ABDUL KARIM KHAN KUNDI, J.---By his judgment and order dated 13-11-1989 the learned Additional Sessions Judge, Sargodha, acquitted Muhammad Arshad and Mst. Parvin co-accused, but proceeded to record the conviction of Muhammad Aslam and Asad Abbas, appellants on the charges of Zina liable to Tazir with consent and taking or enticing away the women with criminal intent under sections 10(2) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as Ordinance, and accordingly sentenced them to seven years R.I. Twenty stripes and a fine of Rs.5,000 or in default one year R.I. Further each and four years R,I., twenty stripes and a fine of Rs.2,000 or in default six months R.I. Further each respectively.
2. After going through the evidence on record and hearing the learned counsel for the parties at some length we have found that prosecution has furnished the ocular evidence in the statements of Mst. Raheela (P.W.4) and Uzma Rashid (P,W.5) about their alleged abduction, commission of Zina and last their, recovery. Muhammad Afzal (P.W.6) the brother of Mst, Raheela. Abductee had lodged the report on 3-12-1986 about the alleged occurrence of abduction happening on 30-11- 1986 and therein he charged the appellants alongwith their co-accused (acquitted) at the information of Mst, Nabeela. Shahid Iqbal and Muhammad Younas who had seen the girls being abducted by the appellants and their co-accused (acquitted). They were, however, not produced at the trial for no valid reason. About the recovery of the abductees from the custody of the appellant and their arrest on 6-12-1986 there was led evidence in the statements of Muhammad Afzal (P.W.6), the abductees and Khan Muhammad, S.I. (P.W.7). The abductees were also produced before the Magistrate who recorded their statements under section 164, Cr.P.C. During the course of investigation on the day of their recovery i.e. 6-12-1986. They were further medically examined the same day by Lady Dr. Raheela Razzaq (P.W.3) who tendered a definite opinion about Raheela, abductee that she was Subjected to sexual intercourse and her age was also reported as 17 years.
About Mst. Uzma Rashid she had found her hymen intact and she stated that she was not subjected to sexual intercourse and that a definite opinion about attempt of rape could be tendered only after the report of the Chemical Examiner. Her age was also given as 17 years.
3. The abductees narrated a story that they were living in a two storey house in Block No. 19, Sargodha, that on the day of occurrence the parents of Mst. Uzma were away to Lahore while the brothers of Mst. Raheela P.W. Were away to Lala Musa in connection with dealing in old clothes, that at about 11 'O' Clock in the noon they were sitting with Mst. Nabeela P.W. In the courtyard of the house, that Mst. Parveen co-accused (acquitted), sister of Aslam, appellant had taken them out on the pretext of shopping in the bazzar, that in Block No. 19, Aslam and Asad, appellants and Arshad co-accused (acquitted) met them and took them without their consent in a Rickshaw to Iqbal Colony from where Mst. Parveen co-accused (acquitted) went back. Arshad alias Gudu co- accused (acquitted) had returned from Iqbal Colony while the appellants had taken them to Bus stand under threat from where they were taken to Faisalabad by bus and were detained in different rooms in Rays Hotel where the appellants committed Zina with them. Afterwards they were taken to Lahore and kept in the house of maternal aunt of Aslam, appellant and on the following day they were taken to Rawalpindi where they were detained in some hotel in different rooms where one again they were subjected to Zina-Bil-Jabr. Next morning they were taken to the house of one Muhammad Ashraf at Chaklala and were detained there for three days and on the pretext that they would marry them the appellants brought them back to Sargodha, that in the presence of Muhammad Afzal, brother of abductee, Mst. Raheela at Adda the police recovered them and arrested the appellants. Their clothes were changed and their blood-stained clothes worn by them were taken into possession. They were produced before the Magistrate where they recorded their statements and the same day they were medically examined. Their statements as above were to report that if they were abducted on 30-11-1986 and stayed for a night at Faisalabad and afterwards they had gone to Lahore on 1-2-1986 where they again stayed for a night and had gone to Rawalpindi on 2-12-1986 where they also stayed for a night in a hotel and had gone to Chaklala to the house of Muhammad Ashraf on 3-12-1986 and had stayed there for three days.
