' SAEED-UR-REHMAN FARRUKH, J.--- This appeal filed by Mst. Atia daughter of Aman Ullah (complainant) is directed against the judgment dated 26-6-1996 passed by Additional Sessions Judge, Mandi Bahauddin, whereby respondents Nos.2 and 3 were acquitted in case F.I.R. No,198, dated 23-7-1994, registered against them under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called "Ordinance") read with section 452, P.P.C.
2. It is necessary to refer to the background of the case leading to the present appeal. On 23-7- 1994 Mst. Atia, complainant (P.W.1) appeared before Nazar Hussain, S.-I., Police Station Miana Gondal (P.W.8) while he was on patrolling duty at Head Faqirian at 7-30 p.m. And made complaint about the alleged occurrence (Exh.P.A.). She alleged that she resided with her father Aman Ullah in their Dera in village Faqirian. On the night between 22nd/23rd of July, 1994 she was asleep in the courtyard when the respondents trespassed there and forcibly lifted her from the Charpai'. She tried to raise hue and cry but her mouth was gagged with a piece of cloth. She was forcibly taken to "Kino" garden) ocated at a distance of one acre. There they forcibly committed Zina-bilJabr with her one after the other. While Muhammad Aslam respondent was busy in committing this heinous offence, Muhammad Sher (P.W.6), and Said Ahmed (P.W.7) reached there. Respondents Nos.2 and 3, leaving her naked at the spot, succeeded in making good their escape. She was brought to the Dera by her uncles Said Ahmed and Sher Ahmed in semi-conscious condition. On regaining consciousness, she narrated the whole incident to her father. She contended that during the scuffle she was given beating by the respondents and she received some injuries on her eyes and throat.
' This complaint was, latter on, reduced into formal F.I.R. Exh.P.A./1.
3. After investigation, both the respondents were challaned to Court to face trial for offences under section 10 of the "Ordinance" and section 452, P.P.C. They were charge sheeted for offences under section 458/34, P.P.C. And section 10(3) and section 11 of the "Ordinance" by the learned trial Judge.
Both pleaded innocence and claimed to be tried.
4. At the trial the prosecution produced, in all, ten witnesses.
' Mst. Atia, aged about 16/17 years (on the date of recording her evidence i,e, 2-10-1995) deposed that one year and two months earlier, at about 2-00 a.m., she was asleep in the compound of her house along with her parents, sister and brother when respondents Nos.2 and 3 came there near her cot and forcibly lifted her. She tried to raise hue and cry but her mouth was "closed" with a cloth.
They took her in a garden at a distance of one acre from her house where they committed Zina- bil-Jabr with her. She tried to raise noise but they gave beating to her on her eyes and neck and tightened her neck with "Bochan". In the meantime, her maternal-uncles Sher Ahmed and Said Ahmed reached there. At that time Muhammad Aslam was committing Zina with her. On being alerted by the presence of Sher Ahmed both the respondents ran away. The respondents, while running away, left a ,"Chadar" on the spot. She was brought to the house in semi-conscious condition.
' On the following day at "Degar wela' she met the police enroute to the police station, and her statement (Exh.P.A.) was recorded. She was taken to Miana Gondal hospital for medical examination but the Lady Doctor was not available there. She was, thereafter, taken to hospital at Mandi Bahauddin for medical check-up. The Lady Doctor, after examination, admitted her in the hospital.
' During cross-examination, she stated that due to Zina-bil-Jabr committed by the respondents her clothes were stained with blood. She changed these clothes but the same were taken to the police station in a separate envelope for lodging the report. She further alleged that the cloth, which was used for pressing her neck, belonged to the accused. She stated that she remained admitted in hospital for treatment for about ten days. She denied the suggestion that Allah Bakhsh respondent was married to one of her relatives and there was some dispute between the spouses and it was due to this grievance that he had been falsely involved in this case.
' She conceded that Muhammad Aslam, respondent was brother of wife of Allah Bakhsh, respondent. At the time of occurrence an electric bulb was lit in the house and it was Muhammad Aslam respondent who caught hold of her from her arms while Allah Bakhsh respondent secured her by her legs and she was carried away. She claimed that Muhammad Aslam respondent put a cloth around her neck. There was darkness in the garden. According to her when respondents Nos.2 and 3 felt that somebody was approaching them, they ran away. She claimed that her maternal- uncles had brought a lantern along with them in the garden. As regards the injuries suffered by her she alleged that these were caused to her by both the respondents when she tried to raise hue and cry. She stated that it came to her knowledge that police had declared Muhammad Aslam as innocent. She, however, insisted that Muhammad Aslam was involved in the occurrence.
