2011 SCMR 1540 (PLP)

DR. MUHAMMAD AL-GHAZALI, MEMBER.

This Jail Shariat Petition is barred by 409 days. It was filed against the judgment dated 23-1-2009, passed by learned Federal Shariat Court. Petitioner-Ijaz alias Jaju was accused for rape in case F.I.R. No. 90 of 2003 dated 3-2-2003 registered at Police Station Jaranwala, District Faislabad.

2. The complaint was instantly made by Mst. Maqsoodan Bibi (P.W.4), mother of the victim of the occurrence, namely Mst. Shaziya Bibi. The case of the prosecution is that Mst. Shaziya Bibi, victim of the crime, resided with her mother Mst. Maqsoodan Bibi. She is the resident of Chak No. 25/GB, Faisalabad, where she lives with her blind husband and children. On 2-2-2003 at about 1600 hours she had gone to her nearby cattle-shed to attend to her cattle, leaving her daughter Mst. Shaziya alone in the house when the two accused persons named Ijaz and Afzal forcibly entered her house. Ijaz was armed with a stick and Afzal with a pistol, both of them dragged her inside the room and the former committed zina-bil-jabr with her. He also beat her brutally when she put up resistance. The complainant heard her wails and cries for help and rushed back to her house, and saw the petitioner committing zina.

3. Consequent upon the investigation and due process, the learned trial Judge convicted the petitioner under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to Rigorous Imprisonment for 14 years. He was also convicted under section 337-L(2), P.P.C. and was sentenced to two years' R.I along with daman amounting to Rs.10,000 to be paid, to the victim. Benefit of section 382-B, Cr.P.C. was also extended to him, by the trial Court.

4. Conviction and sentence both were challenged before the Federal Shariat Court by the petitioner through Criminal Appeal No. 232-L of 2006, which was dismissed vide judgment dated 23-1-2009, hence this Jail Petition.

5. We have heard the learned counsel for the petitioner and also the learned Prosecutor-General, Punjab at some length and have also perused the record diligently taking note of all the relevant particulars.

6. We have also gone through the statements of P.Ws. particularly that ofP.W.1 Dr. Kanwal Naeem Bari who tendered the opinion that the victim Mst. Shaziya "is used for sexual intercourse "but the time of occurrence cannot be determined and final decision in this regard will be made after the receipt of report of Chemical Examiner". As the learned Federal Shariat Court rightly noted in, the judgment, the above cited italicized words used by Dr. Kanwal Naeem Bari, P.W.1, are betraying merely her weak English expression. What she meant to convey thereby is: she has been subjected to sexual intercourse.

7. According to the report submitted by the Chemical Examiner "the swabs are stained with semen". Learned counsel for the petitioner argued the case before us on the same grounds as submitted before the learned Federal Shariat Court. However, we are not satisfied with the submissions of the learned counsel that have brought nothing new to the fore warranting interference. In our view the learned Federal Shariat Court has rightly dismissed the appeal because there is nothing to suggest that the learned trial Court might have either misread or disregarded any significant part of the evidence. Nor learned counsel has been able to refer to any particular points of law escaping notice by the first (original) and the second (appellate) judicial forums (i.e. ASJ and FSC), nor is there anything else before us to indicate any failure to assess the evidence. Therefore, this is not a fit case where leave to appeal should be granted: Moreover, this petition is barred by 409 days. Even if we decide to condone the delay in the larger interests of justice, there is nothing else on record requiring any reappraisal of evidence or calling for a consideration of any new points coming forth in the submissions made by, the defence counsel.

8. At this stage, we would like to draw the attention of the relevant authorities in the Provincial Government of the Punjab to the delay of three years in completing the trial of this case following the registration of the case by the police. Likewise, the Hon'ble Chief Justice, Lahore High Court, Lahore, may be informed of this lapse to see whether there is any negligence of duty on the part of the trial Judge or any of the other functionaries attached to him or concerned in any way with the matter. Last but not the least, we take strong exception to the conduct shown by S.I. Sadiq Hussain who tried to hinder/distort the process of speedy justice and fair trial in this case. The remarks made by the Hon'ble Justice Muhammad Zafar Yasin of Federal Shariat Court in this regard in last para 14 of his judgment (PP.68-70) are self-explanatory, though he stopped short of proposing any punitive/remedial action to rectify in future such contraventions of the system of criminal justice

a system already suffering from many imperfections and inadequacies. We, therefore, direct the Inspector General of Police, Punjab, to immediately take strong disciplinary action against said S.I. Sadiq Hussain, who in utter defiance of all norms of justice, rules of behaviour and regulations of service tried in vain to turn an innocent victim into a vicious criminal. The Inspector-General is further directed to expeditiously report the outcome of his action in this regard.

9. For the foregoing reasons, we find no merits in this petition, which is dismissed. Leave to appeal is refused. N.H.Q./I-6/SC Leave refused.