PLJ 2005 FSC 12

[Appellate Jurisdiction]

Present: Saeed-ur-Rehman Farrukh, J.

GHAFOOR--Appellant

versus

STATE--Respondent

Jail Crl. Appeal No. 158/I of 2003, decided on 29.1.2004.

Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (VII of 1979)--

----S. 10(2) Pakistan Penal Code, (XLV of 1860) Ss. 337-A (ii), 337-F(i), 452--Conviction and sentence--Challenge to--Acccused had trespassed into house of complainant and committed Zina-bil-jabr under threat of Life--Accused had been secured and he attacked PW with knife causing injury on head--No previous enmity between parties which could have provided motive for false involvement of accused--Held : Accused was rightly convicted by trial Court--Co-accused had been acquitted by trial Court on basis of benefit of doubt--Their acquittal were not challenged by state--Accused had already suffered a great deal in prolonged trial and incorporation in jail after conviction for about 2 year--Sentence u/S. 10(2) is reduced to that already under gone--Recovered amount shall be paid to victim as compensation--Further held: Accused is also liable to pay as Arsh in terms of 337-A II of P.P.C.--Appeal dismissed.

[Pp. 13 & 14] A, B, C, D, E, F

Mr. M. Saliheen Mughal, Advocate for Appellant.

Mr. Ch. Muhammad Rafaqat Ali, Advocate for State.

Date of hearing : 29.1.2004.

Judgment

This appeal from jail is directed against the judgment dated 10.1.2002 passed by Additional Sessions Judge, Okara whereby the appellant Abdul Ghafoor was convicted for Offence under Section 10(2) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (Hereinafter called the "Ordinance") and sentenced to 7 years R.I.; convicted under Section 452 Pakistan Penal Code and sentenced to 7 years R.I and also convicted under Section 337-A/II. Pakistan Penal Code and 337-F/I Pakistan Penal Code and sentenced to 3 years S.I and one year S.I respectively. Vide same judgment co-accused of the appellant namely Zahoor, Mansha and Mahabat were acquitted.

2. Prosecution story, in nutshell, as disclosed in FIR (Ex. PA) dated 12.11.1999, lodged by Mst. Tahira Bibi PW. 1 at Police Station Chuchak, Distt. Okara is that four years ago she was married to one Zahoor and two children were born out of the wedlock. On the night between 10/11 of Nov, 1999 she was asleep in the house and at about 2/3 a.m there was a knock at the door. The complainant opened the door and was confronted with Abdul Ghafoor appellant, armed with a knife. Under threat of life he committed zina-bil-jabr with her. While he was trying to slip away the complainant raised alarm and he was apprehended by her husband, brother-in-law and father-in-law. The appellant attacked the brother-in-law of the complainant with his knife hitting him on his head. It is at that stage that the co-accused of the appellant came there and forcibly got released the appellant and all of them ran away.

3. After investigation, all the four accused, above-mentioned, inclusive of the appellant were challaned to Court.

They were charge sheeted by the trial Court. They pleaded not guilty and claimed to be tried.

4. At the trial, the prosecution produced ten witnesses, out of whom, statements of Muhammad Ishaq PW.7, Khadam Hussain PW.8, Azhar Hussain PW.9 are of formal nature.

5. Mst. Tahira Bibi PW.1 entered the witness box and deposed about the occurrence, as divulged in the F.I.R. She was cross-examined at some length to no use for the defence.

Falak Sher PW.2 and Muhammad Khan PW.3 duly supported her about the alleged occurrence. Muhammad Khan PW.3 also narrated about the receipt of injury by him, at the hand of the appellant, through knife. Their statements are also consistant and inspire confidence.

6. Lady Dr. Shagufta Yasmeen PW.5 deposed about the medical examination of the victim Mst. Tahira Bibi PW.1. According to the witness the victim was subjected to sexual intercourse. At this stage, it may be mentioned that the report of chemical examiner was in the positive (Ex. PH).

7. Dr. Muhammad Hussain PW.11 examined the appellant and found him to be fit to perform sexual intercourse.

8. I have heard the learned counsel for the parties and perused the record. It is established on record through unimpeachable evidence of Mst. Tahira Bibi, Muhammad Khan and Falak Sher PW.1, PW.3 and PW.2 respectively that the appellant, at the dead of the night trespassed into the house of the complainant and committed zina-bil-jabr with her under threat of life. When the complainant raised hue and cry, the inmates of the house woke up and they had almost secured the appellant when he attacked Muhammad Khan with knife causing injury on his head, as deposed about by Dr. Muhammad Hussain PW. 11, vide MLR Ex. PG/1. It is thus that he managed to make good his escape. The plea taken by the appellant in his statement under 342 Criminal Procedure Code that he had been involved due to enmity and that Mst. Tahira Bibi used to extort money from him is nothing but sheer concoction. There is no proof in support of this plea on the record. Though he offered to lead defence evidence but failed to do so.

There is no previous enmity between the parties which could have provided motive for false implication of the appellant.

9. In my considered view the appellant was rightly convicted by the trial Court for offences under Section 10(2) of the "Ordinance", and 337-A/II, and 337-A/I read with Section 452 Pakistan Penal Code.

His co-accused were given benefit of doubt by the trial Court and acquitted. State has not challenged their acquittal and in my view, rightly so, as there was no incriminating material on record to connect them with the crime.

10. However, I find that the sentence awarded to the appellant under Section 10(2) of the "Ordinance" is rather harsh. Keeping in view the fact that the appellant had already suffered a great deal in the prolonged trial and also incarceration in jail after conviction for about 2 years, the sentence under Section 10(2) is reduced to that already undergone. He is however, fined Rs. 5,000/- or in default suffer three months S.I. The amount of fine, if recovered shall be paid to Mst. Tahira Bibi victim as compensation. The sentence of 7 years under Section 452 Pakistan Penal Code is reduced to three years R.I.

11. While maintaining the substantive sentences under Section 337-A(II) and 337-F(I) and the reduced sentence under Section 452 Pakistan Penal Code, it is held that the appellant is also liable to pay a sum of Rs. 13,000/- as Arsh in terms of 337-A(II) of Pakistan Penal Code. This amount shall be recovered as arrear of land revenue from him and paid to Muhammad Khan PW.3.

12. With the above modification in the sentences, the appeal is dismissed.

(R.A.) Appeal dismissed.