' NAZIR AHMAD BHATTI, J.--- Appellant Muhammad Yaqub has been convicted by Additional Sessions Judge, Bahawalpur under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and has been sentenced to undergo rigorous imprisonment for 25 years and to suffer 30 stripes. He has challenged his conviction and sentence by the appeal in hand.
2. Complainant Muhammad Ashraf was employed in the Army. On 9-12-1991 when he returned to his house from his duty at about 4-00 p.m. He was informed by his wife Mst. Nasreen Akhtar that she was present in the house when at about 1:00 p.m. She heard shrieks of their minor daughter Mst. Nusrat Bibi aged about 4-1/2 years whereupon she went out running alongwith her son Rashid Farooq, that the shrieks of their daughter were coming from the house of the appellant, that they went inside and saw the appellant committing Zina-bil-Jabr with their daughter whose Shalwar had been removed, that on seeing them the appellant left the girl and ran away. The complainant submitted a written complaint in Police Station Baghdad-ul-Jadid on the same day at 7-30 p.m.
The appellant was charged under section 10(3) of the Hudood Ordinance to which he pleaded not guilty and claimed trial.
3. During the trial, alleged victim Mst. Nusrat Bibi, appeared as P.W.3. The learned Additional Sessions Judge made a note before recording her testimony to the effect that the witness was of such tender age that she could not understand the meaning of oath so he did not administer oath to her but otherwise he put her some questions and from her answers he found that she was a competent witness so he recorded her testimony wherein she directly charged the appellant for subjecting her to "Ziadati". She also stated that the appellant had gagged her mouth and had also caught her legs. She further stated that she raised alarm which attracted her mother and brother and the latter took her to the house. She further stated that the appellant had been doing that thing earlier also. Mst. Nasreen Akhtar mother of the victim, appeared as P.W.4 and deposed that on hearing the shrieks of her daughter she and her son Rashid Farooq rushed to the house of the appellant where they saw the latter in naked condition and doing "Ziadati" with Mst. Nusrat Bibi who was lying naked on the cot. She further stated that her mouth and clothes were stained with "Gilazat". She further stated that on seeing the witnesses the appellant took his "Chaddar" and ran away.
4. Mst. Nusrat Bibi was examined by P.W.5 Lady Dr. Miss Rukhsana on the same day at 9-30 p.m.
And she found her hymen torn, but margins were healed. The lady doctor further stated that Mst.
Nusrat Bibi allowed to admit the top of finger with pain. The lady doctor gave the opinion that Mst.
Nusrat Bibi had experienced sexual intercourse more than once. The lady doctor took 2 vaginal swa bs which were found stained with semen by the Chemical Examiner. In cross-examination the lady doctor further stated that on account of healed margins of hymen she had given the opinion that Mst. Nusrat Bibi had been subjected to sexual intercourse earlier as well. The lady doctor further gave the opinion that in such like cases, if male organ is thrust in full, it could cause even death of the subject and she volunteered that in the case probably, tip of organ had penetrated.
5. In rebuttal the appellant made a statement under section 342, Cr.P.C. Wherein he denied the commission of the offence. .He further stated as follows:-- "We have had a dispute over a plot earlier and after that I used to snub complainant about illicit relationship with Liaqat Fauji's wife. I witnessed that and for that reason he managed to register this false case against me. The P.Ws. Are related to the complainant."
' The appellant did not make any deposition on oath but he produced 3 defence witnesses. D.W.1 Bashir Ahmad stated that complainant Muhammad Ashraf father of Mst. Nusrat Bibi had developed illicit relations with the wife of Liaqat Fauji and other Mohallah people had resented against him and as a result of which the appellant had been falsely charged by the complainant party. D.W.2 Mehmud Ahmad stated that the appellant and the complainant had dispute about plots and Liaqat Fauji had levelled allegations of theft against Rafiq Ahmad son of the appellant and as a result of that the appellant had been falsely charged. D.W.3 Khurshid Bibi is wife of the appellant. She stated that the house of the complainant is in front of their house, that she has got 8 children, 3 daughters and 5 sons and the marriage of elder daughter was going to be held, that there was a dispute of plot with the complainant as a result of which her husband had been charged falsely.
