TANZIL-UR-RAHMAN, C.J.--- This criminal appeal arises out of the judgment, dated 25-5-1991 passed by Sessions Judge, Kasur, convicting the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentencing him to seven years' R.I. And' whipping numbering 30 stripes. The appellant was also convicted under section 302, P.P.C. As inserted by Qisas and Diyat Ordinance, 1990 and was sentenced to death. The learned trial Judge has also sent a reference for confirmation of death sentence to this Court.
2. The occurrence took place on 8-1-1991 at about 'Peshiwela' time in the sugarcane field near the, joint tube-well of the parties situated* at village Jaura at a distance of about 9 miles from the Police Station Saddar, Kasur. The said occurrence was reported at the police station the game evening and a formal F.I.R. Was got recorded at about 6-10 p.m. By Muhammad Sharif, father of the victim, vide 11.1,11. (Exh.P.F.).
3. The facts of the prosecution case briefly stated are that Muhammad Sharif, a cultivator, while present in his land, mentioned above was watering the same with the tube-well on 8-1-1991 at about 'Peshiwela' time when his daughter Najma Bibi, aged 12/13 years, a student of 8th Class, came and began to pick up Saag in the nearby field when all of a sudden the tube-well stopped and the complainant then went towards the same for re-operating it. On his return to the field after re-operating the same, he did not find his daughter there. Out of anxiety, he then called Khalil Ahmad son of Muhammad Yaqoob and Niamat son of Fazal Kambow from nearby fields and joined them in the search of his daughter. While passing near the sugarcane field of Muhammad Hayat they heard a shriek and so the complainant alongwith aforementioned Khalil Ahmad and Niamat rushed in the sugarcane field and then they saw appellant, Muhammad Ramzan alias Bagoo, resident of his own village, without his Shalwar and strangulating her daughter Najma, with her `Dopatta' who was lying naked on the ground. Having seen them, Muhammad Ramzan, appellant picked up his Shalwar and ran away from the spot. The complainant saw his daughter, Najma, lying naked at the spot, oozing blood from a wound at her chest and so dead. The occurrence of Zina-bil-Jabr and murder was thus' seen by the complainant and the two witnesses Khalil Ahmad and Niamat. The complainant set right the shirt and Shalwar of his daughter. A cot was sent for from hips house by sending Niamat there and he lifted the dead body to his own house and then leaving the same under the care of some ladies left for the police station and se lodged the F.I.R., as stated above. The appellant was then arrested on 9-1-1991.
4. The case was sent up for trial and the accused/appellant having denied the charge was tried under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, and section 302, P.P.C. As inserted by the Qisas and Diyat Ordinance, 1990.
5. The prosecution in all examined 11 witnesses. P.W.1. Dr. Munir Ahmad Gohar, Medical Officer, District Headquarter Hospital Kasur, carried out the post-mortem examination of the dead body of the victim Najma. P.W.2 Waris, Head Constable/Moharrir, kept the parcels in the Malkhana in safe custody. P.W.3 Muhammad Azam, F.C. Took the parcels to the chemical examiner. P.W.4 Muhammad Yousuf, F.C. Took the dead body for post--mortem o the Hospital. P.W.5 Safdar, a relative of the complainant identified the dead body of the victim in the Hospital. P.W.6 Dr. Saleem- ur-Rahman, examined the appellant as to his potency. P.W.7 Sufaid Khan, a Patwari, prepared the site plan. P.W.8 Khalil Ahmad is an eye-witness. P.W.9 Muhammad Sharif, complainant is the father of the victim and also an eye-witness. P.W.10 Muhammad Siddique, a public man is a marginal witness of the recovery of knife from the cattleshed of the appellant on his pointation. P.W.11 Abdul Majeed, A.S.I., Police Station Saddar completed the investigation and submitted the challan against the appellant.
