' Sultan Ali, son of Taj Muhammad, caste Arain, aged 20 years, cultivator, resident of Chak No,239/EB, Tehsil Burewala, District Vehari, has preferred this appeal against the judgment of the learned Additional Sessions Judge, Burewala dated the 18th February, 1992, convicting and sentencing the appellant as follows:---
(a) under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), for enticing and taking away Mst. Mahmooda Akhtar, P.W.6, 16 years old unmarried daughter of Muhammad Afzal, P.W.1, with intent to have illicit intercourse with her to 5 years' rigorous imprisonment, 20 stripes of whipping and a fine of Rs,2,000, failure to pay which was to entail sufferance of additional rigorous imprisonment for 6 months; and
(b) under section 10(2) of the Ordinance for committing Zina with Mst. Mahmooda Akhtar to 10 years' rigorous imprisonment, 20 stripes of whipping and a fine of Rs,3,000 and in default of payment thereof to further rigorous imprisonment for 6 months.
' Both the sentences were to run concurrently and the appellant was 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. He is on notice issued by this Court as to why the sentence be not enhanced because the sentence of 20 stripes of whipping awarded to him by the learned trial Court in respect of his conviction under section 10(2) of the Ordinance is not in consonance with law which mandates passing of sentence of 30 stripes of whipping.
2. The appellant's father, Taj Muhammad, mother, Mst. Hamidan Bibi and brother, Liaqat Ali, who faced trial along with the appellant on the charge of abducting Mst. Mahmooda Akhtar for the purpose of illicit intercourse, were acquitted by the learned trial Court.
3. According to the prosecution version of the case laid against the appellant and his acquitted co- accused Mst. Mahmooda Akhtar had been taken away from her house in the first instance by the appellant's mother, Mst. Hamidan Bibi, in the evening of the 24th July, 1986, on the pretext of answering the call of nature. As Mst. Mahmooda Akhtar did not return home her father felt uneasy and started making search for her. He came to know that the appellant and his co-accused had taken away his daughter. The appellant's parents are stated to have promised the restoration of Mst. Mahmooda Akhtar but were alleged to have afterwards backed out of the promise.
Muhammad Afzal reported the matter to the police on the 1st August, 1986 at 8-00 a.m. His statement, Exh.PA, taken down by Muhammad Ali, Sub-Inspector of Police, Police Station Gaggo, P.W.7, constitutes the first information report.
4. As it transpires from the evidence brought on the record the appellant took Mst. Mahmooda Akhtar to Lahore where she lived with him for more than a month and a half. She returned home on the 16th September, 1986. She was produced before Allah Nawaz, Inspector of Police and Station House Officer, Police Station Gaggo, P.W.8, that very day. She was examined by Lady Doctor Shahnaz Akhtar, Women Medical Officer, Tehsil Headquarters Hospital, Burewala, P.W.5, on the 17th September, 1986. The lady doctor found that hymen showed lateral laceration admitting two fingers easily. She did not notice any injury on any part of her body. She took two vaginal swabs which on examination by the Chemical Examiner were found to be stained with semen. Exh.P.J. is the report of the Chemical Examiner in this behalf. According to Lady Doctor Mst. Mahmood Akhtar had been subjected to sexual intercourse. Exh.PH is the copy of her medico-legal examination report.
5. The appellant was arrested by Muhammad Ali, P.W.7, on the 24th September,. 1986, when he was examined by Dr. Syed All Akhtar, Medical Officer, Rural Health Centre, Gaggo, P.W.3, who certified his potency to commit sexual intercourse. The medical officer noticed the following injuries on his person:--- "(1) A swelling on left wrist-joint measuring 4 c.m. x 4 c.m. with swelling extending on hand.
(2) A bruise 4 c.m. x 2 c.m. on back of left thigh 6 c.m. below the hip-joint.
(3) A bruise 6 c.m. x 2 c.m. on back of left buttock 3 c.m. below the crest of hip bone.
(4) A bruise 4 c.m. x 2 c.m. on back of left buttock just below the lesion just mentioned above."
The injuries were simple and had been caused with blunt weapon within 20 to 24 hours. These injuries, as admitted by the appellant had been received by him during resistance which he offered while being arrested. Exhs. PC and PE are the reports of the medical officer.
6. The appellant denied having enticed or taken away Mst. Mahmooda Akhtar or having committed Zina with her. According to him Mst. Mahmooda Akhtar's father, Muhammad Afzal owed him Rs,22,000 and when he demanded return of the debt he (Muhammad Afzal) had got him involved in the false case. It may be mentioned that while cross-examining Muhammad Afzal the appellant suggested that he had also convened a Punchayat for the repayment of the outstanding amount of debt. However, no evidence touching convening of punchayat or its deliberations was brought on the record by the appellant. As a matter of fact the appellant did not examine himself on oath nor he produced any evidence in defence.
7. Mst. Mahmooda Akhtar testified to the appellant's taking her to Lahore and of their living and cohabiting over there. All along she did not raise any protest or alarm. Evidently she was a consenting party to the whole game. In the absence of existence of any hostility between the complainant and the appellant Mst. Mahmooda Akhtar would not have gone to the extent of putting her honour at stake by deposing of having sexual intercourse with the appellant had the incident been not true. It may be mentioned that otherwise Mst. Mahmooda Akhtar comes of a good family. The excuse put forth by the appellant for his involvement in the case having been found to be baseless the learned Court was right in believing the evidence given by Muhammad Afzal and Mst. Mahmooda Akhtar. Medical evidence and result of the chemical analysis by the Chemical Examiner lends corroboration to the testimony of Mst. Mahmooda Akhtar. The learned trial Court, after proper discussion and appreciation of the evidence, correctly determined the guilt of the appellant. The learned counsel for the appellant has not been able to point out any defect in the process of appreciation of evidence adopted by the learned trial Court. Consequently the conviction of the appellant recorded by the learned trial Court is unexceptionable and is affirmed.
8. The learned counsel for the appellant canvassed for reduction of sentence especially the one of 10 years' rigorous imprisonment pertaining to the count of conviction relating to commission of offence of Zina. He submitted that the appellant's parents and brother suffered pangs of protracted trial for no apparent fault of theirs and that the appellant being a young man had promised to turn over a new leaf. The sentence of 10 years' rigorous imprisonment appears to be in the circumstances of the case on the high side. Accordingly it is reduced to 5 years' rigorous imprisonment. At the same time the sentence of 20 stripes of whipping touching this very count of conviction is enhanced to 30 stripes of whipping in order to bring it in conformity with the requirements of section 10(2) of the Offence of Zine (Enforcement of Hudood) Ordinance, 1979. The rest of the sentence is kept intact. As already directed by the learned trial Court both the sentences will run concurrently and the appellant will enjoy benefit of the provisions of section 382-B of the Code of Criminal Procedure. With the exception of the abovementioned reduction of sentence from 10 to 5 years' rigorous imprisonment and increase in the sentence of whipping from 20 to 30 stripes the appeal stands dismissed.