' CH. EJAZ YOUSAF, J.--- This judgment will dispose of Criminal Appeal No,150-I of 2001, filed by Khan Said son of Din Muhammad and Criminal Appeal No,30-P of 2001 filed by Lalazada son of Khan Zada, Noor Muhammad son of Ayub Khan and Jehanzeb son of Noor Rahman, as both these appeals arise out of the same judgment dated 21-6-2001 passed by learned Additional Sessions Judge, Lahor, District Swabi whereby the appellants have been convicted under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) read with section 149, P.P.C. And sentenced to the punishments as under:-- "Appellant Khan Said has been convicted under section 10(3) of the Ordinance read with section 149, P.P.C. And sentenced to undergo R.I. For fifteen years and to suffer thirty stripes. He has also been convicted under section 11 of the Ordinance read with section 149, P.P.C. And sentenced to imprisonment for life, to suffer thirty stripes and to pay a fine of Rs,10,000 or in default thereof to further undergo S.I. For six months.
(2) Appellants Lalazada, Noor Muhammad and Jehanzeb have been convicted under section 11 of the Ordinance read with section 149, P.P.C. And sentenced to undergo life imprisonment each, to suffer thirty stripes each and to pay a tine of Rs,10,000 each or in default thereof to further undergo S.I. For six months each.
' The substantive sentences of imprisonment have been ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Has, however, been extended to the appellants.
2. Facts of the case, in brief, are that report was lodged by one Habib-ur-Rehman son of Said Rahman with the police, vide Daily Diary No,4 dated 12-10-1997, wherein it was alleged that the complainant's daughter namely Mst. Razia aged 16/17 years was engaged to one Khan Said son of Din Muhammad, resident of Bajwar Tangi but the Nikah was not performed. Similarly sister of Khan Said namely Mst. Hameeda was engaged to the son of the complainant namely, Sahz Ali Khan. It was further alleged that 5/6 days prior to lodging of the report complainant's aforenamed daughter left the house and spent a night in the sugarcane crop field. However, on the next morning she was brought back by Mst. Gulnar sister-in-law of the complainant. Due to fear that she may not slip away again, the complainant had handed over the custody of her daughter to his brother namely Noor Rahman and asked him to take and keep her in the Noor Rahman, Alamzeb, Jehanzeb, Said Rehman, Ahmad Yousaf, Lalazada, Noor Muhammad, Gul Muhammad and Khan Said on the pretext that they were going to take her to a doctor at Mardan. They spent the following night at Mardan and on the next morning some intoxicant was injected in her body by Ahmad whereafter she was taken to Bajawar Agency. It was further stated by her that at Bajawar Agency she was kept in the house of one Ahmad and she was compelled to marry accused Khan Said. She also spent a night in the house of Khan Said and on the following morning she, having found an opportunity, got rid of the clutches of the culprits and took shelter in the house of one Gul Azeem who brought her back to the house of her parents. On the stated allegations a formal F.I.R. Bearing No,438, dated 12-10-1997 was registered at Police Station Yar Hussain under sections 11 of the Ordinance read with sections 148 and 149, P.P.C. And investigation was carried out in pursuance thereof. On the completion of investigation the appellants were challaned to the Court for trial.
3. Charge was accordingly framed against the accused-appellants to which they 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 appellants produced 12 witnesses, in all. 1 P.W. Hayat-ur-Rehman is a formal witness of recovery memo. Exh.P.W.1/1 vide which the lady doctor had handed over to the Investigating Officer two sealed bottles said to contain swabs P.W.2 Muhammad Ishaq is a marginal witness of the memos. Exh.P.W.2/9 to Exh.2/1 vide which he had executed the warrants issued, against accused Jehanzeb, Khan Said, Din Muhammad, Noor Rehman, Alam Zeb, Said Rahman Yousaf and Ahmad under section 204, Cr.P.C. P.W.3 Muhammad Adil Khan, Judicial Magistrate had recorded confessional statement i,e, Exh.P.W.3/3 of accused Khan Said. P.W.4 Sabz Ali Khan, S.H.O. Had submitted complete challan in the case. P.W.5 Malik Sher is a formal witness of recovery memo.
Exh.P.W.5/1 vide which one Gul Azeem and Habib-ur-Rehman took Mst. Razia to the police station and produced her before the Investigating Officer P.W.6 Habib-ur-Rehman is the complainant. He at the trial, reiterated the version contained in the report/F.I.R. P.W.7 Mst. Razia is the victim. She, at.The trial, while corroborating the statement of P.W.6 in all corroborating the statement of P.W.6 in all material particulars charged the accused persons for her abduction, and also for forcible Nikah with Khan Said. P.W.8 GuI Azeem had brought Mst. Razia back to the house of her father. P.W.9 Mumtaz Khan, A.S.-I. Had partly investigated the case. P.W.10 Taj Malook, A.S.-I. Had completed investigation in the case P.W.11 Dr. Qaim Shah, S.M.O., had on 11-11-1999 examined accused Khan Said qua the potency test. P.W.12 Lady Dr. Nasreen Haider had on 1-11-1997 examined Mst. Razia. She produced in Court the medico-legal certificate issued by her as Exh.P.W.12/1.
5. On the conclusion of the prosecution evidence accused-appellants were examined under section 342, Cr.P.C. In their above statements the accused persons denied the charge and pleaded innocence. They, however, failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C.
