' ALI MUHAMMAD BALOCH, J.--- Appellants Zulfiqar alias Shera and Ali Hassan alias Tikhu were tried in the Court of learned Additional Sessions Judge, Samundri, District Faisalabad and vide judgment, dated 10-4-2002 were both found guilty of the offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced as under:--
(i) Zulfiqar alias Shera Five years' R.I.
(ii) Ali Hassan alias Tikhu Twenty years' R.I.
' Benefit under section 382-B, Cr.P.C. Was extended to both the appellants. Appellant Zulfiqar was sentenced for abetment while appellant Ali Hassan was sentenced for the actual commission of Zina. Both the appellants have challenged their conviction and sentences by filing this appeal through jail. They were not able to engage a private counsel. They were, therefore, provided the services of a counsel on State expenses.
2. Today when the appeal came up for hearing, the learned counsel for the appellants candidly conceded that after, going through the record he had formed an opinion that there was no fault found by him with the finding of the learned trial Judge and, therefore, he was not pressing the appeal on merits and that he was praying for reduction in the sentence of imprisonment awarded to appellant Ali Hassan only. The learned counsel appearing on behalf to the State for the same reason conceded and stated that .Sentence of ten years' R.I. If awarded to the appellant Ali Hassan will serve the ends of justice.
3. Notwithstanding the statement of the learned counsel for the appellants, we heard the arguments in detail and also studied the entire record and appraised the evidence led before the trial Court. To appreciate our findings, it is necessary to give the precise facts on record.
4. Mst. Kaneez Bibi wife of Muhammad Idrees, a household lady aged about 25 years knew the appellants Ali Hassan and Zulfiqar previously. On 1-3-1999 Mst. Kaneez Bibi was sleeping in her house and when she came out of the room for the purpose of urination appellant Ali Hassan and Zulfiqar gagged her by putting a handkerchief on her mouth and then Ali Hassan committed Zina- bil-Jabr on her while Zulfiqar kept standing there. The time of the occurrence was about 10-00 p.m.
And Mst. Kaneez Bibi found that Murtaza and Ashraf had reached there and had seen the appellants when they scaled over the wall and escaped. Mst. Kaneez Bibi related the story of the incident to her husband when he had returned back to the home after irrigating his fields.
5. The matter was reported to the police by Muhammad Idrees and Mst. Kaneez Bibi but police did not take interest. Mst. Kaneez Bibi being dishearted went to her parents at Manwala saying that it was not worthwhile to live in such locality where her honour was not safe. The police had referred Mst. Kaneez Bibi for her medical examination also and the Women Medical Officer had found her age about 22 years and of course no mark of violence was seen on her body. In her cross- examination, Mst. Kaneez Bibi had denied the suggestion from the appellants side that she had involved them falsely due to political rivalry.
6. Evidence of Mst. Kaneez Bibi was confirmed and supported by, P.W. Mst. Zubaida Bibi, the mother-in-law of Mst. Kaneez Bibi. Mst. Zubaida Bibi had stated that she was sleeping in the same room along with Mst. Kaneez Bibi and she stated that appellants Zulfiqar and Ali Hassan had caught hold of Mst. Kaneez Bibi and that Ali Hassan had committed Zina-bil-Jabr with Mst. Kaneez Bibi after putting a handkerchief on her mouth and that appellant Zulfiqar was also present. She also stated that on her making noise, P.Ws. Ghulam Murtaza and Ashraf had scaled over the intervening wall and had come to the house of Mst. Kaneez Bibi and had seen the appellants Ali Hassan and Zulfiqar who had escaped after the commission of the offence in their presence. The appellants were the neighbours of Mst. Kaneez Bibi and Mst. Zubaida Bibi and were previously known to them. They had been identified on the light which was lit at the time of the incident. Mst.
Zubaida Bibi also deposed that Ali Hassan on an earlier occasion had Committed Zina with her daughter Khalida which matter she had not reported due to her concern about the family honour and being poor. That incident pertained to three four years earlier. She felt that being encouraged by such non-reporting of the earlier incident, Ali Hassan had repeated the incident by coming again to their house and committing Zina with Mst. Kaneez Bibi. Statement of these ladies was also supported by P.W. Muhammad Ashraf. Muhammad Ashraf was cross-examined in detail still nothing was brought on record to disbelieve the statement of Muhammad Ashraf.
7. In their statements under section 342, Cr.P.C. The appellants had denied the prosecution allegations but had not put forward any cogent or worth consideration reason for disbelieving the prosecution evidence. They had simply stated that the witnesses had deposed due to enmity but did not give any detail of any such enmity if any The appellants did not appear as their own witnesses under section 340(2),Cr.P.C. And appellant Zulfiqar had stated that he had no defence evidence to offer. Although appellant Ali Hassan in his statement under section 342, Cr.P.C. Had stated that he will provide evidence in his defence but record does not show that he examined any witness in defence.
8. After assessing and analyzing the entire evidence of the prosecution and considering the fact that the counsel for the appellants was not pressing the appeal on merits, we come to the conclusion that there is no reason to set aside, the conviction of the appellants.
9. However, we have considered the request of the learned counsel for the appellants for reduction in the sentence of appellant Ali Hassan. We find that appellant Zulfiqar was about 15 years of age at the time of occurrence while Ali Hassan was about 17 years old at the time of the incident.
Therefore, we are of the opinion that both the appellants were of immature age and the possibility that they were not fully aware of all the consequences of their acts cannot be ruled out. Under the circumstances we hold that the sentence of twenty years' R.I. Awarded to appellant Ali Hassan was harsh and excessive. We, therefore,' consider that lesser sentence than twenty years will serve the ends of justice and it E might give a chance to. Appellant Ali Hassan to improve his character and lead a useful life as a citizen.
10. Consequently, while dismissing the appeal of both the appellants we deem it proper to reduce the sentence of imprisonment of appellant Ali Hassan to ten years' R.I.
11. The result is that the appeal is dismissed with the above modification in the sentence of appellant Ali Hassan. The appellants shall get benefit of section 382-B, Cr.P.C.