' S.A. RABBANI, J.--- The appellant was convicted by 1st Additional Sessions Judge, Hyderabad under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for which he has been sentenced to seven years rigorous imprisonment. He was also convicted under section 341, P.P.C., with a sentence of one month simple imprisonment and a fine of Rs,500. It was ordered that both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to him.
2. The charge against him was that, on 12-9-1998, he abducted seven years minor girl Hairat Bano daughter of Anwar Awan, wrongfully restrained her and committed Zina-bil-Jabr upon her.
3. To prove the charge, the prosecution examined nine witnesses before the trial Court. P.W. Dr. Farida had examined the alleged victim Hairat Bano, aged about 7 years, and she found her hymen ruptured and she was of the opinion that Zina was committed upon her. During chemical examination, the Chemical Examiner found blood on the swab but semen was not detected.
4. Mr. Abdul Razzaq, learned counsel representing the appellant, submits that according to the findings of the trial Court, the appellant was a minor aged about 12 years, but he has been sentenced under section 10(3) of the Ordinance to seven years rigorous imprisonment. He submits that the appellant has already served out the sentence of more than three years. Mr. Agha Zafar Ali, learned State Counsel, submits that according to the record, the appellant was arrested on 14-9- 1998 and he was released on bail on 1-2-2001. He submits that the appellant was again taken into custody on 28-4-2005 and, thus, he has served out the total sentence of three years, one month and fifteen days.
5. The learned Judge of the trial Court has observed, in the judgment, that the age of the appellant on 30-8-1998 was 12 years and he was a minor at the time of commission of the alleged offence. In view of this finding, the punishment awarded to him should have been under section 7, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. P.W. Dr. Abdul Quddoos had examined the accused/appellant and, according to him, he was aged about '13/14 years, but according to Radiologist report his age was 12 years. The Medical Officer, however, was of the opinion that the accused was capable of performing sexual act. Section 7 of the Ordinance provides that a person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or both.
6. Accordingly, the conviction of the appellant is converted to be under section 7 of the Ordinance and the sentence is converted to that already undergone. The appellant was also sentenced to a fine of Rs,500, in default of payment whereof, he had to suffer simple imprisonment for fifteen days.
This simple imprisonment of fifteen days, for non-payment of fine, shall also be covered by the sentence already undergone.
' In view of this modification of the sentence, the appellant shall be released in this case forthwith.
The appeal stands disposed of.