' This appeal is directed against judgment:, dated 12-1-2002, by Additional Sessions Judge, Gujrat, whereby learned triad Judge, convicted the appellants under section i0(3) read with section IN of Offence of Zina (Enforcement of Hudood) Ordinance and sentenced each of them to undergo R.I.
For 5 years, plus to pay a fine of Rs,5,000 each, in default whereof to undergo S.I. For 6 months each.
2. Occurrence in this case, had taken place on 19-1-2001, at about 6-00 p.m., in the field of Nadir, in the area of village Adhowal. At a distance of 2-1/2 miles from Police Station Civil Lines; Gujrat.
' F.I.R. Exh.P.A./1, was registered at the police station, by Muhammad Akram, A.S.-I, (P.W.5) on 19-1- 2001, at 8-30 p.m. On receipt of statement Exh.P.A., made by Mst. Sumera Saleem (P.W.1), on the same day, before Zafar lqbal, A.S.-I. (C.W.2), at 8-00 p.m., at Kutchery Chowk, Gujrat.
' According to F.I.R., complainant was, first year student in Ibne Ameer, Government College, Jalalpur Jattan. She had gone to the fields for easing herself, with her elder sister Mst. Gulshan Saleem (P.W.2) on 19-1-2001. They reached the field of Muhammad Afzal at 6-00 p.m. They sat there for easing themselves. Qamar Zaman (appellant) armed with pistol and Khawar Ali (appellant) armed with a Khanjar, came out from the field of Nadir, accompanied by two empty-handed persons, with muffled faces. Qamar Zaman placed his hand on the mouth of Sumera Saleem, pointing pistol at her. Khawar Ali told her to come down to the field under threat of Khanjar. She resisted. Her sister started raising alarm, whereupon the two muffled faced accused tried to catch her. Qamar Zaman and Khawar Ali took her to the fields and attempted to commit Zina with her. On her resistance, both of them caused injuries to her with their weapons, on her face and arm. Her father and her brother Abdul Qadoos reached the spot, hearing the alarm raised by her and her sister and witnessed the occurrence. On seeing them accused ran away.
3. Zarar Iqbal, A.S.-I. After dispatching statement Exh.P.A., to the police station for registration of case, took up investigation of the case. He arrested Qamar Zaman and Khawar Ali on 24-1-2001. He sent them to judicial lock-up vide Court's order on 29-1-2001. Although, he had found them innocent during investigation, but he submitted challan against them to Court, on the insistence of the complainant.
' Statements of 5 P.Ws. Were recorded at the trial.
' Dr. Uzma Azeem, W.M.O., who had medically examined Mst. Sumera Saleem, qua injuries, on her person on 20-1-2001, appeared as P.W.3. She had found following injuries on her person:--
(1) A skin deep wound was present about 2 c.m. On left ankle-joint.
(2) A skin deep wound 1 c.m. On palmer side of left thumb.
(3) Swelling of upper lip and wounds of nails on face.
(4) Complaining of pain in right middle phalynx.
' She had declared that injuries which were simple had been caused within a probable duration of 12 to 16 hours.
5. Mst. Sumera Saleem, appeared as P.W.1. By the large, she repeated the same facts, which she had got recorded in the F.I.R. During cross-examination, while admitting that all basic amenities were available in their house, she qualified that facility of toilet was not available in their house.
Suggestion put to her, in that regard, was also denied by her. While answering a question, she stated that police was in league with the accused, she expressed ignorance whether her father had moved an application to S.S.P., Gujrat, in connection with dishonest investigation. While answering other questions, during cross-examination, she stated as follows:-- "It is incorrect to suggest that I had called Amjad son of Inayat Ullah resident of Lalazar Colony with whom I had relations alongwith boys Mudassar and Shah Jehan. It is incorrect that the present accused saw us near the tubewell while we were talking. It is incorrect that there was an altercation between the present accused and Amjad etc. Who were given slaps by the present accused. It is incorrect that due to that grudge a false case has been registered against the accused."
