' CH. EJAZ YOUSAF, J.--- This judgment will dispose of Criminal Appeal No,225/L of 2000 filed by Muhammad' Asif son of Ali Muhammad, Criminal Appeal No,239/L of 2000 filed by Mehdi Khan son of Jan Muhammad, Khalid son of Gul Ahmad Khan and Kashif alias Kashi son of Mutali, Criminal Appeal No,245/L of 2000 filed by Dr. Inam Elahi son of Noor Elahi, Criminal Appeal No,254/L of 2000 filed by Muhammad lqbal alias Bala and Criminal Appeal No,2631L of 2000 filed by Imran son of Noor Ahmad, as all these appeals arise out of the same judgment, dated 30-9-2000 passed by the learned Sessions Judge, Khanewal whereby the appellants have been convicted and sentenced as follows:--
(i) Appellants Kashif alias Kashi, Mehdi Khan and Khalid have been convicted under section 201 of the P.P.C. Read with section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and sentenced to undergo R.I. For three years each alongwith a fine of Rs,10,000 each or in default thereof to further undergo S.I. For three months, each.
(ii) Appellant Dr. Inam Elahi has been convicted under section 201, P.P.C. And sentenced to undergo R.I. For three years alongwith a fine of Rs,10,000 or in default thereof to further undergo S.1. For six months.
(iii) Appellant lqbal alias Bala has been convicted under sections 11 and 19 of "the Ordinance" and sentenced to undergo R.I. For seven years alongwith a fine of Rs,30,000 or in default to further undergo S.I. For six months. Appellants Imran and Asif have also been sentenced to undergo R.I. For five years each alongwith a fine of Rs,20,000 each or in default to further undergo S.I. For six months each.
(iv) Appellant Iqbal alias Bala has also been convicted under section 10(3) of the Ordinance and sentenced to undergo life imprisonment alongwith a fine of Rs,50,000 or in default thereof to further undergo S.I. For six months. Appellant Imran too, has further been convicted under section 10(3) of the Ordinance and sentenced to undergo R.I. For twenty years alongwith a fine of Rs,40,000 or in default thereof to further undergo S.I. For six months.
' All the substantive sentences of imprisonment have been ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Has also been extended to the appellants. The amounts of fine, on realization, have been ordered to be paid to the victim as compensation.
2. Briefly stated, the prosecution case as gathered from the record is that on 20-4-1997 report was lodged by Mst. Nasreen wife of Abdul Ghaffar with Police Station City, Khanewal wherein it was alleged that on 18-4-1997 her daughters namely Mst. Shakira Bano and Mst. Rashida Bano aged about 13 and 7 years respectively, had alongwith their friend namely. Hina aged about 10 years, gone to play near old vegetable market. Since, they all did not return till evening, therefore, they were searched but in vain. At about 9-30 p.m., however, said Hina came to the house of the complainant alongwith her brother and told that Mst. Shakira was lying in Bismillah Clinic, situated in Colony No,1, in precarious condition. The complainant, therefore, accompanied by Hina, Saleem and Masha Allah rushed to the said Clinic and observed that Asif, Kashif alias Kashi, Mehdi Khan, Imran, Dr. Nun, Mst. Salma and Mst. Zubaida were sitting by the side of the bed of Mst. Shakira. On inquiry Mst. Shakira disclosed to the complainant that while she was playing, alongwith Rashida and Hina, in the old vegetable market chowk, at about 12-30 p.m., Iqbal alias Bala who runs a medical store alongwith Imran and Asif reached there in a car and called her i,e, Mst. Shakira to accompany them for a round of Fazal Park. All the three girls boarded the car, which was being driven by Iqbal alias Bala. The car was not stopped at Fazal park and instead, they were taken to Pirowal Forest Park. After having walk in the said park, they were taken to a house situated in Peoples Colony, Khanewal wherein Mehdi Khan and Kashif alia Kashi were already present. The girls were made to sit in the room where a TV was on. Iqbal accused took Mst. Shakira in the adjoining room and committed Zina with her. Thereafter Imran accused committed Zina with her and as a result, she smeared with blood. Iqbal, therefore, went out in the car and brought back an ampule which was injected to her but there was no relief. Iqbal and Imran then went out and in the meantime Asif, Mehdi Khan and Kashif started washing her blood-stained clothes, bed-sheet and the floor of the room. Coming after a short while, Imran disclosed that he had talked with Dr. Lnam, therefore, she shall be shifted to his-clinic for treatment. Thereupon Imran, Kashif and Mehdi transported her to Bismillah Clinic where Dr. Inam and Nurses Salma and Zubaida treated and stitched her. It was further stated in the report that subsequent to the incident Asif, Imran, Mehdi Khan and Kashif begged pardon from the complainant simultaneously informing her that Iqbal had met with an accident in the car and he was punished by way of accident, therefore, he may be forgiven but she did not accede to the request. Hence the report. On the stated allegations formal F.I.R. Bearing No,136 of 1997 was registered at Police Station City Khanewal under sections 10(3)/11 and 19(2) of the Ordinance and investigation was carried out in pursuance thereof. On the completion of investigation, the appellants were challaned to the Court for trial.
