' Jail Criminal Appeal No,276/I of 2002 is filed by Muhammad Zameer against the judgment, dated 14-11-2002 of Sessions Judge, Khushab convicting the appellant under section 18 read with section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance and sentenced to two years' R.I. With benefit of section 382-B, Cr.P.C.
2. The complainant in this case is Mst. Asmat Bibi who recorded the F.I.R. No,102, dated 27-3-2000 Police Station Jauharabad Khushab. According to her she was alone in her house on 25-3-2000 when all of a sudden the appellant entered into her house and forcibly committed Zinabil-Jabr with her by falling her on the ground. She made hue and cry which attracted P.W.2 Mst. Sardaran and P.W.5 Muhammad Farooq who reached the place of occurrence and saw the same.
3. Appellant was charge-sheeted on 18-7-2002 who denied the charge and claimed trial.
Thereafter the trial Court recorded the evidence in the case.
4. P.W.1 is Mst. Asmat Bibi who deposed about the occurrence stating that she was present in the house all alone when the appellant Zameer came there and made her to fall on the floor and then forcibly committed Zina-bil-Jabr with her and that she raised hue and cry which attracted her paternal-grandmother, Mst. Sardaran to reach the place of occurrence and seen the accused committing Zina-bil-Jabr with the victim. She further stated that her paternal-grandmother also made noise and the accused fled away after seeing the witnesses. It is further in her statement that the appellant was trying for compromise but it was not agreed. She was subjected to lengthy cross-examination but there is nothing tangible to shatter her veracity.
5. P.W.2 is Mst. Sardaran who also deposed in line of the victim.
6. P.W.3 Dr. Syed Muhammad Sibtain Shah, has testified the potency of the appellant to perform sexual act and Exh.P.B. Is the correct carbon copy of the report.
7. P.W.5 is Muhammad Farooq, brother of the victim who deposed that he saw the accused running away from the house of the victim by holding his Shalwar in his hand. Certain suggestions were put to this P.W. During cross-examination which were denied. This witness denied that sister of the accused had refused to marry the father of this P.W. And preferred to marry some young person and on this account enmity arose between the two families.
8. The most important witness is P.W.9 Lady Dr. Naureen Akhtar who examined the victim on 28-3- 2000 and found no tears, laceration, abrasion or any sign of physical violence. According to her hymen was old perforated. According to this witness the vagina was loose easily admitting two fingers. Swabs were sent to the Chemical Examiner. This is vide report Exh.P.E. Stating by the Chemical Examiner that the swa bs are not stained with semens.
9. The appellant was examined under section 342, Cr.P.C. On 30-9-2002 and he answered to Question No,5 that mother of Mst. Asmat Bibi P.W. Had died 8 years before the occurrence and her father intended to contract second marriage with the sister of the accused which was not materialized and this created bad blood and enmity between the two families resulting in the present case.
10. The learned trial Court considered the entire evidence on the record believing the statement of Muhammad Farooq, P.W.5, brother of the victim as an eye-witness of the occurrence which fact is not established. This witness only stated that he, Ghulam Muhammad and Mst. Sardaran, P.Ws. Saw the accused running away from their house. He did not see the actual occurrence.
11. The learned trial Court examined the entire evidence in para.19 of judgment and particularly discussed the medical evidence in para.20 and has not given any effect to the statement of Lady Dr. P.W.9:
12. The learned trial Court in para.21 stated that there is no evidence at all to establish that Shalwar of the victim was torn, or its string was broken or her clothes were stained with semens. According to learned trial Court neither clothes of victim were produced before the Investigating Officer nor were taken into possession by him for detection of semens. It is further stated by the trial Court that the statement of P.W.9 is also silent on this point and this is very serious blow to the story of the prosecution in respect of commission of Zina.
13. It appears that the learned trial Court convicted the appellant on the ground that he had entered the house of the complainant and made attempt to commit Zina-bil-Jabr with her but on the arrival of the witnesses he fled away. However, according to the finding of the lower Court this is not a case where Zina-bil-Jabr had actually been committed. In this view of the matter the learned trial Court held the appellant guilty and convicted him under section 18 read with section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance.
14. Learned counsel for the appellant has gone through the entire evidence on the record and particularly criticized the judgment of the trial Court emphasizing that the case of the prosecution in the F.I.R. Is not proved as to the actual commission of Zina, therefore, P. W.1 the victim and other P.Ws. On this point may be disbelieved.
In the midst of the arguments the learned counsel requested that the sentence of two years awarded to the appellant may be reduced to having already undergone with benefit of section 382-B, Cr.P.C.
15. Learned counsel further states that major portion of the sentence has been served by the appellant with a few months to remain. The request of the learned counsel needs proper consideration and I am inclined to agree with him that the prosecution has failed to prove the actual commission of offence. In this view of the matter the sentence of two years' R.I. Awarded by the learned trial Court under section 18 read with section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance is reduced from two years' R.I. To having already undergone and the appellant shall be released forthwith, if not required in any other case.
16. With above modification in the sentence the appeal is dismissed.