IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan, 1973, has been filed against the consolidated judgment dated 13- 2:2002 passed by the Lahore High Court, Lahore, whereby Criminal Appeals Nos.599 of 1999 and 1078 of 1999 filed by both the appellants against the judgment dated 17-6-1999 of Special Judge Anti-Terrorism Court No,3, Lahore, have been dismissed and in exercise of suo motu powers conviction recorded against both the appellants under section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 [hereinafter referred as "the Ordinance"] was converted into section 10(4) of the Ordinance and sentence of 25 years' R.I. Has been enhanced to death.
2. Precisely stated the facts of the case are that on 14-5-1998 Mst.Asmat Tahira lodged report vide F.I.R. Exh.P.A./1 at Police Station Sangla Hill, District Sheikhupura alleging therein that on the night intervening 6th and 7th of May, 1998 she was sleeping in the compound of her house. Her father was also lying (sleeping) in the same courtyard whereas her brother had gone to Faisalabad. At the night time appellants Munir Masih and Muhammad Abbas entered into the compound of the house and got her up from the cot. She tried to raise alarm but accused Munir Masih closed her mouth with a cloth and accused Muhammad Abbas who was armed with gun threatened that if she would raise alarm she would be killed. The accused Abbas forcibly took her to his Baithak forcibly through the small window of the main gate of her house. Munir Masih accused was also with him. The accused bolted the door of the Baithak from inside and her photographs were taken by accused Muhammad Abbas. Then they switched off the light of the room and accused Munir Masih and Muhammad Abbas committed Zina-bilJabr with her turn by turn respectively.
Meanwhile Amer Masood P.W. (not produced) and Dilawar Hussain P.W.2 were attracted to the Baithak on hearing her hue and cry, they knocked the door, the accused unbolted the door and ran away. The P.Ws. Entered the Baithak, switched on the light, got the victim dressed up and took her to the house where she narrated who-le story to the P.Ws. For seven days the accused did not allow her to lodge the F.I.R. As they had been pressing her for compromise through Punchayit. It is further stated in the F.I.R. That when she was going to lodge report, Muhammad Yaqoob (P.W.7) S.-I./S.H.O., met her there as he was on patrol duty. The statement so made by the complainant war incorporated into a Marasala, which was sent to police station for registration of the case. On the following day i,e, 15th of May, 1998, the complainant was examined by Dr. Fauqia Asif (P.W.8) Women Medical Officer, District Headquarter Hospital, Sheikhupura. The Investigating Officer in the meanwhile recorded the statements of the witnesses and subsequently caused the arrest of Munir Masih appellant on 21st May, 1998 whereas Muhammad Abbas appellant was arrested on 1st June, 1998. At the pointation of Muhammad Abbas a .222 bore rifle (P.1) was taken into possession from him vide memo. Exh.P.B. On the completion of investigation, appellants were sent up to answer the charge before Special Judge Anti-Terrorism Court No,3, Lahore.
3. Learned trial Court proceeded with the case in view of denial of "the appellants to plead guilty and examined on behalf of prosecution Mst. Asmat Tahira daughter of Sadiq Ali (P. W,1) victim. She supported the prosecution case as it was set up in F.I.R. Dilawar Hussain (P.W.2) deposed that on coming to know from the father of the victim that she was not present on her cot and it was not known as to where she had gone, he came out of his house and saw that accused Abbas while armed with a gun was standing on a corner of his Baithak. He got frightened, therefore, he went to the house of his nephew Amer Masood (not produced) and he also brought him, they both came to the Baithak of Abbas appellant and saw on entering in the Baithak that Mst. Asmat Tahira was in naked position. They got her dressed up and took her to her house where Mst. Tahira told him and other who had gathered there in the meanwhile that she was forcibly taken away by Abbas and Munir accused by closing her mouth. She also told them that she was subjected to Zina by both the accused. Nabi Ahmad P.W. Being police employee was deputed by the S.H.O. On 15-5-1998 to keep in safe custody one sealed phial and a sealed envelope which he handed over to Muhammad Asif P.W. Constable on 16-5-1998 for onward transmission to the Office of the Chemical Examiner, Lahore. Similarly on 21st May, 1998 the Investigating Officer handed over him one sealed phial and a sealed envelope for keeping the same in safe custody in the Mal Khana. On 25th May, 1998 he handed over the same to Muhammad Asif Constable for onward transmission to the Chemical Examiner, Lahore. On 1st June, 1998 he was also handed over one sealed phial and one sealed envelope by the Investigating Officer which was handed over by him to one Muhammad Mansha Constable on the same day for onward transmission to the office of the Chemical Examiner, Lahore. Muhammad Asif (P.W.4) deposed that on 16th of May, 1998 he deposited one sealed phial and one sealed envelope in the Office of the Chemical Examiner. Similarly on 25th May, 1998 he again deposited one sealed phial and one sealed envelope in the office of the Chemical Analyser.
