Find a Lawyer

Criminal Petition for Special Leave to Appeal No. 29‑R(S) of 1983, decided on 18th October, 1983.

(On appeal against‑ the judgment of the Federal Shariat Court, dated 25‑6‑1983 passed in Criminal Appeal No. 34/L of 1983).

‑‑ Art. 203‑F(2‑B) read with Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11‑Offence of Zina‑bil‑Jabr‑ Conviction for‑Submissions of petitioner's counsel relating to appraisal of evidence on facts‑Evidence satisfactorily examined, analysed and credibility pact thereof separated by two Courts seized of matter‑ Credibility of statement of victim not impaired in giving benefit of doubt to co‑accused‑Credit worthy medical report with regard to sexual intercourse committed with victim‑Absence of injuries on person of victim not negativing or shaking her testimony on question of Zina‑bil‑Jabr‑Neglect or omission on part of prosecution with regard to scientific test of semen stains or grouping of sperms not such: as may materially affect other evidence‑Value of such evidence only confirmatory of ocular evidence coming on record‑Case not one of false implication or substitution‑Leave to appeal refused‑Petitioners however, allowed benefit of period of detention as undertrial prisoners in computing sentence awarded to them under S. 382‑B, Criminal Procedure Code (V of 1898).

Mst. Ehsan Begum v. The State P LID 1983 F S C 204 cited but not examined.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court and Sh. Salah‑ud -Din, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing : 18th October, 1983.

The two petitioners whose convictions and sentence under section 10(3) of 'the Offence. of Zina (Enforcement of Hudood) Ordinance have been upheld by the Federal Shariat Court by its judgment, dated 25‑6‑19b3, seek leave to appeal against that judgment under Article 203‑F (2‑B) of the Constitution.

The prosecution case against the petitioners was that a s1ster of Ahmad appellant (aged 22 years) was married to Mumtaz (aged 40 years) the other appellant. On 4th of November 1981 Mst. Rashidan (P. W. 7) (aged 15/16 years) was employed in the field of Mst. Nur Ilahi, the wife of Mumtaz appellant and the s1ster of Ahmad appellant for picking cotton. At about peshiwela she felt thirsty and went to the hand‑pump in the company of Meena, a s1ster of Ahmad appellant. The hand‑pump was out of order. The two appellants were present there Mumtaz handed over a pitcher to Meena and asked her to fetch water from a well at some distance from there. When Mst. Rashidan attempted to go with her she was stopped by the two appellants from doing so dragged to the nearby cotton field and both committed Zina bil‑jabr with her. Her alarm attracted Jalal Din (P. W. 3) and Akbar Ali (P. W. 4) on whose arrival the appellants escaped from there. She was taken to her house and a report about the occurrence was lodged with Abdul Hameed A. S. I. at 10 a.m. and a case was reg1stered at Police Station Malka Hance District Sahiwal at 10‑20 a.m. The lady doctor examined her on 6‑I1‑1981 and found small tears on the right side of hymen. The appellants denied the occurrence and their implication in it, and produced four witnesses in defence.

The trial Court believed the statement of Mst. Rashidan (P. W. 7) and found corroboration in the medical evidence and in the statements of two witnesses, Jalal Din and Akbar Ali, who reached the spot on her alarm and before whom she named the two appellants as the culprits. The defense version that the appellants were falsely implicated on account of a dispute over the purchase of milk by Mst. Rashidan and non‑payment of its price to the wife of Mumtaz appellant was disbelieved. The trial Court held the two appellants guilty of the offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance and sentenced them to 10 years' rigorous imprisonment and 15 stripes each. They were also found guilty of the offence under section 11 of the said Ordinance and sentenced to life imprisonment and 15 stripes each and a fine of Rs. 1,000 each and in default six months' R. I.

The Federal Shariat Court, on appeal, re‑examined the entire evidence against the appellants and upheld their conviction under section 10(3) of the Hudood Ordinance. As regards their conviction under section. 11 of the same Ordinance, the Federal Shariat Court held that it was not a case of abduction "the appellants had only taken Mst. Rashidan in a nearby field in order to commit the offence". The State counsel also conceded that the appellants could not be convicted under section 11 on the material on record. Hence their appeal was partly accepted and conviction and sentence under section 11 was set aside.

In seeking leave to appeal the learned counsel for the petitioners has drawn our attention to the dispute between the wife of Mumtaz and Mst. Rashidan over the price of the milk. It has 'been contended that it was most unlikely that the two appellants who had such a delicate bond of relationship would join in committing such an offence with Mst. Rashidan. The suggestion was that Mst. Rashidan was accustomed to sexual intercourse with others and had falsely implicated the two appellants to avoid payment of the price of the milk and to vindicate her position in the dispute which had arisen over it. The learned counsel finally referred to the decision of the Federal Shariat Court in Mst. Ehsan Begum v. The State (PLD 1983 FSC 204), to point out the necessity of further laboratory test of the semen stains and swabs with a view to group the sperms found therein and to identify the culprits by reference to it.

We find that most of the submissions of the learned counsel for the petitioners relate to the appraisal of evidence on, facts. We are satisfied with the manner in which the evidence has been examined, analyzed and the cr6dit worthy part of it has been separated by the two Courts seized of the matter. In giving benefit of doubt to their Lo‑accused Meena the credibility of the statement of Mst. Rashidan is not impaired. The medical report with regard to the sexual intercourse having been committed with her is creditworthy and has been believed and given full effect. The absence of injuries on th person of Mst. Rashidan do not negative or shake her testimony on the question of Zips‑bil jabr. As regards the scientific test of the semen stain and grouping of the sperms, we are not quite satisfied that it is a case o neglect or omission on the part of prosecution such as may materially affect the other evidence. In any case, the value of such evidence is only confirma tory of the ocular evidence which comes on the record. There is, we find, no case of substitution or false implication even accepting for argument's sake the background suggested by the learned counsel for the petitioners.

We find no merit and refuse leave to appeal.

The learned counsel for the petitioners in the last resort pressed for extending to the petitioners the benefit of 382‑B of the Cr. P. C. We find that the trial Court has not noted in the judgment or even shown awareness of the period that was spent in detention by the petitioners as under‑trial prisoners. It has not, it appears, weighed with the trial Court in awarding the sentence particularly under section 10(3). No such claim was, it appears, made by the appellants before the Federal Shariat Court. However, as it is a provision made for the benefit of the convicts, we would accept this part of the claim of the petitioners and direct that full benefit be given of the period of their detention as under‑trial prisoners in computing the sentence awarded to them.

S.Q Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.