1983 PLP 816 (SCMR)

NASIM HASAN SHAH, J.‑At 3 or 4 p. m. on the afternoon of 15th August, 1981, Mst. Shahnaz Bibi, daughter of Rehmat Ali had gone from her house to a nearby field situate in Colony Ghulam Rasul belonging to Manzoor Ahmad (Lobar) for answering the call of nature. She had just eased herself and was tying her shalwar when the petitioner herein Muhammad Riaz and Yousuf accused arrived at the spot. Riaz allegedly gave her a push and felled her on the ground, while his companion Yousuf held her from her neck and gagged her mouth so as to prevent her from shouting and uttering any cries facilitating Muhammad Riaz to commit rape (Zina‑bil‑Jabr) upon her without interruption. Mst. Shahnaz, however, continued to make efforts to extricate herself from his clutches which efforts resulted in the breaking of her bangles. Soon after she was released by him, Waris son of Mahand Bakhsh, P. W. 8 and one Habib were attracted to the spot and. according to them, they saw Muhammad Riaz, Yousuf and also Manzoor (Lobar) standing in the chari field. At this moment, Mst. Shahnaz Bibi was allegedly putting on her shalwar. The F. I. R. lodged at the Police Station, Narowal by Mst. Shabnaz on the next day. The police appears to have challened Muhammad Riaz only considering the other two persons named by her, namely, Muhammad Yousuf and Manzoor Ahmad to be innocent. However, the learned Additional Sessions Judge, who was trying the case decided to summon Muhammad Yousuf as an accused to also stand his trial vide his order dated 13‑3‑1982. He, however, found nothing incriminating against Manzoor Ahmad (Lobar) and, therefore, did not summon him as an accused person. On the conclusion of the trial, the learned Additional Sessions Judge, by his judgment dated 18‑9‑1982, held Muhammad Riaz guilty under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo R. I. for 7 years and also that he be whipped and inflicted 30 stripes. Muhammad Yousuf accused was also held guilty under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but as he was only vicariously liable for this offence he was sentenced to undergo 4 years' R. I. only but also awarded the same sentence of whipping, namely, 30 stripes. On the appeal of the convicts, a learned Judge of the Federal Shariat Court came to the conclusion that as Muhammad Yousuf was not challaned by the police but was summoned by the Additional Sessions Judge he should have beets asked whether he would like to be tried by the Court summoning him or by some other Court. As he had failed to do so, the provisions of section 1.91, Cr. P. C. were violated and the trial against him stood vitiated. The conviction and sentence awarded to him was, accordingly, set aside and he was acquitted of the charges against him. Reliance was placed on the case of Abdus Sattar Molla v. The Crown (P L D 1953 F C 145) for coming to this conclusion. However, so far as Muhammad Riaz was concerned, it was opined that the testimony of the prosecutrix could be relied upon. Moreover, her statement stood corroborated by the medical evidence of the Lady Doctor Mrs. Ibrar Hashmi, P. W. 1, and Dr. Muhammad Hanif, P. W.

4. Support thereto was also found from the statement of Waris, P. W. 8, the report o A the Chemical Examiner, Exh. P‑A, which showed that there were stains of semen on her shalwar and some other circumstances. It was, therefore, held that the case of the prosecution against him stood established beyond any shadow of doubt. His conviction and sentence was accordingly maintained and his appeal was rejected. Hence this petition for leave to appeal. Ch. Muhammad Iqbal, learned counsel for the petitioner, in the course of his lengthy address, has, in support of this petition for leave to appeal, taken us through all the relevant evidence and tried to show that the allegations that Mst. Shahnaz was the victim of rape are incorrect, and that if rape was, indeed, committed upon her, this was not the act of the petitioner but that of his enemy, one Zahid Butt. Some other alleged infirmities in the prosecution case were also referred to. After having heard the learned counsel for the petitioner at full length we find no force in these submissions and find that no case‑ for interfering with the findings of fact recorded by the Courts below that Mst. Shahnaz Bibi was the victim of rape by Muhammad Riaz, petitioner herein, has been made out. The learned counsel then submitted that the benefit of the finding of the learned Judge of the Federal Shariat Court, while setting aside the conviction and sentence of Muhammad Yousuf on the ground that the trial Court had failed to comply with the provisions of section 191, Cr. P. C. was liable to be extended to the petitioner also. In support of this submission; reliance was placed on a decision of a learned Single Judge of the Lahore High Court in the case of Babu and others v. The State (1969 P. Cr. L J 226). We have seen the judgment in this case and observe that the learned Judge in the High Court has merely relied upon the decision of the Federal Court in the case of Abdus Sattar Molla v. The Crown (P L D 1953 F C 145) while deciding the case before him. A ‑close scrutiny of the judgment in the last mentione4 case, as also the judgment relied upon by the learned counsel for the petitioner shows that the benefit of the error committed by the trial Court taking cognizance of the Offence under section 190(1) (c) of the Cr. P. C. in no complying with the provisions of section 191, Cr. P. C. was made available only to the accused the cognizance of whose case was taken under section 1901 (1)(c), Cr. P. C. and not to any other accused. The result is that this petition must fail and dismissed hereby. Petition dismissed.