Muhammad Mansha (P.W.5) also delivered one phial and one sealed envelope in the Office of the Chemical Examiner, Lahore, on 4th of June, 1998. Anwar Ali P.W.6 deposed that in his presence Muhammad Yaqoob (P.W.7) S.-I./1.0. Recovered one gun (P.1) from the possession of Muhammad Abbas accused vide memo. Exh.P.B. Muhammad Yaqoob P.W.7 S.-I./I.O. Submitted details relating to the registration and investigation of the case and finally submitted the challan. P.W. Dr.Fauqia Asif examined Mst. Asmat Tahira on 15th of May, 1998 and submitted her report of medical examination (Exh.P.F.). In Court statement she opined as under: "On general physical examination no fresh marks of violence were detectable on any part of her body. As per vaginal examination vulva vagina healthy.Hymen torn at 3, 6, 9, O,Clock position (old healed tears). Vagina admits one finger easily and painless. Two fingers examination was possible.
Uterus normal size. Two vaginal swabs were taken and sent to Chemical Examiner. Punjab for detection of semen and semen grouping." The Serologist vide report (Exh.PH) could not determine semen groups as samples were insufficient, to achieve the object.
4. After completion of prosecution evidence statements of appellant sunder section 342, Cr.P.C.
Were recorded. Munir Masih appellant denied the prosecution case and assigned following reasons for involving him in the commission of the offence, while answering question No,12: "I have been working as servant in the house of the parents of the complainant for the last five/six years. During my employment the complainant fell in love with me and she wanted to contract marriage with me, in token of her love she also made photograph with me but on disclosure of this love affair, the parents of the complainant terminated my services about five/six months prior to the registration of this case. In order to take revenge of their insult, the complainant's parent has implicated me in this false case and the P.Ws. Have deposed against me due to their malice being close relative of the complainant."
5. Likewise Muhammad Abbas appellant pleaded his false implication in the case and disclosed following reasons for his involvement in the case: "The complainant party is inimical against me since long. Before registration of this case.a case under section 302/34, P.P.C., was got registered against me and my brother Muhammad Ashraf by Liaqit Ali cousin of the complainant vide F.I.R. No,209 dated 8-10-1996, in the report under section 173, Cr.P.C. Prepared in this case. My name was mentioned and I was declared innocent during investigation, which shows the existence of previous, enmity with the complainant party. Dilawar P.W. Of this case, appeared against me. This P.W. Was also a witness in the above-referred case against me and my brother, but when the actual accused was challaned in the said murder case, he refused to become a witness against me and my brother. I produce the copy of the F.I.R No, 209 dated 8-10-1996 which is Exh.D.B. I also produce the copy of the report under section 173, Cr.P.C. And the order passed by the learned Additional Sessions Judge, Sheikhupura, dated 30-10-1997, which are Exh.D.C. And Exh.D.D. Respectively. Many persons appeared in my defence before the local police as I am innocent in this case. They also filed their affidavits which are available on the file. I am innocent. I have been falsely involved in this case.'
