' MUFIAMMAD ILYAS, J.--- This appeal has been preferred by Subbago against judgment, dated the 26th January, 1993, passed by the Sessions Judge, Nasirabad at Dera Allah Yar, whereby he, convicted him under subsection (3) of section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, hereinafter referred to as the said Ordinance, and sentenced him to suffer rigorous imprisonment for twenty years and to whipping by thirty stripes.
2. It is alleged that on 15th March, 1992, at 9-00 a.m., when the complainant, Shahzada (P.W.2) and his father had gone to Goth Muhammad Panah Omrani for doing labour, the appellant committed Zina-bil-Jabr with the complainant's sister Mst. Naji (P.W.1), who was then aged 9 yeaRs, On his coming back to the house when she informed the complainant about the brutal act committed by the appellant, he reported the matter to the police. On this, Exh.P.A., was recorded. Mst. Naji was medically examined by Lady Doctor Zahra Baloch (P.W.3), who found her to be of 7 yeaRs, After examination of Mst. Naji the Lady Doctor recorded following observations in her certificate Exh.P.B.:- - "Her age is about 7 years and was too much in fearful condition. She was not physically mature.
There is redness and swelling on right side of face. Her right eye was congested and red spots on conjunctive and also corneal ulcer due to external Trama. She was having temperature 102F at the time of examination.
' She was without Shalwar, wrapped in Sindhi Rhilly (locally made). I ler both thighs were stained with blood on medial side of thighs.. There were also blood-staining on the different parts of buttocks.
' Blood staining was also found on the shirt. There were multiple bruises on the right side of chest.
The fresh blood was oozing from vagina.
' Specific examination.
' Female genitalia is not fully developed as she has not reached age of puberty. I lymen is not intact.
' Fresh blood was coming from superficial of deed vaginal tears due to forceful act of intercourse and full penetration. There is vaginal tear upto periunal region about 1" x 1/6" deep muscles.
' Opinion.
' All above signs seem to be of forceful intercourse and full penetration."
3. The case was investigated by a Tehsildar, Patch Muhammad (P.W.4). After necessary investigation, the said Tehsildar sent up the accused before the learned Sessions Judge to face trial on charge under subsection (3) of section 10 of the said Ordinance.
4. The prosecution examined four witnesses, referred to above, for proving its case.
5. In his statement, under section 342 of the Code of Criminal Procedure, the appellant denied having committed the offence attributed to him. According to him, he was involved, in this case due to enmity. He examined two witnesses in defence but did not himself make a statement on oath. The defence witnesses, namely, Khuda Bux (D.W.1) and Pahlewan (D.W.2) simply said that the accused was arrested when he was with them.
6. Relying on the prosecution evidence, it was held by the learned Sessions Judge that the charge levelled against the appellant had been established. Lie, therefore, convicted and sentenced him as stated at the outset.
7. It was not disputed by learned counsel for the appellant that Zina-bil-Jabr had been committed by the appellant with Mst. Naji. It was, however, contended by him that the offence committed by him fell under 7 of the said Ordinance and not under subsection (3) of section 10 thereof because, according to him (learned counsel), the appellant was not adult at the time of commission of the offence. Lie maintained that the appellant was 11 years old at the time of occurrence.
8. Pica raised by learned counsel for the appellant that appellant was not adult at the time of the commission of the offence is not only an afterthought but also without substance. When charge under subsection (3) of section 10 of the said Ordinance was framed against him, he merely denied the charge and did not say that the case did not come within the mischief of the said provisions of law as he was not adult at the time when the incident had occurred. Then, he did not cross- examine the prosecution witnesses with reference to his age at the time when Zina-bil-Jabr was allegedly committed by him. In his statement, under section 342 of the Code of Criminal Procedure, also he did not urge that he was not adult when the occurrence had taken place. His defence witnesses, too, did not say anything regarding his age. There is no birth certificate or any other document showing that the appellant was 11 years old at the time of committing Zina-bil-Jabr with Mst. Naji. According to Lady Doctor Zahra Baloch (P.W.3), who examined Mst. Naji, her hymen was torn and that it was a case of forceful intercourse and full penetration. We feel that this could be done by an adult having lot of vigour and vitality and not by a lad of 11 yeaRs,
9. Learned counsel for the appellant has not been able to refer us to any law laying down that in such like cases an accused shall be presumed to be not adult unless evidence to the contrary is produced. If the appellant believed that he was not adult, he should have adopted this line of defence in the very beginning of the trial and produced evidence to substantiate his assertion. This was, however, not done by him. To our mind, section 7 is in the nature of an exception to subsection
(3) of section 10 of the said Ordinance and, therefore, it was for the appellant to adduce evidence in order to bring his case within the purview of section 7. In taking this view, we arc fortified by the provisions of Article 121 of Qanun-e-Shahadat, 1984, which reads as under:- "121. Burden of proving that case of accused comes within exceptions.--- When a person is accused of any offence the burden (of) proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
' Illustrations:
(a) A, accused of murder, alleges that by reason of unsoundness of mind, he did not know the nature of the act.
' The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control.
' The burden of proof is on A.
(c) Section 325 of the Pakistan Penal Code (Act XLV of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
' A is charged with voluntarily causing grievous hurt under section 325.
' The burden of proving the circumstances bringing the case under section 335 lies on A."
' Our opinion derives strong support from illustration (a) ibid.
10. We would also like to refer to Article 122 of the Qanune-e-Shahadat, 1984, which reads as under:- - "122. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
Now, the age of the appellant was "especially" within his knowledge. Burden of proving that he was not adult at the time of commission of offence was, therefore, on him, but he did not make a mention in this regard muchless bring convincing evidence on the record to demonstrate that he was not adult at the time of committing Zina-bil-Jabr with Mst. Naji.
11. In view of the above discussion, we are not inclined to accept the belated and bald plea of learned counsel for the appellant that the appellant was not adult, when, as admitted by the learned counsel, Zina-bil-Jabr was committed by him with Mst. Naji. We, therefore, hold that section 7 of the said Ordinance was not attracted to this case and the appellant was rightly convicted under subsection (3) of section 10 thereof.
12. As for sentence, since the appellant ravished a small girl in a cruel manner he deserved the sentences awarded to him.
13. Resultantly, judgment of the learned Sessions Judge is maintained in all respects and this appeal is accordingly dismissed.