1977 P Cr (PLP)

Ch. Bashir Ahmad Chauhan for Petitioner. Pervaiz Alamgir for A.‑G. for the State. Sh. Khurshid Iqbal for the Complainant. Dates of hearing : 29th and 30th April 1976. Zulfiqar Ali petitioner was convicted by a Section 30 Magistrate at Mianwali of an offence under section 376 of Pakistan Penal Code and was sentenced to suffer rigorous imprisonment for a period of three and a half years and 11 stripes. He preferred an appeal before the Sessions Judge, Mianwali. The learned Sessions Judge maintained the conviction as well as the sentence of imprisonment. However, in place of the sentence of whipping he substituted the sentence of fine in the amount of Rs. 1100. He also directed that in default of payment of fine the petitioner should suffer further rigorous imprisonment for a period of one year. The petitioner has come in revision to this Court.

2. According to the prosecution on 4‑4‑1974, at about 2 p.m., Mst. Shamim Akhtar, aged 6 years, went to the house of the petitioner to deliver some dried grams. The petitioner who was about 15 years of age at that time took her to the baithak and started committing rape upon her. She raised an alarm on hearing which Mohammad Amin (P. W. 1) and Ghulam Hussain (P: W. 2) were attracted to the spot. They opened the door of the baithak and saw the petitioner performing the nefarious act. On seeing them the petitioner ran away. Mst. Shamim Akhtar was in a poor shape and bleeding from her private parts. Mohammad Amin (P. W. 1) went to the police station and lodged the F.

1. R. (Exh. PA/1). Subsequently Mst. Shamim Akhtar was examined by a doctor (P. W. 3) who found injuries on her private parts. The doctor prepared some vaginal swabs which were examined by the Chemi cal Examiner whose report is Exh. P. D. 1 on the record. The report indicates that the swabs were stained with semen.

3. The petitioner pleaded not guilty to the charge against him. He denied that he had committed rape upon Mst. Shamim Akhtar and alleged that he had been falsely involved in the case on account of enmity. He did not lead any evidence in his defence.

4. The main evidence against the petitioner was provided by Mohammad Amin (P W 1) and Ghulam Hussain (P W 2) Mst. Shamim Akhtar herself was found to be too immature by the trial Magistrate to be capable of testify ing. No doubt Mohammad Amin and Ghulam Hussain P. Ws. were related to A9st. Shamim Akhtar but there was no reason why they should have falsely implicated the petitioner. Their testimony was corroborated by the medical evidence. There is hardly any evidence on the record indicating any enmity between the witnesses and the petitioner and it was most unlikely that Mohammad Amin and Ghulam Hussain P. Ws. would have fabricated injuries on the private parts of a very young girl in order to set up a false charge against a person with whom they had no enmity. I am, therefore, in agreement with the Courts below that the charge of committing rape upon. Mst. Shamim Akhtar had been fully established from the evidence on the record against the petitioner. The learned counsel appearing for the petitioner also did not challenge the conviction of the petitioner before me.

5. In this criminal revision the only grievance of the learned counsel for the petitioner was that by substituting a sentence of fine of Rs. 1,100 or in default imprisonment for a period of one year in place of the sentence of whipping the learned Sessions Judge had enhanced the sentence of the petitioner which, under section 423 of the Criminal Procedure Code, he was not competent to do. There appears to be merit in the submission of the learned counsel. The sentence of whipping is an entirely different kind of punishment from that of fine and imprisonment in default thereof. It is a difficult task to attempt to equate those two forms of punishments for in carry ing out such an exercise the element of arbitrariness is likely to predominate. The Legislature itself has not laid down any criterion in this regard. Never theless, in Emperor v. Chit Pon (A 1 R 1929 Rang. 177) a Full Bench of the Rangoon High Court did work out the equivalents for the sentence of whipping in terms of the periods of imprisonment but then the scale laid down by it, if I may say so with all respect, furnishes only a very rough guide. The substitution of one kind of punishment with another kind without fear of enhancement is a delicate matter for not infrequently an important factor to be considered in this respect is the physical, mental and financial condition of the convict. This was one of the reasons, which prompted Mitter, J. in Queen v. Banda Ali ((1870) 6 B L R Appen. 95) to declare the whole exercise to be hopeless.

6. Be that as it may, in this case the petitioner was only about 15 years of age at the time of occurrence. For him 11 stripes would appear to consti tute a lighter form of punishment as compared with the rigorous imprisonment for one year which he was to suffer in case he was unable to pay the fine of Rs.1,

100. Even by the scale laid down in Emperor v. Chit Pon, 11 stripes are equivalent to only about 3 or 4 months' rigorous imprisonment. I am, therefore, inclined to agree with the learned counsel that the learned Sessions Judge did enhance the sentence of the petitioner. This he could not do in view of the bar contained in section 423 of the Criminal Procedure Code.

7. The complainant party has been represented before ‑me through Mr. Khurshid Iqbal, Advocate. He has prayed that the sentence of the petitioner should be enhanced by this Court. Considering the age of the petitioner at the relevant time I think the sentence of rigorous imprisonment of three and a half years imposed upon the petitioner by the trial Court and which was maintained by the learned Sessions Judge is fairly substantial. Thus no good ground for enhancement has been made out.

8. For the reasons stated above the sentence of fine and of imprisonment in default thereof as passed by the learned Sessions Judge in substitution for the sentence of whipping is set aside. The other part of the sentence, namely, rigorous imprisonment for a period of three and a half years is, however, maintained. This criminal revision is disposed of accordingly. Order accordingly.