' S.A. MANAN, J.---In this joint Appeal No,65/I of 2003 filed by Gulsher and Saif Ullah, the learned Additional Sessions Judge, Faisalabad by judgment dated 12-12-2002 convicted the appellants under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced them for six years' R.I. With fine of Rs,50,000 and in default to further undergo six months' S.I. Each.
' Accused Gulsher was also convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced for 18 years' R.I.
2. The prosecution case is explicit in complaint dated 2-2-2000 by the complainant Mst. Tanveer Akhtar. According to her two and half months before the complaint, Nasir Abbas, one of her relations, living in front of her house, visited her and misbehaved/teased her, whereupon she reprimanded him and the said person bore grudge and towards the complainant. It is also stated in the complaint that Gulsher accused was the friend of this Nasir Abbas and they were on visiting terms. It is also in the complaint that on 28th of January, 2000 at about 8-30 p.m. She received a telephone call of Akhter Abbas for his brother Nasir Abbas, who was called and the latter attended the telephone. According to the complainant on that very evening some guests had come to meet her father for whom tea was arranged. In the meanwhile Mst. Naseem Akhter (sister of Nasir Abbas and Akhter Abbas) called her outside and when she reached the gate of the house she saw Nasir Abbas accused standing there. He called Gulsher and Saif accused, who forcibly abducted the complainant and she was made to sit on a motorcycle with her mouth gagged. Gulsher accused sat on the motorcycle behind the complainant and threatened her to kill with pistol.
3. The accused persons took the complainant to Pir-Da-Kot, Tehsil Chiniot, where she was detained for two days and Gulsher accused was committing Zina-bil-Jabr with her and on third day, she was luckily escaped from the clutches of the accused and in the way she met her father (Noor Zaman), Umer Draz and Bahawal Sher who were already in the search of the complainant. She narrated the whole incident to her father. The complaint is Exh.P.A. F.I.R. No,92, dated 2-2-2000 was registered at Police Station Chak Jhumra, District Faisalabad The occurrence has been repeated time and again by the trial Court in its impugned judgment.
4. On 15-5-2002 charge-sheet under sections 16 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was framed against Gulsher, Saif Ullah and Akhter Abbas accused but they did not plead guilty and claimed trial. Few days thereafter, another charge-sheet was framed on 13-6-2002 including Nasir Abbas and her sister Mst. Naseem Akhtar but they did not plead guilty and claimed trial.
5. Evidence was recorded in this case, which consists of P.W.1 to P.W.12. On behalf of Gulsher accused D.W.1 Pervaiz Iqbal, A.S.-I. Was also examined.
6. After the occurrence took place the case was investigated by P. W.11 Muhammad Ayub, S.- I./S.H.O. Police Station City Summandari, who proceeded to the place of occurrence, inspected the spot and prepared the site-plan. He arranged medical examination of the complainant Mst. Tanvir Akhtar at Civil Hospital, Chak Jhumra, District Faisalabad by P.W.6 Dr. Nuzhat Afzaal Cheema. This lady doctor obtained three vaginal swabs, sealed and bottled and handed over the same to the Investigating Officer for transmitting to the Chemical Examiner, Lahore.
7. Gulsher was arrested and on 6-7-2000 at his disclosure and pointation Motorcycle No,LHU-5395 Honda CD-70 was recovered by the Investigating Officer vide recovery memo. Exh.P.E. Duly attested by Faiz-ul-Hassan, A.S.-I., Police Post Arorri and P.W.7 Sajjad Ahmed C/486. On 2-7-2002 on the disclosure and pointation of Gulsher, pistol .30 bore was recovered vide recovery memo. Exh.P.G.
Duly witnessed by P.W.3 Bashir Ahmed C/2732 Police Post Arorri and Noor Ahmed C/4043 Police Post Arorri. Both P.W.3 and P.W.7 appeared in trial and certified the recoveries of the motorcycle and the pistol respectively. They were subjected to lengthy cross-examination but nothing tangible came out against the prosecution. The Investigating Officer also recorded the statement of P.Ws.
Under section 161, Cr.P.C. And found the accused persons guilty and thereafter challan was put up for the trial of the accused persons.
8. P.W.9 is Mst. Tanvir Akhter complainant/victim who narrated her tale of woe as to the manner she was abducted and thereafter subjected to Zina-bil-Jabr. She deposed that "on the same day i.e, 28-1-2000 at about 9-30 p.m. I heard a voice outside the house and I went outside to know the situation. I found Saif and Gulsher accused present in the court standing there alongwith motorcycle. Gulsher accused present in the court drew out pistol and made me to sit on the motorcycle on pistol point. Saif accused present in the Court rode the motorcycle Honda CD-70.
They took me to Pir-Da-Kot which is situated in Tehsil Chiniot. They kept me there for two days.
Then Gulsher accused committed Zina-bil-Jabr with me on pistol point. When I got a chance and escaped from the room where I was detained. Then Umer Draz, Bahawal Sher and Noor Zaman met me near old Doulowal. The abovesaid Umer and others brought me to my house and I told the whole occurrence to them who were in ,search of me. I was in the way of police station when the police came across me near Chak No,43, Perrowana where I made my statement Exh.P.A. Which was read over to me and I signed the .Same in token of its correctness. I was medically examined."
