P L D 1984 Federal Shariat Court 55 (PLP)

Shahid Hussain Qadri for Appellants. Malik Sarfraz Hussain for the State. Date of hearing : 1st November, 1983. The two appellants were charged with abducting Mst. Tahira Parveen, daughter of Abdul Waheed, an unmarried woman, aged about 16/17 years, with intention that she may be subjected to sexual intercourse; an offence punishable under section 11 of the Offence of Zina (Enforcement of Hudood Ordinance, 1979 (hereinafter referred to as the Ordinance). The Additional Sessions Judge, Lahore, who tried the appellants on the aforesaid charge, A after considering the evidence on record came to the decision that the offence committed by the appellants, was one under section 16 of the Ordinance and not section

11. He accordingly, convicted the two appellants under section 16 of the Ordinance and sentenced them to suffer rigorous imprisonment for 3 years, whipping of numbering 15 stripes and also to pay fine of Rs. 500 or in default of payment of fine to suffer further rigorous imprisonment for three months ea.‑h. The learned Judge also convicted Mubarik Ali appellant, under section 10 of the Ordinance and sentenced him to suffer rigorous imprisonment fur five years, whipping numbering 30 stripes and to pay a fine of Rs. 1,000, or in default of payment of fine to suffer further rigorous imprisonment for a period of 6 months. Both the sentences of imprisonment awarded to appellant Mubarik Ali, were ordered to run concurrently. The two appellants have filed the instant appeal against the aforesaid convictions and sentences.

2. I have heard the arguments of the learned counsel for the parties. It is apparent from perusal of the record that besides the evidence of Mst. Tahira Parveen, there is evidence of her father Abdul Waheed, who filed application which was registered as F. I. R. in this case, which goes to show that the two appellants were allowed entry in the house of Abdul Waheed as friends and at least Mubarik Ali was treated as his son by Abdul Waheed and Ghulam Sabir, who was an apprentice of Mubarik Ali and also his friend, was also permitted the entry into the house. Abdul Waheed is a labourer and his wife Mst. Razia also works as domestic servant at different houses. It is further clear from the evidence of Abdul Waheed and Msr. Tahira Parveen that the two young men abused the trust of her father and took away Mst. Tahira Parveen to Karachi. Both the appellants were concerned in the abduction or taking away of the young woman. It is true that in the F. I. R. Abdul Waheed had stated that he had knowledge that appellant Mubarik Ali had developed illicit relations with his daughter and as rightly appreciated by the trial Court the evidence on record shows that Mst. Tahira Parveen had gone willingly with the two appellants, as the taking away of the young woman was by public bus, the railway train etc. and nowhere Mst. Tahira Parveen raised any hue and cry which could have proved that she was being forcibly taken. however, with regard to appellant Mubarik Ali committing Zina with her, the evidence of Mst. Tahira Parveen is fully. supported by that of Doctor Razia W. M. O., Aitchison Hospital, Lahore, who had examined her and had given the opinion that she had been subjected to sexual inter course and was used to sexual intercourse. The vaginal swabs which were sent to the Chemical Examiner were found to be smeared with semen beside blood and as the evidence of Doctor Razia discloses the blood was found due to the fact that at the time of medical examination Mst. Tahira Parveen was having her menses. No plausible reason has been given by the appellants as to why they were involved in this case falsely. The delay of some days in lodging the F. I. R. by the father has been fully explained by him and the further fact that the Police at Karachi recovered the girl from custody of the two appellants by arresting the appellants as well as the girl, is sufficient evidence to show that the case against the two appellants is not false. The learned Additional Sessions Judge, Lahore, has rightly come at the decision that the defence given by the two appellants is of no avail.

3. Mr. Shahid Hussain Qadri, the learned counsel for the appellants, however, has raised the contention that if as found by the learned Additional Sessions Judge, Lahore both the appellant Mubarik Ali and Mst. Tahira Parveen were concerned in committing the offence of Zina, and the learned Judge disbelieved the evidence of Mst. Tahira Parveen about the Zina being Zina‑bil‑jabr, they should both have been tried as accused. The learned Judge believed the testimony of Mst. Tahira Parveen about the appellant committing Zina with her and merely doubted her further version about the Zina‑bil‑jabr, no objection could be raised about the appreciation of evidence by him. It is true that a man and a woman are said to commit Zina if they wilfully have sexual intercourse without being validly married to each other, but in the instant case it is clear that since the version of Mst. Tahira Parveen in her statement before police was that she was not a willing party and that the appellant had threatened her and used weapon for the purpose, she was rightly shown as a witness. Under the circumstances since the learned Additional Sessions Judge, Lahore, at least partly considered her evidence as a witness for arriving at the decision that the appellant was guilty of Zina, he did not consider it fit and proper to give any directive to the investigating authorities about taking action against her, specially as there was no evidence directly on the point of commission of Zina except that of Mst. Tahira Parveen which was corroborated by circumstantial evidence of Dr. Razia, W. M. O., Aitchison Hospital, Lahore and the Chemical Examiner.

4. It has been pleaded on behalf of appellant No. 2, namely, Ghulam Sabir son of Abdul Hameed that the alleged part, played by him was that of abettor and helper and, therefore, the same punishment which was given to Mubarik Ali appellant, should not have been given to him and lesser punishment should have been given. The principle with regard to liability of p abettor or helper in the commission of an offence is that such abettor or helper is liable for the commission of offence in the same manner as it was done by him alone. I, therefore, find that it is not necessary to interfere with the sentence awarded to appellant No. 2, by the learned Additional Sessions Judge.

5. For the reasons given above there is no substance in the appeal which is accordingly dismissed. M. Z. M. Appeal dismissed.