' SAEED-UR-REHMAN FARRUKH, J.--- By this judgment, we propose to dispose of the following three matters as they arise out of the common judgment, dated 3-1-2001 passed by Additional Sessions Judge, Sargodha:-
(1) Ghulam Shabbir v. The State Criminal Appeal No,276/L of 2001.
(2) M. Sarfraz v. Abid Hussain and others Criminal Appeal No,329/L of 2001.
(3) M. Sarfraz v. Ghulam Shabbir Criminal Revision No,54/L of 2001.
' Ghulam Shabbir, through his Appeal No,276/L of 2001, has challenged his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentence thereunder for ten years' R.I. With fine of Rs,20,000 in default whereof to further undergo six months R.I. Besides, he was convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with a fine of Rs,20,000 in default whereof to further undergo six months' R.I. Benefit of section 382-B, Cr.P.C. Was not extended.
' In the two connected matters i,e, Criminal Appeal No,329/L of 2001 Muhammad Sarfraz complainant has challenged the impugned judgment regarding acquittal of Abid Hussain and six others (respondents herein) while in Criminal Revision No,54/L of 2001 Muhammad Sarfraz has sought enhancement of sentence of Ghulam Shabbir appellant.
2. At the very outset Mr. Shaukat Ali Mehr, Advocate, learned counsel for Muhammad Sarfraz, in the two connected matters, referred to above, made statement at the bar that he was instructed only to file the abovesaid matters in the Court and he has no further instructions in this behalf to pursue the same.
3. Mr. Dost Muhammad Kahoot, learned counsel for the appellant has vehemently argued the appeal filed by his client.
4. The prosecution story emerging from the F.I.R. Lodged by Muhammad Sarfraz P.W.3 is that he has four sisters, three of them being younger to him and Mst. Tasleem Akhtar the alleged victim, aged about 15 years being elder to him. It was alleged that Ghulam Shabbir appellant used to visit his house and was forbidden from doing so as he did not enjoy good reputation. At about Sehriwela when all the members of the family were awaken, Shahida Bibi and Hakan Bibi, acquitted co- accused entered his house and had a talk with Mst. Tasleem Akthar in seclusion. Thereafter, they took her out of the Haveli on the pretext of answering the call of nature. Mst. Tasleem Akhtar did not return home. After some time search was initiated and he came across Sikandar Hayat and Muhammad Bakhsh who made disclosure that they had seen Ghulam Shabbir appellant, alongwith Fida Hussain and Abid Hussain acquitted co-accused, dragging Mst. Tasleem Akhtar towards Bhera Jhawarian Road while she was raising hue and cry. Allegedly, the accused were approached but they refused to hand her over back to him forcing him to lodge F .1. R.
5. After investigation, all the accused were challaned to Court. They pleaded not guilty to the charges levelled against them and claimed to be tried.
' As mentioned above, except Ghulam Shabbir appellant, all of them were acquitted..
6. The crucial evidence in the case, for determination of the fate thereof, comprises of testimony of Muhammad Sarfraz complainant P.W.3, Mst. Tasleem Akhtar alleged abductee P.W.4 and Sikandar Hayat P.W.5, who all supported the prosecution version as given in the F.I.R. Muhammad Sarfraz stated that after Mst. Tasleem Akhtar had been allegedly abducted for illicit intercourse by Ghulam Shabbir and his co-accused, efforts were made by way of Punchayat for recovery of Mst. Tasleem Akhtar but to no avail. Mst. Tasleem Akhtar, in her statement, deposed that at Sehriwela time Shahida and Hakan accused took her out of her house on the pretext of answering the call of nature and she was thereafter forcibly abducted by Ghulam Shabbir appellant with the help of Fida Hussain and Abid Hussain on a motorcycle. Firstly, she was taken to the Dera of Naeenwala where Ghulam Shabbir committed Zina-bil-Jabr with her and then to the Dera of Nazir Awan brother-in-law of Manzoor accused, where she was kept for eight days. There also Ghulam Shabbir had been committing Zina-bil-Jabr with her. Then she was taken to different places and her thumb-impressions were also taken on some papers. Subsequently, she filed a suit for jactitation of marriage against Ghulam Shabbir accused which was decreed in her favor. According to her, the accused detained her for a period of one month and 6/7 days. She conceded that the Dera where she was initially taken was jointly owned by Manzoor etc. But she did not know the inhabitants of the said house as she was locked in a room. She deposed that the motorcycle on which she was allegedly carried away was kept at the Dera Naeenwala and from there she was transported on a wagon, specially hired for the purpose and that she did not raise hue and cry during her said journey from the Dera.
' The testimony of Sikandar Hayat P.W.5 is that of a Wajtakker witness who met the accused while they were forcibly whisping away Mst. Tasleem Akhtar.
7. It is argued by the learned counsel for the appellant that, (i) in the facts and circumstances of the case, it is proved on record that Mst. Tasleem Akhtar was not forcibly abducted or kidnapped by the appellant; (ii) prosecution story having been disbelieved vis-a-vis the acquitted co- accused (7 in numbers) there was no legal justification for convicting the appellant on the basis of same tainted evidence; (iii) Mst. Tasleem Akhtar had in fact eloped with Ghulam Shabbir of her own free will and had been visiting different places and during the entire period of one month and 6/7 days that she remained with him she did not raise any hue and cry. We find force in the submissions made by the learned counsel for the appellant, that the prosecution has exaggerated the actual occurrence so as to make a more heinous offence for Ghulam Shabbir. Mst. Tasleem Akhtar did not have any mark of violence when she was medically examined by lady doctor as per medico-legal report Exh.P.C./1. In the opinion of doctor she was habitual to intercourse and vagina admitted two fingers easily and hymen was torn. The report of Chemical Examiner Exh.P.1 was positive.
8. It is true that after her recovery, Mst. Tasleem Akhtar had filed a suit for jactitation of marriage against Ghulam Shabbir appellant which was decreed in her favor and appeal filed by him is dismissed by High Court. However, the possibility that she filed the suit under pressure of family members after having been recovered cannot be excluded. It is established on record that she had been moving freely with Ghulam Shabbir from place to place. Had there been any element of coercion she would have raised alarm so as to escape from his clutches. She failed to do so and only presumption that can be drawn in the face of her own admission is that she was neither forcibly abducted nor subjected to Zina- B bil-Jabr. Learned trial Judge has however, erred to convict him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
9. Learned counsel for the appellant while arguing the matter has very candidly stated that the offence against Ghulam Shabbir is covered under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
10. Learned counsel for the State could not controvert this submission. Consequently, the conviction of the appellant is converted from section 10(3) of the Ordinance to that under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and he is sentenced to five years' R.I. Plus fine of Rs,5,000 or in default whereof to further undergo R.I. For six months. The fine if recovered should be paid to Mst. Tasleem Akhtar as compensation. The appellant is also entitled to the benefit of section 382-B, Cr.P.C. With the above modification in the sentence the appeal is dismissed.
11. Consequently, Criminal Revision No,54/L of 2001 M. Sarfraz v. Ghulam Shabbir and others seeking enhancement of the sentence of the appellant is rejected.
12. In view of the findings recorded by us, hereinbefore, that Mst. Tasleem Akhtar had eloped, of her own free will, with Ghulam Shabbir, learned trial Judge was fully justified to acquit his co-accused.
The appeal filed by complainant (Criminal Appeal No,329/L of 2001) is dismissed.
' The three matters are disposed of in the above terms.