1995 PLP 1403 (SCMR)

‑‑‑‑S. 10(2)‑‑‑Appreciation of evidence ‑‑‑Prosecutrix had been found a Zania and a woman of easy virtue and her statement that she was forcibly taken to a room where she was subjected to Zina‑bit‑Jabr had been found false‑‑‑NQ implicit reliance, therefore, could be placed on her statement as she had proved herself to be a basically dishonest and undependable witness and unless there was some other independent evidence of the commission of Zina by the accused with her, his conviction could not be possibly upheld‑‑‑Medical evidence was also not definite about the commission of sexual intercourse with the prosecutrix‑‑‑Accused was acquitted in circumstances. M. Bilal, Senior Advocate instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant. Raja Abdul Ghafur, Advocate for the State. Date of hearing: 17th April, 1995. MUHAMMAD MUNIR KHAN, J.‑‑‑Muhammad Sadiq appellant was tried on the charge of committing Zina‑bil‑Jabr with Shagufta Parveen (P.W.5) on the night between the 23rd/24th of June, 1990 in a deserted house, by the Sessions Judge, Bhakkar, who, on 24‑7‑1991, convicted him under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced him to five years' R.I. and 30 stripes. The appeal filed by him against his conviction and sentence was dismissed by the Federal Shariat Court on 26‑8‑1992. Feeling aggrieved thereby, he filed petition for leave to appeal which was granted on 20‑1‑1993 to consider whether the conviction could have, been recorded on the statement of Mst. Shagufta Parveen who had been found to be a consenting party to the offence.

2. In her statement, Mst. Shagufta Parveen has stated that at the eventful time she had gone out in the field in order to urinate when Muhammad Sadiq came there with a knife in his hands, and forcibly took her to a deserted house, at a distance of 1‑1/2 acre. He closed the door of the house from inside and committed Zina‑bil‑Jabr with her. In the morning, her father Abdul Majeed and her first cousin Akram reached the spot in her search. They knocked the door. Muhammad Sadiq opened the door and fled away. 3: Lady Doctor Miss Falak Rifat (P.W.6) examined Shagufta Parveen. She did not find any mark of violence on her person. She took two vaginal swabs which were sent to the Chemical Examiner whose report Exh.PD revealed that the swabs were stained with blood and not with semen. The lady doctor opined that she was not in position to say that Shagufta Parveen was subjected to sexual intercourse. Abdul Majeed (P.W.7) stated that it was Ishawela when Shagufta Parveen went out for urination. She did not return. So, they started search. It was morning prayer time that they heard some alarm from a house. He pushed the door and found Muhammad Sadiq present there with a knife, who, on seeing them ran away. They found Shagufta Parveen in the room and took her to their house. There is no other evidence about the commission of Zina by the appellant with Shagufta Parveen. Both the Courts below have come to the conclusion that Shagufta Parveen was a consenting party to the sexual intercourse with her. Now the question which arises for consideration is whether in the circumstances of the case, the conviction of the appellant could have been recorded on the solitary statement of Mst. Shagufta Parveen.

4. We find that Mst. Shagufta Parveen has been found a Zania and as such a woman of easy virtue. Her statement that she was forcibly taken to a room and was subjected to Zina‑bil‑Jabr has been found false. In this view of the matter, we are of the view that no implicit reliance can be and should be placed on her statement because she has proved herself to be a basically dishonest witness. In our opinion she is an absolutely undependable witness. So, unless there is some other independent evidence of the commission of Zina by the appellant with her, it would not be possible to uphold the conviction. Abdul Majeed (P.W.7) had not seen the appellant committing Zina with Shagufta Parveen. The lady doctor has also failed to give any definite opinion as to whether sexual intercourse was committed with Shagufta Parveen or not.

5. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant the appeal is accepted the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is already on bail. His bail bonds are discharged. N.H.Q./M-3066/S Appeal accepted.