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Criminal Appeal No. 25(S) of 1985, decided on 14th September, 1985.

(On appeal from judgment, dated 2‑9‑1984 of the Federal Shariat Court in Criminal Appeal No. 16/L of 1984).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S. 10(2)‑‑Zina‑‑Factum of Zina inferred from circumstances that both accused were lying naked on one cot and were caught red‑handed while allegedly committing Zina but none of eye‑witnesses alleged about penetration of male organ or its withdrawal when culprits were surprised by them and caught them red‑handed‑‑Accused a married woman with four children coming from far off place on very day of incident and detection of semen in vaginal swabs a neutral and not a corroborative circumstance‑‑Inference drawn by Federal Shariat Court parties were lying together in a naked position they were held, not to cable in circumstances.

‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2) & 18‑‑Zina‑‑Penetration essential to constitute offence of Zina‑‑In absence of any clear and categorical assertion by witnesses of having seen any penetration, safer course was to hold accused guilty of an offence of attempting to commit Zina‑bil‑raza and accused would be liable to conviction under section 18 of Ordinance.

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2) & 18‑‑Zina‑‑Clear evidence as to penetration not available and accused only found lying together on one cot in a naked position‑‑Accused, held, guilty of attempt to commit Zina‑bil‑raza‑ Conviction of accused changed from under S.10(3) to S.18 of Ordinance and sentence of imprisonment reduced and sentence of stripes imposed upon her set aside.

Masud Akhtar, Advocate‑on‑Record for Appellant.

Ejaz Ali, Advocate‑on‑Record for A.‑G. Punjab for the State. Date of hearing: 14th September, 1985.

‑Rustam Ali, a malang, residing at the shrine of Baba Haider Imam situated in Chak No. 18/KB, Tehsil Pakpattan Sharif and Mst. Elahi Sain (the appellant herein), a woman aged 40 years‑‑a devotee of the said shrine‑‑who had come from Bahawalnagar to pay homage on the day of the incident, were caught red‑handed lying together on a cot in a naked position outside the residential Kotha of Rustam Ali, malang. They were tried under the Zina (Enforcement of Hudood) Ordinance VII of 1979 for committing Zina‑bil -raza and found guilty under section 10(2) of the Ordinance and sentenced to undergo 3 years R.I. each and to be inflicted 20 stripes each. A fine of Rs.1,000 was also imposed and in default of payment thereof they were to undergo further R.I. for six months each by the Additional Sessions Judge‑II, Sahiwal Camp Pakpattan Sharif, who tried this case.

Mst. Elahi Sain alone challenged her conviction and sentence by filing an appeal before the Federal Shariat Court, while her co‑convict Rustam Ali, malang, did not file any appeal against it. The learned Judge of the Federal Shariat Court, who heard the appeal, came to the conclusion that as both the accused were found naked lying together on one cot and according to the witnesses were committing sexual intercourse the offence of Zina was established. As to the argument that the witnesses had not stated categorically about Rustam Ali accused having penetrated his organ into the vagina of Mst. Elahi Sain, therefore the offence of Zina was not established, the learned Judge observed that since the accused were not legally married to each other or were otherwise justified to lie together, in a naked position, on one cot the only possible inference that arose in such a situation was that the accused were indulging in sexual intercourse. Moreover, the testimony of the eye‑witnesses stood corborated by the medical evidence. This mainly consisted of the report of the chemical examiner to whom the vaginal swabs of Mst. Elahi Sain were sent for detection of semen and he had found the swabs to be stained with semen. The learned Judge, therefore, upheld the conviction and sentence imposed upon Mst. Elahi Sain and dismissed her appeal. Hence the present appeal.

We have heard the learned counsel for the parties who have taken us through the record.

We observe that both the accused had denied that they were indulging in sexual intercourse. In fact, the case of Rustam, malang, was that some of his enemies, who were interested in ousting him from the Darbar, concocted this case against them. Thus, this is not a case where the woman with whom sexual intercourse has been performed is alleging that she had been raped by the male accused. Hence clear and categorical evidence would be necessary to establish that the parties had committed Zina.

In this case we observe that the factum of Zina has been inferred from the circumstance that both the accused were lying naked, on one cot and were caught red‑handed in this position while allegedly committing Zina. However, none of the eye‑witnesses alleged about the penetration of the male organ in the vagina of the female or the withdrawing of the male organ there from when the culprits were surprised by them and caught them "red‑handed". Mst. Elahi Sain is a married woman, with four children and had come from Bahawalnagar on the very same day that this incident took place and, therefore, the detection of semen in the vaginal swabs is only a neutral and not a corroborative circumstance. We cannot, therefore, agree with the learned Judge of the Federal Shariat Court that the only inference that could be drawn in the circumstances of the parties lying together in a naked position was that the accused were committing Zina. On the other hand in the absence of any clear and categorical assertion by the witnesses of leading teen any penetration and in the absence of any other indication positive conclusion about penetration which is essential to constitute the offence of Zina, the safer course was to hold them guilty of an offence of attempting to commit Zina‑bil‑Raza and, therefore, liable to conviction under section 18 of the Ordinance.

We would, accordingly, allow this appeal to the extent that the conviction of Mst. Elahi Sain shall be altered from one under section 10(2) to section 18 of the Ordinance and she shall be sentenced to imprisonment for a term of three years. However, the sentence of fine and infliction of stripes imposed upon her is hereby set aside. In case she has already served the sentence of imprisonment she shall be set at liberty forthwith.

The appeal of Mst. Elahi Sain is accepted in the terms indicated above.

M.Y.H Order accordingly.

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