' Muhammad Arshad alias Achhi, son of Niamat Ali, caste Jat Cheena, aged 19 years, labourer, resident of Nizampura Challanwala, Chak No,38, Tehsil and District Sheikhupura, has preferred this appeal against the judgment of the learned Additional Sessions Judge, Sheikhpura, dated the 19th May, 1993, whereby he was convicted and sentenced as follows:-
(a) under section 452 of the Pakistan Penal Code for committing the offence of house trespass to five years' rigorous imprisonment and fine of Rs,5,000, failure to pay which was to entail sufferance of additional rigorous imprisonment for six months; and
(b) under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), for committing Zina-bil-Jabr to seven years' rigorous imprisonment and thirty stripes of whipping.
' Both the sentences were to run concurrently. The amount of fine, if recovered, was directed to be paid to the victim, Mst. Parveen Akhtar, P.W.3, 16 years old unmarried daughter of Muhammad All (who is mother's brother's son of the complainant, Sher Muhammad P.W.6).
2. According to the prosecution version of the case laid against him the appellant, at about mid- day, on the 8th April, 1992, secured entry into the house of Mushtaq brother of Mst. Parveen Akhtar, P.W.3, and finding Mst. Parveen Akhtar alone in the house committed Zina-bil-Jabr with her. Mst.
Allah Rakhi, P.W.5, daughter of Sher Muhammad, P.W.6, is said to have peeped through the crevices of the door of the room wherein the appellant was alleged to be committing sexual intercourse with Mst. Parveen Akhtar and noticing them flagrante delicto raised noise. Mst. Rashida Bibi, father's sister of Mst. Parveen Akhtar, was stated to have come over there and to have elapsed the legs of the appellant, when he tried to make good his escape. Nevertheless, the appellant was reported to have succeeded in extricating himself from the clutches of Mst. Rashida Bibi and fled away.
3. The matter was reported to the police by Sher Muhammad, P.W.6, on the 13th April, 1992, at 9-00 a.m. He was on his way to police station when he came across Tufail Ahmad, Inspector of Police and Station House Officer, Police Station Shahkot, P.W.7, who reduced into writing the former's statement, Exh.P.D. Which constitutes the first information report. The reason given by Sher Muhammad for delay in lodging report with the police was that the appellant party had been trying to cajole the complainant party to refrain from approaching the police.
4. Mst. Parveen Akhtar was got examined by the police by Lady Doctor 7ahida Noor, Women Medical Officer, District Headquarters Hospital Sheikhupura, P.W.2, on the 15h April, 1992, at 3-30 p.m.
The lady doctor did not notice any mark of violence on breast, face, external genitalia or any other part of her body. She made the following observations touching per vaginal examination.-- ' Vagina admits two fingers with difficulty and painfully. Few lacerations and redness present in interoitus. No fresh hymen tear present. Old hymen tear present on 3 o'clock, 7 o'clock, 11 o'clock positions.
' The lady doctor took two vaginal swabs and sent them on to the Chemical Examiner for the Punjab, Lahore, for detection of semen. The report of the Chemical Examiner, Exh.P.C. Marked absence of semen in the swa bs. The lady doctor opined that Mst. Parveen Akhtar had been subjected to sexual intercourse but in view of the report of the Chemical Examiner possibility of recent act of intercourse might be ruled out. Exh.P.B. Is the copy of the medico-legal examination report. Tufail Ahmad, P.W.7, arrested the appellant on the 16th April, 1992, and the same day he was examined by Dr. Ghulam Mustafa, Medical Officer, Rural Health Centre, Shahkot, P.W.1, who certified vide the report whose copy is Exh.PA., his potency to perform sexual act.
5. The appellant denied having trespassed into the house of Mst. Perveen Akhtar and having committed Zina-bil-Jabr with her. When asked why the case had been set up and why the prosecution witnesses had deposed against him he replied that the witnesses were inimical towards him, that they were related to each other and that they had falsely implicated him. He declined to give evidence on oath or any evidence in defence. It may be significant to note that there is no material whatever on the record indicating existence of slightest enmity between the appellant on the one hand and the prosecution witnesses on the other. His excuse in this behalf appears to be a sham one.
