2000 P Cr (PLP)

Appellant Nizamuddin was tried by IXth Additional Sessions Judge, Karachi East on the charge of offence punishable under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The trial Court found the appellant guilty of the offence but punishment of Hadd was not awarded for lack of four eye-witness and under Tazir the appellant was ordered to undergo rigorous imprisonment for ten years and whipping numbering thirty stripes.

2. The appellant has challenged the above judgment of conviction and sentence by this appeal.

3. The learned counsel for the appellant while arguing the case has taken me through the evidence on record which comprise statement of the alleged victim Fareeda alias Gulnaz, her sister Mehnaz, their father Bashir Khan in addition to other witnesses. From the evidence of the victim, her sister and her father, the allegation of commission of Zina-bil-Jabr by the appellant could only be suspected and could not be proved beyond reasonable doubt. However, as regards the offence of assault or criminal force to a woman with intent to outrage her modesty stands proved beyond any reasonable doubt against the appellant. Thus, the offence proved against the appellant falls under section 354, P.P.C., which is punishable' with imprisonment for two years with fine.

4. The learned counsel for the appellant conceded to the above charge against the appellant falling under section 354, P.P.C. and further conceded that since the appellant had remained in jail for a period beyond 12 months, he will be satisfied if the sentence already undergone by the appellant is awarded as the punishment to him and that he will not press the appeal in respect of that punishment.

5. The learned counsel for the State under the circumstance of the case also pleaded that in fact Zina-bil-Jabr was not proved from independent and convinceable evidence on record. The learned State Counsel further pointed out that victim/complainant girl had remained silent for about six/seven months before disclosing the alleged Zina-bil-Jabr on her and that she even did not disclose the factum to her real sister or other women workers working with her in the same place, therefore, the evidence of the victim was not trustworthy as regards the allegation of Zina-bil-Jabr.

6. I have gone through the entire evidence and given my thoughtful consideration to all the facts of the case and have no hesitation to come to the conclusion that the best case of the prosecution was proved for commission of assault or criminal force on the victim to outrage her modesty which offence falls under section 354, P.P.C. and it was punishable with two years imprisonment or fine or with both.

7. Consequently, I accept the request of the learned counsel for the appellant for withdrawal of the appeal and, therefore, the appeal is dismissed. But the sentence of the appellant is altered from ten years imprisonment to the sentence already undergone, and direct that the appellant be released forthwith if not required in any other offence. However, payment of fine of Rs.2,000 is ordered in addition to the undergone sentence. In case of non-payment of amount of fine, the appellant shall undergo simple imprisonment for two months.

8. Since the sentence of whipping has been abolished by. an Act of the Parliament, the sentence of thirty stripes awarded to the appellant by the trial Court is remitted/set aside. N.H.Q./8/FSC Order accordingly.