1988 P Cr (PLP)

ABDUR REHMAN KHAN KAIF, J.--In a case registered vide F.I.R. No. .27, dated 19-5-1983 on the report of one Ghulam Haider son of Bahawal Bakhsh under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the (said Ordinance), nine persons namely, Arif son of Maqbool aged 22 years, Javaid son of Bashir, aged 30 years, Mubashar son of Ghulam Rasool, aged 45 years, Ihsan son of Sardar Muhammad, swabs which were sent to the Chemical Examiner for the detection of semen. In her opinion Mst. Abida was not virgin and that she had been subjected to sexual intercourse. The swabs according to the report of the Chemical Examiner Exh. P.D. were found stained with semen and blood. In her cross-examination, this lady doctor has deposed that since the examinee admitted three fingers in her vagina, the possibility that she was habitual to sexual intercourse could not be ruled out.

8. It transpires from the record that on the direction of the Assistant Commissioner, Narowal, Mst. Abida the prosecutrix, was once again medically examined by another Lady Doctor Miss Sardar Bhatti (P.W.12) on 1-6-1983. According to the Medico-legal report furnished by the said lady doctor, the hymen of, Mst. Abida was found torn at 6 '0' clock and she found no evidence of tear in her hymen at 10, 11 and 12.'0' clock position. It was stated by her that the vagina of the prosecutrix admitted only two fingers and not three as mentioned in the report by lady doctor Miss Salma Perveen, (P.W.6). She also took two vaginal swabs, which were sent to the Chemical Examiner for detection ~ of semen. The report (Exh. P . G . ) in that connection is positive, showing that the swabs were stained with semen. According to the opinion of lady Dr. Miss Sardar Bhatti (P.W.12), Mst. Abida had been subjected to repeated sexual intercourse and she was not habitual to sexual -acts. In her cross-examination, she deposed that the prosecutrix was not habitual, but she was submitted to sexual acts repeatedly at little intervals and violence was committed during the acts.

9. Rehmatullah S.I. (P.W.7) and Muhammad Younas S.I./S.H.O. (P.W.11) have investigated the case while the statements of the witnesses are formal in nature.

10. The accused when examined under section 342, Cr.P.C. denied the prosecution allegations and had stated that they were falsely involved in this case. Javaid, appellant, has however, furnished the following explanations in his defence: -- "It was because of long standing enmity with the brother of the prosecutrix and his family for the reason that the brother of Mst. Abida Bibi had abducted my sister earlier and there was a case registered under section 11/7/79 Hudood Ordinance; just to whip of those effects, the prosecutrix's father managed to involve me and my co-accused who are my relatives falsely," The. accused, however, declined to appear as witnesses in their defence and to make statements on oath as required -under section 340(2), C.r.P.C. Similarly, no other witness was examined by them in their defence.'

11. We have heard the learned counsel for the parties and have gone through 'the material available on the record with their assistance.

12. In the instant case as stated above all the four witnesses, namely, Ghulam Haider, complainant (P.W.1), Muhammad Aslam, brother of the prosecutrix (P.4V.3), Muhatnmad Sadiq, (P.W.4), and Bashil (P.W.S) who were to furnish direct ocular account of the occurrence have failed to support the prosecution version during the trial. All the abovementioned four witnesses were declared hostile and were cross-examined by the prosecution, but with no useful purpose. The entire prosecution case consequently rests on the statements of the prosecutrix, Mst. Abida (P.W.2), Lady doctor Miss Salma Perveen (P.W.6), Lady doctor Miss Sardar Bhatti (P.W.12) and the report of Chemical Examiner. In the circumstances, it is to be seen whether reliance could be placed on the solitary statement of Mst. Abida, the prosecutrix, supported by the medical evidence and the report of Chemical Examiner. Mst. Abida (P.W.2) is an unmarried young girl who has directly charged Javaid, appellant, for committing Zina-bil Jabr with her. Her version is fully supported by the medical evidence available on the record. The reports of the Chemical Examiner Exh. P.D. and Exh. P . G . , further reveal that the swabs taken were found stained with semen. It is also an admitted fact that the sister of Javaid, appellant, was abducted by. one Arshad, a close relative of Mst. Abida and the appellant had, therefore, a direct grievance and was bent upon taking revenge of the abduction of his sister, Mst. Misbah. Even otherwise, it is not believable that an unmarried girl of that age, in the given circumstances, would falsely charge a person for such an offence involving her honour, reputation and future career. The direct charge of the prosecutrix supported by the medical evidence and the report of the Chemical Examiner, in view of a clear motive, is more than sufficient to bring home the charge against Javaid, appellant, under section 10(3) of the said Ordinance. Neither any plausible plea was raised by Javaid, appellant, nor there is any piece of cogent evidence in rebuttal of the evidence appearing on the record against him. We are, therefore, of the view that Javaid, appellant, was rightly held guilty of an offence punishable under section 10(3) of the said Ordinance by the learned trial Court and his conviction, under the mentioned provisions of law, is accordingly upheld. As regards the charge under section 11 of the said Ordinance against all the three appellants, the evidence available on the record is not quite satisfactory to bring home the charge against any of the appellants. The case against the appellants under the mentioned provisions of law, is not free of doubt. The appellants are, therefore, acquitted of the charge under section 11 of the said Ordinance.

13. For the reasons stated above, we allow the appeal of Muhammad Arif son of Maqbool Ahmed. His conviction and sentences are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. Similarly, the conviction and sentences of Javaid, appellant, under section 11 of the said Ordinance are also set aside. The conviction and sentences of Javaid, appellant, under section 10(3) of the said Ordinance are, however, upheld, but his sentence of whipping is enhanced to thirty stripes. The sentence of fine being contrary to the relevant provisions as awarded by the trial Court is, however, set aside. He shall, however, get benefit under section 382-B, Cr.P.C. M.Y.H./392/F.Sh Appeal partly allowed.