6. Both the appellants did not opt to make statement on Oath nor any defence witness was produced by them.
7. Learned trial Court vide judgment dated 17-6-1999 convicted and sentenced both the appellants as following:
(i) Under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to imprisonment for life each and both the convicts are awarded punishment of whipping 30 stripes each with fine of Rs,50,000 each and in default of payment of fine, to 6 months' R.I.
(ii) Both the accused are also convicted under section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance. 1979 and sentenced to 25 years' R.I. Each as 'Ta'zir' and whipping 30 stripes each. Both the sentences were ordered to run concurrently."
8. In appeals bearing Criminal Appeals Nos.599 of 1999 and 1078 of 1999 filed by the appellants alongwith Suo Motu Criminal Revision No, 583 of 1999 the learned Division Bench of the Lahore High Court vide impugned judgment converted their conviction from section 10(3) of the Ordinance.
1979 to section 10(4) of the Ordinance, 1979 and enhanced the sentences of both the appellants from imprisonment for life to death and consequently dismissed appeals filed by them.
9. Messrs Muhammad Anwar Ghumman, Advocate Supreme Court and Dr. Babar Awan, Advocate Supreme Court appeared on behalf of Muhammad Abbas appellant whereas Abdul Rauf Farooqi, Advocate Supreme Court represented Munir Masih appellant. Raja Abdur Rehman, A.A.-G., Punjab, appeared for the State.
10. Dr.Babar Awan, Advocate Supreme Court for accused Muhammad Abbas argued that prosecution had failed to establish accusation against the convicts under sections 11/10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. To substantiate his contention he urged that delay in lodging of F.I.R. By Mst.Asmat Tahira after 7/8 days has remained unexplained. The evidence furnished by prosecutrix suffers from material contradictions, omissions and improvements on account of which its intrinsic value has been damaged badly. P.W. Mst.Asmat Tahira had relations with co-convict Munir Masih prior to happening cf incident when he was working as the servant of his father, therefore, possibility of voluntarily leaving the house by her with Munir Masih cannot be overruled. The best kind of evidence of Sadiq Ali father of the prosecutrix has been withheld by the prosecution inasmuch as no other inmates of the house appeared to substantiate her plea of taking her forcibly from the house by the appellants. The learned High Court as well as the trail Court have failed to appreciate that there was enmity between both the families on account of which appellant was falsely involved in the commission of the offence. He also contended that the evidence of the prosecutiion witnesses was not appreciated by the High Court properly, therefore, on setting aside the impugned judgment appellant be acquitted of the charge. He further contended that impugned judgment of the High Court is not sustainable because the learned High Court had no supervisory jurisdiction upon the Special Judge, Anti- Terrorism Court, therefore, the sentence from life imprisonment to death had been enhanced illegally.
11. Mr. Muhammad Anwar Ghumman, Advocate Supreme Court also appeared on behalf of convict Muhammad Abbas as well as Mr.Abdul Rauf Farooqui, Advocate Supreme Court who had appeared on behalf of Munir Masih prayed for reduction in the quantum o; sentence.
12 Raja Abdul Rehma.., learned Assistant Advocate-General contended that the prosecution has offered explanation for delay in lodging F.I.R namely after happening of the incident the convicts were persuading to the complainant and her family members through "Punchayat" not to report the case to Police, therefore, for such reason delay has been caused in lodging F.I.R. Which stands explained fully. P.W. Mst. Asmat Tahira had involved both the appellants in commission of the offence, therefore, her solitary statement is sufficient to record conviction. Besides it the medical evidence produced by P.W. Dr.Fauqia Asif has furnished strong corroboration to the ocular testimony of P.W. Mst Asmat Tahira confirming that she was subjected to sexual intercourse coupled with the fact that according to Serologist's report Exh.PH and Chemical Analyser Report Exh.PG the vaginal swa bs were found to be stained with semen. It was also stated by him that the recovery of gun from the possession of appellant Muhammad Abbas is suggestive of the fact that on gun-point Mst.Asmat Tahira was forcibly abducted from her house and later on under the fear of death she was subjected to sexual intercourse by both the appellants. The learned High Court in exercise of inherent jurisdiction conferred upon it under section 561-A had enhanced the sentence from life imprisonment to death because appellants were found guilty for the commission of the gang rape falling within the mischief of section 10(4) of the Ordinance.
