' NAZIR AHMAD BHATTI, CI-Complainant Muhammad Zahid Butt was a shop-keeper in Gujranwala and resided in Mohallah Bakhtewala near Hafiz Soda Water Factory. On 31-1-1993 his wife had gone to Sialkot. At about 4-30 p.m. He went to his house but did not find his daughter Mst. Sundas Butt, aged about 5 years. He and his brother Sajid Butt started looking for the girl and went up the roof of the house where they saw Tahir alias Tahri, appellant herein, committing rape upon the said girl.
On seeing the complainant party the appellant made good his escape. The complainant went to Police Station, Subzimandi, District Gujranwala at 8-00 p.m. And recorded F.I.R. No, 64/93. The victim Mst. Sundas Butt was medically examined on 1-2-1993 by P.W.3 lady Dr. Gha7ala Shafique. The lady doctor took her vaginal swa bs for chemical examination. The appellant was arrested on 1-2-1993 and after investigation he was sent up for trial before learned Sessions Judge, Gujranwala, who charged him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which he pleaded not guilty and claimed trial.
2. The State produced 8 witnesses in proof of the prosecution case whereas the appellant made a statement under section 342, Cr.P.C. And also made a deposition on oath but he did not produce defence evidence.
3. After the conclusion of the trial the learned Sessions Judge convicted the appellant under section 10(3) of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 20 years and to suffer 30 stripes. The convict has challenged his conviction and sentence by the appeal in hand.
4. According to the medical examination of the victim Mst. Sundas Butt held by P.W3 lady Dr. Ghazala Shafique on 1-2-1993 at 12-30 p.m., no mark of violence was found on any part of her body.
On local examination the lady doctor found hymen membrane intact and no injury, oozing or bleeding was seen locally. The lady doctor gave the opinion that she was not subjected to penetration but the vaginal swa bs were found stained with semen on chemical analysis. The complainant Muhammad Zahid Butt, appearing as P.W3, corroborated the contents of the F.I.R.
Recorded by him. He also stated that he and his brother Sajid Butt had seen the appellant committing rape with the victim. The appellant was also examined by P.W.4 Dr. Muhammad Anwar Sajjad on 2-2-1993, according to which he had sustained contusion wounds on different parts of his body within a duration of 24 to 48 hours and he was also capable to perform sexual act.
5. The prosecution evidence produced during the trial will clearly show that the appellant was attempting to commit Zina with Mst. Sundas Butt but he could not succeed in making any penetration. This fact is confirmed by the testimony of the lady doctor because on medical examination there was found neither any injury on any part of the victim, nor her hymen was torn nor there was any oozing or bleeding. This will also show that the appellant had not succeeded in making penetration. The presence of semen on the vaginal swabs would not necessarily prove penetration because there were no other signs of penetration having taken place on the person of the victim. It is possible that the appellant may have discharged outside the vagina, but his presence at the spot was proved beyond any doubt whatsoever because he was manhandled by the complainant party there and then.
6. Although the learned counsel for the appellant had challenged the conviction and sentence of the appellant and had pleaded that he was innocent but from the evidence produced during the trial it transpires that the appellant had definitely committed an attempt to commit Zina with Mst.
Sundas Butt. Confronted with the aforesaid circumstances the learned counsel prayed for altering the offence from actual commission of Zina to an attempt to commit it and for reduction in the sentence for the offence of an attempt to commit Zina.
7. Having taken into consideration the aforesaid circumstances we have come to the conclusion that the learned trial Court, had improperly convicted the appellant for the actual offence of rape whereas he was only guilty of an attempt to commit rape. The appellant was therefore, liable to be convicted under section 10(3) read with section 18 of the Hudood Ordinance. Keeping in view the request of the learned counsel for the appellant for some leniency to be shown to the appellant, on the ground that he was also a young man which request was not opposed by the learned counsel for the State, 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 he is sentenced to undergo rigorous imprisonment for 5 years and to suffer 15 stripes. The appellant shall also be entitled to the benefit under section 382-B Cr.P.C.