1997 P Cr (PLP)

Complainant Khadim Ali, an employee of the Police, was residing alongwith his wife Mst. Farigha Jan in a quarter in Police Girri Line Quarters, Kohat. Their marriage had taken place recently. His nephew Akbar Hussain had also come to live with him about a month before. On 23-1-1991 the complainant had gone to Hangu and when he came back he found his wife and nephew missing. He was searching for them when he came to know that they had eloped together. The complainant submitted a written complaint of the occurrence in Police Station, City Kohat on 24-1-1991, which was incorporated in F.I.R. No.42 of the said police station on the same day.

2. Mst. Farigha Jan and Akbar Hussain were both arrested together by P.W.7 Nizam Khan, A.S.-I. from Bus Stand Kohat on 14-1-1994. On 15-1-1994 Mst. Farigha was medically examined by P.W.4 Lady Dr. Rehmat Afridi and the swabs taken from her vagina were found stained with semen. After investigation both the accused, Mst. Farigha Jan and Akbar Hussain, were sent up for trial before Sessions Judge, Kohat. The learned trial Judge charged accused Akbar Hussain under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and both the accused under sections 5 and 10 of the Hudood Ordinance. Both the accused pleaded not guilty to the charges and claimed trial.

3. The State produced 9 witnesses in proof of the prosecution case whereas both the accused made depositions under section 342, Cr.P.C. They also trade depositions on oath but did not produce any defence evidence.

4. After conclusion of the trial the learned Sessions Judge convicted accused Akbar Hussain under section 16 of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 4 years, to suffer 5 stripes and to pay a fine of Rs.2,000 or in default to further undergo rigorous imprisonment for 6 months. Accused Mst. Farigha Jan and Akbar Hussain both were convicted under section 10(2) of the Hudood Ordinance and were sentenced to undergo rigorous imprisonment for 5 years, to suffer 7 stripes and to pay a fine of Rs.2,000 or in default to further undergo rigorous imprisonment for 6 months each. Convict Mst. Farigha Jan has challenged her conviction and sentence by the appeal in hand sent from jail. Convict Akbar Hussain has not filed any appeal in this Court.

5. I have-heard learned counsel for the parties at length who also led me through entire record of the case: The facts which were proved during the trial are that appellant Mst. Farigha Jan was legally-wedded wife of complainant Khadim -Hussain and convict Akbar Hussain was his nephew, that the complainant was more than 40 years of age whereas both the accused were in their early twenties at the time of occurrence, that both the accused were found missing' from -the house of the complainant since 23-1-1991 and both were arrested together on 24-1-1994, that the medical examination of appellant Mst. Farigha Jan revealed that she had been committing sexual intercourse. The plea of both the accused during the trial was that complainant had divorced appellant Mst. Farigha Jan and thereafter they had both married each other. However, both the accused had neither produced any Nikahnama of their marriage nor any other evidence regarding the allegation of their marriage with each-other It was also alleged by appellant Mst. Farigha Jan that she had been divorced by her husband complainant Khadim Ali and thereafter she had married her co-accused Akbar Hussain. However, the allegation of divorce could also not be proved by any evidence. It shall'; therefore, be seen that appellant Mst. Farigha Jan and convict Akbar Hussain were living together and were committing Zina with each other but appellant Mst. Farigha Jan was still wife of the complainant during those day

Consequently it was an unauthorised sexual intercourse. Both the convicts were, therefore, appropriately convicted under section 10(2) of the Hudood Ordinance.

6. Convict Akbar Hussain has also been convicted under section 16 of the Hudood Ordinance. However, the circumstances brought out during the trial will clearly indicate that both the convicts had eloped together voluntarily and there was no enticement or taking away of the female appellant by her co- accused Akbar Hussain. In such view of the matter convict Akbar Hussain had not committed any offence under section 16 of the Hudood Ordinance and his conviction for' that offence was unauthorised. But convict Akbar Hussain did not file any appeal to challenge his conviction and sentence.

7. I have considered this aspect of the matter very anxiously. It is the duty of the Court to do justice in accordance with law. The matter of conviction and sentence of both the convicts became open in the appeal filed by Mst. Farigha Jan. Although no appeal has been filed by convict Akbar Hussain yet in the interest of justice this Court has vast powers to examine the record under the provisions of Article 203-DD of the Constitution. No doubt the impugned order was made by a criminal Court under the law relating to the enforcement of Hudood and its propriety, illegality or regularity could be examined. 1, therefore, hold that the conviction and sentence of convict Akbar Hussain under section 16 of the Hudood Ordinance could not be proved by the evidence produced during the trial and so the same are set aside and he is acquitted of that) offence.

8. In so far as the conviction of appellant Mst. Farigha Jan and convict Akbar Hussain is concerned, that was appropriate in the circumstances. However, learned counsel for the appellant requested for some reduction in the sentence as both were very young and the husband of appellant Mst. Farigha Jan was in his late middle age. This request was not controverted by the learned State Counsel. I, therefore, uphold the conviction of appellant Mst. Farigha Jan and convict Akbar Hussain under section 10(2) of the Hudood Ordinance but sentence each of them to undergo rigorous imprisonment for 4 years with no change in the amount of fine but in default of payment they shall each suffer rigorous imprisonment for 2 months. The sentence of stripes awarded by the learned trial Court to both of them is set aside as the said punishment has since been done away with by the abolition of the Punishment of Whipping Act, 1996. They shall also be entitled to the benefit under section 382-B, Cr.P.C. N.H.Q./1075/FSC Order accordingly