TANZIL-UR-RAHMAN, CJ.--- The accused, Talib Ali, was tried by the learned Additional Sessions Judge, Lahore, under sections 11 and 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. He was found guilty under both the sections by the learned Judge and was sentenced under section 11 of the said Ordinance to life imprisonment, whipping numbering 3p stripes and fine of Rs.1,000. He wall also convicted under section 10(2) of the said Ordinance and was sentenced to 10 years' R.I., whipping numbering 3o stripes and a fine of Rs.1,000. Both the sentences were ordered to run concurrently, vide judgment dated 10th July, 1985.
2. The accused sent an appeal from jail which was received by this Court on 31-8-1991. The office raised an objection that the said appeal was barred by five years approximately. The said appeal came up before this Court for admission on 4-11-1991 when a notice was ordered to be issued to Advocate---General Punjab as the appeal was found time-barred by 2,178 days. On the next date of hearing viz. 7-11-1991 Mr. Muhammad Aslam Uns, Advocate, appeared for the State and submitted that the appeal is hopelessly time-barred and rib ground for its condonation has been shown'. He further submitted that `this appeal may be treated as Revision under Article 203-DD of the Constitution as, in the facts and circumstances of the case, and recent law pronounced by the Supreme Court, the sentence passed under section 11 of the Ordinance is not proper'. The appeal was, thus converted to Revision and admitted to regular hearing and meanwhile the sentences of whipping and fine were suspended.
3. Since it was a matter received from jail, this Court appointed Malik Muhammad Anwar, Advocate, for the petitioner at State expense. Mr. Javed Aziz Sindhu; Advocate, appeared for the State.
4. The facts of the case briefly stated are that on 30-6-1984 Talib Ali, accused/petitioner abducted Mst. Razia Bibi aged about 15 years from her house on the pretext that her parents were going to G ulshan Park and were waiting for her on the road. She came out of her house and went with Talib Ali, who took her to Jaranwala where she was kept for about 4/5 days. During that period Talib Ali committed Zina-bil jabr with her. He then brought her 'back to Lahore to offer `Fatiha' at the shrine of Data Ganj Bakhsh. He entered the shrine from the door meant for males and asked her to go inside the shrine from the female's door. So, she getting an opportunity of being all alone, slipped away from there and reached her house and narrated the story to her parents. The father immediately thereafter went to police station and lodged the F.I.R. Muhammad Iqbal A.S.I.
Investigated the case and after completion of formalities, he challaned the accused and sent up his case for trial to the Sessions Court under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
5. The prosecution in all produced seven witnesses in support of its case. P.W.1 Dr. Razia Radiologist, Lady Aitchison Hospital deposed that on 12-7-1984 she examined Mst. Razia Bibi (the victim) at the request of the police for the determination of her age. She took three X-rays and opined that she was about 15 years of age. Her report is exhibited as `PA'. P.W.2 Mst. Razia Bibi is the victim. She deposed that on last Eid-ul-Fitr at about 8-00 a.m. She alongwith her mother went to the house of Maulvi Umer Din for saying Eid prayer. After saying her prayer, she reached her house, it was found locked from outside. Just at that time, the accused Talib Ali came there and told her that her parents were going to Gulshan Park who were waiting for her at road side. Thereupon, she accompanied the accused. A taxi was parked on the road. The accused boarded her in that taxi at a dagger's point and brought her to the Ravi Bridge and from there he took her to Jaranwala where she was detained for 4/5 days and during that period he had been committing Zina-bil-Jabr with her. Thereafter, the accused brought her back to Lahore for offering `Fatiha' at the shrine of Data Ganj Bakhsh. He asked her to go inside the shrine from the ladies door and he himself went in from the door meant for males. She did not enter the shrine and slipped away to her house in a rickshaw and narrated the entire story to her parents. She was, afterwards, medically examined and was also produced before the Magistrate who recorded her statement (Exh. P.B.) and she thumb marked on it.
6. P.W.3 Mirza Amjad Beg is the father of the victim and complainant in the case. He narrated the facts given by him in the F.I.R. (Exh. P.C.) P.W.4 Nazir Mashi, A.S.I., recorded the formal F.I.R. (Exh.P.C./1) which was testified by him in the Court. P.W.5 Shaukat Ali, a private witness, deposed in the Court that he had heard on the day of Eid-ul-Fitr that Mst. Razia Bibi was missing. The said witness was, however, declared hostile and cross-examined by the learned D.DA. He, however, denied the suggestion that he saw the abductee with the accused. P.W.6 Dr. Zakia Mumtaz of Lady Aitchison Hospital, Lahore, examined Mst. Razia Bibi. Her findings are as under:-- "(1) No mark of injury on the body.
