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Criminal Petition for Special Leave to Appeal No. 15-R (S) of 1982, decided on 11th December, 1982. .

----Art. 203‑F read with Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(2)‑Conviction for Zina‑Medical evidence, evidence of Chemical Examiner, statement of accused -petitioner and recovery of accused with abductee providing necessary corroboration with regard to offence‑Courts below, in determining sufficiency of such corroboration for finding accused guilty of offence, neither committing any error of law nor ignoring any principle of law‑Leave to appeal refused.

‑‑ Ss. 8 & 10 ‑ Conviction for offence of Zina‑‑Requirements, prohibitions and limitations contained in S. 8‑Held, do not apply for recording conviction of Zina under Taazir but different provi sions of law of evidence apply in such case.

Muhammad Azeem v. State P L J 1983 S C 456 ref.

M. Bilal, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 11th December, 1982.

The petitioner convicted of the offence under section 10(2) of the Ordinance No. VII of 1979 (hereinafter referred to as the Ordinance), seeks leave to appeal against the judgment of the Federal Shariat Court, dated the 6th of June, 1982, whereby his appeal against conviction was dismissed.

The petitioner was tried alongwith a number of his other relatives and friends under section 307/149, P. P. C. 148, P. P. C. and under section 10(2) of the Ordinance. The specific allegation against him and his companions was that he was engaged to Mst. Surat Khatoon and in lieu of her hand a girl of the family of the petitioner was to be married in the family of Mst. Surat Khatoon. Differences arose between the families and the engagement was broken off. Aggrieved by this on the 2nd of September, 1981, the petitioner alongwith others while armed with fire‑arms tried to forcibly abduct Mst. Surat Khatoon for the purpose of marrying her. In the effort of abduction a fire‑arm injury was caused to Gulmir (P. W. 5) the father of Mst. Surat Khatoon. Gulmir lodged a report of the occurrence the same day at 5 p. m. Ubaidullah and Mst. Surat Khatoon were arrested from the premises of district council compound Mianwali where apparently Mst. Surat Khatoon had been taken for making a statement favourable to the petitioner. She was got medically examined. Dr. Jameela Lodhi (P. W. 1), on 10‑9‑1981 found that her hymen was torn and the tears were in healing stage. There was laceration x 1/6 on the mud‑line posteriorly on the vulva near the orifice of vagina, which bleeded to touch. There was no external mark of violence. According to the doctor she had been subjected to sexual intercourse within eight to nine days. The vaginal swabs positive presence of semen. The petitioner admitted that he was be trothed to Mst. Surat Khatoon he explained the companionship of Mst. Surat Khatoon by stating that she had come of her own to his house and had informed that as her father wanted to give her in marriage to one Inayatullah her mother had sent her to him. She threatened to commit‑suicide if she was not accommodated. He thereafter took her to various places and ultimately she was returned to her parents. He denied having committed Zina at any stage with her or that they were apprehended by the police from the district council compound Mianwali, on 8th of September, 1981.

The trial Court disbelieved the substance of the prosecution case so far as the companions of the petitioner were concerned and the allegation of her forcible removal. They were, therefore, acquitted by the trial Court. The statement and Mst. Surat Khatoon was considered not such as to be accepted without proper corroboration. Finding from the report of the lady doctor that there was no mark of violence on her body it was concluded that she had not been raped but had willingly gone over to the accused‑petitioner and that he had committed sexual intercourse with her. Finding the offence under section 10(2) of the Ordinance proved the peti tioner was sentenced to 5 years' R. I. 15 stripes and a fine of Rs. 1,000. The petitioner appealed to the Federal Shariat Court. The entire evidence was reconsidered by the Federal Shariat Court and the findings with regard to the guilt of the petitioner as recorded by the trial Court were affirmed. Without proper corroboration, the statement of Mst. Surat Khatoon was held to be not worthy of credit. Corroboration was however obtained from the medical evidence on the record, the expert evidence insofar as the chemical examination of the swabs was concerned and some support obtained from the motive and the actual coming over and living together of Mst. Surat Khatoon with the petitioner as found in the settlement of the petitioner himself. Finally their apprehension together on 8th of September, 1981, was also taken to be a corroborative factor. It was held that the conviction of the petitioner under section 10(2) of the Ordinance was proper and so was the sentence awarded. Hence the appeal was dismissed but direction was given that benefit of section 382‑B of the Cr. P. C. shall be extended to the petitioner.

The learned counsel for the petitioner submitted that the prosecution evidence was found to be tainted and not worthy of any credit on almost all the matters alleged, it was not safe to base the conviction of the peti tioner on the solitary statement of Mst, Surat Khatoon which itself was found to be untrue in many respects. There was serious discrepancy in the ocular evidence and the medical evidence and the same should not have been resolved in favour of the prosecution and against the petitioner. It is contended that the facts of the case were such that the credibility of the witnesses should not have been so divided as to reject a larger portion of their statement and accept a very small portion of it for arriving at the conviction and sentence of the petitioner.

The first information report has been lodged by Gulmir, the father of the girl who according to the finding of the Court had willingly gone over to the petitioner. In the report wild allegations have been trade of abduction, use of force and even a pellet injury was exhibited to corroborate that version. The trial Court itself thoroughly scrutinized and looked for corroborative proof treating the witnesses as unworthy of credit except to the extent that assertions found proper corroboration. The medical evidence, the evidence of the Chemical Examiner and the statement of the petitioner and finally the recovery of the petitioner with the abductee from the district council compound provided the necessary corroboration with regard to the offence under section 10(2) of the Ordinance. In looking for such corroboration and determining its sufficiency for finding the petitioner guilty of the offence none of the two Courts have committed any error of law or ignored any principle of law.

Finally, the learned counsel took up the plea that as the prosecution of the petitioner was under the Hudood Ordinance, the principles of Islamic law with regard to reception and appraisement of evidence as contained in section 8 of the Hudood Ordinance should govern the case rather than the principles contained in the Evidence Act. If that test which is suggested by the learned counsel is accepted the testimony of Surat Khatoon being a lady accomplice would be altogether excluded from consideration and there would be nothing left for corroboration. In a recent case (Petition No. 17‑R‑S/82) this question reported as P L J 1983 S C 456; has received our fuller attention and for the reasons recorded therein we hold that for recording conviction of Zina under Taazir, they requirements, the prohibitions and the limitations contained in section 8 of the Ordinance do not apply but different provisions of law of evidence, B other than the one contained in section 8 is applicable and it is with reference to such law that the petitioner has been adjudged guilty. We find that the petition has no merit and the leave to appeal is refused.

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