TANZIL-UR-REHMAN, CJ.--- This appeal arises out of judgment dated 24th of Julv, 1990, passed by Sessions Judge, Mianwali, in Hudood Case No.1n3 of 1988, convicting the appellant under section 10(3) of the Offence of Zinn (Enforcement of Hudood) Ordinance, 1979 for Zina-bil-jabr liable to Tazir with a minor girl of 8/9 years of age and sentencing him to ten years' R.I. And whipping numbering ten stripes, with benefit of section 382-B, Cr. P.C. If any.
2. The facts, as alleged, are that at about 12 noon on 10-6-1988 one Salina, aged about 8/9 years went with meals of her brother Muhammad Akbar to their onion field near P.1 Bhonki Branch, beside Mianwali-Sargodha Road, in the. Revenue limits of Mauza Muzaffarpur Police Station, Wanbhachran. The appellant working in the vicinity came there and giving Rs.2 asked Muhammad Akbar to have watermelon from Wanbhachran, who left for the same. Finding Salma alone Alam Sher, the appellant caught hold of her, took her dragging to a Sheesham tree in the neighbouring sugarcane field, stripped of her Shalwar and also removed his own, placed her on the ground and started having sexual intercourse with her. She raised hue and cry (given which her father Najeebuddin and brother Muhammad Akhtar reached there with Muhammad Iqbal and Muhammad Ashraf P.W s. Who saw the occurrence. On finding them around, the appellant hurriedly put on his Shalwar and took to his heels. Salma narrated the incident to them. Her father took her to the house where the relatives of the appellant allegedly started impressing upon him not to report the matter to the police. Tills cor16nucd until next day when Salina's father Najeebuddin went to Pohce Station Wanbl:achran and lodged the F.I.R. Khalid Bashir, S.I.
Investigated the case. He visited the spot, prepared its rough sketch and recorded the statements of the witnesses. Fie arrested the appellant Alam Sher on 12-6-1988 and got him medically examined the same day. Medico-legal examination of Salma was, however, got done on 1(:-6-19M of D.H.O, Hospital, Mianwali. Where after the Investigating Officer seized through memo. Exh. P.A. a sealed packet and a sealed envelope produced by Muhammad Aslam, H.C., after receiving them from the lady doctor and submitted the challan in the Court against the appellant in the Sessions Court of Mianwali District.
3. The prosecution examined in all ten witnesses. P.W.1 Muhammad Aslam, Head Constable, stated that on 16-6-1988, while posted at Police Station Wanbhachran, he got Salma (P.W.4) medically examined at D.H.Q. Hospital, Mianwali and then produced a sealed packet and a sealed parcel given to him by the lady doctor P.W.9, which he seized under memo. Exh P.A., signed by him. He also deposed to get the appellant medically examined on 12-6-1988 at the said Hospital. P.W.2 Rafi Ullah, Moharrir/A.S.I., Police Station, Wanbhachran, Mianwali deposed that he had received from Khalid Bashir, S.I./S.H.O. P.W.10 on 16-6-1988, a sealed envelope and a sealed parcel pertaining to the case, kept them in safe custody and delivered them with their seals intact to Aziz Jahan, Foot Constable (P.W.3) on 18-6-1988, for their - delivery to the Chemical Examiner, Rawalpindi. P.W.3 Aziz Jahan, Foot Constable deposed that when posted at Police Station, Wanbhachran, he received from Rafi Ullah Moharrir/A.S.I. On 18-6-1988, a sealed enveiope and a sealed parcel pertaining to the case-and delivered them intact at the office of the Chemical Examiner, Rawalpindi. P.W.4 Salma, aged about 10 years at the time of her examination in Court deposed that about two years back at 12 noon or 1-00 p.m. She went to the land of Muhammad Yasin near the bridge close to Mianwali-Sargodha Road with meals of her brother Akbar P.W.5, who would guard the onion crop there. The appellant Alam Sher was working in the adjoining Geld. He came to them and by giving Rs.2 to Akbar P.W.5 told him to go and fetch watermelon from Wanbhachran town. Akbar, accordingly, went away leaving her behind. The appellant later took her dragging to a Sheesham tree in the sugarcane field, stripped of her Shalwar, put her on the ground, removed his own Shalwar also and lying on her had sexual intercourse with her. She raised hue and cry on which her brother Muhammad Akbar, Muhammad lqbal, Muhammad Ashraf and her father Najeebuddin P.Ws. Reached the spot who saw the occurrence. P.W.5 Muhammad Akbar deposed that Salina was her younger sister, Two years back when he was guarding the onion crop in the land of Muhammad Yasin, Salma P.W. Brought meals for him at about 1-00 p.m. The appellant was then working in the nearby sugarcane field. He came to them and giving Rs.2 asked him to fetch watermelon from Wanbhachran. He purchased the watermelon and was returning when his father Najeebuddin joined him at P.1 Bhonki with Muhammad Ashraf and Muhammad P.Ws. As they reached the onion field Salma P.W. Was raising shrieks under the Sheesham tree in the adjoining sugarcane crop. They rushed there and saw appellant with a Shalwar removed lying on her, who too was divested of her Shalwar. On seeing them, the accused picked up his Shalwar and fled away. P.W.6 Muhammad lqbal deposed that about two years back at about 1-00 p.m., he, Muhammad Ashraf and Najeebuddin P.Ws. Were going to their crops. Muhammad Akbar P.W. Son of Najeebuddin P.W. Also joined them on the way at P.1 Bonki Branch near the metalled road. As they approached the sugarcane and onion crop of Najeebuddin P.W., there were cries of Salma whom they saw under the Sheesham tree in the sugarcane crop. Salma P.W. Was lying on the ground with her Shalwar removed and the appellant having sexual intercourse with her. He had also taken of Shalwar. On seeing them, the appellant picked up his Shalwar and fled away. P.W.7 Doctor Muhammad Ayub, Medical Officer, Rural Health Centre, Wanbhcharan, District Mianwali deposed that on 12-6-1988 at 11-00 a.m. He medically examined Alam Sher, the appellant, aged 18 years and found that there was nothing to suggest that he was incapable of performing sexual intercourse.
