1. TANZILUR RAHMAN, C.J.--- This appeal arises out of judgment dated 16-5-1991, passed by 1st Court of learned Additional Sessions Judge, Karachi East, whereby the appellant was convicted and sentenced to undergo 25 years' R.I., with whipping numbering thirty stripes and also to pay fine of Rs.5,000. In default to suffer two years' R.I., ostensibly under section 12- of Ordinance VII of 1979.
2. The brief facts leading to the above appeal are that on 4-9-1988 at 13-30 p.m. a report was lodged by the complainant (P.W.2) at Police Station Quaidabad, Karachi East, wherein it was stated that his wife had expired about one year ago and the complainant was residing with his two children--one son aged about 5 years and daughter aged about 2-1/2 years. On the eventful night of September 3/4, 1988 at about 10-30 p.m., he left his house to perform his night duty, after leaving the two children, as usual, in custody of the appellant/accused. On return from his duty at about 8- 45 a.m. The complainant found that his daughter namely, Kulsoom, aged about two years was subjected to unnatural lust. He immediately lodged report in the Police Station concerned and F.I.R.
2. For an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered. The female child was sent for medical examination and report. The accused was arrested and a challan on completion of investigation was put up in the Court of learned Sessions Judge who forwarded the same to the Court of 1st leaned Additional Sessions Judge. The appellant/accused was charged on 1-12-1988, for having committed Zina with Kulsoom under section 12 of the said Ordinance. Having pleaded not guilty he was tried for the said offence.
3. 3.The prosecution in all examined six witnesses. P.W.1 Bakhtiar is a shopkeeper, who having resiled from his earlier statement made to the police under section 161, Cr.P.C., stated that "I do not know about the incident". He was, however, declared hostile. P.W.2 Muhammad Hussain, is the complainant and father, of the victim, Kulsoom, who, inter alia, deposed that about three years back his wife had expired and he was residing with his two minor children in the house. About one month before the incident he rented out one room of his house to the appellant/accused Rasheed Ahmad, who was residing there. On the day of incident i.e. One year before he went to join the duty at 10-30 p.m. His children were left with the appellant. On the following day he saw that clothes of his daughter namely Kulsoom were changed. When he tried to give her food, she could not sit. He saw that her vagina was having swelling. His son told him that the appellant/accused had committed sexual intercourse with his daughter aged about 2-l./2 years. He then took her to Police Station Quaidabad and lodged the report. P.W.3 Bakhtareen, is a shopkeeper off` the same locality.
4. The said witness deposed that the appellant/accused used to reside in a room of the complainant's house which he had taken on rent from him. About one year back he was at his shop when the complainant called him. He went to his house where police was present. One baby was in the lap of the complainant and informed him, that the appellant/accused Rasheed had committed Zina with the baby. The clothes of baby were also in the hands of complainant. Police prepared memo of Wardat and obtained his signature which was verified by him. In cross- examination he denied the suggestion that he did not go to the house of the complainant and that he had deposed falsely at the instance of the complainant. P.W.4 Niaz Muhammad, is the Sub- Inspector of the Police, who conducted the investigation. P.W.5 Dr. Athar Hussain, Medico-Legal Officer Incharge Civil Hospital, Karachi, had examined the appellant and found him potent. P.W.6 Dr. Aftab Azizi, is a Medico-Legal Officer Abbascy Shaheed Hospital who deposed that on 4-9-1988 at about 3-00 p.m. He examined baby Kulsoom daughter of Muhammad Hussain aged' about 2-1/2 years referred by Quaidabad Police Station with history of unnatural offence. On examination she was found girl of about 2 to 3 years of age. The child was frightened. Walking gait was painful. She was walking with widened thighs. There was an abrasion 1" x 1/4" with swelling present over outer angle of right thigh with very thin brown scab formation. On local examination, separation of buttocks was very painful. Anus was slightly petulous. Annul mucosa was highly congested. Tear was present at 12 o'clock position with surrounding area of buttocks 4" x 4" was bruised as bluish brown discolouration which was very tender. The child was not allowing for a simple touch. Rectal slide could not be taken due to severe pain and injury to anus. In his opinion the child had been subjected to the act of sexual intercourse. He -also produced Chemical Examiner's report Exh.10/A, which, inter alia describes as under:-- {{TABLE}} (1)Red coloured shirt of Mst. Kulsoom In a parcel.
5. (2)White black and, red striped Chaddar(Dhoti) of accused Rasheed Ahmed.In a parcel.
6. (3)White coloured Shalwar of accused Rasheed Ahmad. In a parcel.
7. (4)Two urethral slides with swa b of accused Rasheed Ahmad: in a packet. {{TABLE}} Semen not detected in any of the abovesaid articles Nos. One to four. Human blood detected in the abovesaid articles Nos. Two and three only, but its group could not be determined due to material being insufficient."
4. The statement of the appellant was recorded under section 342, Cr.P.C. Whereby he simply denied the incident. He, however, did not examine himself under section 340(2), Cr.P.C. No witness was examined in defence.
5. The learned counsel for the appellant submits that it is a case of no evidence and the appellant is entitled to acquittal. The submission is misconceived. Though it is true that there is no eye- witness to the commission of the offence of sodomy by the appellant upon the victim, baby Kulsoom but there is circumstantial evidence to prove the guilt of the appellant/accused. Firstly, it stood proved that the appellant is a tenant of the complainant in respect of a room in, the house of the complainant. It is not denied that he left the children on the eventful night, in the custody of the appellant and that they remained with him till complainant's return from his duty. Not a single question, to rebut these facts, was put to the witness. The medical evidence and the Chemical Examiner's report furnish ample evidence to prove the act of sodomy. There could be no other person except the appellant who had the carnal intercourse with the baby.
