P L D 1984 Federal Shariat Court 121 (PLP)

The sentences of imprisonment were ordered to run concurrently.

2. In support of its case the prosecution produced 9 witnesses. Sardar Khan (P. W. 1) is the Lambardar of Chak No. 110 W. B. According to him he was present at his dera alongwith Boota Chowkidar. Bashir (P. W.) informed him that a dead body, of a child was lying in his residential ehata having been thrown by someone. Nothing else was revealed to him by the said Bashir. Again said Bashir told him that according to his wife Mst. Sardaran Bibi, Mst. Siani accused who was virgin appeared pregnant and that the dead body of the child was the same which had been caused in miscarriage. This witness left Boota and Bashir there with the dead body and himself went to the Police Post, Tibba Sultanpur and made report Exh. P.A. which was not read over to him. In cross‑examination he admitted that Mst. Siani accused was wife of Pahalwan and Mst. Sardaran Bibi (P. W.) had not talked to him over this matter. Bashir (P. W.) ,has stated that he had his residential ehata in Chak No. 110 W. B. He fold dead body of a child lying in the south‑east corner of the ehata. Sardar Khan ' (P. W.) was posted with it. Mst. Sardaran Bibi is his wife. She saw the dead body of the child. He has further deposed that Afst. Siani accused was not on visiting terms with them and his wife did not inform him about the pregnancy of Mst. Siani accused. Then Sardar Khan, Lambardar (P. W.) left him and Chowkidar at the spot and hiinself''went to police post to inform it about this matter'. The police then reached the spot and seized the dead body of the child. Mst. Sardaran P. W. 3 is the wife of Bashir (P. W.). She has stated in examination‑in‑chief that 1 J years ago a dead body of a child was found lying in her ehata. Mst. Siani accused who was living in their neighbourhood was known to her. This witness has further deposed that she did not observe that while being virgin Mst. Siani got pregnant and she did not tell this witness that she got conceived from Ghulam Najaf accused. At this stage Mst. Sardaran P. W. was declared hostile and A. D. A. was allowed to cross‑exan5ine her. In cross‑examination by A. D. A. she has denied the suggestion that Mst. Siani told her that she conceived from Ghulam Najaf and now she wanted to niiscsrry. It is further stated by her that she did not inform the police that Afst. Siani accused had secretly Mis carried and threw the dead body of the child in her ehata. She further denied that she was won over by the accused. Sardar Saeed Jaffer, Magistrate 1st Class (P. W. 4) on 29‑10‑1981, recorded the confessional statement of Mst. Saani (Exh. P. B). It may be observed that this confessional statement has been rightly disbelieved by the trial Court. Muhammad Boota Chowkidar (P. W. 5) was also declared hostile. In cross‑examination he has admitted that about lii years ago Bashir informed him and Sardar Khan (P. W.) about the presence of foetus of still born child in his compound. They went to the spot and saw the dead body there. He denied the suggestion that he and the companions suspected Mst: Siani of this crime. He did not know Najaf' acquitted co‑accused. He denied the suggestion that Mst. Siani was of bad character and had illicit relations with Najaf co‑accused.

3. Lady Dr. Shahnaz Akhtar (P. W. 6) on 29‑10‑1981 at 5‑00 p.m. examined Mst. Siani and 'found the following, observations‑‑ "1. 20 years old woman having full developed breast and with black areola aft milk was present in breast. Breast was pundulous and abdomen was not flaccid. No line anble was marked on the lower abdomen. On vaginal examination, hypnen torn from all sides but no sign of injury in vagina or in uterus, white offensive discharge was present in vagina, Size of uterus was normal. In my opinion she aborted foetus 12 days back." In cross‑examination the lady doctor has stated that she could not say if it was a case of intentional miscarriage or otherwise. Dr. M. A. Raoof (P. W. 7) on 23‑10‑1981, conducted post‑mortem examination on the dead body of unknown male foetus. The dead body was of a male foetus in a decomposed condition. The maggots were crawling over the dead body, and the dead body was eaten up at various parts. The skull was open and the eyes were collapsed. Its length was 31 c.m., and weight one killogram: The skull was open and brain collapsed. There was no mark of any recent injury seen. All the internal organs were undergoing decomposition. In 'the opinion of the doctor the foetus was still born and was about 24 weeks old. Time between death and post‑mortem was about 3‑4 days. Rustam Ali H. C. (P. W. 8) on receipt of Exh. P. A. recorded the formal F. I. R. Exh. P: A/ I. S. I. Syed Asghar Ali Shah is the Investigating Officer.

