2006 P Cr (PLP)

ZAFAR PASHA CHAUDHARY, J.

The appellant Zakir Hussain has assailed his conviction recorded by Mr. Ghulam Sarwar Qadri, Additional Sessions Judge, Jhang Camp at Shorkot, whereby vide his judgment, dated 27-5-2004 he convicted the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced him to undergo 10 years' R.I. with thirty stripes.

2. According to prosecution, Mst. Khurshid Bibi, victim who is the complainant as well, was approached by the appellant Zakir Hussain that his wife was expecting a child. He required her services for delivery. On this pretext he took Mst. Khurshid Bibi to the house where according to him his wife was undergoing labour pains. The victim left along with the appellant in the company of her brothers namely Ghulam Abbas and Sajjad Hussain. The complainant/victim entered the room to attend to the labouring mother whereas her brothers were provided the bedding near the room where both of them went to asleep. The appellant whereafter carne to the room. He bolted the door from inside and thereafter committed Zina-bil-Jabr with her. She raised hue and cry on which her brothers attracted to the room. The appellant made good his escape. The matter was reported to the police. Alter usual investigation the appellant was sent up to face trial.

3. The prosecution examined seven witnesses in support of the case. Lady Dr. Saira Bano, P.W.1 medically examined the victim and observed as follows:-- "A young female of average built, conscious and well-oriented in time and space. Vital signs are within the normal limits. She is menstruating regularly according to her statement. No signs of any injury found on her or external genetalia. Hymen torn old. Vagina admitted two fingers easily. Uterus is of normal size. No P/V discharge or leaking seen. Three vaginal swabs were taken and sent to the Chemical Examiner, Punjab, Lahore for semen detection/grouping." Her vaginal swabs were obtained and sent for chemical analysis. As pet report Exh.P.F., the swabs were found to be stained with semen. Mst. Khurshid Bibi appeared herself as P.W.2. She reiterated the statement already made by her to the police through F.1.R. Ghulam Abbas her brother appeared as P.W.3. According to him, on hearing noise, he rushed to the scene of occurrence and saw that the appellant was committing Zina-bil-Jabr with her sister. Both were naked. On seeing the witnesses, Zakir Hussain, appellant fled away. P. W.4 Muhammad Yasin, A.S.-I. is a formal witness. P. W.5 Mushtaq Ahmed, S.-I. is the Investigating Officer. Ile carried out the investigation and submitted challan against the appellant. P. W.6 Muhammad Ramzan and P. W.7 Muhammad Yaqoob are police officials. Their evidence is formal in nature.

4. On conclusion of the trial, the appellant was convicted under section 10(3) of the Ordinance and sentenced to suffer 10 years' R.I. with thirty stripes.

5. Learned counsel in support of the appeal has argued that the occurrence took place on the night between 27/28-11-1999 whereas the matter was reported on 4-12-1999 after a delay of about one weak. No explanation worth-consideration was tendered to explain the delay. He further submits that the prosecution story is totally unconvincing because nobody would dare to commit such an offence knowing that the brothers of the victim were present just in front of the room where the alleged offence was committed. He further submits that had there been any attempt made by the appellant to commit Zina-bil-Jabr the victim would have resisted the same and would have offered resistance to avert the assailant. According to the lady doctor, no mark of violence was observed on her body so much so even her clothes were not torn. According to the learned counsel, the whole story is unplausible and does not appeal to. reason. He, however, argues in the alternative that if at all the offence has been made out, the same may fall within the purview of Zina-bil-Raza and not Zina-bil-Jabr.

6. Learned counsel for the State has supported the conviction and submits that the victim has no enmity or grouse against the appellant to depose falsely against him. He adds that the medical examination coupled with the report of the Chemical Examiner leaves no doubt that the victim was subject to sexual intercourse.

7. After hearing both the learned counsel, I find that there is a delay in lodging the F.I.R. which has not been explained. The same indicates that the possibility cannot be ruled out that the alleged occurrence might have been taken place with consent of the victim. The contention raised by the learned counsel that no mark of violence was observed and also that even the clothes of the victim were not torn, leaves no doubt to believe that she was a willing partner. The argument cannot be ignored. The possibility cannot be ruled out that may be the victim was consenting party to the commission of Zina. In that event the offence would fall under section 10(2) and not under section 10(3) of the Ordinance. The conviction of the appellant is accordingly altered from section 10(3) to section 10(2) of' the Ordinance. The appellant had been sentenced to 10 years' R.I. The sentence of stripes being violative of the Abolition of Whipping Act, 1996 is set aside. As the appellant has been convicted under section 10(2) of the Ordinance, he is sentenced to two A years' R.I. The sentence of fine is mandatory under section 10(2), therefore, the appellant sentenced to pay fine of Rs.10,000 or in default to suffer six months' S.I. The appeal is disposed of in the above terms. H.B.T./11/FSC??????????????????????????????????????????????????????????????????????????????????? Appeal disposed of.