1999 PLP 3085 (MLD)

Date of hearing: 19th December, 1997. This appeal is directed against the judgment dated 20-8-1996 passed by the learned Additional Sessions Judge, Burewala, whereby the appellants were convicted under section 354, P. P. C. and sentenced to two years' R.1. each. Benefit of section 382-B, Cr P.C. was, however extended to the appellants.

2. The prosecution case in brief, as gathered from the record is that on 10-3-1994 a report was lodged by one Mst. Kishwar Sultana with Burewala City Police wherein, it was alleged that she was resident of Chak No. 437/E. B. Burewala Town. On 8-3-1994, at about 7.30 p.m. when she stepped out of her house in order to throw garbage, all of a sudden accused/appellants came there gagged her mouth and forcibly dragged her away to a nearby field, in order to commit Zina-bil-Jabr with her. It was further alleged therein that in order to achieve their evil designs the accused / appellants had not only torn her shirt but also forcibly broken the string of her Shalwar. However, on her raising hue and cry, P. W. 2 Mukhtar Ahmetd and one Muhammad Sadiq came at the spot and rescued her from the clutches of the accused/appellants. She further alleged that since the appellants had tried to, out-rage her modesty and had also tried to commit Zina-bil-Jabr with her, therefore, action as contemplated by law may be taken against them. On the stated allegations, a formal F. I. R. bearing No. 126, dated 10-3-1996 was lodged and in pursuance thereof, accused/appellants were arrested. They subsequently. on completion of the investigation were challenged to the Court for trial.

3. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused/appellants produced 5 witnesses in all. Mst Kishwar Sultana, victim/complainant appeared as P. W. 1 She at the trial, reiterated the version contained in the F. I. R. and additionally deposed that the appellants were the same who had tried to outrage her modesty. She was subjected to lengthy cross-examination but nothing favourable to the defence and damaging to the prosecution was possible to be elicited from her P. W.

2. Mukhtar Ahmed deposed that on 8-3-1994 at about 7-30 p.m. he was present in his house alongwith Sadiq P. W. and they both heard hue and cry. On coming out from their house they saw, that the accused/appellants after catching the victim were trying to unstring her shalwar. Subsequently they took her to a nearby situated held. He deposed that the appellant Muhammad Riaz had gagged mouth of the victim by catching hold of her whereas, the other accused was trying to remove her shalwar. P. W. 3 Sanaullah is a formal witness to the receipt of complaint Exh. P. A. He deposed that he had registered the F. I. R. Exh. PA./1 on the basis of reported complaint P. W. 4 Muhammad Nawaz deposed that he had conducted partial investigation of the case where after, the same was transferred to the D. S. P. He deposed that the victim produced before him, her shirt P-1 which was torn from the chest alongwith shalwar P-2 with a broken string. Both these articles were taken into possession vide recovery memo. Exh. P B. He further deposed that he had also recorded the statement of the witnesses under section 161, Cr. P. C. P. W. 5 Muhammad Akram is the second investigating Officer of the case. He stated that he on the completion of investigation had challaned the accused to the Court for trial.

4. On the completion of prosecution evidence, the accused/appellants were examined under section 364, Cr.P.C. wherein they pleaded that they were innocent. They, however, refused to lead any evidence in their defence or to appear as their own witness in terms of section 340(2), Cr.P.C.

5. After hearing arguments of the parties, the learned Trial Court convicted and sentenced the appellants as mentioned in the opening para. hereof.

6. I have heard Pirzada Atta Mohyuddin, Advocate, learned counsel for the appellants, Ch. Muhammad Ashraf Azeem, Advocate, learned counsel for the complainant, Syed Ali Raza, Advocate, learned counsel for the State, and have also minutely gone through record of the case.

7. Pirzada Atta Mohyuddin, Advocate learned counsel for the appellants instead of arguing the appeal on merits, submitted an application to the effect that since the matter has been compromised between the parties outside the Court and the complainant has also forgiven them, therefore, they may be acquitted of the charge in acceptance of the compromise. Learned counsel for the appellants has stated that the accused/appellants have also promised to compensate the victim. Mst Shamim, mother of the victim, is also present in the Court, alongwith her counsel Ch. Muhammad Ashraf Azeem, Advocate. They have also confirmed the factum of compromise and undertaking given by the appellants in pursuance thereof. They too, have, expressed their no objection to the acceptance of compromise. However, learned counsel for the appellants when confronted with the legal proposition that the offence for which accused/appellants has been punished is not compoundable, submitted that he would not press the appeal on merits but pray for reduction in the sentence only. He pleaded that the appellants were the first offenders and raw youth of impressionable age and appear to have committed the offence due to juvenile delinquency, therefore, a lenient view may be taken in the matter of sentence. M/s. Ch Ashraf Azeem, Advocate, learned counsel for the complainant as well as Syed Ali Raza, Advocate, learned counsel for the State have neither controverted the above contentions raised by the learned counsel for the appellants nor have they any objection in case moderate reduction in the sentence is made. Therefore, keeping in view the above submissions made by the learned counsel for the parties, facts of the case and better future relation of the parties. while maintaining their conviction, I am inclined to reduce the sentence of the appellants from two years R.I. each to that of already undergone. They are on bail. Their bail bonds are discharged. Criminal Miscellaneous No. 335-1 of 1997 is disposed of in the above terms whereas, Criminal Miscellaneous No. 317-L of 1997 is not pressed by the learned counsel for the appellants which is accordingly dismissed, as having not been pressed. Appeal stands disposed of in the above terms. H.B.T./33/F S C Order accordingly.