' MUHAMMAD JEHANGIR' ARSHAD, J.---This appeal is directed against the judgment dated 30-7- 2008 handed down by the learned Sessions Judge, Nankana Sahib whereby the learned trial Court in case F.I.R. No.417 of 2004, dated 13-10-2004, registered with Police. Station, Manawala, District Sheikhupura while convicting the appellant Mumtaz All son of Muhammad Hussain under section 377, P.P.C. Sentenced him to 7 years' R.I. With fine of Rs.25,000 or in default of payment of fine further undergo 4 months' R.I. Appellant was also extended benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that Muhammad Ramzan P.W.3 got registered the above noted F.I.R.
Against the appellant complaining that his son Muhammad Rizwan P.W.5 who was mentally retarded and used to wander here and there was subjected to unnatural intercourse by the appellant.
3. The ease was duly investigated and statement of prosecution witnesses were recorded under section 161, Cr.P.C. The accused was challaned by the police to face the trial before the learned trial Court. The learned, trial Court framed charge against the appellant on 29-4-2006 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 377, P.P.C. Further, after recording the evidence and statement of the appellant under section 342, Cr.P.C, the learned trial Court finally through the impugned judgment concluded that as the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not made out against appellant, however, to the extent of offence under section 377, P.P.C., prosecution had failed to prove its case against the appellant, therefore, convicted him under section 377, P.P.C. And sentenced him to 7 years' R.I. With fine of Rs.25,000 or in default of payment of fine to further undergo 4 months' R.I. The learned trial Court further directed, if tine recovered, half of the amount be given to Muhammad Rizwan P.W.5 victim as compensation. Appellant was also extended benefit of section 382-B, Cr.P.C.
4. Today, Muhammad Ramzan, complainant (P.W.3) father of the victim appeared in person and submitted a written application stating therein that as he had compromised with the appellant, therefore, had no objection, if this appeal was allowed and the appellant acquitted of the charge.
The original application along with photocopy of Identity Card of Muhammad Ramzan complainant P.W.3 is available on the record.
5. Record reveals that out of 7 years' R.I., the appellant had already served out more than half of the sentence awarded to him by including remissions and further, there is unexplained delay in lodging the F.I.R., despite the appellant's medical examination was conducted on 6-10-2004 yet the F.I.R.
Was got lodged on 13-10-2004.
6. Though, offence under section 377, P.P.C. Is not compoundable yet the compromise effected between the parties can be considered as a ground for reduction of sentence. Even, otherwise as held by this Court in the case of Kashif Nadeem alias Pappi v. The State 1992 PC.r.LJ 1799 [Federal Shariat Court] "sodomy does not fall within the definition of zina" hence the sentence of accused in the said case under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was converted into section 377, P.P.C. And the same was also reduced from 5 years' R.I: to 2 years' R.I. In the present case also this Court, feels that keeping in view the delay in the F.I.R. As well as compromise submitted by the complainant himself and further appellant having already served out more than half of sentence by including remissions as awarded by the learned trial Court, therefore ends of justice would be sufficiently met, if the sentence of appellant as awarded by the learned trial Court is reduced from 7 years' R.I. To one already undergone. Similarly, the amount of fine of Rs.25,000 is reduced to Rs.10,000 which the appellant shall deposit with the learned trial Court because under section 377, P.P.C. Imposition of fine is mandatory requirement. The learned trial Court on receipt of this order shall immediately issue Notice to the appellant Mumtaz Ali son of Muhammad Hussain asking him to deposit the said fine in the Court within reasonable time and in case if the appellant fails to deposit the amount within time fixed by the learned trial Court, the appellant shall undergo 2 months' R.I. The above noted direction is being issued as this aspect of the case escaped the attention of the court at the time of announcing, judgment.
7. Resultantly, this appeal is dismissed subject to above said modification in the sentence.