4. Mst. Siani in her statement recorded under section 342, Cr. P. C. denied the prosecution allegations and stated that she was a married woman and did not resort to Zina with Ghulam Najaf co‑accused. When asked why this case was made against her and why the P. Ws. had depose against her, she stated that a false case had been fabricated by the police due to connivance of her enemies. She, however, produced no evidence in defence,

5. Ghulam Najaf, co‑accused in his statement also denied the prosecu tion allegations.

6. The trial‑Court vide impugned judgment acquitted Ghulam Najaf, co‑accused but convicted and sentenced Mst. Siani as stated above.

7. I have heard at length the counsel for the parties and have also perused the entire material available‑on the record.

8. It is an admitted fact that there is no direct evidence available on the 4, record to prove the charge against the accused. As mentioned above Mst. Sardaran and.Chowkidar Boota.(P. Ws.) were declared hostile. It may be observed that Mst. Sardaran P. W. according to the prosecution had informed her husband Bashir P. W. and then Bashir further conveyed the information to Lambardar Sardar Khan P. W. Mst. Sardaran has not supported the prosecution, therefore, the foundation of the prosecution case as to how the prosecution story was initiated, is missing. The learned State counsel admits that there is no direct evidence available on the record but according to him the medical evidence in this case is sufficient to maintain the conviction of the appellant. As mentioned above Mst. Siani was medically examined by lady doctor who found that black areola and milk was present in breast of the appellant. Breast was pandulous and abdomen was not flaccid, and no line anable was marked oil the lower abdomen. The ‑lady doctor further found that the hymen was torn from all sides but no sign of injury in vagina or in uterus but white offensive discharge was present in vagina. In the opinion of the lady doctor Mst. Siani aborted foetus 12 days back. Further reliance is placed by the State counsel on the statement of Dr. Raoof P. W. who performed the post‑mortem examination on the dead body of an unknown male foetus. The argument of the State counsel is that the statements of these two doctors are sufficient to maintain the conviction of the appellant. On the other hand the contention of the learned defence counsel is that the medical evidence alone is not sufficient to convict the appellant for the offences charged. It is further argued by the defence counsel that the finding of the trial Court that Mst. Siani was unmarried girl when she conceived of the foetus is based upon. no evidence. Mst. Siani in her statement under section 342, Cr. P. C has stated that in April, May, 1981,. she was a married woman and .did not resort to Zina with Ghulam Najaf, acquitted co‑accused. She has further denied the allegation that she being unmarried got pregnant and then caused herself subjected to miscarriage in the month of October, 1981. Again in reply to question No. 7 Mat. Siani has denied the prosecution allegation and stated that she had not aborted till then. The prosecution has brought no material on record to rebut the stand taken up by Mst. Siani except the evidence of the Lady Doctor Shahnaz Akhtar P. W.

