BAYAZEED ALIAS KALI Versus THE STATE

ABDUL REHMAN KHAN KAIF, J. -- This criminal appeal by Bayazeed alias Kali son of Karim resident of Basti Abdur Rehman, Mauza Takht Mahal Utar Tehsil and District Bahawalnagar, is directed against the judgment of the learned Sessions Judge, Bahawalnagar, dated 2-11-1987, whereby the appellant was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance), having been found guilty of committing Zina-bil-Jabr with one Mst. Halima Bibi, daughter of Badar Din, aged about 11/12 years of the same village. He was sentenced to ten years' R.I. and whipping numbering ten stripes.

2. The facts of the case briefly stated are that on 20-2-1986 on the report of Mst. Halima Bibi, a case was registered under the mentioned provisions of law, vide F.I.R. 23-86 in Police Station Takht Mahal, Tehsil and District Bahawalnagar, against the appellant, but it transpires from the record that the same was subsequently cancelled after some investigation by the concerned officials. The occurrence, according to that report, had taken place at noon time on 19-2-1986, whereas the report was made on the following day i.e. 20-2-1986 at 12-30 p.m.

3. Feeling aggrieved Mst. Halima Bibi, the prosecutrix, filed a private complaint on 23-4-1986, containing the same allegations. Proceedings were initiated and ultimately the accused was tried by the learned Sessions Judge, Bahawalnagar, for the abovementioned offence and was convicted and sentenced as stated above.

It was stated in the complaint filed by Mst. Halima Bibi that about two months back she was playing in a street alongwith other children, when one Mst. Ghulam Fatima came there and asked her to accompany her for cutting grass. She accompanied her with the permission of her mother. When they reached in the field of one Ali Muhammad and were busy in cutting grass, the accused Bayazeed alias Kali came out of the wheat crop, took her to a nearby Khal, pulled off her Shalwar and started committing sexual intercourse with her against her will. In the meantime, Mst. Ghulam Fatima had left the spot. It was stated that upon her shrieks, Muhammad Hanif son of Bahawal, Sheikh Muhammad son of Hassan Ali, Hanif and Allah Ditta son of Muhammad Yar, came there and on seeing them the accused fled away. She was seen bleeding from her vagina. She put on her Shalwar and left for her house in the company of her father, where she narrated the mentioned facts to her mother. It was stated that due to pain she was unable to go to the police station and as such lodged the report on the following day.

5. Since the sentence of whipping awarded was not in accordance with the mandatory provisions of the law under which the accused was convicted, a notice of enhancement of sentence of whipping was served on the appellant through his counsel, which was accepted.

6. During the trial, the complainant examined as many as six witnesses in support of the case, Lady doctor Durdana Anjum had examined the complainant on 20-2-1986 and had found no marks of violence on any part of her body. As a result of her internal examination, her hymen was found torn. The edges were found fresh with slight bleeding present. Her vagina admitted one finger with severe pain. She took three vaginal swabs, which were sent to the Chemical Examiner for detection of semen. According to her opinion positive signs of sexual intercourse were present, however, the final opinion was deferred till the receipt of the result from the Chemical Examiner. After the receipt of report of the Chemical Examiner, she opined that the examinee was subjected to sexual intercourse without discharge because the swabs were not found stained with semen.

7. Bashir Ahmad, S.I. (P.W.2) had recorded the F.I.R. on the statement of Mst. Halima Bibi, while Mst. Halima Bibi (P.W.3) has reiterated the same facts as were mentioned in the complaint. Mst. Manzooran (P.W .4), mother of the prosecutrix, has deposed that her daughter Mst. Halima Bibi had accompanied Mst. Ghulam Fatima to the fields for cutting grass, but later on she was brought by her father to the house and on her return she narrated all the relevant facts of the incident to her. Sheikh Muhammad (P.W.5) and Badar Din (P.W.6) are the alleged eye-witnesses of the occurrence, who have stated that they had reached the spot on hearing the cries of Mst. Halima Bibi. According to them, they saw Mst. Halima Bibi lying in a Khal without Shalwar on her person and bleeding from the vagina. The accused, according to them, ran away and the prosecutrix informed them that she had been forcibly subjected to Zina by him, whereupon she was brought back to her house by her father accompanied by the other witnesses mentioned in the complaint.