6. P.W.1 Dr. Munir Ahmad Gohar, Medical Officer, District Headquarter Hospital, Kasur, deposed on oath that on 9-1-1991 at abott 12-05 p.m. He conducted the post-mortem examination of the dead body of Najma Bibi daughter of Muhammad Sharif (the victim), aged about 12/14 years, of average built, wearing blue `Qameez' bloodstained and blue Shalwar stained with blood and faecal matter.
Qameez and Shalwar were also stained with mud. A white coloured `Dopatta' bloodstained was wrapped around her neck with knot on left side. A blood discharge was present on both nostrils.
Post--mortem staining was present on back and rigor mortis was developed. He found the following injuries on her body:--
(1) A ligature mark around the upper part of neck 2 c.m. Wide on dissection muscles of the neck on left side were contused.
(2) An abrasion with contusion on chin measuring size 2 x 2 c.m.
(3) An abrasion on front of upper part of chest 1 c.m. To right side from the mid line measuring 4 c.m. x 1 c.m.
(4) An abrasion 1 c.m. x I c.m. On front of upper part of chest 1 c.m. To the left of mid line.
(5) A stabbed wound 2 c.m. x 1 c.m. In the epigastric region 2 c.m: towards right from mid line penetrating down to the abdominal cavities.
(6) An abrasion 1 c.m. x 1 c.m. On right iliac crest.
(7) An abrasion 1 c.m. x 1/4 c.m. On base of right thumb.
(8) A contusion 4 c.m. x 4 c.m. On inner side of right thigh on upper part.
(9) Both labia were contused on inner side and hymen was ruptured. The witness further deposed that right lung was collapsed. Right side of the heart contained 10 cc blood, left side was found empty. Pertonial was found injured at epigastric region under injury No.5. About 1 litre blood was found in the peritonial cavity. No congestion or other abnormality was found in mouth, pharynx and oesophagus. Diaphragm was injured at right dome under injury No.5 through and through.
Stomach contained semi-digested food and was found healthy. Liver was injured through and through under injury No.5. Organs of generation external and internal both labia were found contused on inner side. Hymen was found ruptured. Uterus was found empty. Vaginal swabs were taken and sent to chemical examiner for detection of semen:--
7. As to his opinion, he deposed that:-- "In my opinion, deceased died due to injury to vital organ i.e. Liver leading to severe haemorrhage and shock alongwith haemopneumothroex leading to collapse of right lung (severe dyspnoea) sufficient to cause death in ordinary course of life under injury No.5. All the injuries were ante- mortem. Injury No.5 was caused by sharp-edged weapon and rest were caused by blunt weapon.
Probable time between injury and death was within 30 minutes and between death and post- mortem was within 24 hours ...."
8. In cross-examination by the defence counsel the witness stated that the deceased might have taken her last food about two hours before she met her death. The duration between death and post-mortem could not exceed 24 hours and that `I found the ligature mark around the neck on the upper part'. P.Ws, 2, 3, 4 end 5 are formal and we need not dilate on them. P.W.6 Dr. Saleem-ur- Rehman, Medical Officer, District Headquarter Hospital, Kasur, deposed on oath that on 9-1-1991 he examined Muhammad Ramzan (the appellant), aged about 20 years, for potency and it was found by him that the accused was young aged healthy person, well-oriented in time and space. He found his secondary sexual characters like pubic hair, axillary hair, gentalia all well-developed.
Crimastric reflects was positive. Genital organs (Penis testicles) were healthy and well-developed.
9. As to his opinion, he deposed that:-- "In my opinion, the examinee was fully fit to perform the sexual intercourse. Exh.P.C. Is the correct carbon copy of M.L.R. Which is in my hand and signed by me."
