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Criminal Appeal No. 144/L of 1986, decided on 23rd November1986

‑‑‑S.10 (2)‑‑Zina liable to Tazir‑‑Accused allegedly catching hold of-‑prosecutrix in sugarcane field and forcibly committing Zina‑bil‑Jabr with her‑‑Two witnesses having reached on hearing noise, saw prosecutrix naked and accused running away‑‑One witness found independent and not interested‑‑Defence of accused of false implication for avoiding payment of small loan by father of prosecutrix found improbable and discarded by Trial Court for cogent 'reasons‑‑Delay in lodging F.I.R. satisfactorily; explained‑‑Vaginal swabs found stained with semen‑‑No error committed in appreciation of evidence by Trial Court‑‑Accused being aware of fact that prosecutrix was not married to him, for safe administration of justice, offence of sexual intercourse with prosecutrix, held, would be Zina liable to Tazir in circumstances.

Ch. Muhammad Abdus Saleem for Appellant.

Muhammad Ashraf Khan for the State.

Date of hearing: 23rd November, 1986.

This is an appeal against the order of conviction passed on 28‑4‑1986 by. the Additional Sessions Judge, Sheikhupura whereby the appellant Muhammad Siddique son of Rehmat Ali Arain resident of village Chaba Chak No.169/R.B., District Sheikhupura has been found guilty of offence under section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979 (hereinafter referred to as the Ordinance) and sentenced to undergo R.I. for seven years and whipping numbering 20 stripes with a fine of Rs.2,000 or indefault of payment of fine to further undergo. R.I. for six months.

2. While perusing the impugned order at the, very outset, it was found that the conviction has been recorded under section 10 (2) of the Ordinance but the sentence of whipping passed against the accused appellant is not in accordance with the mandatory requirement of Law. Accordingly, we ordered the issuance of a notice for enhancement. The learned counsel for the appellant accepted the notice and has addressed us on that aspect also.

This judgment would, therefore, take into, account that notice also.

3. The allegations against the accused are contained in the F.I.R. which was formally recorded on the basis of the statement of Mst. Sarwari daughter of Rehmat Ali (P.W.1) made before Muhammad Mushtaq (P.W. 6) A.S.I. Police Station. Farooqabad, District Sheikhupura who was en duty at Chowk Phularwan on 20‑8‑1985 at about 6‑00 p.m. Mst. Sarwari in her complaint alleged that on 19‑8‑1985 at about 8/9 a.m. She went to the nearby sugarcane field of Nazir Ahmed for easing herself, the accused Muhammad Siddique who was passing nearby came to the sugarcane field caught hold of her forcibly, felled her on the ground, removed her Shalwar. Though she raised noise but Muhammad Siddique committed Zina‑bil‑Jabr with her. Abdul Hameed and Barkar Ali residents of the village reached the spot but seeing them, the accused slipped away. Barkat Ali provided her with a cloth, she came home and narrated her tale to the parents. The accused/ through respectables continued entreaties to her parents and prevented her to come to police station. It was on 20‑8‑1985 that she, accompanied by her uncle Barkat Ali was coming to the police station for lodging the report about the occurrence that she met A.S.I. Muhammad Mushtaq (P.W.6) in the way and got recorded her statement: On receipt of this statement through Shah Muhammad F . C. in the Police Station the formal F.I.R. was drawn by Umar Hayat Muharrir Head Constable of the Thana, Muhammad Mushtaq proceeded to the site of occurrence, inspected the same, prepared site plan sent Mst. Sarwari to the D.H.Q. Hospital Sheikhupura where she was examined by lady Dr. Miss Zahida Parveen (P.W .3) . The result of examination was incorporated in her report Exh.P.B. It contained the following observations about Mst. Sarwari.

"No mark of violence on any part of the body especially genitalia and breast. Hymen absent. Multiple old healed tears bilaterally present. Vagina admits two fingers loosely and examination is not painful."

Two vaginal swabs were taken for the detection of semen.

The sealed parcel was taken by Muhammad Anwar (P.W.5) to the Chemical Examiner, Lahore and the positive report was received. The accused/ appellant was arrested on 24‑8‑1985 and got examined from Civil Hospital, Sheikhupura and Dr.Asif Mahmood (P.W.7) declared that he is fit to perform the sexual intercourse (vide report Exh.P.G.) and after the completion, 'of the formal investigation the accused was sent up for trial.

