1. ABDUL WAHEED SIDDIQUI, J.---Appellant has assailed a judgment delivered by the Court of Additional Sessions Judge, Gujar Khan on April 1st, 1996 whereby he has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, and has been sentenced to R.I., for 15 years with punishment of whipping numbering 30 stripes. Benefit of section 382-B, Cr.P.C. has also been extended.
2. Story of the prosecution in brief is that one Munawar Sultana (P.W.2) submitted a written complaint stating therein that she is resident of village Tall Khalsa and her husband is in Saudi Arabia. The victim girl Ifra Shabbir aged 3 years is her daughter. On 20-5-1994 at about 2-00 p.m. she was present in her house and her victim daughter was playing in the street adjacent with the gate of her house. Appellant, who was been coming to their house, kidnapped her girl towards barred field and trees about which she came to know from the children who were playing in the same street. She started searching for the girl in the company of Ashiq Hussain (P.W.4), Muhammad Sadiq and Waris Khan and found the appellant indulging into Zina with the victim girl in the trees. On seeing them the appellant ran away. The victim girl was found unconscious and the blood was flowing. She was brought to the house but for a considerable time could not get vehicle and then after having arranged the vehicle she brought the victim girl under unconscious condition at Civil Hospital Gujar Khan. Since Mukhtar Hussain Shah S.I. (P.W.6) and Investigation Officer had come to the hospital, therefore, the complaint was recorded by him at about 12/10 in the night on 21-5-1994. On the basis of this complaint an F.I.R. was lodged at Police Station Gujar Khan early in the morning on 21-5-1994.
2. Appellant was arrested, challaned and charged under Articles 11 and 10 of the said Ordinance to which he did not plead guilty.
3. In evidence, the prosecution examined 9 P.Ws. Appellant gave his statement under section 342, Cr.P.C. and did not prefer any other evidence in his defence.
3. Mujahid Hussain (P.W.1) has proved the delivery of parcel containing one sealed phial, sealed envelope and sealed parcel of clothes in the office of Chemical Examiner intact. Mst. Munawar Sultana (P.W.2), the mother of the victim girl, has proved her statement made before police at D.H.Q. hospital Gujar Khan which is Exh.PA. She has also proved the examination of her victim daughter at D.H.Q. hospital Rawalpindi. Muhammad Azam (P.W.3) H.C. has proved the safe custody of the sealed parcel containing one sealed envelope, one phial and a sealed parcel of clothes.
4. Ashiq Hussain (P.W.4) has proved his accompanying Munawar Sultana (P.W.2), Sadiq and Waris towards the fields and being one of the ocular witnesses of the commission of Zina bil-Jabr by the appellant. He has also proved that the blood was oozing from the private parts of the victim girl.
5. She was unconscious at that time. Muhammad Hayat (P.W.5) has proved that on the date of occurrence he was posted at police station Gujar Khan and giving company to S.I. Mukhtar Hussain (P.W.6) he went to T.H.Q. hospital Gujar Khan where the said sub-inspector gave him injury report of the victim girl for medical examination. He escorted the victim to D.H.Q. hospital Rawalpindi for medical examination and received one sealed envelope and sealed phial and M.L.R. alongwith the clothes of the victim which were blood-stained. He received the same from the lady doctor who examined the victim. He produced these articles to Mukhtar Hussain S.I. on 21-5-1994 which were taken into possession by the said witness vide recovery memo. Exh.PB. Mukhtar Hussain (P.W.6) S.I. and the Investigation Officer has proved the recording of the statement of the complainant (Exh.PA) and sending the same for registration to the Police Station Gujar Khan. He prepared the injury statement Exh.PC of the victim and sending her for medical examination to D.H.Q. hospital Rawalpindi. He has also proved the receipt of sealed envelope (P.1) a phial (P.2) one Pajami (P.3) on frak (p.4) one Chaddar (P.5) and another woollen Chaddar (P.6) vide recovery memo. Exh.PB He visited the spo4 and prepared the rough site plan Exh.PD and after having completed the investigation, he challaned the appellant in the Court. He has also proved the arrest of the appellant on 24-5-1994 and one day later he got him medically examined vide Exh.PE. He also handed over all the sealed parcels to the Moharrir police station Gujar Khan for onward transmission to the office of Chemical Examiner. Dr. Talat Mahmood (P.W.7), W.M.O., D.H.Q., hospital Rawalpindi has deposed that she medically examined the victim on 21-5-1994 at about 3-30 a.m.