10. In cross-examination by the defence counsel, he deposed that he gave the age of accused by an inquiry from him, and the same since corresponded with his stature, so he did not record any other findings on this aspect in the M.L.R. He denied the suggestion that the accused (appellant) had given his age as 16/17 years but he recorded the same as 20 years at the instance of complainant side. P.W.7 Sufaid Khan, Revenue Patwari, Halqa Jaura, deposed on oath that on 9- 1=1991 that he had inspected the place of occurrence under the direction of the police and prepared site plans Exh.P.D. And Exh.P.D./1, of the place of occurrence. In cross-examination by the defence counsel, he deposed that the tube-well was `standing' at a distance of one acre towards the south of the sugarcane field where the occurrence had taken place. The tube--well concerned belonged to Muhammad Sharif, complainant. There is a solitary Dhari of the complainant at the said tube-well for tethering. He further deposed that the Abadi of village Jaura may be at a distance of one and half miles from the place of occurrence. P.Ws. 8 and 9 are the two eye- witnesses.
11. P.W.8 Khalil Ahmad, cultivator, resident of village Jaura, deposed on oath that he knows Muhammad Ramzan, the accused (now the appellant) present in Court and that the accused is related to him also.
12. He further deposed that about four and a half months ago at about Peshiwela time, he was present at the tube-wall of Muhammad Ramzan installed in his fields. Muhammad Sharif, complainant, was then watering the field at a distance of about 5/6 acres from the tube-well of the accused, mentioned above. He then called him and Niamat from the said tube-well. When they went near him he told him that his daughter, Najma was cutting Saag in the field. He went to the tube-well for its operation but on return he found that his daughter was missing. The witness deposed that:-- "Me and Niamat then also joined Sharif aforementioned for search of his daughter, and during the same we were passing near the sugarcane field of one Hayat where we heard the noise of a shriek and thereafter we entered the said sugarcane field and saw Ramzan accused, who was not having Shalwar then and was strangulating Najma, who too was not having Shalwar on her person. Najma was also having a wound near her chest. On seeing us the accused ran away with his Shalwar and he found that Najma was dead."
The witness further deposed that:-- "I then joined the investigation of this case also, police then collected the blood-stained earth from the spot vide memo. Exh.P.E. Thumb--marked by me. It was sealed into a parcel."
13. It was, inter alia, deposed by him that he owned about five acres of land adjacent to the school which may be at a distance of half mile from the place of occurrence and that he also runs a provision shop in the Haveli of Sadiq ex-Councillor of the village. He denied the suggestion as incorrect that at the relevant time he was working in his field near the said school from where he was called by Muhammad Sharif. The witness, however, volunteered that he had taken some land on lease at the tube-well of the accused for the last about 12 years and on the day of occurrence he was present in those fields from where he was called by Muhammad Sharif. He further deposed, on questioning, that the said lease was `recorded' but had not produced the same before the police during the investigation of the case. The lease deed, mentioned above was, however, not registered. The land in question belongs to one Bashir son of Sattar and that he had taken the same on lease at the rate of Rs.1,000 per acre. He denied the suggestion that he had made a false statement to show his presence near the place of occurrence. The tube-well in question, he further stated, installed in the land of the accused was jointly owned by the father of the accused. On further cross-examination he affirmed that:-- "We were standing on the south of this (Hayat's) sugarcane field from where we heard the shrieks of the victim and thereafter entered the crop and found that the occurrence had taken place at a distance of about two Karams from the said spot."
14. P.W.9, Muhammad Sharif, father of the victim, a cultivator, deposed on oath that the accused present in Court is known to him as they (the complainant and the accused owned a joint tube- well installed in their fields.
15. About the incident, he narrated that about four months ago he was present in his field at the tube-well at about Peshiwela time. His daughter Najma was then picking Saag in his field there and he was watering the field. He then went to the tube-well to re-operate the same leaving his daughter in the field and on reaching back the said field he did not find his daughter there.He then called Niamat and Khalil P.Ws. From the fields of Khalil nearby, and then made an enquiry from them about his missing daughter. They showed ignorance and thereafter in their company he started the search of his daughter and so in his pursuit heard a shriek from the nearby sugarcane field of one --Hayat. They then entered the said field and saw that Ramzan, accused, was clad in his school uniform. He was not having Shalwar on his person. His daughter was lying on the ground.
