2002 PLP 3077 (YLR)

S.‑I., Muhammad Asfar appeared as P.W.11 and deposed about recording of the statement Exh.P.J of Mst. Kaneez Fatima, the victim, which was sent to the police station for the formal registration of the case. He also verified the contents of the inquest report Exh.P.M. He further stated that he had got Mst. Kaneez Fatima medically examined by submitting an application Exh.P.L which was in his handwriting and bear his signature. He also deposed that Muhammad Arif accused had gone underground and could not be arrested by him and thus was declared absconder after adopting the legal process. S.I., Muhammad Sadiq appeared as P.W.12 and stated that he arrested Muhammad Arif accused, who after interrogation got a revolver‑32 bore and one live cartridge recovered at his instance. Javed Iqbal, Constable No.2217 was summoned as C.W.1 who deposed that Dr. Salina Akram had gone abroad and was not available in the country as such her summon was returned with the report Exh.C.W.1/1 which was in his hand and bear his signature. Dr. Muhammad Ayaz, Assistant Director Health appeared as C.W.2 and deposed about the non‑availability of Dr. Muhammad Qamar Khan, whose services were placed at the disposal of the Medical Superintendent Holy Family Hospital Rawalpindi vide Government Order No.SOII/1980/R/87 dated 23‑6‑1997 and he had relinquished the charge from GRD Sargodha District Rawalpindi on 7‑7 -1997. Dr: Syed Sohail Ahmad, Deputy Medical Superintendent, District Headquarters Hospital, Rawalpindi appeared as C.W.3 and stated that Dr. Muhammad Qamar Khan was not available in the country as he was deputed to foreign service to Malaysia for two years. C.W.4 Mehmood Ahmad, Dispenser identified the hand‑writing and signature of Dr. Qamar Khan on post mortem report Exh.P.N prepared in respect of Mst. Safeer‑un‑Nisa, as he had worked under his subordination during the year 1991‑1992. Nadeem Aslam, Constable No.3866 appeared as C.W.5 and stated that he was deputed to effect service on Mushtaq Ahmad and Mst. Azra Bibi P.Ws. but both of them were not available in the country. 5. After close of the prosecution evidence the accused was called upon to make a statement under section 342, Cr.P.C. wherein he denied all the allegation levelled by the prosecution and professed his innocence. In reply to the question, as to why this case against you and why the P.Ws. have deposed against you, the accused stated:‑ "P.W.2 and P.W.10 disowned the version of the prosecution and categorically stated in their cross- examination that I am innocent and the person who committed Zina with Mst. Kaneez Fatima and with her mother Safeer‑un‑Nisa was not identified by P.W.2 and P.W.10, therefore. I have no concern whatsoever with the instant crime. She further stated that neither I arranged midwife for the purpose of abortion, nor having any knowledge. It is pertinent to mention here, that the said midwife was not produced by the prosecution to establish their case. The case was registered against me on the basis of doubt, surmises, and on the pressure of my opponent of the village. I am innocent." 6. The accused, however, declined to make a statement on oath under section 340(2), Cr.P.C. and refused to produce any defence evidence. 7. After the conclusion of the trial arguments were heard by the learned trial Court and the accused was convicted and sentenced as stated above in the opening para. Hence this appeal. 8. Learned counsel for the appellant after arguing for some time on the merits of the case by referring mainly to the cross‑examination of the victim dated 1‑7‑1999, wherein she had exonerated the accused by stating " that the accused who committed Zina with her mother and Zina‑bil‑Jabr with her could not be identified, as he had masked his face," but after realizing the fact that in her examination‑in‑chief, she had fully inculpated the accused for the commission of Zina‑bil‑Jabr with her on pistol point, and her consistent replies during the grueling cross‑examination for two days, in which she had not given a single favourable answer to exculpate the accused, learned counsel decided not to press the appeal on merits and opted to take refuge under the compromise deed duly executed by the victim Mst. Kaneez Fatima, who had forgiven the accused in the larger interest of saving the family from the future disaster effects, and prayed for the reduction in the sentence of the appellant on the