2008 PLP 1193 (SCMR)

TANVIR AHMED KHAN (MEMBER).

This appeal with leave of the Court is directed against the judgment dated 16th October, 2002 of the learned Federal Shariat Court of Pakistan camp at Lahore, whereby the appeal filed by the appellant was disposed of with the modification of sentences awarded by the learned Additional Sessions Judge, Sahiwal, through his judgment dated 8-12-2000. The learned Division Bench of the Federal Shariat Court, keeping in view the old age of the appellant, modified the sentence of imprisonment for life awarded to him under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") to 7 years' R.I., holding that it was not only excessive but also disproportionate. The sentence awarded under section 10(3) of the Ordinance was however, enhanced from 5 years' R.I. to 7 years' R.I. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also accorded to the appellant.

2. Facts briefly are that the F.I.R. No.24 of 1995 was got recorded by the complainant Muhammad Abdullah P.W.3 at the Police Station Dera Raheem, Sahiwal on 26-1-1995 under section 11 of the Ordinance, for an occurrence stated to have taken place on 21-5-1991 at 11-30 p.m. It was the complainant's case that his sister Mst. Akhtar Bibi was married to absconded accused Muhammad Iqbal five years earlier. She filed a suit for dissolution of marriage, which was decreed by the learned Family Judge, Kasur, on 4-10-1994. On 20-10-1994 the afore-stated accused Muhammad Iqbal along with 2/3 persons visited his house in Village Boharr, Tehsil and District Kasur and threatened him that if he would not rehabilitate his sister in his house, he would abduct her. The complainant and his sister, according to the F.I.R. due to fear left their residential place and went to Chak No.131/9-L and took up residence there with P.W.4 Zulfiqar Ali. Muhammad Iqbal having acquired the knowledge of their fresh residence went there on 21-1-1995 at 11-30 p.m. and knocked at their residential door. The complainant opened the same whereupon the appellant as well as Muhammad Iqbal and others pushed him and threatened him with dire consequences. Thereafter, they abducted his sister and placed her in a wagon and drove away. Muhammad Iqbal according to the complainant kidnapped his sister for the purpose of Zina.

3. P.W.9 Ghulam Rasool, the Investigating Officer, arrested Muhammad Iqbal and his co-accused Umar Daraz on 30-1-1995 and recovered from them some incriminating material. He also recovered the abductee Mst. Akhtar Bibi from the possession of Muhammad Iqbal absconded accused. The statement of the abductee was got recorded before the Magistrate under section 164, Cr.P.C. She was also medically examined by P.W.6 Lady Dr. Shagufta Waseem, W.M.O. Civil Hospital, Sahiwal, on 31-1-1995 at 5-30 p.m. who found certain bruises on different parts of her body. Two vaginal swabs were taken which were sent to the Chemical Examiner and the result thereof was positive in nature. P.W.9 Ghulam Rasool, on 14-2-1995 secured non-bailable warrants for the arrest of the present appellant from the Illaqa Magistrate and deputed one Muhammad Rashid constable for its service. Thereafter, he was transferred. During the course of proceedings, Umar Draz committed suicide and Muhammad Iqbal the principal accused in the case did not appear in the Court, as such, proceedings under sections 87 and 88 of Cr.P.C. were initiated against him and his case was separated on 10-3-1998. The challan was submitted only against the present appellant.

4. The prosecution in order to establish its case examined nine witnesses. The ocular account in his case was narrated by the complainant Muhammad Abdullah P.W.3 and Mst. Akhtar Bibi abductee who appeared as P.W.B. P.W.4 Zulfiqar Ali who saw the accused taking abductee in a pick-up also supported the prosecution respecting abduction. When the appellant was examined under section 342, Cr.P.C., he denied his participation and stated as under:-- "It is a false case. I have been falsely involved in this case due to my relationship with Muhammad Iqbal, main accused. I am uncle of Muhammad Iqbal accused. The P.Ws. have deposed against me falsely."

5. The learned Additional Sessions Judge, Sahiwal, through his judgment, dated 8-12-2000, convicted the appellant under section 11 of the Ordinance, and sentenced him to 25 years' R.I. He also convicted him under section 10(3) of the Ordinance, holding that since there was no medical examination for his potency, as such, he awarded him lessor sentence of five years' R.I. Both the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. was also accorded to him. Feeling aggrieved, the appellant filed an appeal before the Federal Shariat Court, which has been disposed of with modification of his sentences as stated in the preceding paragraph.

6. Leave to appeal was granted to the appellant on 14-11-2001 and the relevant portion thereof is as under:-- "(2) The victim in this case was ex-wife of absconding accused Muhammad Iqbal, real nephew of the petitioner. The stance taken by the petitioner in the petition in hand is that being 90 years of age he was too old to perform sexual intercourse and had been falsely implicated in the case on account of his relationship with Muhammad Iqbal. (3) In his statement under section 342, Cr.P.C. recorded by the learned trial Court on 1-12-2000 the petitioner has been shown to be 70 years of age. The record also shows that he was not got medically examined to prove that he was fit to perform sexual intercourse. It is also a matter of common knowledge that at times net is thrown wide by the complainant party and elders of the family are roped in for obvious reasons."

7. We have considered the contentions raised by the learned counsel for both the sides and have gone through the evidence appended with the appeal with their assistance. In the F.I.R. the appellant was not attributed any overt act. He was simply shown as a silent spectator while Muhammad Iqbal absconded accused played the active role in the B abduction. The abductee in her statement had admitted her marriage with the absconded accused Muhammad Iqbal but stated that she got divorce as she got a decree of dissolution of marriage. We have also noticed that surprisingly Muhammad Iqbal absconded accused after his apprehension was medically examined by P.W. Dr. Manzoor Ahmed who found him potent but this exercise was not undertaken respecting the present appellant who admittedly was more than 70 years of age. The investigation in this case was not conducted in a proper manner and nothing has been brought on record what happened to the non-bailable warrants issued against the present appellant after transfer of P.W.9 Ghulam Rasool, Sub-Inspector. Further, as already stated the abductee was recovered from the custody of Muhammad Iqbal absconded accused. Since, in this case, neither the medical examination of the appellant was conducted to determine his potency' who was more than 70 years of age C nor any role was attributed to him in the alleged abduction where he had been shown as already stated a silent spectator.

8. Keeping all the afore-stated features of the case into consideration, we are, of the view that the sentence already undergone by the appellant would serve the ends of justice. Accordingly, the appeal is dismissed subject to the modification that the sentence of Raunak Ali (appellant) is reduced to the period already undergone. He shall be released forthwith if not required in any other case. Above are the reasons for our short order passed on the 15th December, 2003. N.H.Q./R-1/SC?????????????????????????????????????????????????????????????????????????????????? Sentence reduced.