He also produced medico-legal examination report of the appellant. P.W.8 Najeebuddin deposed that about two years back when he had sown onion crop at the land of Muhammad Yasin near P.1 Bhonki Branch South to Mianwali-Sargodha Road, his son Muhammad Akbar P.W. Went to look after the same. Salma P.W. Also went there at about noon time with the meals of Muhammad Akbar P.W.
When he, Muhammad Ashraf, Muhammad lqbal, who had come from Wanbhachran with watermelon joined them at P.1 Bhonki Branch. As they approached the onion field there came noise from the nearby sugarcane field. They saw Alam Sher, the appellant engaged in sexual intercourse with Salma under a Sheesham tree. He had put of his Shalwar and Salma was also divested of.
They rushed to the spot and on seeing them the appellant disengaged himself, picked up his Shalwar and fled away. He took Salma to the house where relatives of the appellant started impressing upon him not to report the matter to the police. This continued until next day when he went to Police Station Wanbhachran and lodged the F.I.R. P.W.9 Lady Doctor Saadat Naqvi, Rural Health Centre, Hafizwala, District Mianwali deposed that on 16-6-1988 at 11-00 a.m. She medically examined Salma daughter of Najecbuddin aged approximately 9 years with no pubic or axillary hair and breasts completely absent, having no scratches on thighs or perineal regions. Her hymen was intact. A small vaginal swa b was taken without distorting the hymen and sent to the Chemical Examiner in sealed packet for detection of spermatozoa, if any. The examinee had bruises irregular in outline, approximately over an area measuring 3 c.m. x 1 c.m. On the perinea region. On receipt of the Chemical Examiner's report dated 21-6-1988 as the above swabs were found stained with semen and blood, she opined that Salma had been subjected to sexual intercourse. P.W.10 Khalid Bashir, S.I./S.H.O., Police Station, Wanbhachran, District Mianwali deposed about his registering F.I.R.
On 11-6-1988 on the statement of Najecbuddin P.W., going to the spot, inspecting the same and preparing its rough plan, including marginal notes 1 to 3 in his hand as signed by him. He also deposed about recording the statements of the witnesses and arresting the appellant and getting him medically examined and Salma, the victim, on 12-6-1988 and 16-6-1988 respectively, and the seizing of scaled packet and sealed envelope through memo. Exh. P.A. And that he had completed the investigation and challaned the appellant.
4. After the prosecution evidence was closed the appellant in his statement under section 342, Cr.
P.C. Denied the various allegations against him as incorrect. According to him, the evidence was fabricated to involve him in the case due to suspicion. He, however, refused to make statement on oath as required under section 340(2) of Cr. P.C. He offered to produce defence evidence but, later on, filed a statement that he did not want to produce any evidence in defence.
5. The only submission made by the learned counsel for the appellant is that no penetration having taken place and the hymen found intact, there was no sexual intercourse. It was thus submitted by him that the case fell under section 18 and not section 10(3) of the Offence of Zina (Enforcement of Hudood; Ordinance, 1979. In the alternative, he pleaded for reduction of sentence from 10 years to five years' R.I.
6. The first submission,, of the learned counsel that no sexual intercourse has taken place is belied by the reports of the lady doctor and the Chemical Examiner and statements of the victim and P.W s.