(2) Hymen torn, tear was old.
(3) Vagina admitted two fingers tightly."
She sent the vaginal swa bs to the chemical examiner (Exh. P.E.). On the basis of her medical report and the report of the chemical examiner it was deposed by her that the abductee was subjected to sexual intercourse.
7. P.W.7 Muhammad Iqbal A.S.I., and Investigating Officer in the case recorded the statements of the witnesses, prepared the site plan (Exh. P.F.), got recorded the statements of the victim/abductee under section 164, Cr.P.C. And also got examined the abductee and the accused. Besides that he had also made arrest of the accused and after completion of the investigation challaned the accused and sent him up for trial.
8. The accused was examined under section 342, Cr.P.C. He has also given a statement under section 340(2), Cr.P.C. He denied the allegations against him and asserted that he was involved due to the fact that the father of the victim wanted to embezzle his committee money which was with him and involved hire in the case due to enmity.
9. Having gone through the entire evidence with the assistance of the learned counsel for the petitioner and the State, we do not find any infirmity in the trial or the judgment. The learned counsel for the petitioner submitted that there is a delay of about 6 days in lodging the F.I.R. The occurrence is stated to have occurred on 30th June, 1984 at about 8-30 a.m. But the F.I.R. Was lodged by the father of the victim on 6th July, 1984 at 7-00 p.m. There is undoubtedly a delay of about six days but in the case of such a nature where the honour of a family is involved particularly of a virgin and unmarried girl, the parents do not immediately rush up to the police. They first try to exhaust their own means to trace the whereabouts of the missing girl and as a last resort when they have no (Tamil-ur-Rahman, CJ) alternative, but to report the matter to the police, they do so.
The delay of six days therefore, appears to be immaterial. It was next submitted by the learned counsel that the father knew about the missing of the daughter through Shaukat Ali (P.W.5) but the said witness having been declared hostile and have denied the suggestion that he saw the abductee going in a taxi with the accused it cannot be taken up as a plea in defence. Learned counsel then submitted that it was a case of Zina-bil-Raza. The plea has no force because there is ample evidence to show that the victim had not attained the age of 16 years. She was enticed away to have sexual intercourse with her. Lastly, learned counsel also took a plea that the statements made by the P.Ws. Are on solemn affirmation and not on oath and, therefore, the trial has vitiated and the case may be remanded for trial. Reliance was placed by him on Javed Akhtar alias Yaseen v. State 1990 P Cr. L J 445. It appears that the law has not been correctly laid down in the said judgment because section 13 of the Oaths Act takos into account such a situation. The relevant provision of law reads as under:-- "No omission to take any oath or make any affirmation, no substitution of any for any other of them, and no irregularity what ever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
In another judgment reported as Zeb-ul-Haram v. State PLD 1991 FJC 1 the point has been dealt with in some detail and it has been observed that the provisions of sections 6 and 13 with regard to the admissibility of the evidence of the witness who was either not administered any oath or the statement was recorded on a solemn affirmation will not vitiate the proceedings. In the instant case it has not been pleaded that the non-taking of oath and making statement has caused any prejudice to the petitioner or has resulted in failure of justice. Furthermore, the explanation to section 537, Cr.P.C. Lays down that in determining whether any error, omission or irregularity in any proceeding under the Code of Criminal Procedure had occasioned a failure of justice; the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Here, no objection to the non-giving of oath to the witness was taken at the trial stage. Even otherwise, it cannot be said to have occasioned a failure of justice so as to make out a case for remand, as requested by the learned counsel.
10. In the instant case, there appear no inconsistencies or contradictions in the evidence available on record. The ocular testimony of the victim coupled with medical report and chemical examiner's report have been held to be sufficient to prove the prosecution case by the learned trial Judge anal we have no reason to take a different view.
11. In result, the conviction under sections 11 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is maintained. I n so far as sentence is concerned we alter the sentence under section 11 of the said Ordinance from life imprisonment to ten years' R.I. The other sentences as to whipping and fine will remain intact. The sentences under section 10(2) of the said Ordinance as to imprisonment of whipping and fine are also maintained. Both the sentences will run concurrently.
12. The learned trial Judge has not given the benefit of 'section 382-B, Cr.P.C. To the accused/petitioner, we do not feel inclined to award benefit. He will, therefore, not be entitled to the benefit of section 382-B, Cr.P.C.
13. The above revision is allowed to the extent stated above as to the reduction of sentence under section 11 of the said Ordinance only.