Shakar son of Ghulam Sarwar alias Mithu, caste Nonari, resident of Chak No, 287/GB, Police Station, Rajana, Toba Tek Singh, was involved in case FIR No, 43/2008, dated 31.1.2008, offence under Section 376, PPC, registered with Police Station, Rajana, District Toba Tek Singh and was tried by learned Sessions Judge, Toba Tek Singh, who vide judgment dated 1.8.2008, convicted the appellant under Section 376, PPC, and sentenced him to undergo ten years R.I. with payment of Rs, 50,000/- as cost and damages to Mst. Kiran Bibi/victim and in case of default in payment thereof, to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.
2. Aggrieved by the judgment of the learned trial Court, the appellant filed Crl. Appeal No, 841/2008.
During the pendency of the appeal, Crl. Misc. No, 1588-M/2012 under Section 345, Cr.P.C., was moved on behalf of the appellant for his acquittal. The application was also supported by affidavits of Ghulam Sarwar son of Bhadar Khan and Shakar son of Ghulam Sarwar. In terms of order dated 23.05.2012, the application along with its annexures was referred to learned Sessions Judge, Toba Tek Singh to ascertain the genuineness of the acclaimed compromise.
3. In pursuance of the order dated 23.05.2012, learned Sessions Judge, Toba Tek. Singh has furnished report Bearing No, 131/Ahl, dated 6.6.2012 wherein it was stated that he was satisfied with the genuineness of the compromise.
4. Learned counsel for the appellant submits that the total sentence inflicted upon the appellant was ten years R.I. and he is behind the bars for the last more than four years. Learned counsel submits that as compromise has been arrived at between the parties; therefore, keeping in view the nature of offence which is non-compoundable' requests that the sentence inflicted him may be reduced to already undergone by him.
5. The learned Deputy Prosecutor General, after having gone through the report of the learned Sessions Judge and statements annexed therewith, submitted that the. State has no objection to the acceptance of the compromise, however, contended that offence under Section 376, PPC, is not compoundable and the learned trial Court while attending each and every aspect of the case thereby appreciating the prosecution evidence in its true perspective rightly passed conviction.
6. After hearing the arguments of the parties, I have gone through the record available on file. The report from the learned Sessions Judge Toba Tek Singh has been received which is complete in all aspects. Learned Sessions. Judge has recorded statements of Zafar Iqbal, complainant/father of the victim and Mst. Kiran, victim of the instant case, who have stated that they have forgiven the appellant in the name of Allah Almighty showing no objection on acquittal of the appellant.
Statement of Mahfooz-ur-Rehman, lambardar of the village has also been recorded by the learned Sessions Judge, qua the factum of compromise. Learned Sessions Judge, submitted report to the effect that he was satisfied with the genuineness of the compromise, therefore, after having gone through the said report of the learned Sessions Judge Sargodha and the statements annexed therewith, it appears that the compromise has been arrived at between the parties for mutual harmony and without any coercion, duress, pressure, compulsion, deception or threat coupled with the fact that it is according to the settled principles of the superior Courts of the country including the Apex Court.
7. Admittedly the appellant is named in the crime report with specific allegation of commission of zina with Mst. Kiran Bibi, daughter of the complainant. The occurrence in the instant case took place on 29.01.2008, whereas the matter was reported to the police on 31.01.2009, i,e, with the delay of two days, for which no plausible explanation has been rendered by the prosecution. The Medical Officer/PW3, namely Dr. Afshan Majeed, who medically examined the victim of this case observed that there were no marks of injury on her body and there was no history of violence, breast were poorly developed, auxiliary and pubic hair were absent and the whitish discharge coming from vagina. In cross-examination, the Medical. Officer admitted that the clothes of the victim were not blood stained. Moreover, Mst.Kran Bibi/the victim of the instant case appeared in the witness box as PW-4 and no question about her age was put to her and her statement was recorded by the learned trial Court while treating her to be quite capable of making statement. Moreover, no ossification test was held in the instant case for determination of age of the victim. In such circumstances, the stance of the victim that zina was committed with her forcibly as well as her stance to be aged about 7/8 years is not proved and it appears that she was aged more than that as claimed by her and the complainant, as such, there is contradiction in the ocular as well as medical evidence qua the age as well as qua commission of forcible zina with the victim. However, as the learned counsel for the appellant has not opted to assail his conviction and, so, I do not feel the necessity to discuss in detail the prosecution evidence available on the record. However, I find that he was convicted on the basis of the evidence adduced by the prosecution. I, thus, see no infirmity in the impugned judgment to the extent of his conviction and find no ground or justification to warrant interference in the same, which is accordingly maintained. As far as the quantum of sentence is concerned, I have been persuaded to reduce the same for the following reasons:--
(i) Unexplained delay of two days in lodging the crime report.
(ii) Contradiction in the age of the victim as well as the factum that stance of the victim qua commission of forcible zina with her by the appellant is contradicted by medical evidence.
(iii)That the appellant is behind the bars since 2008 and during this period he might has earned remissions, whereas, sentence inflicted upon him in offence under Section 376, PPC, is only ten Years and he also faced the agony of protracted trial.
(iv)That the complainant as well as victim of the instant case have forgiven the appellant in the name of Allah Almighty showing no objection on acquittal of the appellant.
Hence, keeping in view the factum of compromise arrived at between the parties and other attending circumstances of the instant case, in order to keep peace and tranquility in the society deeming it appropriate to meet the ends of justice, this Court has been persuaded to reduce the sentence from ten years R.I. to already undergone by the appellant. However, his sentence of cost/damages and the effect in case of default in the same would remain as directed by the learned trial Court.