the appellant had removed the shirt as well as the shalwar of the victim and made her naked. He had also removed his shalwar and according to the version of the minor girl, he remained lying upon her and urinated at her. The report of Chemical Examiner (Exh.P.F.) further supports, the version and proves that the appellant had made an attempt to .Commit zina with the minor girl. The facts and circumstances of the case as stated and the material brought on the record clearly indicate that the appellant was guilty of an attempt to commit zina with the minor girl and he was rightly found guilty of that offence. The conduct of the appellant clearly indicates that he had crossed the stage of preparation and as such the ingredients of section 354, P.P.,C. Were not attracted to the facts of the case.
10. The next question falling for determination is the quantum of sentence. Keeping in view the very young age of the appellant and the peculiar circumstances, we feel that the sentence awarded by the learned trial Court is a bit severe and harsh and his case deserves some leniency in the matter of sentence. Accordingly while maintaining the conviction of the appellant under the mentioned provisions of law, his substantive sentence is reduced to four years' R.I. The sentence of whipping and fine are, however, maintained. The benefit of section 382-B, Cr.P.C., is also extended to the appellant. /Sentence reduced.