' These two appeals filed by Dost Muhammad son of Sher Muhammad, resident of Chak No,29/NB, Police Station Kuthala Sheikhan, District Sargodha are directed against the judgment passed by the learned Additional Sessions Judge, Sargodha dated 9-9-1991 whereby he has been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 7 years' R.I., whipping numbering twenty stripes and a fine of Rs,10,000 or in default two years' R.I.
He has been acquitted from the charge under section 11 of the Ordinance. His other co-accused namely Ghaus Muhammad, Sher Afzal, Khan Muhammad, Sher Muhammad and Mst. Sat Bherai have been acquitted by the same order. A suo motu notice for enhancement in respect of mandatory sentence of whipping being thirty stripes was also issued to him. I am going to dispose of both the appeals and the suo motu notice by this single judgment.
2. Briefly stated, the case of prosecution, as narrated by Mian Muhammad in Exh.PA., is to the effect that his daughter Aisha Bibi aged 15 years alongwith his sister Fateh Khatoon, his other two daughters and one son was living with him. About three months prior to this report, while as usual he was sleeping in the cattleshed, his sister Fateh Khatoon woke him up and informed him that Mst.
Aisha was not present in the house and had been abducted. He kept on searching her and at last, about fifteen days before, Shah Muhammad informed him that he and Gahna had seen her in the company of Dost Muhammad and other acquitted co-accused, waiting for the train at Malikwal Railway Station. On this information he kept on trying to restore her from the accused who had earlier promised to do so but later on flatly refused. The case was formally registered and investigated.
3. At the trial prosecution examined 11 witnesses in all. P.W.1 is Mian Muhammad, the complainant who reiterated his statement as mentioned above. P.W.2 is Dr. Hafiz Abdul Rahman who examined the appellant and found him fit to perform sexual intercourse. P.W.3 Gahna and P.W.4 Shah Muhammad are the Wajtakkar witnesses who saw Mst. Aisha in the company of the appellant and others at Malikwal Railway Station and informed the complainant. P.W.5 is Allah Bakhsh, A.S.I. He arrested the acquitted co-accused Ghaus Muhammad, Sher Afzal and Mst. Sat Bherai. On 17-8- 1988 he recovered Mst. Aisha from the appellant Dost Muhammad alongwith others from Railway Station, Sargodha and recorded the statement of P.Ws. He also made an application to Magistrate for recording the statement of Mst. Aisha under section 164, Cr.P.C. But the same could not be recorded as the Magistrate was busy. P.W.6 is Sabir Hussain Shah A.S.I. Who recorded formal F.I.R.
P.W.7 is Muhammad Jahangir Khan who certified the birth certificate of Mst. Aisha as Chairman, Union Council, Chak No,36/NB. P.W.8 is Ali Abbas Shah, Magistrate 1st Class. On 13-9-1988 he summoned Mst. Aisha from Jail and recorded her statement Exh.P.N. P.W.9 is Mst. Ghulam Aisha.
She gave a detailed account of how Dost Muhammad, appellant took her out of her house on the pretext that his sister Mst. Sat Bherai had some pain in the abdomen and that she should help her.
She accompanied him to his house where she was locked in a room and kept confined there for ten days and pressurised by Dost Muhammad to marry with him or his brother Ghaus. She was being subjected to Zina by the accused. After ten days she was taken in a wagon to Gujrat and kept there for 2/3 days in the house of Shera Nobeharia and his wife Anwar Khatoon. Then she was taken by the appellant to Mandi Bahauddin and secured her thumb-impressions on some papers under threats. She was again brought to the house of Shera Nobeharia and kept confined for fifteen days. There she was subjected to Zina-bil-Jabs by the sons of Shera. Then the appellant alongwith others took her to Malikwal Railway Station where she was also seen by Shah Muhammad and Gahna but the accused then threatened her and asked her not to look at them.
From there she was taken to Chaks Nos.18, 29, 8 Village Botala and Province of Sindh. At all the places she was subjected to Zina by different persons named in her statement. In Sindh, Khanoon and Sher informed appellant that Punjab Police had come to know about their whereabouts and she should be shifted to some other place. Then she was brought to Sargodha where the police raided and recovered her and was medically examined and taken first to police station and then sent to Darul Aman where she remained for about 10/15 days. P.W.10 is Ahmad Khan, F.C. He transmitted the sealed parcel to the office of Chemical Examiner. P.W.11 is Lady Dr. Lubna Arshad who medically examined Mst. Aisha aged 19 years and observed as follows:-- "EXAMINATION FOR RAPE
(1) There was no suspicious stains on her clothes.
(2) There were no marks of violence on her body. ON P/V EXAMINATION ' On P/V examination hymen was found torn and tears were healed. It was admitted two fingers easily."
' She took two valvo-vaginal swa bs for chemical examination which were found stained with semen vide report Exh.P.Q. And so she opined that Mst. Aisha had sexual intercourse within two weeks prior to her medical examination.
4. In his statement under section 342, Cr.P.C. The appellant Dost Muhammad aged 60 years denied the allegation and pleaded innocence. He stated that the P.Ws. Had deposed against him due to enmity. He declined to make a statement on oath or lead any evidence in defence.
5. I have heard the learned counsel for the parties and have perused the record with their assistance.
6. It transpires from the record that the case of prosecution is established against appellant by the testimonies of P.W.3 and P.W.4, Wajtakkar witnesses, who saw the appellant in the company of Mst.
Aisha and others at Malikwal Railways Station and informed the complainant accordingly. Then on the next day P.W. Also accompanied him to the Dera of Lumberdar and demanded the hand of Aisha Bibi. Then there is the testimony of Aisha P.W.9 who gave a detailed account of what happened to her at the hands of appellant A and others. Ali Abbas Shah, M.I.C. Who recorded her statement under section 164, Cr.P.C. Also appeared as P.W.B. The said statement was however recorded by him in the absence of the appellant/accused. Mst. Aisha, according to P.W.S was recovered on 17-8-1988 from the appellant and was medically examined on the same day. The Chemical Examiner's report Exh.P.O. Revealed that the swabs were stained with semen.
7. The learned Additional Sessions Judge has very ably and correctly appraised the whole evidence at paras.19 to 21 of his judgment and has correctly convicted the appellant under section 10(2) of the Ordinance and there seems no reason to interfere. However, keeping in view the overall circumstances as well as age of the appellant, the sentence of his imprisonment could be reduced.
8. Consequently for the reasons stated above, I maintain the conviction and the sentence of fine of Rs,10,000 or in default two years' R.I. However, the sentence of imprisonment of the appellant is reduced to already undergone. The sentence of whipping is enhanced to thirty stripes being mandatory.
9. With this modification in the sentences both the appeals are dismissed. The suo motu notice is disposed of accordingly.