This appeal has been filed by Ansar son of Ismail against the judgement dated 3-10-1994 passed by the learned Additional Sessions Judge, Gujranwala, in Hudood Case No-10 of 1993 convicting the appellant under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentencing him to R.I. For ten years and thirty stripes. I have, heard at length the arguments of Mr. Asif Mahmood Chughtai, Advocate, learned counsel for the appellant. Arguments of Mr. Tanveer Ahmad Qureshi, learned counsel for the State, who opposed the appeal; were also heard. With the assistance of the learned counsel, the entire record was perused including the impugned judgment. F.I.R. No.95 of 1992 was lodged on 24-4-1992 at 4-15 p.m. At P.S. Qila Didar Singh, District Gujranwala, by complainant ~P.W.6 Ghulam Mustafa. According to the complainant; a day earlier, on 23-4-1992 at about 11-30 a.m., the complainant alongwith Nazar Hussain (not examined) were going to village Chahal Kalan from their village Kot Boola and when they reached near the fields of one Muhammad Hussain Awan, resident of Chahal Kalan, they heard the cries of a girl from a nearby wheat crop which was about an acre away from the passage a (Pakdandi) on which they were going. According to the complainant, on hearing the cries they rushed towards the place of occurrence where they saw the appellant in the wheat crop tying the string of his Shalwar, but on seeing them he ran away. The complainant and Nazar Hussain proceeded further where they found Mst. Shazia Bano (P.W.7) aged about 10/11 years (daughter of P.W.5 Muhammad Sharif) lying unconscious on the ground smeared in blood and was naked from her waist. On enquiry, the victim informed that she was returning to her village from the school when the accused finding her alone forcibly took her to the wheat crop and committed Zina-bil-Jabr with her. According to the complainant, the victim was brought to her village and although she was it serious condition, but her father P.W.5 Muhammad Sharif was away to. Lahore to attend a marriage ceremony and as such they waited for his return and or 24-4-1992 the complainant accompanied by victim's father Muhammad Shari came to the police station and got the case registered. The case was investigate by P.W.8. S.1'. Khalid Baig who, after registration of the case, visited the sit prepared the site plan (Exh.PE), took into possession Shalwar (P.1) of th victim vide memo. Exh.PC, recorded the statements of P.Ws. Undo section 161, Cr.P.C. And also got the victim medically examined at Rural Healt Centre, Qila Didar Singh. On the same day, he arrested the appellant and, after completion of the investigation, challaned the appellant. Charge was frame against the appellant by the Court, Additional Sessions Judge, Gujranwala, on 18-1-1993 to which the appellant pleaded not guilty and claimed trial. During the trial, the prosecution examined eight witnesses. P.W.2 Head Constable Nasir Khan and P.W.3 Constable Azmat Ali are formal witnesses. P.W. 1 Dr. Riaz Ahmad Khan examined the appellant. In his evidence, he stated that on 27-4-1992 he examined Ansar son of Ismail alias Isa aged about 15/16 years who was brought by two Police Constables, namely, Imtiaz Ali and Mubarak Ali. According to the doctor's evidence, primary sex characters of the appellant, namely, his penis and testicle were well-developed and his secondary sex characters i.e. Pubic hair were black and co arsed. It was deposed that the appellant had no beard, but his moustache was of light black colour. According to his opinion, the appellant was fit for sexual intercourse. In his cross-examination, the doctor stated that he had not examined the appellant to determine his actual age. He denied the suggestion that the appellant could be of 12 years of age. According to the doctor, the appellant "may be above 14 years of age". The doctor admitted that he did not get the penis of the appellant erected. P.W.4 is doctor Rukhsana Kausar who stated that on 24-4-1992 she was posted at Rural Health Centre, Qila Deedar Singh, when the victim, Mst. Shazia Bano daughter of Muhammad Sharif, aged 11 years, Warriach by caste, was brought by the police for examination. The entire evidence given by the lady doctor is reproduced here: -- "A young girl, looking pale, very weak and ill. Her pulse was 130 times per minute. Secondary six character were not developed. On examination a bruise mark of two 2 x 3 cm at the bridge of the nose. Abdomen was normal in shape and contured. No mass was pellable. Breast was not developed.