' She admitted that her father had got a case registered vide F.I.R. No,334 of 1994 at Police Station, Civil Lines, Gujrat, against Latif, Sarwar and Arshad for abduction of her sister Mst. Gulshan Saleem (P.W.). She added, voluntarily, that her sister who was then aged 13 years, had left the house, after quarrelling with her elder sister. She denied the suggestion that her father had compromised with the accused of that case, after getting money. The suggestion that they were in the habit of involving persons in false case, like the one in hand was denied by her.
6. Mst. Gulshan Saleem, P.W.2, corroborated the statement made by her sister, that they had gone to the fields for easing themselves and the accused had come there. She stated as follows while describing the role played by both the appellants:--- "Qamar Zaman had put his hand on the mouth of my sister and tried to take her along who refused to do so and raised alarm."
During cross-examination, she admitted that her father had got a case registered against Latif, Sarwar and Arshad for her abduction. However, she denied that the case had been compromised by her father, after receiving expenses of litigation. She stated that her clothes were not torn. She denied the suggestion that it was a false case and no such occurrence had taken place. She denied the suggestion that the accused had been involved in this case on the basis of a concocted story.
7. Muhammad Saleem, P.W.4, while corroborating the statement made by his daughters that he had reached the spot alongwith his son, stated that Qamar Zaman, armed with pistol and Khawar Ali, armed with a dagger, were attempting to outrage her (Sumera's) modesty. He added that the accused had left the spot, when they had reached there. Statement made by him that Sumera had suffered injuries on her, face and lips, were not found recorded in his statement under section 161, Cr.P.C. During cross-examination, he admitted that Sumera and Gulshan were from his second wife Mst. Sughra Bibi. He admitted that he had married her after divorcing his first wife. He admitted that his father had also married -vice. He denied the suggestion that Mst. Gulshan was living with him, due to strained relations with her husband. He admitted that case, got registered against Sarwar and Arshad for abduction of his daughter, Mst. Gulshan, was finished by way of compromise.
However, he denied that compromise had been effected on payment of money by the accused. He denied the suggestion that no such occurrence had taken place and that he had lodged a false case against the accused with the help of Army Monitoring Cell, Gujrat by using his influence as Retired Subedar.
8. Javed Iqbal, S.-I./S.H.O. Who had submitted challan to the Court, was examined as C.W.1. He stated that he had verified the investigation, done by Zafar Iqbal, A.S.-I., and had prepared report under section 173, Cr.P.C. He stated that names of the accused had been placed in Column No,2 of the challan.
9. Zafar Iqbal, A.S.-I. Who had investigated the case, appeared as C.W.2. As noted above, he had found the accused innocent but had submitted challan to Court, as complainant and victim were not satisfied with his investigation. During cross-examination, he stated that father of complainant was Retired Subedar and his son-in-law was serving in the Army as a clerk. He stated that he had not got medically examined Mst. Sumera, as she had stated before him that she had not been sexually assaulted. He admitted that he was married in village Adhowal (where occurrence had taken place) and his sister was married in the house of Khalid Mehlo, Ex-Chairman. He offered to take special oath with regard to his finding and about allegation of bribe by the complainant party.
He denied the suggestion that he had been suspended while posted at Police Station Civil Lines.
10. Qamar Zaman, appellant during statement under section 342, Cr.P.C., denied the prosecution case and pleaded innocence. He stated as follows, in answer to the question, "why this case against you and why the P.Ws. Have deposed against you?":-- "I am innocent and falsely involved in this false cat. Actually the matter is that on the evening of occurrence Amjad, Shah Jehan, Mudassar and Riaz came at the spot on the invitation of Mst.
Sumera Saleem complainant when I and my co-accused also reached there by chance and found Sumera Saleem sitting alongwith the above boys in odd hours of the night and we reprimanded the boys and the complainant to desist from such activities dtie to which a quarrel took place between us and those boys. Mst. Sumera Saleem interfered in this quarrel who received some minor injuries and feeling her disgrace and insult got this false case registered against me and my co-accused. I appeared before the police, produced defence during the investigation and I and my co-accused were declared innocent and the above Amjad etc. Were found guilty in this occurrence. Mst. Sumera complainant did not produce her evidence because she was having illicit relations with Amjad etc. Her father was an Army retired Subedar who with the help of Army Monitoring Cell, Gujrat got this false case registered by concocting a false story and I never committed the alleged occurrence as stated by the complainant and the P.Ws."
