' ABDUL RAZZAK A. THAHIM, J.--This appeal is directed against the judgment, dated 13th October, 1988 of S. Ijaz Hussain Gillani, Additional Sessions Judge, Islamabad, whereby he convicted appellant, Naeem Amin son of Muhammad Amin, under sections 10(3), and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and has been sentenced under section 10(3), of the said Ordinance to suffer R.I. For twenty years and twenty stripes and under section 11, of the said Ordinance, the appellant has been sentenced separately to undergo R.I. For twenty years with twenty stripes and fine of Rupees five thousand, in default to suffer R.I. For one year more. The sentences have been ordered to run concurrently and benefit of section 382-B, Cr. P.C. Has been given to the appellant.
2. The allegation against the appellant is that on 23-2-1988 he was found committing zina with Mst.
Rifat Jabeen, aged about three years. The incident was witnessed by complainant, Muhammad Ajmal and Manwal Masih. They apprehended the appellant and handed over to police. The case was investigated and appellant was sent up for trial and finally he has been convicted as stated above.
3. The evidence of the prosecution consists of ocular testimony of complainant, Muhammad Ajmal, and Manwal Masih. Their evidence is corroborated by P.W. 8 Rauf Jan, the medical evidence, chemical examiner's report and other circumstantial evidence. The plea of the appellant before the trial Court was simply denial.
4. P.W. 6 Muhammad Ajmal is complainant and has stated that he and Rauf are Baeldars in PWD while Manwal Masih and Javed Masih are guttermen. Their office is situated in Sector G-8/2, Islamabad. On 23rd February, 1988 at about 11-00 a.m. He alongwith Manwal Masih went towards the Nallah, situated at a distance of 200 yards from their office in order to cut `Miswak'. P.W. Manwal was cutting `Miswa k' and he was standing nearby. They saw the appellant committing sexual intercourse with a minor girl who is present in Court. He shouted Javed Masih and Rauf Khan on which they were attracted to the spot. He shouted that a murder was going to take place and the shalwar of the accused was put off up to his knees. After seeing, the accused tied his string and ran away. He alongwith Manwal Masih chased him and caught hold at a distance of about 30 yards from the Nallah. A part of shirt of Mst. Rifat was in her mouth and her pajama was removed under her knees and they saw Mst. Rifat bleeding from the vagina and anal side. They found scratches on her face. In the meanwhile on their alarm, about 100/150 persons from `abadi' collected there. A doctor, resident of G-8/2 also reached there in his car. P.Ws. Rauf Jan and Javed Masih took Mst.
Rifat to the hospital for medical treatment. He has stated that after 1/2 hour, Sub-Inspector came who recorded his statement (Ex.PG) which was read over to him and he signed admitting its correctness. He produced the accused before the Thanedar who arrested him. The person of the accused was searched. He was holding a plastic bag (Ex. PI) from which articles (Exs.P2/1-21, P3/1-6 P4, P5/1-3) were recovered. The sub-Inspector took a pair of shoes (Ex. P9/1-2) from the spot and prepared memo (Ex. PH) which he signed. P.W.7 Manwal Masih has supported the version given by Muhammad Ajmal and stated that he was working as Futterman in the office situated at G-8/2, Islamabad. On 23rd February, 1988 at about 11-00 a.m. He and Muhammad Ajmal went for cutting `Miswa k' towards nullah at a distance of 200 yards from the office. They saw the accused present in Court lying upon the minor girl, who is also present in Court today. The pajama of the girl was removed beneath her knees and frak of the girl was in her mouth. The accused was lying upon the girl in a lower place at a distance of about 10/15 paces from the Nallah. They raised alarm which attracted Javed and Rauf. On hearing our alarm the accused tied the string of his shalwar and ran away from the spot. He and Ajmal followed him and caught him at a distance of 25/30 yards. They saw Mst. Rifat bleeding from her vagina and anal side. After some time Dr. Arshad reached there in whose car Javed and Rauf took Mst. Rifat to the hospital for her medical examination. When the police came, some articles were recovered by the police from the accused and on the same day he joined the police investigation and in his presence Ex. P9/1-2 were recovered near the spot and memo (Ex. PH) was prepared which he attested. P.W. 8 Rauf Jan has stated that on the day of incident he was present in the Office of PWD at G-8/2, Islamabad. Muhammad Ajmal, Javed and Manwal Masih were also present when at about 10-45 a.m. Ajmal and Manwal Masih went out of the office in order to cut `Miswa k'. After a short while they raised alarm which attracted him and Javed. They went towards that direction which was at a distance of 200 yards from their office.
They saw Muhammad Ajmal and Manwal Masih catching hold of the accused present in the Court.
