IBADAT YAR KHAN, J.---By judgement dated 4-4-1990 the learned Additional Sessions Judge, Rahimyar Khan, has found the appellant guilty of the offence of Zina under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and accordingly convicted and sentenced him to suffer R.1. For ten years, thirty stripes and to pay fine of Rs.30,000 or further R.I. For two years in case of default in payment of fine. The appellant has filed this appeal against his above conviction and sentence.
2. The appellant at the time of occurrence was a raw youth of 18 years and it appears that he fell in love with a young girl named Haleema Bibi also ripe in age of 16 years. The two lovers were closely related to each other. The fathers of the two were real brothers. Nazir Ahmad, father of Mst.
Haleema Bibi was real brother of Muhammad Tufail, the father of appellant Naseer Ahmad. The houses of the two brothers were adjacent to each other. The parents of Mst. Haleema Bibi continuously observed this intimacy between the two for about a year and Mst. Haleema was several times reprimanded. This intimacy was not only frowned upon by the parents of Mst.
Haleema but resulted in strained relations between the two brothers, so much so that the father of Mst. Haleema warned the appellant not to visit his house. As unusual in such situations the parents continued to boil within themselves and did not reveal this affair to any one else nor did they take any effective steps to eliminate chances of further aggravation of the situation.
3. On the night of 18th March, 1987, rather in early hours of the morning a little before the call for morning prayers; Mst. Amina Bibi, mother of Mst. Haleema Bibi just were up and noticed that her daughter Mst. Haleema was not on her bed. She informed her husband Nazir Ahmad that Mst.
Haleema was missing from the bed. Mhukhtar Ahmad, a brother of MA. Amina Bibi, who had come from his village and was staying in the house as a guest during that night also got up and the three went out in search of Mst. Haleema Bibi. As they reached tile cattle shed and surveyed tire surroundings with the help of the torch they noticed that in the cattle shed the two young lovers were lying naked embracing each other. The male covering the female enjoying, their sexual urges.
The arrival of tire intruders disturbed the two lovers. Each tried to avoid confrontation. The appellant took to his heels towards the jungle and succeeded in avoiding his capture by the chasing father of the girl. The young girl rushed for refuge to her house and before the parents could reach her she had already swa llowed doses of deadly insecticide, which was lying in the house stored for spray on the cotton crop. She was, however, crying and wailing and repenting on her sins and asking for forgiveness in the name of (god. The family struggled hard to save the life of the young daughter but Mst. Haleema after swinging between life and death during the day expired by the end of the day between Maghrib and Isha prayers. The Police Station being at a distance of 9 K.M. And no transport being available at that hour of the night not even the facility of a metalled road provided in the village, the family had to stay with dead body during the night. Early in the morning the father set out from the house for lodging a report in the police station. On his way he met Muhammad Saleem, S.I./S.H.O. Of Police Station Kot Samaba at Adda Taranda Saway Khan where the S.H.O. Had come on his patrol duty. The Police Officer recorded the statement of Nazir Ahmad as Exh. P.A. And forwarded it to the police station where a regular F.I.R. (Exh.P.A./1) was recorded in Police Station Kot Samaba at 8-15 a.m. The S.H.O. Took up the investigation, recorded the statements of the witnesses, prepared inquest report,, (Exh P.D.), injury statement (Exh. P.C.) rough site plan (Exh. P.J.), collected the last-worn clothes of the deceased Exh. P.1 to P.3 under a recovery memo. (Exh. P.H.).
He also sent the dead body of the deceased to the mortuary for post-mortem through Riaz Ahmad G-770. He arrested the appellant on 23-3-1987 and on 24-3-1987 sent him to the hospital for his potency test and as a result of medical examination the appellant,, was declared potent by Dr. Mukhtar Naseem (P.W.6). The appellant was challaned and sent up for trial resulting in the conviction as stated above in the opening paragraph of this judgment.
4. The witnesses of the event are only three. Others are formal witnesses.
5. P.W.1 Nazir Ahmad and P.W.3 Mst. Amina Bibi are the parents of the deceased Mst. Haleema Bibi. Mukhtar Ahmad (P.W.2) is the real brother of Mst. Amina Bibi. All have repeated the same version and described in detail what they had seen in the cattle shed in the early hours of the morning of 18-3-1987.1 would do well to reproduce the story in the words of the witness Nazir Ahmad himself. He has stated that: "I was sleeping in my house. Mukhtar Ahmad, the brother of my were was also sleeping there. Early in the morning immediately before morning, prayer time, my were were me and told that Mst.
Haleema was not on her bed. I along with Mukhtar Ahmad P.W. Went out of our house. I saw that Mst. Haleema was lying naked in a cattle shed near our house. Naseer Ahmed who was also naked was mounting upon Mst. Haleema. I had seen them so lying from a distance of 5-6 Karams in the light of torch. Naseer Ahmad stood up and ran away towards the lands whereas Mst. Haleema ran away towards our house. We chased Naseer Ahmad but we could not apprehend him. We returned to our house. In the meantime Mst. Haleema had taken insecticide medicine by mouth. She begged pardon by telling that she had illicit relations with Naseer Ahmed. We tried our best to save her but she died in the evening."
6. The two other witnesses Mukhtar Ahmad and Mst. Amina Bibi have faithfully corroborated P.W.1 and have made a clean statement. It is an admitted position that it was not the first occasion that the two lovers were observed m a compromising posture. According to the father `I had also seen both of them in naked and embracing position on few occasions before the occurrence and for that reason, we had stopped speaking with the accused and his family. I had seen both of them in objectionable position for the last time one year before the occurrence'. That the sexual,, intercourse had taken place on that morning is supported by the medical evidence. P.W.7. Dr. Aalia Rehman's, who examined the private parts of the deceased Haleema at 2-00 p.m. On 19-3-1987 has expressed an opinion in her certificate that after perusal of the Chemical Examiner's report (Exh. P.G.) which detected blood and semen on the swabs taken from the vaginal region of the deceased, she was `of the opinion that fresh intercourse had been committed with Mst. Haleema Bibi'.
