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Criminal Petition for Leave to Appeal No. 8‑R (S) of 1983, decided on 25th June, 1983.

(On appeal from the judgment and order of the Federal Shariat Court, dated 20‑2‑1983, in Criminal. Appeal No. 91 of L of 1982).

----Ss. 10(3) & 16‑Zina‑bil‑Jabr‑Mere fact that prosecutrix, was a married woman and was used to sexual intercourse would not show that she was of bad character‑No element of consent shown Prosecutrix deposing that she was subjected to repeated sexual inter course during her abduction by accused for nearly five months‑Fact that prosecutrix was subjected to sexual intercourse, by itself does not show that she was a woman of bad character‑Conviction of accused under S. IG(3) i.e. Zina‑bil‑Jabr liable to transfer, justified‑Two Courts below relying upon testimony of prosecutrix‑Supreme Court, held, not justified to interfere on question of appreciation of prosecutrix's testimony‑Leave to appeal refused Constitution of Pakistan, (1973), Art. 185(3).

----Ss. 10(3) & 16‑Zina‑bil‑Jabr ‑ Benefit of doubt ‑ Prosecutrix charging co‑accused having abducted and raped her in almost same terms as she used for other accused‑Co‑accused allowed benefit of doubt by Federal Shariat Court which by itself will not show that: accused had not participated in Zina‑bil‑Jabr Accused cannot be held to be innocent simply on account of extension of benefit of doubt and acquittal of co‑accused‑Effect of benefit of doubt with reference to criminal jurisprudence stated.‑Benefit of doubt.

Whenever, in the circumstances like those in the present case, an accused is given benefit of doubt, effect would be that he is deemed to be innocent in law, notwithstanding the fact whether he might or might not have participated in the crime. It is on account of higher principle of criminal jurisprudence when there is no element of certainty beyond reasonable doubt that the acquittal takes place as a legal benefit, in consequence of the said doubt. Thus the acquittal on the ground of benefit of doubt would show only this much that co‑accused is not guilty under the law on account of the afore discussed principle but that by itself would not amount to a positive finding that he did not participate in the occurrence and further that the prosecutrix told deliberate lie in that behalf. Thus the accused cannot be held to be innocent simply on account of the acquittal of co‑accused on extension of benefit of doubt.

---Ss. 10(3) & 16 ‑ Zina‑bil‑Jabr‑Witness ‑ Interested witness‑ Corroboration‑Prior to registration of case for abduction mother of prosecutrix having altercation and exchange of abuse with accused with whom prosecutrix's father was negotiating for return of abductee and who ultimately failing to return her, held, a natural consequence of offence committed by accused and frustration caused by his attitude after commission of offence‑Such circumstance being product of same offence in which accused is charged and convicted would not be treated as element of hostility and interestedness of witness‑No previous enmity prior to abduction established, none of accused could not have been mentioned on account of motive to falsely implicate him‑No corroboration, held further, was needed even on this score.‑[Witness].

Mian Muhammad Akram Ranjha, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 25th June, 1983.

Leave to appeal has been sought from judgment, dated 20‑2‑1983, of the Federal Shariat Court; whereby the convic tion and sentence of imprisonment awarded to Bashir petitioner for offences under sections 10(3) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, were upheld, while the conviction and sentence of his brother Shabbir for the same offences were set asides on extension of benefit of doubt.

Mst. Khadeeja (P. W.) the victim and prosecutrix in this case, according to her deposition was enticed away by the petitioner and his brother Shabbir during night time on or about 29‑12‑1980. She was taken by them to the convict accused Rehman, who detained her for several months. It is stated that the petitioner 'and his brother not only raped Mst. Kbadeeja on way to the residence of Rehman but also took Rs. 3,000 from him for handing over her body to him.

A report was lodged by Ahmad (P. W.), father of the prosecutrix about 9 days after the abduction. The petitioner and his brother co‑accused were mentioned in the F. I. R. as the culprit. It was also mentioned therein that they had admitted having abducted Mst. Khadeeja and had agreed through the inquest intervention of the respectables of the area to return her but having failed to do so for about 9 days the father was obliged to lodge the report. Ultimately, however, the Police succeeded in securing the recovery of the prosecuitrix about four months later through a respectable‑Amanullah. At the trial the petitioner pleaded denial and false implication by the police so to save another culprit who was named as Manzoor. Learned trial Judge convicted all three; namely, Bashir the petitioner, his brother Shabbir and Rehman and awarded them various sentences of imprisonment/stripes as also fine. Rehman did not file any appeal while on Shabbir and Bashir's appeal, the learned Chief Justice of the Federal Shariat Court gave benefit of doubt to Shabbir and acquitted him on admission made by Ahmad (P. W.) in his cross‑examination that the sister‑in‑law of Shabbir had told him that Bashir had abducted Mst. Khadeeja. On this statement, which was, of course, based on hearsay, notwithstanding the fact that the abducted charged all the three accused, as noted above, benefit of doubt was extended to Shabbir result ing in his acquittal. Bashir's appeal was dismissed with the modification that the sentence of fine awarded for offences under section 10(3), was set aside.

