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Criminal Revision No. 136 of 1969, decided on 18th June 1969.

S. 5----Sentence‑Accused guilty of rape not more than 13 years of age at time of occurrence‑Inadvisable on part of Courts to lodge them in ordinary jail‑Aid of S. 5, Probation of Offenders Ordinance, 1960, held, could be properly invoked in circumstances‑Accused put on probation.

Aftab Farrukh and Rashid Aziz for Petitioners.

Mahmud Akhtar for the State.

Date of hearing : 18th June 1969.

Muhammad Jamil (13) and Nazir (13), residents of Jalalpur Bhattian, were sent. up for trial under sections 366 and 376, P. P. C. to the Court of S. A. Zulqarnain, P. C. S., Sub‑Divisional Magistrate. Hafizabad. He found both of them guilty under section 366, P. P. C., and sentenced them to undergo R. I. for a period of 11 years. He held Nazir guilty under section 376, P. P. C. and sentenced him to suffer R. I. for a period of two years. Muhammad Jamil was found guilty under section 376/109, P. P. C. and sentenced him to suffer 1 years R. I. The sentences under both the counts were ordered to run concurrently. In addition they were awarded five stripes each. On appeal, the learned Additional Sessions Judge, Lahore at Gujranwala, rejected their appeal in toto. This is a revision petition.

2. The circumstances which led to this trial are these. On 10th May 1967, Mst. Parveen Akhtar, a girl of 9/10 years, was playing in front of her house. Both the accused came there. Muhammad Jamil accused caught hold of her by her arms while Nazir accused gagged her. They carried her to the house of Muhammad Jamil which is in close proximity to her house. She was taken to a room and put on a cot. Nazir accused removed her trousers while Muhammad Jamil caught hold of her. Thereafter, Nazir committed rape on her. Both the accused threatened her not to raise alarm. The cries of the girl attracted Muhammad Yousaf, Hadi Hassan and Qamar Ali P. Ws. to the scene of occurrence. Seeing them the accused decamped. They saw Mst. Parveen Akhtar in a pitiable condition. She was lying on the floor and her shalwar had been removed up to her ankles. Mst. Parveen Akhtar apprised them of the incident.

On the day of the incident her father, Wazir Ali, was absent. He took Mst. Parveen Akhtar to Police Station Jalalpur Bhattian and lodged F. I. R. at 5 a.m. on 11th May. 1967. By that time Mst. Parveen Akhtar had already been examined by Doctor Nazir Ahmad Anwar. She produced her medieo legal report before the police. She also produced her blood stained shalwar. The same was taken into possession and made into a sealed parcel vide memo. Exh. P. B. Raja Muhammad Akhtar, A. S. I. arrested the accused and got them medically examined. He sent Mst. Parveen Akhtar for medical examina tion.

3. Lady Doctor Hamida Sultana, who examined Mst. Parveen Akhtar on 15th May 1967, took swabs from her vagina and forwarded to the Chemical Examiner. She found that hymen was torn and she was bleeding from the vagina. According to the report of the Chemical Examiner semen was detected on these swabs.

4. Doctor Nazeer Ahmad Anwar. who examined Mst. Parveen Akhtar on 10th May 1967, at 8 p.m. found that she was bleeding profusely from the vagina. Vaginal swabs sent by him to the Chemical Examiner for analysis were also found to be stained with semen. He also examined Muhammad Jamil and Nazir accused and opined that they were fit to perform sexual act.

5. Mst. Parveen Akhtar supported the prosecution case in its entirety. She stated in cross‑examination that before the arrival of the eye‑witnesses the accused had escaped from, the back door of the house. To a like effect is the evidence of Muhammad Yousuf, Hadi Hassan and Qamar Ali who were examined as eye witnesses of the occurrence.

Be that as it may, the story of the prosecutrix is corroborated by these eye‑witnesses that Mst. Parveen Akhtar apprised them of the incident immediately after the occurrence and named the accused as her assailants.

6. I have given the matter my most anxious consideration and find no reasons to doubt the testimony of the prosecutrix. The evidence of the medical expert corroborates her version that she was raped.

It is true that Muhammad Yousuf and Hadi Hassan claimed that they were examined by the Investigating Officer that very night and that the matter was reported to the police by 4‑30 p. in. while the Investigating Officer, Raja Muhammad Akhtar, denied it. It might be correct that the statement of Mst. Parveen Akhtar was recorded after the investigation was taken in hand, but that would not discredit the prosecution story of the incident. Considering all the evidence on the record I am convinced that both, the accused had been rightly convicted. I uphold their conviction.

7. The question of sentence requires consideration. On the record there are school certificates of Muhammad Jamil any Nazir, according to which Muhammad Jamil was born on 7th May 1954, and passed his middle standard examination in the year 1968, securing first division. Muhammad Nazir according to the certificate was born on 28th April 1954, and passed his middle standard examination in second division in the year 1968. Officially, at the time of the incident they were 13 years of age. Considering their age it was inadvisable on the part of the Courts below to lodge them in ordinary jail. At the age of 13, when a boy had just come to the age of puberty, he might do many things which he would never think of doing when he was old one. It is even possible that he might become a useful citizen. In the circumstances it would have been appropriate for the Courts below to invoke the aid of section 5 of the Probation of Offenders Ordinance, 1960, instead of sentence in them. In consequence, I order, that Muhammad Jamil and Nazi shall remain on probation for a period of one year.

Learned counsel for the accused undertakes that the prisoners would enter into bonds with an undertaking that they would commit no offence and that they would keep the peace and of good behaviour during the period of the bond.

As the accused had to enter into a bond, therefore, they should be sent for 30th of June 1969. On their furnishing bonds as indicated in this order, they would be released forthwith.

A copy of this order may be sent to the Director Reclama tion and Probation, West Pakistan, Lahore, and the Chief Probation, Officer of Gujranwala District through the District Magistrate, Gujranwala, for necessary action and compliance.

Revision rejected.

Sentence commuted.

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