1983 PLP 831 (SCMR)

Date of hearing : 27th June, 1983. MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal has been sought from judgment dated 27‑3‑1983, of the Federal Shariat Court; whereby the petitioner's conviction and sentence of 10 years' rigorous imprisonment and 20 stripes under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, was upheld and his appeal in this behalf was dismissed. The prosecution case. as contained in the deposition of Mst. Mauj Bibi, prosecutrix, is that on 27‑10‑1980 at about 9‑00 a.m. when she was coming back after serving‑ meals to her father in the fields and was near the tube well of one Shamsuddin, Muhammad Akram, petitioner came forward, caught hold of her hand and committed rape on her. She resisted on which he slapped ‑her and also gave her some fist blows. She raised alarm. When Rahman (P. W.) and Ismail (P. W.) arrived at the scene of occurrence, the petitioner ran away. She came to her house and waited for return of her father Fazal Din (P. W.) who after hearing the narration from his daughter went to the Police Station for lodging a report but they refused to do so. It may be mentioned here that the police later on registered a case under section 354, P. P. C., the correctness of which was not owned by Fazal Din. He got the prosecutrix medically examined and lodged a private complaint, explaining therein the need for lodging the complaint, namely, the hostility in the attitude of the police. Both the learned Courts below, notwithstanding the plea of false implication raised from the petitioner's side, relied on the testimony of Mst. Mauj Bibi which was held to have support from independent sources and found him guilty. Learned counsel for the petitioner has criticised the manner in which the prosecution evidence was considered and appreciated by the learned Courts below. He has reiterated the main point taken in the ground, of the petition for leave to appeal and has also read the relevant material and evidence, during the hearing of this petition. It is not possible to agree with the learned counsel that in case corrobo ration was needed for the testimony of Mst. Mauj Bibi, the same is nor forthcoming in the statement of Ismail (P. W.) as held by the Federal Shariat Court. He had no animosity against the petitioner so as to falsely name him as the culprit, nor we have been impressed by the so‑called infirmities including omissions in his statement. It may be mentioned here that/ although, according to the learned counsel. Rehman the other eye‑witness has been disbelieved by the Federal Shariat Court by not discussing his evidence, we have not discovered anything in his statement either to show that he had any reason to falsely support the case of prosecutrix. It is thus not a case of absence of corroboration. However, there is another more important circumstance. The petitioner's defence plea before the trial Court was that although the prosecutrix was subjected to sexual intercourse, the culprit was a son of Rehman (P. W.) and not the petitioner. He also asserted that the said was a case of mutual consent. If the occurrence is not denied the only question which required the determination in this case was whether the prosecutrix substituted falsely the name of Muhammad Akram for another person with whom she had sexual intercourse and further that the false implication as stated by the petitioner was on account of the reason that he had seen the incident alleged by him and had disclosed it to the villagers. There is no evidence worth even of mentioning, which could lend support to the petitioner's plea. Even the police which undoubtedly, according to the finding. of the Federal Shariat Court, wanted to help the petitioner, registered a case against him though for a lesser offence. If the petitioner, as asserted by him, had told the police that the prosecutrix bad sexual intercourse with the son of Rehman (P. W.), the police would have readily registered the case against the person named by him. After hearing the learned counsel at some length,‑ we do not find any justification for interference. This petition accordingly is dismissed. Petition dismissed,