9. As regards the charge of Zina under section 10 of the Ordinance against Mst. Siani, accused it is an admitted fact that prosecution has produced no direct evidence‑‑oral or circumstantial, to substantiate this charge. As mentioned above the prosecution was relying upon Mst. Sardaran, P. W. wife of Basbir P. W. 3 but she did not support the prosecution and was declared hostile. She has deposed that Mst. Siani was known to her who lived in her neighbourhood but she did not observe that while being virgin she got pregnant and she did not tell the witness that she got conceived from Ghulam Najaf acquitted co‑accused. It was at this stage that at the instance of A. D. A. Mst. Sardaran was declared hostile and was allowed to be cross examined by him. The A. D. A. in her cross‑examination could not get anything favourable of the prosecution. She was the foundation of the prosecution case as she conveyed this information to her husband Bashir, P. W who further informed Sardar Khan Lambardar (P. W. 1) who lodged the report with the police. Muhammad roots, Choukidar also did not support the prosecution case and was declared hostile and was allowed to be cross‑examined by the A. D. A. but even in the cross‑examination nothing could be brought on the record in favour of the prosecution. Other witnesses in the case are formal and official ones. It is in this factual background that the learned State counsel has mainly relied upon the medical evidence for maintaining the conviction of the appellant. Thus, the main question which arises for con sideration in this case is whether in the peculiar circumstances of the case, on the medical evidence alone the conviction of Mst. Siani accused under section 10 of the Ordinance can be maintained or not. According to the State counsel the presence of milk in her breasts was clear indication that she had recently aborted, and being unmarried must have illegally conceived. No doubt the lady doctor Shahnanz Akhtar (P. W.) whose report has already been reproduced above, has mentioned the presence of milk in the breasts of Mst. Siani accused, but we have to we whether this is a conclusive proof that she had aborted or delivered a child recently as a result of illegal cohabition with co‑accused Ghulam Najaf or someone else. Generally speaking the presence of milk in the breasts of an unmarried girl castes some doubt about her virginity but we have to see the, effect of presence of such milk strictly from legal point of view. Some medical authorities have found milk in the breasts of women, who had never been pregnant. Reliance in this behalf can safely be placed upon the following from Modi's Medical Jurisprudence and Toxicology (Pakistan Edition):- "By the third month a clear, transparent secretion can be squeezed out of the nipples on pressing the breasts. This contains colostrum or milk, as pregnancy advances. Milk has, however, appeared in the breasts of women who have not been pregnant. Jago (Kenya and East Africa Med. Jour, July 1927, p. 144.) reports a case in which a woman, who had never been pregnant, had a copious flow of milk from her breasts, and suckled a child of another woman. David (Proceedings of the Royal Soc, of Mod. April 1932, p. 695.) Krestin also reports the case of an unmarried woman, ago 25 years, with hymen intact, who had enlarged breasts, which yielded milk on compression due to enlargement of the pituitary fossa" Thus, mere presence of milk in the breasts of Mst. Siani' appellant. would not conclusively establish that she recently aborted or delivered a child after illegal conception from co‑accused Ghulam Najaf or any other person. In any case this circumstance' alone is not sufficient to prove the charge under section 10 of the Ordinance against the accused.

10. The statement of the lady doctor Shahnaz Akhtar P. W as an expert is covered by section 45 of the Evidence Act. Even if we believe and accept the medical evidence, the next question which arises is as to the value of such medical evidence whether medical evidence alone can be made basis of the conviction or not. Normally it is not safe to treat expert evidence of a doctor alone as sufficient to base the conviction. Such evidence can provide as a piece of independent corroboration but it itself cannot be made the foundation of the conviction in criminal cases. Late Chief Justice Hamoodur Rahman in Syed Shabbir Hussain's case (1), while dealing with the evidence of handwriting expert was pleased to observe that such evidence is neither the only nor the best method of proving hand writing or signature of a person. On the same anology it can reasonably be held that statement of medical expert (doctor) cannot be considered as the only or the best method of proving the charge of Zina against an accused person. Consequently the statement of the lady Dr. Shahnaz Akhtar (P. W) alone cannot be made the bass of the conviction of Mst. Siani accused under section 10 of the Ordinance. In the instant case it is an admitted fact that there is no other direct or positive evidence produced, by the prosecution to substantiate the charge under section 10 of the Ordinance against Mst. Siani appellant, In addition to the medical evidence the prosecution should rave produced some other direct or circumstantial evidence to connect the appellant with the. offence charged. In the absence of such evidence the medical evidence alone is not sufficient to maintain the conviction of the appellant under section 10 of the Ordinance and it is not safe to presume in favour of the prosecution that Mst. Siani appellant illegally conceived from Ghulam Najaf acquitted co‑accused or someone else resulting in illegal abortion. If, for example, an unmarried girl or a widow has been subjected to Zina forcibly against her will or during her sleep or under some intoxicant or under suspicion about her identity resulting in her conception and ultimately giving birth to a child she will not be held guilty under section 10 of the Ordinance unless the prosecution further establishes by direct or circumstantial evidence that she was a consenting party for the commission of sexual intercourse.

