Law:

Section:

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--Ss. 10(3), 11 & 2(a)---Allegation of Zina-bil-Jabr--- Plea of consent by victim---Victim girl being only of 12 years and 4 months and thus minor, her consent could not be taken into account. (b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ----Ss. 6, 2(a), 10(3) & 11---Allegation of Zina-bil-Jabr---Plea of puberty of victim girl---Burden of proof---Consent--Sexual intercourse committed with a non-adult girl would always be covered by definition of "Zina-bil-Jabr" as, given in S. 6 of the Ordinance: It is not enough for holding a girl as pubert that she is more than 9 years of age, unless she herself declares her to be so or there is some other - proof on the record to show that she had attained the signs of puberty. If the puberty of the girl is proved on the record before the age of 18 years, she can be held as adult, but in the absence of any sign of puberty she cannot be held as adult unless she acquires the age of 18 years. Being not pubert is a negative phenomenon and the prosecution cannot be burdened to prove it. If the prosecution had proved that the girl was of less than 15 years of age and no sign of puberty was established on the record, the presumption would be that she was not pubert unless otherwise was proved. Therefore if the girl was less than 18 years and an accused person wanted to get a benefit of her being pubert, the burden of proof of her puberty lay on him. In the present case, the prosecution had proved that the girl was of 12 years of age and the defence had failed to bring anything on the record to show that she had attained puberty. Therefore, she was to be held to be non-adult and her consent in the commission of sexual intercourse would not exclude the offence from the purview of Zina-bil-Jabr as contemplated in section 6 of the Ordinance. The word "consent" in subsection (1)(b) of section 6 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 means the consent made by a person who is capable to give consent. Therefore sexual intercourse committed with non-adult girl shall always be covered by the definition of Zina-bil jabr as…

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