Appellant Khan Zaman is a young boy of 14 years. He has been convicted by the learned Additional Sessions Judge, Chakwal, under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer R.I. For five years and thirty stripes by judgment, dated 19-1-1991. He has riled this appeal against his above conviction and sentences.
2. Harz Aaqil Muhammad is the father of a young girl Mst. Nasim Akhtar. He lodged an F.I.R. In Police Station Tamman on 2-9-1988 at 7-00 p.m. Stating that a day earlier iie. 1-9-1988 when his daughter Mst. Nasim Akhtar aged 13/14 years was returning to the house with a load of straw for the animals the appellant- rose from the maize crop and caught hold of her. The appellant, by overpowering the young girl and frightening her by showing a knife dragged her to a ditch nearby and after felling her on the ground and after ripping of the string of her shalwar committed zinc-bit-jabr with her. The basket of straw fell down and her clothes were torn due to the struggle.
3. As the girl did not return to the house for some time her mother Mst. Saidari and her brother Abdul Razzaq went out in her search. They heard the cries of Mst. Nasim Akhtar and ran towards the place of occurrence. The appellant on seeing the mother and the brother of the girl tried to escape.
He was given a chase by Abdul Razzaq, the brother of the girl but could not be captured on the spot. The girl was brought home in a miserable condition. The father of the girl Hafiz Aaqil Muhammad was away from the house. He had gone to Wan Bachra in District Mianwali. The family kept quiet. Next day when the father returned to the house in the afternoon the story was narrated to him. He immediately got a complaint (Exh. P.A.) drafted and on the basis of this complaint an F.I.R. Exh.PA./1 was registered by Gulzar Ahmad, H.C, in Police Station, Tamman. The investigation was taken over by S.I. Ghulam Hussain, who after recording statements of the witnesses challaned the appellant and sent up the appellant for trial before the learned Additional Sessions Judge. The learned Judge framed a charge and after recording evidence convicted the appellant as mentioned earlier.
4. The prosecution had examined in all nine witnesses.
5. P.W.6 Hafiz Aaqil Muhammad is the father of the girl. He is the complainant in the case and he has made a brief statement in the Court. In his statement the reason for lodging the F.I.R with delay of a day has been explained. According to him he was away from the house on the day of occurrence and the next day when he arrived he hastened to record the F.I.R. Without any loss of time.
6. P.W.8 Mst; Saidan is the mother of the victim girl. She has stated that on the day of occurrence when her husband was away from the house her daughter Mst. Nasim Akhtar was sent out to bring sheaf for the animals. After taking sheaf from the threshing floor in the field when the girl was returning to the house she was caught hold of. By appellant Khan Zaman who was hiding in the maize crop in a field by the side of the path. As the daughter did not return to the house within a reasonable time she felt disturbed and alongwith her son Abdul Razzaq went out to see why she had not returned. As they reached near the place of occurrence they noticed that the accused/appellant had felled down her daughter Mst. Nasim Akhtar and was committing Zina-bit- Jabr with her. The accused had gagged the mouth of Nasim Akhtar with her `Dopatta'. The accused was given a chase by her son but he succeeded in escaping from the place of occurrence. Next day when her husband returned the whole incident was narrated to him and he immediately filed a report in the police station. The other eye-witness of the occurrence was Abdul Razzaq, brother of Mst, Nasim Akhtar, but the learned A.D.A. Did not examine him in Court.
7. Mst. Nasini Akhtar has been examained as P.W.7. She has made a clean statement in Court. She was cross-examined at length. But the more she was pressed with probing questions clearer emerged the picture. Her statement is confidence inspiring. This statement alone would be enough to prove the allegations against the appellant.
8. The victim of the offence was examined,, by Lady Dr. Hamida Khatoon. The lady doctor has described the condition as follows: "(1) Breast fully developed.
(2) Hymen not intact. Redness at private parts present. Bleeding from the vagina present. Three cotton swa bs taken and sealed in small bottle for chemical examination to detect semen... From physical examination it seems sexual act had been committed.
The lady doctor has also produced a copy of the medico-legal report as Exh. PA.
9. The swa bs taken by the lady doctor were sent to the Chemical Examiner and the report of the Chemical Examiner is Exh. P.J. According to this report the swabs were found to be stained with semen.
10. Appellant Khan Zaman was examined by the learned trial Judge under section 342, Cr.P.C. He has not made a statement under section 344'!2), Cr.P.C. He has denied the charge. According to him the, story is false. According to him the medical certificate has been obtained in collusion with W.M.O. The doctor certifying his potency issued a certificate without examining him according to him. The shirt was torn not during the struggle at the time of occurrence, but was torn by the police in order to create evidence against him. In answer to question No.7 he has tried to give reasons for his false involvement in the case: "I saw Mst. Nasim Akhtar in objectionable condition with Hakim Amir Abdullah, ~t raised alarm and in order to save their honour a false case was cooked against me in collusion with the P.W s. And the said Hakim Amir Abdullah."
