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Criminal Appeal No. 24 of 1983 and Criminal Revision No.195 of 1980 (D.O.), decided on 30th September, 1986.

‑‑‑S. 366‑‑Sentence, reduction in‑‑Accused faced trial for a fairly long time and appeal disposed of after about more than seven years of conviction‑‑Accused also remained in jail for about one year, four months and 10 days‑‑Sentence reduced to imprisonment already undergone, in circumstances.

Azizullah K. Shaikh for Appellant.

Makhdoom A . Wali for the State.

Date of hearing: 30th September, 1986.

The prosecution case in brief is that on 16‑9‑1978 P.W. Imam Bux lodged a report on the allegations that he was sleeping with his wife P.W. Mst. Suhagan. His father and other family members were also present in the house. The appellant Usman armed with gun, Ghulam Rasool, Mitho and Hassan armed with hatchets and Lathis entered the house and abducted Mst. Suhagan. Upon the intervention of Imam Bux accused Usman fired two gun shots in the air while the rest of the accused belaboured P.W. Imam Bux and ran away from the Wardat alongwith the abductee. Alarm was raised by P.W. Imam Bux. Brother of Imam Bux attracted to the Wardat and saw the incident. P.Ws. Muhammad Juman and Ghulam Sarwar also came there. P.W. Muhammad Hassan was deputed to inform P.W. Haji, uncle of Imam Bux who arrived in the house. After usual investigation, the appellants were sent up to face their trial. In support of the prosecution case P.Ws. Imam Bux. Hassan, Muhammad Juman, Mst. Suhagan, Haji, Kamal Khan. Muhammad Shah, Dr. Abdul Khaliq were examined while the other witnesses were given up. The accused/ appellants denied the prosecution allegation. They also examined the witnesses in defence.

2. The appellants were convicted by the learned Assistant Sessions Judge, Dadu under section 366, P.P.C. and sentenced to suffer R.I. for three years and to pay a fine of Rs.500 each in default to suffer R.I. for six months. They were also convicted under section 323/34, P.P.C. and sentenced to undergo R.I. for one year and fine of Rs.100 each in default to undergo R.I. for three months. They were also convicted under section 452, P.P.C. and sentenced to undergo R.I. for two years and fine of Rs.100 each in case of default to undergo R.I. for three months. They were further directed to pay compensation to P.W. Imam Bux in the sum of RS.200 each under section 544‑A, Cr.P.C. in case of default to undergo R.I. for six months. The sentences were directed to run consecutively.

An appeal was filed against the said convictions which was disposed of by the Additional Sessions Judge. The appeal was dismissed but the sentences were ordered to run concurrently. Against the said judgment a revision application was filed in this Court 'and it was accepted on the ground that the learned Additional Sessions Judge had no jurisdiction to hear the appeal. Thereafter appeal was filed in this Court.

Conviction of the appellants rests on the direct evidence of the abductee, Mst. Suhagan who had been secured by the police during the investigation and the other eye‑witnesses. The complainant and the eye‑witnesses have fully implicated the appellants and have corroborated the prosecution allegations. Mst. Suhagan has clearly stated that she was married to Imam Bux and on the day of incident the accused persons entered the house. They assaulted her husband and forcibly took her with them. She has also given the description of the weapons with which the accused were armed. She has further stated that all the four accused used to live with her at Hyderabad and accused Ghulam Rasool had committed rape upon her against her consent. The police had recovered her from the custody of the accused.

3. Leaned counsel for the appellants has not challenged the statements of the witnesses examined at the trial. The witnesses are consistent in their statements. From the statements of these witnesses it is clear that the case against the appellants has been established beyond all reasonable doubt. The complainant has received the injuries. Wife of the complainant was abducted. Though she has alleged that rape had been committed upon her but the conviction was not recorded under section 376, P.P.C. and at this belated stage, it would be an exercise in futility to re‑examine the entire case for the purpose of recording conviction under section 376, P.P.C. particularly in view of the fact that no notice of enhancement has been given. The appellants were arrested on 20‑3‑1978 and they had faced the trial for a fairly long time. As stated above the conviction is based on evidence and the learned counsel has not attacked the decision of the trial Court on merits. He, however, requested that the mitigating circumstances in the present case are that the appellants had to face the trial for a fairly long time. Mr. Makhdoom Abdul Wali learned counsel appearing for the State has also not opposed the prayer of the counsel for the appellant for reduction of sentence. The chequered history of the case would show that the appellants were convicted by the trial Court on 27‑5‑1979, thereafter, their appeal was disposed of by the Additional Sessions Judge who had no jurisdiction in the matter and the appellants had to approach this Court by filing a revision application. The revision application was allowed and thereafter, the appellants had to file appeal against the conviction which was recorded on 27‑5‑1986. The appeal is being disposed of today that is after about more than seven years of conviction. The appellants have remained in jail for about one year four months and 10 days. I, therefore, reduce the sentence under section 366/34. P.P.C, to one year four months and ten days and under section 323/34, P.P.C. to R.I. for one year. Their sentence under section 452, P.P.C. is also reduced to one year. The fine imposed by the trial Court on each count shall remain the same and in default' shall undergo the sentences as imposed by the trial Court. The amount of compensation as directed by the trial Court under section 544‑A, Cr.P.C. shall be paid to injured P.W. Imam Bux. With this modification in substantive sentences the appeal stands dismissed.

S. G. D. Order accordingly.

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