1989 PLP 2058 (SCMR)

NASIM HASAN SHAH, J.‑‑This is a very unusual case. The respondent Muhammad Naseer, it is alleged, was deeply in love with a young lady Mst. Farhat but was unable to come close to her before she died on 11‑2‑1987. She was buried on the same day at about 11 a.m. in Pir Mitha Graveyard at Wazirabad. On the night between 11/12 February, 1987, the respondent allegedly took out the dead body of Mst.Farhat from her grave and committed zinc upon her. Next day at about 10 a.m. the father of Mst.Farhat, one Muhammad Hussain received information that the corpse of his daughter was not in her grave. Consequently, he went to the graveyard and found the naked dead body of his daughter lying at a distance from her grave under the cover of a wall. It was also discovered that the dead body of the deceased had been disgraced by some persons by taking her out of the grave and leaving her naked in the open. The dead body was thereupon reburied. Sometime later the respondent was arrested and was found on arrest in possession of unlicensed arm i.e. Carbine and some Charas. He also disclosed that he had committed zina on Mst.Farhat. Whereupon the dead body was exhumed under the orders of the District Magistrate and medical examination of the same conducted. Swabs taken from the private parts of the dead body were found to be stained with semen. The accused was also medically examined and swabs taken; 3 from his penis and glans and 3 from perineal. These were also stained with semen. The accused was, accordingly, challaned under section 8(3)(b) of Zina (Enforcement of Hudood) Ordinance 1979 for the offence of Zina‑bil‑Jabr upon the dead body of the deceased. On conclusion of his trial he was sentenced to death, subject to the confirmation of the Federal Shariat Court and also imposed the punishment of 100 stripes to be inflicted at a public place. On appeal and reference, the Federal Shariat Court came to the conclusion that although zina could be committed against the dead body of a female as the definition of zina as given in section 4 of the Ordinance VII of 1979 and the provision of section 6 thereof did cover the offence committed against the dead body but, in the circumstances of this case, since the conviction was based on the confession of the respondent which was later retracted, the same could not be sustained. According to the learned Judges of the Federal Shariat Court, the confession on which reliance can be placed for the purpose of Hadd sentence must be made four times in four different meetings. In this case, the confession was made in the statement under section 164, Cr.P.C. and this was made before a Magistrate, who, according to the learned Federal Shariat Court, was not the competent Court. Moreover, this was made only once and not four times. Furthermore, instead of sending the accused to the judicial lock‑up after he had made the confession, he was returned to the custody of the police. The Court further held that no sentence of Hadd in a zina case could be imposed without the requirement of four eye‑witnesses whereas in this case the conviction was based on the circumstantial evidence. Admittedly, there were no eye‑witnesses of the occurrence and there was no direct evidence of any sort on record. The circumstantial evidence moreover also did not connect the accused with the crime. The Federal Shariat Court also considered the recoveries as doubtful. In the result, the respondent was acquitted and ordered to be released. In this petition for leave, some important questions of law arise for consideration, inter alia, whether zina can be committed against the dead body; which is the competent Court before whom a valid confession can be made and what is the value of a retracted confession under Islamic Law etc. Leave is, accordingly, granted. The appeal shall be heard on the present record at an early date. M.A.K./S‑424/5 Leave granted.