1993 PCr (PLP)

Date of hearing: 8th March, 1993. Muhammad Aslam, son of Rustam Ali, caste Baloch, agriculturist, resident of Chak No.408/GB, Tehsil Samundari, District Faisalabad, has approached this Court in appeal for impugning the validity of the judgment of the learned Additional Sessions Judge, Faisalabad, dated the 26th October, 1991, convicting and sentencing him as follows:-- (a) under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), for enticing and taking away his wife's unmarried 17 years old sister, Mst. Zakia Bibi, P.W.1 with intent to have illicit intercourse with her, to three years' rigorous imprisonment, ten stripes of whipping and a fine of Rs.2,000 failure to pay which was to entail sufferance of additional rigorous imprisonment for six months; and (b) under section 10(2) of the Ordinance for committing Zina with Mst. Zakia Bibi, to ten years rigorous imprisonment, twenty stripes of whipping and a fine of Rs.5,000 and in default of payment thereof to further rigorous imprisonment for two years. Both the sentences were directed to run concurrently. He is on notice issued by this Court to show cause as to why the sentence of whipping imposed upon him by the learned trial Court in respect of his conviction touching commission of offence of Zina under section 10(2) of the Ordinance be not enhanced.

2. The appellant was accused of having taken Mst. Zakia Bibi from her home in Chak No.408/GB, at 4-5 o'clock in the morning of the 10th June, 1989, on the pretext that her sister (appellant's wife) was ill in Chak No.408/GB. However, he was alleged to have taken her to Adda Bodlianwala where both were said to have boarded a bus and gone to Sahiwal where, as per prosecution version of the case, they passed night at the house of the appellant's sister's husband, Muhammad Nawaz from Sahiwal the appellant was stated to have taken Mst. Zakia Bibi to Faisalabad and then to Khudian Kharlanwali where he was blamed for having kept her in the house of one Maula Dad for 4/5 days and to have committed Zina-bil-Jabr with her. Mst. Zakia Bibi's uncles, Shamman, P.W.6 and Mamman as also her cousin, Muhammad Tufail, came to the house of Maula Dad and seeing them the appellant was alleged to have fled away. After her recovery Mst. Zakia Bibi was taken by his father to police and on her statement, Exh.PA., case against the appellant was registered at Police Station Tandlianwala on the 20th June, 1989.

3. Mst. Zakia Bibi was examined by Lady Doctor Khalida Nazir Chatha, Women Medical Officer, District Headquarters Hospital, Faisalabad, P.W.7, on the 21st June, 1989, at 2-45 p.m. The lady doctor found her hymen to be torn and the tears to be old, vagina admitting two fingers. She took two vaginal swabs which were subsequently found by the Chemical Examiner for the Punjab, Lahore vide his report, Exh.P.F. to be stained with semen. The lady doctor expressed the opinion that Mst. Zakia Bibi had been subjected to sexual intercourse. Exh.P.E. is the copy of the medico-legal examination report.

4. The appellant was arrested by Abdul Rahim, Assistant Sub-Inspector of Police, Police Station Tandlianwala, P.W.3, on the 4th August, 1989. Dr. Abdul Haq, Medical Officer, Civil Hospital, Tandlianwala, P.W.5, examined the appellant, on the 5th August, 1989 and found him to be fit to perform sexual intercourse. Exh.P.D./1 is the report of the Medical Officer in this behalf.

5. The appellant denied having enticed or taken Mst. Zakia Bibi and having committed Zina with her as alleged by the prosecution. When asked why the case had been set up and why the prosecution witnesses deposed against him be simply replied `due to enmity. However, no enmity is visible from the record. He declined to make statement on oath. He produced in defence Asghar Khan, D.W.1 and Muhammad Hussain, D.W.2, who spun out a long drawn narrative about which he himself did not utter a word. The defence evidence was not considered worth placing reliance upon by the learned trial Court and this Court sees no reason to take a different view.

6. Mst. Zakia Bibi testified as to how she had been taken by the appellant from one place to another and how he had been committing Zina with her. Shamman, P.W.6, bore out that when he alongwith Mamma and Muhammad Tufail had reached the house of Maula Dad in Khudian Kharlanwali the appellant had run away leaving behind Mst. Zakia Bibi. Mst Zakia Bibi and Shamman are not shown to have any previous enmity with the appellant. They were not supposed to, have deposed against him for nothing. Their evidence rings substantial truth and can be retied upon to determine the culpability of the appellant. The result of her medical examination coupled with the report of the Chemical Examiner provide corroboration to her statement. In such a situation the learned counsel for the appellant was not in a position to displace the finding of guilt recorded by the learned trial Court. As a matter of fact he pleaded for reduction of the sentence given by the learned trial Court to the appellant. While upholding the conviction of the appellant recorded by the learned trial Court the sentence of ten years rigorous imprisonment passed upon him in regard to his conviction under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is reduced to five years' rigorous imprisonment. In order to bring the sentence of whipping in conformity with law the sentence of twenty stripes pertaining to this count of conviction is enhanced to thirty stripes. The rest of the sentence is kept undisturbed. The sentence on both counts of conviction will run concurrently. The appellant is given benefit of the provisions of section 382-B of the Code of Criminal Procedure for the purpose of adjustment of the period of his detention during trial of the case against the term of sentence of imprisonment. With the aforementioned reduction in the sentence of imprisonment respecting conviction under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 the appeal stands dismissed. N.H.Q./779/FSC Order accordingly.