1990 PLP 583 (SCMR)

Rao Muhammad Yousaf Khan, Advocate‑on‑Record on notice to Advocate‑General, Punjab for the State. Date of hearing: 24th October, 1989. S. USMAN ALI SHAH, J: ‑Muhammad Doraiz petitioner seeks leave to appeal against the order of the Lahore High Court, Rawalpindi Bench, dated 2‑7‑1989, whereby his criminal appeal against his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 was dismissed by the learned Sessions Judge, Jhelum. The prosecution story according to the F.1.R. in brief is that on 5‑9‑1979 Mst. Muhammad Bi aged 25/26 years an unmarried girl of village Miani, P.S. Kallar Kahar was grazing her cattle alongwith her sister Mst.Fatch Khatoon P.W. At Rotiwela she left her cattle and went to the nearby Kassi known as Kholewali and started taking her bath. While she was naked the petitioner Muhammad Doraiz in meanwhile came near the girl. She abused him but he forcibly caught her hands, laid her on the ground and committed rape with her by putting his hands on her mouth. One the alarm of the prosecutrix, Muhammad Aslam, Fazal Khan, Fateh Khan and Mst. Fateh Khatoon P.Ws were attracted to the spot and saw the appellant busy in tying his loin‑cloth with the waist. On seeing them the appellant ran away towards the village. On the next day the prosecutrix and her sister Mst.Fateh Khatoon P.W. went to the P.S. Buchal and lodged the report Ex.P.D. at about 5‑30 p.m., on the basis of which formal F.I.R. Ex.PD/1 was registered against the accused under section 376 of the Pakistan Penal Code. The petitioner was arrested and challaned before the learned Sessions Judge, for trial wherein he denied the charges and took up the plea that he has been involved in this case on the previous enmity. The petitioner did not produce any defence, whereas the prosecution produced 8 witnesses in support of its case. The learned trial Judge found the petitioner guilty of the offence, convicted him under section 10(3) of Ordinance No.ulI of 1979 and sentenced him to 10 years R.I. and also with punishment of whipping numbering 30 stripes, vide his order dated 19‑2‑1980. On appeal before the Lahore High Court against the said order by the petitioner, the learned Single Judge after appraising the evidence on record concluded as under: "In the end, learned counsel has urged that the appellant was given very severe .punishment and it is a case in which the sentence of the appellant needs reduction. I find some substance in this submission. The occurrence took place in the year, 1979. There also appears to be some family bitterness between the parties. In the circumstances while maintaining the conviction of the appellant, I reduce his sentence of imprisonment from ten years to rive years' R.I. The sentence of stripes shall be executed in the manner as directed by the trial Court. Benefit of section 382‑B, Cr.P.C. is allowed to the appellant." The learned counsel for the petitioner attempted to argue before us that the learned High Court has no jurisdiction to decide Hudood cases the appellate Court in such cases being the Federal Shariat Court. After hearing the learned counsel we have come to the conclusion that the amendment in section 20 of the Hudood Ordinance came into force on 21‑6‑1980 while the occurrence took place on 5‑9‑1979 and the right of appeal accrued prior to the said amendment. The learned counsel thus failed to bring to our notice the said amendment in the Hudood Ordinance is retrospective in operation. Therefore, we are satisfied that the case has rightly been dealt with under the Cr.P.C. by the Courts below. Keeping in view the nature of the case and evidence on the record, the finding arrived at by the learned High Court is unexceptionable which needs no interference by this Court. Resultantly, this petition has no force which is accordingly dismissed. N.H.Q./M‑1179/S Petition dismissed.