3. Charge under sections 11, 10(3) read with section 19 of the Ordinance and section 201, P.P.C. Was accordingly framed to which the accused persons/appellants pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons/appellants produced thirteen witnesses, in all. P.W.1 Muhammad Amjad is a marginal witness of the recovery memo. Exh.P.A. Vide which Needle P.1, thread P.2, scissors P.3 and Chimti P.4 were recovered from the Clinic of accused Inam Elahi. P.W.2 Sher Muhammad is a marginal witness of the recovery memo. Exh.P.B. Vide which blood-stained clothes i,e, trousers Article P.5 and Shirt Article P.6 allegedly worn by the victim at the time of occurrence, were taken into possession by the police on 21-4-1997. He is also a marginal witness of the recovery memo. Exh.P.C. Vide which car Article P.9 allegedly used in the crime was recovered from the house of Muhammad Saleem Arain at the instance of Iqbal alias Bala, on 26-4-1997. P.W.3 Dr. Mussadaq Sultana had on 21-4-1997 at 10-45 p.m. Examined the victim and found as under:-- Injuries
(1) No mark of violence on any part of the body.
(2) Injunction pricks were present on the dorsum of both hands.
(3) Heavy bleeding P.V. With the passage of clots seen.
(4) Small stitched area seem at the introitus on the left side about 1" in size.
(5) Vagina admitted one finger P.V. Examination was painful.
(6) Four vaginal swa bs were taken and sent to the Chemical Examiner for detection of semen.
' As the P.V. Examination was painful, the examinee was referred to Gynecologist.
General examination ' B.P. 110/40, pulse 130/per minute. Teeth 7+7/7-7 Breast not developed. Axillary hair not developed.
Pubic hair not developed.
' She produced carbon copy of the M.L.R. As Exh.P.E. She also referred the victim to the Radiologist for determination of her age vide her report Exh.P.F. She produced in Court prescription slip Exh.P.G.
For her X-Ray as Exh.P.G. P.W.3 further stated that the Gynaecologist, on reference, had also submitted her report which was reproduced by her at the back of her report. P.W.4 Dr. Qazi Abdullah Sabir S.M.O. Had on 24-4-1997 examined appellant Muhammad Iqbal alias Bala qua the potency test. He produced in Court the report as Exh.P.I. He on the same day had also examined appellant Imran qua the potency test. He produced M.L.R. Pertaining to him as Exh.P.K. P.W.5 Zahid Imran, Medical Office, D.H.Q. Hospital, Khanewal had on 28-4-1997 examined accused persons Mehdi Khan, Kashif and Asif qua the potency test. He produced in Court the M.L.Rs, as Exhs.P.M., P.O.
