1984 PLP 954 (SCMR)

MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑Leave to appeal has been ought from judgment dated 24th October, 1983 of the Federal Shariat Court ; whereby while dismissing the petitioners appeal from order of conviction under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the said Court enhanced the sentence awarded to them in exercise of suo motu revisional power. Prima facie this petition is barred by 18 days but we accept the explana tion offered by the learned counsel in this behalf and condone the delay. The facts and circumstances of the case up to the present stage as narrated in the petition for leave to appeal are as follows: "That on 17‑4‑1980, at dopherwela when the parents of Mst. Hamida Bibi, and other members of the household were not present in the house, and she was alone, the two petitioners, it was alleged, entered her house Muhammad petitioner armed with a knife and Abdus Sattar petitioner armed with a sota. That Muhammad petitioner forced her into a kotha where, allegedly, he committed zina‑bil jabr with her, Abdus Sattar had been helping him. Hue and cry attracted Ghaus Bakhsh, P. W. 4, and Abdul Aziz, P. W. 6, to the spot, who witnessed the occurrence. Abdus Sattar tried to stop them at the door, but they entered the room and seeing them, both the petitioners made good their escape. That the police investigated into the matter, and placed Abdus Sattar in Column No.

2. He was, however, summoned to face the trial along. with Muhammad petitioner. That the Additional Sessions Judge, Rajanpur, tried both the petitioners, and convicted and sentenced Muhammad petitioner to five years' R. I. and a fine of Rs. 2,000, to be paid as compensation to the father of the pro secutrix or in default three months' S. I. under section 18 of Hudood Ordi nance, and Abdus Sattar petitioner to one year's R. I., under section 109, P. P. C. That on appeal, Federal Shariat Court maintaining the conviction has enhanced the sentences awarded. Muhammad petitioner has been sentenced to 10 years' R. 1., 20 stripes and a fine of Rs. 10,000, or in default of payment of fine further one year's R. I. Sentence of Abdus Sattar petitioner has been enhanced to 3 years' R. I. and a fine of Rs. 5,000 or in default of payment of fine further four months' R. I." Learned counsel for the petitioner has contended that there was delay of four days in lodging the F. I. R. which remained unexplained ; that the case was investigated by an A. S. I. of police. Under Notification No Jud: II‑11(9)/79, dated 11th March, 1979 no officer below the rank of Deputy Superintendent of Police could have investigated it. Therefore the trial before the Court was vitiated. Reliance has been placed on Abdul Manan v. The State (P L D 1958 (W. P.) Kar. 643), that police had kept Abdus Sattar petitioner in Column No. 2 of the Challan Report because according to them he was innocent. He was summoned by the learned Magistrate who "sent the case" to the Additional Sessions Judge competent to try the same. The learned Additional Sessions Judge did not, according to the learned counsel, pass an independent order regarding the summoning of Abdus Sattar‑this it is further argued would render the cognizance by the learned trial Judge as illegal. That even if the learned Magistrate was competent to summon the accused and that act of the Magistrate is deemed as sufficient for taking cognizance by the trial Court, the trial even then could not commence without Abdus Sattar being questioned whether or not he wanted the case to be transferred, as visualised by section 191 of the Criminal Procedure Code.. He has in this behalf relied on Muhammad Riaz v. The State (1983 S C M R 816), and lastly that the medical evidence is of no assistance in discovering the time and date of occurrence and the statement made by the prosecutrix relating to the circumstances and time involved in the examination besides being self‑contradictory, is in conflict with the statement of the doctor. After hearing the learned counsel at some length we confirm the finding of fact by the learned two Courts below that the delay in lodging of the F. I. R. in this case has been satisfactorily explained by the prosecutrix. The explanation it needs to be mentioned by and large was elicited by the defence itself in the cross‑examination of the prosecutrix. Although there is some dissent at the High Court level but it is not denied that there is a string of authority in support of the view that investigation by incompetent police officer would not, by itself vitiate the trial. Learned counsel has not presented that branch of case‑law and we do not feel com pelled to examine the same ourselves as according to the evidence in this case it is not certain that the investigation was not conducted by the D. S. P. himself although A. S. I. also assisted him. Moreover learned counsel was unable to satisfy us that the Notification relied upon by him was issued competently under a Statute. There is no force in this argument either. The next argument relating to the trial of Abdus Sattar it is admitted by the learned counsel was not pressed before the Federal Shariat Court. But he, all the same, pressed it during the hearing in this Court on the argument that it is a question of law as also jurisdiction. We do not agree with the learned counsel for purpose of laying down the foundations, a scrutiny of facts was necessary firstly to determine from the record whether the learned Magistrate or the learned trial Judge summoned Abdus Sattar and also whether similar orders were not passed by both the forums. It also needed scrutiny from the record whether Abdus Sattar was not questioned about the option under section 191, Cr. P. C. The point raised does not need any further comment or examination in so far as the facts and circumstances of the present case are concerned. The last argument of the learned counsel again relates to the appreciation of the depositions made by the prosecutrix and the doctor. We, however, on the request of the learned counsel did go through the relevant pieces of evidence. There is no irreconcilable contradiction or discrepancy. The prosecutrix having been relied upon, as a truthful witness, it is not necessary for us to examine the testimony of the other eye‑witnesses. Learned counsel also tried to raise arguments with regard to the validity of some of the provisions of the law relating to the trial of the offences under the Hudood Ordinance VII of 1979. He has been told that this Court is competent to examine the same only when the matter is brought before it to proper proceedings, namely, after filing a petition in the Federal Shariat Court, a direct appeal is filed before the Supreme Court under Article 203‑F of the Constitution. With these remarks we find no force in any of the above‑noted argument of the learned counsel and this petition is accordingly dismissed. M. Z. M. Petition dismissed.