1. ' SYED DEEDAR HUSSAIN SHAH, J.---The appellants, by leave of this Court, have challenged the judgment of the learned Lahore High Court, Multan Bench, dated 25-9-1997 whereby their appeal against the judgment of the learned Spdcial Court Anti-Terrorism, Multan, dated 17-9-1997, was dismissed and the conviction and sentence were maintained.
2. ' Brief facts of the case are that on 21-7-1996 Mst: Manzoor Mai lodged the F.I.R. At Police Station Jalla Arain, District Lodhran, stating therein that she is resident of Chak No.376/WB. On 21-7-1976 at 11-30 a.m. She was all alone in her house as her mother had gone for cutting fodder while her father had gone to Chak No.369/WB in connection with some personal engagements. At about 9-00 a.m., Muhammad Aslarn and Shah Muhammad appellants entered in her house, caught hold of her and forcibly dragged her into a room and threatened to kill her in case she raised alarm. Both the appellants removed her Shalwar and firstly Muhammad Aslam and thereafter Shah Muhammad committed Zina-bil-Jabr with her. In the meantime, her brother Altaf Hussain and father Muhammad Raman came to the spot and witnessed the incident. On seeing them both the appellants ran away from the place of occurrence. Her father gave his turban to her which she wrapped around her body. According to the F.I.R., the appellants trespassed into the house and committed Zina-bil-Jabr with preparation and common intention in collusion with each other. After lodging of the F.I.R., the police started investigation. The complainant was referred to the Female Medical Officer at Lodhran where she was examined and her swabs were taken and sent to the Chemical Examiner for Report. Her Shalwar was also taken into possession by the Investigating Officer which was also sent to the Chemical Examiner. On 31-7-1996, the police arrested the appellants. They were medically examined by the Medical Officer. After finalization of the investigation, charge-sheet was filed before the Court. Both the appellants were charged under sections 452/34, P.P.C. And section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). Charge was framed against the appellants to which they pleaded not guilty.
3. ' Before the trial Court, the prosecution in order to prove its case, examined as many as eight witnesses. Learned prosecutor-in-charge of the case also tendered evidence in support of the reports of the Medical Officer.
4. ' Shalwar of the complainant which was taken into possession was also produced.
5. ' P.W.1, Dr. Samina Matloob, W.M.O., District Headquarters Hospital, Lodhran had examined Mst.
6. Manzoor Mai who furnished the following evidence:- "I examined Mst. Manzoor Mai daughter of Muhammad Ramzan, aged about 13 years. She was in senses. Mental status was normal. Gate was normal, breasts were developed. Pubic and axillary hairs were developed. There were multiple scratches on back of the chest. Abdominal walls were right. Hymen was torn and fresh tears were present. Vagina was tight and swabs were taken. She was feeling pain during examination. Vaginal swabs and cervical swabs taken, were sent to the Chemical Examiner, Multan for detection of semen and according to the Chemical Examiner, sexual intercourse was done with Mst. Manzoor Mai.'
7. ' P.W.2 Dr. Muhammad Iqbal, Medical Officer, Rural Health Centre had, examined Muhammad Aslam and Shah Muhammad appellants on 31-6-1996. He observed that both the appellants were young males with medium built and height, secondary sex characters, well-developed penis and testicles present in their corresponding sacs. Cremesteric reflex was found present. The Medical Officer was of the opinion that the appellants were capable of performing sexual act. The Medical Officer issued such certificate.
8. ' P.W.3, Allah Ditta, Head Constable stated that he received complaint and recorded F.I.R.
9. ' The main witness P.W.6 Mst. Manzoor Mai in her evidence recorded by the trial Court, fully implicated Muhammad Aslam and Shah Muhammad appellants. Stated that both the appellants had entered into her house, forcibly caught hold of her and dragged her into the residential room.
