' This judgment will dispose of Criminal Appeal No,233 of 2001 directed against the judgment dated 29-1-2001 passed by Judge Special Court, Lahore whereby he convicted the appellant under section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo 25 years' rigorous imprisonment. He was also convicted under section 7(ii) of the Anti- Terrorism Act, 1997 read with Article 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, (VII of 1979), and was sentenced to 25 years' rigorous imprisonment.
2. The brief facts of the case as narrated in the F.I.R. By the complainant are that on 20-6-2000 Mst.
Iram Hassan aged 5/6 years, niece of Azam Ali complainant went to Abdullah Bakery in order to take biscuits but she did not return even after 15/20 minutes and as such he along with Akbar Ali, Yousaf Raza and Mst. Anwar Bibi went to search her on Bakery. They heard hue and cry of Iram Hassan and pushed the door and they saw Iram Hassan and Raqib accused in naked position and Raqib accused was committing Zina with Iram 'Hassan. Blood was oozing from the private parts of Iram Hassan and she was crying due to pain. Seeing them the accused ran away but fell down on the heap of brick and he was apprehended at the spot. Matter was reported to the police.
3. The police after completing all the necessary proceedings inspected the spot. The investigation of the case was entrusted to Muhammad Latif A.S.I, who took Iram Hassan victim for medical examination on the same day and he took the Shalwar of accused P.1, vide memo. Exh.P.0 which was produced by Azam complainant. He also took into possession the clothes of victim i,e, Shalwar P.2, Kameez P.3 and Dupatta P.4 vide memo. Exh.P.D. He also got the accused medically examined and he prepared injury statement of accused Exh.P.I. Ultimately he prepared the challan against the appellant and submitted the same for trial.
4. In order to prove its case the prosecution has produced as many as 9 witnesses including Doctors, Investigating Officer, eye-witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.K the learned P.P closed the prosecution evidence.
There after statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty and claimed to be tried.
5. Learned counsel for the appellant in support of this appeal submits that it is a case of substitution, that the appellant has been falsely implicated in this case, that all the eye-witnesses are closely related to victim and are interested witnesses, that the prosecution has failed to prove its case against the appellant and there is no evidence on record to the effect that who took the sealed parcel of swa bs to the Chemical Examiner, that there is no grouping of the semens that the appellant is not an adult, that the appellant should have been tried under the Juvenile System of rustice Ordinance, 2000, that the statement of the appellant was not recorded in accordance with law because no certificate has been given by the learned trial Judge under his own hand, that there are material discrepancies in the statement of the witnesses, that it is not a case of penetration. Lastly, he submits that prosecution has failed to prove its case against the appellant.
6. On the other hand learned State counsel submits that appellant is named in the F.I.R., three eye- witnesses have named the appellant in their statement under section 161, Cr.P.C. And also before the trial Court, that ocular account is corroborated with the medical evidence and that the prosecution has fully proved its case against the appellant, that it is not a case of substitution. She supports the judgment of the trial Court.
7. I have heard the learned counsel for the parties. In the instant case occurrence has taken place on 20-6-2000 at 5-30 p.m. And complaint was made at 6-00 p.m. While formal F.I.R. Was lodged at 7-20 p.m. On the same day. Victim in this case is Tram Hassan aged about 5/6 years and she was ravished by the appellant who committed Zina-bil- Jabr with such a minor girl. According to the learned counsel for the appellant three eye-witnesses namely, Azam Ali, Mst. Anwar Bibi and Muhammad Yousaf Raza were interested witnesses. In fact they are not interested because mere relationship of a witness with the victim is not a- criteria to disbelieve his evidence unless he is inimical towards the accused person. There was no previous background of enmity between the parties. Even there is not a single suggestion on the record that there was any enmity between the parties. Mst. Iram Hassan the poor minor girl was examined on the very first day i,e, 20-6-2000 by Doctor Habib Fatima, Woman Medical Officer. According to her statement blood pressure was not recordable, pulse 160 per minute, complains of pain lower abdomen, bleeding per vagina positive mild. Three viginal swa bs were taken and were sent to the Chemical Examiner for detain of semen and the report of the Chemi: Examiner is positive. As she was min or she was admitted in General Labour Room and referred to Senior Registrar for- examination under an anaesthaesia and expert opinion (Gynaecologist). Thereafter she was also examined by Dr. Sameena Shameem, Senior Registrar, Lady Atchison who was examined as P.W.6. According to her finding, hymen