1973 PLP 488 (SCMR)

MUHAMMAD GUL, J.‑This appeal by special leave is by Maqbool Hussain, a boy of 16 years. He was tried by a Magist rate, First Class, Multan, exercising powers under section 30, Criminal Procedure Code, for the offences under sections 364‑A and 376/511, Pakistan Penal Code, and convicted of the former and sentenced to detention in the Borstal Jail for a period of 7 years but acquitted of the latter and his appeal to the High Court against his conviction and detention has failed. The facts are few and simple. Bhawal Bakhsh P. W. 1, a resident of Kumhar Mandi in Multan, along with his daughter Mst.Nasreen aged about 6 was on a visit to his parents‑in‑law on 16th February, 1966 in Basti Diara, a suburb of Multan. At about 3 p. m. he was asleep while his daughter Nasreen was playing close by under a bahr tree. The appellant finding the girl alone lured her to a deserted house some distance away on the pretext of treating her with 'bers'. Khalil Ahmad (P. W. 4) saw the appellant taking the girl towards the deserted house. Shortly thereafter, Barkat Ali (P. W. 3) and Muhammad Hussain (P. W. 6) who happened to pass the deserted house, were attracted by the cries of the girl. They hastened towards the house to find the girl lying on the ground with her trousers taken off and the appellant bent over her in the posture peculiar to committing sexual intercourse on a female. Being thus surprised by Barkat Ali and Muhammad Hussain, the appellant took to his heels with his chaddar over his shoulder. Barkat Ali and Muhammad Hussain took the girl to her father and apprised him of the incident. The girl's father did not report the incident to the police until the following day at about 2 p. m. when he met A.S.I. Muhammad Hussain (P. W. 7) in Chowk Shah Abbas and gave the statement (Exh. P. W. 1/A) which was formally registered at the Police Station Multan Saddar as F.

1. R. (Exh, P. W 5/A). The girl was not examined in the case, because, in the opinion of the trial Magistrate, she being of tender age, she was not a com petent witness, according to the standard laid down by section 118 of the Evidence Act, 1872. On 22‑7‑1966 she was medically examined but only as to her age which was certified to be between 6 and 7 years. Thus the prosecution case rested on the statement of Khalil Ahmad who saw the appellant taking the girl to the uninhabited house and Barkat Ali and Muhammad Hussain both of whom surprised the appellant while he was preparing to commit sexual intercourse with the girl. The appellant pleaded alibi and characterised the case as outcome of enmity of the said three principal witnesses with his uncle Muhammad Hussain (D. W. 8). That Khalil Ahmad, Barkat Ali and Muhammad Hussain P. Ws. are related inter se is beyond doubt. They are not however directly related to the girl's father Bhawal Bakhsh except perhaps remotely through marriage. Leave was granted to re‑examine evidence in the case, because its appraisal in the High Court did not appear satisfactory. On the basis of the facts set out above, it was argued by learned counsel for the appellant that the offence for which the appellant was convicted has not been proved beyond any reason able doubt. The argument was that there was inordinate delay in reporting the matter to the Police which coupled with the interested nature of the evidence produced by the prosecution, falls far short of sustaining the appellant's conviction for the serious charge under section 364‑A. We consider the argument to be without substance, It is impossible to believe that Bhawal Bakhsh should come from Kumhar Mandi to Basti Diara and consent to bring infamy to his infant daughter to oblige the three principal prosecution witnesses merely to harass Mohammad Hussain (D. W. 8) by falsely implicat ing his nephew. The suggestion is extravagently fanciful and was rightly rejected by the trial Magistrate and the High Court. The delay in making the report is also understandable in the peculiar circumstances of the case. 1t is merely indicative of the hesitancy of the father to initiate the proceedings involving sex offence against his infant daughter particularly when the attempt to commit the offence did not succeed. Learned counsel for the appellant also argued that the facts alleged by the prosecution, even if accepted, would not amount to an offence under section 364‑A, P. P. C. There can be no manner of doubt that Mst. Nasreen, while she was engaged in playing, remained in the lawful custody of her father, which was terminated, as soon as she was induced to accompany the appellant towards the deserted house for no other purpose than to satisfy his animal lust. These two ingredients being satisfied, the conviction of the appellant for an offence under section 364‑A, P. P. C. becomes unquestionable. There is no merit in the appeal which is dismissed. Appeal dismissed.