Find a Lawyer

Jail Petition No. 42‑R of 1982, decided on 28th June, 1983.

(On. appeal against the judgment of Peshawar High Court in Jail Cr. Appeal No. 157 of 1980, dated 24‑2‑1982 and against Criminal Appeal No. 5311 of 1982).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑

‑‑ [As amended by Offence of Zina (Enforcement of Hudood) (Amend ment) Ordinance (XX of 1980), S. 21, S. 20‑By virtue of amendment appeal from order of Sessions made to lie before Federal Shariat Court‑Sessions Judge convicting and sentencing accused before amend -ment Appeal, held, competently entertained by High Court, amendment being not retrospective effect.

Federation of Pakistan v. Muhammad Siddique 1980 S C M R 443 fol.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑

‑‑ S. 10 (3)‑Constitution of Pakistan (1973), Art. 185(3) Leave to appeal‑Zina‑bil‑Jabr‑ Statement of prosecutrix and her mother supported by medical evidence, Chemical, Examiner s Report and incriminating recoveries made soon after occurrence‑‑Case, against accused, held, established‑Leave refused in circumstances.

K. E. Bhatti, Advocate Supreme Court for Petitioner.

Mian Ajmal, Asstt. A.‑G. (N.‑W. F. P.) for the State.

Date of hearing : 28th June, 1983.

SHAFIUR RAHMAN,

J.‑The petitioner, a convict under section 10 (t) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, seeks leave to appeal from jail against his conviction and sentence which was main trained in appeal by the Peshawar High Court by its judgment dated 24‑2‑1982.

The case against the petitioner was that on the morning of 29‑11‑1979 Mil. Farhat Bibi aged about 10 or 11 years was proceeding from her house in Haripur for fetching. milk. The petitioner who had a shop close to her house intercepted her, forcibly carried her inside the room and committed rape on her. After being released by him the girl went to the shop for bringing milk and returned to the house. On inquiry by her mother Mst. Safia Sultan (P.W. 3) for being late she disclosed what had happened to her. They contacted M. Ayub A. S. I. who recorded a report on the statement of Mst. Farhat Bibi at 11‑45 a. m. and sent it for registration of the case. A number of incriminating articles were recovered in the case. The cot on which rape had been committed had blood stains. The ropes thereof were cut and taken into possession and so was the shalwar of the victim of rape and that .of the appellant.

The appellant was arrested on the 2nd of December, 1979. Mst. Farhat Bibi was medically examined by Dr. Mumtaz (P. W. 8) who found her hymen torn and severe bleeding from vagina. The appellant denied the allegations of the prosecution and stated that he had been providing maintenance and financial help to Mst. Farhat Bibi through her parents in the hope that she would be betrothed to him but she was given in marriage elsewhere and he was falsely implicated in the case. He pro duced in defence two witnesses and both of them had nothing to say about the occurrence itself. The trial Court held the case against the petitioner made out under section 11(3) of the Offence of Zina (Enforce ment of Hudood) Ordinance and sentenced him to 10 years' rigorous imprisonment and 30 stripes. The judgment of the trial Court is dated 13‑5‑1980. An appeal was thereafter filed in the Peshawar High Court which was dismissed by a learned Judge on ‑the 24th of February, 1982. The petitioner then filed an appeal in the Federal Shariat Court which was not entertained as it had already been disposed of by the High Court.

The first question that engaged our attention was whether the first appeal filed by the petitioner bad been disposed of by a competent court in accord ance with law. By Ordinance No. XX of 1980 enforced on 21‑6‑1980 section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance was amended and an appeal from an order of the Court of Session under the Ordi nance was made to lie before the. Federal Shariat Court. As in this case's the Sessions Judge had convicted and sentenced the appellant on 23‑5‑1980 before this amendment, the appeal was competently entertained by the High Court of Peshawar as retrospective effect was not given to the amendment. The decision of this court in Federation of Pakistan v. Muhammad Siddique (1980 S C M R 443) is relevant on the point under examination.

As regards the merits of the case, we have noted what has been) said to be a delay in lodging the report, the plea of the appellant of providing maintenance and financial help to the family of the victim and her own possible consent to the intercourse. We find that the statement of Mst. Farhat Bibi, and her mother finds ample support from the medical examination of the victim and the incriminating recoveries mad soon after the occurrence. The 13 pieces of blood‑stained ban and the blood stains found on the Shalwar of the victim were found, on chemical examination, to be human blood and of the same group. The formidable ocular evidence coupled with the corroborative evidence of the doctor and the incriminating recoveries fully established the prosecution case against the appellant and his conviction under section 10 (3) of the Offence of Zin (Enforcement of Hudood) Ordinance was legal and proper. We do no find and feature special to the case which may require further examina tion by this court. Leave to appeal is therefore refused.

M. Z. M. Leave refused.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.