2008 PLP 914 (SCMR)

JUSTICE ZIA PERWEZ (MEMBER).

Criminal Shariat Petition No.20(S) of 2006 and Jail Petition No.18(S) of 2006 are being disposed of by this common judgment.

2. Criminal Shariat Petition No.20(S) of 2006 filed by petitioner Mst. Tasneem Akhtar alias Tasneem Kausar and Jail Petition No.18(S) of 2006 filed by petitioner Bashir Ahmed are directed against a common judgment, dated 25-11-2005 of the Federal Shariat Court at Lahore, whereby Criminal Appeals Nos.54 and 29-L filed by the petitioners respectively were dismissed.

3. The brief facts are that on 17-2-1998 complainant Abdul Sattar lodged F.I.R. with the Police Station Dera Raheem, District Sahiwal, against accused Bashir Ahmed and his sister co-accused Mst. Parveen alias Peena and Mst. Tasneem Akhtar alias Tasneem Kausar with allegation of committing Zina with her daughter, wherein he disclosed that he was working as a labourer at Lahore. On receipt of information about the sudden death of his daughter namely, Sajida Parveen, he came to his village, whereupon, his wife told him that accused Bashir Ahmed had developed illicit relations with their deceased daughter. Resultantly, Sajida Parveen became pregnant and the petitioner with the assistance of his sister namely, Mst. Parveen alias Peena tried to cover up the matter, took the deceased to Mst. Tasneem Akhtar alias Tasneem Kausar, mid-wife (Dai) for abortion: On return, the deceased was severely ill and admitted the above fact of Zina and her pregnancy before her mother in presence of witnesses Gulzar Ahmed and Ghulam Nabi. She died within a few hours on the same day.

4. After investigation trial was commenced against petitioners Bashir Ahmed and Mst. Tasneem Akhtar alias Tasneem Kausar before the learned Additional Sessions Judge, Sahiwal. The prosecution produced witnesses in evidence to prove the charge against the petitioners. Their statements were also recorded under section 342, Cr.P.C. On completion of the trial, the trial Court recorded a finding of guilt and convicted petitioner Bashir Ahmed under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979) and sentenced him for ten years' R.I. as Ta'zir with a fine of Rs.50,000 or in default to undergo two years' R.I. He was also convicted under sections 316/109, P.P.C. and awarded fourteen years' R.I. along with payment of Diyat amount. The petitioner was also convicted under sections 338-A/109, P.P.C. and awarded three years' R.I. Petitioner Mst. Tasneem Akhtar was convicted under section 316, P.P.C. and awarded fourteen years' R.I. with payment of Diyat. She was also convicted under section 338-A, P.P.C. and awarded three years' R.I.

5. The appeals preferred by the petitioners against their convictions and sentences and the appeal filed by the complainant for enhancement of the sentence were dismissed by the learned Federal Shariat Court, vide judgment impugned herein.

6. Mr. F.K. Butt, learned counsel for Bashir Ahmed petitioner contended that the evidence available on record does not make out the case for conviction of the petitioner. He further contended that both the learned Courts have failed to appreciate the evidence and argued that the statement of the deceased before her mother did not consider as an admission or dying declaration.

7. It has been contended on behalf of petitioner Mst. Tasneem Kausar by Mr. N.A. Butt, learned Advocate Supreme Court that the two Courts below have recorded the findings of guilt without proper appraisal of evidence. The learned counsel for the petitioner further contended that the F.I.R. has been lodged with an inordinate delay and there is no direct evidence connecting the petitioner with the commission of the offence. The learned counsel argued that Mst. Majeedan Bibi being the mother of the deceased is an interested witness.

8. We have heard the learned counsel for the petitioners and have perused the record.

9. The learned trial Court recorded the findings on the strength of admission of the. deceased before her mother Mst. Majeedan Bibi (P.W.2). The dead body of the deceased was exhumed and examined by lady Dr. Shagufta Waseem (P.W.1), who in her statement confirmed the fact of the pregnancy of the deceased and the fact that part of her uterus was missing and found upper part of the uterus i.e. Fundus was absent. Opening was present and it contained flesh bony cage (ribs of the fetus) plus membranes. All of them were sent to the Chemical Examiner, Lahore. The report of the Chemical Examiner (Exh.P.B.) confirmed presence of Ergot aloids. The Medical Officer in her cross-examination has admitted that bony cage or ribs of the fetus develop with four to five months of pregnancy. All the prosecution witnesses have been subjected to detailed cross-examination but did not result in any material contradictions and could not be shattered. The evidence of P.Ws. available on record shows that the findings of fact recorded by the learned trial Court and affirmed by the learned Shariat Court do not suffer from any legal infirmity calling for interference. There is no misreading, non-reading or misappreciation of evidence by the two learned Courts. No case for interference is made out.

10. Consequently, leave to appeal is refused and both the petitions being without any substance are dismissed. N.H.Q./T-3/SC Leave to appeal refused.