1994 PLP 1218 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Muhammad Aslam, appellant, through leave of the Court, calls in question the judgment dated 6‑7‑1992 of the Federal Shariat Court, whereby his appeal against the judgment of the learned Additional Sessions Judge, Sargodha dated 20‑2‑1990 convicting him for Zina‑bil‑Jabr with Mst. Kanizan Bibi P.W.2 and sentencing him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to ten years' R.1. and thirty stripes; and for causing Mst. Kanizan Bibi to miscarry was sentenced under section 312, P.P.C. to three years' R.I., was dismissed with the only modification that the offence under section 10(3) was converted into under section 10(2) of the Ordinance and sentence reduced to five years' R.I. and thirty stripes. The leave granting order is reproduced as under:‑ "Leave is granted in the case to consider whether the evidence in the case, justified the conviction of petitioner under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 312, P.P.C. and that the delay of 9 months in lodging the F.I.R. was not fatal in the circumstances of the case. The question of limitation will be considered at the hearing of the appeal." The facts of the case, briefly stated, are that Mst. Kanizan lodged a report in the Police Station Karrana on 12‑5‑1989 to the effect that some nine/ten months prior to it she was going to dera of his father to serve him the meals and while passing in front of the dera of the appellant he caught hold of her and committed Zina‑bil‑Jabr with her three or four times as a result of which she became pregnant, thereafter he administered her pills resulting in the abortion of the child. After completion of the necessary investigation the appellant was put on trial before the learned Additional Sessions Judge and the trial Court after framing of the charge‑sheet, recording of evidence, statement of the accused, convicted the appellant under section 10(3) of the Ordinance ibid read with section 312, P.P.C. and sentenced him as stated in the introductory part of the judgment. His appeal before the Federal Shariat Court was dismissed with the modification of the section under which he was convicted and reduction of sentence. Hence the instant appeal through leave of the Court. We have heard Mr. Muhammad Munir Peracha, Advocate, for the appellant, and have perused the record of the case. Admittedly there is inordinate and unexplained delay in the lodging of the F.1.R. The complainant admitted in her statement that the appellant had been committing Zina‑bil‑Jabr with her after the interval of 10 to 15 days resulting in her pregnancy and ultimately she was provided with pills by the appellant for miscarriage of the child. Taking these factors into consideration the learned Federal Shariat Court dubbed her as a consenting party and altered the conviction from under sections 10(3) to 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In the presence of this finding her status became that of an accomplice and without independent corroboration, direct or circumstantial, it was not safe to base the conviction of the appellant on her bald testimony. It is evident from the record that in fact the appellant had moved the investigating agency through the submission of an application that the complainant had been indulging in Zina with one Muhammad Ashraf and during the course of inquiry on that application lady doctor Mrs. Jameela Lodhi P.W.3 examined Mst. Kanizan Bibi P.W.2 on 4‑4‑1989, prior to the lodging of the F.I.R. and found her hymen torn with old and healed tears and healed vaginal laceration and that she had aborted within four weeks and 20 to 24 weeks of pregnancy. It was also opined that the complainant was not virgin and was habitual to sexual intercourse. The F.I.R., as stated earlier, was recorded on 12‑5‑1989 after the inquiry on the application submitted by the appellant. On the appraisal of the material on record, we are of the opinion that the charge against the appellant is not free from doubt. Resultantly, we accept this appeal, set aside the judgment of the trial Court as well as of the Federal Shariat Court and acquit the appellant. N.H.Q/M‑1963/S Appeal accepted.