ALI BAQAR NAJAFI, J.---Appellant, Imran alias Manoo son of Muhammad Azam impugns judgment dated 16-4-2010 passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha in case F.I.R. No,219 dated 4-5-2007 registered under sections 365-B and 376, P.P.C. At Police Station Kot Momin, whereby the trial court convicted him under section 365-B, P.P.C. And sentenced to imprisonment for life with fine of Rs,50,000 in default of which for further 4 months. He was also convicted under section 376(i), P.P.C. And sentenced to 25 years R.I. With fine of Rs,50,000 in default of which he will further undergo for 4 months S.I. He was further directed to pay compensation of. Rs,50,000 under section 544-A, Cr.P.C. To the victim in default of payment to suffer for further 4 months. The appellant was given the benefit of section 382-B, Cr.P.C. And the sentences are directed to run concurrently.
2. The case of the prosecution as per Exh.PA is that on 26-4-2007 at 12-00 noon the complainant along with her husband while searching her daughter, namely, Mst.Kamal Farooq who went out to ease herself and did not come back, in the way met Muhammad Nawaz and Ijaz Ahmad who told them that her daughter was going to Kino garden of one Nazir Sheikh. They started her searching and when failed to locate, came back to their house where-after her daughter came and told that Imran alias Manoo committed zina forcibly with her. Hence this F.I.R.
3. A formal charge was framed against the accused under sections 365-B and 376, P.P.C. For abduction of Mst.Kamal Farooq for the purpose of committing zina-bil-jabr and thereafter he committed zinabil-jabr with her to which the accused pleaded not guilty and claimed trial, whereupon the prosecution was directed to produce its witnesses. The prosecution examined as many as 7 witnesses and 2 witnesses were called as CWs.
4. The complainant appeared as P.W.1, Mst.Kamal Farooq, victim as P.W.2, Muhammad Nawaz as P.W.3, who saw the victim going to the Kinno garden, Lady Doctor appeared as P.W.4 who examined the victim, P.W.5 stated about the potency test of the appellant, P.W.6 produced the victim for medical examination, P.W.7 is Investigating Officer. CWI appeared stating that sealed parcel of worn clothes, vaginal swa bs and blood were kept in Malkhana. In the statement under section 342, Cr.P.C., the appellant denied the allegation and replied that he was involved on the basis of the political rivalry and enmity by the complainant.
5. Learned counsel for the appellant argues that the judgment of the trial court suffers from illegality and injustice, therefore, requires to be set aside; that the learned trial court failed to bring home the guilt of the appellant but awarded capital punishment; that the conviction passed by the trial court is severe, harsh and uncalled for in the facts and circumstances of the case; that the findings of the trial court are totally based on surmises and conjectures instead of evidence on record as P.W.3 Nawaz who saw victim going to Kinno garden did not raise hue and cfy; that the conviction against the appellant is not borne out of the evidence produced by the appellant as no witness of occurrence is there; that prosecution story is not in line with the medical evidence as P.W.4, the Lady Doctor, stated that P.W.2 is habitual of sexual intercourse as hymen is old torn; that the victim is consenting party as there is no mark of violence on the person of P.W.2. Lastly, prays for acquittal of the appellant by placing reliance on 2012 YLR 918.
6. Learned Deputy Prosecutor General, Punjab, on the other hand, opposes the contentions raised by the learned counsel for the appellant by arguing that the findings are in line with the evidence produced by the parties and the medico legal report supports the allegation levelled against the appellant which has been proved through the deposition based on fact. Further submits that the contention of the learned counsel for the appellant that the victim is consenting party has no help to the appellant as the victim was minor at the time of occurrence, as such no force is required for kidnapping her from lawful guardianship. Further maintains that the daylight occurrence has duly been corroborated by the truthful witnesses and there is no exception to extend benefit of doubt to the appellant. The victim has narrated the whole story as it is; that the victim was 12 years of age at the time of occurrence. He prays for dismissal of the appeal by placing reliance on PLD 2010 SC 47.
7. I have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
8. The prosecution case is comprised of the statement of P.W.2, the statement of the Lady Doctor P.W.4 and the statement of Nawaz P.W.3. The victim Mst.Kamal Farooq has stated that on the day of occurrence it was the appellant who caught hold of her and committed rape in three/four minutes in the Kinno garden at 12-00 noon and then confined her to Dera Nazir for five/six hours till evening.
She also admitted that the accused party wanted to compromise the matter for which the delay was occasioned and after eight days the matter was reported to the police. Even after such a delay P.W.4 stated that she has experienced a sexual intercourse though no mark of violence was found but P.W.4 admitted that the hymen was torn and healed and vagina admitted two fingers and there was no bleeding. The age of the victim was given 12 years on the general examination and on the information supplied by the victim. However, no test was conducted to form the opinion about the age of the victim. But the victim was stated to be a fully matured girl. The DNA Test Exh.PJ was conducted, the result of which suggests that only the semen matched with the specimen found on the first portion of the torn of Shalwar of the victim., Obviously, after 8 days the vaginal swa bs could not retain the semen. Such delay was occasioned due to the efforts being made for the compromise by the appellant. The defence of the appellant to this is that he was involved on the basis of political enmity.
9. In my humble opinion, the statement of the victim P.W.2 regarding her abduction reported with the delay of 8 days does not appear to be confidence inspiring on the basis of which it cannot be said that the prosecution had proved the case beyond reasonable doubt. Therefore, the evidence to attract the provision of section 365-B, P.P.C. Is not available in which the appellant is acquitted but keeping in view the statement of lady doctor coupled with positive test of DNA the trial court has rightly convicted the appellant under section 376(i), P.P.C. However taking a lenient view for the above reasons, his sentence is reduced to 10 years' R.I.
10. In this view of the matter, the appeal is partially allowed and the appellant is acquitted of the charge of section 365-B, P.P.C. But convicted under section 376(i), P.P.C. And his sentence is reduced to 10 years' R.I. With fine of Rs,50,000 in default of which for 4 months' S.I. The compensation of Rs,50,000 as required under section 544-A, Cr.P.C. Shall remain intact. The benefit of section 382- B, Cr.P.C. Is extended.