GUL MUHAMMAD KHAN, C.J.--The appellant was convicted by the learned Additional Sessions Judge, Sargodha, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide his order, dated 10th of September, 1985, And sentenced to five years R.I. With whipping numbering 30 stripes. He has challenged that order through the present appeal.
2. The occurrence took place on the 19th September, 1984 at Peshiwela in Shahpur town, District Sargodha. The first information report was lodged by Abdul Aziz, P.W.8 the father of the victim, with Riaz Hussain Moharrir Head Constable, P.W.3 at I1-45 a.m., on the 24th of September, 1984. The allegation was that the appellant was on visiting terms with the family of the complainant. During that time he developed illicit relations with Mst. Saira, his daughter. On coming to know the complainant forbade him for visiting his house. On the 19th of September, 1984, the complainant and his were went to Jhawarian, for condolence. On return they found that Mst. Saira was missing.
They started her search and came across Mumtaz. P.W.6 and Muhammad Akhtar (not produced) who told the complainant that the witnesses had seen Mst. Saira and the appellant going towards Sargodha.
3. Mst. Saira was recovered on the 30th of September, 1984 from a Khola in Chak No. 58/N.B., alongwith the appellant, who was arrested. She was also medically examined by lady doctor Jamila Lodhi, P.W.5. Her age, according to the X-ray taken on the 1st of October, 1984, was found to be 15/16 years. Her statement under section 164, Cr.P.C. Was also recorded. The prosecution after necessary investigation challaned the case.
4. There were 13 witnesses examined in support of the prosecution case. Doctor Mumtaz Niazi, P.W.1 had given the age of Mst. Saira as 15/16 years, after X-ray. Muhammad Saeed, Foot Constable P.W.2, had only taken the parcels on the 3rd of October, 1984 to the Chemical Examiner. Riaz Hussain Shah, Moharrir Head Constable, P.W.3 recorded the formal F.I.R. Dr. Malik Muhammad Khan, P.W.4 stated that he after examination found the appellant potent to commit sexual inter-course.
This is not disputed even by the appellant. Muhammad Mumtaz P.W.6 had seen the appellant and the victim at the bus stand. Abdul Majeed, P.W.7, is a recovery witnesses of 'Shalwar' of the appellant Exh.P.1 Malik Sher Muhammad P.W. 10 had seen the recovery of the appellant and victim and also witnessed the arrest of the appellant. P.W.11 Zahoor-ud-Din, Inspector had partly investigated the case while Muhammad Yaseen, S.I., P.W.12 was the main Investigating Officer.
5. The while incident was narrated by Mst. Saira as P.W.9. She stated that it was 12 noon when the appellant met her on the way while she was going to the house of her uncle. Her parents were not at hove and had gone to Jhawarian. The appellant at the point of knife asked her to accompany him. She tried to make noise but the accused threatened her with dire consequences.
Consequently, he took her in his house, situate at a distance of 15/20 Yards and gave her a 'Burqa' to wear. He then directed her not to make any noise. The witness put 'burqa' on and went with him to the bus-stand where they boarded a bus for Sargodha. They got down at village Dhrema from where she was taken to Chak No. 58 in the house of the sister of the appellant. There she was kept 5/6 days during which the appellant committed Zina-bil-Jabr. After that the appellant took her in a 'Khola' of the same Chak and kept there for 4/5 days. There too he committed Zina-bil-Jabr. The police then recovered them from that 'Khola' and arrested the appellant. Abdul Aziz, father of the victim appearing as P.W.8 supported his version in the first information report. The appellant in his statement under section 342, Cr.P.C. Took the plea that. Mst. Saira was his lawfully wedded were and heir Nikah had been performed on the 2nd of October, 1984 Exh. D.C./1. He also produced two witnesses in defence. Muhammad Yaqoob, D.W.1, is a Head Clerk of the Town Committee Shahpur city. He produced a birth certificate of Mat. Saira showing that she was 18 years old. Muhammad Hafeez, D.W.2, Secretary Union Council produced Nikahnama which is marked as Exh.D.C at some, place and D. C,/1 at other. The appellant, however, gave up Hafiz Noor Muhammad, Amam Masjid Chak No. 58 who allegedly performed his 'Nikah---.
6. It is contended by the learned counsel that as the appellant had taken up tire specific plea of marriage with Mst. Saira, the trial Court was obliged: to act in accordance with the law, laid down by the Supreme Court in the case of Muhammad Azam v. Muhammad Iqbal and others PLD 1984 - SC 95. In this view of the matter, it is pleaded that the case should be remanded to the trial Court so that the other witnesses of the 'Nikah' are summoned for the determination of this issue.
7. After going through the record we think that this plea had been taken at a very late stage and, therefore, the trial Court rightly ignored it. It appears from the cross-examination of Mst. Saira that the appellant did not have that case in view till he came to make his own statement under section 342, Cr.P.C. The following answers to the questions put to Mst. Saira in the cross-examination need particular consideration: - "It is also incorrect that still I am insisting for my marriage with Zahoor accused.
'It is correct that the accused had divorced his were Mat. Hayatan prior to this occurrence. It is also incorrect that the accused divorced his were at the asking of my parents under the impression that they would give my hand in marriage to him. It is incorrect that my engagement had taken place with the accused 2/3 months prior to this occurrence.
It is incorrect to suggest that I got myself photographed with the accused in Lahore in front of Minar-e-Pakistan after my Sharai Nikah with him.
It is incorrect that the police had recorded my statement at Police Station Sargodha Saddar after my alleged recovery from Chak No. 58/N.B. It is incorrect to suggest that 1 had stated before the police that I left my parents house alongwith the accused of my own free will and that I was keeping illicit intimacy with the accused 5/6 months prior to this occurrence.
It is incorrect that my auntie had been persuading me to make e statement to the effect that I want to go back to my parents but on the contrary I had been insisting that I would make a statement to the effect that I want to go back with the accused.
It is correct that I was married immediately after my recovery in this occurrence. It is incorrect that I was not willing to my marriage at present place. It is also incorrect that I had left the house of my husband after one night. It is also incorrect that after my recovery I was put under restriction."
8. The above suggestions made to the witness clearly go to show that no marriage between the victim and the, appellant had taken place. At the best the appellant stated that there was some 'Sharai Nikah' but not recorded 'Nikah' as produced, Muhammad Hafeez D.W.2 also stated that no 'Nikah had been registered with the Union Council. In this view of the matter, the trial Court rightly ignored the plea taken by the appellant in his statement under section 342, Cr.P.C.
9. After going through the record we are also of the view that the appellant and the victim had never contracted any marriage. The allegation made by the father that the two had developed illicit relations and the fact that the victim joined the appellant in a street, went to bus-stand, then to Jhawarian and to Chak No. 58 without any objection or protest also show that she was willing party. Her age, according to the birth certificate is 18 years. She is even 15/16 according to the Radiologist report. We, therefore, do not think that she was a minor and her consent would not be material. In this view of the matter, we find that the conviction as well as the sentence is not illegal.
The appeal has thus no merit and the same is dismissed.