6. She found the victim fully conscious with history of unconsciousness. She also found a reddish abrasion on right cheek below the eye, a mid-line perineal tear. She found that hymen was torn freshly. She also found dry blood on Pajama and perineal region of the victim. No fresh bleeding was present at that time but it started on examination. She has opined that an attempt of sexual intercourse was made. Muhammad Younas (P.W.8) A.S.I. has proved the formal recording of the F.I.R. Exh.PA/2 after having received the complaint Exh.PA. Dr. Haji Tariq Mahmood (P.W.9) of civil hospital Gujar Khan has proved that on 25-5-1994 he medically examined the appellant and found him physically fit for performing the sexual act. There is a total denial of the appellant aged 22 years to the specific questions made to him under section 342, Cr.P.C. To question No.6 as why this case has been made against him he has replied.
7. "I have been falsely involved in this case. In fact Mst. Munawar Sultana, mother of Mst. Ifra Shabbir (Victim) had promised me to make arrangements of my marriage with her some relative and had been taking/receiving money from me for the said purpose, ultimately, she refused to keep her promise and when I demanded my money, the instant case was got registered against me."
8. 4.We have heard the learned counsel for the appellant and State. Counsel for the appellant has contended that in the charge sheet the date of the offence has been shown as 21-4-1994 and whereas in the original complaint Exh.PA as well as F.I.R. Exh.PA/2 the date of offence is 20-5-1994 and this error is in the nature of violation of law. He has further contended that the medical evidence is in conflict with the story of the prosecution. He has relied heavely on an unreported judgment of a DB of this Court in Criminal Appeal No.61/I of 1990. He has also relied on 1995 PCr.LJ 1822, 1987 SCM R 133 and 1995 SCMR 1338. The counsel for the State has consented to the extent that this is not the case in which conviction and sentence under section 10(3) of the said Ordinance is maintainable, however it is an offence of an attempt of Zina in which conviction and sentence is called for. He has also given a consent that this is a fit case in which reduction of sentence shall be in the interest of justice.
9. 5.As to the contention regarding erroneous particulars about the month of the occurrence given in the charge is concerned it is based on a provision of section 222, Cr.P.C. This section reads as under: Particulars as to time, place and person. "The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged."
10. This contention is repelled firstly because it was not taken-up on the stage of trial, secondly because in question No.2 in statement under section 342, Cr.P.C. the month stands rectified from April to May. Although the date has been given as 21-5-1994 whereas it should have been 20-5- 1994 but no objection has been raised by the defence at the relevant time and thirdly because it appears to be in the nature of the clerical mistake and does not prejudice the appellant in any manner.
11. 6.So far as the contention that medical evidence is in conflict with the story of the prosecution is concerned, it has been found correct in view of the fact that Dr. Talat Mehmood (P.W.7) who examined the victim girl has given her opinion in clear words that an attempt to sexual intercourse was made. It appears from this medical opinion that penetration has not taken place which is a basic ingredient in the constitution of Zina. The question, thus, naturally arises as to how the hymen was found torn recently and as to why the blood on the perineal region had taken place and as to under what circumstances clothes and swabs of the victim girl were found by Chemical Examiner to be stained with semen and blood vide Exh.PG. All these questions are easily answerable due to the tender age of the victim girl that is 3 years vis-a-vis opinions of experts in the standard books of medical jurisprudence. Modi in his Medical Jurisprudence Toxicology in chapter on sexual offences is writing as under: ' In small children the hymen, being situated high up in the canal, is not usually ruptured, but may become red and congested alongwith the inflammation and bruising of the labia, or, if considerable violence is used, there is often laceration of the fourchette and perinaeum."
12. It appears that due to force on the upper edges of the private parts of the victim the, bleeding started from the tear caused on perineal region and on the basis of this undue force hymen also got torn whereas penetration could not place. So far as the existence of semen in the swabs is concerned, it appears, prima facie that appellant while applying force on the private parts got ejected and some of the semen entered the injured vagina which could be detected from the swa bs and also from the clothes of the victim girl. Consequently it is the case of attempt of Zina- bil-Jabr and not the actual commission of Zina-bil-Jabr. In this context we find correct reliance on an unreported Criminal Appeal No.61/I of 1990 in which Mr. Justice Gul Muhammad Khan, then Chief Justice and one of us (Dr. Fida Muhammad Khan, J.) had decided a case in identical circumstances and had reduced the sentence. In the said case the victim girl was also of about 3 years and due to greater force on her private parts, she was found unconscious and she had also bleeded. In the said case although medical examination was not in conflict with the story of prosecution yet the sentence was reduced from R.I. of 15 years to R.I. of 7 years in the special circumstances of the said case.
13. 7.In view of the abovementioned discussion, we are inclined to set aside the conviction and sentence under section 10(3) of the said Ordinance and convict the appellant under section 18 of the said Ordinance and sentence him to R.I. for 5 years with the benefit of section 382-B, Cr.P.C. to be extended to him. Punishment of whipping is set aside as no more required after the promulgation of Act No.VII of 1996.
14. We have already made a short order in this regard. These are the reasons for the said order.