torn mild, bleeding was present. Laceration of one inch on left labia minora. According to the opinion of the Doctor the said minor girl required urgent laparotomy for vault tear which communicated with abdominal. Patient was bleeding, internally. She was given injection and other medicines. It was also decided by General Surgeon (S.R) to operate the child in Mayo Hospital in collaboration with paediatric surgery in the best interest of the patient. There is no question of false implication of the appellant as he was apprehended at the spot. He was produced along with his Shalwar which he left at the spot before Muhammad Latif, S.I., the Investigating Officer of this case. Bloodstained Shalwar of the victim was also taken into custody by the Investigating Officer. It was stressed before this Court that Muhammad Yousaf Raza P.W. Has stated before the trial Court that he did not see the appellant committing Zina with the minor girl though, the other two eyewitnesses namely Azam Ali and Mst. Anwar Bibi P.Ws. Saw the same. On the same breath Yousaf Raza also stated that when he entered into the Bakery he saw the appellant in naked condition and the victim was also lying in naked condition and blood was oozing from her vagina. Appellant was also medically examined on the next day for the reason that the Investigating Officer had to get permission from the Magistrate. According to the report of the Doctor who conducted medical examination on the appellant, the appellant . Was potent and he was able to commit sexual intercourse. In this regard. Dr. Waqas Sadiq, Senior Medical Officer was examined by the prosecution as P.W.8 who has given his finding in paragraph 2 of his statement which is reproduced below:-- "On examination I found that pubic and armpit hair were present, penus well-developed and circumcised, scrotum was intact with both the testies inside: There was no hernia, hydrocele or varicocele, no history of hypertension or any other debilitating disease, cremastric reflex was positive by laterally."
According to his opinion there was nothing to suggest that he was incapable to commit sexual intercourse.
8. I have also gone through the judgment of the learned trial Court specially paragraph 39 because the last point which was raised before this Court was that appellant is not adult and he is below 18 years and he does not come within the definition of section 2(a) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and if the case is proved then he is liable to be convicted under section 7 of the said Act and not under section 10(3) of the above said Act. In this regard I would like to refer PLD 1984 FSC 20, titled as Sarwar v. The State, specially Head notes 1 and 2 which are reproduced below:-
(i) ---S.7--Offence of---Adulthood of male--Evidence of---Held: Evidence of Doctor about ability of male for committing sexual intercourse along with report of Chemical Examiner on analysis of vaginal swa bs taken by lady Doctor during medical examination of victim to be sufficient evidence of adulthood of male.
' Then I would also like to refer head note ii of the same judgment which is reproduced below:-
(ii) ---S.7---Zina---Offence of---Adulthood of male-- Evidence of---Held: in case of any evidence of ejaculation by male during intercourse such male to be adult not entitled to benefit of section 7 of Ordinance, 1979."
9. Appellant does not fall within the category that he was not adult. He failed to produce any School Leaving Certificate or Birth Certificate. He did not file any application for ossification test or medical test as required. This matter has also been considered by Modi in Modi's Medical Jurisprudence and Toxicology, 1979, 22nd Edition, page 303, the relevant portion of which is given below:- "Boys are considered to be sexually potent at the age of puberty which usually occurs at the fifteenth or sixteenth year, Sexual intercourse is, however, possible at about the thirteenth or fourteenth, year, as the power of coitus commences earlier and ceases later than the power of procreation. The changes which occur in a boy at puberty are the development of the genital organs, the ability to secrete semen, the growth of hair on the pubes, axillae and chin, and the increase in size of the larynx leading to the deepening of the pitch of the voice."
10. As far as semen grouping was concerned, it is correct that same had not been done but there was no need of the same as, the appellant was apprehended at the spot and he was produced before the police on the same day.
11. After having read the prosecution evidence and hearing the submissions made by the learned counsel for the parties, I am fully satisfied that prosecution has proved its case against the appellant beyond any shadow of doubt. He has committed brutal act of Zina-bil-Jabr with a minor girl of 5 years age and she was so innocent and minor that her statement was even could not be recorded by the learned trial Court being incompetent witness after putting questions on her. In this view of the matter, as the prosecution has proved its case against the appellant beyond any shadow of doubt, there is no mitigating circumstance in favour of the appellant, this appeal is dismissed.