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Criminal Petition No. 35‑R (S) of 1983, decided on 18th October, 1983.

(From the judgment, dated 8‑8‑1983 of the Federal Shariat Court passed in Criminal Appeal No. 127/L of 1982).

‑‑ Art. 203‑F (2‑B)‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12‑Penal Code (XLV of 1860), S. 377 Prosecution case supported by victim corroborated by medical evidence‑Presence of semen in rectal swabs and on his shirt and shalwar confirmed by chemical examiner‑Medical evidence also showing that all accused fit to perform intercourse‑No question of law raised before Supreme Court but contentions on factual plane as raised before Federal Shariat Court repeated before Supreme Court Such contentions rejected by Federal Shariat Court after detailed reasoning‑Petition, therefore, being without merit, dismissed.

Kh. Muhammad Farooq, Advocate Supreme Court instructed by S. Inayat Hussain Shah, Advocate‑on‑Record (absent) for Petitioners.

Nemo for the State.

Date of hearing : 18th October, 1983.

‑The three petitioners, namely, Muhammad Iqbal, Muhammad Ashiq and Muhammad Saleem, alongwith three others, that is, Sarwar, Allah Ditta and Qurban Ali, had been tried by the Addi tional Sessions Judge, Multan, Camp Khanewal, in the result of which Muhammad Iqbal and Muhammad Ashiq petitioners were convicted on 13‑12‑1982 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and sentenced to R. I. for 14 years plus a fine of Rs.5,000 or in default in payment thereof to further R. 1. For 3 years and to 15 stripes each. The said two petitioners alongwith petitioner Muhammad Saleem and co‑accused Sarwar were also convicted under section 377, P. P. C. and sentenced to R. I. for 7 years and a fine of Rs.5,000 or in default in payment thereof to further R. I. for 3 years each. The convicts' appeal before the Federal Shariat Court failed on 8‑8‑1983. Aggrieved, the three petitioners have moved this Court for leave to appeal.

2. The victim in the case is Muhammad Farooq, aged 18, a resident of Abdul Hakeem, Tehsil Kabirwala. On 28‑4‑1979 at 10‑30 p.m. he entrained at Abdul Hakeem for going to Khanewal where he was studying in a college. Muhammad Iqbal and Muhammad Ashiq petitioners and Allah Ditta co accused also travelled in the same compartment. When the train reached Jan Muhammadwala Railway Station, Muhammad Iqbal petitioner, on the point of dagger, forced Muhammad Farooq to detrain and accompany him. Muhammad Ashiq and Allah Ditta picked up his luggage. They took him to the Dera of Qurban Ali co‑accused in Chak No. 11/BR, P. S. Talumba, where Qurban Ali, Sarwar and Muhammad Saleem were already present. The accused took liquor and also forced Muhammad Farooq to take some. All the six accused committed carnal intercourse against the order of nature in this Muhammad Farooq until 10 a.m. the following day. They then demanded Rs.50,000 from him for his release as they wanted to go to a foreign country and upon his refusal to pay the same, they threatened him with dire consequences. They also threatened him with death if he disclosed the facts to any one. Muhammad Iqbal and Muhammad Ashiq petitioners and Allah Ditta co‑accused then brought Muhammad Farooq to his college at Khanewal at 5 p.m. The next day he went to his home village and narrated the story to his father, where after he went to Sarai Sidhi P. S. where he lodged a report at 1‑00 a.m. on 1‑5‑1979. The accused were arrested on 3‑5‑1979 and a dagger each was recovered from petitioner Muhammad Iqbal and co accused Allah Ditta and a chhuri from co‑accused Qurban Ali. Later, during the investigation as it was found that the concerned police station was Tulamba, a formal F. I. R. was entered there on 1‑7‑1979.

3.The prosecution case was supported by Muhammad Farooq (P. W. 5), the victim in the case. He was corroborated by the medical) evidence inasmuch as three inverted abrasions had been found on the external sphincter of his anus at points 1, 12 and 11 o'clock and two abrasions at 6 o'clock. The presence of semen in the rectal swabs and on his shirt and shalwar was confirmed by the Chemical Examiner. The medical evidence also showed that all the accused were fit to perform sexual intercourse. The accused denied the allegations and pleaded that they had been falsely implicated on account of the fact that Muhammad Farooq, who had borrowed Rs.10,000 from Muhammad Saleem petitioner for the purchase of a motor‑cycle, had failed to repay the amount, whereupon the accused had gone to his hostel at Khanewal for demanding the return of the money and an altercation had taken place there. The accused, however, did not produce any evidence. Allah Ditta and Qurban Ali co‑accused absconded at the stage of defence evidence. The remaining four were convicted and sentenced by the trial Court as aforesaid.

4. The attack made before the Federal Shariat Court on the prosecu tion evidence on account of delay in lodging the F. I. R., the improbability of semen being found in the rectum of the complainant after nearly four days of the occurrence and the insufficiency of the solitary evidence of the complainant, as repelled by that Court and in consequence the appeal was dismissed. .

5. No question of law has been raised before us by learned counsel for the petitioners. The contentions on the factual plane are the same as had been raised before but rejected by the Federal Shariat Court after a detailed reasoning with which are unable to disagree. The petition is, therefore, without merit and is accordingly dismissed.

M. Z. M. Petition dismissed.

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