' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 518 of 2000 filed by Arshad alias Shadu and Muhammad Ashraf alias Manzoor alias Mannu, appellants, who were convicted and sentenced by Judge Special Court, Anti-Terrorism Act, 1997, Gujranwala Division, Gujranwala vide his judgment dated 14-4-2000 to death under section 10 (4) of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 read with section 7 of Anti-Terrorism Act, 1997.
' Murder Reference No, 261/T of 2000 for confirmation of death sentence of the appellants or otherwise shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 4-00 p.m. On 3-10-1999 within the jurisdiction of Police Station Pindi Bhattian, district Hifizabad at a distance of three furlongs while the matter was reported to the police on the same day at 5-00 p.m. By Muhammad Hidayat complainant and the formal F.I.R. Exh.P.D was recorded by Iftikhar Ahmad, S.I. P.W.
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3. According to the F.I.R. The facts of the prosecution case are that on 3-10-1999 at about 4-00 p.m.
Muhammad Hadayat alias Khizar Hayat complainant along with his wife Niziran Bibi and brother Liaqat Ali had gone to bring said Sakeena Bibi from the house of her in-laws to their own house and as they were passing near the house of Manzoor alias Mannu accused, they heard cries from inside the said house and then they rushed in and 'found that Manzoor alias Mannu and Arshad alias Shadu accused were present in the said room, while Kaneez Bibi aged about 11/12 years daughter of the complainant lying naked in the said room and she was bleeding profusely from her private parts. The said two accused managed to escape from there and then Kaneez Bibi apprised her parents that earlier Arshad alias Shadu accused had duped her into the said room and both Manzoor alias Mannu and Arshad alias Shadu had committed Zina-bil-Jabr with her. Muhammad Hadayat alias Khizer Hayat lodged the F.I.R. At the police station, the same day at 5-00 p.m., after which, the investigation was carried out and then both the above said accused were sent to face the trial before the learned trial Court.
4. At the trial, prosecution in order to prove its case produced seven witnesses in all. Dr. Anjum Javed Sindhu was examined as C.W.1 thereafter, learned Public Prosecutor tendered in evidence reports of Chemical Examiner regarding the vaginal swabs Exh.P.J and report of Chemical Examiner regarding the Shalwar Exh.P.K and closed the prosecution case, then the statements of the appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence.
5. After having read the entire prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellants submits that appellants have been falsely implicated in this case, that there is no corroboration to the statement of Mst. Kaneez Bibi the victim in this case, that nobody had seen the occurrence in this case, that there is only bald statement of Mst. Kaneez Bibi, that there was no mark of violence on the body of the victim, that sole testimony of Mst. Kaneez Bibi does not get support from any side, that Mushtaq Ahmad, A.S.I. P.W. 3 appeared and stated that he was Moharir on 3-10-1999, on the said date, he received one sealed phial to contain swabs and one sealed parcel to contain Shalwar of Kaneez Bibi with him and then he handed over the said two parcels to Mazhar Hussain constable No, 261 on 5-10-1999 for their onward transmission to the office of Chemical Examiner, that according to the statement of Mazhar Hussain, who was examined as P.W.
6 had stated that he was given only one sealed parcel from Muhammad Mushtaq A.S.I. Which he delivered intact in the office of Chemical Examiner, the same day, that Ghulam Hussain, F.C. P.W.
Who had taken the parcel containing pieces of Shalwar of the victim was not produced before the learned trial Court and Moreover, statement of Mushtaq Ahmad P.W.3 has been contradicted by the statement of Mazhar Hussain P.W. 6, that Dr. .Shugafta Shaheen, who was examined as P.W. 1 did not state anything about the Shalwar belonging to the victim, that as far as, Arshad alias Shadu accused/appellant is concerned, he also does not belong to the caste of his co-accused Ashraf alias Manzoor, that Arshad was not 18 years of age at the time of occurrence and his case fell under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the death sentence cannot be awarded and maintained as far as he is concerned. He submits that both the appellants have been made scapegoat in the instant case. Adds that explanation of Arshad and Ashraf accused/appellants is more plausible and convincing one. He submits that in order to prove the age of Arshad that he was not 18 years of age, the statement of Dr. Anjum Javed Sindhu was recorded as C.W.1 who was the member of the Board who had carried out the test and took the X- Ray about the determination of the age of Arshad. He lastly submits, that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt.
6. On the other hand, learned counsel for the State submits that statement of Mst. Kaneez Bibi the victim is corroborated by the statement of her father who is complainant in his case, that ocular account furnished by Mst. Kaneez Bibi has been corroborated by the statement of Dr. Shugafta Shaheen P.W.1 and further from the reports of Chemical Examiner Exh.P.K and Exh.P.J, that prosecution has proved its case against the appellants beyond any shadow of doubt.
