' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,491/T of 1999 and Criminal Appeal No,1207 of 1999 filed by Muhammad Arif and Ghulam Dastgir, appellants who were convicted and sentenced by the learned Judge, Anti-Terrorism Court, Faisalabad vide his judgment, dated 1-11-1999 as under: -- Death:Under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance.
Death with afine ofRs.50,000 each and in default 7 years' R. I.Under section 7 of the Anti-Terrorism Act, 1997.
2. Occurrence in this case had taken place at 4 p.m. On 9-11-1998 within the revenue estate of Chak No,203/RB which is at a distance of 6 kilometres from Police Station Nishatabad, District Faisalabad while the matter was reported vide complaint Exh.P.D. By Liaqat All (P.W.5) at 7-00 p.m. On the same day and the formal F.LR. Exh.P.D./1 was recorded by Muhammad Suqlain, P.W.7, at 7:30 p.m.
3. Brief facts of the case were, that at about 4 p.m. On 9-11-1998 Mst. Perveen Akhtar, wife of Liaqat Ali, complainant sent her daughter aged 9 years, namely, Mst. Rehana Kausar. When she did not return to home, the complainant went out for search and when reached in front of the house of Muhammad Arif, he heard noise of cries of his daughter upon which he alongwith Muhammad Sajid and Muhammad Ilyas who were passing through the street, peeped through the window of the residential room of Muhammad Arif and saw that Ghulam Dastgir was catching hold of Rehana Kausar while Muhammad Arif was committing Zina with her. The complainant and his companions entered into the house in order to apprehend the accused but both the accused ran away leaving Mst. Rehana in naked condition.
4. After registration of the formal F.I.R. Muhammad Din, S.I.(P.W.10) proceeded to the place of occurrence, prepared site plan Exh.PG, sent Mst. Rehana Kausar to hospital for medical examination and on 11-11-1998 arrested both the accused. He also recorded the statements of the P.Ws. Under section 161 Cr.P.C. After the completion of investigation, both the accused were challenged to face the trial.
5. Prosecution in order to prove its case produced 10 witnesses in all and thereafter the learned PP tendered in evidence report of the Chemical Examiner Exh.PB and closed the prosecution case. The statements of the appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication due to enmity on account of a quarrel and misappropriation of clothes. They also in their defence tendered copy of site inspection note, Exh.DB, copy of order in Cr.Misc. No,1479/B of 1999, Exh.DC, affidavit Mark A, copy of school leaving certificate, Mark B and copy of the order passed in Crl.Misc. No,3079/B of 1999. After conclusion of the trial, both the appellants were convicted and sentenced as stated above.
' Learned counsel for the appellants at the very outset submits. Before us that he would not like to argue the appeal on merits but would confine himself on the law points. While elaborating his arguments, learned counsel submits that the case of both the appellants does not fall within the definition of "adult" as prescribed in section 2(A) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, so sentence of death cannot be awarded to the appellants. He further submits that the sentence of death could have not been awarded due to section 7 of the Ordinance and the maximum sentence which can be awarded to the appellants can be extended up to 5 years or with fine or with both and also the punishment of whipping. Also submits that at the time of occurrence, Ghulam Dastgir was below the age of 18 years, so punishment of whipping cannot be awarded to him. Learned counsel has also referred to sections 10(1), 10(2) and 10(3) of the Ordinance. Further submits that as far as conviction under section 7 of the Anti-Terrorism Act, 1997 is concerned, case of the appellants is covered under section 7(b) of the said Act, so according to him sentence of death cannot be awarded to the appellants.
' On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the appellants have committed a very heinous offence of committing gang rape with a minor girl aged 9 years and student of third class. Apart from the victim, two eye-witnesses namely, Liaqat father of the victim and Ilyas, her maternal uncle, have also fully supported the prosecution case.
' We have heard learned counsel for the parties at great length and have also gone through the record. In the instant case, both the appellants committed gang rape with Mst. Rehana Kausar aged about 9 years in a brutal manner in broad daylight. She has fully implicated both the appellants in her statement before the Police and also in her statement on oath made before the trial Court. The intelligence test of the victim Rehana Kausar was taken by the trial Court and the Court was satisfied and thereafter statements of victim was recorded on oath. The statement of Mst. Rehana Kausar coupled with the statements of Liaqat Ali, P.W.5 and Muhammad Ilyas, P.W.6 is corroborated by the medical evidence furnished by Dr.Humaira, P . W .3 which is reproduced hereunder:-- "On 9-11-1998 I was posted as Medical Officer at Allied Hospital, Faisalabad. On the same day I medically examined Mst. Rehana d/o Liaqat Ali, aged about 9 years, r/o Gali No,8, Mohallah Yousaf Abad, Faisalabad. Mst. Rehana was brought by the Police. My observations are as follows:-- ' A young girl aged about 9 to 10 years, having average built, anxious looking. Secondary sexual characters were not developed. On examination, vulva was stained with discharge, mixed with blood. Hymen was congested with area of specially torn areas around the hymen. Perineum tear was freshly bleeding around the vulva. Vagina admits one finger with difficulty. Vulva swabs were taken and were sent to Chemical Examiner. Final report will be given after the receipt of report of Chemical Examiner.
' I have seen the report of Chemical Examiner which is Exh.PB. The swabs were stained with semen according to the report of Chemical Examiner. In my opinion, she was brutally raped."
