' This criminal appeal filed by Muhammad Nawaz is directed against the judgment, dated 10-7- 1995 passed by the learned Additional Sessions Judge, Mandi Bahauddin Camp at Malakwal, whereby he has convicted him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to ten years' R.I., whipping numbering ten stripes. He has also convicted him under section 452, P.P.C. And sentenced him to seven years' R.I. And a fine of Rs,20,000 or in default of payment of fine further six months' S.I. Both the sentences are ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Has been extended to him.
2. Briefly stated it is the case of prosecution according to Exh.P.B. Recorded on 27-4-1994 by Mst.
Anwar Begum wife of Muhammad Azam that on 26-4-1994 at about 10-00 p.m. When she was sleeping in her house inside the room and her children sleeping inside the courtyard, the appellant/accused armed with .12 bore double barrel gun entered her room and subjected her Zina-bilJabr on gun point. She made hue and cry which attracted Muhammad Riaz and Ashfaq whereupon the appellant/accused ran away. Her husband Muhammad Azam who was Naik Clerk in Park-Army came on leave and thereafter she reported the matter to police. The appellant/accused was arrested on 15.-5-1994 and after completion of necessary investigation challenged to face the trial.
3. At the trial prosecution examined eight witnesses in all. P.W. f is Fateh Muhammad who on 27-4- 1991 escorted the complainant, accompany led by her husband Muhammad Azam, to R.H.C.
Malakwal for medical examination. After her medical examination a sealed parcel given to him by the doctor was brought by him which he handed over to Muhammad Nawaz, A.S.-I. Who secured it vide memo. Exh.P.A. Duly signed by him in token of its correctness. P.W.2 is Ghulam Rasul, Constable.
On 2-5-1994 he transmitted one sealed parcel and two sealed phials to the office of Chemical Examiner intact. P.W.3 is Mst. Anwar Begum. She is the complainant who reiterated her statement as mentioned hereinabove. P.W.4 is Ashfaq Ahmad. He is an eye-witness who, was attracted to the house of complainant on her noise alongwith Muhammad Riaz and they saw Muhammad Nawaz, accused committing Zina with Anwar Begum and then running away from there with his Shalwar in one hand and his gun in the other hand. P.W.5 is Dr. Muhammad Javed Warraich who medically examined the appellant/accused on 16-5-1994 for potency and found him physically fit to perform sexual intercourse. P.W.6 is Dr. Arifa Javid Warraich. She medically examined the complainant on T7-4-1994 and observed as under:-- "Middle age woman, conscious, B/P pulse temperature normal. On P.V. Examination hymen was torn without irregular margins.
' Vagina was admitting two fingers freely. Uterus was of normal size."
' She took two vaginal and one vulva swabs, sealed them for chemical examination. On the basis of positive Chemical Examiner's report Exh.P.H. She opined that the complainant was subjected to sexual intercourse. She issued report Exh.P.D. In her own hand writing duly signed by her. P.W.7 is Muzafar lqbal, H.C. He drafted F.I.R. Exh.P.B./1 on the basis of complaint Exh.P.B. On 27-4-1994 and on the same day he received a sealed parcel from Muhammad Nawaz, A,S.-I. Which he kept in Malkhana and on 1-5-1994 handed over the same to Ghulam Rasool, Constable for onward transmission to the office of Chemical Examiner, Lahore intact. P.W.8 is Muhammad Nawaz, A.S.-I.
He recorded complaint Exh.P.B. On the statement of Mst. Anwar Begum. He arrested the accused on 15-5-1994. He investigated the case and challaned him to face the trial.
4. The appellant/accused made a statement under section 342, Cr.P.C. Wherein he denied the allegation and pleaded innocent. He stated that the P.Ws. Had deposed against him due.To enmity.
He declined to make statement on oath or lead any evidence in defence.
5. I have heard learned counsel for the parties and have perused the record with their assistance. It was vehemently contended by the learned counsel for defence that the prosecution case was based on a solitary statement of the complainant and as a rule of prudence the same could not be made basis for conviction. This contention was however, found without substance as the solitary statement of Mst. Anwar Begum, complainant was not only fully supported by the evidence of P.W.4 Ashfaq Ahmad but was also corroborated by medical evidence. So far as the statement of P.W.3 is concerned it may be mentioned that she is a mature married lady and there was no occasion for her to spoil her honour and take the risk on her married life on account of allegation of this nature.
Her statement is natural and confidence-inspiring. She has been subjected to a lengthy cross- examination but nothing fruitful to the defence has been adduced therefrom. The suggestions regarding the bolting of the door of the room from inside are somewhat confusing but it appears that she meant the presence of bolt and locks of the door. As far as bolting of the door from inside on the night of occurrence is concerned, she has denied the same and stated that she had not bolted the door of the room because her children were sleeping in the compound of the house. Her husband according to her admission had visited the house some 25 days before the occurrence and had remained there for five days and it was 10/12 minutes of the arrival of her husband that she had proceeded to the police for report. In the circumstances the positive Chemical Examiner's report cannot be attributed to cohabitation by her husband. The contents of her statement have been duly supported by P.W.4 Ashfaq Ahmad, an eye-witness of the occurrence who is not related to her. Though he is not a resident of that locality there is nothing to disbelieve his statement.
Report of the Chemical Examiner on the sample is positive. Statements of P.W.1, P.W.2, P.W.7 and P.W.8 are very clear as far as custody, transmission and receipt of the sample in the Chemical Examiner's office are concerned. Being a married lady it cannot be expected that she could implicate the appellant/accused in an offence of this heinous nature without rhyme or reasons.
The defence plea submitted by the appellant/accused is without any substantial corroboration.
Even otherwise it does not appeal to sound reason that any married respectable lady would ever involve a person on account of some petty dispute about money matters. He has produced no evidence to support the plea of enmity. Although 1 P.W.8 Muhammad Nawaz, A.S.-I. Has stated in cross-examination that the appellant/accused had presented 25/26 persons before him in his defence, it is worth mentioning that none of them have come forward in his defence before the Court. The Investigating Officer could also name none of them to show their antecedents. In this view of the matter I have come to the conclusion that the case of prosecution against the appellant/accused is established beyond any reasonable shadow of doubt.
6. Therefore, I maintain his conviction and sentences as awarded by the learned trial Court on 10-7- 1995 and dismiss his appeal. It may also be mentioned that the sentence of whipping numbering thirty stripes is mandatory according to law, therefore, the appellant was served with a criminal suo motu notice No,8/I of 1995. As his conviction under 10(3) of the said Ordinance is maintained, the sentence of whipping is enhanced to thirty stripes. The benefit of section 382-B, Cr.P.C.
Extended by the trial Court shall however, remain intact. The sou motu notice No,8/I of 1995 is disposed of accordingly.