1997 P Cr (PLP)

KHALIL-UR-REHMAN KHAN, J.

Muhammad Ashraf convict filed this appeal to assail the judgment, dated 16th June, 1994 of the learned Additional Sessions Judge, Lahore, whereby he was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and sentenced to suffer 25 years' R.I. and 30 stripes. The benefit of section 382-B, Cr.P.C., was, however, allowed. Mst. Amina Yasmin the co-accused who was charge-sheeted under section 338-A, P.P.C. was, however, acquitted giving her benefit of doubt while Mst. Naziran Bibi the other co-accused charge-sheeted under section 109, read with section 338-A(b), P.P.C. was convicted and sentenced to the period of detention during trial already undergone by her.

2. The prosecution case as per F.I.R. Exh.P.A./1 recorded on the basis of the statement made by Mst. Samina daughter of Muhammad Ashraf convict/appellant before Farkhanda Iqbal D.S.P. (P.W.1) Incharge Lady Police Lahore, was that she was resident of House No.2/5, Gulberg III, Lahore. She has two brothers and three sisters. Her mother Mst. Bilqees Begum P.W. was in the Mayo Hospital before Shab-e-Baraat as Mst. Saima her younger sister was operated upon. Rizwan P.W. her brother was at Faisalabad. Shahzad the younger brother was sleeping in the same room where she was sleeping. Muhammad Ashraf her real father came to her cot and forcibly laid down with her on the cot and when he touched the string of her Shalwar she tried to raise alarm on which he put his hand on mouth and committed Zina-bil-Jabr with her. She added that earlier to this her father had bad intention as previously he used to look at her with evil designs, and the mother was informed about it by her and she was told that she has reprimanded him and in future he will not do any such thing. She added that when her mother was in Mayo Hospital in connection with treatment of her sister Muhammad Ashraf her father subjected her to Zina -bil-Jabr in the absence of her mother and thereafter also whenever her mother was away on work and her father found the occasion he committed Zina-bil-Jabr 6/7 times. She added that her father used to ask her after giving threats of life about her menstruation period and when she informed him that menstruation has stopped, he took her to Mst. Naziran wife of Muhammad Feroze of Madina Colony near Kharak, Multan Road, Lahore, and thereafter, she was taken to Pakki Thathi, Samanabad, and her pregnancy was got rid off through abortion. She added that when she came back she informed her mother about the incident and the mother quarrelled with her father and her father threatened them to kill, so out of fear they took shelter in the neighbour's house. Meanwhile, her mother informed Miss Hina jillani, Advocate, Incharge of Legal Aid.

3. Farkhanda Iqbal, D. S. P. Incharge Lady Police Centre, Ferozepur Road, Lahore, reached Police Station Ghalib Market in the company of Miss Hina Jillani, Advocate and taking Muhammad Akram, S.I., Khalid Yaqoob and Abdul Razzaq, Constables reached the place of occurrence where Mst. Samina gave the aforesaid statement which was recorded. The said statement was then forwarded through Khalid Yaqoob, Constable to the Police Station for registration of the case. Muhammad Akram, S.I. was deputed for investigation of the case. Muhammad Akram, S.I. prepared the site-plan Exh. P.D., recorded the statements of witnesses under section 161, Cr.P.C., arrested Muhammad Ashraf and Mst. Naziran Bibi and got Mst. Samina (P.W.7) and Muhammad Ashraf accused/appellant medical examined and submitted the challan. 4. 'The prosecution at the trial produced nine witnesss, namely, Farkhanda Iqbal, D.S.P. (P.W.1), Asghar Abbas, S.I. (P.W.2), Lady Dr. Naureen Rasool (P.W.3), Fida Muhammad (P.W.4), Rizwan (P.W.5), Mst. Balqees (P.W.6), Mst. Samina (P.W.7), Dr. Hamayun Hanif (P.W.8) and Muhammad Akram, S.I. (P.W.9). The Chemical Examiner's Report Exh. P.E. produced on record is to the effect that the swabs were stained with blood, however, semen was not detected.