8. When examined under section 342, Cr.P.C. the accused denied the allegations and stated that he had been involved in the case on account of enmity. In that connection he has furnished the following explanation:

"We have long standing enmity with the mother of the complainant and 12 years back when Badar Din, the father of the complainant was abusing my mother, I intervened and in return Badar Din gave me beating, for which I decided to report to the police but in retaliation they managed to file a case against me."

The accused also appeared in his defence and made a statement on oath as required under section 340(2), Cr.P.C. wherein he repeated a similar version. In his defence, he has examined Falak Sher son of Muhammad Ali (D.W.1) and Allah Ditta son of Muhammad Yar (D.W.2). Both these witnesses were mentioned in the F.I.R. as eye-witnesses, but they have not supported the prosecution version and have clearly stated that they did not witness the occurrence as mentioned in the F.I.R.

9. We have heard the learned counsel for the parties and have gone through the material on the record with their assistance.

10. Learned counsel for the appellant contended that the accused was of a tender age being a student of ninth class and his date of birth had been recorded as 14-8-1974 in his school. He accordingly submitted that in case of conviction, he was liable to be convicted at the most under section 7 of the said Ordinance, but the learned trial Court has completely ignored that aspect of the case. He further contended that there was a delay of more than 24 hours in lodging the F.I.R. but no plausible explanation was furnished for such a delay. He also made a reference to the police case and contended that for very good and genuine reasons, the version of the prosecutrix was not believed and the case registered in the police station was cancelled. He also made a reference to the statements recorded in the trial Court and submitted that the evidence was recorded in the absence of the defence counsel without affording any opportunity for cross-examination, which had resulted in the miscarriage of justice. In the course of his arguments, he also referred to some contradictions in the statements of the prosecution witnesses appearing in the case and submitted that the learned trial Court had no justification to record conviction on the basis of the solitary statement of the prosecutrix.

11. So far the contention of the learned counsel for the appellant relating to the delay is concerned it has no force. In the instant case the occurrence took place on 19-2-1986 at 'Zohar' time and the report was lodged on 20-2-1986 at 12-30 p.m. containing proper explanation. It has also been stated that she was feeling pain and was unable to proceed to police station immediately after the occurrence. Both the explanation appear quite plausible in the circumstances and that much delay in lodging the report in the police station, which was at a distance of thirteen kilometres from the place of occurrence was but natural. Moreover, the argument would have some force if there had been any doubt about the identity of the accused and it had been shown that time was consumed in consultations and deliberations to build up a story and to involve a particular individual. The facts of the case are, however, different and as such the accused would not derive any benefit on account of that much delay.

12. As regards the contention of the learned counsel for the appellant, concerning the cancellation of the police case, we find the submissions made in that connection without any substance for the simple reason that the case in question was cancelled for no genuine and good reasons and such cancellation which appears to be based on mala fides should not stand in the way of the complainant to seek, justice.

13. As regards the objection with regard to the medical evidence, it is correct that according to the report of the Chemical Examiner, the vaginal swabs sent to that office were not found stained with semen, but this fact is not to be ignored that according to the definition of Zina penetration is sufficient and for that reason the lady doctor had opined that there were positive signs of sexual intercourse and that the examinee was subjected to sexual intercourse without discharge. In circumstances, the commission of Zina has been proved through medical evidence, irrespective of the fact whether it is supported by the report of Chemical Examiner or not. His objection with regard to proceedings in the trial Court has also no real importance for the reason that it has nowhere been shown that due to that fact any patent illegality resulting in miscarriage of justice had been committed. The record on the other hand, revealed that the learned counsel had availed full opportunity of cross-examining the witnesses appearing in the case. As regard the discrepancies and contradictions referred to by the learned counsel in his arguments, we are of the view that they were not quite material. Even otherwise when witnesses are examined after such a long period of the occurrence, minor contradictions in the statements of the witnesses of that nature are but natural.

