1995 PLP 1498 (SCMR)

‑‑‑‑S. 10(2)‑‑‑Appraisal of evidence‑‑‑Since the prosecutrix had judicially been found a Zania and her statement with regard to her abduction and commission of Zina‑bil‑Jabr by the accused with her had been found false, she was basically a dishonest witness and no implicit reliance could be made on her statement‑‑ In the absence on any independent reliable evidence of the commission of Zina by the accused with the prosecutrix, he could not possibly be convicted‑‑ Accused was acquitted in circumstances. Sh. M. Naeem and Munir Peracha, Advocates for Appellant. Raja Abdul Ghafur, Advocate for the State. Date of hearing: 18th April, 1995. MUHAMMAD MUNIR KHAN, J.‑‑‑This appeal arises from the facts that Abdul Waheed appellant was tried on the charges of abduction of Mst. Robina Kausar, committing Zina‑bil‑Jabr with her, and taking away Rs.20,000 in cash and 2/1‑2 Tolas of gold of Mst. Robina Kausar, by Additional Sessions Judge, Sheikhupura, who, on 11‑1‑1992, while acquitting him of the charges under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and section 14 of the Offences Against Property (Enforcement of Hudood). Ordinance, 1979, convicted him under section 10(2) of the Ordinance and sentenced him to ten years' R.I., a fine of Rs.5,000 and in default to undergo further R.I., for six months, and thirty stripes. The appeal filed by him against his conviction and sentence was dismissed by the Federal Shariat Court on 2‑9 1992. Feeling aggrieved thereby, he filed petition for leave to appeal in this Court which was allowed to consider whether on the statement of Mst. Robina Kausar, who was found accomplice in the crime, the conviction could be recorded without corroboration.

2. In her statement, Mst. Robina Kausar has stated that at the eventful time she was in her house in village Fattuwala. Abdul Waheed came there and on the pretext of the illness of his wife he requested for some money whereon she took Rs.20,000 from her house and left her house accompanied by the appellant for Ganga Ram Hospital by a bus. On reaching Lahore, Abdul Waheed took her to a house in Gulberg‑111, Lahore. He forcibly removed golden ornaments from her person, committed Zin‑bil‑Jabr with her and kept her in that house for about one month and had been committing Zina‑bil‑Jabr with her. After a month, he took her in a car to Muridke and kept her there for two months and continuously had been committing Zina‑bil‑Jabr with her. He then removed her to Feroze Wattwan in a car and kept her there for five months. One day, finding opportunity, she escaped from the custody of the appellant and went to Police Station Sharqpur where she lodged the report.

3. Lady Doctor Ghazala Bhatti P.W.1 examined Mst. Robina Kausar on 11‑5‑1989. She found that the hymen was torn with old healed margins. She took two vaginal swabs for the detection of semen. The report of the Chemical Examiner revealed that the swabs were stained with semen. There is no other evidence on the record about the commission of Zina‑bil‑Jabr by the appellant with her. In his statement under section 342, Cr.P.C., the appellant has denied all the incriminating circumstances.

4. The trial Court came to the conclusion that Mst. Robina Kausar had voluntarily accompanied the appellant and subjected to his lust voluntarily.

5. Learned counsel for the parties have been heard. The conviction of the appellant rests on the solitary statement of Mst. Robina Kausar. There is no other evidence or circumstance to prove the commission of sexual intercourse by the appellant with her. The only question for consideration is as to whether in the circumstances of the case, the appellant could have been convicted on her solitary statement without independent corroboration.

6. We are of the considered view that since Mst. Robina Kausar had judicially been found a Zania and her statement with regard to her abduction and commission of Zina‑bil‑Jabr by the appellant with her, has been found false, so she was/is a basically dishonest witness and no implicit reliance can be made on her statement, unless there was independent reliable evidence of the commission of Zina by the appellant with her, it was not possible at all to convict him.

7. For what has been stated above, there being no satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is accepted. The conviction and sentence is set aside and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. N.H.Q./A‑1290/S Appeal accepted.