MUHAMMAD RAMZAN Versus State Malik Muhammad Imtiaz Mahl

MUHAMMAD ZAFAR YASIN, J.--- Through this appeal, appellant Muhammad Ramzan has challenged his conviction and sentence recorded by the learned Additional Sessions Judge, Sargodha vide judgment dated 23-11-2004 whereby the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years' R.I. with benefit of section 382-B, Cr.P.C.

2. According to the FIR. lodged on 26-4-2004 by Mst. Uzma Shehzadi aged 14/15 years regarding even dated occurrence, reads as under: ---

"Mst. Uzma Shehzadi was student of 5th class in Government Girls Middle School, Chak No.34-NB. On 26-4-2004, at 12-00 noon, during interval time she went to see her friend namely Mst. Safia whose house is quite adjacent to the school, accused Muhammad Ramzan brother of Mst. Safia was present there who caught hold of her; took her inside the room, put off her Shalwar and committed Zina-bil-Jabr with her. On her raising hue and cry, her father Sher Muhammad and Khalid were attracted at the spot. On seeing them the accused fled away."

Hence above noted F.I.R. was registered on the same day.

2-A. After registration of the case, the Investigating Officer started the investigation of the ease and got the victim medically examined from Dr. Misbha Abu Bakr, W.M.O. P.W.9 and further recorded the statements of witnesses under section 161, Cr.P.C. and prepared the Site-plan. The accused was arrested on 29-4-2004 and he was also got medically examined for determination of his potency. After completion of the investigation, the accused Muhammad Ramzan having been found guilty, was challaned to face trial. The learned trial Court charged the appellant for commission of offence punishable under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The accused denied the charge and claimed the trial. To prove its case, the prosecution produced nine witnesses and also tendered in evidence Exh.P.A. to Exh.P.J. After conclusion of the prosecution evidence, statement of the accused was recorded under section 342, Cr.P.C. wherein the appellant took the plea that false case has been concocted against the appellant because the father of the prosecutrix wanted to black-mail the appellant to make money.

3. On the basis of the prosecution evidence, the learned trial Court has been pleased to convict the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years' R.I. with benefit of section 382-B, Cr.P.C. Hence this appeal.

4. Learned counsel for the appellant has argued that there are mitigating circumstances in this case and the learned trial Court did not take into consideration mitigating circumstances while awarding the sentence. Learned counsel further argued that the appellant is the first offender aged 19 years at the time of occurrence and the only bread-winner of his family as his brother and sister are creepers and his parents are of advanced age. Further argued that the medical evidence does not show that the victim was subjected to Zina-bil-Jabr by the appellant as there has been no blood grouping of the appellant and that of semen stained swabs.

5. On the other hand, learned D.P.G. has argued that the prosecution has proved its case beyond shadow of doubt, therefore, evidence of the victim aged 14/15 years fully corroborated by medical evidence as well as the positive report of the Chemical Examiner. Hence conviction and sentence awarded to the appellant is in accordance with law.

6. Heard. Record perused.

7. No doubt through ocular evidence, the evidence of Dr. Misbah Abu Bakr P.W.9 who had medically examined the victim on the day of occurrence, as well as the positive report of the Chemical Examiner and the evidence of the victim P.W.5, the prosecution has proved its case beyond shadow of doubt against the appellant, therefore, his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is in accordance with law and does not call for any indulgence. However, the sentence of ten years' R.I. recorded by Additional Sessions Judge, Sargodha under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide judgment dated 23-11-2004 needs consideration by this Court. The learned trial Court has not taken into consideration the fact that accused/appellant was a teenager at the time of occurrence and had no previous criminal history. In view thereof, I believe that the ends of justice would be served if the sentence awarded to the appellant is reduced from ten years' R.I. to five years' R.I. Therefore, the sentence of the appellant Muhammad Ramzan is reduced from ten years' R.I. to five years' R.I. The appellant shall also be entitled to benefit of section 382-B, Cr.P.C.

8. With above modification in sentence, this appeal is dismissed.

H.B.T./29/FSC Appeal dismissed.