7. We have heard learned counsel for the parties at a great length- and have also gone through the record with their able assistance. In the instant case, occurrence had taken place on 3-10-1999 at about 4-00 p.m., matter was reported to the police on the same day within one hour by Muhammad Hidayat father of the victim through Exh.P.D. In Police Station Pindi Bhattian, names of the appellants and act they committed is mentioned in the F.I.R. Mst. Kaneez Bibi is the star witness of the prosecution, she was A examined as P.W. 4, she has levelled allegation of Zina-bil-Jabr against the appellants, she is minor girl of 11/12 years of age, she had stated in her cross- examination that accused/appellants have committed Zina with her in the house of Ashraf alias Mannu accused/appellant, she has also stated that on her noise, her mother Mst. Naziran and father Muhammad Hidayat came in the room and accused on seeing them ran away. She had also stated that after committing Zina-bil-Jabr by both the appellants she was bleeding profusely, she was examined by Dr. Shugafta Shaheen P.W.
1. The said lady doctor -Shagufta Shaheen had found the following on her examination which is reproduced below: -- "On examination, I found that the said girl was clinically weak, her blood pressure was 100/60 and pulse was 100 per minute.
1. Her Hymen was torn; margins of the hymen were irregular and swollen. The margins of the hymen were also tender and were bleeding to touch.
2. Vagina admitted two fingers with difficulty.
3. A big perineal tear (lacerated wound) was present at 6 O'clock position. There was profuse bleeding from the wound.
4. Breasts of Kaneez Bibi had not developed.
5. Vaginal Swabs, two in number, were taken and sent to Chemical Examiner for detection of semen."
8. In cross-examination lady doctor had categorically stated that hymen in this case was torn and it was a fresh tear, she also stated that she was definite that the victim had been subjected to sexual act, yet as a doctor, she kept her opinion reserved till the arrival of the report of Chemical Examiner.
9. According to the statement of Dr. Asghar Ali Hanjra P.W. 2, who had examined both the appellants about their potency stated that in his opinion all the external sex organs were normal and healthy, so, there is nothing to suggest that both the appellants were not fit to perform sexual act, Muhammad Hidayat father of the victim had reached at the spot after hearing hue and cry. He had corroborated the statement of his daughter who had told him about the zina committed by both the accused/appellant soon and immediately after the occurrence, there was no previous background of enmity between the parties, there was no question of false implication in this case, ocular account is fully corroborated by medical evidence.
10.The contention of learned counsel that Arshad according to the report of Board of doctor which is on the record Exh.C.W.1/A was between 15 to 18 years of age has no lap to stand because according to definition of adult which has been mentioned in section 2 (a) of Ordinance, VII of 1979, which is reproduced below: "(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." (Under lining is ours).
11. This shows that adult is a person who has attained the age of 18 years of puberty_ In the instant case, according to the statement of Dr. Asghar Ali P.W. 2, appellant Arshad was fit to commit sexual intercourse, so he had attained the age of puberty at the time of committing zina with Mst. Kaneez Bibi the victim in this case so his case is covered by section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
12. Another contention was also raised before us by learned counsel for the appellants that appellants be awarded life imprisonment. We are sorry to say that we cannot do anything in this behalf because according to section 10 (4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, the only sentence which is provided is death' sentence. We are helpless in this matter. However, we direct D.R. (Judi) to send a copy of this judgment to the learned Law Secretary who would bring it to the notice of worthy Law Minister that when there are two sentences provided under section 302(b), P.P.C., i,e, Death and Imprisonment for life, an amendment may be introduced in section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 so that in suitable cases the death sentence can be converted into life imprisonment. For example the learned counsel for the appellant while concluding his arguments has brought to our notice that he can produce parents of Mst. Kaneez Bibi including the complainant that they have entered into a compromise with the appellants but we are unable to extend any help to the learned counsel for the appellants because this offence is not compoundable. In such like situation. Court should be granted the power to convert the death sentence into life imprisonment.
13. As far as, taking of the parcel of Shalwar of the victim is concerned, that was received by the office of Chemical Examiner but the learned D.D.A. Who had conducted this case in haste did not produce the said witness Ghulam Hussian, FC and he was given up as unnecessary, he should not have done so. According to the report of Chemical Examiner the Shalwar was stained with blood and the Chemical Examiner had sent the blood to the office of Serologist but till today no report has given, this shows negligence on the part of the Investigation Officer who could have got the report of Serologist and placed the same while submitting the challan of conceding but for the sake of arguments, even if this piece of evidence is excluded from the prosecution case and is not considered, even then the prosecution has proved its case against the appellants beyond any shadow .Of doubt to its hilt through the statement of Mst. Kaneez Bibi with Whom the two appellants committed Zina-bil-Jabr and corroborated by medical evidence produced by Dr. Shugafta Shaheen , P.W. 1 and the report of the Chemical Examiner according to which the swabs taken from the vagiha of Kaneez Bibi were stained with .Semens.
The nut shell of the above discussion is that no' case for acquittal is made out in favour of the appellant, as the prosecution has proved its case against the appellants, therefore, the appeal filed by the appellants is dismissed. Death sentence is confirmed. Murder reference is replied in the affirmative.