This appeal is directed against the judgment dated 30.6.2006 passed by Additional Sessions Judge Alipur District Muzaffargarh whereby appellant Muhammad Javed son of Karam Hussain has been convicted under Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced.to four years RI with benefit of Section 382-B Cr.P.C, in case F.I.R No 118 dated 15.5.2002 registered with police station Khairpur Sadat, District Muzaffargarh at the instance of Hazoor Bakhsh father of abductee Mst. Shaheena aged about 17/18 years.
2. Brief facts of the case as given in the F.I.R are that Mst. Shaheena aged about 17/18 years was given in nikah on 25.4.2002 with one Muhammad Jamil but yet rukhsati had not taken place. Mst.
Shaheena was not at home at 3.00 p.m when her father had come back after Zohar prayer. He asked about her while her mother informed that she had gone to the house of Karam Hussain her maternal uncle. He waited for her but she did not come back. Hence he went to the house of Karam Hussain where Karam Hussain and his son Muhammad Javed were not present nor the daughter of the complainant was present there. On his query the inmates had been avoiding to explain the said position, thereafter he came back and on his way he met Allah Diwaya and Nazar -- Hussain and they had told the complainant that they had seen Muhammad Javed and Karam Hussain on motorcycle along with Mst. Shaheena Bibi going towards Alipur. According to the complainant Muhammad Javed has abducted Mst. Shaheena with the help of his co-accused namely Karam Hussain, Shahzad and Shan for the purpose of zina-bil-jabr with her. The complainant again approached Karam Hussain who had come back. He admitted the abduction of Mst. Shaheena and promised to return her but now he refused to return Mst. Shaheena. Hence this case.
3. After registration of the case investigation started. The I.O. being in the company of the complainant Hazoor Bakhsh found Mst. Shaheena in the company of Muhammad Javed in Mirani Chowk Khairpur Sadat on 18.5.2002 in the morning at 7/8 a.m. The accused was arrested by the I.O., while victim was made to join investigation. Her statement under Section 161 Cr.P.C. was recorded and further more she was produced before the Magistrate for recording her statement under Section 164 Cr.P.C. and permission for her medical examination. Learned Magistrate recorded her statement under Section 164 Cr.P.0 and thereafter she was got medically examined and accused was also got medically examined for determination of his potency. After completion of investigation all the four accused were challaned to fate trial. The trial Court charged all the four accused for commission of offence punishable under Section 11 Offence of Zina (Enforcement of Hudood) Ordinance 1979 while Muhammad Javed accused alone was also charged for commission of offence of Zina-bil-jabr punishable under Section 10(3) Offence of. Zina (Enforcement of Hudood) Ordinance, 1979. All the accused denied the charge and claimed trial.
4. The prosecution produced in all nine witnesses to prove its case and also tendered in evidence medico legal report of the victim, statement of the victim recorded under Section 164 Cr.P.C., and potency report of the accused and positive report of Chemical Examiner. The statement of the accused was also recorded under Section 342(b) Cr.P.C. After conclusion of the trial the trial Court was pleased to acquit all the four accused of the charge under Section 11 of the said Ordinance.
However, the trial Court convicted Muhammad Javed alone for commission of offence punishable under Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him as noted above. Hence this criminal appeal.
5. Learned counsel for the appellant has argued that statement of the victim under Section 164 Cr.P.0 was recorded on the same day i.e 18.5.2002 when she was recovered wherein she had categorically stated that neither she was abducted by any body nor she had been subjected to zina-biljabr and further she had expressed her desire to accompany her father which was allowed by the learned trial Magistrate. Hence his evidence recorded by the trial Court can not be given much do weight wherein she has implicated the appellant of offence of zina-bil-jabr. Further argued that even medical evidence does not fully corroborate the commission of offence of zina- bitjabr with her, in particular when there is no mark of violence on any part of her body including her private parts. Further argued that there was no material on record whatsoever that she has been subjected to zina-bil-jabr, Further argued that the appellant is entitled to benefit of doubt as the evidence of the prosecutrix is self contradiction and not confidence inspiring while there is no independent corroboration. Hence his conviction under Section 10(3) Offence to Zina (Enforcement of Hudood) Ordinance, 1979 is not sustainable in law. In this regard reliance is placed on a judgment reported as 2007 SD Page 233 (lbrar Hussain and others Vs. The State) and 2007 SD page 302 (Waqar Nazir and another Vs. The State).
6. On the other hand learned DPG Punjab has argued that the appellant has already been given of benefit of doubt to the extent of commission of offence under Section 11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979. While commission of offence under Section 10(3) of the said Ordinance has fully been proved through oral testimony of the prosecutrix which is further corroborated by medical evidence. Hence the conviction of the appellant under Section 10(3) of the said Ordinance is in accordance with law.