13. We have heard learned counsel for appellant and have also examined the record of the case carefully. In instant case alleged incident of Zina-bilJabr with Mst.Asmat Tahira daughter of Sadiq Ali took place during the intervening night of 6th, 7th May, 1998. F.I.R. (Exh.PA) No,96 of 1998, at Police Station Sangla Hill, District Sheikhupura, was lodged by the prosecutrix on 14th May, 1998 at 2-00 p.m. Explanation of delay in lodging F.I.R. Has been offered that the appellants were trying to compromise with her through "Punchayat" as such F.I.R could not be lodged promptly. To substantiate explanation, except the statement of prosecutrix, no other evidence has been produced either through the members of the "Punchayat" or anyone else belonging to prosecutrix's family, particularly her father Sadiq Ali, who was present in the house when the prosecutrix was allegedly forcibly adbucted on gun-point by the convicts. P.W. Dilawar Hussain cousin of the prosecutrix who remained associated with the investigation of the case since very beginning when questioned about the delay in lodging F.I.R, did not support prosecutrix's version except answering suggestion that it was for the prosecutrix or for her family members to lodge report. Surprisingly, neither the brothers nor sisters of the prosecutrix being in 4 + 2 in number respectively did not come forward to support her version. Explanation in this behalf put forward is that brothers had gone to Faisalabad but one of her brother was living separately who too did not appear to substantiate her claim. Be that as it may, question for consideration would be whether delay in lodging F.I.R would be fatal for the prosecution case or otherwise? There are cases in which even the delay 2/3 months in lodging of F.I.R has not been considered fatal for the prosecution if the result of commission of Zina with the prosecutrix had started emerging at a later stage. Reference may be made to the case of Mst.Nasreen v. Fayyaz Khan and another (PLD 1991 SC 412). In this case prosecutrix did not inform her family members about the happening of incident of Zina with her as her husband being an insane was in jail. Subsequently, when sign of pregnancy started appearing, she told the story to her mother. This Court formed opinion that as husband was in jail, therefore, was not available to impregnate her and believing the statement of prosecutrix to be true, reason sexisted for not lodging F.I.R and as now after few months circumstantial evidence of Zina started showing itself, therefore, she lodged report against the culprits. At the same time, there are cases in which F.I.R. Of the alleged incident has been lodged promptly but subsequently it was found that baseless allegations have been imputed against the accused. Reference in this behalf may be made to the case of Muhammad Siddique v. The State (1990 ALD 45). In this case a girl of 13/14 years of age alleged against an accused who was 76 years old, suffering from Harnia' that he has committed Zina with him at the instance of her father who was inimical to the accused on account of some land dispute but ultimately Court did not believe the case of prosecution. With reference to instant case, delay of 7/8 days in lodging of F.I.R. By the prosecutrix can also not be considered fatal because P.W. Dr.Faugia Asir gave positive opinion about the commission of Zina with her with a view that sexual intercourse can take place within the period of 72 days. Considering the Doctor's opinion along with Serologist Report (Exh.PH) according to which "presence of spermatozoa in the vagina of prosecutrix has been testified" we conclude that as in the instant case after 7/8 days from the commission of the offence, scientifically it has been proved that prosecutrix was subjected to sexual intercourse. Therefore, her explanation of not lodging F.I.R. Promptly seems to be convincing, delay in lodging of F.I.R would not be considered fatal for the case of prosecution.
Thus objection raised in this behalf by the defence is overruled.
