P L D 1989 Supreme Court 742 (PLP)

MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑‑This appeal by leave of the Court is directed against the partial acceptance by the Federal Shariat Court of appellant's appeal against conviction and sentence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979. It was altered to one under section 10(2). Leave to appeal was granted to examine some of the points which were then considered, prima facie, infirmities in the appraisal of the evidence by the two learned Courts below. Today after hearing the learned counsel in support of this appeal and after going through the relevant material we have not been able to find any such error either of law or principle in the appreciation of evidence. The stress of the learned counsel that the prosecutrix gave her age as 13 years while the medical examination revealed that she was of 16/17 years of age and similar other argument that on proper appraisal of the medical evidence it could be held that she being an unmarried girl was used to sexual intercourse, would not make much difference as even on acceptance of the submissions the case would remain of an offence under section 10(2), conviction now is not under section 10(3) of the Ordinance. This benefit, has already been allowed to the appellant with consequential reduction of sentence. The other argument based on the assumption that the prosecutrix in this case having been used to sexual intercourse should not have been relied upon because of her so‑called moral deprivity, is also not tenable as it is too wide to be accepted in every case. In the present case it is only an assumption that she might have been used to sexual intercourse and on that basis the benefit of possible consent has been allowed to the appellant in the conviction and sentence for lesser offence. Otherwise; firstly, the medical evidence does not disclose as to whether, the condition of the genitals of the prosecutrix was necessarily due to abusive sexual intercourse or on account of intercourse under compulsion or deceit etc. and/or; whether or not the condition found on examination was not on account of other causes including self‑abuse. Therefore, mere opinion of a Doctor, as in this case, would not weaken the testimony of the prosecutrix and would not for that reason necessitate any further corroboratory/ supporting evidence for basing the conviction on her statement, if otherwise she appears to be reliable and her testimony inspires confidence.?? In this case the two Courts below having carefully tested her veracity, we also have not been able to find any infirmity in the testimony of the prosecutrix. Accordingly there is no force in this appeal, the same is dismissed. M.B.A./M‑1043/S?????? Appeal dismissed.