1994 PLP 358 (SCMR)

‑‑‑‑S. 10(3)‑‑‑Allegation of Zina‑bil‑Jabr‑‑‑Swabs were taken from the vagina of victim after 26 days of the occurrence, which were shown by the Chemical Examiner's report as positive‑‑‑Effect‑‑‑Held, it was nearly impossible that semen remained in the vagina of the girl for such a long period‑‑‑Result of swabs thus could not be attributed to the alleged accused whose commission of the offence was stated to have occurred 26 days earlier‑‑‑Medical evidence in such a situation could not safely be relied upon.‑‑‑[Evidence]. (c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑ ‑‑‑‑S. 10(3)‑‑‑Allegation of Zina‑bil‑Jabr‑‑‑ Medical evidence was not worth reliance‑‑‑Ocular evidence produced by witnesses including the victim of, 10/11 years of age and her father and mother was by itself sufficient to prove a charge under S.10(3) against the accused for there was no motive for the parents of such minor girl to implicate a person in an offence which could bring a bad name to their minor girl and put her honour at a stake‑‑‑Even if medical evidence and the report of the Chemical Examiner were excluded from the consideration the prosecution had produced enough material for the conviction of the accused in circumstances. (d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑ ‑‑‑‑S. 10(3)‑‑‑Allegation of Zina‑bil‑Jabr‑‑ ‑Sentence‑‑‑Accused was of tender age and at the time of occurrence he was 17 years of age and had already suffered imprisonment as long as about 6 years‑‑‑Supreme Court reduced the sentence of accused to the period already undergone by him while maintaining the sentence of stripes intact.‑‑‑[Sentence‑‑Age]. Muhammad Bilal, Advocate Supreme Court for Appellant. Ch. Muhammad Akram, Advocate Supreme Court for the State. Date of hearing: 31st January 1993. JUSTICE MUHAMMAD TAQI USMANI (MEMBER).‑‑‑The appellant faced the trial before the learned Additional Sessions Judge‑II, Okara, and was convicted by him under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and was sentenced to 14 years' R.I. and to 10 stripes. The Federal Shariat Court dismissed his appeal on 3‑2‑1991 but enhanced the stripes from 10 to 30 being mandatory under section 10(3).

2. The allegation against the appellant is that on 20‑i1‑87 he committed Zina‑bil‑Jabr upon Mst. Safia P.W.8, minor girl of 10/11years of age. In order to bring home the charge against him the prosecution examined ocular evidence of Mst. Safia Bibi P.W.8, Mst. Rukia Bibi, her mother P.W.6 and Muhammad Shafi her father who appeared as P.W.7. All these witnesses clearly implicated the appellant in the commission of the offence.

3. Leave in this case was granted on the point that swabs taken from her vagina were proved to be positive vide report of the Chemical Examiner Exh. PF while her medical examination took place on 16‑12‑1987, i.e., after 26 days from the occurrence. Since it is nearly impossible that semen remain in the vagina of the girl for such a long period the result of the swabs cannot be attributed to the appellant whose commission of the offence is stated to occur on 20‑11‑1987.

4. After careful perusal of the record with the assistance of the learned counsel of the parties we are of the view that the medical evidence in this case cannot be safely relied upon and should not be used against the appellant. But the ocular evidence produced by 3 witnesses including the girl of 10/11 years of age and her father and mother is by its self‑sufficient to prove a charge under section 10(3) against the appellant. There is no motive for the parents of such a minor girl to implicate a person in an offence which brings a bad name to their minor girl and puts her honour at a stake. Therefore, even if the medical evidence and the report of the Chemical Examiner are excluded from the consideration, the prosecution has produced enough material for the conviction of the appellant.

5. The learned counsel for the appellant submitted that the sentence awarded by the Courts below is very harsh. The appellant is of tender age and at the time of occurrence he was of 17 years of age and has already suffered imprisonment as long as about 6 years. We are inclined to accept this co4tention of the learned counsel. Keeping in view the young age of the appellant we reduce his sentence to the period already undergone by him. Sentence of stripes shall remain intact. With this modification in sentence this appeal is dismissed. A.A./R‑223/S Appeal dismissed.