' NAZIR AHMAD BHATTI, J.--- Complainant Altaf Hussain submitted a written complaint in Police Station Saddar Kamalia on 22-5-1990, wherein he charged Nasrullah alias Nasir appellant herein and his co-accused Bagh Muhammad for abducting his sister Mst. Kausar Bibi aged about 13/14 years on 19-5-1990, when she was alone in the house. It was also disclosed in the report that Mst.
Kausar Bibi was seen going alongwith both the accused by Muhammad Aslam and Faiz Muhammad.
2. Mst. Kausar Bibi was recovered alongwith the appellant and his co-accused Bagh Muhammad on 25-5-1990, and she was also medically examined on the same day by P.W.1 Lady Dr. Zireena Chaudhary and according to that examination her hymen was torn all around and vagina admitted two fingers but there was no marks of injury or violence over her body and private parts.The lady doctor took 2 vaginal swabs which were found stained with semen.
3. After investigation both the accused were sent up for trial before Additional Sessions Judge, Toba Tek Singh who charged both of them under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which both of them pleaded not guilty and claimed trial.
4. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant Nasrullah and his co-accused Bagh Muhammad under sections 11 and 10(3) of the Hudood Ordinance. For the offence under section 11 of the Hudood Ordinance both of them were sentenced to life imprisonment, to pay a fine of Rs,5,000, or in default to further undergo rigorous imprisonment for 4 years and to suffer 30 stripes. For the offence under section 10(3) of the Hudood Ordinance both of them were sentenced to undergo rigorous imprisonment for 25 years and to suffer 30 stripes. Appellant Nasrullah has challenged his conviction and sentence by the appeal in hand whereas no appeal was filed by convict Bagh Muhammad.
5. The medical examination of Mst. Kausar Bibi revealed that she was used to sexual intercourse as there were no fresh tears of hymen as also vagina was very loose.
6. P.W.4 Muhammad Aslam stated that he had seen Mat. Kausar Bibi in the company of both the accused sitting in the bus and she did not make any complaint to him as to whether she was being abducted or not.
7. From the aforesaid circumstances it can be gathered that Mst. Kausar Bibi had voluntarily eloped with both the accused and she was also a consenting party to the sexual intercourse committed by them with her.
8. We have therefore come to the conclusion that the charge under section 11 of the Hudood Ordinance was not proved against any of the two accused and the offence of Zina was covered under section 10(2) of the Hudood Ordinance instead of under section 10(3) of the Hudood Ordinance.
9. We, therefore, partly accept the appeal. The conviction of the appellant under section 10(3) of the Hudood Ordinance is altered into one under section 10(2) of the Hudood Ordinance and he is sentenced to undergo rigorous imprisonment for 3 years, to suffer 30 stripes and to pay a fine of Rs,5,000 or in default to further undergo rigorous imprisonment for 3 months. The conviction and sentence of the appellant under section 11 of the Hudood Ordinance is set aside and he is acquitted of that offence.
10. Accused Bagh Muhammad was also convicted and sentenced by the learned Additional Sessions Judge alongwith the appellant but he did not file any appeal. However, in the interest of justice we invoke our Constitutional jurisdiction under Article 203-DD of the Constitution and by setting aside his conviction under section 11 of the Hudood Ordinance we order that he shall be acquitted of that offence. In so far as the conviction and sentence of co-accused Bagh Muhammad under section 10(3) of the Hudood Ordinance is concerned, the same is altered into one under section 10(2) of the Hudood Ordinance for which he shall undergo rigorous imprisonment for 3 years, to suffer 30 stripes and to pay a fine of Rs,5,000 or in default to further undergo rigorous imprisonment for 3 months. Both of them shall also be entitled to the benefit under section 382-B, Cr.P.C.