5. Muhammad Ashraf accused/appellant in his statement under section 342, Cr.P.C., denied the prosecution version and pleaded that when he came to know that his daughter became pregnant due to Zina committed by Tasawar nephew of his wife, he condemned his wife Balqees Bibi and his daughter and tried to beat them, so they were annoyed and left the house and went to the house of Mrs. Zainab Tiwana and then with the connivance of Miss Hina Jillani got registered this false case against him. He added that his wife and daughter both have deposed against him as they themselves were the culprits while Rizwan P.W. his son was under the influence of his wife. Neither any evidence in defence was produced nor the accused/appellant offered to make statement on oath in disproof of the charge against him.

6. We have gone through the evidence on record and have heard the learned counsel for the parties.

7. Khawaja Muhammad Sharif, Advocate, learned counsel for the appellant argued that the prosecution case depends mostly on the statement of Mst. Samina the alleged victim. She as well as Rizwan P.W. her brother have deposed against their real father as Mst. Balqees, their mother's influence was operating. He argued that Muhammad Ashraf appellant used to object to the visit of Tasawar the son of sister of Mst. Balqees Bibi to his house and that he and the relations of Muhammad Ashraf used to scold his wife Mst. Balqees Bibi on this score and when Mst. Samina became pregnant from Tasawar he gave them beating and in the circumstances Mst. Balqees Bibi P.W. in order to get rid of Muhammad Ashraf appellant involved him through his daughter and the son in the false case. He pointed out that Mst. Balqees Bibi P.W. in her statement has not stated anything about the role attributed to Mst. Naziran Bibi and Amina Yasmin accused regarding abortion she conveniently omitted to mention this part of the prosecution version as her purpose was to get rid of Muhammad Ashrat her husband alone. He further pointed out that even Mst. Samina P.W. the alleged victim made improvements as regards allegations of taking her to Sargodha by Muhammad Ashraf accused/appellant for the purpose of abortion and also calling of grand-father from Sargodha through Rizwan P.W. the elder brother. It was pointed out that these two visits to Sargodha do not find mention in the statement under section 161 ocular evidence as well as the medical evidence, Zina-bil-Jabr is not proved as no marks of violence or injuries on the body of the alleged victim was observed by the doctor and for almost a period of two months, she did not take even her mother of in confidence and admittedly did not report to her mother being subjected to Zina forcibly and of her pregnancy and as such the offence if any would fall under section 10(2) and not t under section 10(3) of the Ordinance. Lastly he argued that the sentence of 25 years awarded is, however, excessive.

8. Learned counsel for the State on the other hand argued that the case of Zina-bil-Jabr stands established through the evidence of Mst. Samina P.W. which receives strong corroboration from the evidence of Rizwan and Mst. Balqees Bibi P.Ws. He argued that the defence was not able to shatter the testimony of Mst. Samina (P.W.7), Rizwan (P.W.5) and Mst. Balqees Bibi W.6) though they were subjected to lengthy cross-examination and that the son and the daughter and the wife cannot be imagined to have roped in their father and husband respectively in a totally concocted case and that the plea of substitution of the father for the first cousin has no truth.