7. As the case has been tried for the offence of Zina punishable not under Hadd but under Tazir the above material brought on the record is sufficient to establish that Zina had been committed on this girl although it was a case of consent. Such is the view of the learned Additional Sessions Judge and we are in full agreement with him that the prosecution has proved its case beyond doubt.
8. The appellant when examined by the learned trial Court under section 342, Cr. P.C. Found it difficult to advance any plausible explanation. So much so that he refused to make any statement on oath in disproof of the allegations of the prosecution as contemplated in section 340(2), Cr. P.C.
Lie also refused to produce any defence evidence. The best he could and indeed he did was to put up a mere denial of his culpability. In answer to question No. 12 he replied that `I am innocent. I have been involved due to previous enmity and suspicion."
9. The learned counsel for the appellant advanced lengthy arguments before us missing the substance and gravamen of the charge. He tried to point out scattered improbabilities in the story narrated by the parents in their statements. According to him the F.I.R. Was delayed. Learned counsel ignores the facts that the death occurred between Mughrib and Isha prayers and the place had no facility of even a hospital what to say of a police station. The first version was recorded in the shape of Exh. P.A. By the S.H.O. On patrol duty at 7-30 in the morning in Adda Taranda Saway Khan, a place about 5 K.M. Away from the place of occurrence. Learned counsel then turned to the charge and according to him the learned Judge had failed to specifically put a question to the accused that the Zina was fresh. But when the medical report was shown to him that the doctor had herself opined that this was a case of "fresh Zina" and the learned Judge specifically questioned him on this report during statement under section 342, Cr. P.C. The learned counsel had no answer.
10. Lastly the learned counsel tried to argue that the sentence awarded was very harsh. He contended that the learned trial Judge had awarded maximum term of imprisonment prescribed under section 10(3) of the Ordinance. That the vision of the learned Judge was blurred out of sympathy for the family on account of loss of life of their daughter. It cannot be denied that when such crimes are shadowed by such attending circumstances like loss of reputation, loss of honour of the family or other bitterness they surely invoke an element of sympathy in the mind of a Court and directly or indirectly influence the power of perception and decision when it comes to awarding retribution to the offender. In the present case it is admitted position that the girl was grown-up. She was 16 years of age. She was in love with the appellant. She was carrying on affair with the appellant for over a year to the knowledge of the parents. This by itself can be taken to be an inducement to the appellant to allow his sexual urges to be out of control.
11. We have gone through the case-law cited at the Bar and find that the punishment awarded under section 10(2) of the Ordinance ranges between 5 years and 10 years. We have also noted observations in some of the cases and particularly in Halsbury that maximum punishment prescribed in the statute should be avoided as far as possible. On the scrutiny of the cases we find that the rule of decision adopted for a lesser sentence is age of the offender and his previous life style. If the offender,, is young in age and is not a previous convict/first offender Courts take a lenient view in awarding sentence. In Islamic Jurisprudence the concept of `Adl' is blended with `Ahsaan'. In the case on hand we find that the appellant is a first offender and he is as young in age as only 18 years. At this age passion of a person sometimes rules stronger than discretion. Beastly instinct overpowers reason and restraint.
Looking to all the facts we would reduce the sentence of imprisonment from ten years to five years'
R.I. The punishment of whipping numbering thirty stripes is mandatory and it is to be left undisturbed. The sentence of fine of Rs.3,000 must also remain. We would, however, add that the fine, if realised, would be paid to the parents of the deceased. The appellant has been allowed the benefit of Section 382-B, Cr. P.C, by the learned trial Court and it is affirmed.
12. Before parting with the case reference may be made to some cases on the reduction of this sentence to an offender under section 10 of the Ordinance. In a case reported in PLD 1985 FSC 1, conviction of the accused was converted from section 10(3) to section 10(2) and the sentence awarded was reduced from 10 years' R.I. To 5 years' R.I. The following observation made in para. 19 of the judgment may be reproduced: "The facts on record, however, do suggest that it was not a Zina-bil-jabr but the act was done with the consent of the prosecutor. We, therefore, alter the conviction from sections 10(3) to 10(2) and keeping in view section 382-B, Cr. P.C. Reduce the sentence to five years' R.I. With 15 stripes. The appellant is also fined Rs.2,000, and in default of payment of fine, he shall suffer three months' S.I."
PLD 1984 FSC 59 the conviction was converted from section 10(3) of the Ordinance to section 10(2) and sentence reduced from ten years' R.I. To five years' R.
1. And thirty stripes to fifteen stripes.
"The above statement of the lady doctor and the rest of the facts and circumstances in which the occurrence has taken place lead us to this conclusion that whatever may be the reasons and circumstances Mst. Kalsoom Bibi had put no real resistance and it appears that the act was done with her consent. We are, therefore, of the view that the appellant had committed the offence of Zina with consent, which is punishable under section 10(2) of the Ordinance. His conviction under section 10(3) of the Ordinance is altered to one under section 10(2) of the Ordinance and the sentence awarded is reduced to four years" R.I. The sentence of whipping awarded is maintained.
However, the appellant is further sentenced to pay a fine of Rs.1,000 or in default of payment of fine to undergo further R.I. For one month. The appellant shall also get benefit of the period of detention suffered by him during the trial as laid down in section 382-B, Cr. P.C."
13. With these observations and modification in the sentence this appeal is dismissed.