' From the above statement of the lady doctor it appears that she was so moved on seeing the condition of the victim that she had to state in her statement in Court that Rehana Kausar victim was brutally raped. We think we have never come across earlier any case in which lady doctor had used the words "brutally raped". The statement of Mst. Rehana the victim and the report of the doctor P.W.3 is also corroborated by the report of the Chemical Examiner, Exh.PB C which is positive in nature. Therefore, so far as merits of the case are concerned, there is not a slightest doubt in our mind about any false involvement rather we are fully convinced that both the appellants have committed Zina-bil-Jabar with Rehana Kausar turn by turn and Muhammad Arif was going to commit Zina for the second time when on the hue and cry of the victim, her father and uncle reached there and the accused ran away from the spot.
' Now we would like to advert to the law points raised by learned counsel for the appellants.
According to the certificate of identification which has been signed and filed by Muhammad Din (PW.10) on 11-11-1998 age of Muhammad Arif is 16 years while that of Ghulam Dastgir is 14 years. We have also gone through the school leaving certificate mark B in respect of Ghulam Dastgir wherein the date of birth has been given as 15-12-1986. Even in the statement of Muhammad Arif recorded under section 342, Cr.P.C. His age is given as 14/15 years while that of Ghulam Dastgir is 12/13 years.
The learned trial Court in his judgment has mentioned the age of Muhammad Arif as 17/18 years while that of Ghulam Dastgir as 15/16 years. At this juncture, we may advantageously refer section 2 which reads as under:--- "2. Definition. In this Ordinance, unless there is an, thing repugnant in the subject or context---
(a) 'adult' means a person who has attained being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty;
(b) 'Hadd' means punishment ordained by the Holy Qur'an or Sunnah; ' The provisions of section 7 of the Ordinance are also of benefit to be reproduced:-- "7. Punishment for Zina or Zina-bilJabr where convict is not an adult.---A person guilty of 'zina' or ' zinabil-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 Zinabil-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."
' To reproduce here, subsections (1), (2) and (3) of the Ordinance will also be of help: "10. Zina or Zina-bil-Jabr liable to Tazir.---(1) Subject to the provisions of section 7, whoever commits Zina or Zina-bil-Jabr which is not liable to Hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of 'Qazf' liable to Hadd has not been awarded to the complainant, or for which Hadd may not be enforced under this Ordinance, shall be liable to Tazir.
2. Whoever commits Zina liable to Tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine.
3. Subject to subsection (4), whoever commits Zina-bil-Jabr liable to Tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty-five years and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping numbering thirty stripes.
4. When Zina-bil-Jabr liable to Tazir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death."
' If one goes through section 7 of the Ordinance, it becomes clear that both the appellants being not adult the maximum sentence which can be awarded to them can extend up to five years, or with fine or with both and also whipping not exceeding thirty stripes in number. The perusal of subsections (1), (2), (3) of section 10 of the Ordinance also shows that this is a form of Zina or Zina- bil-Jabr liable to Tazir. Section 10(4) of the Ordinance also says that when Zina-bil-Jabr liable to Tazir is committed by two or more persons in furtherance of common intention of all, each of such person shall be punished with, death. But an 'accused who is not adult cannot be convicted under section 10(4) of the Ordinance and the conviction if any can be awarded to him would be under section 7 of the said Ordinance.
' Section 10(4) of the said Ordinance is subject to and subservient to section 7 of the Ordinance and so was the intention of Legislature as the Legislature has not used the words "notwithstanding anything contained in this Ordinance in section 10(4)". If the Legislature had any intention not to give any benefit to any person who is accused of offence under section 10(4) then the words "notwithstanding anything contained in this Ordinance" might have been mentioned. So seen from any angle, the position, which emerges clear from a combined reading of sections 2, 7 and 10(1)(2)
(3)(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is that both the appellants cannot be convicted under section 10(4) of the said Ordinance as such we convert the conviction of both the appellants from section 10(4) of section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentence them to five years R.I. With a fine of Rs,50,000 (fifty thousands) each and in default two years R.I. As Muhammad Arif appellant at the time of occurrence was above the age of 15 years so he is also sentenced to whipping thirty in number as regards Ghulam Dastgir appellant he was at the relevant time be-low the age of 15 years, so the sentence of whipping is not awarded to him.
' Now we would like to take up the conviction awarded to the appellants under section 7 of the Anti- Terrorism Act, 1997. The word "Terrorist act" had been defined in section 6 of the Act which reads as under:
6. Terrorist act.---A person is said to commit a terrorist act if he--- Commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or: ' A bare perusal of the above-quoted section would show that the act of appellants comes within the definition of Terrorist act. The sentence for commission of an act envisaged in section 6 is provided in section 7 of the Act, which also reads as under:
7. Punishment for terrorist act.---Whoever commits terrorist act,--
(1) referred to in paragraph (a) of section 6, shall--
(a) if such act has resulted in the death of any person be punished with death; and
(b) in any other case, be punishable with imprisonment for a term which shall not be less than seven years but may extend to life imprisonment, and shall also be liable to fine; and
(ii) referred to in paragraphs (b) and (c)of section 6 be liable to the punishment prescribed under the relevant law.
The definition of section 7 would show that the case of the appellants would be covered by subsection (b) and not under subsection (a) because in the instant case no person met his death so we convict both the appellants under section 7(b) of the Anti-Terrorist Act, 1997 and not under section 7(a) as ordered by the learned trial Court and sentence them to undergo life imprisonment instead of death with a fine of Rs,50,000 (fifty thousand) each and in default two years R.I. The amount of fine if realized, half of it would be given to parents of victim Mst. Rehana Kausar. The sentences are ordered to run concurrently with the benefit of section 382-B, Cr.PC. With the abovesaid modification in the sentences, the appeal filed by the appellants stands disposed of.
Death sentence awarded to both the appellants is not confirmed. Murder reference is answered in the negative.