1. Ghulam Mustafa, convict has preferred the instant appeal from jail for getting his conviction and sentences set aside recorded by Mr. Sohail Ikram, Additional Sessions Judge, Lahore. The appellant was convicted under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to undergo nine years R.I. with fine of Rs, 10,000/- or in default to suffer six months R.I., with benefit of Section 382-B Cr.P.C. He was also ordered to be whipped twenty stripes.
2. According to the prosecution, Shabana Rafique daughter of Muhammad Rafique, complainant aged about 11 years was abducted by the appellant on 15.2.2000 at about 7 p.m. Briefly the facts narrated by complainant Muhammad Rafique in his application Exh.PA on which formal FIR was registered, are that Ghulam Mustafa, appellant was on visiting terms with the complainant as he used to work in the adjacent mosque of fixing mirrors etc. On the day of occurrence i,e, 15.2.2000 at about 7 p.m. Ghulam Mustafa, appellant alongwith one unknown person visited the house of the complainant. His wife was preparing tea. Ghulam Mustafa stealthy mixed some intoxicant in the tea as a result of which all the inmates of the house fell unconscious and went to sleep. On 16.2.2000 it was found that Shabana Rafique aged about 11 years had been abducted by Ghulam Mustafa alongwith his companion.
2. 3.After registration of the complaint, usual investigation was carried out. Ultimately the appellant was sent up to face trial on three counts i,e, under Section 337-J, PPC for administering intoxicant, under Section 11 of the Ordinance for abducting Mst. Shabana Rafique for illicit purposes and under Section 10(3) of the Ordinance for committing zina. He pleaded not guilty, therefore, the trial commenced against him.
3. 4.During trial the prosecution examined nine-witnesses. Muhammad Rafique, complainant appeared as PW.1. He reiterated the statement as already made by him to the police in the FIR. The victim Shabana appeared as PW.2. She gave her age as 13 years. She supported her father by stating that some intoxicant was mixed in the tea as a result of which she became unconscious.
4. She was taken to Islamabad and kept for 13/14 days, from Islamabad to Bahawalpur and remained with him for two months. During all that period, she was subjected to zina-biljabr by Ghulam Mustafa, appellant. She was medically examined on 9.6.2000 i,e, after about four months of the occurrence. During cross-examination, she admitted that although she was taken from place to place yet she did not raise any alarm or tried to escape from the custody of the appellant except when she was in Lahore where she raised hue and cry whereafter she was taken to police station.
5. Her statement was recorded under Section 164 Cr.P.C. She was handed over to her parents. Dr. Lubna Naseem PW. 3 medically examined Shabana Rafique on 9.6.2000. She mentioned her age as 12 years. On general and local examination, the following findings were made: "General Examination: No marks of any recent violence on her body: Local Examination: 1.No marks of any injury on her external genitalia.
6. 2.No stains of semen or blood on her body or clothes; history of change of clothes, history of bath taken.
7. Hymen torn old, two old completely healed tears at 5'O clock position and 9'0 clock position.
8. Vaginal swa bs were taken, sealed and sent to the Chemical Examiner for detection of semen blood and semen grouping." PW.4 Rehmat Ali is a witness who saw the appellant taking away Mst Shabana alongwith another unknown person who had muffled his face. PW.5 Muhammad Azam is another witness of abduction. He made statement in line with the narration made by PW.4. Dr. Junaid Mumtaz Shami, PW. 6 examined' the appellant for his potency and found him fit to perform sexual intercourse. Mr. Muhammad Shahid Javed, Magistrate, PW. 7 recorded statement of Shabana Rafique under Section '164 Cr.P.C. (Exh.PE). Necessary formalities were performed before recording the statement. Shabana being minor was handed over to her parents. PW. 8 is Qaiser Waseem, S.I. He recovered Shabana from the custody of Ghulam Mustafa when the were present in Lahore at Chowk Yateemkhana. Muhammad Bashir, S.I. PW. 5 recorded the formal FIR and conducted preliminary investigation. After examining nine witnesses, the learned prosecutor tendered in evidence report of Chemical Examiner Exh.PP pertaining to the vaginal swabs obtained by the doctor of victim Shabana. Swabs were found to be stained with semen as per report Exh.PP. 5.After close of prosecution evidence, the appellant was examined under Section 342 Cr.P.C. He denied the allegations and pleaded that a dispute occurred between him and the complainant on account of payment of some wages to him. In fact victim Shabana eloped with some unknown person. They were spared being relative of the complainant and instead the appellant was implicated in the case.
9. 6.The learned counsel for the appellant referred to the prosecution evidence especially the statement of Shabana coupled with her medical examination conducted by the lady doctor PW.3 and the report of Chemical. Examiner about the vaginal swabs and conceded that the prosecution has successfully proved the guilt of the appellant. The statement of victim Shabana apart from the medical support is corroborated by the complainant Muhammad Rafique, PW.1 and Rehmat Ali as well as Muhammad Azam, PWs. 4 and 5 respectively. As against the prosecution evidence, the defence plea raised by the appellant appears to be devoid of any substance: He has, therefore, not contested the appellant's conviction. A passionate appeal for reduction in the sentence has been made mainly on the ground that the appellant is a first offender and he has expressed his deep penitence on the act committed by him. He has referred to the medical report of the victim and submits that she had attained puberty, therefore, would be treated as adult within, the meaning of Section 2-A of the Ordinance. He has referred to the impugned judgment especially paras 23, 24, 25 and 26 whereby according to the trial Court no offence under Section 337-J PPC or under Section 11 of the Ordinance could be proved. Even no case of zina-biljabr was made out, therefore; the conviction was recorded under Section 10(2) of the Ordinance. The conduct and behaviour of Shabana, victim throughout reflects that she was a consenting party and willing partner, therefore, sentence of nine years Rd. in the circumstances of the case is excessive.
10. 7.The learned State counsel has supported the conviction. He, however, conceded to the prayer of the appellant for reduction in the sentence especially on account of the consent of the victim for commission of zina and elopement.
11. 8.After hearing the learned counsel for the parties and going through the evidence. I am pursuaded to accede to the prayer of the learned counsel. The appellant's conviction under Section 10(2) of the Ordinance is upheld. However, his sentence of nine years R.I. is reduced to five years R.I. The sentence of fine of Rs, 10,000/- as imposed by the trial Court is maintained. It will be recovered as arrears of land revenue and in default the appellant will suffer six months R.I. Benefit of Section 382-B Cr.P.C. as already granted will remain in tact. The appellant has been awarded twenty stripes. This sentence is violative of the provisions of Abolition of Whipping Act, 1996. The same is set aside. The appeal is dismissed subject to the above reduction in the sentence of imprisonment.