They also saw the girl present in Court lying in a lower place. He took the girl. Her frak was in her mouth and her shalwar was removed till her knees. The appellant was apprehended by Ajmal etc. At a distance of 20 years from that place. The girl was bleeding from her vagina and also from her eyes. So many persons were collected and one doctor reached there. He and Javed accompanied the doctor while taking the girl to the hospital. P.W.2 Zafar Ali has stated that on 23-2-1988 he was posted as S.I. At Police Station Margalla and was present with Ch. Abdul Aziz,, SHO, who investigated the case. Accused, Naeem Amin, was produced before him in his presence. He was holding a plastic shopping bag in his hands from which 21 baloons, 6 Nalies, thread, three battery cells, small quantity of `Mongphali' and one wrist watch were recovered. These articles were taken into possession vide recovery memo (Ex.PK) which he attested. He stated that he took the accused to Complex Hospital, Islamabad as directed by S.H.O. For medical examination. After examination the Medical Officer handed over to him the medico-legal-report and blood-stained shalwar and shirt of accused which he produced before the Investigating Officer who put into sealed parcels and took into possession, vide Ex. P.C. He stated that shalwar and shirt are present in Court. P.W.3 Dr. Wasat Hussain has stated that on 23rd February, 1988 at 1-30 p.m. He examined one Naeem Amin and found him fit to perform sexual intercourse. He handed over the copy of MLR alongwith clothes of the accused to the police. P.W.4 Dr. Zarif Uddin Khan has stated that on 23-2-1988 he was C.M.O.
In Children Hospital of Pakistan Institute of Medical Sciences and Dr. Imran Hamid was Registrar of Gynae Department, PIMS, Islamabad. On that date, Mst. Rifat, daughter of Shafique, aged 3 years was brought in hospital for medical examination. He called Dr. Imran Hamid who in his presence examined Mst. Rifat and prepared report (Ex.PE) which he countersigned. He has stated that Dr. Imran Hamid took three swa bs from vagina and three swabs from rectum of Mst. Rifat and handed over the same to him which he sealed into one parcel. Dr.Imran Hamid also handed over blood- stained shalwar and Qameez of Mst. Rifat to him which he put into sealed parcels and handed over the same to the police along with medico-legal-report (Ex.PE). He stated that Mst. Rifat was bleeding from her left eye. He summoned one consultant Dr. Jahangir of eye department to examine her and on his dictation he gave notes (Ex.PE/2) on Ex.PE. It bears his signatures. Posterior forchette of vagina of Mst. Rifat was found torn and bleeding. In his opinion, penetration had been done. On receipt of the report of Chemical Examiner, semen was detected in vaginal swabs but no semen was detected in rectal swa bs. He made a note in report (Ex.PE) which is Ex.PE/4. This witness was not cross-examined. P.W.5 Dr. Imran Hamid has stated that on 23-2-1988 at 1-00 p.m. He medically examined Mst.Rifat, daughter of Shafique, aged 3 years a minor girl and found the following injuries on her person. Her both eyes were swollen and shut and he found bruising below the eyes with fresh bleeding from angles. He also found a leanure bruise one inch transversally on the front of the neck and blood between the anal cheeks in the anal left. On exposure posterior forchette was torn and bleeding. He took three swabs from her vagina and three swabs from her rectum and all were sealed separately. He handed over the same to Fazil, S.I. In presence of Dr. Zarif, C.M.O, Children Hospital. He stated that name of Mst.Rifat was not known but at 1-15 p.m. Her father Shafique came from whom he learnt her name as Mst.Rifat. He has stated that Ex.PE is the correct carbon copy of the MLR. He stated that, according to report (Ex.PF), the vaginal swabs were found to be stained with semen but the rectal swabs were not found to be stained with semen and the swa bs were stained with blood. In his opinion, Mst. Rifat, victim was assaulted by the accused but full penetration due to her tender age was not practically possible. Partial penetration in this case is possible. P.W.10 Abdur Rahman has stated that in his presence the accused present in Court led the police party and pointed out a place near Block 76 at a distance of about 30 yards in the area of G-9/2. The Investigating Officer prepared pointation memo (Ex.PI) which he attested.
P.W.11 Khalid Nadeem has stated that on 23-2-1988 he was Moharrir/ASI, Police Station Margalla. He received two sealed parcels which he kept in Malkhana and on the next day he handed over the sealed parcels to Constable, Akbar All for taking to the Office of the Chemical Examiner. Nobody tampered with the same till it remained in his custody. P.W.1 Akbar Ali has stated that on 24-2-1988, ASI Khalid handed over him three sealed pacels of the case which he took to the Office of the Chemical Examiner, Lahore and produced all the parcels on 25-2-1988 intact. On 28-2-1988 all these parcels were returned to him from the Office of the Chemical Examiner which he deposited with the Moharrir intact. P.W.9 Muhammad Shafique is father of the girl. He has stated that he is working as Steno in the Ministry of Foreign Affairs. Mst.Rifat is his daughter and her age is 3-1/2 years. On 23-2-1988 at about 10-30 a.m. He was informed on telephone by his neighbour that his daughter was missing. He started in search of his daughter alongwith his brother when at about 12- 30 p.m. They were informed that his daughter was in Complex Hospital. He along with his wife went to hospital where his daughter was present and was being examined. He gave the name of his daughter to Medical Officer. He identified pair of shoes, pajama and frak of his daughter. P.W.12 Muhammad Fazil has stated that he accompanied the Inspector Abdul Aziz to the spot and joined the police investigation of the case. He has stated that in his presence, accused was produced before Inspector. He arrested the accused. The accused was holding a plastic envelope (Ex.P1) containing articles which were also taken into possession vide memo (Ex.PA) which he attested.