5. Muhammad Aslam, S.-I. (P.W.2) carried out partial investigation. He arrested Muhammad Aslam respondent on 22-8-1994 and got him medically examined. According to him, Muhammad Aslam was opined by him to be guilty.
6. Muhammad Latif, Muharrir, Head Constable (P.W.3) drafted the formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. He deposed that Nazar Hussain, S.-I./Investigating Officer handed over a parcel to him on 24-7-1994, which was deposited in "Malkhana". On 2-8-1994 he handed over this parcel to Muhammad Arshad Constable for onward transmission to the office of Chemical Examiner, Lahore and during this period it remained intact.
7. Muhammad Arshad, Constable (P.W.4) deposed about taking the parcel from Muhammad Latif, P.W. He stated that he deposited the said parcel in the office of the Chemical Examiner on the same day, intact.
8. Muhammad Azam, A.S.-I. (P.W.5) carried out the remaining investigation of the case. He stated that it was in his presence that the statement of Mst. Atia (Exh.P.A.) was recorded by Nazar Hussain, S.-I. ,near Head Faqirian. The Investigating Officer directed him to get Mst. Atia medically examined and he accordingly escorted her to hospital.
' After medical examination, the doctor handed over to him two sealed parcels, allegedly containing phial of swa bs and wearing clothes of Mst. Atia, which were passed on by him to the Investigating Officer. Though he was cross-examined at some length but nothing useful came out for the defence.
9. Muhammad Sher alias Sher Ahmed (P.W.6), the alleged eyewitness, deposed that on the fateful night, Kalsoom Bibi P.W. Along with her husband Aman Ullah (Parents of Mst. Atia) came to his Dera and Woke him up. They disclosed that Mst. Atia was not present on her bed. He accordingly, along with his brother Said Ahmed (P. W.7), started search for her, which led them to the garden of "Fruiter" and "Kino". There they saw Muhammad Aslam respondent committing Zina-bil-Jabr with Mst. Atia while Allah Bakhsh was sitting nearby, in naked position. Both the respondents on being alerted by their presence ran away. Mst. Atia was semi-conscious and there were bluish marks of violence on both the eyes of Mst. Atia, besides a mark of strangulation on her neck. He further deposed that the respondents, while leaving the place of occurrence, left behind on "Chadar", which was taken into possession. He stated that they brought a cot and put Mst. Atia on it and took her to the house. She narrated woeful details of the occurrence to them and then they left for police station to lodge report. They met the police on their way to the police station in the area of Head Faqirian and the statement of Mst. Atia victim was recorded. The "Chadar" was also handed over to the police, which was taken into possession vide memo. Exh.P.B. He also attested recovery memo. Of sealed parcel given by the Lady Doctor vide memo. Exh.P.C.
' This witness was cross-examined at great length. He was confronted with his statement made before the police under section 161, Cr.P.C. Exh.D.A. And it came out that the name of Kalsoom Bibi was not mentioned therein. He was also confronted with his statement before police (Exh.D.A.) as regards his deposition of having seen Muhammad Aslam committing Zina with Mst. Atia and it transpired that in the said statement it was only mentioned that Allah Bakhsh was sitting nearby.
' He went on to depose that he and his brother was residing in the same "Dera" while "Dera" of Aman Ullah (father of Mst. Atia) was adjacent to their "Dera". He stated that the moment he received information that Mst. Atia was missing, a search was started for her. He alleged that they suddenly reached the place of occurrence and at that time Allah Bakhsh was sitting towards left at a distance of 4/5 feet towards legs of Mst. Atia and they saw both the accused in naked position.
They took away their clothes along with them except "Chadar". According to him the Shalwar of Mst. Atia was lying at a distance of four Karams from the place of occurrence. He went to bring a cot from house of Aman Ullah. Aman Ullah and his wife Kalsoom Bibi were not in their house as they were separately searching for Mst. Atia in the garden, Mst. Atia informed them about the occurrence "at the place of occurrence". He went on to state that she gained consciousness for some time during this period. The police party consisting of one S.H.O., on A.S.-I. And three constables, met them at bridge "Salam". He deposed that police came to the spot in a vehicle and stayed there for half an hour. He denied the suggestion that there was a dispute of land between the fathers of Mst. Atia with Muhammad Aslam respondent.