6. The medical examination of Mst. Parveen Akhtar clearly indicated that she had been subjected to sexual intercourse. The learned counsel for the appellant tried to make capital out of the report of the Chemical Examiner, Exh.P.C. Which marked absence of semen in the veginal swabs. As a matter of fact sexual intercourse between the appellant and Mst. Parveen Akhtar took place on the 8th April, 1992, and the latter was examined by the lady doctor on the 15th April, 1992, that is, after the lapse of a week. It was hot weather and quite naturally Mst. Parveen Akhtar must have taken bath several times during the interregnum and in all probability all traces of semen must have washed away. That is why no semen could be detected in the vaginal swabs which were taken on the 15th April, 1992, by the lady doctor. The learned counsel also tried to reap benefit out of the sweeping statement of the lady doctor that in view of the opinion of the Chemical Examiner she had come to the conclusion that recently Mst. Parveen Akhtar had not been subjected to sexual intercourse and that period could be extended upto 10/15 days by submitting that Mst. Parveen Akhtar could not be taken to have been subjected to sexual intercourse on the 8th April, 1992, as asserted by the prosecution. It seems that the lady doctor probably had in mind the fact that detection of semen was possible even after the lapse of about 17 days or so. Certainly the conclusion sought to be drawn by the learned counsel is not admissible because of the simple fact that if after washing away of semen just after the 8th April, 1992, the real factual position could not be altered.
7. The direct evidence of commission of Zina by the appellant with Mst. Parveen Akhtar consists of the depositions of Mst. Parveen Akhtar, P.W.3 and Mst. Allah Rakhi, P.W.5. Whereas Mst. Parveen Akhtar testified to the commission of Zina-bil-Jabr by the appellant with her Mst. Allah Rakhi deposed that she had seen the appellant committing Zina with Mst. Parveen Akhtar. It may be interesting to note that from the trend of cross-examination of Mst. Parveen Akhtar conducted and in view of the suggestions put to her by the appellant at least the presence of the appellant at the place of occurrence at the relevant time and existence of illicit relationship between the appellant and Mst. Parveen Akhtar are self-evident. The pertinent portion of the cross-examination of Mst.
Parveen Akhtar is reproduced below:-- "It is incorrect to suggest that I was having illicit relations with accused. It is incorrect to suggest that I was not maintaining good character. It is incorrect to suggest that factually on the day of occurrence accused was proceeding from the street and that I called for him whereupon accused came to my house to snub me. It is incorrect to suggest that when accused was seen in my house by the people, people raised hue and cries whereupon to save myself, I took plea of Zina-bil-Jabr."
Mst. Parveen Akhtar admitted that she had failed to offer any resistance to the appellant as the time of occurrence and that she had not attempted to save herself from him. Her conduct and her implied admission apparent from the suggestions put to her during cross-examination would show that she was a consenting party to the enjoyment of sexual intercourse with the appellant. In the absence of existence of any hostility between the appellant and the complainant party Mst.
Parveen Akhtar and Mst Allah Rakhi would not have gone to the extent to testifying to the commission of Zina by the appellant with Mst. Parveen and thus inviting indelible stigma on the reputation of the family had the factual position relating to the commission of Zina been not correct. The learned trial Court rightly believed the evidence of Mst. Parveen Akhtar and Mst. Allah Rakhi in so far as it pertained to the commission of house trespass by the appellant and Zina and there is no reason to take a different view. It was a case of commission of Zina by the appellant and not of Zina-bilJabr. Also the appellant was not found to be in any way armed or equipped with any weapon or to have made any preparation for causing hurt, etc. Before entering the house of Mst.
Parveen Akhtar's brother. His action constituted simple house trespass in order to the committing of an offence punishable with imprisonment covered by section 451 of the Pakistan Penal Code. In the circumstances the conviction of the appellant recorded by the learned trial Court in respect of commission of offences punishable under section 452 of the Pakistan Penal Code and section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is not in order; instead the appellant ought to have been convicted of the commission of offences punishable under section 451 of the Pakistan Penal Code and section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. Consequently the conviction of the appellant registered and the sentence awarded to him by the learned trial Court are altered in the following manner:-- "(a) in place of conviction under section 452 of the Pakistan Penal Code and sentence in respect thereof he is convicted of the commission of offence punishable under section 451 of the Pakistan Penal Code and is sentenced to two years' rigorous imprisonment and a fine of Rs,5,000 and in default of payment thereof to further rigorous imprisonment for six months; and
(b) instead of his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, he is convicted of the commission of offence punishable under section 10(2) of the Ordinance and sentenced to four years' rigorous imprisonment and thirty stripes of whipping.
Both the sentences will run concurrently. He is given benefit of the provisions of section 382-B of the Code of Criminal Procedure for the purpose of adjustment of the period of his detention during trial of the case against the term of sentence of imprisonment. With the above referred to modification in the conviction and sentences the appeal stands dismissed.