6. The learned counsel submits that the Islamic law emphasises the production of eye-witnesses to prove the offence. True, but in the absence of an eye-witness the Court is not to shut its eyes to circumstatial evidence. The incident of the Prophet Hazrat Yusuf (peace be upon him), as stated in the Holy Our'an, is a direct testimony for relying on circumstantial evidence though with caution. In the instant case, we are fully satisfied, in the facts and circumstances of the case, that the guilt against the appellant stands proved to the hilt.
7. Section (Raku) 3, of Chapter XII, titled as Surah Yusuf narrates the incident in some detail. The relevant verses 2-1-29 are reproduced as under:-- "The man in Egypt who bought him, said To his wife: "make his stay (Among us) honourable.
8. May be hew ill bring us Much good, or we shall Adopt him as a son."
9. Thus did We establish Joseph in the land, That We might teach him The interpretation of stories (And events). And Allah.
10. Hath full power and control Over His affairs; but most Among mankind know it not: (Surah Yusuf XII:21).
11. When Joseph attained His full manhood, We gave him Power and knowledge: thus do we Reward those who do right.
12. (Surah Yusuf XII:22).
13. But she, in whose house He was, sought to seduce him From his (true) self: she fastened The doors, and said: "Now come, thou (dear one)!" \ He said: "Allah forbid!
14. Truly (thy husband) is My lord! he made My sojourn agreeable!
15. Truly to no good Come those who do wrong!
16. (Surah Yusuf XII : 23)
17. And (with passion) did, she Desire him, and he would Have desired her, but that He saw the evidence Of his Lord; thus (Did We order) that We Might turn away from him
(All) evil and shameful deeds; For he was one of Our servants, Sincere and purified.
18. (Surah Yusuf XII:24).
19. So they both raced each other To the door, and she Tore his shirt from the back; They both found her lord Near the door. She said: "What is the (fitting) punishment For one who formed An evil design against Thy wife, but prison, Or a grievous chastisement?
20. (Surah Yusuf XII:25).
21. He said: "It was she That sought to seduce me--- From my (ture) self." And one Of her household saw (this)
22. And bore witness, (thus):- --"If it be that his shirt Is rent from the front, then Is her tale true, And he is a liar!
23. (Surah Yusuf XII:26).
24. "But if it be that his shirt Is torn from the back, Then is she the` liar'
25. And he is telling the truth!
26. (Surah Yusuf XII:27).
27. So when he saw his shirt,--- That it was torn at the back,-- (Her husband) said: "Behold!
28. It is a snare of you women!
29. Truly, might is your snare!
30. (Surah Yusuf XII: 28).
31. "O Joseph, pass this over!
32. (O wife), ask forgiveness For thy sin, for truly Thou hast been at fault!
33. (Surah Yusuf XII : 29).
34. (The Holy Qur'an text with translation by Abdullah Yusuf Ali)
8. The story relates to attract Yusuf and his resistance to Zulaikha's carnal love. She thought that no one saw her advancing towards Yusuf, as the doors were closed. Yusuf made for the door. Zulaikha ran after him. She tugged at his garment to detain him. She could only catch hold of the back of his shirt, and in the struggle she tore it. Yusuf was determined to open the door and leave the place.
35. When the door was opened, it so happened that AM was not far off. She had to resort to a lie, not only to justify herself but also to have her revenge on Yusuf who had scorned her love. How lie and her accusation seems to be plausible, Yusuf was found with his dress disarranged. She wanted the inference to be drawn that he had assaulted and there was resistance on her part. His simple answer was `The love game was hers, not his, and it went too far in seeking to assault his person.
36. There was no eye-witness to what had happened between them. There was however a scene. The wisdom came through one who was a. Child. If Yusuf's shirt was torn at the back, he must obviously have been retreating and Zulaikha must have been tugging from behind. No one could doubt who was the guilty. Every one saw it and the Aziz was convinced. He was faced with a difficult position.
37. He was a high officer of State. He was reluctant to proclaim that Zulaikha was running after-- his slave. Ire sent Yusuf to the prison, as face saving device, Yusuf was also saved from wiles of the women which would have more disgraced and degraded him. For Yusuf, the prison was better than the importunities of the women, and now, not one woman, but also all society women were after him. To Aziz, it appeared that he should be sent to prison--for a time: (See notes 1670--1684, ibid).
9. The learned counsel for the appellant lastly submits that the sentence is too harsh and prays for reduction in sentence. Mr. Abdul Ghafoor Mangi, learned Additional Advocate-General also concedes to the seduction of
10. We, however, feel that the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not made out inasmuch as there is no kidnapping and abducting in order to subject Baby Kulsoom to unnatural lust. The baby was left by the complainant himself as he was going out to perform his night duty and there was none in the house with whom the children stayed during the night, except the appellant. The offence of sodomy, in the facts and circumstances, stated above, stands proved against the appellant. We; therefore, find that the offence has been proved, and he is, therefore, convicted for the same offence under section 377, P.P.C., and sentenced to ten years' R.I., with benefit of section 382-8. Cr.P.C. Since there is no sentence of whipping provided under section 377, P.P.C. Tile sentence of whipping is done away with, but we maintain the sentence of fine. In default further R.I. For two years, we may, however, observe that if the fine is recovered the same be paid to the victim through her father, the complainant, as compensation.
38. With the above modification in sentence the appeal is dismissed.
39. N.H.Q./741/FSC