1. Ch. Ejaz Yousaf, C.J.--This appeal is directed against the judgment dated 10.9.2002 passed by the learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali, whereby appellants Basharat Ali son of Jamal Din and Mst. Maryam alias Bali wife of Rehm Dil were convicted under Section 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to "as the Ordinance") and sentenced to suffer life imprisonment each and a fine, of Rs, 50,000/- each or in default thereof to further undergo S.I for two years each. Appellants Mst. Parveen wife of Ghulam Ali, Basharat Ali son of Jamal Din, Saleh Muhammad son of Sain Dad and Ghulam Farid son of Gajee were convicted under Section 10(2) of "the Ordinance" and sentenced to undergo ten years R.I. each and a fine of Rs, 10,000/- each or in default thereof to further undergo S.I. for one year each.
2. Appellants Saima daughter of Irshad and Kishwar daughter of Shabbir were convicted under Section 7 of "the Ordinance" and sentenced to undergo two and a half years R.I. each and a fine of Rs, 1,000/- each or in default thereof to further undergo Si. for two months each. Both the substantive sentences of imprisonment, inflicted on appellant Basharat were ordered to run concurrently.
3. 2.Facts of the case, in brief, are that on receiving spy information that appellant Basharat Ali was keeping and managing a brothel in his house situated in Mohallah Jat and girls, for the purpose of prostitution, were brought therein from other cities, the said house was raided by a police party headed by SHO Bashir Hussain Jamali alongwith Incharge CIA Staff Khalid Zaman Maree and 9 persons, in all, were apprehended whereas, Mst. Maryam alias Bali and another unknown person were able to make their good escape. Complaint, Ex.P/1-A, was accordingly written and sent to Police Station, Dera Murad Jamali for formal registration of the case. Consequently FIR Bearing No, 117/2001, dated 7.10.2001 under Sections 10, 13, 14 of "the Ordinance" was registered and investigation was carried out in pursuance thereof. On the completion of investigation the accused persons were challaned to the Court for trial.
4. 3.Charge was accordingly framed against the accused persons to which, they pleaded not guilty and claimed trial.
5. 4.At the trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the accused persons produced 9 witnesses, in all. PW-1 Bashir Hussain Jamali, complainant was heading the raiding party. PW. 2 Aisha, Lady Constable was also a member of the raiding party. PW.3 Lady Dr. Zughra Baloch had, on 7.10.2001, examined female accused persons namely, Mst. Kishwar, Mst. Nazeeran, Mst. Parveen, Mst. Saima and Mst. Rani. She produced in Court the MLRs concerning to the above named accused persons as Exs.P/3-A, P/3-B, P/3-C, P/3-D and P/3-E besides producing the Chemical Examiner's reports. PW. 4 Hazoor Bakhsh is a witness of the recovery memo, Ex.P/4-A, vide which, the trousers worn by the accused persons, at the time of raid, were taken into possession by the police. PW. 5 Rehmatullah, Head Constable was another member of the raiding party. He is a marginal witness of recovery memo Ex.P/5-A vide which, a T.T pistol with 8 live cartridges alongwith a Hamael, i,e, Article 16, were recovered by the police from the possession of appellant Basharat Ali. PW. 6 Dr. Abdul Qadir Mengal, Medical Officer, DHQ Hospital, Dera Murad Jamali had, on 7.10.2001, examined the male accused persons, namely, Mumtaz Ali, Saleh Muhammad, Ghulam Fareed and Basharat Ali qua the potency test. He produced in Court the MLRs concerning the afore-named accused persons as Exs.P/6-A, P/6/B, P/6-C and P/6-D. PW.
6. 7 Sultan Khan, SI is the Investigating Officer of the case. PW. 8 Wazir Khan, Sub-Inspector had, on 29.11.2001, arrested the absconding accused, namely Mst. Maryam alias Bali. PW. 9 Inayatullah, SI had arrested accused Badal alias Bado, who was allegedly brought to the Police Station by CIA Staff.
7. 5.On the conclusion of the prosecution evidence the accused persons were examined under Section 342 Cr.P.C. In their above statements, all the accused persons denied the allegations and pleaded innocence. They, however, failed to produce any evidence in their defence or to appear themselves as their own witnesses in terms of Section 340(2) Cr.P.C. except appellant Basharat Ali.
8. 6.After hearing arguments of the learned counsel for the parties, the learned trial Judge convicted the accused/appellants and sentenced them to the punishments as mentioned in the opening para hereof whereas, accused persons, namely Badal alias Bado son of Sarwar and Mumtaz Ali son of Anwar were acquitted of the charge.
