FAZAL ILAHI KHAN, J.---This appeal is directed against the judgment dated 12-2-1995 of the learned Federal Shariat Court, passed in Cr. Appeal No.266/L of 1994.
2. In the case registered vide F.I.R. No.42 of 1990 dated 30-3-1990 at Police Station Saddar' District Layyah on the statement of Allah Ditta P.W., Ghulam Yaseen appellant/accused was charged for having caught hold of Shehnaz Bibi aged 8-9 years for pressing her breast and kissing her while she was cutting fire-wood nearby. 20/22 days before lodging the report. That he and his wife have heard cries of the victim and were attracted to the spot, and the accused seeing them approaching decamped from the spot. A case was registered against the accused/appellant under section 354, P.P.C. Subsequently on his application the charge was altered to section 10(3)/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The accused was arrested and put on trial. At the trial the complainant and the victim appeared in the witness-box whereafter the investigating officer was examined as Court witness being the Investigating Officer. The learned trial Judge on such evidence convicted the appellant under section 10(3)/18 of the Ordinance and sentenced him to 4 years' R.I. And 10 stripes. He was, however, given the benefit of section 382-B, Cr.P.C. The convict's appeal was dismissed on the observation that the statement of Shehnaz Bibi was confidence-inspiring.
3. Leave was granted by this Court in the light of the contention raised by the learned counsel for the appellant that no offence' under section 10(3)/18 of the Ordinance has been proved on the record in the prosecution evidence, and even if such evidence is accepted the offence would be under section 354, P.P.C entailing lesser penalty. Reliance was placed on Muhammad Javed v. The State 1985 SCMR page 1443 and Muhammad Sharif v. The State (1986 PCr. L1 2496).
4. Learned counsel for the parties heard and record perused. In order to find out whether the prosecution was successful in proving its case against the accused under section 10(3)/18 of the Ordinance beyond any reasonable doubt, it would be necessary to refer to the statements of the 2 witnesses, the only eye--witnesses, who were examined by the trial Court. Allah Ditta complainant P.W.1 who is father of the victim in his initial report stated that he was attracted to the spot and saw the appellant/accused who had held his daughter from her breast and kissing her. However, in his belated application grievance was raised that contrary to the facts the police registered the case against the accused under section 354, P.P.C. Because of M.P.A.'s interference from the accused side. He changed his version of the occurrence altogether and made material improvement in his statement in Court contrary to the F.I.R. To the effect that after pressing breast of the victim and kissing her the accused opened Shalwar's string of the victim to commit Zina-bil-Jabr but on seeing the complainant he ran away from the spot. The victim when examined in Court made similar statement in line with the improved version of the occurrence given by her father. The victim was confronted with her statement recorded under section 161, Cr. P. C. , which is in accordance with the initial report lodged by her father in which there is no mention of opening of string of Shalwar and the attempt to commit Zina-bil-Jabr. The materially improved statement and that to after considerable delay was relied upon by the learned Courts below in violation of the principle governing administration of criminal justice. Accordingly, the appeal is partially accepted, the judgment of the learned Federal Shariat Court whereby the appellant and was convicted and sentenced under section 10(3)/18 of the Ordinance is set aside. Instead `the appellant is convicted under section 354, P.P.C. The appellant who has already remained in jail for sufficient long the g his sentence is reduced to the period already undergone. The appellant is on bail. The bail bond is discharged.