' MUHAMMAD ZAFAR YASIN, J.--- Through this jail criminal appeal Mazhar Hussain convict/appellant has challenged judgment passed by learned Additional Sessions Judge, Multan dated 31-5-2006 whereby the appellant has been convicted under section 16 as well as under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and on each count he has been sentenced to 7 years' R.I. With fine of Rs,2,000 in default whereof one months' R.I. Both the sentences are to run concurrently and benefit of section 382-B, Cr.P.C. Has also been extended to the appellant.
2. Brief facts of the case as emerged from F.I.R. No,205 of 1999, dated 17-11-1999 Police Station Budhla District Multan recorded at the instance of Allah Ditta, husband of the victim Mst. Shamim Akhtar are that complainant submitted a written complaint Exh.P.A. To Muhammad Arif, A.S.-1.
Stating therein that he is labourer by profession and was' married with Mst. Shamim Akhtar about 2-1/2 years before the occurrence. Out of this wedlock a female child was born who has died 15/16 days back, the complainant had gone to Multan for earning his livelihood and his wife was alone at his house. He came back in the evening and found his wife missing. He started searching his wife and ultimately Manzoor Ahmed and Allah Ditta, P. Ws. Informed him that they haeseen Mst.
Shamim accompanying Mazhar Hussain, Saleem and Riaz and further they boarded on bus. Mst.
Shamim had also a Gathry with her. The complainant thereafter found that golden ornaments and her valuable clothq were also missing. Further stated that Mazhar Hussain was his friend who had developed illicit relations with Mst. Shamim Akhtar and he has abducted her with the help of Saleem and Riaz, co-accused, for the purpose of Zina. Further stated that in this respect a Punchiat was arranged and Mazhar Hussain had promised to return the wife of the complainant but later on he had declined' to do so, hence this F.I.R.
3. The case was investigated, neither the co-accused of the appellant were arrested nor the victim was recovered hence the police got declared all the three named accused as well as Mst. Shamim Akhtar as proclaimed offenders. However, thereafter, on 14-7-2000 Muhammad Riaz and Saleem were arrested. Subsequently, on 28-7-2000 Mazhar Hussain, accused/appellant was also arrested and he got recovered Mst. Shamim Akhtar on 31-7-2000. After recovery, her statement under section 161, Cr.P.C. Was recorded and she was got medically examined on 31-7-2000. Thereafter all the three accused were challaned and charge-sheeted under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance while Mazhar Hussain accused was also additionally charged under section 10(3) of the said Ordinance for committing Zinabil-Jabr with Mst. Shamim Akhtar accused did not plead guilty and claimed trial.
4. In order to prove the case, prosecution produced 10 witnesses and also tendered in evidence the report of the Chemical Examiner and medical report of Mst. Shamim Akhtar. After close of the prosecution evidence, the statement of each of the accused under section 342, Cr.P.C. Was recorded wherein all the accused denied the allegations claimed innocence and further stated that they have been falsely implicated in this case. None of the accused opted to make statement on oath under section 340(2), Cr.P.C. Nor produced any evidence in defence. On the basis of the prosecution evidence, the trial Court has been pleased to acquit accused Muhammad Riaz and Muhammad Saleem, while Mazhar Hussain, appellant was convicted under sections 16 and 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced as noted above. Hence this jail appeal.
5. Learned counsel for the appellant has argued that there are material contradictions in the prosecution evidence regarding the story of abduction or enticing away Mst. Shamim Akhtar by the appellant i.e. Allah Ditta complainant had stated that after 2 months of the occurrence he had reported the matter to the police while in the F.I.R. He had stated that the occurrence of abduction of his wife had taken place 15/16 days earlier. Further argued that in the statement of appellant/accused recorded under section 342, Cr.P.C., the age of the accused has been recorded as 19 years on 4-8-2005 while the F.I.R. Was lodged on 17-11-1999, thus at the time of occurrence the age of the appellant would be about 14 years. Further argued that in any case it is evident from the F.I.R. And other prosecution evidence that by mutual understanding the alleged victim eloped with the appellant. Further commission of Zina was also with consent and it was not Zina-bil-Jabr.
Further argued that Mst. Shamim remained with the accused for a period of about 9 moths and during this period she had been travelling in different cities and towns but she never attempted to come back to her marital domicile, therefore, conviction under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance is not maintainable. Further argued that she was having pregnancy as stated by Lady Dr. Shahida Parveen, W.M.O. P. W.10 that she was pregnant of 12 weeks at the time of examination i.e. On 31-7-2000. Thus, it was a case of Zina-bil-Raza and not a Zina- bil-Jabr.
6. On the other hand learned D.P.-G. Has argued that the appellant has enticed away a married lady and has been committing Zina with her which has been proved from the medical evidence through P. W.10 that Mst. Shamim Akhtar was pregnant of 12 weeks but even the report of the Chemical Examiner shows that swa bs were stained with semen, hence the conviction and sentence under section 16 and section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance is in accordance with law.
7. I have heard the arguments of both the parties and have also gone through the record. Even from the F.I.R. It is evident that Mst. Shamim Akhtar had developed illicit relations with accused Mazhar Hussain, thus, she had eloped with Mazhar Hussain wither own free will. The trial Court ahs also taken the same view of the evidence and thus has acquitted the co-accused namely Muhammad Riaz and Muhammad Saleem from the charges under sections 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance. Furthermore, Mst. Shamim Akhtar remained with Mazhar Hussain and even travelled all the way from Multan to Lahore, Karachi and again to Lahore but during this period of 8/9 months she had neither objected nor raised any hue and cry that she has been abducted or has been enticed away and she is being subjected to Zina-bil-Jabr. The record reveals that originally investigating agency, even got declared Mst. Shamim Akhtar as one the co- accused and a proclaimed offender. It was only after her recovery and arrest of Mazhar Hussain, she was made a P.W. Otherwise the evidence and the conduct of the alleged victim Mst. Shamim Akhtar shows that she was a consenting partner for the purpose of Zina as well.
8. In view that has been discussed above, I uphold the conviction of appellant Mazhar Hussain under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance. However, instead the conviction of appellant Mazhar Hussain under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance. However, instead the conviction under section 10(3) of the said Ordinance the appellant. Mazhar Hussain is liable to be convicted under section 10(2) of the said Ordinance.. .
9. As regards the sentence, it is evident that Mst. Shamim Akhtar was well-matured married lady, she accompanied her paramour Mazhar Hussain with her free will, remained with him for about 8/9 months and did not raise any objection and has been enjoying sexual intercourse and resultantly she was found pregnant of 12 weeks when she was medically examined by lady doctor, P.W.10 on 31-7-2000, after her recovery. Therefore, the sentence of even years to Mazhar Hussain under section 16 as well as under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance is too excessive, therefore, I reduce sentence to meet the ends of justice from seven years to three years on each count i.e. Under sections 16 and 10(2) of Offence of Zina (Enforcement of Hudood)
Ordinance and with fine of Rs,2,000 on each count and in default whereof one months' S.I. The appellant shall also be given the benefit of section 382-B, Cr.P.C. Both the sentences shall run concurrently.
10. With this modification in the conviction and sentences the appeal is disposed of.