1. ' MAULANA MUHAMMAD TAQI USMANI, J.---The appellants have challenged the judgment of the Federal Shariat Court dated 31-5-1992 dismissing their appeal against their conviction under sections 10(3) and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 recorded by the learned Additional Sessions Judge, Islamabad. Under section 11 Yousuf Masih was sentenced to life imprisonment and 20 stripes alongwith a fine of Rs,2,000 or further rigorous imprisonment for one year in case of default of the payment of fine. He was also sentenced under section 10(3) to 20 years' R.I. Plus 30 stripes. Younus Masih was sentenced only under section 10(3) to 20 years' R.I. And 30 stripes.
2. ' The allegation against Yousuf Masih is that he kidnapped Mst. Razia, a minor girl, and he and his brother Younus Masih committed rape upon her. Muhammad Sharif, the father of the abductee went to attend a marriage ceremony in Sialkot on 10-2-1991 and when he came back on 14-2-1991 his wife Mst. Sakina Bibi told him that their daughter had gone to the house of one Butt Sahib in G- 8/1 on 11-2-1991 and did not come back. During the search, he suspected Yousuf Masih alias Bagga and Younus Masih alias Joona that they kidnapped her with an intent to commit Zina with her. He lodged the report Exh.PA/1 on 14-2-1991 at 10-45 p.m. Ahmad Iqbal, ASI P.W.9 recovered the abductee from the house of the appellants. On 16-2-1991 Mst. Razia, the abductee was examined by Lady Dr. Sarwat Riaz who in her medico-legal report Exh. P.E. Observed as under:-- "H/0 rape-- since 3-4 days 0/E general condition stast. GPE No, external injury. No bruises. Breasts-- Normal P/V -- No visible injury. --Hymen ruptured. Wt. N/S R/V. No bleeding P/V No tenderness HVS -- Rectal swabs taken. A young girl aged 13 years came with H/O rape.
3. ' GPE no external injury, no bruises. Breast xxx. NAIL.
4. P/V -- No visible external injury. Hymen ruptured. Wt. R/V, N.S. No bleeding P/V 3 high vaginal swabs + 3 rectal swa bs are taken and sent to Chemical Examiner. Final report will be given after Chemical Examiner report."
5. ' The results of the chemical examination of both the rectal and vaginal swabs were found positive as per report of the Chemical Examiner Exh. PF/I ' Mst. Razia appeared as P.W. 5 and stated that in the absence of her father she was proceeding to the house of Butt Sahib, as she used to work there, when Yousaf Masih alias Bagga met her and told her that she was to see his sister. Then Bagga took her to his home where he confined her in a room and administered something to her which made her unconscious. Younus Masih was also present there and both the accused Younis and Bagga committed Zina-bilJabar with her. She also deposed that she was kept by them in their house for 3 days and both of them used to commit rape with her every day. Iqbal Masih P.W. 4 witnessed the recovery of the abductee from the house of the appellants. He also deposed that both the appellants were found present in that house wherefrom the girl was recovered and both of them were apprehended from that house.
6. Muhammad Sharif P.W. 2 is the complainant and has reiterated the facts mentioned in the F.I.R. The medico-legal report of Lady Dr. Sarwat Riaz is proved by Dr. Fehmida Tabbasum P.W. 8 who recognised the handwriting of Lady Dr. Sarwat Riaz who Shad gone abroad at the time of the trial and could not be produced in the Court.
7. ' Yousuf Masih alias Bagga while being examined under section 342, Cr.P.C. Has given the following version: "Residents of Katchi Abadi Hansa Colony, so often used to commit the theft of electricity and they in consideration thereof were paying illegal gratification to the WAPDA Officials, through Iqbal Masih P.W. And the complainant and they also pressed upon him to pay such illegal gratification, but I declined, thus on that count, they started nursing grudge against me and falsely involved me and my brother in this case. The Police was also sharing the aforesaid illegal gratification."
8. ' Younus Masih has come forward with the following plea: "1 am innocent. I came from my native village Dattan Wale to Islamabad on 13-2-1991 and was apprehended by the Police alongwith my brother Yousaf Masih on 14-2-1991."
9. ' They produced Bashir Masih son of Allah Ditta and Bashir Masih son of Barkat Masih as defence witnesses whose statement is to the effect that Yousuf Masih and Younus Masih were arrested by the Police on 14-2-1991 from their house where they were enjoying V.C.R. And that no event of abduction had taken place.
10. ' We have heard the learned counsel for the appellants and for the State and examined the record with their assistance.
11. ' Mr. Ahmad Raza Khan Qasuri, the learned counsel for the appellants, submitted that there is a delay of 3 days in lodging the FIR; that Mr. Butt in whose home Mst. Razia was subjected to sexual intercourse was not cited as P.W.; that it is unnatural that two brothers would commit sexual intercourse with the same girl in the same room; that no body from the neighbourhood was associated in the investigation to prove the recovery of the girl from the house of the appellants and that the plea taken by the appellants that the case was concocted against them at the instance of Iqbal Masih P.W. 4 was plausible in the circumstances. But we find that all these points have been dealt with by the two Courts below in a satisfactory manner so as to leave no doubt in the fact that the girl was recovered from the house of the appellants and was found subjected to sexual intercourse.
12. In the alternative, the learned counsel submitted that at the most it was the case of consent and not of Zina-bil-Jabr. This point has also been noted in the Order Granting Leave. We also feel that the conduct of the girl shows that she was a consenting party to the whole affair, but the difficulty is that according to the Exh. PL her date of birth is 3-8-1978 which means that at the time of occurrence she was only 12 years and 4 months old and, being a minor, her consent cannot be taken into account.
