LIAQAT Versus THE STATE
This appeal challenges the conviction of the appellant under Section 10(2) and Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The trial court had sentenced the appellant to ten years' imprisonment for Zina and seven years for enticement. The core legal questions concerned whether the conviction for Zina was sustainable given the prosecutrix's consent and whether the conviction for enticement was valid in the absence of evidence of coercion. The Federal Shariat Court held that while the commission of Zina was established, the evidence indicated the prosecutrix was a consenting adult. Consequently, the conviction under Section 10(2) was maintained, but the sentence was reduced to the period already undergone, and the fine was mitigated. Regarding Section 16, the Court found that the element of enticement was absent as the prosecutrix accompanied the appellant of her own free will; thus, the conviction under Section 16 was set aside. The principle laid down is that where evidence establishes that a prosecutrix is a consenting adult, a conviction for Zina may be upheld, but a conviction for enticement cannot be sustained without proof of coercion or abduction.
- Can a conviction under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 be sustained if the prosecutrix accompanied the accused of her own free will?
- Is the sentence for Zina under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 subject to reduction if the prosecutrix was a consenting adult?
- Does the acquittal of co-accused based on the unreliability of a witness necessarily invalidate the conviction of the remaining accused for Zina?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979
- Section 382-B, Code of Criminal Procedure 1898
This appeal is directed against the judgment dated 28-5-2003 passed by Mr. Wamiq Javed Additional Sessions Judge, Samundri (Faisalabad), whereby Liaqat alias Lalu Masih was convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), and sentenced him to undergo imprisonment for ten years and to pay a fine of Rs.40,000 or in default of payment of fine to suffer further three months' S.I. The appellant has also been convicted under section 16 of the Ordinance and sentenced to suffer seven years' R.I. and also to pay a fine of Rs.40,000 to be paid to the victim, or in default of payment of fine to suffer further S.I. for three months. Both the sentences awarded to the appellant were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was extended to him.
2. According to the prosecution version, the appellant Liaqat alia Lalu Masih used to tease Mst. Siddiquan Bibi, the abductee. On 8-4-2001 at about 8-00 p.m. Mst. Shehnaz Bibi wife of Gulzar Masih, came to the complainant's house. She enticed away Mst. Siddiquan Bibi on the pretext of taking her out for easing. As she did not return for quite some time the complainant got worried, he started the search and during course of search Shoukat and Abdur Rashid, his co-villagers, informed him that they saw Liaqat alias Lalu Masih, the appellant, Mst. Shahnaz Bibi, Irshad alias Babli, Razzaq alias Doodi and Javed Masih were taking away Mst. Siddiquan Bibi in a red colour pick up. The complainant oncoming to know that his daughter had been abducted by the appellant and his co-accused demanded restitution of his daughter, but they kept on postponing the return of his daughter on one or the other pretext.
3. The occurrence took place on 8-4-2001 while the matter was reported to police on 13-4-2001, i.e. after about one week. The local police carried out the investigation' and on conclusion sent up five accused namely Liaqat alias Lalu Masih, the appellant, Razzaq Masih alias Doodi, Irshad Masih, Javed Masih and Mst. Shehnaz Bibi to face trial.
4. The learned trial Judge after holding the trial found the four accused except the appellant Liaqat alias Lalu as not guilty, they were accordingly acquitted. As against the appellant Liaqat Masih it was found that there was statement of the complainant alleging that he had committed sexual intercourse with her. Her statement was supported by the medical evidence that she had been subjected to illicit intercourse. Although the complainant levelled the allegations of commission of Zina against all the accused except Mst. Shahnaz Bibi, yet the learned trial Judge did not find sufficient evidence to convict them.
5. The learned defence counsel has argued that the complainant has not come forward with true statement. She has falsely implicated four of the appellant's co-accused, therefore, she being witness of unworthy of credit should not have relied upon against the appellant as well. He has further argued that it has come on record that Mst. Saddiquan Bibi had joined the appellant Liaqat Masih of her own accord. She had previously been also coming to Liaqat but was subsequently, got retrieved by the complainant party.
6. The arguments may have a force, but the fact remains that commission of Zina stands established. The facts and circumstances of the case abundantly reflect that Mst. Siddiquan Bibi was a consenting party. Her age has been given by the doctor as 19 years, therefore, the learned trial Judge has rightly convicted the appellant under section 10(2) of the Ordinance.
7. The learned counsel adopted his alternate argument for reduction in sentence. According to him the appellant is young man aged about 22 years. Similarly Mst. Siddiquan Bibi as per observation of the lady doctor was 18 years of age. She was also adult. She had not been proceeded against although she was party to the act, therefore, the sentence awarded to the appellant alone under section 10(2) of the Ordinance to suffer 10 years' R.I. with a fine of Rs.40,000 or in default of payment of fine to suffer further S.I. for three months, is excessive and does not commensurate with the gravity of the offence.
8. The plea is not without force, the sentence in the circumstances appears to be severe. The same is, therefore, reduced to the term of imprisonment already undergone, which as perk, record comes to two years and 10 months. The appellant has been fined to pay Rs.40,000. He is pauper as evident from the fact that he could not pay Rs.40,000 is reduced to Rs.5,000 or in default thereof to suffer three
9. The appellant has been convicted under section 10(21 of the Ordinance, as from the prosecution evidence it is reflected that she (complainant) accompanied the appellant of her own free will and consent. The element of enticement is lacking, therefore, the appellant's conviction under section 16 of the Ordinance cannot be sustained. The same is set aside.
10. The appeal stands disposed of in the above terms.
H.B.T./62/FSC Order accordingly.