basis of the said document. He candidly submitted that although the offence was non -compoundable, but the superior Courts of the country including this Court, have taken into consideration favourably the compromise deed and have been pleased to reduce the sentences to the minimum provided for such offences and even in some cases, the sentence already undergone was considered sufficient to meet the ends of justice. Reference in this respect was made to the case of Mst. Sughran etc. v. The State (Cr. As.Nos.189/I, 193/I and 206/I of 1999), wherein the sentence was reduced to already undergone by the Division Bench of this Court in the wake of compromise deed. 9. Learned counsel for the State frankly conceded for the reduction in the sentence of the appellant, keeping in view the peculiar circumstances of this case. 10. We have considered with concern the submission made by the learned Court for the parties and have also gone through the case‑law cited at the Bar and the impugned judgment. 11. The prosecution has mainly kept its reliance on the solitary statement of Mst. Kaneez Fatima P.W.10 the victim, who had at the stage of examination‑in -chief had consistently and categorically stated that she had seen the accused committing Zina with her mother, and subsequent thereto, she herself was subjected to Zina‑bil‑Jabr at pistol point by the accused, so as to shut her mouth for disclosing the earlier incident to her father, she stood the, test of cross -examination for two longs days, but ultimately succumbed to the pressure on the third occasion, when she gave replies exonerating the accused form the crime committed by him. This statement of the victim coupled with the medical evidence, which was positive, was considered to be sufficient for conviction of the accused before the learned trial Court. 12. We have dispassionately considered the testimony of the victim in its totality and as a whole. It makes us believe that the coherent and consistent version given by Mst. Kaneez Fatima, P.W.10 before the learned trial Court was the truthful deposition of the facts, which inspired confidence and was worth reliance. Besides, it stands duly corroborated by the medical evidence furnished through secondary evidence consisting of the statement of Tariq Mehmood, dispenser P.W.8, who proved the Medico‑Legal Report of the victim Exh.P.H, which was stated to be in the hand writing and under the signatures of Dr. Salma Akram who had gone abroad and was not available in the country. 13. We are, therefore, of the considered view that the prosecution has proved the guilt, of the accused Muhammad Arif beyond any reasonable doubt, and he stands rightly convicted by the learned trial Court. 14. So far the quantum, of sentence in concerned, we feel that the same requires interference by this Court, keeping in view the peculiar circumstances of this case, particularly when the matter has been compromised between the parties. 15. Although the, compromise deed tendered by the prosecutrix/victim, duly placed on record, would legally be not a relevant document, as the case in hand is non‑compoundable but keeping in view the fact that the accused, was repentant, and through the efforts of the elders of the family has successfully prevailed upon the complainant party and was forgiven by the victim in the name of Almighty Allah, we feel constrained to consider it a mitigating circumstance to reduce the sentence of the appellant appropriately, as it was so done in the case cited‑supra. 16. We, therefore, while maintaining the conviction of the appellant under section 10(2) of the Ordinance, reduce his sentence from 10 years Rigorous Imprisonment to Rigorous Imprisonment for 5 years with fine of Rs.5,000 in default whereof he shall undergo Rigorous Imprisonment for 6 months. We also reduced the sentence of 25 years Rigorous Imprisonment awarded to the appellant under section 10(3) of the Ordinance to rigorous imprisonment for 5 years. Both the sentences are directed to run concurrently. 17. The appellant shall also be entitled to the benefit of section 382‑B, Cr.P.C. 18. The order of the learned trial Court in respect of the amount of compensation to be paid to the victim is set aside, as the victim prosecutrix has forgiven the accused without any monetary considerations. 19. Resultantly this appeal stands partly accepted with the above modification in the sentence. N.H.Q./85/FSC Sentence reduced.