ABDUL KARIM KHAN KUNDI, J.--- Additional Sessions Judge, Jhang, by his judgment and order, dated 21-10-1990 found Javed Iqbal alias Daddi appellant guilty on the charge of Zina-bil-Jabr with Mst. Razia (P.W.) but since he was not adult at the time of offence, he has accordingly convicted and sentenced him to five years' R.I. And fine of Rupees five thousand or in default six months' R.I.
Further under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as Ordinance. Criminal Appeal No.28/L of 1990 was filed as against conviction and Criminal Revision No.12/L of 1990 was filed for enhancement of the sentences.
2. F.I.R. Was lodged by Haq Nawaz at 12-15 in the night on 19-4-1989. It was reported that on 18-4- 1989 at 12-00 O'clock in the noon in the wheat crop field at the alarm raised by the victim, he i.e. Her uncle, her father Muhammad Nawaz, P.W. And one Muhammad Amin, P.W. Were attracted who witnessed Javed Iqbal appellant committing Zina-bil-Jabr with Mst. Razia P.W. And at the Lalkara raised by the P.Ws. The appellant left Mst. Razia and fled away. A motive was given that victim had quarrelled with appellant's mother a month before the occurrence that in revenge he had committed Zina-bil-Jabr with her.
3. Lady Dr. Asmat Begum (P.W.1) examined Mst. Razia Bibi aged about 15 years on 19-4-1989 and reported her hymen showing fresh tears and torn edges also red, tender, swollen and bleeding and vagina painful. She further found multiple abrasions on the middle of back of chest and abdomen, back of sacrum middle part and the upper lip. Three vaginal swabs and a blood-stained piece of Shalwar were secured and sealed and sent to Chemical Examiner wherefrom a positive report was received. The lady Dr. Opined that Mst. Razia was raped and that injuries were caused to her within a duration of 16 to 18 hours of her examination. Her evidence goes unchallenged as she was not cross-examined. Dr. A.B. Saleem (P.W.2) had examined the appellant, Javed Iqbal, aged 13 years on 22-4-1989 and found .Him a boy of average built up and healthy but that his secondary sex characteristics were not fully developed and that only few pubic and axillary hair were grown and that though his external genital was healthy but not fully developed. In his opinion there was nothing to suggest that the appellant was incapable to perform sexual intercourse. In cross he also rebutted the suggestion that in view of his observations the appellant was not able to perform sexual act. Haq Nawaz, complainant (P.W.3) supported his complaint and claimed to have witnessed the commission of Zina-bil-jabr with Mst. Razia Bibi. He denied the suggestion that in fact Mst. Razia was committed upon sexual intercourse by her paramour with her consent and that since in spite of his beating she did not divulge his name, the appellant was falsely charged due to enmity. Mst. Razia Bibi the victim (P.W.4) stated that she was on her way to the house of her maternal-uncle that as soon she reached near the field of wheat crop of one Rana Irshad, the appellant came behind her, caught hold of her, broke the string of her Shalwar, made her lie on the ground and raped her forcibly and that at the alarm raised by her P.Ws. Were attracted and they saw the occurrence. She admitted that her clothes were not torn and only the string of her Shalwar was broken. She further stated that the appellant had asked her that she had removed his onion plants which she denied but even then he caught hold of her pigtail, felled her down on the ground and committed Zina-bil-jabr with her.. She denied to have falsely charged the appellant due to enmity. She also stated that she had identified the appellant on the following day of occurrence at about noon time in the Police Station, Zahoor Ahmad A.S.I. (P.W.5) stated to have been delivered two sealed parcels by Umar Hayat which he kept in safe custody in the Police Malkhana and later on delivered the same to Muhammad Iqbal F.C. (P.W.7) in tact for onward transmission into the office of Chemical Examiner. Umar Hayat S.I. (P.W.6) had recorded the F.I.R. Got the victim medically examined; prepared the site plan; examined the P.Ws.; took the vaginal swabs and victim's Shalwar into possession; despatched the same to Chemical Examiner for analysis; arrested the appellant on 21-4-1989, got him medically examined on 22-4-1989 and last submitted the challan in the Court.
4. Appellant in his examination under section 342, Cr.P.C. Denied the charges. He admitted his medical examination but claimed that he was not able to perform sexual act and further stated that the complainant and P.Ws. Were inimical towards him and his family and that due to party faction in the village between Riaz Hashmat Janjuah and Iqbal Mohal a false case was registered against him. In his statement on oath he once again professed innocence and stated that the prosecution case was false and that in fact the victim was committed upon raped by her paramour and instead he was involved due to enmity. He tendered into defence his school leaving certificate, Exh. D.B. Which was to report his date of birth as 15-5-1975 and on the day of offence he was to be under 13 years of age.
5. It was argued that the appellant was not adult at the time of the commission of the offence of Zina-bil-jabr as he was under 13 years of age as proved from the school leaving certificate, Exh.
D.B., and also his medical examination, Exh. P.D. Reporting his age as 13 years and further reporting that his secondary sex character was also not fully developed. It was contended that the whole case was false as the vaginal swa bs and piece of cloth of Shalwar were stained with semen as reported by the Chemical Examiner suggesting that it could by the act of some adult person and not the appellant, a minor boy. The argument apparently seems to be flowery. However, the Doctor who examined the appellant found him potent and capable of performing sexual intercourse and also found his secondary sex character present but not fully developed and his pubic and few axillary hair also grown. The doctor has not carried the examination in the ejaculation of the appellant's penis to ascertain if he has attained the symptoms of puberty or not. We would accordingly extend the benefit of doubt to the appellant that he may not be adult but this fact by itself would not be sufficient to negate and rebut the Chemical Examiner's evidence reporting the vaginal swa bs and cloth piece of Shalwar of the victim stained with semen and blood in order to attribute the same to the sexual act of some other adult person. Substitution is a rare phenomena.
Appellant did not name the so---called paramour of the victim although in village such like incidents seldom remain secret. The victim apparently a 15 years old girl had stated her age as 13 years and claimed that the appellant was older than her. She had also duly identified the appellant in the Police Station. She stated on oath that the appellant had committed rape upon her. She denied the suggestion that her paramour had committed sexual act with her and she had falsely charged the appellant due to enmity. The victim had sustained multiple abrasions on different parts of her body and her hymen was also showing fresh tears and her tear edges were red, tender, swollen and bleeding and her vagina was also painful. Her paramour was not likely to be violent to her in case she was a consenting party that there were to be caused injuries to her on different parts of her body. This all would establish that she was subjected to Zina-bil-jabr and not Zina with consent.
6. Coming to the punishment of Zina or Zina-bil-jabr by a person not an adult the offence is punishable with imprisonment upto five years' R.I. Or fine or both and the offender may also be awarded punishment of whipping not exceeding thirty stripes. However, the offender although not adult but not under the age of 15 years, in case of Zina-bil-jabr shall also be liable to the punishment of whipping with or without any other punishment: It is a case of Zina-bil-jabr by a boy not adult and also under the age of 15 years, we would accordingly award him the sentence of imprisonment as well fine but not whipping. We understand that the ends of justice would meet if the sentence of imprisonment is reduced from five years to two years and fine is increased from rupees five thousand to ten thousand and in default the offender is made to undergo two years' R.I.
Further. The amount of fine on recovery shall further be paid to the victim as compensation under section 544-A, Cr.P.C. Appeal and revision are disposed of in the above terms.