JAVID and others vs THE STATE

' This judgment will dispose of Criminal Appeal No, 1276 of 1999 passed by C.M.S. Shad Special Judge, Anti-Terrorism Court No, III, Lahore on 10-12-1999 whereby he convicted all the three appellants under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, '1979 and sentenced all the appellants to undergo life imprisonment with fine of Rs, 50,000 each, in default to further undergo three months S.I. Each. All the three appellants were also awarded punishment of whipping 30 stripes each. All the three appellants were also convicted under section 18/10(4)/7 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 10 years R.I. Each. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also given to them.

3. The facts in brief as narrated by the complainant Muhammad Aslam in complainant Exh. P. A. Are that on 30-11-1997 there was a marriage ceremony of the daughter and son of Ghulam Rasool in his village. His daughter Mst. Farzana and his niece Mst. Haleema had gone to attend the marriage, they returned to their house at about 10/11 p.m. On their way back they went to ease themselves towards the Hospital. When they were coming back to their house three persons who are appellants in this case, Javaid alias Tikka armed with 12 bore pistol, Khadim alias Khadi armed with pistol and Ahmad armed with Churri, all of a sudden jumped over the wall of the Hospital and blocked the way of the above said girls P. Ws. Khadim extended threats on pistol point that if they would raise alarm, they would be killed. Her daughter Mst. Farzana found the opportunity and made good her escape. They wrapped Mst. Haleema and took her to the Baithak of Javaid alias Tikka in order to commit Zina-bil-Jabr with her. The complainant further submitted that all the appellants/accused attempted to commit Zinabil-Jabr on her but on her weeping and request the appellants did not subject her to Zina.

3. Prosecution in order to prove its case produced as many as 5 witnesses and thereafter the statement of the appellants were recorded under section 342, Cr.P.C. They pleaded innocence and claimed false implication due to political rivalry.

4. Learned counsel for the appellants after going through the statements of the prosecution witnesses and the statements of the appellants submits that learned trial Court had no jurisdiction to try this case, that the learned trial Court was wrong in convicting the appellants under section 10(4) of Offence of Zina (Enforcmeent of Hudood) Ordinance, VII, 1979 because it was not a gang rape, that no offence of committing zina is made out. He adds that in fact the appellants have been falsely implicated in this case on the ground that Muhammad Aslam who is father of Mst.

Farzana was servant of Amin Bhatti who was councilor and was politically opposed to the present appellants. He submits that no case is made out against the appellants.

5. On the other hand learned counsel for the State supported the judgment of the learned trial Court but concedes that no case under section 10(4) of Offence of Zina (Enforcement of Hudood)

Ordinance, 1979 is made out against the appellants.

6. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. As far as conviction under section 10(4) is concerned, it was not a case of gang rape as there was no allegation of gang rape in F.I.R. Or in the statements of Mst.

Haleema and Mst. Farzana before the trial Court, and moreover, it must be noted here that in case of a gang rape sentence which is provided under the law is death but the trial Court has convicted the appellants and sentenced them to undergo 10 years R.I. Under section 10(4) (Enforcement of Hudood) Ordinance, 1979 which is illegal. No case under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is made out so conviction and sentence of the appellants under this section is set aside.

' As far as conviction under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is concerned, it has come on record in the statements of Mst. Haleema and Farzana that both were abducted and kidnapped by the two if the present appellants namely Javaid and Ahmad but while being abducted by the appellants Mst. Farzana ran away while Mst. Haleema was taken to the Baithak of Javaid alias Tikka. I have gone through the statement of Haleema, she has proved the fact of her abduction and same fact is also supported by the statement of Mst. Farzana who had no enmity whatsoever with the appellants so conviction under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is maintained but sentence is reduced from life imprisonment to 7 years R.I. With 5 stripes and fine of Rs, 25,000, in default six months R.I.

' As far as Khadim appellant is concerned, Mst Haleema in cross-examination has exonerated him and stated that he had taken the name of Khadim Hussain appellant at the behest of Muhammad Aslam alias Kaka who is complainant in this case. So far as Khadim Hussain is concerned he is acquitted from all the charges. He be released forthwith if he is not required to be detained in any other case.

Now I take up the case of remaining both the appellants. As far as section 18 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 is concerned, there is no case of attempt of Zina because Mst. Haleema in cross-examination has falsified the story of untying her string of shalwar by the present appellants, so the conviction under section 18 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is also set aside. Benefit of section 382-B, Cr.P.C. Is granted to the appellants. With these modification in convictions and sentences this appeal stands disposed of.