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Criminal Petition No. 7‑R (S) of 1979, decided on 12th May, 1984.

(On Appeal from the judgment dated 21‑11‑1983 of the Federal Shariat Court, Islamabad Camp at Lahore in Criminal Appeal No. 126/1, of 1983).

‑‑-Art. 203‑F (2‑A)‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979 , S. 10 (3)‑Zina‑bil‑Jabar‑Accused unable to pursuade Court that he was not culprit and not perpetrator of heinous deed of Zina of which he bad been accused‑Mother of accused also present in house where accused committed Zina‑Contention that Courts below had acquitted mother when witnesses deposing against her were same as those who had testified against accused, and if they were being relied upon so far as they implicated mother, they could not also have been trusted vis‑a‑vis case of accused‑Contention, held, bad no force‑No prosecution witness pointed out that mother of accused conspired with accused for committing Zina‑Mother could only be faulted for not having rescued prosecutrix‑Rigours of trial and shame that had befallen the family was sufficient punishment for mother‑Conviction and sentence passed by Federal Shariat Court upheld by Supreme Court while dismissing petition for leave to appeal.

Ch. Rafique Ahmad Bajwa, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 12th May, 1984.

Mst. Kausar Parveen, a young girl, was working as a Staff Nurse in the D. H. Q. Hospital, Rahimyar Khan. She was also living in the Nursing Hostel attached to the said Hospital. On 29‑6‑1982, during the Holy Month of Ramazan when she was back in the Hostel, Shahid Malik (the petitioner herein) the son of Mst. Surraya Shamim‑a Matron of the Hospital‑came to the Hostel at 8 p.m. and informed Mst. Kausar Parveen that his mother was not feeling well and had asked her to come over and he had come to fetch her. Accordingly, she went along with him to the Quarter of Mst. Surraya Shamim, which was situated in the Medical Colony and found that Mst. Surraya Shamim was, indeed, not feeling well and was running temperature after breaking the fast. She remained with Mst. Surraya Shamim for some time, conversing with her. Shahid Malik also remained present in the room. At about 9‑45 p.m. she told Mst. Surraya Shamim that as she had to be back in the Hostel by 10 p.m. she must now return and, if any medicines were needed by her, Shahid Malik could get them. She, therefore, started for the Hostel but before she could go out Shahid Malik caught hold of her arm and dragged her forcibly towards another room, which he bolted from inside. She tried to extricate herself but Shahid Malik twisted her left arm and gave a fist blow which landed on her right eye and also gave slaps on her neck. She continued to resist. He, however, tore her shirt and felled her on the cot and committed zina‑bila Jabar with her She continued raising alram, but to no avail. No one came to her rescue, although Mst. Surraya Shamim, the culprit's mother, was next door.

Shahid Malik, after spending himself, did not allow Mst. Kausar Parveen to go out and confined her in his room for several hours and allowed her to leave at about 3‑30 a.m., when he up bolted the door and turned her out of the room. Mst. Surraya Shamim, the mother of the culprit Malk Shahid, who was preparing Sehri, met her outside and asked her not to disclose what had just happened to her, telling her that what was done with her, had already been done. Mst. Kausar Parveen, however, did not accept this advice and when she reached the Hostel she narrated the whole of the occurrence to Mst. Nasim Faiz, P. W. and after some effort, in fact after considerable dragging of his feet by the Medical Superintendent of the Hospital, whose attitude showed that he thought that it would be better if the matter was bushed up, a case was registered against both the mother and the son and both were sent up for trial before the Sessions Judge, Rahimyar Khan.

The learned Sessions Judge held Shahid Malik guilty under section 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to 15 years' R. I. with 30 stripes and a fine of Rs. 5,000. Mst. Surraya Shamim was given the benefit of doubt and acquitted.

On appeal, the learned Judges of the Federal Shariat Court found that the case against she petitioner was fully established and accordingly, upheld his conviction under section 1 0 (3) of the Ordinance and maintained the sentence of 15 years' R. I. and 30 stripes. However, the sentence of fine was set aside as the learned Judges were of the view that a fine could not be imposed in case under section 10 (3) of the Ordinance.

The petitioner has now filed this petition for leave to appeal against the said judgment of the Federal Shariat Court.

Mr. Rafique Ahmad Bajwa has been heard. He has not been able to pursuade us that Shahid Malik is not the culprit and not the perpetrator of this heinous deed, of which he has been accused. Some advantage was attempted to be taken from the circumstances that the Courts below had acquitted Mst. Surraya Shamim on the plea that the witnesses deposing against her were the same as those who had testified against Shahid Malik and, if they were not being relied upon so far as they implicated Mst. Surraya Shamim, they could not also have been trusted vis‑a‑vis the case of Shahid Malik.

There is no force in this submission. No statement of P. Ws. was pointed out to show that Mst. Surraya Shamim had conspired with the petitioner for committing the misconduct, of which he was guilty. She can only be faulted for not having rescued the girl after Shahid Malik had dragged her into hi room and started assaulting her criminally. For this fault, the rigours of the trial and the shame that has befallen the family is sufficient punishment.

This petition, accordingly, fails and is hereby dismissed.

The interim order dated 2‑2‑1984 suspending the sentence of inflicting 30 stripes on the petitioner stands withdrawn and the said punishment may now be carried out.

M.Z. M. Petition dismissed.

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