' MUHAMMAD JEHANGIR ARSHAD, J.---By this common judgment, two connected matters bearing
(1) Criminal Appeal No,343/L of 2004 moved by Javed alias Jedi, (2) Criminal Appeal No,347/L of 2004 moved by Fayyaz Ahmad, both against conviction and sentence are being disposed of as they arise out of the same judgment dated 27-10-2004 delivered by Mr. Muhammad Ajmal Hussain, learned Additional Sessions Judge, Bahawalnagar whereby the accused/ appellants Javed alias Jedi and Fayyaz Ahmad were convicted and sentenced as under:-- {{DATA MISS ARANGE}} Javed alias Jedi Under section 452, P.P.C.
Under section 10(3)/19 the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)
Fayyaz Ahmad Under section 452, P.P.C.
Under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)
4 years' R.I. With fine of Rs,10,000 or in default thereof to further undergo S.I. For six months.
4 years' R.I. With fine of Rs,10,000 or in default thereof to further undergo S.I. For six months.
4 years' R.I. With fine of Rs,10,000 or in default thereof to further undergo S.I. For six months.
4 years' R.I. With fine of Rs,10,000 or in default thereof to further undergo S.I. For six months. {{DATA MISS ARANGE}} ' The sentences of both the above-mentioned accused/appellants were ordered to run concurrently with benefit of section 382-B of the Code of Criminal Procedure.
2. Brief facts of the case arising out of F.I.R. No,55/2003, dated 20-3-2003 (Exh.PA/1) registered under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Dunga Bunga, District Bahawalnagar, as narrated in the written complaint (Exh.PA) made by complainant Mst. Nazia Bibi P.W.5, that she was sleeping in a residential room of her house along with her younger brothers Maqsood Ahmad and Ahmad Hassan. On the night between 15/16-3- 2003 at 12-30 a.m., accused Fayyaz Ahmad armed with pistol, Javed alias Jedi armed with dagger and Maqbool Ahmad armed with pistol forcibly entered the house of the complainant Mst. Nazia Bibi. Accused Maqbool Ahmad caught hold of her from her arm and extended threats that in case she raised hue and cry, she would be murdered by firing. Accused Javed alias Jedi stood on the head side of her father sleeping in the courtyard. Accused Maqbool Ahmad opened the string of her shalwar forcibly and started committing zina with her. After the accused Fayyaz Ahmad attempted to commit zina with her and Maqbool Ahmad stood in the door. Watch and guard system was operating in the Chak of the complainant. Tanveer Ahmad the watchman came to have a round in the area. He found the window of the main gate opened from where the accused entered the house. Said Tanveer Ahmad saw a person standing at head side of the cot whereon father of the complainant was sleeping. He raised hue and cry `thief' thier as a result Manzoor Ahmad, father of the complainant woke up. Witnesses Muhammad Hussain and Muhammad Rasheed along with other inhabitants of the locality also attracted the spot. On seeing them all the three accused succeeded in running away raising arms. However, they were identified by father of the complainant as well as the witnesses present there. She was forbidden by respectable of the locality but ultimately on her application dated 20-3-2003 this case was registered.
3. Police investigation ensued as a consequence registration of the crime report. After conclusion of the investigation, the local police submitted in the Court a report under section 173 of the Code of Criminal Procedure requiring the accused to face trial.
4. The learned trial Court framed charge against all the three accused on 24-5-2003 under sections 452 of the Pakistan Penal Code, 10(3) and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The accused did not plead guilty and claimed trial.
5. Prosecution, in addition to documentary evidence produced 9 witnesses at the trial in support of its case. As the gist of the deposition of the prosecution witnesses is already mentioned in the impugned judgment in detail, therefore, the same is not being repeated, however, the same shall be referred to, examined and analysed at an appropriate stage.
6. After closure of prosecution evidence, the accused facing trial were examined under section 342 of the Code of Criminal Procedure. They, inter alia, pleaded their innocence and claimed that they had been falsely involved. In reply to the question "Why this case against you and why the P. Ws.