13. ' In order to cross this hurdle, Mr. Ahmed Raza Khan Qasuri argued that according to Shariah a girl of more than 9 years of age can be treated as pubert. He referred to the translation of Hidayah by Charles Hamilton, volume 3, page 530 which reads as under: "It is to be observed that the earliest period of puberty, with respect to a boy, is twelve years and with respect to a girl is nine years."
14. ' He also referred to section 21 of Muhammadan Law by Tayyibji which is reproduced below:-- "With reference to the age of competence to marry, it is presumed in the absence of evidence of attainment of puberty, that males attain puberty at the age of 15 years, and females at the age of 9
15. years."
15. ' In fact, the correct position is that the Hanafi jurists have taken the age of 9 years as the minimum age on which a girl can attain puberty. It means that the claim of puberty of a girl cannot be accepted unless she is at least of 9 years of age. The words "the earliest period of puberty" in the aforesaid extract of Hamilton's translation of Hidayah are explicit on this point. It does not mean that in the absence of any proof of puberty a girl of 9 years of age is treated as pubert. The words used by Tayyibji in his Muhammadan law are anamulous and cannot be relied upon. All the original texts of Hanafi jurisprudence are unanimous on the point that 9 years is the minimum age on which the declaration of a girl about her puberty can be accepted. For example Allama Shami, the well known Hanafi jursit, writes in his Radd-ul-Muhtar, volume 5, page 107 And the minimum age of puberty for a boy is 12 years and for a girl is 9 years. Therefore, if they reach this age and declare that they have attained puberty, their statement can be relied upon if there is nothing apparent to falsify them.
16. It is evident from the aforesaid statement of Shami that it is not enough for holding a girl. As pubert that she is more than 9 years of age, unless she herself declares her to be so or there is some other proof on the record to show that she has attained the signs of puberty.
17. ' Moreover, the Ordinance itself has defined the word "adult" in section 2-A which reads as follows:- "Adult means a person who has attained, if a male, the age of 18 years or if a female the age of 16 years, or has attained puberty."
18. It means that if the puberty of the girl is proved on the record before the age of 18 years, she can be held as adult, but in the absence of any sign of puberty she cannot be held as adult unless she acquires the age of 18 years.
19. ' In the present case the learned counsel could not point out to any thing from the record to prove that Mst. Razia had attained some signs of puberty. However, he raised the point that in order to establish the charge of Zina-bilJabar against the appellants the prosecution itself has to prove that she was not pubert. This argument is also misconceived because being non-pubert is a negative phenomena and the prosecution cannot be burdened to prove it. If the prosecution has proved that the girl is of less than 15 years of age and no sign of puberty is established on the record, the presumption would be that she is not pubert unless otherwise is proved. Therefore if the girl is less than 18 years and, an accused person wants to get a benefit of her being pubert, the burden of proof of her puberty lies on him. In the instant case, the prosecution has proved that the girl was of 12 years of age and the defence has failed to bring anything on the record to show that she has attained puberty. Therefore, she shall be held to be non-adult and her consent in the commission of sexual intercourse shall not exclude the offence from the purview of Zina-bil-Jabr as contemplated section 6 of the Ordinance which reads as follows:-- "6. Zina-Jabr.--(1) A person is said to commit Zina-bil-Jabr if he or she has sexual intercourse with a woman, or man as the case may be, to whom he or she is not validly married in any of the following circumstances, namely-
(a) against the will of the victim,
(b) without the consent of victim."
20. It is obvious that the word "consent" in this subsection means the consent made by a person who is capable to give consent. Therefore sexual intercourse committed with a non-adult girl shall always be covered by this definition of Zina-bil-Jabr.
21. ' The learned counsel further contended that even if the offence is held to be Zina-bil-Jabr for this technical dificiency in the consent given by Mst. Razia, the fact remains that she was a grown up girl and this fact should at least be taken as a mitigating circumstance for awarding a lesser punishment to the appellants. This argument of the learned counsel is worth consideration but another factor cannot be overlooked which makes the offence of the appellants more serious. They have committed sexual intercourse with a girl whom they could not even marry. They are Christians and she cannot be married by any one of them. Therefore, keeping both these aspects in view, we feel that a sentence of 15 years' R.I. Shall meet the ends of justice in this case.
22. ' The learned counsel further argued that the case under section 11 is not established against Yousuf Masih, because there is nothing on the record to show that Yousuf Masih had kidnapped or abducted Mst. Razia. Conversely Iqbal Masih P.W. 4 has stated that he had seen Mst. Razia going with the two sisters of the appellants. We have paid due consideration to this argument of the learned counsel, but we find that the girl has consistently implicated Yousaf Masih for bringing her to his home right from her statement under section 164, Cr.P.C. Up to her statement at the trial. This fact is supported by the evidence of Investigating Officer and Iqbal Masih P.W. 4 that the girl was recovered from the house of Yousuf Masih after a period of 4 days. Therefore the offence of kidnapping has also been established against Yousuf Masih without a reasonable doubt. The mere fact that Iqbal Masih has seen Mst. Razia going alongwith 2 sisters of the appellants at some stage does in no way controvert the statement of the girl. However, the sentence awarded to Yousuf Masih under section 11 needs reduction for the same reasons as mentioned above with regard to his sentence under section 10(3). According to the dictum laid down by this Court in the case of Hashim Khan v. The State (PLD 1991 SC 567) the Court has the discretion to award a lesser punishment than the life imprisonment under section 11 also. Therefore, the sentences of Yousuf Masih both under section 10(3) and section 11 are reduced to 15 years' R.I. Under each count. Both the sentences shall run concurrently. The sentence of Younus Masih under section 10(3) is also reduced from 20 years to 15 years. All other sentences of both the appellants shall remain intact.
23. Both of them shall enjoy the benefit of section 382-B Cr.P.C. With this modification in sentences, this appeal is dismissed.