She was not having her Shalwar and he saw that the accused was strangulating his daughter and on seeing them, the accused ran away, and `I found that my daughter was dead. We lifted our daughter and reached my house when sun was still in the sky then leaving the dead body of my daughter there I left for Police Station Sadar Kasur and so lodged the reporl Exh.P.F. Which was read over to me and I then thumb--marked the same in token of its correctness'.
16. In cross-examination he admitted that Fazal Din, grandfather of the accused, had filed a suit of pre-emption against him which was decreed in his (complainant's) favour by the Honourable High Court. The accused has no lind in his name. His grandfather is alive. The accused's father has also no land in this name.
17. About the incident, he deposed that he had started watering his field an hour or so before the occurrence. His daughter had come to the felds for picking Saag about half an hour before the occurrence. The said field was at a distance of 10/15 Karams from the aforementioned sugarcane field towards east. The Saag field belonged to Rehmat. She was picking Saag, since her arrival, from the said field. It took him about thirty minutes in re-operating the tube-well and reaching back the fields concerned and saw that his daughter was-- missing. However, picked up Saag was lying there. It was bout half a kilogram.
18. About P.W. Khalil, he deposed that Khalil was working in his field. When he called him he was towards the north of the sugarcane field of the occurrence at a distance of 3/4 acres from the same. He was then working in his sugarcane field, but the said field was on lease with him as belonging to Bashir and others. Khalil P.W; has no ownership of the said tube-well. It was further deposed by him that he covered a distance of about two acres from the aforementioned sugarcane field towards north and so called Khalil P.W. He had also then called Niamat P.W. From the tube-well from a distance of 5/7 Karams from the same. He did not call anyone else from nearby Pharis and they had reached the place of occurrence afterwards. He did not notice any person present in those Dharis at the time he called the P.Ws.
19. About the place of occurrence he deposed that he was towards south of the sugarcane field from where he heard the noise of shrieks of Najma. They entered the field from the said side. The accused had picked up his Shalwar from the spot in his hands while running. He then chased the accused to capture him upto a distance of 5/6 Karams. The other P.Ws. Also did the same upto the same distance. He further stated that Khalil P.W. Had also helped him in lifting his daughter from the spot. Niamat, P.W.Was sent to his house by him for bringing a cot and for giving the information of the occurrence to her mother. He himself, Niamat; Khalil and Ismail had lifted the dead body of Najma deceased and brought her to the house on the cot.
20. About the police investigation, he deposed that the police had reached their village before Isha prayers time. His statement was recorded in the house near the dead body of his daughter.
Statements of Khalil and Niamat were also recorded by the police the same night at the spot. The suggestion was denied by him as incorrect that the police had arrived in the village and conducted the preliminary investigation and so thereafter registered this case against the accused with deliberations. .
21. P.W.10 Muhammad Siddique a cultivator of the same village and real uncle of the deceased, is a recovery witness of the knife. That knife was hidden over the beam of the said Dhari towards north of the field. He stated that he had joined the investigation of the case at the tube-well mentioned above. There were two Kothas at the Dhari of the tube-well mentioned above. One belonged to the grandfather of the accused and the other belonged to his brother (Sharif, the complainant). His brother Sharif owned Dhari at a distance of 35 Karams from the said spot. The aforementioned two rooms belonging to the accused side were meant for tethering the cattle. The same was lying open then. The knife P.3 was hidden over the beam of the said Dhari towards north of the same. The police had arrived there in the jeep. He denied the suggestion that the knife had been planted against the accused.
22. P.W.11 Abdul Majeed, A.S.I. Police Station Sadar Kasur, the Investigating Officer, deposed that on 8-1-1991 he was posted as A.S.I. At Police Station Sadar Kasur and as such on the day at 6-10 p.m.
Had correctly recorded the F.I.R. Exh.P.F. At the dictation of Muhammad Sharif (complainant P.W.9).
