1984 PLP 18 (SCMR)

JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑Leave to appeal has been sought, through this petition, from judgment, dated 20‑6‑1983 of the Federal Shariat Court whereby while dismissing the petitioner s appeal his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 and sentence of 14 years' R. I, and 20 stripes was upheld on a finding that he "committed a heinous offence by committing Zna‑bil‑Jabr with a girl of five years only and in my view the sentence is rather mild. It is accordingly maintained". The facts narrated in the petition are as follows :‑ "

3. That on 20‑3‑1982 Haji Allah Ditta, P. W. 1 got an F. I. R. recorded at Police Station, Nowshera Jadid under section .10 of Ordinance VII of 1979 wherein it was alleged that on 11‑3‑1982 his daughter Mst. Masoom Mai had gone with her brother Bashir Hussain, P. W.6 to transport sand on their donkey. Bashir Hussain is said to have left her younger sister Mst. Masoomi Mai for guarding the kassi. It is alleged that in the meantime ‑ the petitioner came who committed with her Zina‑bil-Jabr.

4. It is alleged that the occurrence was witnessed by P. W. 213akar Hussain nephew of the complainant and P. W. 6 Bashir Hussain (hostile) and Muhammad Bakhsh given‑up witness. 5.The petitioner was tried of these allegations by the learned Additional Sessions Judge, Bahawalpur who held that delay was explained by the father, compromise was proof of offence, the delay in the medical examination was of no value, statement of Bashir Hussain (hostile) was of no value and that the accused cannot be convicted under section 7 as he has obtained puberty, was pleased to convict the petitioner under section 10(3) by his order dated 20‑3‑1983 and awarded him 14 years' R. I. and twenty stripes." The questions raised in the petition are as follows :‑ (1) That if the witness improves his statement and tries to fill up lacunas left by the prosecution then his evidence is to be rejected. (2) That in a Court of Sharia if it is brought to the notice 'of the. Judge that a pardon has been granted then it is obligatory on the Court to take that pardon into consideration and follow it. (3) That the statement of a hostile witness cannot be rejected and it has to be taken in favour of the accused and a defect in the case put up by the prosecution. (4) That no conviction can be based on the solitary statement of a chance witness if it is not corroborated by independent source. (5) That a Court of Sharia while awarding the sentence is bound to consider the happening of an incident by chance, pardon by the complainant party, if any and the other circumstances because the sentence by a Shariat Court is with an object to reform the person." Learned counsel highlighted certain features in the evidence to support his contentions that the prosecution version is un probable and that in any case due to the compromise it was a fit case for reduction of sentence. He in particular relied on the statement of Bashir Hussain a body of 9/10 years, the brother of the victim girl and the so‑called compromise document, to support both the contentions. True an attempt was made by the defence to obtain a deposition from the boy which would have favored the defence but did not fully succeed. The two Courts have rightly relied on the statement of Baqar Hussain the eye‑witness and the circumstantial material to convict the petitioner. We have no reason to differ on the question of apprecia tion of evidence. And on the question of compromise suffices it to observe that it has not been satisfactorily proved. The sentence awarded to the petitioner also does not merit interference. This petition fails and is accordingly dismissed. M. Z. M Petition dismissed.