1995 PLP 945 (MLD)

Muhammad Farrukh Mehmud Malik for Appellant. Ch. Muhammad Anwar Dholan for the State. Date of hearing: 15th November, 1994. Complainant Raheem Bakhsh submitted an application to S.S.P., Bahawalpur on 23‑1‑1993 wherein he charged Khadim Hussain. appellant herein, Mst. Naziran, Mst. Khursheedan son and daughters of Ager Khan for the abduction of his daughter Mst. Zaricta for the purpose of illicit relationship 10/12 days earlier. The alleged abductee Mst. Zarina was also made an accused. Appellant Khadim Hussain and Mst. Zarina were allowed ad interim pre‑arrest bail but the same was not confirmed on 26‑4‑1993, whereafter Mst. Zarina was made a witness in the case. She was also medically examined on 28‑4‑1993 by P.W.2 Lady Dr. Zahida Zareen, according to which her vagina admitted two fingers easily and her vaginal swabs were found stained with semen.

2. After investigation appellant Khadim Hussain, his two aforesaid sisters and his father Ager Khan were sent up for trial before the learned Additional Sessions Judge, Bahawalpur who charged all the four accused under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as also appellant Khadim Hussain under section 10(3) thereof. All the four accused pleaded not guilty to the charge and claimed trial.

3. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Ager Khan, Mst. Zarina Mai and Mst. Khurshid Mai and convicted appellant under section 10(3) of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 10 years and to suffer 30 stripes. The convict has challenged his conviction and sentence by the appeal in hand.

4. The prosecution case was that the alleged abductee Mst. Zarina was married to P.W.3 Saleem Akhtar on 3‑3‑1992 and she had lived with her husband before being abducted by the appellant. On the contrary the contention of the appellant was that Mst. Zarina had married him voluntarily and with her free consent on 13‑2‑1992. However, from the evidence recorded during the trial neither the marriage of Mst. Zarina with Saleem Akhtar was proved nor the appellant could produce any cogent evidence to show that she was married to him. However, it is a fact that Mst. Zarina daughter of the complainant had lived with the appellant for sufficient time. She was an unmarried woman before she started living with the appellant. They had both been made accused and had jointly applied for bail before arrest. All this would show that Mst. Zarina had been living with appellant Khadim Hussain of her own free will and both were voluntarily committing sexual intercourse. As such the appellant was guilty of an offence under section 10(2) of the Hudood Ordinance and it was not a case of Zina‑bil‑Jabr as envisaged by section 10(3) thereof.

5. Consequently the appeal is partly accepted. The conviction of the appellant Khadim Hussain under section 10(3) of the Hudood Ordinance is converted into one under section 10(2) thereof and he is sentenced to undergo rigorous imprisonment for 3 years, to suffer 30 stripes and to pay a fine of Rs.1,000 or in default to further undergo rigorous imprisonment for one month. He shall also be entitled to the benefit under section 382‑B, Cr.P.C. N.H.Q./942/FSC Order accordingly.