They were, therefore, to return to Sargodha on 6/7-12-1986 and as such their evidence was to find the sequence in the occurrence of the incident vis-a-vis the timings, The Investigating Officer was asked as why he had not gone to Faisalabad, Lahore and Rawalpindi to ascertain the alleged detention or confinement of the abductees in hotels and houses and the same was replied by him that the complainant had not approached him for this purpose which is definitely not a reasonable explanation. The reply of the Investigating Officer was, however, not to negate the case of the prosecution. The learned trial Court has found the abductees a consenting party to the offence of Zina and he has also absolved the appellants on the charge of abduction under section 11 of the Ordinance. It appears to be that the abductees were a consenting party at some stage in their abduction and accompanying the appellants from place to place and not raising alarm at any stage, time and place. Appellants were convicted for an offence under section 16 of the Ordinance for which no valid reasons have been forwarded by the trial Court. Section 16 reads that whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished there-under. Once a woman is held to be a consenting party there will not arise a question of concealment or her detention and even of her taking away because in that situation she becomes an accomplice to the accomplishment of offence of Zina liable to Tazir with consent and it is not that she had been taken away but she had accompanied the accused to perform the main offence of having sexual intercourse. In that situation one shall absolve the appellants of the charge under section 16 of the Ordinance because they had returned the. Abductees along safely to their house and there is not made out a case of abduction, enticing away or detention or illegal confinement as against the appellants.
4. As far the offence of Zina is concerned we have the evidence of Mst Raheela Ashraf P.W.4 who specifically charged Aslam, appellant for Zina with her in Rays Hotel at Faisalabad and some other hotel at Rawalpindi and there is the medical evidence that she had been subjected to sexual intercourse. Her hymen was reported torn and edges old and healed. The doctor stated that in her opinion she was habitual to sexual intercourse. The swabs taken were reported Stained with blood and semen. Her clothes worn by her at the time of occurrence were also sent to Chemical Examiner which were again reported stained with semen. The recovery memo pertaining to the clothes of Mst. Raheela Ashraf was witnessed by her brother Muhammad Afzal and one Malik Nazir Ahmad (not produced). There were pointed out discrepancies on the point of clothes worn by her.
Nonetheless, the recovery memo. Was prepared the same day at the time of their recovery and the semen stained clothes of the abductee found as such by the Chemical Examiner were to further corroborate the offence of Zina committed with her consent during the days .Of her remaining in the company of Muhammad Aslam alias Chand, appellant. The appellant did not examine himself on oath in disproof of the charges and allegations made against him at the trial on which score there shall be drawn an adverse inference to be availed in further corroboration of the prosecution evidence. He also did not produce evidence in his defence. He stated that the brother of Mst.
Raheela was a bad character person and was inimical to him would not prove that Mst. Raheela was to falsely charge him for Zina or that Muhammad Afzal was to falsely implicate him in the case. We would consequently maintain the conviction of Muhammad Aslam alias Chand on the charge under section 10(2) of the Ordinance and would reduce his sentence of imprisonment to four years. R.I. With thirty mandatory stripes and also a fine of Rs.2,000 or in default to suffer four months R.I. Further. He is also extended the benefit of section 382-B, Cr.P.C.
5. As far Asad Abbas is concerned the trial Court has also convicted him on the charge of Zina liable to Tazir. With reference to the explanation of section 4 of the Ordinance that penetration is sufficient to constitute the offence of Zina. The lady doctor was to report her hymen intact and vagina admitted only one finger and that she was to give a definite opinion about attempt of rape at a later stage. She further stated that according to her report she was not subjected to sexual intercourse. Her vaginal swa bs were reported stained with semen only, her clothes were also reported stained with semen. Asad Abbas, appellant was young, man of twenty years of age, potent and capable of sexual intercourse. His male organ was supposed to be bigger than the finger of the lady doctor. The girl had remained with him in a room of a hotel for one, night at Faisalabad and one night at Rawalpindi. He must have been prompted to commit sexual intercourse with her a number of times and the hymen was not likely to stay intact. We would, in the circumstances, extend a benefit of doubt to him and acquit him of the charge of Zina or attempt to Zina. He is on bail, his bonds are discharged. We would also recall the suo motu notices.