RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of the above two Special Anti-Terrorism Appeals, as they are outcome of one and same case. The Spl. ATA No,53 of 2000, is filed by Muhammad Adnan (hereinafter referred to as appellant No,1) and Spl. A.T.A. No,57 of 2000, is filed by Muhammad Mumtaz (hereinafter referred to as appellant No,2).
2. The present appeals have been directed against the judgment, dated 6-5-2000, passed by the Anti-Terrorism Court No,III, Karachi, in Special Case No,70 of 2000 (The State v. Muhammad Mumtaz and another), under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called as Ordinance, 1979), by which the learned Judge had convicted the appellant No, 1 under section 10(4) of Ordinance, 1979 read with section 6(c) of Anti-Terrorism Act, 1997, ("Act, 1997") and sentenced him to suffer R.I. for five years and to pay a fine of Rs,50,000. In case of non- payment of fine the appellant No,1 was directed to suffer R.I. for one year more. The appellant No,2 was convicted under section 10(4) of Ordinance, 1979 read with section 6(c) of Act, 1997 and sentenced to imprisonment for life and to pay a fine of Rs,50,000. In case of default in payment of fine the appellant No,2 was directed to undergo R.I. for one year.
3. The facts giving rise to the present appeals are that the complainant Mst. Allah Bachai resided with her husband Muhammad Hassan, daughters Sumaria Hassan and Hamida Hassan, and son Waqar Hassan, in House No,A/409, Sector A, Bhittai Colony, Korangi Crossing, Karachi. She was serving as domestic servant in a Bungalow No,14, Khyaban-e-Sahar, DHA, Karachi. On 28-3-2000 at about 12-00 midnight driver Muhammad Mumtaz (appellant No,2) and his cleaner Muhammad Adnan (appellant No,1) went to the complainant's house on their water tanker and enquired about Munir and Riaz, who were residing in a room of the house as tenant. The husband of the complainant informed them that Munir and Riaz had vacated their room on 26-3-2000. At the request of the appellants, they allowed them to spend a night there. In the morning of 29-3-2000 at about 8-30 a.m., they were relieved after serving them breakfast thereafter, the complainant and her husband proceeded to their place of. job. The appellants Muhammad Mumtaz and Muhammad Adnan were present outside the house with their water tanker. The complainant and her husband returned to their house at 7-00 p.m. Their daughter Sumera informed them with tears in her eyes that after their departure, at about 9-30 a.m. both the appellants Muhammad Mumtaz and Muhammad Adnan returned to the house. The appellant Muhammad Mumtaz and then appellant Muhammad Adnan committed Zina with her. She could not raise any alarm because her mouth was closed by the appellants with their hands. The complainant informed the matter to her employer Gohar Ali and then loged the F.I.R. on 30-3-2000 at 02-30 hours.
4. The police started the investigation. The victim was referred to medical examination for determination her age and about commission of rape upon her, arrested the appellants and after recording the statements of witnesses and preparing Mashirnama of arrest and recovery challaned the appellants before the Administrative Judge, Anti-Terrorism Courts, Karachi. The case was assigned to the Anti-Terrorism Court No,III, Karachi, where the appellants were tried and convicted as mentioned above. The appellants were dissatisfied with the said judgment therefore, they have preferred the present appeals.
5. In support of the case the prosecution examined P.W.1 Dr. Yasmin, (she examined the victim girl to determine the commission of rape), P.W.2 Allah Bachai, (the complainant, P.W.3-Mst. Sumera, (victim), P.W.4 Dr. Akhlaq (he determined the ages of the appellants and victim and about potency of the appellants), P.W.5 Ghulam Abbas (Mashir) and P.W.6 S.I.P. Nazneen Mughal, (1.0.).
6. The appellants in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. The appellant No,2 took the plea that he used to reside in the House No,A/409, Sector A, Bhittai Colony, Korangi Crossing, Karachi with Haji Riazul Hassan and others in a separate room and used to supply water to the persons of the locality. He wanted to marry with Mst. Sumera but her mother demanded Rs,100,000. As he was poor, therefore, he could not afford to pay the said amount. But he used to meet with Mst. Sumera; therefore, he has been falsely involved in this case.
He was arrested from Manzoor Colony, in the night of 29/30-3-2000. The appellant No,1 in his further statement stated that he was cleaner on the water tanker, which was driven by the appellant No,2 and used to visit his room in House No,A/409, Sector A, Bhittai Colony, Korangi Crossing, Karachi, where other families were also residing in separate rooms. The appellant No,2 wanted to marry with Mst. Sumera but due to money problem dispute arose between the complainant and the appellant No,2, therefore, he has been involved in this case in order to extract money from him and due to friendship with appellant No,2.