14. The appellants have been charged for the offence of abducting the prosecutrix on the gun point falling within the mischief of section 11 of the Ordinance, and then committed Zina with her as per the mischief of section 10 of the Ordinance. Therefore, first of all it would be imperative to examine whether prosecutrix was forcibly taken away on the gun-point by the convicts or what was the actual position? It is worth-mentioning that to substantiate accusation of abduction against appellants, the prosecution had withheld best kind of evidence of Sadiq Ali father of the prosecutrix.
As the story goes, on the night of incident when prosecutrix was lying in the compound of her house on a cot, placed at a distance of 4 passes from the cot of her father, she was taken away by both the convicts forcibly as one of them i,e, Muhammad Abbas threatened to kill her with the gun possessed by him. It is surprising to note that amongst her family members, no one has appeared in the Court to disclose the manner in which she was, forcibly kidnapped. The statement of the prosecutrix seems to be doubtful on the point that on the night of incident her brothers had gone to Faisalabad whereas one of her brother lives separately. She did not give count for the presence of her mother as well as sisters. So far her mother is concerned she was very much present in the house because according to her version, on the next morning she had washed her clothes, which were stained with semen etc. There is yet another fact which has engaged our attention about manner in which both the appellants entered in the compound of prosecutrix's house. When she was asked to explain this aspect of the case, she failed to answer except saying that:-- "I do not know as to how the accused had entered in our compound whether they climbed over the wall or they managed to come over the gate." However, she explained that she was taken out from the house through small window in the main gate. In this context, perusal of statement of P.W. Dilawar Hussain indicates that when he was sleeping in his house, father of the prosecutrix raised alarm due to which he was awakened, He was told by Sadiq Ali that prosecutrix was not present on her cot and it is not known that where she has gone. From this version of the witness, inference can be drawn that prosecutrix quietly left the house, possibly on her own, otherwise, there would have been some resistance on her part and even the inmates of the house including father and mother must have noticed that some outsiders had entered into their house and they are forcibly taking away to their grown up daughter and being her guardian, irrespective of the consequences, they should have resisted her abduction.
It is also important to note that facts available on record reveal that prosecutrix had developed a close intimacy with Munir Masih-convict during the period when he was working as servant of her father ih their house. In this behalf reference to a photograph marked ' A' may be made. A perusal whereof indicates that Munir Masih-convict and prosecutrix P.W. Mst Asmat Tahira are lying on a cot in a very jolly mood. In respect of taking her photographs she deposed in Court that "Munir Masih accused had also taken my photographs prior to the occurrence under a threat". With regard to photograph marked 'A' her version was that "this photograph was also taken on the same night when she was taken by the accused in the Baithak". It is to be noted that according to her own statement Munir Masih accused had also taken her photographs prior to the occurrence under a threat. In our opinion photograph marked 'A' also pertains to the period prior to the happening of the incident because according to her statement on the day of occurrence she was wearing 'Khaki' coloured clothes, whereas in photograph marked ' A' she is wearing white colour clothes.
We are conscious of the fact that statement of an accused made by him under section 342, Cr.P.C.
Cannot be used against him unless it is shown that prosecution possesses. No other evidence to prove accusation against him but reference of such statement during the appreciation of evidence produced by the prosecution against him is not prohibited to ascertain as to whether plea taken by him is correct or not. The plea of the prosecutrix with regard to taking her photographs by Munir Masih-convict, prior to the incident and on the night of the incident, as has been mentioned hereinabove seems to be correct. Reference in this behalf may be made to the statement of Munir Masih-convict under section 342, Cr.P.0 wherein he has also confirmed that "during my employment the complainant fell in love with me and she wanted to contract marriage with me, in token of her love, she also made photograph with me but upon disclosure of this love affair, the parents of the complainant terminated my services about five/six months prior to registration of the case". Thus in view of such material available on record, it can safely be concluded that prosecutrix had close intimacy with the convict Munir Masih prior to incident of 7th/8th May, 1998, therefore, it was incumbent upon the prosecution to have led strong evidence to prove that prosecutrix was forcibly abducted by the convicts for committing Ziriabil-Jabr with her and in absence of strong evidence, we feel no hesitation to hold that prosecution had failed to prove beyond shadow of doubt the commission of the offence against convicts Under section 11 of the Ordinance.