And P.Q. Respectively. P.W.6 Muhammad Akram, Foot Constable, on 22-4-1997, was entrusted with a sealed envelope said to contain swabs for onward transmission to the office of the Chemical Examiner, Multan. P.W.7 Dr. Shaida Naheed, Medical Officer deposed that on 21-4-1997 she was posted as Gynaecologist at D.H.Q. Hospital, Khanewal. On that date lady Dr. Musaddaq Sultana had referred the victim for her medical check-up whereupon she had medically examined Mst. Shakira and observed as under:-- "A young girl of about 12 years anemic axillary and pubic hair not developed, breast not developed Nipples and areole were present. Vulva vagina apparently normal in appearance. P.V. Having bleeding with passage of dark clots per vagina. A small stitched areas seen at the introitus on the left side on vaginal examination was extremely painful but vagina admits one finger. Many clots were present in the vagina. They are seems to be multiple tears in the vagina which were bleeding with passage of clots. Uterus and cervix could not be felt clearly P/rectal examination Uterus and cervix could not be felt clearly. Advise ultra sound of the Pelvis to see for presence of utrix in cervix and ovaries. Advise admission in Gynae Ward for the treatment of vagina tears and correction of anemia. Examinee had a tear at the introitus with bleeding P.V. Hymen was absent. Many clots were present in vagina. The examinee had been subjected to sexual assault."
' She stated that her report was correctly reproduced by Dr. Sultan Mussadaq at Exh.P.E./1. P.W.8 Muhammad Sabir stated that on 21-4-1997 Riaz Ahmad, S.-I. Had handed over to him one sealed parcel said to contain (Mattress)/a bed-sheet for keeping in Malkhana, in safe custody. He added that on the next day the Investigating Officer had also made over to him one sealed envelop and one sealed parcel said to contain swabs as well as clothes which were also kept in the Malkahana.
He stated that he had subsequently handed over the sealed envelop containing swabs to Muhammad Akram, Constable on 22-4-1997 for onward transmission to the office of the Chemical Examiner intact, while on 29-4-1997 he had handed over sealed parcel containing mattress as well as the clothes to Muhammad Akram, Constable for the purpose aforesaid. P.W.9 Mst. Nasreen the complainant, at the trial, reiterated the version contained in the F.I.R.. P.W.10 Mst. Shakira Bano, the victim, while corroborating the statement of P.W.9 in all material particulars while recapitulating the entire incident deposed that accused persons, were responsible for the commission of the offence.
P. W.11 Mst. Hina too, in pith and substance, corroborated the statements of P.W.9 as well as P.W.10.
P.W.12 Riaz Ahmad had on 20-4-1997, on the statement made by the complainant, registered the F.I.R. He deposed that after registration of the case he had also inspected the place of occurrence in presence of the witnesses and took into possession bed-sheet Exh:P.7 and mattress Exh.P.8 vide recovery memo. Exh.P.S. He further stated that on 21-4-1997 the complainant had also produced before him clothes of the victim which were secured by him vide recovery memo. Exh.P.B. He further stated that he also obtained permission from the Ilaqa Magistrate for victim's medical examination vide recovery memo. Exh.P.D. The witness added that he had also secured certain articles at the instance of Dr. Inam Elahi vide recovery memo. Exh.P.A. From his clinic. He further stated that on 26- 4-1997 he had also taken into possession the accidented car vide recovery memo. Exh.P.C. P.W.13 Dr. Zahid Imran had on 18-4-1997 medically examined accused Muhammad Iqbal qua the potency test. He produced in Court the report as Exh.P.W.
5. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their above statements they denied the charge and pleaded innocence. All the accused persons did not opt to appear as their own witnesses in terms of section 340(2), Cr.P.C. However, produced four witnesses in their defence. D.W.1 Manzoor Hussain was produced by Mst. Salma accused. He stated that while posted as S.H.O. Police Station City Khanewal, he had investigated the case regarding the version of Mst. Salma and found her innocent. D.W.2 Zardar Khan was produced by accused Khalid who stated that , during the occurrence on the Eid day in the year, 1997 accused Khalid remained with him till 3-00 p.m. D.W.3 Ch. Muhammad Rashid Anwar was got examined by Asif accused. He stated that Asif accused on the day of occurrence remained with him from 11-00 a.m. To 2-45 p.m. D.W. 4 Muhammad Sharif was got examined by Muhammad Asif accused. He deposed that on 18-4-1997 on the day of Eid-ul-Azha he had visited the house. Of Murtaza brother of Asif accused and found that Asif was present in the said house.
6. After hearing the arguments of the learned counsel for the parties the learned trial Court convicted the appellants and sentenced them to the punishment as mentioned in the opening para. Hereof.