' Khawar Ali, had taken up the same stance and made statement similar to the one made by Qamar Zaman.
' Neither any of them had produced any evidence in defence nor had chosen to make statements on oath, under section 340(2), Cr.P.C.
11. Learned counsel for the appellants, after having argued the case at length, contended that prosecution had failed to prove the case of attempt to commit Zina against the appellant, but it appears from the evidence, that offence under section 354, P.P.C. Had been committed.
' Learned counsel for the State, agreed with the argument of the learned counsel for the appellants, that no case under section 10(3) read with section 18 of Offence of Zina (Enforcement of Hudood)
Ordinance, was made out. However, he contended forcefully that a case for commission of offence under section 354, P.P.C. Stands made out against the appellants.
' Learned counsel appearing for the complainant, after having defending the judgment of the trial Court, at some length, did not challenge stance of the learned counsel for the appellants, that a case for commission of offence under section 354, P.P.C. Stands made out.
12. I have gone through the evidence, examined the record and considered the arguments advanced by the learned counsel for the parties.
Mst. Sumera Saleem, neither while lodging F.I.R., nor while appearing at the trial, gave the account of any steps, taken by the appellants, to show that attempt to commit Zina had been made by the appellants. She neither alleged that her clothes had been removed nor stated that accused had removed their own Shalwars nor stated that she had been laid on the ground. All, that she stated, was, that Qamar Zaman had placed his hand on her mouth and pulled her in order to commit Zina with her.
' Mst. Gulshan Saleem, her sister, who appeared as P.W.2, also did not narrate any steps constituted attempt to commit Zina. She rather stated that accused had tried to outrage her modesty. Almost, similar was the stand and stance of Muhammad Saleem, their father. In the circumstances, there is no doubt in my mind that prosecution had not been able to prove the case against the appellants under section 10(3) read with section 18 of Offence of Zina (Enforcement of Hudood) Ordinance.
However, as discussed above, there is material evidence on record that accused had committed offence under section 354, P.P.C.
13. Before coming to the above conclusion, I had taken into consideration the pleas, put forth by the appellants and arguments advanced by the learned counsel for the appellants, that the accused had been declared innocent during investigation.
' Plea put forth by the appellants during statements under section 342, Cr.P.C. That they had seen Mst. Sumera Saleem, sitting at odd hours of the night with Amjad, Shah Jehan, Mudassar and Riaz, who had come to the spot on her invitation and that they had objected to Sumera sitting with them, whereupon a quarrel had taken place between them at which Sumera had interfered and had received injuries and she had got a false case registered against them, feeling disgraced and insulted does not find support from anything on record except the bare statements, made by both of them without oath. Suggestion put to Mst. Sumera Saleem in that regard during cross- examination, had been denied by her.
14. The argument of the learned counsel for the appellants that Zafar Iqbal, A.S.-I. Had declared the accused innocent and the S.H.O. Had also verified the same looses importance in view of the fact that in spite of that they had submitted challan to the Court, against both the accused, meaning thereby that they were also not sure of the opinion formed by them. Moreover, none of them stated that they had come to the conclusion that no such occurrence had taken place. All that Zafar Iqbal, A.S.-I., stated was that he had found the accused innocent, which obviously means that he had not found them to have committed offence of attempt to commit Zina, which does not mean that he had declared that accused had not committed any offence or that no such occurrence had taken place.
As a result of the above discussion and enunciation of evidence, conviction of the appellants under section 10(3) read with section 18 of Offence of Zina (Enforcement of Hudood) is set aside. Instead, they are held guilty of having committed, offence under section 354, P.P.C. They are convicted and sentenced thereunder.
' Keeping in view all facts on record, I feel, sentence of R.I. For one and a half years to each of the appellants, plus to pay a fine of Rs,1,000 each, in default whereof to undergo S.I. For 2 months each, will meet the ends of justice. .
' Benefit of section 382-B, Cr.P.C. Shall be given.