He has also produced the School Leaving Certificate in support of his claim that he was only 13 years of age at the time of occurrence. Perhaps this is an attempt to bring the case under section
7. Of the Ordinance which postulates that an offender less than 18 years of age and or not being an adult would be treated with leniency and the punishment prescribed is only five years or fine.
11. Mr. Fazal Ellahi Siddiqui, learned counsel for the appellant first tried to argue that his client was innocent. That the event as described,, was devoid of any reality. But feeling that he was not on a firm footing turned to another approach in the case and urged that the appellant was a raw youth.
That he lacked discretion. In order to get maximum benefit for his client the learned counsel relied on the provisions of section 7 of the Ordinance and prayed for the reduction of the sentence. In this connection his argument was two-fold. Firstly, that the appellant was admittedly less than 18 years.
That he did not qualify to be treated as a normal offender, but was entitled to the benefit of section 7 of the Ordinance. But the moot question is whether the appellant has "attained puberty" even though he has not yet reached the age of 18 years.
12. The question of attaining puberty earlier than 18 years is a question of fact. To determine this question different tests have been prescribed. The physical changes in the body mechanism,, the appearance of pubic and axillary hairs, the development of the vocal chords changing the voice of a person. These and other signs have been taken into consideration for determining this question.
There are discussions in the books of Solmand and Modi. The point has also been decided judicially m a number of decisions of the Courts. All these tests and criterions have now become of little value because in the Islamic Jurisprudence the last word would be the word of God in the Holy Qur'an or the sayings of the Holy Prophet (p.b.u.h.) in the Hadis, which are of unimpeachable authority for us to follow. Fortunately we have guidance from both these sources. The Ayat 59 of Sura-e-Noor provides a guidance when a male child should be treated to be an adult. The Ayat is as follows: Relying on the above symptoms of adulthood the Shariat Appellate Bench of the Supreme Court has made the following observations in the case of Abdul Jabbar -,. State PLD 1991 SC 172.
13. The upshot of the discussion is that although the appellant has not attained the age of 18 years, he would surely be treated an adult within the meaning of section 2(a) of the Ordinance, if he is capable to ejaculate and discharge semen. Unfortunately no attempt has been made to determine this fact while the appellant was subjected to medical examination by P.W.2. Dr. Dost Muhammad. Learned counsel for the appellant contends that although the doctor subjected the appellant to a clinical test and noticed pubic hair, he did not apply any test to find out whether the appellant was capable of ejaculation and no mucous or semen was extracted from his male organ. The learned counsel further contended that in the absence of the positive evidence of ejaculation the appellant cannot be treated. a confirmed adult merely on the basis of the presence of semen on the cotton swa bs extracted from the vaginal canal of the girl. Even these swabs were taken after about three days of the incident. The point remains debatable, no doubt. The possibility of the semen on the cotton swa bs coming from a source other than the appellant cannot be completely ruled out. In this view of the matter and in the absence of any ejaculation test the case of the appellant shifts to the criterion of age of 18 years and under this criterion the appellant should be entitled to the benefit of section 7 of the Ordinance, because admittedly he is aged 13/14 years. The learned counsel has relied on a case of Muhammad Hussain v. Muhammad Ramzan and another PLD 1982 FSC il decided by a strong Bench of this Court presided over by the then Chief Justice Mr. Justice Aftab Hussain. While affirming the conviction of the appellant in that case the sentence was reduced and following observations were made: "After going through the entire material available on the- record we are satisfied that the prosecution has established the guilt of Muhammad Ramzan Accused respondent beyond any shadow of doubt through the testimony of eye-witnesses Mst. Khursheed Bibi (P.W.3), Muhammad Hussain (P.W.1) and Munir (P.W.5), corroborated by medical evidence and the report of the Chemical Examiner (Exh. P.G). The trial Court, has, therefore, rightly found the accused guilty under, section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. However, in the circumstances of the case, we find that the sentence awarded to Muhammad Ramzan, accused respondent is grossly inadequate and amounts to miscarriage of justice. It is proved on the record that Muhammad Ramzan, accused respondent committed Zina-bil-Jabr with Mst. Zahida Parveen a girl of 6 years of age. We are also conscious of the tender age of Muhammad Ranizan, accused (between 12 and 14 years) and therefore are not inclined to send him to the prison. Keeping in view the facts and circumstances of the case we feel that the ends of justice will be met by enhancing the fine from Rs.500 to Rs-8,000 or in default to undergo rigorous imprisonment for two years plus thirty stripes. The fine will be realised within one month and the same shall be paid to Muhammad Hussain, complainant father of the prosecutrix Mst. Zahida Parveen."
14. Following /the dictum laid down in the above case I would fccl inclined to modify the sentence.
The ends of justice would be met if in the present case the sentence of imprisonment is reduced from five years to three years and thirty stripes to fifteen stripes. In substitution of the reduction of the physical punishment the appellant should pay a fine of Rs.5,000 or in default to suffer further R.I.
For six months in lieu thereof. The amount of fine, if realised, should be paid to the father of the girl.
Benefit of section 382-B, Cr.P.C. Should also be given to the appellant.