7. Heard. Record perused.
8. As per prosecution story given in the F.I.R Mst. Shaheena aged 17/18 years was given in nikah with Muhammad Jamil on 25.4.2002 and her rukhsti had not taken place when she was abducted by Muhammad Javed with the help of his co-accused namely Karam Hussain, Shahzad Ahmad and Shan. All three co-accused of the appellant including the appellant have been acquitted of the charge under Section 11 of the said Ordinance, while the appellant Muhammad Javed alone has been convicted and sentenced for commission of zina-bil-jabr with Mst. Shaheena under Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The acquittal of all the four accused under Section 14 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has neither been challenged by the State nor by the complainant though appeal, hence it would be presumed that this portion of the prosecution story was actually incorrect. Mst. Shaheena thus had accompanied Muhammad Javed with her free will who is otherwise her maternal uncle's son. Mst.
Shaheena was recovered on 18.5.2002 by the police when she was in the company of Muhammad Javed accused at Mirani Chowk of Khairpur Sadat. She was allowed to accompany her father who was also present with the I.O. while the accused was arrested. On the same day i.e 18.5.2002 her statement under Section 164 Cr.P.0 was recorded by the Magistrate wherein she had denied to have been abducted by any body or subjected to zina-bil-jabr by any one. It is Ex.PF. Again the learned Magistrate allowed her to accompany her father, who was present out side the Court. The accused was again produced before the Magistrate by the police for seeking permission for her medical examination, as she had leveled allegation of zina-bil-jabr against accused Muhammad Javed in her statement record under Section 161 Cr.P.C. by the police. This time Mst. Shaheena took `U turn and supported her statement recorded by the police under Section 161 Cr.P.C. and stated that she had been abducted and subjected to zina by accused Muhammad Javed. However, the learned Magistrate noted in her order that from her face it was evident that she was terrified. Thus it appears that when she had not supported the version of her father before the Magistrate in her statement recorded under. Section 164 Cr.P.C. therefore, she had been terrified by the police as well as her father. Otherwise the proceedings of the Magistrate whereby he recorded the statement of Mst. Shaheena under Section 164 Cr.P.C. The accused was not where but only the police and her father was present outside the Court and thereafter again after few minutes she was produced by the police when she took 'LP turn.
9. In the Court of law when Mst. Shaheena appeared as P.W.7 she fully supported the prosecution version that she was abducted and also subjected to zina-biljabr by the accused Muhammad Javed. Thus the statement of the prosecutrix made in the Court cannot be believed being contrary to her statement recorded made under Section 164 Cr.P.C. immediately after her recovery.
However, the medical evidence corroborates the version of the prosecutrix to the extent that she had been subjected to sexual intercourse during the period she was in the accompany of Muhammad Javed accused. The lady Dr. Rabia Sultana had found that hymen was torn and fresh tears margin was present and further the doctor has opined that tears are four days old. Further the lady doctor found that there was no marks of violence present on her body nor on any other marks of violence was found on volva or vagina. Therefore, if the prosecution version is put in juxtaposition with the medical evidence. It is to be proved beyond shadow of doubt that Mst.
Shaheena was subjected to sexual intercourse between 14.5.2002 to 18.5.2002, and this sexual intercourse has been done with her will she was also a consenting party. It is not the case of Mst.
Shaheena that appellant Muhammad Javed had subjected her to sexual intercourse against her wishes at gun point. The absence of sign of resistance on her body and further in particular on her private part clearly reflects that she was a consenting party. In the statement got recorded under Section 164 Cr.P.C. she herself has admitted that she wanted to marry Muhammad Javed accused who is his closely related to her and further she had accompanied the accused with her free will while his parents wanted to marry her against her wishes with some one else and she was not willing to marry the said person. The statement of Mst. Shaheena recorded under Section 164 Cr.P.C. also fortifies the view expressed above.
10. In view of what has been discussed above, I have come to the conclusion that no doubt Mst.
Shaheena was subjected to zina by the accused Muhammad Javed during the period she was with him i,e, 4.5.2002 to 18.5.2002 but the prosecutrix was a consenting party and thus it was a case of zina-bil- raza punishable under Section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Therefore, I alter the conviction of the appellant from Section 10(3) of the said Ordinance to Section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentence him to two years R.I and further to pay a fine of Rs, 10,000/- in default thereof to further undergo S.I for three months.
The appellant shall also be entitled to the benefit of Section 382B Cr.P.C. as already extended by the learned trial Court.
With this modification in the conviction and sentence the appeal is disposed.