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Criminal Petition No. 31‑R(S) of 1986, decided on 28th July, 1986.

(From the judgment of the Federal Shariat Court, Lahore, dated 1‑4‑1986 in Criminal Appeal No. 215/1, of 1985).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑Appreciation of evidence‑‑Defence pleas about delay in lodging F.I. R. late medical examination of victim false implication due to enmity between complainant and uncle of petitioner, and acquittal of co‑accused on same evidence, found totally untenable‑‑Explanation for delay having the support of documentary evidence rightly accepted by Courts below, so‑called enmity having already been patched up was not .such that complainant would have permitted violation of person of his own daughter for falsely implicating petitioner and acquittal of co‑accused was unjustified‑‑Petition being devoid of any substance dismissed.

Kh. Muhammad Sharif, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 28th July, 1986.

Leave to appeal has been sought from judgment, dated 1‑4‑1986 of the Federal Shariat Court; whereby the petitioner's appeal from conviction and sentences under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) was partly allowed‑the conviction under section 11 was set aside and the sentence under section 10(3) was reduced from 15 years, R.I. to 10 years, R.I. while keeping in tact the sentence of 30 stripes.

The prosecution case is that Mst. Alia Qayum the victim of the crime aged about 12/13 years and a student of 7th Class was proceeding to the house of her maternal‑grandmother in the afternoon of the day of the occurrence when Akhtar Ali petitioner who was known to her requested her to fetch hard‑board from a nearby shop of Muhammad Anwar his co‑accused, who has since been acquitted. She proceeded towards that shop. Akhtar Ali followed her. At the shop she also found in addition to Anwar, Muhammad Shafiq the third accused who has been acquitted, both present at the shop of Anwar. When Akhtar Ali petitioner reached the shop he told Mst. Alia to get into the shop. She did so under duress. All the three accused followed her into the shop and bolted it from inside. They then gagged her with a piece of rexin and one by one committed Zina‑bil‑Jabr on her. On alarm somehow raised by her Abdul Qayum her father, Abdul Lateef P.W., Muhammad Naeem P.W. and Zubair Ahmad D.W. 1 reached the shop. They banged the door of the shop whereupon after opening the door the three accused were able to run away. The girl was found naked in the shop and also in a precarious condition. She had marks of injuries on her body. Abdul Qayum the father of the girl wanted to make a report immediately but was restrained by the accused and their supporters‑‑so‑ called Panchait members. He, however, approached the police who declined to register the case presumably under the influence of the so‑called Panchait. He then perforce went to the Martial Law Authorities and on their written direction the police was compelled to register the case after 7 days. At the instance of Abdul Qayyum who on account of disappointing attitude of the police had, however, got her daughter medically examined on his own from a lady doctor a day before the registration of the case. The medical examination revealed marks of violence on the body of the victim girl which from their dimensions and other particulars seemed typical of Zina‑bil‑Jabr case. The lady doctor also opined that she had been subjected to sexual intercourse at or about the time alleged by the prosecution.

Except Zubair Ahmad who appeared as defence witness and Abdul Lateef who was given up presumably has won over, the other eye‑witnesses supported the afore stated prosecution version of the occurrence. Zubair while appearing in defence disowned having seen any such occurrence. Other witnesses also were produced ‑in defence to support the preposterous plea that no occurrence took place at all notwithstanding the concrete medical evidence with regard to the violation of the person of the victim girl. The defence plea was obviously of denial. The learned trial Court acquitted Muhammad Anwar and Muhammad Shafiq by extension of benefit of doubt to them though from the circumstances of the case, in our opinion, to say the least they do not seem to have been entitled to it. Akhtar Ali petitioner was, however, found guilty of abduction and Zina‑bil‑Jabr, convicted and sentenced accordingly.

The Federal Shariat Court finding no certainty with regard to distance between the place where the victim was asked by Akhtar Ali to fetch hardboard from the shop and the shop, was of the opinion that she might have passed by the shop when she was coerced to get into it and was raped. This, according to the learned Judges, would not constitute abduction from any place outside the shop. Accordingly benefit of doubt was given to the petitioner regarding the offence under section 11 of the Ordinance. In an elaborate discussion, however, he was found guilty under section 10(3). His conviction under the said provision was affirmed, but as noted above, the sentence of imprisonment was reduced.

Learned counsel for the petitioner has contended that the explanation for the delay of the F.I.R. offered by the complainant should not have been accepted; that there was previous enmity between the complainant and the uncle of the petitioner, therefore, he has been falsely implicated; that two accused, Muhammad Anwar and Muhammad Shafiq, having been acquitted on the same evidence, the prosecution evidence should not have been relied against the petitioner; that the medical examination of the victim was‑conducted about a week after the occurrence; and lastly, that the defence evidence should have been believed.

There is no force in any of these contentions. The explanation offered for delay and for late medical examination of the victim has the support of documentary evidence. It has rightly been accepted by the learned Courts below. The acquittal of Muhammad Shafiq and Muhammad Anwar in our view was not justified, therefore, no advantage can be given to the petitioner on that account. The defence evidence as also the plea that the petitioner has been falsely implicated on account of complainant's enmity with the uncle of the accused have rightly been rejected by the learned Courts below. It is the petitioner's own case that the incident involving enmity between the complainant and his uncle was patched up much before the present occurrence. In any case, the so‑called enmity was not such that the complainant would have gone to the extent of permitting the violation of the person of his own daughter for falsely implicating the petitioner. If at all he wanted to do so he could have levelled any other charge and that too against the uncle of the petitioner. The defence plea is totally untenable.

After hearing the learned counsel at some length, we do not find any substance in this petition and the same, is dismissed.

M . I . Petition dismissed.

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