' This jail criminal appeal filed by Muhammad Jamil son of Allah Diwaya is directed against the judgment dated 12-5-2004 passed by the learned Additional Sessions Judge, Rajanpur whereby he has convicted him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo 10 years' R.I. With fine of Rs,10,000 or, in default of payment of fine, to further suffer six months' S.I. The benefit of section 382-B, Cr.P.C. Has been extended to him.
2. Briefly stated facts of the prosecution case, as disclosed in complaint (Exh.P.C.) recorded on the statement of Khawaja Bukhsh (P.W.3) which was incorporated into formal F.I.R. At Police Station Kot Mithan on 28-1-1998 at about 2-35 p.m. Are to the effect that 3/4 months before, he had taken house on rent at Rajanpur where the appellant Muhammad Jamil along with Muhammad Iqbal acquitted/co-accused, being his neighbours, were on visiting terms with him. However, on suspicion about his illicit relations with his daughter Mst. Farhat Ferdos (P.W.4) victim, he restrained the appellant from coming to his house. In the meanwhile he shifted from Rajanpur to Kot Mithan.12/13 days prior to the registration of the F.I.R. When he returned to his house, he found his daughter Farhat Ferdos missing. On his asking, his wife informed him that she had gone to the shrine but had not returned therefrom. He started search of his daughter. During search he, met Mujeeb-ur-Rehman (P.W.6) and Abdul Rashid (P.W.5) who informed him that they had seen his daughter in the company of appellant along with acquitted/accused Muhammad Iqbal and Mst.
Tahira (P.O.) in Dala bound for Rajanpur. The complainant along with the above mentioned P. Ws.
Went to the acquitted/co-accused Muhammad Iqbal and demanded hand of his daughter/victim who promised to do so but later on refused. He requested that legal action against the appellant along with acquitted/accused Muhammad Iqbal and his sister Tahira (P.O.) who had enticed away his daughter for illicit intercourse may be taken. The appellant was arrested on 7-11-2001 by Azhar Hussain, A.S.-I. (F 1.8) and after necessary investigation he challaned him, along with acquitted/co- accused, to face the trial. The appellant Muhammad Jamil along with Muhammad Iqbal and Muhammad Saleem were formally chaiged on 13-2-2000 but they did not plead guilty to the charge and claimed trial. On conclusion of trial, only the appellant was convicted and sentenced as mentioned hereinabove.
3. At the trial, prosecution examined ten witnesses in support of its case. Lady Dr. Zarina Jabeen, W.M.O. (P.W.1) on 18-4-1998 at 12-30 p.m. Medically examined victim Mst. Farhat Ferdos and observed as under:-- "She was a young girl sitting comfortably. There was no marks of violence on her body."
P. V . Examination ' Vulva and vagina were healthy. Vulva was covered with coarse hair. There was no mark of violence on external genitalia. Hymen was torn. Margins of torn hymen were not fresh. There was no bleeding, P.V. Vagina admitted two fingers easily.
' Uterus was of normal size. Two external and two internal swabs were taken, sealed and sent to the Chemical Examiner for analysis. I handed over the above said two sealed phials and one sealed envelop to the police. Exh.P.A. Is the correct carbon copy of my Medico-legal report which is in my hand and bears my signatures. The medical examination was conducted on the basis of application Exh.P.A./1 submitted by the police. I had received the report of Chemical Examiner Exh.P.B., which was produced by me before this Court. As per the report of Chemical Examiner Exh.P.B., the swa bs sent by me to the Chemical Examiner have been found to be stained with semen. In view of the above report, I am of the opinion that intercourse with the examinee had been committed within 72 hours of my examination."
' Muhammad Tufail, Constable (P.W.2) on 28-5-1998 received sealed envelope and two seal phials which he deposited in the office of Chemical Examiner. Khawaja Bukhsh (P.W.3) is the complainant who reiterated his statement as mentioned hereinabove. Farhat Ferdos (P.W.4) victim supported the prosecution version and stated that the appellant remained committing Zina-bil-Jabr with her during all period. Abdul Rashid (P.W.5) and Mujeeb-ur-Rehman (P.W.6) are Vajtakers. Both of them also supported the prosecution case. Akhtar Hussain, Head Constable (P.W.7) recorded formal F.I.R.
(Exh.P.C./1) on the basis of complaint (Exh.P.C.) Azhar Hussain, A.S.-I. (P.W.8) on 7-11-2001 arrested the appellant and got him medically examined. Irshad Ahmed (P.W.9) on 17-1-2001 received non- bailable warrants of arrest of the appellant. He searched him but could not find him, thereafter proclamation notice under section 87, Cr.P.C. Which were returned by him with his reports. Ghulam Sarwar, A.S.-I. (P.W.10) on 28-1-1998 recorded the complainant (Exh.P.C.) on the statement of the complainant and sent for registration of the formal F.I.R. At police station. He inspected the spot and recorded the supplementary statement of the complainant who involving Muhammad Saleem, accused which he arrested on 5-2-1998. On 18-4-1998 the complainant produced Mst.
Farhat Ferdos, victim before him and he recorded her statement under section 161, Cr.P.C. And got her medically examined. On 26-4-1998 he joined Mst. Tahira (P.O.) in the investigation and Muhammad Iqbal accused on 28-4-1998. During investigation he found Muhammad Saleem. Mst.
Tahir and Muhammad Iqbal guilty.
4. The appellant when examined under section 342, Cr.P.C. Wherein he denied the allegation of abduction and enticing of the victim but claimed her as his wife. In reply to question why this case against you and why the P.Ws. Have deposed against you? In these words:-- "A false case has been got registered against me and my co-accused. In fact Mst. Farhat Firdos contracted marriage with me of her own free-will and consent and she had been residing with me as my wife at Sadiqabad. The father of the victim was not happy on this marriage. So, he brought Mst. Farhat Firdos on the pretext of attending a marriage and later on refused to permit her to live with me and also tortured her. So the P.Ws. Who are interested, have deposed falsely against me."
' He declined to make his statement on oath as required under section 340(2), Cr.P.C. As well as to produce evidence in his defence.
5. I have heard the learned counsel for the parties and have perused the record with their assistance. After arguing the case at some length learned counsel for the appellant submitted that he does not press the appeal on merits but requests for reduction in the sentence of imprisonment on the ground that he is first offender, belonged to poor family and deserve mercy. He further submitted that fine, which is imposed on the appellant but is not legally required under section 10(3) of the Ordinance, may be set aside. Mr. Shafqat Munir Malik, Assistant Advocate-General along with Mr. Muhammad Sharif Janjua, Advocate appearing on behalf of State also agree in this respect. I have gone through the facts and circumstances and material available on record.
Keeping in view the same as well as contents of the initial report made by the complainant, overall facts and circumstances of the case, I am also inclined to reduce the sentence of appellant in the interest of justice.
6. For the reasons stated above I maintain conviction of the appellant namely Muhammad Jamil son of Allah Diwaya under section 10(3) of the Ordinance passed by the learned Additional Sessions Judge, Rajanpur on 12-5-2004 but reduce the sentence of his imprisonment from ten years' R.I. To five years R.I. The sentence of fine of Rs, 10,000 is set aside as not legally required. The benefit of section 382-B, Cr.P.C. Extended to him by the learned trial Court shall remain intact.
7. With these modifications in the sentence of imprisonment and fine, this appeal is dismissed.