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Criminal Revision No. 189 of 1980, decided on 30th April, 1980.
----S. 439 read with Penal Code (XLV of 1860), S. 376‑Revision (criminal‑‑[Rape case‑‑Evidence, appreciation of‑Medical evidence indicating prosecutrix a girl of easy virtue, being used to sexual intercourse for quite sometime‑Excepting bare word of prosecutrix no other evidence to prove that she was ravished against her consent Prosecutrix appearing more than 14 years of age at time of alleged assault on her‑Held, could not be said with certainty in circum stances prosecution to have not been a consenting party‑Conviction and sentence set aside.
Malik Muhammad Ashhab for Appellant.
Muhammad Sarwar A wan for the State.
Date of hearing: 30th April, 1980.
The petitioner was convicted by a Magistrate at Okara of an offence under section 376 of the Pakistan Penal Code and was sentenced to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 2,000. In default of payment of fine he was directed to undergo further simple imprisonment for a period of six months. He preferred an appeal against his conviction and sentence before an Additional Sessions Judge at Sahiwal which was dismissed. He has now come in revision to this Court.
2: According to the prosecution on 16‑11‑1978, at about 9‑00 p.m. Mst. Najjan who was stated to be 13 years of age went to the shop of one Ahmad Yar to purchase some kerosene oil. The petitioner was present in the shop but Ahmad Yar was not there. The petitioner invited Mat. Najjan to get into the shop and wait for Ahmad Yar. As Mst. Najjan entered the shop the petitioner hatched the door from inside and forced her to have intercourse with him.
3. When Mst. Najjan did not return to her house for sometime her father got worried. He together with his two brothers went to the shop of Ahmad Yar. He heard noises coming from inside whereupon he and his brothers forced the door open. They saw the petitioner and Mst. Najjan in a naked condition. Mst. Najjan told them that the petitioner had forced her to have intercourse with him. The petitioner was overpowered and made to sit in the village square. Mst. Najjan's father went to police station to lodge a report. On the way he met A. S. I. Muzaffar Abbas. He made a statement before this officer who then went to the village of the parties and arrested the petitioner.
4. The petitioner pleaded not guilty to the charge against him. He denied that he had committed rape upon Mst. Najjan. He alleged that her father had some dispute with the local co‑operative society over a loan and on account of this dispute he had been involved falsely in this case. He examined two witnesses in his defence.
5. On considering the entire evidence there can be little doubt that the petitioner was caught red‑handed by Mst. Najjan's father and his brothers while copulating with Mst. Najjan. The petitioner was at the relevant time working as Inspector in the Co‑operative Department. It is difficult to believe that on account of some dispute over a loan with the local co‑operative society Mst. Najjan's father and his brothers would trump up a false charge against him particularly when the said charge involved the honour of a young girl. I am, therefore, satisfied that the petitioner did commit sexual intercourse upon Mst. Najjan.
6. The next question for consideration is whether the petitioner had committed sexual intercourse with Mst. Najjan with or without her consent. On this point we have only the word of Mst. Najjan. Now, according to the medical evidence she was used to sexual intercourse for quite sometime. This indicates that she was girl of easy virtues. It will, therefore, not be safe to depend upon her sole testimony on the point. It also seems improbable that she would go into the interior of the shop of Ahmad Yar at night time just on the asking of the petitioner and permit him to batch the door from inside.
7. There is also no satisfactory evidence that at the relevant time she was less than 14 years of age. It is true that when getting bet evidence recorded she gave her age as 13 years. I do not think that her estimate of her own age can be solely relied upon. According to the medical evidence her height was 5' 3' and the weight 150 pounds. Her breasts were well developed and the pubic hair hard. She was used to sexual intercourse for quite sometime. In the circumstances it does appear that she was more than 14 years of age at the relevant time.
8. Since it cannot be said with any measure of certainty that Mst. Najjan was not a consenting party. I am unable to support the petitioner's conviction for the offence under section 376 of the Pakistan Penal Code. Accordingly I set aside his conviction and sentence and acquit him of the charge against him. He shall be set at liberty forthwith if not required in any other case.
Petition allowed.
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