15. In view of above discussion, it would be seen whether the prosecution has succeeded in establishing offence of committing gang rape against both the convicts/appellants upon' prosecutrix in accordance with provision of section 10(4) of the Ordinance. Prosecutrix, in her statement had stated that both the convicts committed Zina-bil-Jabr with her turn by turn. Her such statement can be considered to be true and as per prevailing practice of the Courts conviction can be based on the solitary statement of the prosecutrix if it rings truth, as it has been held in the case of Mst. Nasreen (ibid) and in the case of Muhammad Ashraf v. The State (2002 M LD 628). However, if the statement of the prosecutrix suffers from material omissions/contradictions on account of which intrinsic value of her evidence has been damaged, then it is not safe to base conviction alone on her statement and Court must look forward to find out independent corroboration from other sources to her statement. [Muhammad Siddique v.The State (1990 ALD 45)]. At this stage, placing the statement of prosecutrix in juxtaposition with the medical evidence furnished by Dr. Fauqia Asif as well as report of Serologist, one can conclude that she was subjected to sexual intercourse few days prior to medical examination. It is also important to note that if Serologist had succeeded in matching the semen grouping with the semen group available on the vaginal swa bs of the prosecutrix, it would have been convenient to ascertain as to whether both the accused had committed sexual intercourse with her or not. Therefore, in absence of the report of the Serologist in this behalf, on the basis of medical examination alone, it is not possible to determine that how many persons have committed sexual intercourse with the prosecutrix, as it has been held in the case of Balwant Singh and others v. State of Punjab (AIR 1987 SC 1080).
Relevant para.Is reproduced hereinbelow for convenience:-- "We do not think that on medical examination it is possible to say about the number of persons committing rape on a girl.... ..... The evidence of the prosecutrix that all the appellants had committed rape on her is not inconsistent with the medical report. In the circumstances, there is justification for the finding of the High Court that the medical examination and the evidence show the involvement of the more than one person in the act of rape.
Undoubtedly, the evidence furnished by the prosecutrix is sufficient to the extent of proving that sexual intercourse/Zina has been committed with her. Even if there is any contradiction in her ocular testimony and the medical evidence, then statement is bound to prevail as per the dictum laid down by this Court in the case of Muhammad Hanif v. The State PLD 1993 SC 895. However, before making final conclusion, another aspect of the case is also important to be considered namely "one of the appellant i,e, Muhammad Abbas had pleaded that prosecutrix herself and P.W.