10. Said Ahmed, P.W.7 fully supported the statement of Muhammad Sher (P.W.6) in all material details. He was also subjected to lengthy cross-examination but nothing useful could be gleaned by the defence therefrom. He was confronted with his statement Exh.P.B. (under section 161, Cr.P.C.) and it was found that his assertion that Allah Bakhsh was sitting nearby in naked position was not mentioned therein. According to him it was a hot season and they were sleeping in the compound of the "Dera" and an electric bulb was on. The garden where the alleged occurrence took place was owned by one Abdullah. He refuted the suggestion that there was some dispute over distribution of canal water with the father of Muhammad Aslam accused.
11. Nazar Hussain, S.-I. (P.W.8) deposed about various steps taken by him during the course of investigation. He recorded the statement of Mst. Atia (Exh.P.A.) and sent the same to the police station for registration of case. Mst. Atia was sent in the custody of Azam A.S.-I. To the hospital for medical examination. One "Chadar" (P.1) was produced before him, which was taken into possession. He visited the spot and prepared rough site plan (Exh.P.D.). A Sealed parcel, brought by Muhammad Azam A.S.-I on 24-7-1994, was taken into possession through recovery memo. Exh.P.C.
Allah Bakhsh respondent was arrested on 7-8-1994. He admitted that at the time of his visit to the spot on 23-7-1994 there were foot prints of only one person visible there. According to him Muhammad Aslam respondent was found guilty, as per his investigation.
12. Dr. Fazal Ahmed M.O. R.H.Q. Miana Gondal deposed about medical examination of Allah Bakhsh respondent and stated that he was fit to perform sexual intercourse as per his report (Exh.P.E.). The report of Dr. Muhammad Nawaz Ranjha regarding medical examination of Muhammad Aslam respondent was shown to him and he recognized his handwriting on it (Exh.P.F.). According to him Dr. Muhammad Nawaz was on leave for one year for acquiring higher education and was not on duty.
13. Azhar Javaid, Dispenser D.H.Q. Hospital, Mandi Bahauddin appeared as P.W.10. He deposed that he had been working with Dr. Mubashara Anwaar while she was posted at D.H.Q. Hospital, Mandi Bahauddin. He identified her handwriting and signature being her colleague in the hospital. He proved the report of the Lady Doctor (Exh.P.G.), as being in her handwriting and signed by her.
' In cross-examination he stated that Dr. Mubashra Anwaar had gone abroad for the last more than one year.
14. The learned A.D.A. Closed the prosecution case after tendering in evidence Chemical Examiner report (Exh.P.H.), which was to the effect that the swabs of the victim sent to his office were stained with semen and blood.
15. After conclusion of the prosecution evidence, the statements of the two respondents were recorded under section 342, Cr.P.C. Both denied the prosecution story in toto.
' In reply to the question as to why the case has been registered against him, Allah Bakhsh respondent took up the plea that Muhammad Aslam co-accused was brother of his wife and he used to reside in village "Sanda" whereas Muhammad Aslam lived at Head Faqirian. He asserted that his relations with his in-laws were strained and his wife had instituted a suit for dissolution of marriage against him before Family Court, Mandi Bahauddin and it was for this reason that he had been falsely involved. He stated that "if at all any offence had been committed that has been committed by Muhammad Aslam aforementioned and I was present in my village on the day of occurrence". He stated that he would appear as his own witness under section 340(2), Cr.P.C. He also offered to lead defence evidence.
' Muhammad Aslam respondent in reply to question about his implication in the case, merely stated that it was due to previous enmity with the complainant party. He did not opt to appear as his own witness under section 340(2), Cr.P.C. He, however, stated that he would lead defence evidence.
16. Allah Bakhsh respondent appeared as D.W.1, in his defence, and stated that at the time of occurrence he was present in his house in village "Sanda" while the occurrence took place at Head Faqirian. The distance between the two places was 10 Kms. He asserted that his in-laws has strained relations with him. He categorically stated that Zina was committed by Muhammad Aslam respondent and at the time of occurrence he was present in his house. During cross-examination, however, it came out that civil litigation with his in-laws started 2/3 months after the occurrence.
17. Muhammad Bakhsh (D.W.2) deposed that Allah Bakhsh respondent was his brother-in-law (Behnoi) and at the time of occurrence he was present in his house in "Sanda". He stated that he did not know as to why Allah Bakhsh had been roped in the case. According to him he appeared once before Ch. Nazar Investigating Officer/S.H.O. In support of plea of innocence of Allah Bakhsh.
