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Criminal Petition No. 8‑R(S) of 1984, decided on 4th April, 1984.

(Against the judgment and order of the Federal Shariat Court, dated 28th January, 1984 in Cr. Appeal No. 77‑L of 1983).

‑‑ Art. 203‑F(2‑B)‑Offence of Zina (Enforcement of Hudood) Ordi nance (VII of 1979), Ss. 10 (3) & 11‑Zina‑bit‑Jabr‑Question of non‑availability of Lady Doctor who had examined victim girl being out of country already examined by trial Court as well as Federal Shariat Court‑Report of such Lady Doctor proved by statement of another prosecution witness ‑‑Defence plea of false implication and reason therefore remaining unestablished‑Leave to appeal refused.

Malik Rab Nawaz Noon, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 4th April, 1984.

The petitioner seeks leave to appeal under Article 203‑F (2‑B) of the Constitution against his conviction and sentence under section 10 (3) of Offence of Zina (Enforcement of Hudood) Ordi nance, 1979 (hereinafter referred to as the Ordinance).

The petitioner was sent up for trial under section 11 and section 10 (3) of the Ordinance. The allegation against him was that on the 20th of April, 1980 at Zoharwela when Mst. Kalsoom Bibi, P. W. 1 was passing in front of his house, he dragged her forcibly, to a room in his house, bolted it from inside and committed Zina‑bil‑Jabr. Her alarm attracted her mother Sharifan P. W. 2, from the neighbouring house and two passers‑by Abdul Salam, P. W. 3 and Khalilur Rehman, P. W. 9. They broke into the room. They caught hold of the petitioner and took him to the police station where the report was lodged the same day by Mst. Kalsoom Bibi. Her Dopatta P. 1, shirt P. 2 and Shalwar P. 3 were taken into possession. Lady Dr. Jehan Ara had examined her the next day and found that the hymen was positively torn. The tear was raw and tender and clotted blood was present on the edges. There were small lacerations on lateral sides of hymen. These lacerations were also raw and congested.

The plea, of the petitioner was that it was on account of enmity over the murder of Abdul Rahim, the grandfather of Mst. Kalsoom that he had been falsely implicated in the case. He produced in defence three wit nesses. Two of them stated that a constable was sent and the petitioner was brought from his house and arrested. Amanullah D. W. 3 stated about the murder of Abdul Rahim and the false implication of the petitioner on account of it. The trial Court on an examination of the prosecution evidence in the light of the defence, recorded his conviction under sections 11 and 10 (3) of the Ordinance. For the former, he was sentenced to life imprisonment and 15 stripes and a fine of Rs. 5,000 or in default 2 years' R. I. For the offence under section 10 (3) of the Ordinance, he was sentenced to 25 years' R. I. and 30 stripes. Both the sentences were ordered to run con currently.

On appeal, the Federal Shariat Court set aside his conviction and sentence under section 11 of the Ordinance but maintained it under sec tion 10 (3) and reduced the sentence to 10 years' R. I. and 15 stripes.

The learned counsel for the petitioner has pleaded before us that the report of the Lady Dr. Jehan Ara could not be admitted in evidence as it was not satisfactorily proved. that she was outside the country and was not available at the trial. In any case, according to the learned counsel, her absence as a witness seriously prejudiced the petitioner on questions regarding age of Mst. Kalsoom and indications of the offence being Zina‑bil Jabr and not simple Zina. The other ground taken up by the learned counsel for the petitioner is that from all the evidence on the record, it could not be safely excluded as a possibility that M t. Kalsoom Bibi was a consenting party and on that account, it was not an offence of Zina‑bil- Jabr. Finally, the learned counsel for the petitioner has, on the basis of a school leaving certificate, urged that the age of the petitioner at the relevance time was 14 years 4 months and 18 days and on account of it, he was entitled to a more lenient treatment in the matter of sentence.

The question of the non‑availability of Lady Dr. Jehan Ara has been examined by the trial Court as well as by the Federal Shariat Court. It is on record that the orders of the trial Judge that she was outside Pakistan at the relevant time and could not be available at the trial remained unchallenged of facts. Even now, the learned counsel for the petitioner is not able to assert to the contrary. That being so, the statement of Jafar Ali, P. W. 10 who proved her report could not be brushed aside.

It has been consistently the case of the prosecution that it was the alarm of the girl himself which attracted the mother and the other witnesses who had to break open the room where Zina‑bil‑Jabr was being committed on her. If that part of the evidence is accepted, and both the ousts have accepted it, there would be no material on the record to assume that the girl was a consenting party. The tearing of the clothes and other injuries on her person may not be there because she was caught hold of physically and pushed inside the house. The distance was not much. The resistance from a girl of that tender age could also not be great. She was, according to her birth certificate, 12 to 13 years of age though according to the medical opinion and the X‑ray report, her age could be 15/16 years.

A school leaving certificate has been filed by the petitioner to show his age as about 14 years 4 months 18 days at the time of occurrence. This certificate does not appear to have been filed before the trial Court and has not been considered by any of the two Courts. There is no reason why it should be taken into consideration at this stage.

As regards the defence plea of false implication and the reason there fore, it remains unestablished as to how the petitioner or his family was concerned with the murder of Abdul Rahim. The learned counsel for the petitioner is also not a position to enlighten us on that point.

In the circumstances, we find that there is no merit in the petition and leave to appeal is refused.

S. Q. Leave refused.

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