Bashir has now sought leave to appeal from the judgment of the Federal Shariat Court. It may be mentioned that the petition has been filed without even the copy of the judgment of the learned trial Judge. Objection was raised by the office. Notwithstanding the same, relevant documents including the judgment, the F. I. R., the depositions and other material which could likely be considered during the hearing of the leave to appeal petition, were not placed on record. The petition might have been dismissed for this serious default. However, in view of rather heavy sentences, we asked the learned counsel, who had typed record in his brief. to read the necessary material therefrom. He has also placed it on this petition's record.

Learned counsel has contended that the statement of the prosecutrix, in the circumstances of this case, should not have been relied upon against the petitioner without corroboration; that Shabbir accused having been acquitted on consideration of the same evidence including the deposition of the prosecu trix, the same treatment should have been given to the case of Bashir; and that the prosecutrix admitted under cross‑examination that Bashir petitioner and her mother had exchanged abuses before the registration of the case, therefore, he was falsely prosecuted on account of the said abuses.

The argument of the learned counsel is that Mst. Khadeeja prosecutrix who according to the medical evidence was used to sexual intercourse was a woman of bad character, therefore, she should noc have been relied upon without strong corroboration. Firstly, it is in evidence that she was a married woman and the mere fact that she was used to sexual intercourse would not show that she was of bad character. Secondly, even if it is assumed on the basis of an out of context sentence in the evidence that her rukhsati was yet to take place, still according to her deposition she was subject to repeated intercourse during her abduction by the culprits for nearly five months. In this context, although she was subjected to sexual intercourse. but that would not by itself show that she was a woman of bad character The conviction of the petitioner is under section 10(3), i.e., zina‑bil jabr, liable to tazir. There does not seem any element of consent. Moreover it is established through evidence that Bashir petitioner is married to the first cousin of the prosecutrix. This is a confirmatory circumstance if at all one is needed in such a case. However, in the circumstances, the two Courts below having relied upon the testimony of Mst. Khadzeja, we find no justifi cation for interference by this Court on the question of appreciation of her testimony.

Shabbir, no doubt, was also charged by Mst. Khadeeja of having abducted and raped her in almost same terms as she used against Bashir petitioner. The question regarding acquittal of Bashir is not b.‑fore us for examination whether it was proper on consideration of a piece of hearsay evidence. There is no appeal before us against that acquittal. It would not, therefore, be necessary to make any further comment in that behalf. Be that as it may, he was allowed benefit of doubt. And that, by itself, would not show that lie had not participated in the crime. Whenever, in the circumstances like those in the present case, an accused is given benefit of doubt, effect would be that he is deemed to be innocent in law, notwithstanding the fact whether lie might not have participated in the crime. It is on account of higher principle of criminal jurisprudence when there is no element of certainty beyond reasonable doubt that the acquittal takes place as a legal benefit, in consequence of the said doubt. Thus, the acquittal on the ground of benefit of doubt would show only this much that Shabbir is not guilty under the law on account of the afore discussed principle but that by itself would not amount to a positive finding that he did not participate in the occurrence and further that the prosecutrix told deliberate lie in that behalf. Thus, the petitioner cannot be held to be innocent simply on account of the acquittal of Shabbir accused on extension of benefit of doubt.

The last argument of the learned counsel is also without any force. The case was registered on 29‑12‑1980 and if prior thereto the mother of the prosecutrix had an altercation and exchange of abuses with Bashir petitioner (with whom the prosecutrix's father was negotiating for return of the abducted and they ultimately failed to return her), it would seem to be natural consequence of the offence committed by the accused and frustration caused by his attitude after the commission of the offence. Such a circumstance which is the product of the same offence in which the accused is charged and convicted would not be treated as the element of hostility and interestedness of a witness. It would not come into picture at all. There was no previous enmity prior to the present occurrence and the name of the accused could not have been mentioned on account of a motive to falsely implicate him. That being so, no corroboration was needed even on this score.

None of the arguments of the learned counsel has any force, this petition fails and is accordingly dismissed.

M. Z. M. Petition dismissed.

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