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Criminal Shariat Petition No. K-7 of 1985, decided on 18th August, 1985.

(From the judgment of the Federal Shariat Court, Karachi, dated 18-4-1985 in Criminal Appeal No.36/K of 1984).

---Art. 203-F--Penal Code (XLV of 1860), S.377--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--Sodomy with minor girl of 7/8 years--' Zina'--Conviction based on deposition of victim and statements of three witnesses including her father, to whom she related incident immediately after occurrence, as also medical evidence- No motive existing for false implication--Deposition of prosecutrix consistent and not suffering from any inherent infirmity--Defence plea that word "Zina" and not sodomy was used and prosecutrix had described act having been committed from her front side, repelled--Simple fact that victim and her father, or for that matter any other witness, used word "Zina" and not sodomy in their statements before police or at trial, will not make any difference because this expression has been used in relevant papers in a general sense implying illicit intercourse which undoubtedly is involved in sodomy as also in rape and sodomy on a child of very tender age could be committed in manner described- Plea of alibi of accused not sustained--Petition being devoid of force, dismissed.

Usman Ghani Rashid and Faizanul Haq for Petitioner.

Nemo for the State.

Date of hearing: 18th August, 1985.

-The peti tioner a young man of 23 years of age was convicted and sentenced to 10 years' R.I., fine of Rs.1,000 and 10 stripes under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (NO.VI1 of 1979), and to 5 years' R.I. with Rs.1,000 fine, under section 377, P.P.C. with a direction for the substantive sentence to run concurrently. His appeal before the Federal Shariat Court failed. He has now sought leave to appeal.

The victim in this case Mst. Ghazala P.W. is a minor girl of about 7/8 years of age. The petitioner who is a neighbour of her father took her to his house on a false pretext and committed sodomy on her. The lady doctor, on medical examination, found confirmation of the accusation namely, that the child had suffered marks of violence on her anal region. The prosecution evidence consisted of the deposition of the prosecutrix and the statements of three witnesses including her father to whom she related the incident immediately after the occurrence as also the medical evidence. The Chemical Examiner's report regarding presence of semen on her Shalwar, it would be safe to keep out of consideration because there is a strong doubt with regard to the transmission of the same Shalwar (which was on the body of the victim at the time of occurrence) to the Chemical Examiner. The defence plea was of denial and false implication. The petitioner also led evidence of alibi to show that he was on his duty from 1-30 p.m. onward. Though the offence was allegedly committed between 12 and 1 p.m., the plea being that it was not possible for the accused to have travelled a distance of about 7 miles from his house to the place of his duty within a short period of 30 minutes after 1 o'clock.

Both the learned Courts below have found the petitioner guilty and convicted and sentenced him as noted above.

Learned counsel has contended that the evidence regarding sodomy is not enough because while the lady doctor was of the opinion that the prosecutrix "could" have been subjected to sodomy it was not so as the prosecutrix herself used the word "Zina" and described the act as having been committed from her "front side" and further, even in the F.I.R. recorded by the father of the prosecutrix the word "Zina" and not "sodomy" was used; that the solitary statement of the prosecutrix was not enough for conviction; that the alibi evidence should have been accepted; and that the offence of abduction under section 12 of the Ordinance was not established.

The simple fact that the victim and her father or for that matter any other witness used the word "Zinc" and not "sodomy" in their statements before the police or at the trial will not make any difference because this expression has been used in the relevant papers in a general sense implying illicit intercourse which undoubtedly is involved in society as also in rape. The fact that the child victim described the mode of offence by stating that it was from the front side of her body, in the circumstances of this case, will not be of any help to the' petitioner. The child, as described in the record, is very intelligent She was not deposing about the mode when the victim is made to bend and then the culprit commits the act of sodomy from behind. In this case, it appears that the culprit while holding the child in his hands committed sodomy by placing her in his lap, obviously when both were facing each other. The cross-examiner understood this position. Therefore, not a single question was asked about it during cross- examination. And it is not the argument of the learned counsel that sodomy on a child victim of very tender age cannot be committed in the above manner. The first argument of the learned counsel accordingly has no force.

The second argument regarding the child victim being a solitary witness in this case has also no force; firstly, because neither the child nor any of the other witnesses had any motive to falsely implicate the petitioner nor there is anything in the deposition of the prosecutrix that her testimony suffered from any inherent infirmity. Further it is supported by the fact that she related the incident to at least three persons immediately after suffering the harm and named the petitioner as the culprit. She remained consistent with regard to her version at the trial.

We having gone through the evidence of alibi are not impressed by the same. In any case it has rightly been rejected for an additional reason, namely, that the offence was committed between 12 and 1 p.m. and the time regarding alibi evidence commences at 1.30 p.m. It is not the case of the petitioner that no transport which could cover a distance of 7 miles in half an hour was available to him at the relevant time so as to reach the place of duty at 1-30 p.m. Moreover learned counsel ignored that according to the prosecution the offence was not necessarily committed at 1 o'clock from which he counted the time of half an hour. According to the father of the prosecutrix the offence took place between 12 and 1 p.m. Therefore, the relevancy of 12 o'clock as being time of occurrence cannot be ignored in this context. The argument of alibi accordingly has no force.

The last argument of the learned counsel was not taken to its logical ends. Nothing has been shown as to why the offence under section 12 of the Ordinance has not been committed in case the prosecution version is accepted. There is definite evidence in the statement of the prosecutrix that she was first kidnapped and then subject to sodomy.

Looked at from whatever angle there is no force in this petition and at the same is dismissed.

M.I. Petition dismissed.

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