18. Muhammad Aslam tendered discharge report Exh.D.A. Passed by learned Magistrate in this case and closed his defence.
' It may be mentioned, at this stage, that though Muhammad Aslam was discharged by learned Magistrate on 16-4-1995 yet in the challan report submitted by the police under section 173, Cr.P.C.
His name was placed in Column No,2 and after perusal of F.I.R. And report he was summoned, as accused to face trial, by the learned trial Judge.
19. We have heard the learned counsel for the parties and perused the record with their assistance.
' It is contended by the learned counsel, appearing on behalf of the appellant, that the prosecution had succeeded in fully proving its case against both respondents Nos.2 and 3. According to him there was no legal justification, available on the record, for the learned trial Judge to acquit of the respondents and grave miscarriage of justice had taken place in the instant case.
' Raja Abdul Rehman, learned A.A.-G. Fully supported the plea raised by the learned counsel for the complainant. He argued that the reasoning adopted by the learned trial Judge for acquitting the respondents was artificial and in disregard of material evidence on record. According to him respondents having committed heinous offence ought to have been convicted and awarded appropriate sentences.
' On the other hand, learned counsel appearing for respondents, forcefully defended the impugned judgment. It was urged that the case was the outcome of malice and the prosecution story bristled with material inconsistencies and was highly improbable and therefore, no interference was called for in the impugned judgment.
20. The apex Court of the country, in number of reported cases has laid down the principles justifying interference with the judgment of acquittal passed by the lower Court . In Ghulam Sikandar and another v. Mumaraz Khan and others case PLD 1985 SC 11 at page 18 it was laid down that the acquittal carried with it two well-accepted presumption: (i) initial, that, till found guilty, the accused was innocent; and (ii) that, again, after the trial the initial presumption of innocence stood confirmed. This was, however, subject to the condition that the acquittal would not carry the second presumption and would lose the first one also if the trial Court was found to have disregarded material evidence/ misread the evidence or received such evidence illegally.
' It was also held in this judgment that the Appellate Court would not interfere with the acquittal judgment merely because on reappraisal of the evidence different conclusion could emerge.
However, if the conclusion reached by the trial Court was such that no reasonable person would conceivably reach the same and there was overwhelming proof of the guilt of the accused, resulting in conclusive and irresistible conclusion to this effect, interference in appeal would be justified. The important test would be that the reasoning of the trial Court should be found to be artificial, shocking and ridiculous.
' Similar view was expressed in Abdul Subhan's case PLD 1994 SC 178. It was also held that in case the First Appellate Court proceeds to reappraise the evidence then it must take into account the reasons advanced by the trial Court and if it disagrees with the reasoning of the trial Court it must give its own reasons which should proceed on logical basis.
' In Mir Hassan's case 1999 SCM R 1418 High Court set aside the conviction of the accused recorded against him by the trial Court. The Honourable Supreme Court, after going through the judgment of the High Court, reached the conclusion that the contradictions in the statements of the witnesses, highlighted by the High Court, being insignificant, the acquittal order passed by the High Court was not justified.
' Also see Muhammad Iqbal's case 1994 SCM R 1928. In this authority the principles, noted hereinbefore, were recapitulated.
21. Keeping in view the principles laid down by Supreme Court, regarding interference by the Appellate Court with the acquittal judgment of the trial Court, we find that this appeal merits acceptance.
22. A critical examination of the impugned judgment showed that the same was the outcome of non-reading and misreading of material pieces of evidence on the record. Besides, the reasoning given by the trial Judge to disbelieve the prosecution story was not merely artificial but boarded on perversity of approach. We also noticed that the minor discrepancies/ B variations which naturally cropped up between the testimony of the prosecution witnesses were blown out of proportion for discarding the prosecution version as a whole.
23. Taking up the legal flaw of non-reading of the prosecution evidence in material details in the first instance. The trial Judge adversely commented on the conduct of Mst. Atia Bibi of not raising noise at the time of her being forcibly lifted from the compound of her house where she was asleep along with other members of her family. She was in fact gagged by the respondents at that time.
The trial Judge conveniently omitted the assertion of Mst. Atia Bibi in this behalf. The exact words used by her during her testimony were "... I tried to raise noise when my mouth was closed with a cloth.." How could the poor girl raise hue and cry in such a situation.