9. We have considered the respective submissions of the learned counsel for the parties and have also gone through the material on record minutely. Farkhanda Iqbal D.S.P. (P.W.1) proved the statement made by Mst. Samina (P.W.7) before him. Asghar Abbas, S.-I. (P.W.2) on the receipt of complaint Exh.P.A. registered the formal F.I.R. Exh.P.A./l. The medical evidence comprises of the statement of Dr. Naureen Rasool (P.W.3) and Dr. Hamayun Hanif (p.W.8) who had examined Muhammad Ashraf accused/appellant and according to his opinion he was potent. Dr. Naureen Rasool (P.W.3) examined the alleged victim Mst. Samina (P.W.7). She deposed that she examined Mst. Samina P. W . aged 16 years on 4-4-1993. She did not find any mark of violence on her body or mark of injury on external genitalia vagina admitted two fingers easily, hymen was torn and tears were old and healed up. On internal examination fundal height was 6/8 weeks bleeding per vagina was present, vaginal canal was hypertrophic. It was noted that she gave history of abortion and curattaget get done on 3rd April, 1993 by a private doctor to whom she was taken by her father. She took three swabs for analysis of semen, blood and seminal grouping. The swabs as per Chemical Examiner's Report were blood stained, however, semen was not detected. Lady doctor in her cross-examination stated that she had given opinion of pregnancy on the basis of measurement of fundal height done with her fingers. She added that the abortion took place on 3-4-1993 and that fundus takes 40 days to become normal after abortion or delivery. She added that fundal height 6 to 8 weeks means that she was pregnant of 6 to 8 weeks before abortion. She refuted the suggestion that when she examined the victim she was pregnant. She further added that without the case history no one can point out the date of abortion but one can opine if the abortion takes place within one month.

10. Besides the medical evidence, oral testimony of Rizwan (P.W.5), Mst. Balqees (P.W.6) and Mst. Samina (P.W.7) comprises the important material on which the prosecution relies in this case. Fida Muhammad (P.W.4) in whose house the girl and the mother had taken refuge after receiving threats to their lives from accused/appellant stated that he did not know anything about the occurrence. He was declared hostile and was cross-examined wherein he, inter alia, accepted the suggestion that in order to save Mst. Samina and Mst. Balqees P. Ws. from Muhammad Ashraf accused/appellant he gave them protection in his house. He also accepted the suggestion as correct that Mst. Balqees (P.W.6) told him that Muhammad Ashraf accused had committed Zina with his daughter Mst. Samina Bibi and that is why he gave them protection.

11. Rizwan (P.W.5) deposed that he was called from Faisalabad to Lahore where he stayed for two days and again came to Lahore on Eid. It fell on 24th March, 1993. Muhammad Ashraf appellant his father took Mst. Samina P.W. to Sargodha and they returned after 2/3 days. Mst. Samina P.W. was ill and she told the mother about the commission of Zina by Muhammad Ashraf his father on which the mother sent him to Sargodha to fetch the grand-father who came to Lahore. He added that next morning his father took Mst. Samina Bibi to some doctor at Pakki Thathi and returned after 2/3 hours with Mst. Naziran. There was a quarrel between the spouses and the father threatened that he would take Mst. Samina alongwith him and they sent Mst. Samina to the house of a neighbour. He added that he does not know who reported the matter to the police but when the police came Muhammad Ashraf accused hid himself but he was arrested. In cross-examination his case was that his father and mother used to live amicably before the operation of the sister and they had no dispute. He added that he did state before the police that he went to Faisalabad on the asking of his mother but it was not so found recorded in Exh. P.D. He also stated that he told the police that his father had taken Mst. Samina to Sargodha but the same was not found recorded in his statement before the police (Exh. D.A.). He added that he did tell the police that his mother had sent him to his grand-father who then came to Lahore and talked to his father, sister and mother but the same was not found recorded in the statement to the police Exh. D.A. He further deposed that Tasawar his cousin used to meet him after about one month outside his house and that he never came to meet his mother at his house but instead his A mother used to go to their house. He refuted the suggestion as incorrect that Tasawar had committed Zina with Mst. Samina and that when his sister Mst. Samina became pregnant his mother herself did the abortion and that when her father came to know about the pregnancy of Mst. Samina his mother left the house and that his mother in order to save her had falsely levelled allegation of Zina against his father.

