1. ' BASHIR A. MUJAHID, J.--- Abdul Rehman son of Abdul Latif and Mushtaq Ahmad son of Boota have challenged judgment, dated 12-8-1999 passed by learned Judge, Special Court ATA, Lahore whereby they were convicted under section 10(4) of Offence of Zina (Enforcement of Hudood)
2. Ordinance (VII of 1979) and section 6(c) read with section 7(ii) of Anti-Terrorism Act, 1997 and sentenced to death. Abdul Rehman was further convicted under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and sentenced to imprisonment for life and with whipping of 30 stripes. He was also ordered to pay Rs,30,000 as fine in default of payment of the same to further undergo six months' R.I. Benefit of section 382-B, Cr.P.C. Was also extended in his favor under section 11 (ibid).
3. ' Briefly the facts of the prosecution case are that F.I.R .No,156 of 1999 Exh.P.B. Was recorded with Police Station Saddar, District Kasur on 13-3-1999 at 3-20 p.m. On the basis of written statement Exh.P.E. Of Mst. Asia Bibi P.W.5 with Muhammad Amin, S.-I. P.W.7 wherein it was alleged that on 27-2- 1999 she was present in her house where Abdul Rehman accused/appellant came and informed her that her mother wants to see her and he has been sent to call the complainant. The complainant accompanied Abdur Rehman accused. Mushtaq accused met them on the canal bridge. Both the accused took the complainant to well (URDU TEXT) of Abdul Rehman. Rehmat Ali and Muhammad Ashiq also saw the complainant going alongwith the accused Abdul Rehman.
4. Both the accused committed Zina-bil-Jabr with the complainant at the well of Abdur Rehman for four days thereafter she was taken to garden which was on lease with Mushtaq accused where she was again subjected to Zina-bil-Jabr. When she got the opportunity to escape she came back to her house and the instant case was got registered.
5. ' After registration of the case, Muhammad Amin, S.-I. P.W.7 undertook the investigation, he inspected the place of occurrence, recorded the statements of the prosecution witnesses, got Mst.
6. Asia Bibi, complainant medically examined through Dr. Sajida Javed, WMO P.W.1. He arrested both the accused on 18-3-1999 and got them medically examined on 19-3-1999 and after completion of investigation they were sent in judicial lock-up. He completed the investigation and submitted the challan. The trial Court framed the charge against accused. They denied the same and claimed their trial.
7. ' The prosecution examined as many as 7 witnesses to prove the guilt 'of the accused.
8. ' The medical evidence was furnished by Dr. Sajida Javed, WMO P.W.1, who on 13-3-1999 had medically examined Mst. Asia Bibi, complainant and swabs were sent to the Chemical Examiner which were Exh.P.K. And she found that Mst. Asia Bibi was subjected to sexual intercourse.
9. ' Dr. Fayyaz Sarwar, P.W.4 had medically examined both Abdul Rehman and Mushtaq Ahmad and found them potent and fit to perform sexual intercourse.
10. ' The ocular account was furnished by Mst. Asia Bibi P.W.5 who was complainant of the case and victim of the occurrence. She supported the story of the complaint Exh.P.E. And stated that she was taken by Abdul Rehman from her house on the pretext that her mother who was divorced by her father wants to see her and was present on road-side. She accompanied him while Mushtaq Ahmad accused met them on the way. Both the accused put her to the well of Abdul Rehman where she was subjected to sexual intercourse by both the accused. Thereafter, she was taken to a garden on lease with Mushtaq Ahmad and again she was subjected to intercourse and when she got the opportunity, she escaped from the clutches of the accused and came her house and got the criminal case registered. Rehmat Ali was examined P.W.6. He stated that he had seen the victim in the company of the accused on 26/27-2-1999 at 8/9 a.m. Going towards Pacca road. Ijaz Ahmad, H.C. P.W.2 had recorded the formal F.I.R.
11. ' The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh.P.K.
12. ' The statements of the accused under section 342, Cr.P.C. Were recorded towards the end of the trial. They denied the allegations and claimed their innocence and false involvement by the complainant with the connivance of the police to extort money.
13. ' The trial culminated into conviction of the accused/appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No,795 of 1999 while the trial Court has sent up Murder Reference No,335-T/99 for confirmation of death sentence of the appellants. Hence both the matters are being decided by this judgment.
14. ' Learned counsel for the appellants has argued that no marks of violence were found on the person of the victim and she has made dishonest improvement in her statement and her statement has not been corroborated from any other independent source; that Rehmat Ali who was witness of `Wajtakar' is closely related to the complainant that the F.1.R. Was lodged with an inordinate unexplained delay and the appellants have been implicated falsely and they be acquitted.
15. ' Conversely the appeal has been opposed by the learned counsel for the State who has supported the impugned judgment.
16. ' Heard. Record perused.
17. ' Mst. Asia Bibi, victim was aged 15/16 years and was unmarried. The commission of Zina has been proved by her statement corroborated by the report of the Chemical Examiner. Exh.P.K. There is no reason for false implication of the accused. It is settled law that the solitary statement of the victim if it is confidence-inspiring is sufficient to record the conviction of the accused. In the instant case, the statement of Mst. Asia Bibi P.W.5 has been corroborated by medical evidence wherein the swa bs were found stained with semen and the appellants have not given any plausible reason for their false implication therefore, we do not find any force in the argument advanced on behalf of the appellants that they have been falsely implicated. The prosecution has proved its case against the appellants beyond any shadow of doubt.
18. ' As far as conviction is concerned, as no marks of violence were found on the victim when she was medically examined, she arrived at her house on her own and the matter was not reported to the police for her abduction by her father. Semen of accused were not sent to Serologist for grouping/comparison. The possibility cannot be ruled out that she was a consenting party with one of the accused and was tutored before the registration of the case, therefore, the conviction under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) is not legal and proper and the same is altered to under section 10(3) ibid and the accused/appellants are sentenced to 10 years' R.I. Each. They are further directed to pay compensation of Rs,50,000 each to the victim, in default of payment thereof, to undergo two years R.I. Each. Benefit of section 382-B, Cr.P.C. Will, however, be available to them. The appeal is dismissed with the above modification.
19. Their death sentence is not confirmed.
20. ' Murder Reference is answered in the negative.