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Criminal Petition No. 32‑R (S) of 1985, decided on 14th September, 1985.

(Against judgment and order, dated 7‑2‑1985 of the Federal Shariat Court in Criminal Revision No. 16/1 of 1984).

‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S. 10(3)‑‑Offence of Zina‑‑Petition for leave to appeal against acquittal of accused‑‑Trial Court finding that some portions of statement of victim woman not inspiring confidence and that she had willingly gone with persons against whom she was making allegations of forcible removal‑‑Way in which she gave evidence creating an impression on mind of trial Court that she was a person of easy virtue and convenient conscience‑‑Lady doctor examining victim stating that she was habituated to sexual intercourse‑‑Neither principle of law violated nor any material fact ignored in acquittal of accused‑‑Leave to appeal refused.

M. Kowkab Iqbal, Advocate Supreme Court/Advocate‑on‑Record for Petitioner.

Rab Nawaz Noon, Advocate Supreme Court for Respondents Nos. 1 to 3.

Ejaz Ali, Advocate‑on‑Record for the State.

Date of hearing: 14th September, 1985.

The petitioner, a complainant in a case registered under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), seeks leave to appeal against the judgment of the Federal Shariat Court, dated 7th of February, 1985 whereby the appeal of Abdul Qayyum respondent against his conviction under section 10(2) of the Ordinance was accepted, his conviction and sentence was set aside and he was acquitted and the acquittal of the other two respondents was not interfered with in a revision petition filed by the petitioner against their acquittal.

Mst. Majida, the prosecutrix, claimed to have abused on two occasions Abdul Qayyum respondent who was a Bus conductor and had made indecent overtures. He had threatened her and ultimately with the assistance of the other two respondents, picked her up on 13‑1‑1984; he had taken her to various places and committed rape on her alongwith the respondent No. 2. A report of the occurrence was lodged the next day at 1‑20 p.m. Mst. Majida was abandoned by the respondents in a jungle and recovered from there.

She was examined by Lady Doctor Zahida Shaheen (P.W. 4) who found two bruises one each on the medial aspect of both the thighs upper half 1" diameter circular shape and noticed that the hymen was altogether absent.

The respondents denied the occurrence and alleged false implication in the case on the ground that Mst. Majida had eloped and her father, the complainant, suspected the respondents of having assisted her elopement.

The trial Court found that some portion of the evidence of Mst. Majida did not inspire much confidence and held that she had willingly gone with the persons against whom she was making allegation of forcible removal. The way Mst. Majida gave evidence in the trial Court created an impression on the mind of the trial Court that "she was a person of easy virtue and convenient conscience". While extending the benefit of doubt to the other two respondents, Abdul Qayyum was held guilty of the offence under section 10(2) of the ordinance, convicted and sentenced to seven years' R.I. and thirty stripes. A fine of Rs.3,000 was also imposed out of which Rs.2,000 were to be paid as compensation to Mst. Majida.

While hearing the appeal against conviction of Abdul Qayyum and the revision of the complainant against the acquittal of the others, the Federal Shariat Court came to the conclusion that Mst. Majida was habituated to sexual intercourse as stated by the Lady Doctor and no semen was detected from the swabs taken and it was not safe to convict and sentence even Abdul Qayyum on the material that was placed before the trial Court. Hence he too was acquitted.

The learned counsel for the petitioner has contended before us that the absence of hymen is not sufficient to justify the conclusion as was drawn by the Lady Doctor that she was habituated to sexual intercourse prior to the occurrence. Similarly, according to the learned counsel, the swabs were not properly taken and the absence of semen therein should not be taken to be decisive of the matter. The Shalwar of Mst. Majida was allegedly stained with semen but it was not taken into possession either by the Investigating Officer or by the Lady Doctor. Finally, it is contended that the statement of Mst. Majida an unmarried young girl, coupled with the injuries on her thighs, should have been sufficient to prove the charge against the respondents. In support of his contentions, the learned counsel has relied on Ghulam Sarwar v. The State P L D 1984 S C 218.

This petition is barred by six days. The learned counsel for the petitioner has tried to explain it in his application for condonation of delay and according to him there is clerical mistake committed by the office in computing the days. On a reference to the attested copy we find that it is not clearly so because one of the dates is over‑written and the date of presentation of the application noted is shown to be 5th of March, 1985 and it is not a patent mistake as such. We do not find the explanation to be satisfactory.

On examining the merit of the submissions of the learned counsel, for the petitioner, we find that not only the Lady Doctor who examined Mst. Majida but even the trial Court before which she gave her statement; and stood the test of cross‑examination has formed an opinion about her which can be said to be credit to her. The conclusions drawn are not totally unjustified. The Federal Shariat Court has given full effect to those conclusions while determining the guilt of the respondents. It was only an extension of the exercise undertaken by the trial Court. We find that in acquitting the respondents no principle of law has beer, violated nor any material fact ignored. Hence this is not a fit case for leave to appeal. The petition is, therefore, dismissed.

M.Y.H. Petition dismissed.

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