7. The appellants examined two defence witnesses, viz. Naik Muhammad, grandfather of appellant No,1 and Ghulam Qasim, father of appellant No,
1. D.W. Naik Muhammad deposed that in between the night of 29/30-3-2000 at about 1-00 a.m. a police mobile came in which the appellant No,2 was sitting and they asked for appellant No,1 who was sleeping in the house and then he was taken-away by them. He further deposed that 2/3 months prior to the registration of the case the complainant demanded Rs,100,000 from the appellant No,2 as he wanted to marry with Mst.
Sumera but he had not paid the said amount to the appellant No,2 on his demand. The evidence of D.W.2 is also on the same line.
8. After considering the evidence available on the record, the learned trial Judge convicted the appellants as mentioned above. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals.
9. The advocates for the appellants have argued that the entire case based upon the evidence of Mst. Sumera but her evidence is not supported by the medical evidence as no grouping of semen was taken so as to connect the appellants with the commission of this crime. They have further argued that according to statement of medical officer P.W.1 Dr. Yasmin the victim was not virgin and there was no marks of violence over her body to show that Zina-bil-Jabr was committed upon her. They have further argued that it was not possible that in presence of love affairs between the appellant No,2 and the victim, the rape would be committed by the appellant No,1 in the presence of appellant No,2. They have further argued that the age of the victim girl is more than 16 years and she has attained the age of puberty, therefore, she was not a minor. They have relied upon the cases of (i) Abid Javed alias Mithu v. The State 1995 PCr.LJ 1161, (ii) Muhammad Nawaz v. Abdul Rashid and others PLD 1983 FSC 251, (iii) Abdul Rashid. v. The State PLD 1983 FSC 204, (iv) Liaquat Ali and 2 others v. The State PLD 1988 FSC 119 and (v) Asad Abbas v. The State 1996 M LD 782.
10. On the other hand, the learned A.A.-G. has argued that the appellants had not denied the fact of staying the night in the house of the complainant and leaving the same in the morning as no cross-examination was conducted to the witnesses denying the said allegations. He has further stated that the statement of Mst, Sumera is supported and corroborated by medical evidence and chemical analyser's report, which is enough to convict the appellants. He has further argued that the offence of Zina-bil-Jabr appears to have not been established beyond any shadow of doubt but the offence under sectoin 10(2) of Ordinance, 1979, has been made out, therefore, the appellants may be. convicted accordingly. In support of his contentions he has relied on the case of Muhammad Safdar v. The State 1994 PCr.LJ 62 and the case of Mst. Amir Bano v. Ghulam Hussain and another 1997 SD 420.
11. We have given due consideration to the argumetns and have perused the evidence with the help of learned Advocates for the appellants. We find that the entire case is based upon the evidence of Mst. Sumera. According to her she is about 12 years of age but her stand is not supported by medical evidence as P.W.1 Dr. Yasmin, who examined the victim on the point of rape, also found 14 (7/7-7/7) teeth in each jaw. In the cross-examination she stated that in the case of girl having 7/7-7/7 teeth, the approximate age may be between 13 to 16 years and in some cases in between 13 to 20 years. The medical certificate (Exhibit 18), which is in respect of the determination of the age of the victim shows that the girl was found to have 14 (7/7-7/7) teeth in each jaw. From the physical and radiological examination the medical officer opined in it that the age of the girl was in between 15 to 16 years. Thus, the case of the girl according to medical evidence would be in between 15 to 16 years but the possibility of the victim, at the relevant time, being the age of 16 years or above cannot be ruled out.
12. It is pointed out that in a case of Yousaf v. The State (1975 PCr.LJ 936), after considering the medical evidence and ossification test observed that the same are better guide to determine the age of a person than other test but still they cannot give an accurate estimate of age and there could be margin of either side of at least a year.
13.In another case of Banney Khan v. the State 1975 PCr.LJ 453, at page No,454 it has been observed as under:-- "...Dr. Muhammad Umar, the then Police Surgeon, Karachi, has deposed that on the basis of the clinical and radiological examination of Akhtar-un-nisa he considered her to be between 15 and 16 years of age. It is well established that medical evidence alone, even if it is based on ossification test, is not a sure guide for determining the age of a person, as different charts have been prepared for such test and_ further the process of ossification is dependent on a number of factors, such as claim, heredity, habits and even environment..........
14.It has further been observed in the same authority at page 455 as under:-- "...In the City of Karachi registration of births is compulsory. In the circumstances it should not have been difficult for the prosecution to- have produced an extract from the Municipal Register of Births showing the age of Mst. Akhtar-un-nisa. The absence of such certificate suggests that if it had been produced it may not have been favourable to the prosecution. In any case, the estimation of the doctor that Akhtar-un-nisa was between 15 and 16 years of age cannot be considered to be accurate and the possibility of her having crossed the 16th year of her age cannot be excluded.."
