2010 P Cr (PLP)

HAZIQUL KHAIRI, C.J.

This appeal is directed against judgment dated 17-1-2006 passed by learned Additional Sessions Judge/ Judge, Juvenile Court, Sahiwal, whereby appellant Mustafa son of Waryam was convicted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to four years' R.I. with benefit of section 382-B, Cr.P.C.

2. The appellant was charged under section 10(3) of the said Ordinance to which he pleaded not guilty and claimed trial.

3. Noor Muhammad, complainant got recorded the F.I.R. on 18-10-2003 that in the evening, Faizan Bibi, victim (P.W.4) had gone to purchase some household articles from the shop of one Jalal and while she was returning home and reached near the Dhari of Mustafa, the appellant Mustafa and Ahmad Ali co-accused stopped her. Ahmed Ali dragged her by arm while Mustafa committed Zina-bil-Jabr with her. On the hue and cry of Faizan Bibi P.W. the complainant along with Bashir and P.W Nausher rushed to the spot and saw Mustafa committing Zina with Faizan Bibi and Ahmad Ali co-accused was holding her. On seeing them, they decamped from the spot. Faizan Bibi was soaked with blood. They took Faizan Bibi to her house. In his deposition, the complainant (P.W.5) reiterated the version given by him in the F.I.R. and stated that for two days the accused persons beseeched him for pardon. After two days he lodged the report to the police at Adda Noor Shah where his statement Exh.P.B. was recorded which was read over to him and he put thumb-mark on the same in token of its correctness. He also joined the investigation of this case and produced the clothes of Faizan Bibi i.e. Shalwar P.1 and Kamiz P.2 to the Investigating Officer which were blood-stained who took the same into possession vide recovery memo. Exh.P.D. He attested the said recovery memo. P.W.8 Nausher fully supported the version of the complainant.

4. Faizan Bibi, victim aged about 9/10 years appeared as P.W.4 and deposed that while she was returning from the shop of Jalal and reached near the Dhari of Mustafa, accused Mustafa and Ahmad Ali took her to the Dhari of Mustafa where Ahmad Ali caught hold of her hands and put his hand on her mouth and Mustafa committed Ziadati with her. She raised hue and cry upon which Nausher, Bashir and her father reached the spot and on seeing them the accused persons ran away. She was smeared with blood. Her father took her to the house and she was medically examined.

5. P.W.3 Lady Dr. Shabana Rasool, W.M.O. who medically examined Faizan Bibi, victim stated that no marks of violence were found on the body of the Faizan Bibi. On P.V. examination vulva and vagina were found healthy. Pubic hair were not present. No fresh tear or bleeding was noticed. Introitus admitted tip of finger.

6. Dr. Saeed Azhar Abbas, M.O. (P.W.1) on 9-12-2003 medically examined Mustafa accused with regard to his potency and found that he was aged 18-20 years having average built and was young boy with well-developed secondary sex characteristics. Cremasteric reflex was present and in his opinion he was found fit to perform sexual intercourse under normal course of nature.

7. The main ground urged by the learned counsel for the appellant is that there was a delay of two days which cast doubt to the very story of the prosecution particularly in view of the fact that the accused persons during the intervening period had been approaching the complainant for his forgiveness. This in fact was the period of bargain or blackmail which did not materialize or meet the demands of the complainant. Secondly it was urged that there was no Zina-bil-Jabr as the medical report of P.W.3 falsifies to the effect that there were no marks of violence on the body of Faizan Bibi nor there any fresh tear or bleeding. Lastly it was submitted that the appellant is a young boy with no previous criminal record and the sentence of four years' R.I. for the attempted rape is excessive.

8. I have gone through the entire record of the case and heard learned counsel for the State as well. There is no doubt that the prosecution has fully established its case for attempted rage and to the extent the deposition adduced by it has remained unshaken and convincing. I see no reason to interfere with the impugned judgment. The appeal is accordingly dismissed. N.H.Q./48/FSC Appeal dismissed.