' These are two connected appeals filed separately by both the appellants namely, Sulkhan Masih and Mst. Meena against the judgment dated 20th of December, 1989, passed by the learned Additional Sessions Judge, Sargodha, whereby he convicted both the appellants under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced each of them to five years' R.I., with whipping numbering twenty stripes and a fine of Rs, 2,000. In default to undergo further R.I. For six months.
2. On 22-4-1989 at about 9-30 a.m., the accused were apprehended from a house situate at Katchi Basti Tariq Abad, Sargodha Cantt. Where they were staying as guest for the last two days and three nights. Allegedly, they were the maternal grand-father of the complainant P.W.3 to his house. As appeallant Sulkhan called as Sain had assured him that he would tell by applying spiritual knowledge the whereabouts of the brother of the complainant Sanor Masih missing since last three years within two days. Appellant No,2 was then with appellant No,1. In the morning of the day of occurrence at about 9.00 a.m., when the complainant returned after performing his duty where he was employed and P.W.5 Pervez Masih who also came there out of his anxiety to know the whereabouts of the missing brother of the complainant from the appellant Sulkhan, who had promised to reveal the whereabouts of the missing brother after two days. The young sister of the complainant Bibi Nusrat aged about 13/14 told the P.W.3 and P.W.5 that both the appellants/convicts were in the room. After waiting for some minutes the door of the room was opened and both the P.Ws. Entered it and found that the appellants were engaged in sexual intercourse. They were asked to put on their clothes. The matter was immediately reported to the police. P.W.7 Amanullah, S.I., Police Station Cantt. Saddar, who had also investigated the case, arrived on the spot, arrested both the accused, prepared the sketch, recorded the statements of the P.Ws. And sent the appellants for medical examination.
3. P.W.1, Dr., Abdul Ghani, examined the appellant Sulkhan on the same day and found him potent.
P.W.4 Adeeba Samer, lady doctor, examined appellant No,2 Mst. Meena on the same day. Two volve vaginal swa bs were taken and sealed in a phial for detection of semen which were sent to the Chemical Examiner whose report was positive. P.W.4, inter alia stated that the hymen and vagina admitted two fingers easily and the presumption was that the lady was habitual to sexual intercourse. The appellant No,2 was also stated to be pregnant. Uterus was about 10 to 12 weeks size.
4. The material witnesses are only two i.e, P.W.3 Sanwar Masih complainant and P.W.5 Pervez Masih, who have deposed on oath that both of them at one point of time i.e, in the morning of 22nd of April, 1984 at about 930 a.m. Had seen the appellants committing zina in the only room of the house of the complainant. Both are unanimous on the day, time and place of the actual occurrence. There is, however, a discrepancy between the statements of P.W. 3 and P.W.5 as to whether the door was chained from inside or not and so about the existence of a window in the said room but this discrepancy is not of such a nature which goes,to the root of the matter because both had entered the room through entrance door and saw the occurrence together.
5. The medical evidence as well as the Chemical Examiner's report of the same day also lends support to the prosecution case, as there is no delay at all in this respect.
6. Learned counsel for the appellant as a last leg of his argument took the plea of marriage Iktween the appellants as mentioned in the memo. Of appeal by each of them and reliance having been placed by him on Muhammad Azam's case (PLD 1984 SC 95) submitted that the case calls for an inquiry as to the fact whether they were legally married before the occurrence in the case. Plea for the sake of convenience is reproduced as under:-- {{URDU TEXT}}
7. I have gone through the entire record of the case with the help of the learned counsel for the appellants as well as State. There appears to be not the slightest indication of the relationship which has now been, for the first time, alleged in the memo. Of appeal. No such plea was taken during the investigation by the Police or at the trial of the case by both or either of them nor there is any suggestion given by the defence to the prosecution witnesses to that effect. The said plea of marriage, therefore, is of no worth. The facts of Muhammad Azam's case are not attracted to this case. Furthermore, having placed reliance on Shakir Muhammad and others vs. The State (PLD 1984 SC 353), the plea of marriage, in the circumstances referred to above, appears to be frivolous and mala-fide.
8. For the above said reasons, I do not find any infirmity in the judgment impugned before me. The appeal is, therefore, dismissed, the conviction and sentence of imprisonment and fine are maintained. However, the sentence of whipping, from twenty to thirty stripes is enhanced as the same is mandatory as provided under section 10(2), on the basis of notice of enhancement already issued to the appellant under S.M. No,14/L of 1990.
9. Appellant No,2 by order, dated 14-5-1990 was enlarged on bail, who is not present in Court. She will be taken into custody by the Police to serve out the remaining sentence. The benefit of section 382-B, Cr.P.C., as awarded by the trial Court will, however, remain intact. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.