7 . We have heard Messrs Muhammad Iqbal Khan Khattak, Abdul Aziz Khan Niazi, Mian Muhammad Hanif Tahir, M.A. Zafar and Syed Hassan Mustafa Rizvi, Advocates, learned counsel for the appellants,. Mian Makhshoof Amjad, Advocate for the State and have also perused the entire record with their assistance.
8. Learned counsel appearing on behalf of the appellants mentioned above, after having gone through the evidence made some submissions but then decided not to challenge conviction of the appellants. Instead, they prayed for reduction in the sentences of the appellants on the ground that the appellants were young and first offenders. They added that except appellants Muhammad Iqbal and Dr. Inam Elahi who at the time of commission of offence were about 35 years of age, all other offenders including appellant Imran were in their early twenties and thus the possibility that they might have committed the offence due to juvenile delinquency cannot be ruled out. The learned counsel for the appellant Iqbal submitted that though the learned trial Judge has in the impugned judgment remarked that since he i,e, Iqbal had done his utmost to save the victim's life by first bringing and giving her a pain relieving injection and secondly, by taking her to the clinic of Dr. Inam and that since he had met with an accident, therefore, deserves to be dealt with leniently yet, has inflicted on him the maximum sentence provided for the offence, thus the sentence recorded against him may also be reduced. Learned counsel appearing on behalf of appellant Imran further added that since the age of appellant Imran at the time of commission of offence was about 20 years and his detention in jail for a longer period is fraught with a risk of leading him further astray, therefore, his sentence may be reduced. All the learned counsel submitted that since the appellants are not previous convicts and are repentant, therefore, they may be given a chance to mend their ways, by reducing their sentences.
9. Mian Makhshoof Amjad, Advocate learned counsel for the State, has neither controverted the contentions raised by the learned counsel for the appellants nor has he any objection in case moderate reduction in the sentences of imprisonment of the appellants is made.
10. Notwithstanding the fact that the learned counsels for the appellants have not challenged convictions of the appellants, we have considered the merits of the instant case, in the light of the evidence on record. We are convinced that the learned lower Court has properly appreciated the evidence and has drawn correct conclusions, as such no interference is called for. In the instant case, the victim who is a minor girl of about 13 years had not only fully implicated the appellants but at the trial has also identifiers them to be the culprits. She has neither enmity against any of the accused persons nor has cause to falsely implicate them. Her statement inspire confidence and receives corroboration from medical as well as other evidence, in all material particulars. Thus, in our view it was rightly believed by the learned trial Court in recording conviction against the appellants. However, keeping in view the submissions made by the learned counsel for the parties, particularly the fact that the appellants are repentant, we, while maintaining conviction of the appellants are inclined to reduce their sentences of imprisonment as under, in the hope that the indulgence shown to them would bring out of them law abiding and respectable citizens:--
(i) Sentence of imprisonment recorded against appellant Iqbal alias Bala under section 10(3) of the Ordinance is reduced from life imprisonment to that of fifteen years' R.I.
(ii) Sentence of imprisonment recorded against appellant Iqbal under sections 11 and 19 of the Ordinance is reduced from seven years' R.I. To that of four years' R.I. With no change in the sentence of fine or quantum of imprisonment in default thereof.
(iii) Sentence of imprisonment inflicted on appellant Imran under section 10(3) of the Ordinance is reduced from twenty years' R.I. To that of fifteen years' R.I.
(iv) Sentence of imprisonment recorded against appellants Imran and Asif under sections 11 and 19 of the Ordinance are also reduced from five years' R.I. Each to that of four years' R.I. Each with no change in the sentences of fine or quantum of imprisonment in default thereof.
' However, the sentences inflicted on appellants Kashif alias Kashi, Mehdi Khan and Khalid under section 201, P.P.C. Read with section 19 of the Ordinance are maintained. Likewise the sentences recorded against appellant Dr. Inam Elahi under section 201, P.P.C. Are also maintained. The sentences of fine inflicted on the appellants under section 10(3) of the Ordinance by the learned trial Court being not provided in law are hereby set aside. All the substantive sentences of imprisonment recorded against the appellants shall run concurrently. Benefit of section 382-B, Cr.P.C. Extended to the appellants by the learned trial Court shall remain intact. The amount of fine, on realization, shall be paid to the victim as compensation under section 544-A, Cr.P.C.
' With the above modifications, all the appeals are hereby dismissed.