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Criminal Petition No. 6‑R(S) of 1986, decided on 26th July, 1986.

(From the order, dated 23‑1‑1986 of the Federal Shariat Court passed in Criminal Appeal No. 236/1 of 1985).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S.10(2)‑‑Petitioners convicted under S.10(3)‑‑In appeal before Federal Shariat Court plea was raised that marks of violence found on body of two victims were such that they could be result of beating by their own husbands‑‑Conviction altered to one under S.10(2) of Ordinance (VII of 1979) and sentence reduced‑‑Leave to appeal sought against conviction‑‑Conviction that deposition of victims could also have been result of torture and beating by their husbands and that petitioners were entitled to benefit of doubt, repelled‑‑On careful examination of marks of violence on body of two victims Supreme Court viewed that nature of some marks of injuries was such that they could very well have been sustained during resistance by ladies and not necessarily by beating of their own husbands in respect of which there was no material on record‑‑There was also no enmity against petitioners‑‑Supreme Court disagreed with order altering conviction but there being no appeal against acquittal of charge under S.10(3), it declined to interfere and refused leave to appeal.

Kh. Muhammad Yousaf Saraf, Advocate Supreme Court and M. Kowkab Iqbal, Advocate‑on‑Record (absent) for Petitioners.

Nemo for the State.

Date of hearing: 26th July, 1986.

Leave to appeal has been sought from judgment, dated 23rd January, 1986, of the Federal Shariat Court; whereby an appeal arising out of conviction and sentence of 10 years' R.I. and 20 stripes in a case of Zina‑bil‑Jabr under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII) of 1979, was partly allowed the offence was altered from 10(3) to 10(2) of the Ordinance and the sentence was reduced to 7 years' R.I. 20 stripes and a fine of Rs.1,000 to each of the two petitioners,

The prosecution case is that two grown up married ladies Mst. Sakina and Zarina the victims in this case who are also related to each other, left their village to visit a Mazar at a distance of about 10 miles. They travelled by bus for about 8 miles and thereafter, the remaining distance was to be covered by them on foot. When they were so proceeding on foot and had gone some distance from the bus‑stop, they were confronted by the two petitioners and were dragged to a deserted house where they were both subjected to Zina‑bil‑Jabr by them. Three persons namely, Muhammad Ramzan, Haq Nawaz and Allah Ditta were attracted on the alarm raised by the victims. On seeing them, the petitioners ran away. The F.I.R. was lodged by the ladies two days after the occurrence with the explanation for the delay that the husbands of both the ladies were out of the village and that they waited for them. Both the women were medically examined. The doctor found several marks of violence on various parts of bodies of both of them. Swabs taken from their vaginas also were found to have been stained with semen and so were their Shalwars found to be semen‑stained.

At the trial, the two ladies deposed against the two petitioners. Muhammad Ramzan who is related to the husband of one of them was also examined as an eye‑witness; Haq Nawaz and Allah Ditta P.Ws. were, however, given up. The learned trial Judge finding the prosecution version as reliable convicted and sentenced the petitioners as noted above. On appeal, it was argued before the Federal Shariat Court that the marks of violence on the bodies of the two victims were such that they could have been the result of beating. On this, it was observed that they might not have been sustained by them during resistance and if they were the result of beating it could have been by their own husbands. Accordingly, the offence was altered from section 10(3) to 10(2) and the sentence was also reduced.

Learned counsel for the petitioners has tried to gain further advantage from the observations of the learned Judges of the Federal Shariat Court regarding the nature of the marks of violence on the bodies of the two ladies and argued that if that is so their depositions against the two petitioners could as well have been the result of as he put it 'torture and beating' by the husbands of the two ladies. That being so, the petitioners are entitled to benefit of doubt. He also prayed for reduction of sentence in case the first plea is not accepted.

We have also carefully examined the marks of violence on their bodies of the two victims. With respect to the learned Judges of the Federal Shariat Court, we do not agree that they were the result of beating by their own relations and that they were not the result of resistance put up by them against the two accused. The nature of some of the marks of injuries is such that they' could very well have been sustained by them during resistance. Be that as it may, nothing can be done now as there is no appeal against the acquittal on charge of Zina‑bil‑Jabr. The circumstance that the marks of violence could as well have been caused during the resistance by the ladies and not necessarily by the beating of their own husbands in respect of which there is no material on record together with the fact that neither the victim ladies nor their husbands had any enmity against the petitioners, we are unable to agree with the learned counsel that the two ladies should not have been believed against the petitioners. The first argument has, therefore, no force.

Regarding sentence we do not find any reason to reduce it any further. This petition has no substance. It is accordingly dismissed.

M. I Petition dismissed

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