9. The victim was examined on 30th October, 2002 but she was recalled on 4-11-2002 and was subjected to very lengthy cross-examination but her veracity could not be shattered in spite of plethora of questions. The learned defence counsel confronted the victim with her statement Exh.P.A. And some of the statements made therein have wrongly been found by the learned trial Court having not been recorded. For instance, she recorded in her statement Exh.P.A. That "I found Saif and Gulsher present in the courtyard standing outside alongwith motorcycle". Similarly there was no contradiction when the victim made her statement that "I stated before the police in statement Exh.P.A. That Gulsher accused present in the courtyard drew out pistol and made me to sit forcibly on the motorcycle on pistol point". The learned trial Court has wrongly mentioned that this statement was not recorded in Exh.P.A. Precisely most of the statements were recorded in Exh.P.A. And the learned trial Court has wrongly found them having not been recorded on confrontation. This goes to show that the defence has not been able to point out any major discrepancies or contradictions in statement of the victim. The complainant in her cross- examination clearly stated that "the accused persons took me to the house of Saif and passed through congested areas which fell on the way to that house. It was dark night and I do not know that the house of Saif was surrounded by other houses". It is further stated by the victim that "the accused persons kept me there for two days and two nights. They did not allow me to go out. The accused persons stayed with me throughout this period. I told the police the way I escaped from the custody of the accused. It' is incorrect to suggest that I am deposing falsely in this respect. The distance between the place from where I had escaped and the place where I met my father and others' is 1-1/2 acres. Again said 1-1/2 miles or 1-1/2 Km. I had escaped from the custody of the accused Saif at about 3-00 or 4-00 p.m."
' The aforementioned cross-examination of the victim unmistakably shows that she was telling the truth and it strengthens the case of the prosecution that the victim was subjected to Zina-bil-Jabr and on this issue the defence was not able to shatter the veracity of the witness but by cross- examination has reaffirmed the statement of the victim given in Exh.P.A.
10. P.W.10 is Umer Draz, who on 28th of January, 2000 was present on the Dera of Noor Zaman (father of the victim) alongwith Bahawal Sher and at the time of leaving the Dera, he saw the occurrence. He deposed that "on 28-1-2000 at about 9-30 p.m. I was present on the Dera of Noor Zaman alongwith Bahawal Sher. When we were about to leave, I heard cries raised by Mst. Tanvir Akhter. When we reached the gate, we found in the electric light of bulb, Saif and Gulsher alongwith motorcycle. Gulsher accused present in the courtyard forcibly made to sit Mst. Tanvir Akhter on the motorcycles and took her away. We raised alarm and Gulsher threatened that he would kill, who intervened. He was armed with pistol. He made the threats on pistol point. The accused Saif and Gulsher took Mst. Tanvir Akhtar sitting on the motorcycle in the middle of them and went towards Jhang Branch Canal". This witness was also cross-examined at length but all in vain and nothing could shatter the case of the prosecution.
11. P.W.5 is Dr. Abdul Shakoor, Deputy District Health Officer, Jaranwala, who on 6-7-2000 medically examined accused Gulsher son of Muhammad Ali aged about 30 years and found him potent and fit to perform sexual intercourse.
12. P.W.6 is Dr. Nuzhat Afzaal Cheema, ex-W.M.O., R.H.C. Chak Jhumra, who medically examined the victim and on examination she found "Vagina healthy. No sign of tear or blood. Hymen torn. Fresh tear. Admits one finger. She has been used for sexual intercourse. Three vaginal swabs taken, sealed and bottled, handed over to the police for transmission to the office of the Chemical Examiner, Lahore for detection of semen". Exh.P.C. Is the medico-legal report prepared by P.W.6.
Exh.P.F. Is the positive report of the Chemical Examiner with the result that the swabs sent to him are stained with semen.
13. After evidence, the statements of the accused persons under section 342, Cr.P.C. Were recorded.
' Gulsher accused in his statement under section 342, Cr.P.C. Denied all the charges, one by one and in response to Question No,10 he replied that "It is a false case and the P.Ws. Are highly dishonest and interested witnesses". He further replied in response to Question No,11 that my family and that of Saif Ullah accused are inimical towards each other having long standing enmity and there was no question that they would join together.
' Saif Ullah accused in response to Question No,8 answered in the following manner:-- "The complainant and the P.Ws. Even do not know me as they had stated in their statements. They have not alleged me for abduction or committing Zina. I have been falsely implicated in substitute of Saif son of Barkhudar who is resident of Pir-Da-Kot, Tehsil Chiniot. I am not resident of PirDa-Kot but I reside in Abula, Tehsil Chiniot, District Jhang as mentioned in my N.I.C. The complainant has given up the actual culprit because of political expediencies as the real culprit is the relative of influential political family of Rajuas of Sadat in the locality and on their asking the real culprit has been given up, instead I have been falsely included as the prosecution story needed a motorcycle driver. Nor I have any motorcycle neither any recovery of motorcycle has been effected from my house whereas the allegation against me is of driving the motorcycle. I do not know how to drive a motorcycle nor I have participated with anybody to abduct Mst. Tanvir Akhter. Further that I know nothing about it."
