' JUSTICE SHAFIUR RAHMAN (CHAIRMAN).---Muhammad Shabbir aged 22 years, a convict under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Hudood Ordinance) and under section 16 of the Hudood Ordinance has appealed under section 13 of the Special Courts for Speedy Trials Ordinance, 1991.
2. The prosecution case against the appellant was that he used to cultivate jointly the land belonging to Fazal-e-Haq in Chak No, 170-TDA alongwith the father of the abductee Mst. Hanifan.
The father of Mst. Hanifan was paralysed. Hence, the greater burden of cultivation fell on the appellant. Mst. Hanifan, stated to be of 13/14 years of age but reported by the Lady Doctor to be of 19 years, was engaged to her cousin Noor Samand. On the 26th 4 December, 1991, Mst. Hanifan (P.W.5) alongwith her uncles Pir Bakhsh (P.W.4) and Muhammad Sharif, and Muhammad Shabbir appellant came to Chowk Azam in Layyah from their Chak 167-TDA for making purchases. Sharif and Pir Bakhsh, the two uncles of Mst. Hanifan left for mosque for offering prayers leaving Muhammad Shabbir and Mst. Hanifan outside, in the chowk. After prayers, when Pir Bakhsh and Muhammad Sharif returned they did not find Mst. Hanifan and Muhammad Shabbir at the spot where they were left. They searched for them and made enquiries but they could not be traced. It was on the 30th December, 1991 that Pir Bakhsh lodged the report about the abduction of Mst.
Hanifan giving' out her aged to be 13/14 years. This report was recorded by Muhammad Akram A.S.- I. (P.W.6) and a case was registered on it.
' On the next day, i.e,, 31st of December, 1991, the Investigating Officer Muhammad Akram A.S.-I. And Pir Bakhsh were present in Chowk Azam when they saw both the appellant and Mst. Hanifan, and apprehended them. Mst. Hanifan was produced before the Magistrate (Qazi Zafar Iqbal) and her statement was recorded. She was examined by the lady doctor on 1-1-1992 as on the earlier day she was on leave.
3. The main features of the medical examination of Mst. Hanifan disclose that she was about aged 19 years, that there was no sign of violence on her person, that she was accustomed to sexual intercourse. Hymen had old tears. The vaginal swabs were taken and sent for Medical Examiner's report on the basis of which the lady doctor reported that she had been recently subjected to sexual intercourse.
4. At the trial, Pir Bakhsh the uncle, Mst. Hanifan and the Investigating Officer appeared in support of the case apart from the Magistrate and the lady doctor. The plea of the appellant at the trial was that Noor Samand the present husband of Mst. Hanifan had abducted her and the appellant was suspected of having assisted that abduction and on that account falsely implicated in the case. It was urged that Mst. Hanifan on account of her antecedents and medical examination appeared to be thoroughly unreliable witness and no conviction could be made on her statement.
5. The fact that Muhammad Shabbir had accompanied Mst. Hanifan and Pir Bakhsh to Chowk Azam on 26-12-1991 is borne out by the statement of these two witnesses. There is no reason to doubt it. Being joint cultivator with the paralysed father of Mst. Hanifan, he could join the family in such an outing. It appears also that from Chowk Azam the two voluntary made good their escape.
Not only the age of Mst. Hanifan as disclosed by the doctor shows that she was sui juris but her medical examination also bears out that she was not totally uninitiated and innocent in sexual matters. She could not, unless a willing party, have remained unnoticed alongwith the appellant and moved from place to place. Even when she was found at Chowk Azam, there was no resistance, protest or attempt on her part to attract the attention of others so as to get the culprit apprehended and punished. This will definitely make her a consenting party. This is further borne out by what the Investigating Officer has done in the case. He made the following statement:-- "I had suspected that Mst. Hanifan was telling a lie so I did not go to school at Chak No, 410. I did not take into possession the clothes of Mst. Hanifan. Similarly I did not take into possession the clothes of accused."
' Pir Bakhsh has also made a very uninspiring statement with regard to her niece having been taken to a girls school under construction and kept there under threat and force. He stated as follows:- "The police had apprehended both Mst. Hanifan and Shabbir accused in the School of Chak No, 470 when they were lying on the same cot. I was also with the police at that time. Fazal Ellahi and Sharif were also with me at that time. After the arrest of the accused we came to the police station with the police. I did not state before the police that we had found Mst. Hanifan and Shabbir on the same cot. Mst. Hanifan and Shabbir accused were arrested from Chowk Azam. The truth is that Hanifan and Shabbir were apprehended when they were lying on the same cot in the School of Chak No, 470."
6. The statement of Mst. Hanifan, the medical examination and the report with regard to swabs show that in fact the sexual intercourse was committed with her. She has charged Muhammad Shabbir for it. There appears no reason for her falsely implicating him. The identity of the swabs sent by the lady doctor has been established by the statement of the lady doctor who was not questioned about the identity of the sample taken, sealed, despatched. Mst. Hanifan being the consenting party, there is an element of mitigation though not exoneration. The offence committed by the appellant will fall under section 10(2) of the Hudood Ordinance.
7. In the circumstances, we set aside the conviction under section 10(3) of the Hudood Ordinance 'and instead make it under section 10(2) of the Hudood Ordinance and reduce the sentence to four years' R.I. And fine of Rs,500. The sentence under section 16 is also maintained but the sentence of fine, in the circumstances, is reduced to Rs,500 instead of Rs,10,000.
In default of payment of fine, the appellant shall undergo three months' S.I. The sentence of whipping is maintained. He has already been awarded the benefit of section 382-B of the Criminal Procedure Code. The substantive sentences of both the offences shall run concurrently. With these modifications the appeal against conviction and sentence stands dismissed.