1986 P Cr (PLP)

Salim Shad for the State. Date of hearing: 5th May, 1986. MUFTAKHIRUDDIN, J.‑‑The Additional Sessions Judge Pakpattan vide impugned judgment dated 23‑11‑1985 has found Muhammad Sharif son of Abdul Majeed, caste Shaikh r/o Sabzi Mandi Pakpattan, District Sahiwal guilty and has sentenced him under sections 11 and 10(3) read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the ordinance) to undergo R.I. for eight years plus whipping numbering fifteen stripes and fine of Rs.5,000 or in default of payment of fine to further undergo R.I. for one year. The sentence of imprisonment passed/awarded under both the offences is the same and has been ordered to run concurrently. The appellant has challenged his convictions and sentences through this appeal.

2. The prosecution case was initiated by one Abdul Majeed son of Ahmad through a statement made to Ramzan Ali Shah, Sub‑Inspector Police Post No‑1, Pakpattan Sharif while he was at Fawara Chowk a place about 100 yards from the police post. On 28‑11‑1984 wherein it was alleged that his daughter named Perveen Akhtar aged eight years had gone to bring her aunt who lived behind his house. When she did not return for 15/20 minutes he himself went out to enquire about her (daughter). Few lads informed him that Mst. Perveen had been taken away by Muhammad Sharif son of Abdul Majeed to the roof of the house of Manzoor Ahmad son of Piran Ditta. Immediately, he climbed to the house of Manzoor and with him were Muhammad Ali son of Mahmood Ali and Muhammad Saleem son of Allah Din. There in the room of Manzoor found Muhammad Sharif had unfastened the string of the Shalwar of Mst. Parveen Akhtar. He caught hold of her. He (accused) told him that he had brought the key from Manzoor. Had he not reached immediately Muhammad Sharif would have ravished his daughter. Police was informed. Muhammad Sharif is being produced.

3. After the statements was recorded by the Sub‑Inspector (P.W.4) it was sent to the police station where it was formally recorded by Niaz Muhammad MHC of the police station, (this Muharrir was later transferred hence not produced in Court). The accused was arrested by Ramzan Ali Shah, (P.W.4). The place of occurrence was inspected and the facts were verified from Abdul Majeed and Mst. Perveen Akhtar. The statement of witnesses were recorded and the accused challaned in the Court to face trial where prosecution examined only four witnesses namely Abdul Majeed (complainant) the father of Mst. Perveen Akhtar the victim, (P.W.1) Muhammad Ali son of Mahmood Ali (P.W.2) Parveen Akhtar d/o Abdul Majeed (victim) and Ramzan Ali Shah (P.W.4).

4. Mst. Parveen Akhtar, the victim aged about seven years P.W.3 in her deposition in Court stated that about nine months back at 3‑30 p.m. she was going to call her aunt who resides at considerable distance, Sharif accused caught hold of her from her hair and took her to one Chowbara there he untied the string of her Shalwar. He made her naked, she started weeping. On this her father Majeed, Muhammad Ali and Muhammad Saleem arrived there. They caught hold of Sharif accused. Thereafter, police arrived there. The accused did not do anything more besides which is stated above. In cross‑examination Mst. Parveen Akhtar was confronted with her statement made before the police and it was found that she had not said that she had been made naked. It was also found that in her police statement she had not said that the accused had broken the string of her Shalwar. It was also admitted that the Chowbara where the accused had taken her was on her way to the house of her aunt and the staircase opens in the street and the room to which she was taken had a door and it was open and the door of the room had not been chained from inside. She was made to stand in the Chowbara and was not made to sit or lie on any cot. After the string had been broken her Shalwar fell on the ground. The Shalwar had not been removed and had not been placed anywhere else and was under her feet on the floor. It had not been caught of by her or by the accused. She was raising alarm. The sound of foot steps in respect of coming upwards the stairs was audible but the accused did not run away. The witness further said my father Majid and Saleem and Muhammad Ali had come there and at that time the accused had come out of the room. I had not shown the Shalwar and the broken string to the police. Abdul Majeed P.W.1 the father of the girl in his statement before the Court repeated the story he had narrated before the police and added that the accused was standing by the side of Mst. Parveen who was also standing at that time. He further said in the gross‑examination that he was the first to enter the room and he was followed by Muhammad Saleem (not produced) and then Muhammad Ali P.W.2. When the witness P.W.1 arrived the Shalwar have already been unfastened. He however admitted that this was not stated by him to the Investigating Officer. The Shalwar was produced by this witness but was not taken into possession by the police. Mst. Parveen had no scratches or abrasions on her person and had not been taken to the lady doctor. The direct account of the incident is furnished only by Mst. Parveen Akhtar.

5. The accused in his defence has taken the plea that on the day of occurrence Mst. Parveen Akhtar took an apple from my 'rehri' and I got her caught by two small boys of the street and then I slapped her on the face. She went weeping to her house and brought her father Abdul Majid and Yasin her cousin. Abdul Majid and Yaseen asked me whether I had outraged the modesty of Mst. Parveen Akhtar to which I refused and on this they brought the police. I have been falsely implicated in the case." Those boys who had caught Mst. Parveen Akhtar' as alleged by the accused /appellant have neither been named nor produced. The defence evidence produced in Court which made an attempt to prove that no occurrence took place is thus not helpful. Strangely enough the plea of the accused about taking an apple from the 'rehri' was not even put to Mst. Parveen Akhtar. It is not believable that the father of the girl would become a party to any vengeance by putting the honour of his daughter at stake and dishonouring the whole family. The suggestion/plea of the accused is only an after thought and simply not believable. The relations of the father of Mst. Parveen Akhtar and, the appellant have never been inimical. Both have been residing in the Mohalla peacefully. The evidence of Mst. Parveen inspires confidence and there is nothing which may render it unbelievable.

6. The question however, is whether the appellant has been guilty of the offence he had been charged or punished for from the record as demonstrated above the appellant was at the most trying to make Mst. Parveen naked by unfastening the Shalwar. He did not succeed in the attempt of removal of the Shalwar and did not take away his own Shalwar. The Shalwar of Mst. Parveen was not even torn (it has not been even alleged). In these circumstances it cannot be held that the appellant had been guilty of the offence under section 11 or 10 (3) A read with section 18 of the Ordinance and in our opinion has been guilty of offence under section 354, P.P.C. and can be convicted and sentenced under that section. We accordingly allow this appeal, set aside the conviction and sentences under section 11 and 10 (3) read with section 18 of the Ordinance and convert the conviction to one under section 354, P.P.C. and sentence him to the sentence, already undergone by him. As a consequence the notice for enhancement of sentence under section 11 of the Ordinance is discharged. S.A. Order accordingly.