1989 P Cr (PLP)

Date of hearing: 3rd May, 1988. This appeal under section 410, Cr.P.C., is directed against the judgment, dated 15‑10‑1987 of IInd Additional Sessions Judge (West), Karachi, whereby he convicted the appellant, Abdul Salam under section 376, P.P.C. and sentenced him to R.I. for 7 years and to pay a fine of Rs.5,000; in default to suffer R.I. for one year. He has further been directed to pay Rs.5,000 as compensation to the victim girl; in default to suffer R.I. for 6 months more. The case of prosecution is that the appellant and one Saeed used to reside in the neighbourhood. On 27‑12‑1970, at 5‑00 p.m., Salam was alone in the house and he called Yasmin aged 6 years old and sent her to purchase a blade from the shop. She went. After about 25 minutes, Mst. Jamila wife of Saeed heard cries of Yasmin coming from the room of the appellant. She opened the door of the courtyard and rushed to the room where she found that Salam had made Yasmin lie on the bed and her Shalwar was put below the knee. The male organ of Salam was erect which he was rubbing at the urinal place of Yasmin. She was raising cries. Mst. Jamila rescued her daughter and came to the house, raising cries which attracted Noorul Haq whom she narrated the incident. She noticed stains of semen on the Shalwar of the girl. She brought Yasmin to the Police Station where case under Section 376/511, P.P.C. was registered. Police after usual investigation sent up the appellant for trial and Finally he has been' convicted as stated above. Prosecution in support of the case examined complainant Mst. Jamila (Ex.4), Yasmin (Ex.8), Amir Hassan Khan (Ex.9), Muhammad Younus (Ex.10), Wali Khan (Ex. 11), Saeed Ahmed (Ex. 13), Muhammad Siddiq (Ex.15), Abdul Rehman (Ex, 20), Hassan Bano (Ex.22), Sirajul Rehman Khan (Ex. 24), and Muhammad Ahmed (Ex.26). In this case, there is direct evidence of Mst. Jamila. She has supported the case and implicated the accused and stated that she on her own eyes saw the appellant attempting to commit a rape on Yasmin. Yasmin has also fully implicated the appellant and stated that appellant called her on the pretext of getting the blade thereby committed the offence. She was not cross‑examined and her evidence has gone unchallenged. There is sufficient corroboration to versions given by Mst. Jamila and Yasmin. On this, Amir Hassan and Saeed have corroborated that she informed them about the incident. The semen was detected on the bed‑sheet and white Shalwar of Yasmin. On 28‑12‑1970, Yasmin was examined by Dr. Hassan Bano. Her age was found 6 or 7 years at that time. She has stated that attempt was made for sexual intercourse and final opinion depends on the report of Chemical Analyser. She has given the reasons for her opinion. I have heard Mr. Mohammad Ali Shaikh at length and finally he submitted that he does not press the appeal on the merits but argued that this is a case of 1970, and has been decided after a lapse of 17 years; therefore, some leniency be shown in the sentence. It is argued that at the time of incident, appellant was studying in VIIth Class and he was a boy of less than 15 years old and a minor but he does not press this point on the ground that no such evidence was previously produced before the trial Court to bring the case under the ambit of Sind Children Act, 1955, but submitted that this factor may kindly be considered for the award of sentence. Mr. Rashid Tariq Khan appearing for the State submitted that prosecution has proved the case but looking to the circumstances and the delay, he is also of the opinion that sentence may be reduced to three years. This appeal has not been pressed on the merits. Even otherwise, as stated above the prosecution has proved the charge against the appellant beyond reasonable doubt. So far as the sentence is concerned, I am of the view that the case for reduction in the sentence has been made out. In the year 1970, the offence for which the appellant was charged was triable by a First Class Magistrate. The charge for the attempt has been framed for which according to law, any accused is liable for conviction half of the sentence provided for the offence. The case in the trial Court was pending for 17 years and all along this, accused has suffered an agony. No doubt, for sometime he remained absent from the Court but this point has also been considered, as Trial Court has also not been able to complete the case within reasonable time. Not only this, the plea was taken by the appellant that he was student of VIIth Class at the time of incident which factor merits consideration. I, therefore, convert the sentence from 7 years to 3 years R.I. and order fine of Rs.2,000 instead of Rs.5,000 in default to suffer R.I. for 6 months. Appellant to pay compensation of Rs.2,000 instead of Rs.5,000 in default to suffer R.I. for 6 months more. The appellant is also given benefit of section 3,52‑B, Cr.P.C., and his detention as an under‑trial prisoner shall be commuted towards the substantive sentence. With the above modification of sentence, the appeal is dismissed as not pressed and having no merits. M.Y.H./A‑409/K Appeal dismissed.