1998 PLP 1221 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The above acquittal appeal by the State is filed against the judgment of learned Chief Justice of Federal Shariat Court dated 28-7-1993 acquitting the respondent in the case of the charge under section 457, P.P.C. Respondent was tried for offences under section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance 1979, hereinafter to be referred 'the Ordinance' only, and section 457, P.P.C. by Additional Sessions Judge, Haripur. By judgment dated 15-6-1993, the trial Court convicted the respondent both under section 457, P.P.C. and section 10(3) of the Ordinance. He was sentenced to 7 years R.I. and 30 stripes under section 10(3) of the ordinance. He was also awarded 3 years R.I. under section 457, P.P.C, On appeal the learned Chief Justice of Federal Shariat Court acquitted the accused/respondent of the charge under section 457, P.P.C. and converted his conviction under section 10(3) of the Ordinance to section 10(2) of the Ordinance and accordingly; reduced the sentence of imprisonment to 3 years R.I., and fine of Rs.5,000 and in default of payment of fine to suffer R.I. for 6 months. He was also given the benefit of section 382-B, Cr.P.C. In acquitting the respondent of the charge under section 457, P.P.C. and converting the conviction of respondent from section 10(3) to section 10(2) of the Ordinance, the learned Chief Justice observed as follows:-- "

4. The material evidence against the appellant is that of Mst. Misri Jan and her daughter Mst. Shamim Akhtar. In her F.I.R. Mst. Misri Jan has not disclosed the name of her daughter Mst. Shamim Akhtar to be present there. The complainant has said that she herself had gone to the house of her father-in-law Hayat Muhammad Khan and informed the incident to her mother Mst. Resham Jan and other witnesses Muhammad Azad, -Muhammad Ghulam Haider and Muhammad Hussain. Before the trial Court only Mst. Shamim Akhtar had been examined. The other witnesses were dropped by the prosecution. Mst. Shamim Akhtar has not said anything regarding raising of cries by Mst. Misri Jan.. She has said that as her mother did not turn up for 15 minutes. she went to the upper portion of the house where she found that her mother was weeping and the appellant ran away. Non-raising of cries by Mst. Misri Jan reflects her consent to the sexual intercourse. She must have created drama after she was found to be in coitus with the appellant by her daughter who is aged about 15/16 years. Mst. Misri Jan being consenting party to the sexual intercourse, the appellant cannot be held guilty for offence under section 10(3) of the Ordinance. His conviction is, therefore, converted from section 10(3) to ~) section 10(2) of the Ordinance. As Mst. Misri Jan was consenting party, the appellant cannot be held to have tres-passed into her house. Possibly he might have been invited for the purpose of sexual intercourse to the house. The conviction and sentence of the appellant under section 457 P.P.C., are therefore, not maintainable. His appeal in respect of the same is accepted. He is acquitted of the charge under section 457, P.P.C. However, for offence under section 10(2) of the Ordinance, he is sentenced to suffer R.I. for three years and fine of Rs.5,000, in default to suffer R.I. for six months more. He is also entitled to get benefit of section 382-B Cr.P.C." The learned State counsel is unable to point out any legal infirmity in the above conclusions of the learned Chief Justice. The petition is, accordingly, dismissed and leave to appeal is refused. A.A./S-993/S Leave refused.