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(On appeal from the judgment and order dated 4‑5‑1982 on the Federal Shariat Court of Pakistan, in Criminal Appeal No. 83/L/1981).

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

‑ Ss. 6 & 10‑Zina‑bil‑Jabr‑Federal Shariat Court altering conviction for Zina‑bil‑Jabr to one of Zina on assumption of there having been a possibility of victim being a consenting party and consequently reducing sentence passed by trial Court‑Correct age of victim being only 16 years, accused petitioner being a fully grown up male, victim having a frail body, bearing marks of violence on back of both forearms indicat ing use of brutal force, case, held, could not be one of consent and question of directing retrial did not arise‑Constitution of Pakistan (1973), Art. 203‑F (2‑B).

Mehr Ghulam Ali Mubashar, Advocate Supreme Court instructed by Ch. Mehdi Khan

Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 19th June, 1982.

This leave petition under Article 203‑F (2‑B) of the Constitution calls in question the conviction and sentence of petitioner for Zina, under section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The challenge is to the judgment dated 4‑5‑1982 of the Federal Shariat Court whereby the conviction was altered from Zina‑bil-jabr to Zina on the assumption that there was a possibility of the victim being a consenting party, the sentence was also consequently reduced.

After hearing the learned counsel in support of his two‑fold submission that if it was a case of consent the female should also have been convicted and that in any case the appropriate order should have been of remand, we do not find any jurisdiction for interference.

With respect it is pointed out that the Federal Shariat Court failed to notice that the correct age of the victim was only 16 years as against the petitioner a fully grown up male in his mid‑twenties. She had a frail body weighing only 94 pounds. She bore marks of violence on the backs of both the forearms particular whereof are typical of use of brutal force. She was virgin before the act. The fact that the gagging of her mouth with a cloth did not produce any injury, was not indicative at all of either it being a false assertion or that it was unnatural. Keeping in view all these circumstances and others mentioned in the impugned judgment, we are unable to agree that it might have been a case of consent. That being so, the question of directing retrial does not arise. Otherwise too, the argument is misconceived. This petition is accordingly dismissed as without any merit.

Petition dismissed.

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