It was read over to him who then signed the same in token of its correctness. He then took up the investigation of the case and so reached the house of the complainant in village Jaura and found the dead body of his daughter Najma there. He prepared the injury statement (Exh.P.H.), inquest report Exh.P.J. And despatched the dead body to the mortuary for the post-mortem examination and thereafter he inspected the spot the same night and took into possession blood-stained earth from the spot vide memo Exh.P.E. Which was sealed into a parcel. He also prepared the rough site plan of the place of occurrence Exh.P.K., recorded the statements of the witnesses and searched for the accused.
23. On the next day he took into possession the last-worn clothes of the deceased shirt and Shalwar P.1/1-2 and Dopatta P.2 vide memo. Exh.P.B. And thereafter got prepared the site plans of the place of occurrence Exh.P.D. And Exh.P-D./1 and notes in red are in his hand and are signed by him.
24. On 9-1-1991 he arrested Muhammad Ramzan, accused and on the same, day vide application Exh.P.L. Got the accused medically examined for potency and on 10-1-1991 obtained the personal remand of the accused, who while in police custody on 13-1-1991 led to the recovery of `blood- stained knife P.3 from his cattleshed vide memo. Exh.P.G. It was sealed into a parcel and he also prepared the rough site plan of this recovery. Which is Exh.P.G./1. He deposited all the sealed parcels in time intact with the Moharrir of the police station and thereafter on completion of the formalities challaned the accused.
25. In cross-examination, he deposed about the recovery that the Kotha from where the recovery was effected had no boundary wall. There was only a cattleshed of the accused at the place of recovery. It was lying open at the time when he reached there. While passing through the village Abadi for going to the place of recovery he did not join any Lambardar or Councillor from the village for attesting the recovery.
26. The District Attorney on 20-4-1991 and 9-5-1991 gave up P.W. Abdul Rehman, Niamat and Shahid Ahmad Inspector Police as unnecessary. Reports of the Chemical Examiner, Lahore Exh.P.M., Exh.P.N., Exh.P.O and those of Serologist Exh.P.Q. And Exh.P.R. Were produced by him and then he closed prosecution side.
27. The accused was examined under section 342, Cr.P.C. And in reply to question No.8 as to why this case against him and why the P.Ws. Have deposed against him, he replied in dctail which is reproduced as under.
"I have been falsely implicated in this case. The act is that my grandfather Fazal Din had filed a pre-emption suit against the complainant of this case Muhammad Sharif which was decided in his favour from Lahore High Court, Lahore and on this account, the complainant had a grudge against our family. The story of picking up of Saag by the deceased has been concocted by the prosecution in order to show the presence of the deceased near the place of occurrence and this story is belied by P.W.11 himself when he says that the deceased had not picked up the Saag and he had not shown the field in the inspection note from where the deceased was picking up the Saag. The tube-well of the complainant is at a distance of one acre from the alleged place of occurrence. There are different Dharis near the place of occurrence, so many persons were working in the fields at that time Had the occurrence taken place in the sugarcane fields the deceased must have raised hues and cries. When she was being caught and dragged by the culprit the persons present in the fields must have been attracted to the spot, but according to the prosecution version, nothing happened like this which is quite unnatural and unusual. There were, no dragging marks in the sugarcane field. Khalil P.W. Had no lands near the place of occurrence.
His land is far away from the place of occurrence near the village. He is also running a provisions shop in the village in the Haveli of Muhammad Sadiq ex-Councillor. Khalil P.W. Is not a natural witness and he has been cited as a P.W. At the instance of Sadiq ex --Councillor to whom my family has got political enmity. Khalil P.W. Has also got enmity with my father. Said Sadiq has got falsely implicated me in this case. Had I committed the alleged offence, in the sugarcane field there would have some injuries or scratches on my person which must have been caused due to the resistance by the deceased and due to striking against the sugarcane crop while there was no injury on my person. The semen or blood-stained clothes have not been recovered from me. At the time of occurrence I was a student of 8th standard, and I was admittedly 14 years of age at that' time. Mst. Najma was also 14/15 years at that time. According to the common talk of the people of the village just after the occurrence, Najma was murdered by some unknown person or persons when she was all alone in her house. The scene of occurrence has been shifted from the village to the sugarcane field in question in order to falsely implicate me in this case to procure false witnesses."