14. D.W.1 Pervaiz Iqbal, S.-I. Was also examined by Gulsher who stated that the latter was involved in a murder case F.I.R. No,269/232 under sections 302, 452, 324, 109 and 34, P.P.C. Police Station Saddar, Chiniot, District Jhang.
' This D.W. Was produced in order to show enmity of the accused Gulsher with the complainant party but it was not proved from the statement of D.W.1. It is stated by this D.W. That the complainant in the above case was Nasir Ali son of Zulfiqar, caste Naikokara, resident of Chak No,465/JB, Tehsil Chiniot.
15. At the time of appeal, learned counsel for the appellant vehemently argued that the recoveries in this case are doubtful and cannot be admissible in evidence because it does not fulfil the requirements of section 103, Cr.P.C. Where search has to be made in presence of witnesses.
However, the case of the appellant does not come within the ambit of section 103, Cr.P.C. As recoveries in this case have been made in consequence of information and pointation of the accused and in that case the provisions of section 103, Cr.P.C. Would not apply. This is so held in (1)
Muhammad Maskin v. Satbar Khan 2001 PCr.LJ 1932, (2) Mir Muhammad v. The State 1994 SCMR 614,
(3) The State v. Shanker '1997 SCM R 1000 and (4) Muhammad Akber v. The State 1995 SCM R 693.
' It has been held in Para. No,7 of the judgment (1) that "the pistol Exh.P.1 was recovered at the behest of the respondent who had himself led the police party to the place of recovery and got the weapon of offence recovered. In these circumstances mere non-compliance of the provisions of section 103, Cr.P.C. Cannot be made a ground for discarding the recovery". In case of Mir Muhammad v. The State 1994 SCMR 614 the Honourable Supreme Court was pleased to hold: "The plain reading of section 103, Cr.P.C. Would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused which is relevant under Article 40 of the Qanun-e- Shahadat, 1984. locality is not required in a case where the accused himself leads the police to a particular place and gets the article recovered". In Yousaf v. The State and another 2000 PCr.LJ 1386 Peshawar DB, the ratio decidendi is the same. In this view of the matter, the plea of the learned counsel for the appellant challenging the recoveries as doubtful or inadmissible loses all force and the plea is liable to be rejected.
16. The learned counsel for the appellant has further emphasized that the occurrence took place on 28th of January, 2000 while the victim was examined on 2-2-2000 with a gap of about five days and there was no possibility of the semen in the vagina and therefore, the medical evidence, in these circumstances, does not help the prosecution story. He has relied upon certain observations of P.W.6 Dr. Nuzhat Afzaal Cheema stating in cross-examination that "Fresh tears means within a week. By within a week I mean within two or three days". This statement of the lady doctor in cross- examination does not at all help the accused and the plea of the learned counsel is misleading. In Mst. Tahira Khanum and 2 others v. The State 1990 ALD 62(2) it has been noted in the last of Para. No,3 referring to the statement of doctor that semen can stay in vagina up to 21 days. Similar in Mst.
Sharman v. The State 2002 PCr.LJ 831 it has been noted that it is a known phenomena/preposition that semen remains active and alive up to 17 days at the best. This finding was based on the opinion of the doctor. The plea of the learned counsel on the question of semen is also rejected in view of the settled law.
17. Learned counsel lastly submitted that the prosecution has failed to prove its case and there was no possibility of the two accused Gulsher and Saif Ullah joining hands together. This plea has not impressed us firstly that there is enough evidence on record including eye-witnesses where it has been proved beyond any shadow of doubt that Gulsher accused committed Zina-bil-Jabr with the victim in the facts and circumstances narrated above and there was no contrary evidence to rebut the same. Even the accused persons have not made any statement under section 340(2), Cr.P.C.
And failed to produce a plausible defence in their favour. By producing evidence from all angles, the prosecution has succeeded in proving the case.
18. We have gone through the record and the entire evidence and also statement of the accused under section 342, Cr.P.C. Including the statement of D.W.1 and have come to an irresistible conclusion that the accused Gulsher and Saif Ullah have committed the offence under sections 16 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. We have further gone through the judgment of the trial Court, which has scanned the entire evidence with due care and caution and have also examined every aspect of the case and we have not come across any legal infirmity in the impugned judgment.
19. However by our short judgment dated 15-10-2003 the sentence of eighteen years' R.I. Awarded to Gulsher under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was reduced to fifteen years' R.I. The conviction and sentence inflicted on both the appellants i.e, Gulsher and Saif Ullah under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is maintained. Both the sentences and imprisonments shall run concurrently with benefit of section 382-B, Cr.P.C.
20. With the above modification of sentence from eighteen years' R.I. To fifteen years R.I. Under section 10(3) of the Offence of Zina (Enforcement of Hudood) E Ordinance, 1979 against the appellant Gulsher, the appeal is dismissed and rest of the conviction and sentence to both the appellants are maintained.