1994 P Cr (PLP)

Shaikh Muhammad Akhtar, Addl. A: G. with Shabbir Hussain Qureshi for the State. Date of hearing: 26th January, 1993. Haji Abdul Ghafoor (35 years), son of Jhanda, caste Arain, cultivator, resident of Chak 175, Tehsil and District Sheikhupura, appellant 1, is the mother's brother of Haji Muhammad Yousaf (50 years), son of Gulzar Ahmad, caste Arain, cultivator, resident of Fatehpur Town, Tehsil and District Layyah, appellant

2. Mst. Tahira Firdous (20 years), resident of Chak No.425/TDA, Tehsil and District Layyah, appellant 3, is the daughter of Haji Muhammad Yousaf, appellant

2. Haji Abdul Ghafoor, appellant 1 and Mst. Tahira Firdous, appellant 3, are related to each other within the prohibited degree; they are ineligible to marry inter se according to Muslim law. However, they contacted marriage on the 9th June, 1990. Haji Muhammad Yousaf, appellant 2, gave Mst. Tahira Firdous, appellant 3, in marriage to Haji Abdul Ghafoor, appellant

1. Exh.P.B. is the Nikahnama witnessing solemnization of marriage of appellant 1 with appellant 3.

2. On the 20th August, 1990, Gulzar Ahmad, P.W.7, father of Haji Muhammad Yousaf, appellant 2, lodged the report with the police that appellant 2 had married appellant 3 with appellant 1 though such a marriage was void according to Sharia. In his report, Exh. PA., he stated that though he (and others) had tried to prevent solemnisation of marriage, respondent 2 had not agreed and marriage had taken place. He blamed appellants 1 and 3 for indulging in Zina.

3. On the 23rd August, 1990, Lady Doctor Sartaj Tirmzi Women Medical Officer, District Headquarters Hospital, Layyah, examined appellant 3 and found her to be pregnant of four months. Her hymen was not intact and vagina was roomy. The Lady Doctor took three vaginal swabs and sent them on to the Chemical Examiner for the Punjab, Multan, for detection of semen..As per report of the Chemical Examiner, Exh.P.G., the swabs were stained with semen. Exh.P.E. is the copy of the medico-legal examination report.

4. Though the appellants at the trial of the case admitted marriage between appellants 1 and 3 they tried to defend themselves by putting forth the excuse that the marriage had not been consummated. This plea of theirs was, in view of the result of the medical examination of appellant 3 and report of the Chemical Examiner referred to above, not accepted by the learned trial Court. The appellant 3 was described as virgin when she was married with appellant

1. Therefore, the excuse of 'non-consummation of marriage was obviously not accepted at face value. Consequently the learned trial Court of the Sessions Judge, Layyah, by its judgment of the 16th April, 1992, convicted appellants 1 and 3 of the commission of offence of Zina and sentenced each of them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), to five years' rigorous imprisonment, twenty stripes of whipping and a fine of Rs.2,000, failure to pay which was to entail sufferance of rigorous inprisonment for an additional period of one year. The learned Court convicted appellant 2 of the commission of offence of abetment of the offence of Zina and sentenced him under section 109 of the Pakistan Penal Code read with section 10(2) of the Ordinance to two years' rigorous imprisonment, ten stripes of whipping and a fine of Rs.1,000 and in default of payment thereof to further rigorous imprisonment for six months. Feeling aggrieved with the decision of the learned trial Court the appellants have approached this Court in appeal. They are on notice issued by this Court to show cause as to why their sentence should not be enhanced.

5. After making half-hearted attempt to show that consummation of marriage had not taken place the learned counsel for the appellants conceded that the conviction of the appellants recorded by the learned trial Court was in order. However, he submitted that it was very unfortunate incident and that the appellants have felt extremely penitent. He stated at the bar that appellant 1 had since divorced appellant 3 having realized that their union was not warranted by law. According to the learned counsel the appellants have suffered much humiliation in public as well as among their relatives. He contended that the sentence already suffered by the appellants might be considered sufficient to meet the ends of justice. In view of the circumstances stated by the learned counsel further retention of the appellants in jail may not serve any useful purpose. The conviction of the appellants is upheld. The sentence of appellant 2, Haji Muhammad Yousaf, is reduced to the term already undergone by him. He shall be set at liberty forthwith if his detention is not required in connection with any other case.

6. Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, mandates, award of thirty stripes of whipping to the convicts. The learned trial Court imposed sentence of twenty stripes of whipping upon appellants 1 and

3. The sentence passed by the learned trial Court in this behalf is not in conformity with law. To meet the requirements of law the ssentence of twenty stripes is enhanced to thirty stripes. The other sentence of imprisonment and fine given to appellants 1 and 3 is reduced to the term already suffered by them. After executing the sentence of thiryt stripes of whipping upon them by the jail authorities they shall be set at liberty forthwith if they are not required to be detained any other case. With the aforesaid reduction in the sentence of the appellants the appeal stands dismissed. N.H.Q./840/FSC Order accordingly.