' KHALIL-UR-REHMAN KHAN, J.--- Muhammad Ikram alias Munji son of Abdul Rashid, resident of Akram Park, Bund Road, Lahore, challenges the judgment, dated 2nd August, 1995, whereby learned Additional Sessions Judge, Lahore, convicted him under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to life imprisonment, fifteen stripes and Rs,10,000 as fine or in default of payment of fine to further undergo six months' R.I. He was also convicted under section 10(3) of the said Ordinance and sentenced to suffer ten years' R.I. And thirty stripes. The sentences were ordered to run concurrently. The accused was however, allowed the benefit of section 382-B, Cr.P.C.
2. The prosecution case as per F.I.R., dated 18th January, 1993 lodged by Barkat Ali, P.W.1, father of Sajida Qaiser, P.W.2 the alleged victim, is that on 16th January, 1993, after performing his duty in the Railway Department, the complainant reached his house and went to bed along with his family members. He got up at 1-00 a.m. And found that Mst. Sajida Qaiser, his daughter, was missing from her bed. The complainant started tracing out the daughter and during the search, Abdul Sattar son of Abdul Ghani P.W. And Muhammad Tufail son of Ch. Siraj Din (given up P.W.) met him and informed that they had seen Mst. Sajida Qaiser along with Muhammad Ikram accused at Bund Road. The complainant alleged that Muhammad Ikram had abducted his daughter with the intent to commit Zina-bil-Jabr with her.
3. The aforesaid version was sought to be established at the trial by producing Barkat Ali, P.W.1 the complainant, Sajida Qaiser, the alleged victim, P.W.2 and Abdul Sattar P.W.3. The medical evidence comprising of M.L.R. Exh.P.D. Of Dr. Robina Awan was proved through Ghafar Ahmad, Dispenser, P.W.6 as the doctor herself was not available. Muhammad Firdous, S.-I. P.W.5, tfie Investigating Officer, deposed about the investigation conducted by him. Dr. Ehsan Elahi, P.W.4 examined Muhammad Ikram, accused and found him potent. The prosecution however, gave up Muhammad Tufail P.W. And Waqar Ahmad, M.I.C. P.W. Before whom Sajida Qaiser, after her recovery, made a statement under section 164, Cr.P.C.
4. Muhammad Ikram accused/appellant in his statement under section 342, Cr.P.C. Denied the prosecution version and pleaded that he had been-giving cash to complainant and his daughter on different occasions and the complainant had promised to give hand of his daughter to him but he did not fulfil his promise and gave the hand of her daughter to someone else. He added that when he demanded the return of cash, the complainant instead of returning the amount, got a false case registered against him and that the P.Ws. Had deposed against him due to enmity. It may be noted at this very stage that aforesaid version was not put either to Barkat Ali complainant/father or to Sajida Qaiser, P.W., the alleged victim. The suggestion put to them was that Mst. Sajida Qaiser had developed illicit relations with accused of her own free will and that Muhammad Ikram was on visiting terms with the family and that a false case was got registered against him.
5. We have gone through the evidence on record with the assistance of learned counsel for the parties and have also heard them.
6. The plea of the learned counsel for the appellant that offence of abduction punishable under section 11 of the said Ordinance is not made out on record has merit. Barkat Ali, P.W.1 the father, had stated that he had gone to bed along with other family members and at that about 1-00 a.m.
When he woke up, Mst. Sajida Qaiser was not found in her bed and that he had been searching for her and Sajida Qaiser was then recovered by Thanedar at Lari Adda, Lahore. Mst. Sajida Qaiser whose age has been entered 18 years in her statement and 16 to 18 years by doctor in M.L.R. Exh.P.D., deposed that at 9-30 p.m. On 16th January, 1993 when she felt urge to attend call of nature she proceeded to fetch a candle from a shop situated at a distance of 4/5 houses from her house where Ikram accused met her and directed her to accompany him by showing a Chhuri. He further deposed that she was taken to Lari Adda and they travelled in a wagon and then was taken to Lahore Railway Station where they spent night and the other day police came there and arrested the accused. So Mst. Sajida Qaiser on her own showing had gone with her own free will and did not admittedly physically resist. She travelled in a wagon and then for all the hours she remained at the Lahore Railway Station. She did not raise any alarm. It appears that she on her own free will accompanied the accused/appellant and as such the offence of abduction under section 11 of the Ordinance cannot be said to have been established on record. The conviction and sentence of the appellant under section 11 of the Ordinance, therefore, cannot be maintained and is hereby set aside.
6. As regards, the offence under section 10(3) of the said Ordinance the discussion noted above and the feature emerging from the medical examination again show that although Mst. Sajida Qaiser was subjected to sexual intercourse but the same was not through force. The doctor did not find any injury on any part of the body. Mst. Sajida Qaiser in her cross-examination admitted that she had not physically resisted. The offence of Zina-bil-Jabr punishable under section 10(3) of the Ordinance is, therefore, not made out. The case of Zina punishable under section 10(2) of the Ordinance stands however proved. So, we alter his conviction from section 10(3) to section 10(2) of the Ordinance and sentence him to suffer three years' R.I. With whipping numbering thirty stripes and fine of Rs,10,000 or in default to further undergo six months' R.I. He shall however, avail benefit of section 382-B, Cr.P.C. As already extended by the learned trial Court.
7. With this modification in the sentences, the appeal is partly allowed.