12. Mst. Balqees Bibi (P.W.6) deposed that she was in the hospital as her daughter was operated upon and when after 10/15 days she returned from hospital Mst. Samina P'.W. told her that in her absence Muhammad Ashraf accused had committed Zina-bil-Jabr with her. She added that Muhammad Ashraf and Samina went to Sargodha and her daughter told her about the incident after her return from Sargodha. She then deposed about the calling of parents of Muhammad Ashraf from Sargodha and informing them of the incident. She further deposed that Muhammad Ashraf accused wanted to take Mst. Samina outside the house but she insisted that she would also accompany them and he did not allow her to accompany them and took Mst. Samina away and they returned alongwith Mst. Naziran accused. She added that again she was told that he is taking Mst. Samina alongwith him, which was resisted and then she and Mst. Samina went to the neighbour's house where police came and arrested Muhammad Ashraf accused. She added that she went to the house of Miss Hina Jillani, Advocate and informed her about the incident and she informed the police. The defence in the cross-examination brought out that assertion of calling parents of the accused from Sargodha did not find mention in her statement under section 161, Cr.P.C. Exh. D.B. In this statement again the assertion that Muhammad Ashraf accused wanted to take Mst. Samina P.W. and that she insisted to accompany them was also not found recorded. She admitted that she is a qualified mid-wife. She refuted the suggestions with regard to visit Tasawar, her nephew, to their house or that it was Tasawar who had committed Zina and Mst. Samina became pregnant. She also refuted the suggestion that she did the abortion and that when Muhammad Ashraf accused came to know about it he blamed her for this incident and that in order to save herself Muhammad Ashraf accused was falsely involved in the case. She further deposed that she was told about the incident on the second day of the Eid.

13. Mst. Samina (P.W.7) the daughter deposed that she was subjected to Zina when her mother was in the hospital looking after the sister who was operated upon in the Mayo Hospital. She added that whenever her mother went out the father committed "Ziadati" with her. He did it for 5/6 times. She deposed that two days before Eid her father took her to a village at Sargodha to have the abortion but the same could not be done as on those days the hospital was closed on account of holidays. She further deposed that her father threatened that if she would tell her mother he will kill her as well as her mother but one day when her father was not at home she told the incident to her mother who called her grand-father and told him about the incident but they were asked to forget the incident and not to tell anybody. She further deposed that on Friday her father took her to Mst. Naziran accused to Pakki Thathi where doctor was not available and another woman gave her medicine. The next day Muhammad Ashraf and Mst. Naziran took her to the lady doctor who performed the abortion. Thereafter, she returned to their house. Muhammad Ashraf showing Chhuri to her mother threatened her that if she would tell to anybody he would kill her. She deposed that her mother then informed Miss Hina Jillani about the incident and at that time they were in the neighbour's house where they had gone because Muhammad Ashraf accused had threatened. She in cross-examination deposed that she did trot menstruate for about one month and six days and the abortion was performed immediately after the stopping of menstruation. She further stated that her father committed Ziadati two days before the abortion; She deposed that on first day when her father committed Ziadati the cot of her younger brother was at the distance of 5/6 feet. Her father remained at her cot for 7/8 minutes. During this period her father asked her not to tell her mother. She added that after three days of the commission of Ziadati her mother returned home but she did not disclose the incident to her on that day. She added that her father committed Ziadati with her after one day of the first Ziadati. During one month her father did Ziadati with her for 5/6 times. The last time when father did Ziadati with her it was after two days that she narrated the whole story to her mother. Though she denied the suggestions as incorrect that she had relations with Tasawar or she became pregnant from him but she, however, admitted that previously her father and mother had dispute over the visit of her cousins but for the last two years her cousins did not visit their house.