Thereafter he accompanied the Inspector to Complex Hospital where Mst.Rifat was admitted in Children Ward. The Inspector prepared the injury statement (Ex.PJ) and handed over to him. He got her medically examined. After the medical examination, M.O. Handed over to him MLR, one sealed envelope, pajama and blood-stained frak of Mst.Rifat which he produced all these articles before the Inspector. Memo (Ex.PK) was prepared which was attested by him. The pajama and frak were put into sealed parcel by the Inspector. P.W.13 Abdul Aziz has stated that on 23-2-1988 he was S.H.O., Police Station Margalla. On that date, he received information and rushed to the spot along with S.I. Fazil, S.I. Zafar and three constables. He recorded the statement of Muhammad Ajmal (Ex.PG) on the spot, read over to him and he signed it after admitting its correctness and statement was sent to police station for registration of a case. He has stated that formal F.I.R. (Ex.PG/1) was prepared by A.S.I.Khalid Nadeem who remained his subordinate and he is well conversant with his handwriting and signatures. He has stated that accused/appellant was produced before him on the spot and he found with him a plastic bag containing Mongphali, wrist watch and other articles and such memo. (Ex.PA) was prepared. He proceeded to Complex Hospital where Mst. Rifat was admitted in Children Ward. He prepared injury statement and directed Fazil to get her medically examined. He prepared report (Ex.PB) about the examination of accused and directed S.I. Zafar Ali to get him medically examined about his potency. After getting examined, Mst Rifat, S.I.Muhammad Fazil produced before him MLR and one sealed envelope, pajama and blood-stained frak of Mst.Rifat which he put into sealed parcel vide memo (Ex.PK). S.I.Zafar also produced MLR of accused and submitted his shirt and shalwar which were put into sealed parcel vide memo (Ex.PC). He came at the place of Wardat' and found a pair of shoes of child and parcel vide memo (Ex.PH) was prepared. He prepared site plan of occurrence (Ex.PL). Nadeem Amin, accused led them to place from where the girl was lifted by him from the area of G-9/2 and pointed out the place shown at No,1 in the site plan. He prepared pointation memo (Ex.P1) and handed over all the sealed parcels containing swa bs, blood-stained clothes of Mst.Rifat and blood-stained clothes of accused to A.S.I.
Khalid Nadeem, Moharrir. P.W. Muhammad Shafiq identified pajama, frak and pair of shoes of his daughter. He recorded the statements of the witnesses. The case was registered on the spot. He submitted the challan of the case.
5. Appellant in his statement under section 342, Cr.P.C. Has denied the allegation and stated that he was selling baloons in the area of G-9/2 and arrested him and recovered articles (Ex.P1 to Ex.P6) including the ground-nuts which belong to him. He has admitted to have been medically examined and found to be potent. He stated that witnesses have deposed against him at the instance of Muhammad Shafique, father of Mst. Rifat and he has been falsely involved in this case by the police as he was selling baloons when police officials demanded money from him to which he refused. He has not given statement on oath in disproof of charges nor examined any defence.
6. We have heard Mr. Fazal Ellahi Siddiqui, learned counsel for the appellant. It is argued that case is false against the appellant and there is possibility that prosecution witnesses, who apprehended the accused, might have committed zina with Mst.Rifat. The learned counsel has also taken the plea that appellant was insane and his case is covered under section 84, PPC and also his contention is that under section 5, of the said Ordinance only sane person could be convicted for the offence of zina. He referred to the cases reported in 1972 P Cr.L J 1041 and unreported judgment, dated 24-5-1989 of Lahore High Court Muhammad Arshad v. The State 1989 M LD 3968.
Mr.Shamsuddin, counsel for the State has supported the conviction and submitted that there is sufficient evidence against the appellant. It is argued that plea of insanity is after thought.