15. Apart from the above medical position about the age of the victim, she has already attained the age of puberty as such she is an adult within the meaning of section 2(a) of the Ordinance, 1979.
16. On the point of incident she stated in her deposition that in the night of 29/30-3-2003 the appellants stayed in an adjacent room and in the morning they took breakfast and then they left the house. Her parents also left the house but at about 9-30 a.m. there was a knock on the door.
She opened the same and found both the appellants standing there. Then the appellant No,2 caught hold of her hand and took her inside the room whereas appellant No,1 locked the outer door of her house and came inside the room. Thereafter, the appellant No,1 put off her Shalwar and underwear and they both tied her hands and feet and put a follow on her mouth and then first the appellant No,2 and then the appellant No,1 submitted Zina with her. During the commission of Zina of appellant No,2 she became unconscious but she regained her senses before the arrival of her parents. After their arrival she informed the incident to them and then the report was lodged. Her mother corroborated her version.
17. From the evidence it is clear that the victim after opening the door, found both the appellants present and after entering the house the appellant No,2 caught hold of her hand and took her inside the room and the appellant No,1 locked the door. The conduct of the appellants was threat to the girl. In such situation the natural course for the victim would have been to have raised cries so as to attract the inhabitants of the adjoining rooms to save her from the clutches of the appellants but she did not do so but on the contrary allowed the appellant No,2 to take her in the room by holding her hand: Not only that but when her Shalwar and underwear were being removed she also did not show any resistance or raised cries. The conduct of the girl appears to show that she herself allowed the appellants to take them inside the . house and treat them in the above manner.
Thereafter it is alleged that her hands and feet were tied but no such marks were found by the medical officer who examined her as such the story of tying hands and feet has not been established in this case. According to P.W.2 Dr. Yasmin no marks of violence were seen over her body. The hymen of the victim was torn old and healed and vagina admitted one finger loose.
Based upon the examination, the medical officer opined that the girl was not virgin. In the cross- examination she stated that the victim was already used and that she did not lose her virginity during the present incident.
18. From the above evidence it is clear that before the present incident Mst. Sumeral was already used and she was not virgin. The non-appearance of any marks of violence over her body and her above mentioned conduct clearly indicates and appears that she was a willing/consenting party to the above acts. However, the statement of. Mst. Sumera with regard to sexual intercourse committed upon her is fully supported and corroborated by the medical evidence and the chemical analyser's report which clearly shows that her clothes were stained with semen and so also the Shalwar of appellant No, 1 . Thus, the prosecution has proved the statement of Mst. Sumera through the corroborative pieces of evidence which is enough to convict the appellants.
18-A. It is alleged that appellant No,2 used to visit Mst. Sumera as there was love affair between them and he wanted to marry her but her mother demanded Rs,100,000 which he could not pay.
However, keeping in view the prosecution story and the story furnished by appellant No,1 and particularly non-appearance of marks of violence over the body of the victim Mst. Sumera, it appears that no Zina-bil-Jabr was committed upon her as she did not resist the action of the appellants but on the contrary she remained passive partner, without showing any sign of resistance.
19. As such, the offence of Zina-bil-Jabr as defined under section 6 of Ordinance, 1979, has not been made out but an offence of Zina as defined under section 4 and punishable under section 10(2) of The Ordinance, 1979, has been made out from the facts and circumstances of this case.
20. The authorities cited above by the learned counsel for the appellants being based on different facts and circumstances are not applicable in the circumstances of the present case except the authority of Asad Abbas (supra), under which conviction was awarded under section 10(2) of the Ordinance, 1979, when the victim was found to be consenting party. Same view was taken in the authorities quoted by the learned A.A.-G.
21. Above are the reasons of our short order, dated 23-10-2002. by which we had dismissed the above appeals by modifying the conviction and sentence awarded by the trial Court to the appellants in the following manner:--"(a)
(a) Appellant Muhammad Adnan is convicted for the offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with sections 6(c) and 7(ii), Anti-Terrorism Act, 1997, and sentenced to rigorous imprisonment for two years and fine of Rs,7,000. In case of default in payment of fine he shall suffer further R.I. for two months.
(b) Appellant Muhammad Mumtaz is convicted for the offence under section 10(2) of the Offence of Zina. (Enforcement of Hudood) Ordinance, 1979, read with sections 6(c) and 7(ii) of Anti- Terrorism Act, 1997, and sentenced to rigorous imprisonment for five years and fine of Rs,25,000. In case of default in payment of fine he shall suffer further R.I. for six months.
(c) The benefit of section 382-B, Cr.P.C. already extended to the appellants is maintained."