9. 7.We have heard Mr. M. Saliheen Mughal, Advocate, learned counsel for appellant Mst. Parveen, Mr. Muhammad Aslam Uns, Advocate, learned counsel for rest of the appellants, Qari Abdur Rashid, Advocate, learned counsel for the State and have also perused the record of the case with their assistance, minutely.
10. 8.It has been mainly contended by Mr. Muhammad Aslam Uns, Advocate, learned counsel for the appellants that appellants Basharat Ali and Mst. Maryam alias Bali, having been charged under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, only, could not have been convicted and sentenced under Section 14 of "the Ordinance" because the latter was a major and graver offence in comparison with Section 10(2) of "the Ordinance". It is further his case that the prosecution having failed to prove that the house in question was in exclusive possession of the afore-named appellants, it could not have been in the absence of any evidence, concluded with certainty that they were managing the brothel house.
11. As regards the rest of the appellants, he submitted that he has instructions not to challenge their convictions but to pray for reduction in their sentences of imprisonments on the ground that none of the prosecution witnesses has, at the trial, categorically stated that they had seen them committing zina nor was there any proof that they were involved in the nefarious activities. He has added that since all the appellants were repentant and first offenders, girls namely Saima and Kishwar were of tender age therefore, they may be given a chance to mend their ways by taking a lenient view in the matter of their sentence.
12. 9.Mr. M. Saliheen Mughal, Advocate, learned counsel for appellant Mst. Parveen while adopting the arguments of the learned counsel for the appellants has also prayed for reduction in the sentence of imprisonment of Mst. Parveen on the ground that she too, being repentant, woman and first offender may be dealt with leniently.
13. 10.Qari Abdur Rashid, Advocate, learned counsel for the State while candidly conceding to the proposition that since maximum sentence provided for the offence under Section 14 of "the Ordinance" is imprisonment for life as against the maximum sentence of ten years imprisonment provided for the offence under Section 10(2) of "the Ordinance", submitted that both the appellants i,e, Basharat Ali and Mst. Maryam alias Bali could not have been convicted for the offence under Section 14 of "the Ordinance" without having been specifically charged for the offence. He has stated that he would have no objection in case the sentences inflicted on the appellants are reduced, suitably.
14. 11.We have given our anxious consideration to the respective contentions of the learned counsel for the parties. Record reveals that, in the instant case, all the accused persons were on 6.5.2002 charged under Section 10 of "the Ordinance" but since in the charge itself it has been specifically mentioned that they were allegedly "committing zina with each other with their consent" therefore, it would imply that they were actually charged for committing zina-bil-raza, which is culpable by Section 10(2) of "the Ordinance". Admittedly, the appellants, at the trial, were not charged under Section 14 of "the Ordinance" nor the charge was altered on substituted at a later stage so as to enable the appellants, named above to understand that they were answerable under Section 14 of "the Ordinance". The omission so made, therefore, in our view, was fatal as Section 14 of "the Ordinance" is a major offence in comparison with Section 10(2) of "the Ordinance" because it carries sentence of imprisonment of life as against the imprisonment of ten years provided for the offence under Section 10(2) of "the Ordinance." It may be noted here that an accused person charge with one offence may, under Sections 237 & 238 Cr.P.C., be convicted of another yet, since both these provisions are exceptions to the general rule contained in Section 233 Cr.P.C. that, for every distinct offence there shall be a separate charge, therefore, a person charged with one offence, cannot be convicted of another unless it is doubtful as to what offence is made out against the accused and the offence is cognate to, or a part of or attempt to commit the principal offence, with which the accused was originally charged as provided by Sections 236 and 238 Cr.P.C. Here it would be advantageous to have a glance at Sections 236, 237 and 238 Cr.P.C. which read as follows: "S. 236. When it is doubtful what offence has been committed.--If a single act or series of acts is of such a nature that it is doubtful which of several offence, the facts which can be proved will constitute the accused may be charged with having committed all or any of such offence, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed someone of the said offence.