14. Coming now to the merits of the case, we find that the prosecutrix, Mst. Halima Bibi and her father Badar Din have fully supported and corroborated the version as given in the complaint. In the instant case, the prosecutrix is a young girl of 11/12 years of age having no motive for the false implication of the accused. The argument of the defence counsel that the appellant had been substituted, for someone else, is also a far fetched idea as substitution in such cases is a rare phenomena which is to be specifically proved. The arguments of the defence counsel that due to the admitted quarrel between the two families as stated in para. 11 of the complaint the plea of his false implication was plausible cannot be accepted for the reason that the victim was a young girl of tender age, who has fully corroborated the contents of the F.I.R. and no sound and genuine reasons for false charge of Zina by the young girl involving her own reputation and honour is available on the record. Furthermore, the quarrel referred to was of a very minor nature and no sane person would go to that extent by falsely involving a person putting her honour and reputation at stake.

Even if it is assumed for the sake of arguments that the father of the victim was neither present near the spot nor was he capable of giving eye-witness account, even the statement of Mst. Halima Bibi, the prosecutrix supported by clear medical evidence is more than sufficient to bring home the charge against the accused in the given circumstances. In the instant case, the occurrence took place in a broad daylight and the appellant was fully known to the prosecutrix, the question of mistaken identity, therefore, does not at all arise in the circumstances.

For the reasons stated above, we are of the well-considered view that the prosecution has fully succeeded in proving the case against the appellant about the commission of forcible Zina with Mst. Halima Bibi.

15. The next question which requires determination in the instant case is whether from the facts available on the record, the appellant is entitled to the benefit of section 7 of the said Ordinance as pointed out by the learned counsel for the defence.

In the instant case the age of the appellant at the time of recording his statement under section 342, Cr.P.C. was shown as 18 years. No efforts have, however, been made to produce evidence about the age of the accused during the trial, so much so, that he was not even medically examined in this case. From the report of the Chemical Examiner, it is evident that the swabs were not found stained with semen. As already stated the lady doctor has given opinion that Mst. Halima Bibi was subjected to sexual intercourse, but it was without discharge.

16. Section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, reads:-

"A person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both and may also be awarded the punishment of whipping not exceeding thirty stripes;

Provided that, in the case of Zina-bil-Jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment.

'Adult' according to section 2(a) of the said Ordinance 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.

The term 'puberty' is defined in Sharia, in case of male as a stage of age when he may have wet-dreams or may ejaculate or impregnate. (See Fath-ul-Qadeer by Imam Ibn Hamam, Vol. 8 page 201 and Ainul Hidaya, Vol. 3 page 747).

In Butterworth's Medical Dictionary Second Edition (page 1408) puberty is defined as 'epoch in a person's life at which the sex glands become active. In the male, testees enlarge and spermatocy to genesis begins. The external genitalia increase in size, hair develops on the face, trunk, the axillae and the pubic region; the larynx grows and the voice becomes deeper. There is considerable muscular development and body growth, associated with important psychological changes.

This matter was also considered by Modi. He says:-

"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 larynix leading to the deepening of the pitch of the voice." (Modi's Medical Jurisprudence and Toxicology, 1979 22nd Edition page 303).

17. From the above it becomes clear that if there is any evidence of ejaculation by the male during intercourse he shall be considered as adult and shall not be entitled to the benefit of section 7 of the said Ordinance. The medical evidence about capability of the male for committing sexual intercourse alongwith the report of the Chemical Examiner on the analysis of vaginal swabs taken by the lady Doctor during the medical examination of the victim is considered sufficient evidence of adult-hood of the male. In the instant case, however, the prosecution has not proved by medical evidence that the appellant had attained puberty and this could also be proved by the Chemical Examiner's report on the swabs, if it had been positive, but in the instant case, the report in that connection, is in the negative. In these circumstances, the appellant would be entitled to the benefit of section 7 of the said Ordinance, because of the age limit of eighteen years for adult-hood.

18. Keeping all the above facts in consideration, we are, therefore, of the view that the evidence on the record does not clearly show that the appellant was adult at the time of occurrence. He has been proved guilty of Zina-bil-Jabr, but have not been clearly proved to be an adult at the relevant time. His case, therefore, falls under section 7 of the said Ordinance.

19. For the reasons stated above, the appeal of Bayazeed alias Kali son of Karim, appellant, is partly allowed. His conviction under section 10(3) of the said Ordinance is converted to section 7 of the said Ordinance and the sentence of imprisonment is reduced to R.I. for five years only. The other sentences are set aside. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.

S.A./391/F.Sh. Appeal partly accepted.