4. The accused/ appellant denied the charge and claimed to be tried. The prosecution produced seven witnesses. Out of these seven witnesses Umar Hayat (P.W. 4) Muhammad Anwar (P.W. 5) are formal witnesses while the fact found by Dr. Asif Mahmood (P.W. 7) was not challenged by the accused neither at the trial nor before us. The material witnesses are Mst.Sarwari (P.W.1) the prosecutrix, Abdul Hameed (P.W.2), Lady Dr. Miss Zahida Parveen (P.W.3) and Mushtaq Ahmad A.S.I. Police (P.W.6) the Investigating Officer in this case.

5. Mst. Sarwari (P.W.1) repeated the story she had earlier narrated before Mushtaq Ahmad as contained in the F.I.R., Abdul Hameed (P.W.2) in his deposition at the trial stated that on hearing the noise "I have been caught, rescue me" coming from the sugarcane field went there and saw that Mst. Sarwari was lying naked and Siddique accused was committing Zina with her. Seeing him and Barkat, the accused picked up his Chaddar and ran away. "We picked up the Shalwar and handed it over to her" (Mst. Sarwari) Then Mst. Sarwari was brought to the village to the house of her parents.

Both these witnesses were cross‑examined at length but nothing has been brought on record which may exonerate the accused. In answer to the question No.5 the case was put by the accused in these words.‑--

"The case has been registered against me due to a dispute over the payment of fertilizer of Rs.2.400 which I had given to the father of the prosecutrix who did not pay back the price of the fertilizer to me and on my demand he involved me in this false case."

The accused in his statement recorded under section 340 (2), Cr.P.C. repeated the stand taken by him earlier and produced witnesses who made an attempt to set up a new case different from the one taken by the accused. The depositions made by the defence witnesses talked about general rumour in the village about Mst. Sarwari but no such suggestion was put to her while she was in the witness‑box. Even the accused did not make any such allegations about Mst. Sarwari. The trial Court considered the defence, as narrated by the defence witnesses as after thought but finding no marks of violence on the body of the prosecutrix expressed his opinion that Mst.Sarwari might have consented to the sexual intercourse and her raising the alarm might have been on her being surprised by some one at the relevant time and 'also to shift the entire blame of Zina on the male partner.' The accused was, therefore, found guilty of Zina as punishable under section 10(2) of the Ordinance.

6. The learned counsel for the appellant has urged the following grounds before us:‑

(a) That the F .I. R. was lodged after considerable delay and the chahce of padding cannot be ruled out.

(b) The prosecutrix (P.W.1) has not been corroborated by independent witness and as such her testimony, alone cannot form the basis of conviction.

(c) That the site plan and the medical report do not corroborate the version of the prosecutrix as no blood‑stained clothes and earth were found as such P . W. 1 being an accomplice could not be believed and it was also urged that no grouping of semen was done.

7. We have heard the learned counsel for the appellant and perused the record minutely in the light of the submissions made before us and could not pursuade ourselves to take a different view of the evidence as taken by the trial Court. P.W.2 (Abdul Hameed) has been adjudged as an independent and uninterested witness by the trial Court. The defence of the accused has been discarded by the trial Court for cogent reasons. We are in agreement with the learned trial Court that no parent or relation can possibly think of bringing a false charge of Zina involving the honour and respect of their daughter for fear of disgrace and humiliation which the publicity of the act would cause. The petty amount of Rs.2,400 which the accused pleaded in his defence was due from the father (as per statement recorded under section 342, C r. P . C . or brother as per his statement under section 340 (2) , C r. P . C . would not induce them to pursuade the daughter/sister to come out with such a nasty allegation which stakes the very honour and prestige of the entire family. The delay has been explained in the F.I.R itself and the trial Court has accepted the same. And we find no reason to differ with the trial Court. The Chemical Examiner's report established that the vaginal swabs of the prosecutrix were found stained with semen. She was found naked by the P.W.2 and accused running from, the fields. Thus, it is established that it was the accused who has/ indulged in the commission of Zina with the prosecutrix. These witnesses have been believed by trial Court and we find no error in the appreciation of evidence. The accused was aware of the facts that Mist. Sarwari was not married to him. The sexual intercourse with her in such circumstances brings home the guilt of the accused. We agree with the trial Court that for the safe dispensation of justice the accused can be held for Zina liable to Tazir as provided under section 10(2) of the Ordinance.

8. For the above reasons, we maintain the conviction of the accused but reduce the substantive sentence of seven years to five years and maintain the fine imposed by the trial Court and enhance the sentence of whipping to 30 (thirty) stripes to bring it in conformity with the mandatory requirements of Law. The appellant shall also get the benefit of section 382‑B, Cr.P.C.

S . A Appeal dismissed.

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