15. S. 237When a person is charged with one offence, he can be convicted of another.--(1) If, in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
16. S. 238When offence proved included in offence charged.-- (1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
17. (2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
18. (2-A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
19. (3)Notwithstanding in this section shall be deemed to authorize a conviction of any offence referred to in Section 198 or Section 199 when no complaint has been made as required by that section." No doubt, an accused person charged with a graver offence may subject to the conditions contained in the above provisions, be convicted for a minor offence but he, in no circumstance can be convicted for a major offence on the charge of a minor offence. This view receives support from the following reported judgments:-- (i)Sultan Ahmad and others vs. The State -- PLD 1960 SC (Pak) 173; (ii)Sangaraboina Sreenu vs. State of Andhra Pradesh -- AIR 1997 SC 3233; (iii)Shanmugham and another vs. State --1989 Crl.L.J. 203; (iv)Asad Khan vs. The State -- 2004 P.Cr.L.J. 245; (v)Mazullah vs. The State -- 2000 P.Cr.L.J. 534; (vi)Said Bahadur Shah and another vs. The State -- 2000 P.Cr.L.J. 850; (vii)Mangloo vs. Emperor -- AIR 1930 Lahore 544; (viii)Saubaraub Lal vs. Emperor AIR 1935 Patna 431; (ix)Balmuklan and others vs. State -- AIR 1952 Rajasthan 123; (x)Ghulam vs. The State -- PLD 1955 Baghdad-ul-Jadid 9; (xi)Ahmad Din vs. The State -- PLD 1959 (WP) Lahore 760; (xii)Fateh Muhammad vs. The State -- PLD 1961 (WP) Lahore 212; (xiii)Ahmad Yar and another vs. The State -- PLJ 1991 Cr.C. (Lahore) 131; and (xiv)Habib-ul-Wahab-ul-Khairi vs. Prof Dr. Saad Rana -- 2002 YLR 234.
20. And since, in the instant case, the accused persons were not charged under Section 12 of "the Ordinance" which was a graver offence in relation to Section 10(2) of "the Ordinance" and there under entirely different facts were required to be given prominence therefore, convictions and sentences recorded against appellants Basharat Ali and Maryum alias Bali under Section 14 of "the Ordinance" in our view, on the charge framed, cannot sustain. The same therefore, are set aside.
12. Notwithstanding the fact that the learned counsel for the appellants has not challenged convictions recorded against rest of the appellants, we have considered the merits of the instant case in the light of the evidence brought on record. We are convinced that the learned trial lower Court has properly appreciated the evidence and has drawn correct conclusions, as such no interference is called for. In the instant case the appellants were caught red handed. Their guilt, at the trial, was proved through independent and reliable evidence, statements of PWs 1 and 2 are explicit in this regard hence, in the absence of any enmity or motive to falsely implicate the appellants in the offence at the part of the any of the prosecution witnesses they were rightly convicted for the offence by the learned trial Court and we see no reason as to why a different view may be taken. However, keeping in view the submissions made by the learned counsel for the parties especially that the appellants are repentant, first offenders and the girls are teenagers we are inclined to reduce the sentences of imprisonments inflicted on them in the hope that indulgence shown to them would bring out of them law abiding and respectable citizens.
21. Consequently convictions recorded against appellants namely, Saleh Muhammad son of Sain Dad and Ghulam Farid son of Gajee, under Section 10(2) of "the Ordinance" are maintained. However, the sentences of imprisonments inflicted on them are reduced from ten years R.I. each to that of three years R.I. each. The sentences of fine imposed on them are also maintained. However, the terms of imprisonment in default thereof are reduced from one year S.I. each to that of six months S.I. each.
22. Convictions recorded against appellant Basharat Ali son of Jamal Din is altered from under Section 10(2) of "the Ordinance" and he is convicted under Section 10(2) of "the Ordinance" read with Section 109 PPC and is also sentenced to three years R.I. alongwith a fine of Rs, 10,000/- or in default thereof to further undergo S.I. for six months.
23. Conviction recorded against appellant Mst. Parveen wife of Ghulam Ali under Section 10(2) of "the Ordinance" is also altered and she is convicted under Section 18 read with Section 10(2) of "the Ordinance" and sentenced to undergo 18 months R.I. alongwith a fine of Rs, 5,000/- or in default thereof to further undergo S.I. for three months.
24. The conviction and sentences recorded against appellant Mst. Saima daughter of Irshad and Mst.
25. Kishwar daughter of Shabbir are maintained. They are on bail. Their bail bonds are cancelled. They shall be taken into custody to serve out their remaining sentences, if any.
26. Benefit of Section 382-B Cr.P.C. is extended to all the appellants. With the above modification in the convictions and sentences of the appellants, this appeal is hereby dismissed. These are the reasons for our Short Order of the even date.