KHIZAR HAYAT Versus STATE

This is Jail Appeal filed by Khizar Hayat son of Faqir Muhammad through Superintendent, Central Jail, Faisalabad, against the judgment dated 24‑10‑2000 passed by Ch. Muhammad Ikram, learned Special Judge under A.T.A., Faisalabad, whereby the appellant was convicted under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to imprisonment for life, twenty stripes and a fine of Rs.1,00,000, in default whereof to further undergo R.I. for six years. The appellant was also convicted under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 25 years' R.I., twenty stripes with a fine of Rs.1,00,000 failing which to undergo six years' R.I. He was further convicted under section 7(ii) of A.T.A. and sentenced to life imprisonment with a fine of Rs.1,00,000 in default whereof to further undergo R.I. for six months.

2. The prosecution case in brief is that Mst. Razia daughter of the complainant aged about ten years went out of her house on 13‑4‑2000 to play outside but did not return. A search was made by the father along with Muhammad Boota and Bagh Ali P.Ws. When they reached near the Dera of Allah Hoo Wala, they heard some shrieks and saw that Khizar Hayat appellant was committing Zina -bil‑Jabr with Mst. Razia. On seeing the witnesses, the appellant tried to run away after leaving Mst. Razia naked at the spot, anyhow, he was overpowered and was handed over to Muhammad Ashraf, S.‑I. The statement of the complainant was recorded by the police on which a case was registered against the appellant. On completion of the investigation, the appellant was sent up to face trial in the above‑referred Court.

3. The prosecution examined nine witnesses in support of its case. Out of them statement of Dr. Salma Liaqat P.W.1 is important. She medically examined Mst. Razia and recorded her observations as under:‑‑

"A girl 8/9 years of age, well oriented with time and space axillary and pubic hair were not present.

Breast were no developed. Marks of violence‑Nil.

P.V. Slight redness region of introitus. Hymen intact.

3 swabs taken from the region of intriotus and sent to the Chemical Examiner, Lahore for detention of semen and grouping, Exh.P.B. is the correct carbon copy of Medico legal Report of Mst. Razia which is in her hand and bears her signatures."

4. Gulzar Ahmad P.W.4 and Muhammad Boota P.W.6 were examined as eye‑witnesses. They reiterated the statement as already made by Gulzar Ahmad before the police and stated that they saw the appellant was committing Zina‑bil‑Jabr with Mst. Razia. Mst. Razia victim was examined as P.W.5. She stated that she was playing outside the house, accused enticed her away on the pretext of giving her five rupees and he after removing her Shalwar committed dirty act with her. On hue and cry, her father and uncle were attracted to the place of occurrence. The rest of the witnesses are formal in nature, except Muhammad Ashraf, S.‑1. P.W.9 who conducted the investigation and after completing the formalities and recording the statements of witnesses under section 161, Cr.P.C. found the appellant guilty and challaned him to Court.

5. The learned counsel who has appeared on behalf of appellant on State expense has referred to the statement of the appellant under section 342, Cr.P.C. wherein, he pleaded that in fact nobody saw the occurrence, the girl came back home crying and complained that someone had committed dirty act with her in the grave yard, a search was made, he was sitting there in the graveyard smoking heroin and was apprehended as a suspect and handed over to the police. The defence version on the face of it, not only appears to be false and total lie rather preposterous and unacceptable. Mst. Razia is quite a grown‑up girl and could not in any manner forget the identity of her assailant. The defence raised by the appellant is therefore, repelled.

6. The prosecution has successfully proved its case that Mst. Razia was taken away by the appellant while she was playing and was allured to accompany him up to a Dera which is a deserted place, as such offence of kidnapping has been constituted. From the perusal of the evidence, she was subjected to molestation as well. Although the offence of molestation is included in the schedule but same has not been defined, however, taking its dictionary meaning, it means to interfere with in a troublesome or hostile way: to annoy etc. When the victim was made to remove Shalwar and thereafter, subjected to indecent and immoral hostilities, offence of molestation as envisaged by the section stand established. However, as regards the offence of Zina‑bil‑Jabr, only the medical evidence can reveal as to what act was actually committed. Without entering into indecent details, considering that hymen remained intact and there was no mark of violence on the body, it appears that although the appellant kept on making advances in performance of sexual act but no penetration was in fact committed which is a necessary ingredient for the completion of the offence. The learned counsel appearing on behalf of the State has emphatically argued that existence of penetration is not material, even simple penetration in the genitalia would be sufficient to constitute the offence of rape. In support of her arguments, she has referred to the relevant observations from Medical Jurisprudence by Dr. Moodi, according to which absence of marks of violence in case of a young victim would not be material because being young and infirm she could not be in a position to raise strong or forcible resistance because the marks of violence occur if effective resistance is made to the act. In her opinion absence of marks of violence in any manner does not mitigate or reduce the gravity of the offence. Similarly, with regard to doctor's opinion that hymen was intact, it is argued that in case of a young child, absence of any tear or rupture in the hymen is not by itself sufficient to hold that she was not subjected to intercourse. The argument advanced or the expert opinion referred from Moodi, cannot be ignored or treated without substance. Their relevance or even authenticity cannot be doubted, yet the fact remains that act was not committed with such a ferocity or wildness which could result in rupture or tearing of hymen. No doubt the appellant by committing that act on a child of about 10 years has committed a barbaric act and the prosecution has successfully proved its case. However, while determining the quantum of sentence, the necessary facts and circumstances cannot be ignored. The sentence should commensurate with the offence actually committed by an offender. The offence and the punishment have to be weighed in scales by taking into consideration the facts as proved without being swayed with emotions or obsessed with sense of retribution. Keeping in view the above factors, it is held that although the prosecution has successfully proved the charge under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and appellant has been sentenced to imprisonment for" life with twenty stripes and a fine of Rs.1,00,000 but I am of the view that same is excessive which is therefore, reduced to ten years' R.I. with a fine of Rs.10,000 in default whereof to undergo further one year R.I.

Similarly, offence under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 also stands proved and appellant has been sentenced to 25 years' R.I., twenty stripes and Rs.1,00,000 fine, but on the same criteria is hereby amended and reduced to ten years' R.I. with a fine of Rs.10,000 in default to further undergo R.I. for one year.

Charge under section 7(ii) of A.T.A. also stands proved and the appellant stood convicted and sentenced to life imprisonment with a fine of Rs.1,00,000 this sentence is also amended and reduced to ten years' R. I. with a fine of Rs.10,000 failing which to further undergo one year R.I.

7. Needless to observe that the appellant has been sentenced to stripes also, but on account of abolition of sentence of whipping, the same cannot be executed, therefore, the sentence of whipping under sections 10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, is inexecutable.

8. This appeal is dismissed, however, with the reduction in sentence as noted above vide para. No.6. All the sentences shall run concurrently and benefit under section 382‑B, Cr.P.C. will be extended.

N.H.Q./K‑92/L Sentence reduced.