7. According to the Chemical Examiner's Report (Exh. P.D.) the swabs were found stained with semen and blood. In the opinion of the lady doctor the victim had been subjected to sexual intercourse. Injuries on the princely regions of the victim also gave support to this view. The mere observation of the lady doctor that as the hymen was intact, no penetration had taken place cannot rule out the commission of sexual intercourse. Penetration could be effected without rupturing or injuring the hymen. Normally the hymen is ruptured by the first act of coitus, though it may persist even after frequent acts of coitus if it happens to be loose, folded and elastic, or thick, tough and flashy. Modi in his well-known book on Medical Jurisprudence and Toxicology, Twenty First Edition (Tripathilr Bombay) page 325 states: "In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, the edges of which are red, swollen and painful and bleed on touching, if examined within a day or two after the decd. These tears heal within five or six days, and after eight to ten days become shrunken and look like small granular tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small granular tags of [Issue, calicd caruncul;ie humcncalis or myrtilormcs. In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the dispensability of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred, if the vaginal', orifice is big enough to admit easily the passage of two fingers. In girls under fourteen years of age the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen... In small children the hymen, being situated high up in the canal, is not usually ruptured, but may become red and connected along with the inflammation and bruising of the labia, or, if considerable violence is used, there is often laceration of the couchette and perineum. In grown- up virgin girls, unmarried, or married women, when they offer resistance marks of violence, such as bruises, scratches of fingers nails, etc. May be found on the external genitals, perineum, abdomen, chest, back, limbs, neck and face. The vaginal secretion from the posterior for nix should always be obtained by introducing a swa b (or 1 ml. Pipette) and the material obtained on the swab must immediately be transferred to a microscopic slide and spread out in the form of a thin film and fixed After staining, the slide should then be examined microscopically for the presence of spermatozoa, which is a positive sign of rape in the case of children and grown-up virgins.
The submission of the learned counsel that no intercourse had been committed because the hymen of the victim was intact has no force. The lady doctor's statement that P.W. Salma had been subjected to sexual intercourse is quite significant in this respect.
7-A. The next submission of the learned counsel that it was a case of an attempt to commit the rape is without any substance. The catching hold of P.W Salma and taking her under the Shcesham tree, striping of her Shalwar and also removing his own, placing her on the ground and then starting having sexual intercourse with her extends the act from the stage of preparation and attempt to the actual commission of the offence and thus the learned trial Judge has rightly held the offence falling under section 10(3) of the Ordinance and convicting the appellant under the aforesaid subsection.
8. Now, we come to the alternative plea taken by the learned counsel for reduction of sentence. The learned counsel though sought time more than once for producing case-law on the point of reduction of sentence but failed to produce the same. He even failed to turn up on the last day of hearing. Ch. Muhammad Ibrahim, learned counsel for the State, however, assisted the Court by referring to two cases (i) Mst. Sajida Parveen v. Muhammad Akbar NLR 1987 SD 1 and (ii) Khalid Hussain v The State 1987 P Cr. L J 1979. In the first cited case Zina was committed with a teen-agcr girl of 15 ycars when she was on her way to fields to case herself. The Court convicted the appellant on the basis of evidence of prosecutor, who fully supported the prosecution and whose evidence found corroboration from medical evidence. The appellant in that case was convicted under section 100) of the said Ordinance and sentenced to undergo 10 years' R.I with whipping numbering 15 stripes. He was also sentenced to pay fine of Rs.5,000 or in default of payment of fine to further undergo R.I. For six months This Court while maintaining the sentence of imprisonment, enhanced the stripes from 15 to 30 and set aside the sentence of line. In the second cited case Khalid Hussain v. The State 1987 P Cr. L J 1979 the appellant was convicted under section 10(3) of the Ordinance for committing Zina with a minor girl of 11 years and was sentenced to 16 years' R.I. With whipping numbering 25 stripes and fine of Rs.5,000. On appeal, this Court setting aside the sentence of fine of Rs.5,000 enhanced the sentence of whipping from 25 stripes to 30 stripes, and considering the young age of the convict as a mitigating circumstance for reduction in sentence it reduced the same from 16 years to 10 years.
9.In the instant case, the appellant has been stated to be a young boy of 18/19 years of age. This factor of young age has already been taken into consideration by the learned trial Judge. The case, therefore, does not call for reduction of sentence.
10. During the hearing of appeal it was found that the provision relating to sentence of whipping numbering 30 stripes as contained in subsection 10(3) of Zina Ordinance is mandatory. The notice for enhancement,, of the sentence of whipping to bring in line with the mandatory provision of law was accepted by the learned counsel. We would, accordingly, enhance the sentence of whipping from 10 stripes to 30 stripes.
11. With the above modification, the appeal is dismissed. The benefit of section 382-B, Cr. P.C. As allowed by the learned trial Judge is maintained.