Vaginal Examination Pubic hair not developed. There was a vaginal tear. Extended up to aerial sphinter. Fresh bleeding was coming out of it. Hymen was torn. Its margin were bleeding irregular, congested indicating an injury by blunt weapon within 24 to 48 hours. Vagina admit one finger and was very tender on examination. Four vaginal swa bs were taken at room temperature. A stained piece of underwear was also sent to Chemical Examiner for semen analysis.
Report Declaration of Chemical Examiner According to the report of Chemical Examiner for the Government of Punjab No.618/S dated 30-4- 1992 of MLC No.3/92, dated 24-4-1992 of Shazia Bano d/o Muhammad Sharif, the vaginal swabs and piece of underwear were stained with semen.
In my opinion Shazia Bano d/o Muhammad Sharif was undergone the act of sexual intercourse.
Exh.PB is a correct carbon copy of MLR which is duly signed by me and report Exh.PB/1 is also of my hand and bears my signature.
X X X by defence counsel.
Shazia Bano is not present today before me. Her age was between 11 and 13 years. I had inquired from Shazia whether she had started menstruasion to which she replied in the negative. I have not given any note about this fact in my MLR. I have not written about Exh.PB that a sealed packet was prepared to send to the Chemical Examiner. The same is the condition with the piece of underwear.
I had handed over these sealed parcels to the police who brought Shazia Bano. However, I had not obtained his signature. He was Khalid Baig S.I. I do not remember the name of the official to whom the registered parcels were delivered. The parcels were sealed with the seal brought by the police and I do not know the wording engraved thereon. I did not retain any sample of the seal affixed on the parcels. I had not recorded any entry of the delivery of the parcels in the hospital record. The police had brought the report of the Chemical Examiner before me on 9-6-1992 and I had made the report on the same day by seeing that very report. "
P. W .5 is Muhammad Sharif, father of the victim. He stated that complainant Ghulam Mustafa was his brother's son. He further stated that his statement was not recorded by the police. According to Muhammad Sharif, the victim had been taken by him and the complainant to the police station and her statement was recorded at the spot after the registration of the case. He stated that the Shalwar of the victim was presented to the police on the spot at 5-00 p.m. On 24-4-1992. P.W.6 complainant Ghulam Mustafa is first cousin of the victim. He repeated the version given in the F.I.R.
He stated that victim's father had gone to Lahore to attend a marriage ceremony and he came back the next day when the police was informed about the incident and that his statement was recorded at the spot and not at the police station. In cross-examination, he stated that he was only accompanying Nazar Hussain who had some business regarding his poultry farm which farm was located about three kilometres from complainant's village and that the complainant had no business in connection with the said poultry farm. He mentioned that there was no Hospital in the village. According to the complainant, the mother of the victim was present in her house when the victim was taken there and she also did not allow the girl to be taken to the Hospital stating that the return of her husband should be awaited. According to the complainant, Muhammad Sharif returned the next day at about 10/11 a.m. And they went to the police station at 4-30 p.m. And that for the first time the victim met the police at the place of occurrence on 24-4-1992 at about 5-00 pm. He denied the suggestion that the accused was employed as his servant for agricultural purpose and when the accused demanded his wages the complainant removed him from service and instead planted this false case against him. The most important witness in this case is the victim, P.W.7 Shazia Bano, who gave her age as 13 years in the witness-box (the incident is of April, 1992 and her statement was recorded in Court 26 months later on 16-6-1994). She stated about her coming back from school on 23-4-1992 at 1,1-30 a.m. And being raped by the accused. She deposed about her raising alarm on which Ghulam Mustafa and Nazar Hussain were attracted and that she then became unconscious. She stated that her father had gone to Lahore to attend marriage ceremony and he came back the next day when the case was registered and she was medically examined in the Hospital at Qila Dedar Singh. In her cross-examination, she gave the name of a teacher who had marked her presence in the school register. She stated that she knew the accused prior to the incident as his father was serving with a Rajput family in her village and the accused used to do odd jobs with the inhabitants of her village whenever required and he had also done work for her father and cousin Ghulam Mustafa. She stated that she did not injure the accused during the struggle either with her nails or with her teeth. She further stated that when the accused committed the offence, the victim became unconscious but she gained consciousness after a short while and that she was brought on foot to her house (whereas according to Ghulam Mustafa she had been brought on a scooter to her house). She stated that on the same day of incident she was brought to the Hospital for examination and treatment and then she was brought back to her house again. According to the victim, the lady doctor had informed local police and called them to the Hospital and, on being questioned by the police, they were informed that the report about the incident would be lodged after consultation with her father who was away. She admitted that the appellant had a quarrel with P. W. Ghulam Mustafa two days prior to the occurrence on the payment of wages. She denied the suggestion that the accused had not committed Zina with her and that he had been implicated on the direction of Ghulam Mustafa.