In reply to question No.10 as to the production of evidence in defence, the accused/appellant tendered in defence his school leaving certificate Exh.D.B. Showing his date of brith as 1-1-1977.
Beyond that he did not wish to lead any other defence evidence. He also declined to make his own statement on oath under section 340(2), Cr.P.C.
28. Learned counsel for the appellant while challenging the impugned order, first of all, took the plea of the ocular testimony of P.W.8 Khalil who is an eye-witness and pointed out the discrepancy between his statement and the statement of P.W.9 Sharif (the complainant), inasmuch as P.W.9 stated that he called Khalil from his (Khalil) fields whereas Khalil stated that he was at the tube- well. This discrepancy is of no consequence because the tube-well is installed at the field. The learned counsel further submitted that the occurrence does not appear to have taken place in the sugarcane field. It might have occurred in the house of the complainant by someone else and it was planted on the accused. The contention has no base, firstly, because no question was put to the witnesses to that effect and secondly the reports of the chemical examiner and the statement of the medical officer clearly show that the Qameez of the victim was stained with mud.
29. Learned counsel further submitted that the evidence of P.W.9, the father of the victim, is tainted with malice and is not acceptable. In support of this submission, he referred to 'the pre-emption suit between the grandfather of the accused and P.W.9 the complainant. The contention is misconceived and to our mind it is just the reverse, because the pre-emption suit in respect of some land was decreed in favour of the complainant. The grudge, if any, could be had by the accused's party and not the complainant. We find that the ocular evidence of P.Ws. 8 and 9 is consistent and corroborative with each other. It is also noteworthy that P.W.8 Khalil Ahmad is a relative of the accused/appellant. Simply because he is running provisions shop and cultivating some other land besides the land on lease nearby the fields of the complainant does not make his presence at the scene improbable or even doubtful.
30. Learned counsel referring to the recovery of knife submitted that compliance of the provisions of section 103, Cr.P.C., was not made in the case as no two respectable persons of the locality had accompanied the police at the time of search. The contention has no force. It was not search of a house as--contemplated by section 103, Cr.P.C. It was a case of recovery from a cattle-shed which was lying open and recovery was effected at the pointation of the appellant himself which is a step further during investigation of the crime.
31. Learned counsel referred to the statement .Of P:W.4, a police constable, that the dead body of the victim was lying there in the field of sugarcane at about 7 or 8 p.m: Learned counsel submitted that the versions of P.Ws. 8 and 9 stand belied as according to them the dead body of the victim was removed from the field before sunset. The submission is self-contradictory. In one breath he tries to assert that the occurrence took place at the house of the complainant and in the same breath he wants us to believe the solitary statement of a constable that the dead body remained lying in the field even much after the sunset He cannot blow both hot and cold in the same breath.
In any case, the solitary statement of P W.4, in view of the preponderance of evidence of the other witnesses that the dead body of the victim was brought by complainant to his house before Map- hrib deserves no credence.
32. Learned counsel also submitted that P.W.9 the complainant has admitted that his statement was recorded in the house near the dead body of her daughter. This shows that the F.I.R was recorded after due deliberation at the house of the complainant. We have gone through the Ziminies and found the submission of the learned counsel as baseless, inasmuch as the statement of the complainant was recorded under section 161, Cr.P.C. Which is quite distinct and separate from F.I.R. On the report lodged by him at the police station.
33. Learned counsel as a last leg of his arguments, submitted that the appellant was not adult as according to the school certificate his age was about 14-1/2 years. He disputed the statement of P.W.6, Dr. Saleem-ur-Rahman, that the accused himself stated' to him-- that he was 20 years old.