Dilawar Hussain had old enmity with him". For reference relevant portion from the statements of P.W. Mst. Asmat Tahira and Dilawar Hussain is reproduced hereinbelow for convenience, respectively. P.W. Mst. Asmat Tahira in her statement stated that:-- "Liaqat is known to me. He is the son of my uncle. It is correct that accused Abbas present in Court was involved in the murder of Mst. Zohara sister of said Liaqat. My brother Arshad and Safdar were witnesses in that murder case against the actual accused who was arrested later on. At first instance Dilawar Hussain was witness in that murder against Abbas accused present in Court. It is correct that Dilawar is the son of my uncle and is witness in this case. It is correct that the accused Abbas was discharged from that case. It is correct that Dilawar Hussain and myself were not on good terms with Abbas accused after that murder. It is correct that we remained inimical towards Abbas accused since that murder but the enmity was not of a serious degree." Whereas P.W. Dilawar Hussain in this behalf deposed as under:-- "The sister of Liaqat was murdered about a year or so prior to this occurrence. Liaqat is the son of my uncle. Abbas accused was also one of the accused in that murder case. I was an eye-witness in that case. The accused was arrested in that case. It is correct that the accused Abbas was not challaned in the Court. We got the accused Abbas discharged from that case and we asked the police not to challan the accused in this case. Azam accused was challaned in that case. I was not a witness against Azam. I had appeared before the police in the innocence of the accused Abbas and I had also sought pardon from the accused Abbas in that murder case. I had constructed a joint wall intervening between my house and the houseof Abbas accused. Abbas accused had yet to make me payment for the construction of the said wall for his own share. But before the said payment, he was involved in the instant case. It is incorrect to suggest that the accused Abbas is innocent in the present case. It is also incorrect to suggest that I had seen any photograph of Tahira with Munir Masih accused prior to the occurrence. It is incorrect to suggest that we have involved the accused falsely in the instant case. The above version with regard to enmity has also been reiterated by convict Muhammad Abbas in his statement under section 342, Cr.P.C. Relevant para. Therefrom, has already been reproduced on above paras, Keeping in view the previous enmity between the parties the evidence furnished by P.W. Dilawar Hussain also needs to be discussed because it indicates that Muhammad Abbas- convict/appellant had not entered into Baithak owned by him at the relevant time because the witness saw him duly armed with the gun standing on the corner of his Baithak and when the witness again came back towards that side along with his nephew, he saw that some other people men and women had also awakened and they followed him as well as his nephew towards the said Baithak. On entering in the Baithak they saw that Mst. Asmat Tahira was in a naked position.
They got her dressed and took her to her house. As such statement of the witnesses creates an impression that convict Muhammad Ablrs remained standing outside the Baithak and he had only facilitated Munir Masih-convict to commit Zina with her because P.W. Dilawar Hussain had not seen to Munir Masih standing outside the Baithak at the time, when he saw Muhammad Abbas, duly armed with gun. As far as the plea of enmity between the parties is concerned it cuts both the ends. There is possibility that on account of previous enmity Muhammad Abbas appellant might have shared common intention for molesting daughter of her enemies in order to take the revenge of his previous false involvement in the murder case. Similarly at the same time, it can also not be overruled that the complainant side might have involved falsely Muhammad Abbas in the crime because earlier to this incident they were inimical towards him. However, on account of both these versions, doubt is created in respect of committing Zina by Muhammad Abbas-convict with Mst.
Asmat Tahira. As far as Munir Masih is concerned there is no doubt left that on account of previous intimacy he managed to bring prosecutrix in the Baithak of Muhammad Abbas and there he subjected her to sexual intercourse which stands proved through the medical evidence, therefore, he cannot be absolved from the commission of the offence of Zina with Mst. Asmat Tahira.
16. As far as question relating to suo motu jurisdiction of the High Court in pursuance of which the sentence of both the appellants has been enhanced, is concerned, it needs no discussion in view of above observations, wherein we have held that out of both the appellants Munir Masih alone is responsible for the commission of the Offence of Zina with the prosecutrix. Therefore, this question is left for consideration in some other appropriate case.
17. Thus for the foregoing reasons, impugned judgment dated 13th February, 2002 passed by Lahore High Court, Lahore is set aside and appellants are acquitted from the charge under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereas the judgment passed by the Special Judge Anti-Terrorism Court No,3, Lahore is modified as follows:--
(1) Appellant Munir Masih son of Bashir Masih is convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 10 years' R.I. With 30 stripes. He is also directed to pay fine of Rs,50,000 or in default whereof to further undergo S.I. For 2-1/2 years. Benefit of section 382-B, Cr.P.C. Is also extended to him.
(2) Appellant Muhammad Abbas son of Sharif is acquitted of the charge. He be set at liberty forthwith if not required in any other case."
Criminal Appeal No,101 of 2002 filed by Muhammad Abbas son of Sharif is allowed whereas Criminal Appeal No,102 of 2002 filed by Munir Masih son of Bashir Masih is partially allowed in above terms.