Have deposed against you?" appellant Fayyaz Ahmad stated as follows:-- "P.Ws. Are inimical towards me. For this reason they deposed against me.
' In reply to the question "Why this case against you and why the P. Ws. Have deposed against you?" appellant Javed alias Jedi stated as under:- "Ali the P. Ws. Are closely related inter se and inimical towards me. In fact one Nazir Ahmad who is real phuphizad of Tanveer Ahmad P.W. Murdered one Khushi Mahar and a case was registered against Ahmad P.W. In that case Nazir Ahmad was awarded 14 years' imprisonment by the Court.
My father Yasin appeared before the police during investigation Jrom the side of Mahar party and opposed Nazir Ahmad etc. Due to this grudge, Tanveer Ahmad P.W. With the connivance of complainant party falsely implicated me in this case".
' The appellants neither appeared as their own witnesses under section 340(2) of the Code of Criminal Procedure nor lead any defence evidence.
7. Learned counsel for the appellants has raised the following points:--
(i) That the only allegation against Fayyaz Ahmad appellant is that he attempted to commit zina with Mst. Nazia Bibi victim but he has also been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 as if he had committed zina with the victim.
(ii) That the alleged recoveries were neither witnessed nor proved by any independent evidence and further no respectable inhabitants of the locality was called while effecting recoveries as provided under section 103 of the Code of Criminal Procedure, which was the mandatory requirement.
(iii) That the statement of victim Mst. Nazia Bibi is not corroborated by any independent evidence except the medical evidence, therefore, sole testimony of victim could not be accepted by the learned trial Court.
(iv) That the victim Mst. Nazia Bibi as well as her father made dishonest improvements in their defence by stating that she was subjected to zina by Fayyaz Ahmad appellant.
(v) Learned counsel for the appellants finally argued that despite the only allegation of being present at the spot and at the time of occurrence. Javed alias Jedi appellant has also been convicted and sentenced under section 10(3) of the Offence of Zina (Enforcement of Hudlood)
Ordinance VII of 1979. Learned counsel for the appellants, therefore, argued that the impugned judgment was not sustainable and the same be set aside.
8. On the other hand, learned Additional Prosecutor-General Punjab for State has submitted that Mst. Nazia Bibi victim being a star witness has fully established the prosecution case in her evidence which is further supported by the medical evidence as well as the report of Chemical Examiner. Learned Additional Prosecutor-General for State further argued that the presence of both the appellants at the time of occurrence as well as recoveries of pistol, dagger and chappal from them speak volume against them. According to the learned Additional Prosecutor-General as the prosecution has successfully established its case, therefore, the appellants were rightly convicted and sentenced by the learned trial Court, therefore, this appeal has no force and the same is dismissed.
9. We have examined the respective contention of the learned counsel for the parties noted above in the light of evidence and other material available on record.
10. So far as the case of Javed alias Jedi appellant is concerned, neither in the F.I.R. Nor in her statement Mst. Nazia Bibi complainant P.W.5 levelled allegation of commission of zina or even attempt to commit zina against him and the only allegation against him in the F.I.R. As well as in the statement of P.W.5 Mst. Nazia Bibi complainant that he was present with dagger at the time of occurrence but ,strangely the learned trial Court also convicted him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) by holding him guilty of facilitating the commission of zina by Maqbool Ahmad co-accused and has also awarded him the sentence of imprisonment for four years' R.I. With fine of Rs,10,000 or in default thereof to further undergo S.I. For six months along with Fayyaz Ahmad and Maqbool Ahmad accused. The conviction of Javed alias Jedi appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII- of 1979) as recorded by the learned trial Court cannot therefore sustain being without evidence and the same is set aside.