6. After hearing the arguments of the learned counsel for the parties the learned trial Court convicted the appellants and sentenced them to the punishments as mentioned in the opening para.. Hereof.
7. We have heard Malik Rab Nawaz Noon and Mr. Imdad Hussain, Additional Advocates for the appellants, Mr. M. Sharif Janjua, Advocate, learned counsel for the State and have also perused the entire record with their assistance.
8. It may be pointed out here that when the case was taken up for hearing on 6-2-2002, the learned counsel for the appellant Khan Said stated that since the matter has been compromised between the parties and the complainant Habib-ur-Rehman has forgiven the appellants and he is no more interested in their prosecution, therefore, the compromise produced in the Court, by the parties may be accepted. Mst. Razia, the victim, was also present at that juncture, she also made the similar request but prayed for an adjournment to place on record the relevant documents. The case, therefore, was adjourned.
9. Today, Criminal Miscellaneous No,35/I of 2002, acceptance of the compromise, has been filed, Malik Rab Nawaz Noon, Advocate learned counsel for appellant Khan Said while reiterating his submission made earlier contended that since in pursuance of the compromise arrived at by the parties, Mst. Razia has also forgiven the appellants and an affidavit sworn by her to the above effect too has been filed alongwith the application in question, therefore, the compromise may be accepted and the sentences inflicted on the accused persons may be reduced substantially for better future relations of the parties. He added that though the offences under which the accused persons have been convicted are not compoundable yet in view of the compromise, the sentences recorded against the appellants can be reduced. Reliance has been placed on the following reported judgments:--
(i) Allah Ditta v. The State 1988 SCM R 1489 "In which case the appellant was convicted under section 10(3) of 'the Ordinance' and sentenced to seven years' R.I. With twenty stripes alongwith a fine of Rs,2,000 or in default thereof to further undergo R.I. For six months. In view of the compromise arrived at by the parties and the tact that the complainant party had forgiven the appellant and some compensation was also paid, the sentence of imprisonment inflicted on the appellant was reduced to the minimum prescribed under the law i,e, four years' R.I. The sentences of fine and stripes, were however, set aside."
(ii) Pervez Iqbal v. The State PLD 1985 FSC 134 "In which case the appellant was convicted on three counts i,e, under section 11 of the Ordinance, under section 506, P.P.C. And section 342, P.P.C. And was awarded life imprisonment alongwith a fine of Rs,2,000 or in default thereof to further undergo R.I. For six months, three years' R.I. And one year's R.I. Respectively. During pendency of the appeal, the matter was compromised by the parties and it was pleaded that since the complainant had forgiven the accused and his case did not fall within the ambit of section 11 of the Ordinance but was covered by section 365, P.P.C., therefore, the sentence inflicted on him may be reduced. The request was acceded to and the sentence of imprisonment inflicted on the appellant was reduced to two years' R.I. Under section 365, P.P.C.
However, it was ordered that the appellant shall pay a sum of Rs,10,000 as tine in case of default in payment of tine or would suffer R.I. For two years. Sentences recorded against him under section 506 as well as 342, P.P.C. Were also reduced to two years' R.I. And it was further ordered that all the sentences of imprisonment shall run concurrently.
(iii) Ghulam Rasool and another v. The State 1999 M LD 3085 "In which case a Single Bench of this Court in view of the compromise arrived at by the parties, the sentence of two years' R.I. Inflicted on the appellant under section 354, P.P.C. Was reduced to that of already undergone."
10. Mr. M. Sharif Janjua, Advocate learned counsel for the State has confirmed that the complainant has forgiven the appellants. Mst. Razia the victim is also present in Court, she states that since she has forgiven the appellants and has compromised the matter, therefore, the sentences recorded against the appellants may be reduced, for better future relations of the parties. Learned counsel for the State, in view of the compromise and the statement of the victim has expressed his no objection to reduction in the sentences of the appellants.
11. Keeping in view the submissions made by the learned counsel for the parties facts of the case and better future relations of the parties, we while following the ratio decidendi of the afore quoted reported judgments, and maintaining convictions of the appellants, are inclined to reduce the sentences recorded against them as under:--
(i) The sentence of imprisonment recorded against appellant Khan Said under section 10(3) of the Ordinance read with section 149, P.P.C. Is reduced from fifteen years' R.I. To that of four years' R.I.
(ii) The sentences of imprisonments inflicted on appellant Khan Said as well as other appellants namely Lalazada, Noor Muhammad and Jehanzeb under section 11 of the Ordinance read with section 149, P.P.C. Are reduced from life imprisonment to that of already undergone. The sentences of fine of Rs,10,000 inflicted on each, of the above named appellants under section 11 of the Ordinance, are also reduced to Rs,5,000 each in default whereof they shall undergo S.I. For three months each.
(iii) Sentences of stripes inflicted on the appellants on both counts i,e, section 10(3) as well as 11 of the Ordinance are set aside under the Abolition of Punishment of Whipping Act, 1996.
' Benefit of section 382-B, Cr.P.C. Granted by the learned trial Court shall remain intact. Both the substantive sentences of imprisonment shall run concurrently.
' With the above modifications in the sentences of imprisonment as well as of whipping and fine both these appeals are hereby dismissed. Criminal Miscellaneous Applications Nos.35/1 of 2002 and 76/1 of 2002, for acceptance of the compromise, are also disposed of in the above terms.
Sentences reduced.