SHERAZ MAHMOOD Versus State

KH, MUHAMMAD SAEED, C.J.--- This appeal is directed against the judgment of the Shariat Court dated 11-1-2005 whereby the order of conviction of appellant passed by Tehsil Court of Criminal Jurisdiction Mirpur on 19-10-2002 and maintained by the District Court of Criminal Jurisdiction, Mirpur vide order, dated 30-6-2004 was upheld.

2. The brief facts of the case, as disclosed in the F.I.R. by the complainant, are that on September 17, 2000 at 5 p.m. his daughter Aisha Mehrin aged 7-1/2 years visited the shop of accused-appellant in order to buy certain article where she was subjected to alleged offence of Zina-bil-Jabr by the appellant. She after returning from the shop of appellant lie in bed and became unconscious. At about 10 p.m. her senses returned and she told that she was raped by the appellant. According to complainant, he kept quiet at first instance due to fear of having stigma, but when he realized that on account of excessive bleeding, condition of his daughter was worsening, the family members took her to Khurshid Hospital where the staff members told them that they should report the matter to police first. Thereafter he lodged report with the police. On this report a case under section 10(3) of Offence of Zina (Enforcement of Hudood) Act, 1985, hereinafter to be referred as Zina Act was registered.

3. The police started necessary investigation in the case. The victim of offence, according to police, was sent for medical check up. The report was positive. Thereafter while relying on this report too, the accused-appellant was sent to face trial before Tehsil Court of Criminal Jurisdiction, Mirpur. The charge framed by the trial Court was put to accused-appellant under section 242, Cr.P.C. but he denied his guilt and opted for trial. In order to prove the case, the prosecution produced 13 witnesses, namely, Farooq Ahmed, Adeel Ahmed, son of Farooq Ahmed, Aisha Mehrin daughter of Farooq Ahmed, Fazeelat Begum wife of Farooq Ahmed, Lady Dr. Nasreen, Zameer Ahmed son of Muhammad Ayub, Lady Dr. Asima, Abid Mehmood, Taufiq-ur-Rehman, Amir Shahzad, Aftab Ahmed Mir, Nadeem Arif, Sub-Inspector and Kh. Pervaiz Ahmed,. Revenue Officer. Thereafter the accused was again examined under section 342, Cr.P.C. He once again denied his guilt and pleaded his innocence and opted to lead defence evidence. Later on, he produced Muhammad Yunus, Muhammad Azam and Muhammad Altaf as defence witnesses.

4. At the end of trial vide order dated 19-10-2002 the appellant was convicted under section 10(3) of Zina Act to undergo 25 years' rigorous imprisonment along with punishment of whipping of 15 strips. On his appeal, the judgment was upheld by the District Court of Criminal Jurisdiction, Mirpur vide judgment dated 30-6-2004 which judgment even on second appeal was upheld by the learned Judge in the Shariat Court vide judgment under challenge dated 11-1-2005.

5. Mr. Abdul Majeed Mallick, the learned counsel for the appellant, in support of the appeal submitted that the prosecution version was fabricated, inconsistent and self-contradictory and there was no justification for the Courts below to convict the appellant. According to him, the alleged incident, according to prosecution version, took place at 5 p.m. The victim who was accompanied by his brother, Muhammad Adeel, never reported this incident, in the manner in which it is alleged, to anyone including her parents. According to him, the appellant was minor as his age at the time of alleged offence was about 16 years. The shop is located on the main road in the vicinity of thickly-populated houses. The brother of victim, Adeel Ahmed, has not supported the case of prosecution that the rape was committed by the appellant in 'his presence. The report of lady doctor cannot be read in support of prosecution version as Aisha Mehrin has never said that she was ever medically examined by such lady doctor. Moreover at the time when lady doctor appeared for her evidence, Aisha Mehrin was not present in the Court for her identification that she was examined by her. Even the necessary particulars relating to identity of alleged victim were not given by the lady doctor in her report rather there is no identification marks of alleged victim in the report of lady doctor Exh.P.C. In the same way the articles alleged to have contained blood-stains were not sent to Serologist for examination. Therefore, they are missing determination about the report of stains of blood. In these circumstances the alleged evidence of lady doctor and the alleged articles containing the blood-stains are of no help to the prosecution case. He further submitted that the witnesses were introduced at later stage to strengthen the prosecution story. Alternatively it was argued that the appellant was a student of High School whose age was about 16 years, therefore, he was not an adult. His case falls under section 7 of the Zina Act, whereby sentence of either description for a term which may extend to five years or with fine or with both and punishment of whipping not exceeding 30 stripes has been provided.

6. Conversely Ch. Muhammad Azam Khan, the learned counsel for the complainant, submitted that the appellant is named in the F.I.R. He is named by the victim, her brother and parents in their statements before the Court. Their statements are corroborated by the medical evidence. In the peculiar circumstances of case, the prosecution has fully proved its case against the appellant beyond any shadow of doubt. The appellant according to medical report, was capable of intercourse, therefore, in the light of these facts, he has supported the reasoning given in the judgments of the Courts below. His arguments were also owned by the learned Additional Advocate-General.

