' This appeal is directed against judgment, dated 3-7-2002 passed by learned Additional Sessions Judge, Sargodha whereby appellant Fayyaz was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer five years' R.I. Benefit under section 382-B, Criminal Procedure Code was extended to the appellant.
2. Brief facts of the prosecution case are that on 24-9-1995 complainant Mst. Taj Bibi went to the fields for cutting grass. The appellant came there and dragged her towards a watercourse and thereafter committed Zina with her forcibly. She raised alarm, which attracted P.Ws. Muhammad Siddique and Arshad Ali. On seeing the witnesses the accused/appellant ran away.
3. The learned counsel for the appellant as mainly argued that essential ingredients for commission of offence of Zina-bil-Jabr i,e, use of force or threat of force have to be directly proved or the same may emerge from the facts and attending circumstances of the case. In the present case, the appellant is a young man of 26 yeas of age whereas the victim is a widow aged more than 50 years having grown up children. The occurrence took place in the garden where normally commission of A Zina-bil-Jabr could not have been committed unless both the partners were willing. From the evidence it is not spelt out that any resistance was made by the victim. There is no mark of violence on any part of her body. Her clothes were intact. The threat of force as alleged by the victim given by the appellant is that she was held by the .Arm and he tried to throttle her neck.
Thereafter she was dragged to the place of occurrence. This part of the statement is not at all supported by the medical evidence. No scratches were observed on the back, no mark or abrasion or signs of throttling or pressing the throat were found by the doctor. The occurrence took place in the broad-daylight when a number of people were all around. The complainant's assertion in this respect that she was forcibly subjected to Zina is not supported either by the medical evidence or by any other relevant circumstances. The .Appellant's conviction, therefore, under section 10(3) of the Ordinance is not justified. The same is, therefore, converted to under section 10(2) of the Ordinance. The maximum sentence provided under section 10(2) is five years' R.I. The appellant has already undergone more than three years' R.I. The occurrence took place in the year 1995, since then the appellant has been undergoing agony and ordeals. 1 am, therefore, of the view that the sentence of imprisonment already undergone by the appellant would be sufficient to meet the ends of justice.
' In view of the above observations, the conviction of the appellant under section 10(3) of the Ordinance is set aside and The same is recorded under section 10(2) of the Ordinance and he is sentenced to the period of imprisonment already undergone by him. The appellant is in jail. He be released there from if not required in any other case. The appeal is disposed of accordingly.