' A doubt was sought to be created about the unfortunate incident by observation in the impugned judgment "she did not tell the story to anybody till morning in her house". The relevant portion of the statement of Muhammad Sher alias Sher Ahmad P.W.6 and Said Ahmed P.W.7 about disclosure of the occurrence by Mst. Atia Bibi to them at the spot when they reached there searching for her were glossed over. Muhammad Sher alias Sher Ahmad P.W.6 deposed in examination-in-chief (page 36 of the paper book) "then we brought a cot and put Mst. Atia on it and brought her to the house. Mst. Atia Bibi told us that firstly Allah Bakhsh committed Zina with her and then Muhammad Aslam accused committed Zina with her..."
' Almost to the same effect is the statement of Said Ahmad P.W.7 (page 42 of the paper book - examination-in-chief part) as under:-- "Sher Muhammad brought the cot and we put Atia Bibi on this cot and brought her to the house.
Mst. Atia Bibi told us that firstly Allah Bakhsh committed Zina with her and then Muhammad Aslam committed Zina with her."
24. The medical evidence was shut out from consideration for wholly misconceived rather illegal reason that the lady Dr. Mubashara Anwaar who examined the victim did not enter the witness-box to prove her Medico-legal certificate and her non-availability at the relevant time could not be condoned as the process-server (deputed to effect service on her) was not produced as a witness in Court.
' Azhar Javed, Dispenser District Headquarter Hospital, Mandi Baha-ud-Din entered the witness-box as P.W.10 and on being questioned about lady Dr. Mubashara Anwaar deposed that "Dr. Mubashara Anwaar had gone abroad for the last more than one year". He stated that having worked with her during the period she remained posted as District Headquarter Hospital, Mandi Baha-ud-Din he could identify her handwriting and signatures. It is through him that the Medico-legal report Exh.P.G. Was proved. He deposed in clear terms that it was in the hand of Dr. Mubashara Anwaar and also bore her signatures.
' Thus, the legal requirement of production of secondary evidence stood duly fulfilled as postulated by Article 76 of Qanun-e-Shahadat Order, 1984. It is necessary to reproduce the report of the Lady Doctor about the examination of the victim in extenso as under:--
(1) A young girl brought to me via police for the examination of rape. Date of examination: 23-7- 1994 at 11-20 p.m. Age: 14/15 years.
(2) marks of violence.--- (i) Contused bruise area 7 c.m. x 6 c.m. Around left eye. There is redness of the left eye also (ii) red bruised area 7 c.m. x 6 c.m. Around the R.T. Eye redness in the right eye present. (conjectival haemorrhage) (ii) contusion 18 c.m. x 2 c.m. Around and in front of neck (from left to right ear lobile) Admitted for (sic) of injuries.
(iv) Bite on the tip of tongue 2 c.m. x 2 c.m. Area (3) Clothes Shalwar is stained with blood discharge and soaked which is sealed into parcel and sent to Chemical Examiner.
(4) Examination private parts.--- Thick black abundant hairs on vulva.
' Hymen. Fresh tear present 2 c.m. x 1 c.m. With blood and pus on it. External and internal vaginal swa bs taken, secured and sent to the Chemical Examiner, Punjab for detection of semen. Vagina 2 F passed difficulty, blood came on p/v into R/v R/F size....
FX clear.
' Menstruation: Age of ... 12-13 years M/C 4-5 days and M.D. Two weeks back according to her statement.
Breasts: Nipple pink colour.
' Final opinion will be given after the receipt of report of Chemical Examiner.
K.U.O.
Weapon Strangulation.
' This important piece of corroborative evidence qua the testimony of the victim and the eye- witnesses was not adverted to. Significantly, defence did not raise any objection, whatsoever, about the proof of the Medico-legal certificate (Exh.P.G.) through Azhar Javed, Dispenser while he was being examined by the prosecution.
25. Another important corroborative piece of evidence which was lost sight of by the trial Court was the report of the Chemical Examiner (Exh.P.H.) which showed that the anal swabs and the Shalwar of the victim were found to be stained with semen and blood.
26 .The trial Judge also fell in error in law by advancing reasons, to disbelieve the prosecution story, which are not only fallacious but also artificial. He doubted the presence of eye-witnesses at the spot by observing "again P.W.6 has stated that when they reached at the spot they did to hear the voice of anybody and there was no noise whatsoever coming from the spot. This showed that these P.Ws. Were not attracted on spot due to some noise". He failed to consider the statement of the victim that after she had been forcibly carried to the Kinno garden by the respondents they gave a beating to her on her eyes and neck and tightened her neck with "Bochan". The poor soul was almost strangulated to death whereafter the respondents satisfied their lusts, one after the other by raping her. She became unconscious and then the respondents ran away due to the approach of the eye-witnesses at the spot. She was taken on a cot to the house. Could a victim placed in above situation raise noise while being subjected to Zina-bil-Jabr. The answer obviously would be in the negative. It is unfortunate that deliberate effort was made by the trial Judge to discard the ocular testimony of both Sher Ahmad and Said Ahmad.
