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Criminal Appeal No. 235/1, of 1987, decided on 22nd November, 1987.

---Ss. 10(3) & 18--Appreciation of evidence--Attempt to commit rape-Girl 8/9 years old--Witnesses attracted on cries of victim--Witnesses found independent having no motive to falsely implicate accused--Father involving 9 years old daughter in sex scandal for minor dispute over payment of some money considered not believable--Second witness absolutely independent, neither related to complainant nor having enmity with accused--Evidence of witnesses ringing true--Medical evidence supporting prosecution allegations--Minor discrepancies in evidence of child--Conviction maintained in circumstances.

Muhammad Akmal Salimi for Appellant.

Irshad Ahmad for the State.

Date of hearing: 22nd November, 1987.

The appellant has filed this appeal from the judgment of Additional Sessions Judge, Sahiwal, dated 9-8-1987, whereby he was convicted on charge of offence under section 10(3) read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to undergo R.I. for twelve years and six months and whipping numbering fifteen stripes.

2. The allegation against him was that on 3-10-1985 he had attempted to commit rape upon Mst. Irshad Fatima a child of aged 8 years.

3. The prosecution case was that Mst. Irshad Fatima used to live with her father Abdul Khaliq in Kot Khadim Ali Shah in Sahiwal town. On 3rd or 4th of October, 1985, Abdul Khaliq was in the mosque of the Kot when he heard cries of his daughter Mst. Irshad Fatima in the shop of appellant Abdul Rashid, which was situated just near the mosque. Abdul Khaliq and Ghulam Hussain and Sarwar shopkeepers were attracted to the shop of the appellant by the cries. It is alleged that when they entered the shop they found that Mst. Irshad Fatima was lying naked and the appellant was attempting to commit rape upon the child. Upon seeing the above-named witnesses the appellant ran away. Abdul Khaliq, who is Khadim of the mosque of the locality was so much overtaken by feeling of disgrace that he did not move out of his house for 3/4 days. On 7-10-1985 he went to Police Station Saddar, Sahiwal and lodged report of the incident. Aftab Ullah, Inspector of Police had recorded report of the complainant and investigated the case. He sent Mst. Irshad Fatima for medically examination on the same day. The appellant was arrested on 8-10-1985 and was got medical examined for potency. After usual investigation the appellant was sent up for trial.

4. The main facts of the incident have been given by P.W.4 Mst. Irshad Fatima. It is established from the record that she was a child aged about 8/9 years. She has deposed that on the day of the incident she had gone to the shop of the appellant to purchase sugar and that the appellant took off her Shalwar and started committing "mischief" with her and threatened her not to disclose this fact to anyone.

5. P.W.2 Abdul Khaliq and P.W.3 Ghulam Hussain have deposed that on hearing cries of the child they had rushed to the shop of Abdul Rashid and found him attempting to commit rape upon the child namely Mst. Irshad Fatima.

6. The above witnesses are supported by P.W. 7 Lady Dr. Arjmand Rizwan, who had examined Mst. Irshad Fatima on 7-10-1985 i.e. on the same day when the F .I . R . was lodged. According to her the child was aged 9/10 years. There was healed abrasion on the right and left side of the whole of the vulva on inner side, hymen was not torn, nor there was fresh bleeding, but only healed abrasions were present. According to her the vagina admitted only tip of little finger, hence there was no penetration. She had taken two vaginal swabs and sent for chemical analysis. The report of the Chemical Examiner has been produced as Ex.P.E. which is positive.

7. The plea of the appellant at the trial was that the complainant was his debtor and that two days before the registration of the case he insisted upon payment of debt whereupon there was an altercation between him and the complainant and that due to the said altercation he has been implicated in this false case. He was asked whether he would give statement on oath under section 340(2) , Cr. P . C . in disproof of the charge. He replied in the negative. However, he examined two witnesses in defence namely D.W.1 Haji Shamas Din and D.W. 2 Muhammad Siddiq. They have deposed that they had found the appellant and the complainant quarrelling with each other over payment of money and that the complainant had warned the appellant of dire consequences.

8. We find that P.W. 2 Abdul Khaliq and P.W.3 Ghulam Hussain are absolutely independent witnesses. Abdul Khaliq appears to be a Khadim of the mosque of the locality. He had no motive to implicate the appellant in a false case. He had denied that there was any dispute between him and the appellant over payment of any debt. He had frankly admitted that he used to make purchases from the shop of the appellant sometime in cash and sometime on credit, but denied that there was any dispute over payment of the money. Even if it is believed that the complainant was under debt of the appellant, he would not have gone to the extent of connecting his 9 years child with the sex scandal. From his evidence it appears that due to this incident he was so much overtaken by feeling of grief disgrace, that he could not move out of his house for 3/4 days. There is ring of truth in his evidence of which we believe every word. He is supported by Ghulam Hussain, who is neither related to the complainant nor any enmity has been alleged by the appellant against him. He is an eye-witness to the incident.

9. The learned counsel for the appellant has tried to take advantage of some contradictions made by P.W.4 Mst. Irshad Fatima in her deposition. She has not given the names of the witnesses, who were attracted on the cries. According to her she had gone to the house and informed her mother who informed her father. We may state that the witness was immature child, who could not be supposed to narrate incident in detail. She could not even describe the attempted rape. What she said was that after making her naked the appellant also took off his Shalwar and started "mischief" with her. The child could not have described the incident in any other words. In cross-examination she stated that one Mst. Nooran had a shop in front of the shop of the appellant and that she (Mat. Nooran) was seeing the "mischief". It has been argued that the appellant could not have committed the act in the manner that he was visible to the persons outside his shop. We find that the child has been allowed to be subjected to a harassing cross-examination by the trial Court. The above admission on the part of Mst. Irshad Fatima regarding Mst. Nooran also appears to be the result of immaturity of the child. We do not attach any importance to this argument.

10. Even from the medical evidence of P.W. 7 Lady Dr. Arjmand Rizwan it is proved that the child was subjected to sexual violence. There were abrasions on her private part and even semen was detected in the vaginal swabs.

11. For the above reasons we hold that the appellant was rightly convicted under section 10(3) read with section 18 of the said Ordinance. We uphold the conviction, but reduce the sentence of imprisonment to R.I. for seven years. The sentence of whipping, as awarded by the trial Court, is maintained. The appellant shall also get benefit of section 382-B, Cr.P.C.

S.-A./372/F.Sh. Appeal dismissed.

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