6. The learned counsel for the appellant contended that the alleged victim Mst. Nusrat Bibi was incapable to testify and was not a competent witness. In this connection he has drawn our attention to the provisions of Article 3 of the Qanoon-e-Shahadat and alleged that Mst. Nusrat Bibi was only about 5 years of age at the time of deposition and was of such a tender age that she was prevented from understanding the questions put to her and to give rational answers to those questions. But the learned Additional Sessions Judge found her to be competent witness after putting her some questions. It cannot, therefore, be said that Mst. Nusrat Bibi was of such a tender age that she could not make a coherent deposition. The words "tender years" as used in this Article do not specifiy any particular age of a witness, it is only the capacity of a witness to understand things rationally and then to reply to them. The learned Additional Sessions Judge asked questions from the witness and then he came to the conclusion that she was capable to understand them and to make a coherent deposition. In the same context the learned counsel for the appellant contended that the learned trial Judge had not recorded his opinion that Mst. Nusrat Bibi was capable to make a coherent deposition and so the testimony recorded by him of Mst. Nusrat Bibi could not be taken into consideration as evidence. In this respect he has relied upon the case of Ramesh son of Kalyan Singh v. The State AIR (39) 1952 SC 54 and case of Umar Jehan v. The State 1979 SCMR 186. In both the judgments it was held that in the case of child witness the Judges have to record their questions to child witness and his or her answer while giving their opinion about competence of such witness. We have seen the record of the deposition of P.W.3 Mst. Nusrat Bibi. We find a note given by the learned Additional Sessions Judge to the effect that she is of very tender age and unable to recite full `Kalma Tayyaba' and so he did not administer oath to her.
However, he put some questions to her and thereafter recorded her testimony. Although the learned Additional Sessions Judge did not give his opinion about her competency of making deposition but we are of the opinion that he considered her a competent witness after putting those questions and that is why he then recorded her testimony. We have, therefore, come to the conclusion that the contentions of the learned counsel for the appellant in this respect are without any force and Mst. Nusrat Bibi was found to be a competent witness by the learned Additional Sessions Judge and then he recorded her testimony.
7. The learned counsel for the appellant also contended that the victim was a tutored witness. His contention was that Mst. Nusrat Bibi had made a deposition about which she was tutored by her parents. We do not think that such was the position. She was a very minor girl at the time of occurrence and did not know as what was all that and that is why she used the word "Ziadati". She neither comprehended the meaning of word "Zina" nor she could say that she was subjected to that offence because at that tender age she did not know the meaning of all those things. Most probably the word "Ziadati" being a subject of frequent talk in the house and she may also have been told the same word for what had happened with her and so she used that word when narrating the occurrence. Otherwise we do not find that any other thing was tutored to her with regard to her deposition.
8. The learned counsel for the appellant also contended that the appellant had levelled allegation of enmity against the parents of the alleged victim and that he was an old man of 60 years having 8 children and daughters of marriageable age and it was highly improbable that he was guilty of such a crime. We have considered this matter very anxiously but we are unable to accept this contention that there was previous enmity between the parties because every defence witness had given a different version of enmity between the parties and this was not proved at all. In so far as the other contention that the appellant had not committed the offence is concerned we also do not agree with the learned counsel for the reason that there was a direct charge by the victim that she had been subjected to "Ziadati' by the appellant.
9. The learned counsel for the appellant further stated that there was no evidence of the penetration having taken place and so the offence of Zina-bilJabr was not complete. In this respect the learned counsel for the appellant relied upon the case of Mst. Siani v. The State PLD 1984 FSC 121 and the case of Mst. Sukhan v. The State 1985 P Cr. L J 110. We think that there is some force in this contention. When the lady doctor examined Mst. Nusrat Bibi she found that her vagina did not admit even the top of finger easily. The lady doctor further gave the opinion that if penetration had taken place it could have caused the death of the victim and she gave the opinion that only the tip of the male organ might have made an entrance. From the aforesaid opinion of the lady doctor we have come to the conclusion that no acutal penetration could take place. The presence of semen inside the vagina of Mst. Nusrat Bibi would not prove that she was actually subjected to sexual intercourse because there was no positive evidence that penetration had actually taken place. Mst. Nusrat Bibi was examined by the lady doctor on the same day at 9- 30 p.m., after about 8 hours of the occurrence, at that time even one finger could not be admitted into vagina so it was most improbable that the male organ of the appellant had made any entrance into the vagina of the victim.
10. For the aforesaid circumstances we have come to the conclusion that the appellant was guilty of making an attempt to commit Zina with Mst. Nusrat Bibi but he could not succeed in committing the actual Zina-bil-Jabr due to the arrival of witnesses at the spot. Consequently we partly accept the appeal. The conviction of the appellant under section 10(3) of the Hudood Ordinance is converted into one under section 10(3) read with section 18 of the Hudood Ordinance and the appellant is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of. Rs,5,000 or in default to further undergo rigorous imprisonment for 6 months. The appellant shall be entitled to the benefit under section 382-B, Cr.P.C.