10. She raised alarm but the appellants forcibly removed her Shalwar. Mst. Manzoor Mai also supported the vesion given by the prosecution. According to this witness, her father Muhammad Ranizan and brother Altaf Hussain had also come at the scene of occurrence and witnessed the incident and on seeing them both the appellants had made their escape good. She was made to cover body with the turban of her father. She narrated the whole occurrence to her father and brother.
11. ' P.W.7 Altaf Hussain is an eye-witness of the incident. He in his evidence had fully supported the case of the prosecution and stated that when he had entered into the house, he saw that Muhammad Aslam was standing inside the door and Shah Muhammad was committing Zina-bil- Jabr with his sister Mst. Manzoor Mai. He further stated that on seeing him the appellants ran away from the spot and when he entered into the room he saw his sister Mst. Manzoor Mai lying naked.
12. His father gave his turban to his sister which she wrapped around her lower portion of the body and then narrated the whole occurrence.
13. ' P.W.8 S.H.O., Liaquat Ali furnished the details of the investigation carried out by him. He stated that Mst. Manzoor Mai had produced her Shalwar which was taken into possession. He also arrested the appellants and thereafter got them medically examined.
14. ' The learned trial Court recorded the statements of the appellants -under section 342, Cr.P.C. In which they denied the allegations.
15. ' At the conclusion of the trial, the learned trial Court convicted and sentenced the appellants under section 10(3) of the Ordinance to undergo 25 years' R.I. Each with thirty stripes each. They are also convicted under section 452/34, P.P.C. And sentenced to 7 years' R.I. Each and fine of Rs.10,000 each or in defaulter to undergo R.I. For one year. Benefit of section 382-B was also extended to them. Both the sentences were ordered to run concurrently. The learned Lahore High Court has also dismissed the appeal of the appellants and maintained the conviction and sentence awarded by the trial Court. The learned Appellate Court, however, did not maintain the sentence of thirty stripes awarded to the appellants on account of enforcement of section 3 of the Abolition of the Punishment of Whipping Act, 1996.
16. In this matter, leave to appeal was granted by this Court on 31-3-1998 to consider the points, 'that the conviction recorded by the trial Court and affirmed by the High Court was not sustainable in law inasmuch as the Special Court established under Anti-Terrorism Act, 1997 had the jurisdiction to try an offence under subsection (4) of the section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and had no jurisdiction to try the offence under section 10(3) of the Ordinance and that the offence having been admittedly committed before the promulgation of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as amended, the petitioner/appellants could neither have been charged nor.Tried by the Court established under the Anti-Terrorism Act, 1997.
17. ' We have heard Mr. Muhammad Munir Peracha, learned counsel for the appellants who submits that the learned trial Court had no jurisdiction to try the appellants, therefore, the conviction recorded by the trial Court is bad in law, void ab initio and is liable to be set aside.
18. ' We have also heard Ch. Muhammad Akram, learned counsel for the A.-G., Punjab who has submitted that in this matter the charge was framed by the trial Court for an offence punishable under section 452/34, P.P.C. And section 10(4) of the Ordinance, but the learned trial Court convicted the appellants under section 10(3) of the Ordinance which was upheld by the learned Lahore High Court to which no exception can be taken, and that there are concurrent findings of the two Courts below.
19. ' It may be noted that in the instant case incident had taken place on July 21, 1996 when subsection
(4) of section 10 of the Ordinance was not part of the statute because it was added in the Ordinance, on 2nd April, 1997 by means of Amendment Act known as Offence of Zina (Enforcement of Hudood) (Amendment) Act, 1997. However, when cognizance of the case was taken and charge was framed, learned Court took cognizance of the offence under section 10(4) of the Ordinance, rightly for the reason that prima facie offence of Zina-bil-Jabr was found to have been committed by two persons i.e. Appellants in furtherance 'of their common intention. At this juncture it is noteworthy that a careful perusal of the Amendment Act, 1997 suggests that law givers had no intention to apply this provision retrospectively, therefore, offences falling within the mischief of section 10(4) shall also be applied on the cases of the accused who have committed the offence which fall within its definition and the Court while taking cognizance or framing charge possessed jurisdiction to apply it with retrospective effect. Learned counsel for appellants," however, had not denied the jurisdiction of the Court to try the offence under section 10(4) of the Ordinance because his objection is that as in the instant case sentence has been awarded to appellants under section 10(3) of the Ordinance which is not a scheduled offence under the Anti-Terrorism. Act, 1997, therefore, no sooner the Court has formed opinion that the appellants are not guilty for the commission of scheduled offence i.e. Section 10(4) but they are liable for the offence under section 10(3) of the Ordinance, it should have remitted the case to the ordinary Court of criminal jurisdiction for trial.