7. We with the assistance of the learned counsel for the parties have gone through the record of the case and have also taken into consideration the reports of cases relied upon by them. The statement of Farooq Ahmed shows that when he returned to his house he was told by his wife Fazeelat Begum that she had sent Aisha Mehrin, victim of offence, and Adeel Ahmed, brother of victim, on the shop to bring soap etc. His daughter was sleeping over a cot in the courtyard of the house. At 9-00 or 9-30 p.m. when they got together for taking dinner, his wife went to wake up her daughter and took her for natural call (urinating). She found that the trouser of girl was stained with blood and on query she told her mother that when she went on the shop to bring soap, the accused-respondent committed Zina with her. Adeel Ahmed, the brother of victim, in his examination-in-chief stated that when they went to the shop of accused, the accused caught hold of her sister and took her in his lap and did nothing else. He and his sister came together to their house and his sister latter on slept over a cot. The exact words used by him are as follows:--

Aisha Mehrin appeared in the Court. She stated that Sheraz caught hold of her and closed the door and with her did "Ziadti". Adeel Ahmed remained standing outside the shop. According to her, while proceeding towards shop, she and Adeel Ahmed met Zamir Ahmed, Abid and Amir. These persons also went to hospital. According to her, she was taken to Akalgarh Hospital and in no other hospital. At the time of recording statement, her age was reported as 10 years whereas the age of her brother Adeel Ahmed was 11 years. She has not stated that she was examined by any doctor in the hospital. Fazeelat Begum, the mother of victim, has narrated a different story. According to her, first the victim was taken to Khurshid Hospital. The officials of that hospital directed them to take the girl to Mirpur Hospital and also advised them to report the matter to the police. She has stated that Zamir Ahmed was her son-in-law, who is witness to the occurrence. The other witness, Amir Shahzad, is her nephew and Abid Mehmood, the other witness, is his brother-in-law. Taufiq Ahmed and Muhammad Amin are also her close relatives. She has admitted that the accused is a student but has disclosed her ignorance about the class in which he was studying in those , days. Exh.P.C. is the report of lady doctor Nasrin. She has admitted that she has mentioned in the medico-legal report that no mark of violence on genital were observed. Zamir Ahmed has stated that on the day of occurrence both Aisha Mehrin and Adeel Ahmed met him on their way to shop of accused-appellant. He asked from them where they were going. They told him that they were going on the shop of accused-appellant. Abid Majeed has stated that the accused was sitting on his shop. Aisha Mehrin was weeping and Adeel Ahmed was standing with her. He asked from the children but they did not reply. Then he advised the children to go to their home.

8. In the light of aforesaid evidence, the learned counsel for the appellant argued that the accused-appellant has been wrongly implicated in this case. There is no evidence of rape against him. In the same way the girl who was produced before the lady doctor, her identification has not been disclosed in the certificate. Even she was not produced before the Court on the date when her statement was recorded. Therefore, it cannot be said that the rape was ever committed with Aisha Mehrin. According to learned counsel for the appellant, it is unnatural that if the rape was committed with the sister, the brother who was elder in age to her, did not raise any hue and cry and even did not disclose this fact to his close relative, Zamir Ahmed and others. We have considered this argument but unfortunately we are not convinced that the father could falsely blame appellant for the offence of rape with his minor daughter as that would jeoperdize her future. Moreover, no enmity between the accused and complainant is established on record. Even no suggestion to that effect has been made. Despite the aforementioned weaknesses in the evidence, we cannot say that a false case has been concocted against the accused-appellant.

9. The age of accused-appellant at the time of commission of offence as disclosed by him and accepted by the Court was 16 years. Under section 2(a) of Zina Act, the "adult" has been defined as follows:-- "" adult" 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."

Thus, in the case of male person, he shall be deemed to be adult if he has attained the age of 18 years or has attained puberty. In this case the accused-appellant was produced before the doctor who vide Exh.P.K. (page 26) opined as follows:---

" Certified that I have examined Mr. Sheraz Mehmood son of M. Altaf. I found no organic lesion to cause impotent him at the time of examination."

According to the doctor, the accused was capable of committing intercourse. However, the doctor in this case has not mentioned the other corroborative factors in his report. In Modi's Medical Jurisprudence and Toxicology, 1979 (2nd Edition page 303) it has been stated as follows:--

"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. In the present case unfortunately no such symptoms have been mentioned by the doctor in his report. When anything positive is missing from the report then in such cases the presumption would be in favour of an accused person because it is a celebrated principle of law that when two explanations of a particular situation can be drawn, then one favourable to the accused is to be preferred. In this case as the aforementioned symptoms are not mentioned by the doctor, therefore, the presumption would be that these were not in existence as such were not mentioned by him in his report Exh.P.K. From this evidence it follows that the appellant was not an 'adult' at the time of commission of offence and his case is covered by section 7 of Zina Act which provides as follows:--

" Punishment for Zina or Zina-bil-Jabr where convict is not an adult.-- - 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 strips:

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. "

11. In view of above, this appeal is dismissed on merits. However, the case of appellant being covered by section 7 of Zina Act, his sentence is reduced to 5 years' rigorous imprisonment along with punishment of whipping numbering 15 strips and a fine of Rs.15,000.

H.B.T.23/SC(AJ&K) ?????????????????????????????????????? Order accordingly.