This submission for a number of reasons has no force. Firstly, mere production of 6 school leaving certificate with no certificate of the birth register does not prove appellant's date of birth conclusively. It is a matter of common knowledge that these days the parents usually write down lesser age in the school for the obvious reason that they may not become over age for the purpose of employment or seeking entry into the Civil Service Examination. Secondly, the age as shown in the certificate is belied by the cross-examination of the said doctor, P.W.6. In cross-examination on a suggestion by the defence counsel it was replied by him that `it is incorrect that the accused had given his age as 16/17 years'. Thirdly, the word `adult' as has been defined in section 2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 reads as under:-- "adult means a person who has attained, being a male, the age of eighteen years, or being a female, the age of sixteen years, or has attained puberty."
It is thus apparent that for the purpose of the Ordinance a person is p adult who has either attained the age as stated in the said subsection or has attained puberty. According to the medical evidence it has not at all been disputed that the appellant was able to perform sexual intercourse and thus had attained puberty.
34. In relation to the point of puberty, reference may be made to Imam 'Ala al Din AI-Kasani, (d.587 A.H.): Bada'al-Sanai', Cairo, 1328 A.H. Vol. VII, p.172 and Burhan-al-Din A1 Marghinani (d.595 A.H.): Al- Hidayah, Karachi, Vo1.II, Kitab-al-Nikah wherein both the learned jurists have referred to the following tradition of the Holy Prophet (peace be upon him).
Translation: (Hazrat Umar presented a boy to the Messenger of Allah (for participation in the Jihad) and he was only 14 years old. The Holy Prophet turned him back. Then Hazrat Umar presented another boy (for participation in the Jihad) who was 15 years old. Then the Holy Prophet permitted him).
Thus, the Holy Prophet (peace be upon him) declared 15 years to be the age of puberty. It may be noted that herein `year' means lunar year' which is 10 to 12 days less of a Christian year.
35. Furthermore, in `Islami Qanun-e-Shahadat' written by one of us (Dr. Tanzil-ur-Rahman) 1988, published by Oanun-i-Kutub Khana, Lahore, P.35 it sated as under:--
36. The learned doctors of fiqh have opined that a girl is legally considered to be major when she begins to menstruate. The earliest time of a girl's menstruation is the age of nine. In case of her non-menstruation or in the absence of other evidence of her puberty, according to Imam Abu Hanifah, the girl's age of majority is sixteen years. A boy is considered major when he starts getting night pollution. The lowest age for night pollution is twelve years. In the absence of evidence of night pollution or of attaining majority, according to Abu Hanifah, a youth will be considered major at the age of 18 years. Imam Abu Yusuf and Imam Muhammad Al-Shaybani have differed from Imam Abu Hanifah on this question. According to them -if a boy gets night pollution or a girl begins to menstruate or both complete fifteen years of their age, they shall be considered major. Al-ShaG'i also agrees with this view of Sahibayn (Abu Yusuf and Muhammad) (Al-Kasani, op.Cit.Vol.Vii, p.172).
As for the Shiah, view, Syed Amir Ali has written in his book 'Muhammadan Law' that the majority of a youth will be presumed under law, al the expiry of fifteen lunar years of his age, except when it be proved by evidence that he attained majority prior to this. (Syed Amir Ali: Mohammadan Law, Lahore, Vol. 11, 1965, p.246). But the eminent Shi'ah jurist and Mujtahid, Al-Hilli has stated that the age of majority of a boy is 15 years while in the case of a girl, the age of puberty is nine years. (Al- Hilli, Sharai'al Islam, Beirut, Vol.Ii, p.204).
37. To sum up, it is nobody's case that the victim was not raped or was not murdered. In the presence of oral, circumstantial and medical evidence that f has come on record, coupled with the fact that the F.I.R. Was lodged within the least possible time after the occurrence, mentioning the name of the accused and the witnesses who have given full version of the occurrence and fury supported the prosecution case, the learned Sessions Judge has rightly found the appellant guilty of both the charges of Zina-bil-Jabr and Qatal-i-Amad under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinacne VII of 1979 and section 31)2(6), P.P.C., as newly-added by the Qisas and Diyat Ordinance, 1990 and has rightly sentenced him in accordance with the law.
38. In result, the conviction and sentences are maintained. The appeal stands dismissed. Murder Reference is accepted and death sentence is confirmed.