20. We are afraid the contention put forth by the learned counsel has no force, firstly for the reason, that charge was read out to appellant under section 10(4) of the Ordinance as it has already been pointed out hereinabove but after recording evidence Court found that the appellants are guilty for the offence under section 10(3) of the Ordinance, therefore, they were accordingly sentenced under this provision. At this juncture reference can conveniently be made to section 72 of Pakistan Penal Code which envisages that if there is a doubt that accused is guilty for which of the offence for the purposes of punishment, then the Court will grant him lower punishment; secondly jurisdiction of Special Court to award sentence for .Non-scheduled offence cannot be dezmed to have been ousted at the time of conclusion of the, trial and in such situation instead of remitting the case to the trial Court the Special Court can itself award the sentence treating the said offence which actually has been committed to be a scheduled offence as it has been held in Sher Akram v. Sher Qadir (1994 SCM R 1092) (Suppression of Terrorist Activities (Special Courts) Act, 1975). In addition to it, as far as the accused is concerned he cannot select forum for his trial as per his convenience unless it is shown that serious injustice or prejudice has been caused to him. In the instant case the Special Court was headed by the Sessions Judge and if trial of the accused would have been conducted under the ordinary law even then the Sessions Judge or Additional Sessions Judge may have tried him for the commission of offence.
21. ' There is yet another important reason to maintain the sentence that under section 10(4) of the Ordinance the sentence of death has been prescribed whereas under section 10(3) accused can be awarded life imprisonment and as in this case lesser punishment has been given, therefore, appellant cannot legitimately be allowed to agitate this plea on the ground put forth on their behalf.
22. ' The Act was promulgated on 20-8-1997 and offence under subsection (4) of section 10 of the Zina Ordinance, 1979 is triable by the Judge Special Court, Anti-Terrorism. In this matter section 38 of this Act provides as follows:-- "38. Punishment for terrorist act committed before this Act.---Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed.'
23. According to the prosecution the incident took place on 21-7-1996 before the promulgation of this Act but the learned trial Court considering the provisions of section 38 of the Anti-Terrorism Act and section 72 of the Pakistan Penal Code, convicted and sentenced the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and awarded punishment as mentioned hereinabove. Punishment provided by section 10(4) is 'death' whereas in the case, the Judge Special Court has awarded 25 years' R.I. As the accused were found liable to this sentence, under the law i.e. Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The contention of the learned counsel for the appellants that the conviction awarded by the trial Court is not sustainable and the case may be remanded for retrial thus, is not acceptable. In view of the above observations, it is held that the trial Court has rightly exercised its jurisdiction and awarded conviction and sentence to the appellants and impugned order is not open to any exception. Apart from the point of jurisdiction discussed hereinabove, the trial Court has rightly decided the case on merits because the incident is of day time. The appellants had entered into the house of the complainant and committed Zia-bil-Jabr with her. No enmity whatsoever, has been alleged. The prosecution witnesses have fully stood the test of cross-examination and their evidence has gone unshaken. The evidence so furnished by the prosecution is natural, trustworthy and implicit reliance can be placed on the same.
24. ' In view of the above facts and circumstances of the case and the law discussed and referred to hereinabove, we are 'of the firm opinion that this appeal is devoid of merits and substance, which is hereby dismissed.