14. The version which emerges from the aforesaid evidence is that the mother was in the Mayo Hospital on the eve of Shab-e-Baraat which fell on 7th February, 1993. Mst. Samina P.W was subjected to Zina-bil-Jabr during the days that the mother was in the hospital looking after the younger daughter. Eid fell on 26th March, 1993. Before Eid she was taken to Sargodha where father and daughter remained for about two days and that on 2nd April, 1993 she was taken for the purpose of abortion but doctor was not available and she was given some medicine. The next day which would be 3rd April, 1993 the abortion was done and the victim returned home. Muhammad Ashraf accused wanted to take Mst, Samina again somewhere upon which the mother Mst. Balqees did not agree and Mst. Samina and the mother went to the neighbour's house and on the same day the matter was reported to the police through Miss Hina lillani and Muhammad Ashraf was arrested and the case was registered in pursuant to report dated 3-4-1993 at 11-25 p.m. The medical examination then took place on 4th April, 1993 wherein the conducting of abortion on 3rd April, 1993 stands recorded as reported by the examinee Mst. Samina. This version of Mst. Samina received support from the evidence of Mst. Balqees P. W. her mother and Rizwan P.W. her brother. The medical evidence also supports her version. According to her she was subjected to intercourse 5/6 times in a span of one and a half months since after Shab-e-Baraat, which fell on 7th February, 1993. The pregnancy was of 6/8 weeks as the fundal height on internal examination was of 6/8 weeks. The features noted in the medical examination thus fully corroborate the version of Mst. Samina who is teen-aged girl of 15/16 years. The version narrated by her is consistent and confidence inspiring. She was subjected to lengthy cross-examination. Had the appellant been substituted for Tasawar the first cousin of the victim or for the actual culprit some material discrepancy or contradiction would have appeared in the statements of the mother, the son and the daughter. The sequence of the events narrated as noted above get full support from the testimony of the aforesaid three prosecution witnesses and the mere omission of the two visits to Sargodha in the statement under section 161, Cr.P.C. does not furnish reasonable basis to discard the testimony of these witnesses. Had Rizwan the son of Mst. Samina the daughter of the convict/appellant been making false statements under the influence of the mother Mst. Balqees P.W., some important contradictions would have appeared in their evidence. Moreover, the possibility of false involvement of the father stands ruled out as no plausible reason for false involvement could be brought on record. We, therefore, are not prepared to accept the plea of the defence that the appellant was substituted with. a view to save Tasawar and that the appellant was named as he had scoled his wife and daughter on coming to know that Mst. Samina P.W. had become pregnant from Tasawar.

15. No1v the plea of the learned counsel for the appellant that the offence made out at best is that of Zina punishable under section 10(2) and not under section 10(3) of the Ordinance may be examined. This plea was sought to be supported by asserting that no resistance was offered by the alleged victim on the 6/7 occasions that she was statedly subjected to sexual intercourse. She even did not inform her mother for the five or six time that she was subjected to Ziadati and admittedly on all these occasions the accused except for statedly extending verbal threats had not used any physical force i.e. any stick, knife or other instrument of violence and that the alleged victim did not take the mother in confidence for all this period though father used to be away from the house. It was urged that mother could be told of the repeated Ziadati during the absence from the house of the father. There is no force in this plea. The use of any instrument of a fear or physical violence thereof may or may not in a given situation constitute Jabr Zina-bil-Jabr has been defined and explained by section 6 of the Ordinance as under:-- "Zina-bil-Jabr.