P.W. 8 is S.I. Khalid Baig, the Investigating Officer. According to the I.O., the victim was got medically examined on 24-4-1992 after the registration of the case and the examination was done at Rural Health Centre, Qila Dedai: Singh. He stated that on 27-4-1994 he arrested the accused and also got him medically examined the same day and sent him to judicial lock-up on 28-4-1992.
2. The statement of the appellant was recorded under section 342, Cr.P.C. On 11-8-1994. He denied the prosecution case saying that it had been fabricated at the instance of complainant Ghulam Mustafa. According to the appellant, he was working as a servant with Ghulam Mustafa and he had been turned out without paying wages and on his demand a dispute arose and the parties exchanged the abuses two/three days before the occurrence and the P. Ws. Falsely involved the appellant due to this grudge. Neither the appellant gave statement on oath nor any defence witness was examined.
The trial Court believed the prosecution evidence and observed that the contradictions and discrepancies pointed -out on behalf of the defence were not fatal to the prosecution case and that it was a broad daylight crime and the victim fully supported the prosecution version which was corroborated by the medical evidence tendered by lady doctor Rukhsana Kausar. According to the impugned judgment, no question arose of substitution of the real culprit by the accused.
3. Mr. Asif Mahmood Chughtai, learned counsel for the appellant, raised several contentions in support. Of the present appeal arguing that the prosecution had miserably failed to make out any case against the appellant. Initially it was submitted that there is delay in the lodging of the F.I.R.
And in the evidence of the prosecution witnesses it has been admitted that the case was got registered after consultations and due deliberations. It was pointed out that the incident took place around 11-30 a.m. On 23-4-1992 whereas the F.I.R. Was lodged next day on 24-4-1992 at 4-15 p.m. In any case, it was submitted that there was no reason for any further delay after the return of Muhammad Sharif, father of the victim, who had gone to Lahore. And had returned, on 24-4-1992 at about 11-00 a.m. According to learned counsel, even after his return, there is a delay of over five hours before the report was lodged, during which consultations and deliberations took place to falsely involve the appellant. In the facts and circumstances of this case, I am of the view that delay that took place in the lodging of the report is not fatal to the prosecution case. It is a case where a young girl of 11 years is raped in a rural area and her father is not present. There is nothing odd or unnatural in such circumstances for the family to wait for the head of the family to return, who should then take the final decision to lodge the report. In such cases there is no fault or wrong on the part of the victim, but the mere fact that she has been subjected to rape costs a cloud over her which usually leaves a permanent scar for which she and the family suffers. For no fault of the victim girl, the family may not be able to find a suitable match for her as the society, specially in rural areas, considers commission of rape as a stigma on the victim also. As regards the delay of five hours i.e. From about 11-00 a.m. Till the report was lodged at 4-15 p.m. On 24-4-1992, in the facts of this case, I am of the view that this delay does not mean that the complainant party was looking for a scapegoat which they found in the appellant. In my view, the victim was a girl of 11 years and was subjected to rape and even after the return of the father, decision had still to be taken whether to lodge the report and publicise the fact that the girl had been subjected to rape and a few hours taken for "consultations" and "deliberations" for this purpose do not cast a doubt about the prosecution case.