7. On merits there is evidence of two independent eye-witnesses and other corroborating evidence.
Complainant Muhammad Ajmal and Manwal Masih are eye witnesses. They saw the appellant committing zina with Mst.Rifat. They have A supported. They caught the appellant while he tried to run away. On alarm, Rauf Jan and Javed came, who took Mst. Rifat in a car of one doctor to the hospital. P.W.8 Rauf Jan has supported the case and stated that he found the girl lying naked. Her frak was in her mouth and shalwar was removed till her knees. The appellant was arrested by Ajmal and Manwal Masih at the distance of 20 yards from that place. The girl was bleeding from her vagina and eyes. He and Javed took the girl to the hospital for medical examination. The medical evidence of Dr. Zarif Uddin and Dr.Imran Hamid is that Mst. Rifat was subjected to sexual intercourse. The clothes were recovered and according to Chemical Examiner's report clothes were stained with semen and blood. The clothes of appellant were also found stained with semen.
Semen and blood were found on the swabs of the victim. The articles were recovered and sent to the Chemical Examiner without any loss of time. The reports are in positive. The evidence of the father, Shafique, is of a formal nature. He is not eye-witness. The appellant in his statement stated that he has been involved at the instance of Shafique, which has not been proved as father was informed by some one else and he came and saw his daughter in the hospital. He has not implicated the appellant. There is evidence of Investigating Officer, who visited the place of Vardar immediately and two Sub-Inspectors including S.H.O., joined the investigation. The victim was taken to the hospital immediately and got medically examined as well as appellant was examined. The accused in his statement under section 342, Cr.P.C. Stated that he has been involved as he was selling baloons and police demanded money from him and on his refusal he has been falsely involved. He has not given statement on oath in disproof of the charges or examined any witness.
8. For the reasons stated above the prosecution has proved the case against the appellant for committing zina on Mst.Rifat, aged 3 years. We have no reason to disbelieve the evidence of the independent witnesses in this case with regard to Zina-bil-Jabr which is corroborated by circumstantial evidence when accused was caught on the spot.
9. Appellant stands convicted under sections 11 and 10 (3) of the said Ordinance. With regard to kidnapping there is only evidence of P.W.10 Abdur Rahman, who has stated that appellant led the police party and pointed out a place near Block 76 in the area of G-9/2. He has not stated that appellant declared that he kidnapped Mst.Rifat. This evidence is not sufficient to sustain the conviction under section 11, of the said Ordinance as no person saw the appellant kidnapping the girl from the place or on the way. Only evidence is that he was found committing zina with the girl when he was caught on the spot.
10. Now we come to the point of the insanity taken by the appellant. It is to be noted that case proceeded before the learned Additional Sessions Judge, Islamabad. The charge was framed on 25-9-1988. The incident is of 23rd February, 1988. The statement of the accused was recorded on 10-10-1988. During this entire period the appellant has never taken the plea of insanity. On the contrary he gave statement under section 342, Cr.P.C. And stated that he was selling baloons etc. The appeal was filed from jail on 26-10-1988. Mr. Fazal Ellahi Siddiqui, was engaged and first time filed an application on 7-12-1988 under section 426, Cr.P.C. For taking further evidence. On his application reports were called from the doctors. The Jail doctor of Sahiwal has stated in clear terms in his report, dated 5-1-1989 that appellant is both physically and mentally fit except mild loss of motor power at the distal end of proximal extremities, though there is no wasting of muscles etc. In another report, dated 14-1-1989 he stated that appellant was kept under observation for ruling out of his mental instability and found not suffering from any mental problem except to some extent low I.Q. As compared to a normal person. In support some documents/papers attested by Deputy Medical Superintendent, Government Mental Hospital, Lahore were produced.
We have taken all the documents in consideration. The appellant was found missing from his house in 1977 and was admitted in hospital on 3rd April, 1980 and he was discharged on 16-4-1980.
This certificate is of 1980 while this incident has taken place in the year 1988 when appellant was selling balloons and other articles. There is nothing on the record to show that at the time of committing offence he was insane. The benefit under section 84, P.P.C. Could only be given when he is found insane at the time of commission of offence. The other contention of the learned counsel is that insane person cannot be convicted under section 5, of the said Ordinance. This plea can only be taken when punishment for Hudood is recorded and insanity is proved. Appellant has been convicted under Tazir. Therefore, the facts of the case referred by the learned counsel are different. We are, therefore, of the view that appellant, according to the record available before us, was not insane at the time of committing offence. He has committed offence with full senses. He removed the clothes of the girl and committed Zina-bil-Jabr with a minor child at a solitary place with intention and senses. We, therefore, repel this contention and hold that he was not insane.
11. Upshot of the above discussion is that case against the appellant under section 10(3) only of the said Ordinance has been fully proved and we maintain the conviction recorded against him under section 10(3), of the said Ordinance but set aside the conviction recorded under section 11, of the said Ordinance. Consequently, the appellant has to undergo R.I. For twenty years with twenty stripes only. The appellant shall be given benefit of section 382-B, Cr.P.C.