' The petitioner aged 13/14 has been found guilty, of having committed rape, on 2-7-1973, on the person of Mst. Saban a minor girl of about 8 or 9 years, by Khawaja Sultan Muhammad Assistant Commissioner, Shorkot, District Jhang vide his order, dated 30-12-1975. And has been on conviction directed to undergo rigorous imprisonment for a period of three years. His appeal has been rejected by the learned Additional Sessions Judge Syed Muhammad Zafar Babar vide his order dated 21-5-78.
2. Learned counsel appearing for the petitioner has contended that Mst. Saban, the victim, has not appeared in Court and witnesses other than Mst. Fattan complainant the mother have not supported the case for the prosecution.
3. The question raised in revision is one of fact and there being a legally sustainable concurrent finding of fact by the two Courts below, I feel no justification to interfere with the conviction, which is based on the evidence of Mst. Fattan the mother of Mst. Saban who has deposed "that she was attracted to the spot on hearing the alarm emanating from the sugarcane A field which was at a distance of one Killa from her house and she saw the appellant committing rape on her minor daughter Mst. Saban.
"Motive for the crime is alleged to be that the appellant suspected that a paternal uncle of Mst.
Saban had illegitimate intimacy with the mother of the appellant".
' The evidence of Mst. Fattan is supported by the evidence of Dr. Azra Khatoon (P. W. 6) who examined Mst. Saban on 2-7-1973 at 9-45 p.m. And found the following injuries on her person :-
(1) There was 3rd degree fresh prineal tear.
(2) There was blood clot in the vagina.
(3) Hymen was torn fresh. P. V. Examination was very painful.
(4) There was laceration on the inner surface of Labia minora.
(5) There was no mark of violence seen on her body.
' The petitioner is the sole person who is alleged to have committed rape upon her. Vaginal swabs and the shalwar, which were sent to the Chemical Examiner were found to be stained with semen vide report Exh. P. G./1. The medical examination establishes beyond doubt that Mst. Saban was subjected to sexual intercourse. Accordingly the conviction is justified on the evidence on record.
4. The petitioner at trial had pleaded innocence and stated that he was involved in this case due to party faction in the village and he led Falak Sher (D. W, 1) and Muhammad Rafiq (1). W. 2) in defence who stated that no such occurrence had taken place and the petitioner was innocent.
Medical evidence establishes the proposition contrary to the testimony of the two D. Ws. In our society no one likes to dishonour their womenfolk by putting up such a defamatory allegation, much less an allegation involving rape, on a tender aged virgin girl. People go to the extent of committing murder in safeguarding and defending their honour. Therefore, the evidence led in defence by the petitioner is of no avail. I see no reason why they should substitute the petitioner, for the person, who has in fact committed sexual intercourse with Mst. Saban. He has been rightly convicted.
5. Non-production of Mst. Saban, at its best could help the accused in raising an argument that she was a consenting party, but the consent of 8 or 9 years old girl has no legal consequence to the advantage of the petitioner.
6. The question of sentence requires alteration for the reason that the petitioner, a first offender, at the time of incident, when medically examined was found to be 15 years in age, while according to the School Certificate, which he has appended to the revision petition, his age works out to be 13 years. He was a student of 6th Class. The girl is also stated to be of about 8 or 9 years at the time of occurrence. Mst. Saban has not been produced. Witnesses other than Mst. Fattan, the mother, have not supported the case for the prosecution, which could raise a possibility of the girl being a consenting party, though at this age she would hardly know what they were up to. 1 feel this is a case of juvenile aberration and. In fact, they would not be even conscious of what they were doing and the horrible consequences that follow legally, physically and socially.
' The other factor weighing in my mind in favour of alteration of sentence is that this is an occurrence of 1973 and the petitioner has undergone a rigor of facing a protracted trial for five years. He is of an impressionable age and spending three years in the company of criminals can develop him into a hardened criminal rather than reform him. In these circumstance I will prefer to take the risk of giving him another chance in life to learn a lesson and reform himself, rather than taking the risk of his going astray, keeping him behind the bars at this stage will do no good to the poor prosecutrix. I, therefore, deem it expedient in the interest of justice to maintain his conviction, but alter the sentence to one already undergone, and additionally direct him to pay a fine of Rs, 4,000 (Rupees four thousand only). In default of payment of fine, he shall undergo rigorous imprisonment for three years. Three-fourth (3/4th) of the fine realised, shall be paid to the prosecutrix as compensation.
Conviction maintained.