2004 P Cr (PLP)

Shoaib Zafar for the State. Date of hearing: 16th January, 2004. As per prosecution the appellant' Muhammad Hanif on 18-4-2000 at about 4-00 p.m. committed Zina-bil-Jabr with Nageena Bibi daughter of Farzand Ali the complainant. Nageena Bibi is dumb since her birth. The complainant alongwith other witnesses were passing by the side of wheat fields, they heard the cries of pain. They reached the place of occurrence and saw that appellant was committing Zina with Nageena Bibi. On seeing the witnesses approaching, he left Nageena Bibi and fled away. The appellant was found guilty during investigation and was tried by Mr. Abdul Mannan Khan, Additional Sessions Judge, exercising his power as Judge Juvenile Court, Ferozwala. He after holding trial, held that appellant guilty under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and the appellant being less than 18 years as a juvenile was sentenced to five years' R.I. A fine of Rs.5,000 was also levied on the convict/appellant and in default to suffer three months' S.I. The benefit of section 382-B, Cr.P.C. was extended.

2. During trial, the prosecution examined the complainant Farzand Ali as P W.1. He supported the prosecution case fully and stated that he saw the appellant committing Zina-bil-Jabr with Mst. Nageena his daughter, who was dumb since birth. He was cross-examined at length but nothing could be brought on file to discredit his testimony. The second witness is Muhammad Ramzan. According to him, he was told by the complainant and father of Nageena Bibi that she was missing since about 3-30 or 4-00 p.m. Farzand Rafique and Hakim came to his fields. He was called upon, on which he joined them. Farzand complainant informed the witness his daughter Nageena Bibi was missing. He saw that accused was running away at a distance of one acre, obviously from the place of occurrence, where according to the complainant', Nageena Bibi was being subjected to Zina-bil-Jabr. The next witness is Mst. Manzooran Bibi P.W.9 the mother of the victim Nageena Bibi. According to her after the incident, the victim Nageena Bibi gave details of the occurrence through demonstrations and signs. She stated that she was made to lie down on the ground. Her Shalwar was put off, during which she remained weeping. Throughout the occurrence the victim had a swear pain in her private parts and she did not take meals for 2/3 days, also could not sleep on account of pain and the mental agony. She was bleeding from her private parts, which could not be stopped. She took the victim to the fields i.e. place of occurrence, where the appellant and his four brothers were picking ladyfingers. The victim identified the appellant and pointed out towards him, meaning thereby that he was the person, who committed rape on her. The statement of Lady Dr. Fokia Asif P.W.6 is important. She medically examined the victim Nageena Bibi and described her age as seven years. On her vaginal examination hymen was found torn and was inflamed and was bleeding on touching. One finger could penetrate with difficulty and pain. Vaginal swabs were taken and sent for chemical examination. According to the report of the Chemical Examiner Exh.P.C. the swabs were found to be stained with semen.

3. Relying on these pieces of evidence, the learned trial Judge convicted and sentenced the appellant as detailed supra.

4. The learned counsel for the appellant has argued that Mst. Nageena the victim was produced in Court but the learned trial Judge found that she was not capable of explaining all the details due to her adolescence, dumbness and illiteracy. The statement of the complainant is practically the solitary statement left in the field, which should not be relied upon by the trial Court. The submission is misconceived. It is not only the complainant P.W.1, who is eye-witness. The statement of mother is equally important as she has made a very natural statement. The mother took her to the field. The girl correctly picked up the boy by pointing out her finger towards him. The victim being young and disabled child could not have implicated, him falsely. Then the witness Muhammad Ramzan also lend support to the prosecution evidence, as P.W.2. He saw the appellant running away from near the place of occurrence. It means that the appellant was present at the time of occurrence. This witness although intended to favour the appellant yet he stated that the appellant was found running away from the place of occurrence. The most important witness is statement of the lady doctor, which clearly proves that Nageena Bibi was subjected to Zina. The doctor's report is supported by the report of the Chemical Examiner.

5. The learned counsel in the alternative argued that the appellant is a young boy and was the student of class 8th at the time of the occurrence, therefore, a lenient view should be taken, so that his future career may not be totally impaired. According to the material facts brought on the record, the appellant no doubt was aged about 14/15 years at the time of occurrence. It also remains unrebutted that he was student of 8th Class. The school certificate has been placed on the file. It is true that a lenient view has always been taken regarding youngsters and the students but in the present case, a very heinous offence has been committed by subjecting a child who is born dumb to Zina-bil-Jabr. She kept on suffering both physically and mentally.

6. The learned counsel has very emphatically prayed and pleaded that if a lenient view is adopted, it will help the appellant to reform. The appellant has been awarded five years' R.I. Keeping the appellant's young age in view, I maintain his conviction under section 7 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 however, his sentence is reduced from five years' R.I. to three years' R.I. The fine cannot be levied, therefore, the amount of fine .of Rs.5,000 will be treated, as compensation under section 544-A, Cr.P.C. and the same will be paid to the victim Nageena Bibi through her father. In default of payment of compensation, the appellant will further suffer three months' S.I. Benefit of section 382-B, Cr.P.C. shall be extended. '

7. The appeal is disposed of subject to the `reduction of the sentence. H. B. T./11/FSC Order accordingly.