(1) A person is said to commit Zina-bil-Jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married in any of the following circumstances, namely-- (a) against the will of the victim, (b) without the consent of the victim, (c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt, or (d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be married. Explanation,-- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina-bil-Jabr. " The bare reading of the aforequoted provision would show that the sexual intercourse with a woman or man when they are not inter se validly married will amount to Zina-bil-Jabr if the intercourse takes place against the will or without the consent of the victim or when the consent is obtained by putting the victim in fear of death or of hurt or consent is given under the belief of a valid marriage when the offender knows that the offender is not validly married to victim but the victim believes herself to be validly married. So, under any of the aforesaid situations the sexual intercourse would amount to Zina-bil-Jabr. It will be seen that putting the victim in the fear of hurt by use of instrument of violence or otherwise is not the only ingredient of the offence. It is also important to note that sexual intercourse against the will or without the consent of the victim also amounts to Zina-bil-Jabr. The words, "against the will" and "without consent" have been used to display and cover two different situations and intercourse in either of the situations would amount to Zina-bil-Jabr. The word "will" as per Chambers Twentieth Century Dictionary signifies and connotes, "power or faculty of choosing or determining, act of using this power; volition choice; determination. The word "consent" signifies, to be of the same mind; to agree to give assent; to yield to comply. It necessarily implies agreement as a free agent with the presence of the free mind and free will. So, when a person (victim) is subjected to some act to which he or she would not have succumbed to or allowed to be done or performed, had he or she been left to make a choice such an act would be taken to have been done against his or her will. In other words, would he or she have acted the same way as was made to act, had there been choice to act one way or the other. So, was there choice available but if the choice was redundant in the given situation, the act done will be taken to have been done against the will of the person concerned. The non-avilability of the choice or the power or faculty to choose way get affected for variety of reasons i.e. the position of the perpetrator viz-a-viz the person dominated; the fiduciary capacity; the supervisory control or position of dependence and sustenance. Any situation, which has the effect of giving over-bearing position may adversely affect volition or determination to act otherwise than is being done or to which one is being subjected to.

16. The Muslim Jurists have discussed the subject of Jabr under the heading Ikrah . It will be appropriate to refer to the celebrated works of renowned Muslim Scholars for knowing the definition, and scope of the term Ikrah and consequences of Ikrah on the criminality of a given act. Reference is invited to the "Al-Jeerni Asool-lal-Fiqa" by Dr. Abdul Karim Zaidan, Professor of Fiqah Islami, University of Baghdad, Iraq. Its Urdu translation under the title "Jamia Asool-lal-Fiqa" by Professor Dr. Ahmad 'Hassan may be referred to for the subject Ikrah. Definition of Ikrah at page 1591 reads as under:-- It may be pointed out that the aforenoted position in case of Zina pertains to Zani fornicator i.e. the offender and not that of the victim of Zina. The case of victim of Zina is, therefore, not in point here. At page 169 of the same book reference to the view of Abn Aabedeen is instructive. It reads:-- Abdul Qadir Oudah in his book "Altashrih AI-Jinai Al-Islami Urdu translation" " Part I, published by Islamic Publications, Limited, Lahore, also deals with "Jabr" under the heading "Ikrah" and at page 672 states (with reference to Abn Aabedeen quoted above) as under:-- Again at page 671, after discussing various aspects, it is noted as under:-- Reference , may also be invited to discussion under the heading " Ikrah Kaa sath Dakhool " in the volume III of the above-titled book of Abdul Qadir Audah. It reads: From the discussion and the view given above, it is apparent, that "Ikrah" may be inferred from the very situation in which a victim may find herself unable to protest or where the faculty to determine her course of action is so affected that she had no control over the action or the event or she would not have acted that way if left to make a choice. The very force of circumstances may constitute Jabr (Ikrah). In the instant case, Mst. Samina P.W. the victim asserted that threats of life were extended to her by the father. Even if no such threat was given, the very position of command, supervision, sustenance, shelter and protection, which the father possessed as against his teen-aged daughter constituted sufficient compulsion that resistance or abstenance cannot be expected. The helpless girl as such was subjected to Jabr as otherwise she would not have on her own offered herself for satisfaction of the lust of the culprit, father. We are, therefore, satisfied that the offence in the circumstance squarely fell under section 10(3) of the Ordinance and conviction of the appellant under section 10(3) of the Ordinance is perfectly valid, legal and proper. The sentence of 25 years' R.I., awarded is also proper and in no way excessive as the appellant repeatedly subjected his daughter to Zina bil-Jabr. It was not a case of satisfying the lust under beastardly compulsion once but of repeated assault. Such a conduct deserves to be punished severely and adequately. The sentence is, therefore, upheld and maintained. The appeal fails and is hereby dismissed. N.H.Q./1072/FSC Appeal dismissed.