11. In view of the matter, we observe that from the perusal of contents of the F.I.R. As well as the statement of complainant P.W.5 Mst. Nazia Bibi and other witnesses, the only offence proved against Javed alias Jedi appellant is one covered by section 452, P.P.C. But the sentence of four years' R.I. As awarded by the learned trial Court is too harsh to sustain, therefore, while maintaining the conviction of Javed alias Jedi appellant under section 452, P.P.C. As recorded by the learned trial Court, yet we feel that the facts and circumstances of the case and the ends of justice would be sufficiently met, if the sentence of four years' R.I. As awarded by the learned trial Court is reduced to one already undergone, however, the sentence of fine of Rs,10,000 under section 452, P.P.C. As awarded by the learned trial Court shall remain intact which the appellant and his learned counsel has agreed to deposit with the learned trial Court within one month from today failing which, he shall undergo S.I. For two months.
12. As regard appellant of Fayyaz Ahmad, we have observed that in the F.I.R. The victim Mst. Nazia Bibi P.W.5 alleged that Fayyaz Ahmad appellant attempted to commit zina with her but while appearing in the Court as P.W.5, she made improvement by stating that "Fayyaz Ahmad present in Court committed zina-bil-jabr with her", such improvement cannot be accepted nor any reliance can be placed on her evidences. It was held by the apex Court in the cases of Akhtar Ali and others v. The State (2008 SCM R 6) and Muhammad Shafique and others v. The State and others (2010 SCM R 385) that "improvements made by a witness on material aspects of the case is not worth of reliance and evidence of such witness requires corroboration, otherwise the same could not be relied upon".
13. Further, it reveals that the complainant/victim Mst. Nazia Bibi did not produce any independent witness to corroborate her evidence. Though, her father namely Manzoor Ahmad has appeared as P.W.7 but he also made improvement by saying that Fayyaz Ahmad appellant committed zina-bil- jabr with his daughter Mst. Nazia Bibi complainant/victim. Further, his statement becomes more weak when he states that he was subsequently told by victim that Maqbool Ahmad and Fayyaz Ahmad committed zina-bil-jabr with her. There two statements of P.W.7 are not only in conflict with the contents of the F.I.R. But also unworthy of credit, as it appears that he never saw the incident himself. Although, according to medical evidence as well as the report of chemical examiner, the victim was subjected to sexual intercourse and the swabs sent to the Chemical Examiner were found stained with semen, yet the said evidence ipso facto cannot connect the appellant with the commission of offence. In this respect, reliance can be placed on 2010 SCM R 495. Further, according to Dr. Aysha Atteeq P.W.2 there was no sign of resistance on the body of victim which also renders the prosecution story doubtful that she was subjected to zina-bil-jabr".
14. All the above noted facts when read together, the only conclusion one can draw is that the prosecution has failed to prove the allegation of commission of zina with Mst. Nazia Bibi complainant/ victim by Fayyaz Ahmad appellant beyond any shadow of doubt. We, therefore, have no option but to set aside the judgment of the learned trial Court convicting and sentencing the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with under section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
15.However, from the perusal of evidence, we are convinced that the conviction of the appellant as recorded by the learned trial Court under section 452, P.P.C. Is unexceptionable as his wrongful entry into the house of the complaint is fully established and his presence at the place of occurrence is fully proved, therefore, finding no fault in the judgment of the learned trial Court to this extent, we dismissed the appeal of the appellant Fayyaz Ahmad by maintaining his conviction under section 452, P.P.C. However, as the appellants has already undergone a sufficient period of sentence awarded to him under section 452, P.P.C., therefore, we feel that the ends of justice would be sufficiently met, if the sentence awarded to them by the learned trial Court under section 452, P.P.C. Is reduced to one already undergone. However, the sentence of fine of Rs,10,000 as awarded by the learned trial Court to appellant shall remain intact which the appellant and his learned counsel undertake to deposit with the learned trial Court within one month from today, failing which he shall undergo S.I. For two months.
16.Resultantly, both these appeals are disposed of subject to above said modification in the sentences. Both the appellants are present in Court on bail, their bail bonds are discharged.
17.Above are the reasons for our short order dated 840-2013.