'Another reason advanced for disbelieving the prosecution story was that Muhammad Aslam respondent though was brother of wife of Allah Bakhsh respondent yet they had strained relations inter se. Therefore, it seemed "irrational" to believe that these two persons could jointly commit such a shameful act together. The learned trial Judge while making this sweeping statement failed to consider the normal human conduct in such a situation. Even two enemies could join hands to commit sexual crime together.
' All the above noted reasons were not only artificial and ridiculous but also shocking.
27. We also noticed that minor discrepancies/variations in the prosecution evidence were blown out of proportion by the lower Court thus vitiating the impugned judgment. In para.10 (middle part) it was observed that Mst. Atia Bibi deposed that occurrence took place at 2-00 a.m. Night whereas P.W.6 and P.W.7 stated that Kalsoom mother of the victim came to their Dera at 1-00 a.m. Night and told them that Atia Bibi is missing and they started search for her. Question arises as to whether these rustic villagers could give exact and identical time of the occurrence which took place at the dead of night. Likewise, the statement of P.W.6 that police met them at Salam Bridge at about 4-00 p.m. Whereas statement of the complainant was recorded was doubted for the reason that the time mentioned in the statement of the complainant was 7-30 p.m.
' The direction from which the eye-witnesses approached the spot had also been subjected to criticism in the impugned judgment. It was observed that the complainant stated that her uncle came to the spot from western side whereas the rough site plan prepared by the police showed that these P.Ws. Came from north-eastern side. Could it be reasonably expected from the victim lying prostrate on the ground and being raped to give exact/correct direction of approach of the P.Ws. To the spot?
28. The delay of 18 hours in lodging the F.I.R. Has also been highlighted by the observation in the impugned judgment that case might have been got registered after the deliberation.
' It is well-settled that delay, per se, in lodging the F.I.R. Has never been considered to be a ground for disbelieving the prosecution story. In the present case this is particularly so because the family of the victim went into deep shock on seeing the plight of the victim. She had become unconscious due to the fiendish conduct of the respondents. She had to be carried on a cot to her house. It was night time and natural worry of the whole family was diverted to attend to her. After she gained consciousness she was carried on a motorcycle by Sher Muhammad for lodging the F.I.R. Per chance police met them near the Salam Bridge where her statement was recorded. There was no justification, whatsoever, to cast doubt qua the prosecution case by the so-called delay in lodging the F.I.R.
29. Mst. Atia Bibi was in her adolesence age. According to the observation of the lady doctor she was 12/13 years old. She lost her virginity at the hands of the respondents in the traumatic incident.
30. The upshot of the above discussion is that the impugned judgment presents a classic case of perversity of approach adopted for determination of the fate of the case. No other conclusion than the guilt of the respondents could have been reached in the face of overwhelming evidence on record.
' It is manifest clear that the trial Judge delivered a laboured judgment, for reasons best known to him, which cannot be sustained on my discoverable ground regarding administration of justice in a criminal case.
31. For what has been stated above, this appeal is accepted and after setting aside the impugned judgment Allah Bakhsh and Muhammad Aslam respondents are convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
32. We have pondered over the question of quantum of sentence to be awarded to them. It is unfortunate that this criminal appeal against acquittal filed in the year 1996 came up for hearing before us in the year 2004. All the time the aggrieved girl and her relatives must have been anxiously waiting to see that the culprits would be brought to justice. However, we cannot ignore the fact either that the respondents, too, would have remained restive and anxious about their fate, throughout this period, due to the pendency of this appeal.
' Taking into account the facts and circumstances of the case we consider that sentence of seven years' R.I. To both the respondents would meet the ends of justice. Order accordingly.
' Keeping in view the gravity of the offence, the plight of the victim, and the callous rather brutal conduct of the respondents we do not consider that they are entitled to the benefit of section 382- B, Cr.P.C. Which is denied to them hereby.
'Respondents are not in attendance in Court despite issuance of bailable warrants. They shall be arrested and sent to jail to serve out their sentences.
33. The above are the reasons for the short order announced on 11-11-2004.