4. It was then argued by learned counsel for the appellant that complainant Ghulam Mustafa, first cousin of the victim, was a chance witness and his evidence of reaching the spot and seeing the appellant tying his Shalwar string and then running away does not inspire confidence. Ghulam Mustafa has given an explanation of his presence near the place of occurrence just after time when the occurrence had taken place. The explanation is not very satisfactory as he admitted that he had no work whereas the work was that of Nazar Hussain with whom he went, but Nazar Hussain has not been examined. However, in the facts of the case, I am of the view that, even if the evidence of complainant Ghulam Mustafa is kept out of consideration and ignored, the prosecution case is established on the evidence of the victim herself corroborated by the evidence of the lady doctor and there being no evidence of false implication.
5. As regards the medical evidence, in this case there cannot be two opinions. The medical evidence has been reproduced in the earlier part of this judgement and it establishes that the victim had been subjected to Zina-bil-Jabr.
6. Learned counsel for the appellant has submitted that there are contradictions in the testimony of the victim and as such it was unsafe to rely upon her evidence. No doubt there are contradictions in her evidence which include her statement that she was examined on the same day when the incident took place and that the police had been called to -the Hospital by the doctor. What should not be lost sight of is that the incident took place on 23-4-1992 whereas the girl was examined by the trial Court on 16-6-1994 i.e. After about two years and two months of the incident. Certain discrepancies do occur in the evidence of witnesses when evidence is-recorded after several years of the incident. Secondly, in this case, in so far as the material points are concerned, there is no infirmity or deficiency in the evidence of Shazia Bano. It is an incident which took place in broad daylight. The; appellant was known to the victim having worked for several persons in the village including her father and cousin Ghulam Mustafa. No material has been placed on record to show that it was a case of substitution or false implication of the culprit. The reason that on payment of wages there was a dispute between the complainant and the' appellant is hardly any reason, in the facts and circumstances of this case, to be accepted as a motive for falsely implicating the appellant in such a serious offence.
7. The fact that Shazia Bano had been subjected to Zina-bil-Jabr has been established by her testimony on which she has stood firm despite being subjected to detailed cross-examination and her testimony is fully corroborated by medical evidence. The motive advanced for false implication had not impressed the Court. In my view, the Trial Court did not err in coining to the conclusion that the prosecution had established its case against the appellant for committing the crime of Zina- bil-Jabr with a victim.
8. In the alternative, Mr. Asif Mahmood Chughtai, learned counsel for the appellant, relied upon section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with definition of "adult" given in section 2(a) of the said Ordinance. Section 7 reads as follows: -- "Punishment for Zina or Zina-bil-Jabr where convict is not an adult.----A person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes: Provided that, in the case of Zina-bil-Jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment. "
Section 2(a) defines "adult" as meaning a person who had attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty.
It was argued by learned counsel for the appellant that in this case no attempt was made by the prosecution to ascertain the age of the appellant. It was pointed out that doctor P. W.1 Riaz Ahmad stated in his evidence that he had not examined the appellant for determining his actual age. He stated that the appellant was above 14 years of age. Dr. Riaz Ahmad did not conduct the test to confirm whether appellant could secrete semen which test should have been conducted by him specially when the appellant was found by the doctor to be about 14 years of age. Then reliance cannot be placed on Chemical Examiner's report Exhs. PF and PG as there is doubt about the Shalwar of the victim having been given to the police and there is no mention about the underwear.
9. Learned counsel for the State Mr. Tanveer Ahmad Qureshi also submitted that though the commission of Zina-bil-Jabr by the appellant upon the victim has been established, from the evidence it follows that appellant was not an adult at the time of the commission of the offence and his case is covered by section 7 under which the maximum punishment is five years imprisonment or with fine or with both and also whipping not exceeding thirty stripes, but in case the offender is not under the age of 15 years, the punishment of whipping is mandatory- with or without any other punishment. I- agree with the learned counsel for the appellant and also the State that the case of the prosecution is covered by section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
10. As a result, this appeal is dismissed on merits, but case of the appellant being covered by section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979, his sentence is reduced to four years (two years' R.I. And two years S.I.). The sentence of stripes is set aside. Criminal Appeal No.322/L of 1994 stands disposed of accordingly.