1985 PLP 1443 (SCMR)

Karam Elahi Bhatti, Advocate‑on‑Record for Advocate‑General, Punjab for the State. Date of hearing: 14th May, 1985. NASIM HASAN SHAH, J.‑‑ The appellant was convicted under section 18 read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to four years' R.I. and infliction of 15 stripes by order of the Additional Sessions Judge, Toba Tek Singh, dated 15‑6‑1983. He appealed to the Federal Shariat Court against his conviction and sentence but the same was dismissed vide order, dated 30‑11‑1983 passed by a learned Single Judge of the Federal Shariat Court. Hence this appeal to this Court by its leave. On 27th September, 1982, Mst. Sharifan (the prosecutrix herein), a married woman having two children, lodged a report at 12 noon with Sub‑Inspector Ali Khan alleging that on the 2nd of September, 1982 at about 5 a.m. she was lying on a cot in her Dhari situate in Square No. 45, Killa No.9 of Chak No.439/J.B. Tehsil and District Toba Tek Singh. The appellant came upon her, caught her by the breasts, laid himself upon her and tried to commit Zina‑bil‑Jabr. On her resistance he tried to press her throat. She raised hue and cry which attracted Muhammad Munir and Waris Ali, prosecution witnesses. Her husband was at that time not in the house. On return he was informed of the occurrence but no action was taken immediately to inform the police about it but the police was eventually informed on 27‑9‑1982, as mentioned earlier. The delay in lodging the F.I.R., it is explained, occurred because there was an effort made by the appellant and his relatives to dissuade the victim and her relatives from lodging the report with the police. The trial Court believed Mst. Sharifan and the two witnesses who had ‑reached the spot on her alarm and convicted the appellant and sentenced him as mentioned already The learned counsel for the appellant has submitted that the inordinate delay in lodging the F.I.R. has not been satisfactorily explained. The explanation given that the complainant party dissuaded the victim and her relatives from lodging the F.I.R. and an attempt was being made to patch up matter cannot be believed because the names of the persons who were allegedly trying to patch up the matter have not been given by the complainant. Moreover, there was no independent corroborative evidence to support the version of the complainant. The two alleged eye‑witnesses were inimical to the accused on account of the friction between them and the appellant due to the parties being arranged on opposite sides in the Local Bodies Elections and the version of the complainant that she was caught by the appellant by her breasts with such force that blood started oozing from her body and her shirt got blood‑stained was neither supported by any medical or any other evidence because Mst. Sharifan was not medically examined at any stage nor her clothes even sent to the Chemical Examiner. Learned counsel also submitted that Mst. Sharifan delivered a baby on 5‑11‑1982, some two months after the date of the incident and, therefore, she was in an advanced stage of pregnancy and, accordingly, it is improbable that the appellant would have been interested in raping her in that condition. We have perused the entire evidence and feel that in the facts and circumstances of this case the statement of Mst. Sharifan that the appellant came upon her and caught hold of her breasts can be safely accepted. In this view of the matter the objection, regarding the delay in lodging the F.I.R. and the lack of independent corroborative evidence loses significance. However, we do not agree with the Court below that this was a case in which the appellant could be convicted of attempting to commit Zina‑bil‑Jabr but was merely a case of outraging the modesty of Mst. Sharifan. The conviction of the appellant under section 18 read with section 10 of the Ordinance cannot, therefore, be sustained Is the offence committed by the appellant really fell under section 354, P.P.C. We would, therefore, allow this appeal to the extent that the conviction and sentence of the appellant under section 18 read with section 10 of the Ordinance is set aside and the appellant shall instead stand convicted under section 354, P.P.C. and is sentenced to the term of imprisonment he has already undergone. He shall also, however, be sentenced to pay a fine of Rs.5,000 or in default thereof to undergo six months' further R.I. In case of payment of fine the whole amount will be paid to Mst. Sharifan P.W. as compensation. The appeal is allowed in the above terms. M. B. A. Appeal allowed.