' MUHAMMAD JEHANGIR ARSHAD, J.---This appeal is directed against the judgment dated 19-10- 2010 passed by Mr. Umar Hayat, learned Additional Sessions Judge, Nankana Sahib whereby appellant Hashmat Ali has been convicted in complaint case titled Allah Yar v. Hashmat Ali and others under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 10 years' R.I. Along with fine of Rs. One lac in default thereof to further undergo one year's R.I. He has also been convicted under section 377, P.P.C. And sentenced to 7 years' R.I. Along with fine of Rs.70,000 in default thereof to further undergo 9 months' R.I. Both the substantive sentences of imprisonment have been ordered to run concurrently.
2. Allah Yar/Complainant originally got lodged F.I.R. No.193/4 on 14-7-2004 with Police Station Said Walla, Tehsil Nankana Sahib, District Sheikhupura under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against Hashmat Ali/appellant and three others namely Muhammad Nawaz, Liaqat Ali son of Shahadat Ali and Shahadat Ali son of Charagh Din. However, after police investigation the said case was cancelled by the concerned Magistrate on police report. The cancellation of the said criminal case by the court led to the institution of private complaint by Allah Yar/complainant before the learned trial Court against the appellant and his three above named companions. The learned trial Court after preliminary inquiry only summoned the appellant for facing trial vide order dated 6-3-2006 whereas the remaining co-accused were not summoned.
3. The learned trial Court on the basis of material available on record charged appellant under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 a well as under section 377, P.P.C. On 7-11-2007 to which the appellant pleaded not guilty and claimed to be tried.
4. The learned trial Court recorded evidence produced by the complainant. As the gist of the complainant's evidence is fully mentioned in the impugned judgment, therefore, the same is not being reproduced here to avoid repetition.
5. The learned trial Court thereafter recorded statement of the appellant under section 342, Cr.P.C.
And in reply to a question No.4 why this case was registered against you and why the P.Ws. Have deposed against you? The appellant stated as under:- "This false case was registered against me due to a grudge of alleged illicit relations between Sughran Bibi (sister-in-law) of complainant and Nawaz, my real brother. This false case was also registered against me on the behest of Agha Abbas Raza, a ticket holder of ruling political party who was refused a support from my family during general elections held in 2002 due to which he decided to punish me and my family by getting prepared false evidence under his influence from the doctor and instigated the complainant and his family who had already a grudge against my family."
' However, the appellant did not opt to appear for his own deposition as envisaged under section 340(2), Cr.P.C. But produced three witnesses in defence namely Ishtiaq Ahmed Khan/Inspector, Tahir Siddique/D.S.P and Doctor Suleman Sultan/S. P. (Investigation) D.W. 1 to. D. W.3 respectively.
6. On completion of trial, the learned trial Court finding the appellant guilty of charges under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 377, P.P.C. Convicted and sentenced him as mentioned in paragraph-1 of this judgment. Hence, this appeal.
7. The learned counsel for the appellant at the very outset today argued that as held by the superior courts in the case of Shams Saeed Ahmad Khan v. Shafaullah and another (1985 SCM R 1822), Muhammad Akhtar v. Muhammad Shafique and another (1986 SCM R 533), Sher Abbas Khan and another v. The State (1987 M LD 1164 (FSC), Abdul Ghaffar v. The State (1988 PCr.LJ 1446 (FSC)).
"Neither offence of kidnapping under section 12, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 can be held to have been committed by the accused nor there could be presumed any intention or object of commission of crime under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 where the accused has ultimately committed sodomy with no objectoremovikinaway thevictim from lawful guardianship or legal custody."
' The learned counsel, therefore, argued that conviction of the appellant under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not maintainable in the light of the above noted law as declared by the superior courts. In the light of above noted declared legal position learned Depty Prosecutor-General as well as the learned counsel appearing on behalf of the complainant had no legs to stand on the conviction of the appellant under section 12 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
8. I have gone through the above noted judgment as well as the evidence available on the record.
Admittedly, the object of appellant for taking away victim was only to commit sodomy with him which fact is also borne out from the prosecution evidence, and there is no iota of evidence on record to establish that appellant removed or took away the victim from the lawful guardianship in order to attract, provision of the section 12 of the said Ordinance. I am, therefore, satisfied that in the light of the law declared by the superior courts in the above noted judgment the conviction of the appellant under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as additional offence along with section 377, P.P.C. Was not maintainable, therefore, the same is set aside. Resultantly, this appeal to the extent of conviction of the appellant as recorded by the learned trial Court under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 through impugned judgment is accepted and his conviction as well as sentence under the said section is set aside and he is acquitted of the charge.
9. So far as, the conviction and sentence of the appellant under section 377, P.P.C. Is concerned the learned counsel for appellant submits that the appellant would not press this appeal for decision on merits if keeping in view the fact that the appellant was declared innocent during police investigation, he was about 14 years of the age at the time of offence and was also first offender, therefore, his sentence is proportionately reduced. On the other hand, learned DPG as well as Rai Muddassar Iqbal Kharal, learned counsel for the complainant/respondent argued that as the conviction of the appellant under section 377, P.P.C. Was being maintained, therefore, they would not seriously oppose the prayer of the learned counsel for the appellant for reduction of sentence.
Learned counsel for the complainant further argued that though the complainant has also compromised with the accused and he has instruction not to oppose this appeal, yet, as the offence under section 377, P.P.C. Was not compoundable but the same could also be taken into Consideration for reducing the sentence. Keeping in view the age of the appellant at the time of commission of offence and the fact that he was declared innocent in challan case and the said case was cancelled by the Court of competent jurisdiction, the appellant being first off ender and last but not the least there has been a compromise between the complainant and the appellant; though not binding on court yet the same may be considered as mitigating circumstance, I feel that the ends of justice would be sufficiently met if by maintaining the conviction of the appellant under section 377, P.P.C. As recorded by the learned trial Court, his sentence is proportionately reduced. Consequently the sentence of 7 years' R.I with fine of Rs.70,000 as awarded by the learned trial court is reduced to 3 years' R.I and fine of Rs.70,000 as imposed by the learned trial Court is reduced to Rs.20,000 or in default thereof the appellant shall further undergo S.I. For one month.
Order B accordingly.
10. Resultantly with above modification in the sentence, the conviction of the appellant under section 377, P.P.C. As recorded by the learned trial court through judgment dated 19-10-2012 is maintained and his appeal to this extent is dismissed. However, appeal of the appellant under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against his conviction and sentence as recorded by the learned trial Court vide judgment dated 19-10-2012 is accepted and to this extent the conviction and sentence is set aside and he is acquitted of the charge.
11. The appellant shall also be entitled to benefit of section 382-B, Cr.P.C.
12. Above are the reasons for my short order dated 29-11-2013 at Lahore.