P L D 1984 Federal Shariat Court 39 (PLP)

Muhammad Jamil Khan for the State. Date of hearing : 11th January, 1983. The appellant Mst. Rafaqat Bibi alongwjth Muhammad Suleman was charged with committing Zina by the learned Additional Sessions Judge, Abbottabad at Haripur, who also charged co-accused Mst. Farooq Jan, Mst. Shakeela Bibi, Haider Zaman and Shafiq-ur-Rehman for abetment of the aforesaid offence. Whereas all the other accused including Muhammad Suleman were acquitted, Mst. Rafaqat Bibi was convicted under section 10(2) of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to five years' R. I., five stripes and a fine of Rs.500 or in default to undergo further R. 1. for three months. The appellant has filed the instant appeal against her aforesaid conviction and sentence.

2. At the very outset it may be stated that there was no other evidence with regard to the alleged commission of offence of Zina by the appellant except her confessional statements in which, however, she had clearly stated that Muhammad Suleman, the acquitted accused, had committed Zina-bil- Jabr with her. It may also be stated here that Muhammad Jamil Khan the learned counsel for the State has not supported the conviction of the appellant.

3. There was the evidence of Dr. Mrs. Mumtaz Khattak who had examined the appellant on 17-12-1982 that the appellant had 8 months pregnancy at the time of her examination. However, the aforesaid evidence cannot be considered sufficient to convict the appellant for commission of offence of Zina which has been defined in section 4 of the Ordinance, and inter alia involves wilfully having sexual intercourse. In the instant case according to the appellant there was no wilful participation in the sexual intercourse by her as Muhammad Suleman committed Zina-bil-Jabr with her. This statement of the appellant is also supported by the fact that it was she who had complained by addressing an application to the Sub-Martial Law Administrator, Abbottabad which ultimately came to be registered as F. I. R.1 wherein she had expressly stated that she had been made to submit forcibly) to sexual intercourse by Muhammad Suleman. Mr. Asif Hussain Siddiqi, the' learned counsel for the appellant has referred to the decision of this Court (Criminal Appeal No. 119/1 of 1983) in the case of Mst. Shanaz Bibi wherein it had been held "that confession must be read as a whole and that exculpatory portions cannot be ignored unless there is evidence on record to prove their incorrectness". In that decision reliance was also placed on the decision of Supreme Court in Najib Raza Rahmani v. The State (P L D 1978 S C 200).

4. The learned counsel for the appellant has also referred to the decision of this Court in Criminal Appeal No. 123/1 of 1983, namely Mst. Safia Bibi v. The State. In that case there was no evidence against the appellant and conviction was based on the fact of her pregnancy and motherhood which the trial Court had considered as evidence of culpability. In that case it was observed as under :- "Confession should be read as a whole and exculpalory portions therein cannot be excluded from consideration unless there is evidence on record to prove those portions incorrect." It was, therefore, held that in absence of any evidence to establish sentimental attachment for co-accused it could not be said that sexual intercourse was indulged into wilfully.

5. Since in this case the confessional statement is being made the basis of the conviction it is to be read in its entirety arid exculpatory par cannot be separated out and mere conjectures cannot be considered a g evidence of consent. The appeal is, therefore, allowed, the conviction and sentence set aside and the appellant acquitted. She is on bail and her bail bond stands cancelled. M.Y.H. Appeal accepted.