11. Another question, therefore, which is relevant in this regard is whether Mst. Siani accused was a consenting party for the sexual intercourse committed with her by co‑accused Ghulam Najaf or it was Zina‑bil‑Jabr against her will, resulting in her pregnancy and then abortion. This Court has already held in several cases that a mere pregnancy/abortion or birth of an illegitimate child or an unmarried girl/widow or a married woman whose husband bad no access to her during the relevant period, could not be sufficient to hold her guilty under section 10 of the Ordinance unless it is further proved by the prosecution that she was a consenting party, for the said Zina resulting firs in her conception and then in abortion. In the instant case there is nothing on the record to show that Mst. Siani appellant was a consenting party to sexual intercourse illegally committed by Ghulam Najaf, co‑accused. Further, the prosecution has produced no evidence whatever to establish hey illegal pregnancy and abortion. Mst, in the circumstances the mere alleged abortion of Mst. Siani appellant is not sufficient to convict her under section 10 of the Ordinance. It was further necessary for the prosecution first to prove that Mst. Siani appellant had illegal intercourse with co‑accused Ghulam Najaf resulting in her conception and then also to prove that she illegally aborted. The prosecution miserably failed to prove the same. Thus, toe mere presence of body of a dead child (foetus) in the ehata of Bashir (P. W.) would not prove that it was the foetus of Mst. Siani as a result of illegal conception from co -accused Ghulam Najaf.

12. The charge framed under sections 315 and 318, P. P. C. against Mat. Siani, appellant was as under:‑ "I, Mr. Nazir Ahmed Ansari, Additional Sessions Judge, Vehari, charge you, Siani, daughter of Shah Muhammad and Ghulam Najaf son of Sher Muhammad, accused as under:‑ (1) That you both indulged in Zina 24 weeks prior to 23‑10‑1981 resulting in pregnancy of Mst. Siani accused which is punishable under section 10 of the Zina Ordinance. (2) That after 24 weeks of the pregnancy of Mst. Siani accused caused the miscarriage in Chak No. I 10/W. B. Tehsil Mailsi, with intent to prevent child being born alive or with intent to cause it to die after birth which is punishable under section 315, P. P. C. (3) That after miscarriage you threw the dead body in the residential ehata of Bashir son of Din Muhammad situated in Chak No. 110/ W. B. with intent to conceal the birth of the child which is punishable .under section 318, P. P. C. It is, therefore, directed that you both be tried for the aforesaid offences before this Court which is competent." Section 315, P. P. C. is also reproduced below:‑ "Act done with intent to prevent child being born alive or to cause. It to die after birth.‑‑Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother: be punished with imprisonment of either description for a term which may extend to ten years, or with fine or with both." A mere perusal of the above shows that before the prosecution could succeed to secure the conviction of Mst. Siani, appellant under section 315, P. P. C. it was necessary to prove that she was pregnant at the relevant time and that she did some act before The birth of the child, calculated to prevent the child from being born alive or to cause it die after its birth. It was further necessary for the prosecution to establish that the said act of the accused G was done with the said intention and not in good faith to save her own life and that Mst. Siani actually delivered a child or aborted and the said child was born dead or died after its birth 'and the appellant caused its death. The prosecution has produced no evidence to prove the main ingredients of section 315, P. P. C.

13. Same is the position about ' the charge under section 318, P. P. C. This section is also reproduced below:‑ "Concealment of birth by secret disposal of dead body.‑Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." According to the provisions of section 318 P.P.C. it was necessary for the prosecution first to prove that Mst. Siani gave birth to a child who died ether before, during or after its birth and that she buried or disposed of the said dead body by throwing it in the ehata of Bashir P. W. Again there is not an iota of evidence on the record to substantiate this charge against the present appellant.

14. It is surprising that in total absence of any evidence‑oral or circum stantial, produced by the prosecution, Mst. Siani appellant has been convicted and sentenced under sections 315 and 318, P. P. C. by the trial Court. The learned State counsel has not been able to support her. conviction under the said sections.

15. For the foregoing reasons this appeal i$ accepted and the convic tions and sentences awarded to Mst. Siani by the trial Court are set aside. She is acquitted of the charges. She is already on bail and her bail bond stands discharged. M.A.K. Appeal accepted.