Find a Lawyer

Criminal Petition for Special Leave to Appeal No. 15‑R(S) of 1986, decided on lst July, 1986.

(From the judgment/order of the Federal Shariat Court, Lahore, dated 27‑2‑1986 passed in Criminal Appeal No. 109/L of 1985).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (V11 of 1979), Ss. 10(2) & 16‑‑Penal Code (XLV of 1860), S. 109‑‑Conviction on charge of Zina and abetment, challenged‑‑Petitioner's plea of valid marriage not sustained‑‑There being enough evidence including deposition of conviction, to uphold conviction for said offences, petition for leave to appeal dismissed.

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16‑‑Penal Code (XLV of 1860), S. 109‑‑Appeal against conviction‑‑Leave to appeal granted to consider whether case of petitioners was not distinguishable from that of acquitted co‑accused; having been found to be a consenting party in offence of Zina and six co‑accused with similar accusations having been acquitted petitioners could not be convicted for abetment; and whether identification of petitioners not being certain, they were entitled to benefit of doubt.

Sh. Ijaz Ali, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 21st July, 1986.

Karam Hussain, Ashiq Hussain his brother and Mushtaq Ahmad his uncle, three accused out of 9 involved in a case of Zina and abduction have through this petition sought leave to appeal from judgment, dated 27‑2‑1986 of the Federal Shariat Court; whereby their appeal was partly allowed‑‑the convictions and sentences under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII) of 1979), read with 109, P.P.C. (in so far as the accused other than Karam Hussain are concerned) were set aside, instead Karam Hussain was convicted under sections 10(2) and 16 and his sentences were accordingly reduced, while Ashiq Hussain and Mushtaq Ahmad were convicted under section 16 read with 109, P.P.C., and their sentences were also accordingly reduced. The remaining accused were, however, acquitted.

The prosecution case as contained in the deposition dated 23‑10‑1984 of Mst. Safia Mai the victim of the crime, is as follows:‑‑

"About 2 years and 8 months ago, I was passing along field of sugarcane, where Karam Hussain accused came and took me away forcibly inside the sugarcane field and there he committed forcibly Zina with me. After 2 months of this said occurrence I was going at Eshawella alongwith Mst. Manzoor Elahi, for easing myself. There Karam Hussain came who had a mare with him and he was also accompanied by two other persons who had muffled up their faces. The names of those two persons were Ashiq and Mushtaq accused. Karam Hussain accused caught hold of me by my arm while the other accused named Ashiq and Mushtaq gagged my mouth and they all put myself on the back of the mare. These three accused took me in a house. In that house there were Sadho, Shabbira, Muzara, Abbas and Muhammad Yar (Yarra) accused. All the said accused had been threatening me and pressurised me to marry Karam Hussain accused but I had been declining to do so. Karam Hussain accused had been committing Zina with me forcibly while the other accused had been guarding my movements and kept on surveillance upon me. I was confined there for two/three days. Subsequently I was taken to Khangarh in the hotel of one Muhammad Afzal. Again said I was taken to Khanpur not to Khangarh. Where I was forcibly made to enter into marriage with Karam Hussain accused. Then I was taken to Muzaffargarh by the accused. Where my statement was got recorded by the accused under pressure. Subsequently they took me to Sindh. I was kept there in Sindh for some days and subsequently I was being brought back by the accused when the police recovered me at Head panjnud Pul. At the time of recovery Karam Hussain was not with me as he was behind the bar in connection with murder case of my brother. Mushtaq, Ashiq and Yarra were present at the time of my recovery by the Police. I was taken by the police to Muzaffargarh where my statement was got recorded. I was also got medically examined by the police."

The plea of the accused petitioners was that Karam Hussain had entered into valid marriage with Safia Mai with her consent but without the consent of her parents, therefore, they have been falsely implicated. Reliance was placed on the Nikahnama as also the statement of Mst. Safia Mai made before the Magistrate during the time when she was in the custody of the accused persons. This statement, it may be mentioned here, was followed by another statement made before the same Magistrate by Mst. Safia Mai after she had come out of the custody of the accused wherein she had made similar statement as quoted above and had disowned the Nikah as also her earlier statement as the result of coercion and pressure. Not only this she during the pendency of the trial filed a suit for jactitation of marriage with a view to seeking declaration that the wedlock claimed by Karam Hussain with her was nullity in law and fact. A decree was passed in her favour. Karam Hussain did not challenge that decree. It having attained finality is, for the purpose of this case, binding on him. We would accordingly hold and the so‑called marriage of Karam Hussain with Mst. Safia Mai as non‑existent in law.

Learned counsel for the petitioner was unable to assail overwhelming evidence adduced in support of the taking away of Mst. Safia by Karam Hussain. The question of use of force has been put under doubt by the Federal Shariat Court and enough benefit has already been extended in that behalf to the accused by altering the conviction and reducing the sentences.

There is no denial of the fact that Karam Hussain subjected Mst. Safia Mai to sexual intercourse, of course, on the plea of the valid marriage which has been held to be non‑existent, therefore, there is enough evidence including the deposition of Mst. Safia Mai to uphold the conviction of Karam Hussain for offences under sections 16 and 10(2) of the Ordinance. We accordingly dismiss his petition.

The case of Ashiq Hussain and Mushtaq Ahmad is of a different complexion. There are three pieces of evidence against them; one, that Mst. Safia was recovered from them; Two, that they were identified by Mst. Safia Mai at first destination after abduction; and three, that there are witnesses who have deposed that‑at the time of the initial abduction Karam Hussain was accompanied by two persons with muffled faces.

Learned counsel has contended that the case of these two petitioners is not different from that of Yarra who was also present when Mst. Safia was recovered. He having been equitted, there was no reason to distinguish the case of Ashiq Hussain and Mushtaq Ahmad. Secondly, he has contended that with regard to the support allegedly given by Ashiq Hussain and Mushtaq Ahmad to Karam Hussain regarding the detention of Mst. Safia Mai, they could not be convicted for abetment; firstly, because she has been found to be a consenting party in the offence of Zina‑‑there would be no illegal detention. And secondly, that six accused under similar accusation have been acquitted by the Federal Shariat Court. Lastly, he contended that there is no certainty that the two persons with muffled faces who accompanied Karam Hussain at the time of initial taking away of Mst. Safia were Ashiq Hussain and Mushtaq Ahmad. The mere fact that they appeared at the scene at the first destination of Karam Hussain after abduction and were seen there by Mst. Safia Mai would not show that they were the muffled faced persons who accompanied Karam Hussain at the time of the original occurrence. Therefore, according to the learned counsel these two petitioners were entitled at least to the benefit of doubt.

The question of guilt or otherwise of Ashiq Hussain and Mushtaq Ahmad requires examination. We accordingly while rejecting Karam Hussain's petition grant leave to appeal to both of them.

M.I. Order accordingly.

Find a Lawyer Near You

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