2007 PLP 445 (SCMR)

JUSTICE CH. IJAZ AHMED (MEMBER).

We intend to decide captioned appeal and jail petition by one consolidated judgment arising out of the same common impugned judgment of the Federal Shariat Court dated 19-1-2004. Appellant Bashir Ahmed (complainant) had filed Criminal Petition No.5(S) of 2004 seeking leave to appeal against the aforesaid judgment of the Federal Shariat Court dated 19-1-2004 for enhancement of the sentence of the respondent. Leave was granted vide order, dated 22-10-2004 to examine the legality of the sentence reduced by the Federal Shariat Court. Convict/respondent has also filed Jail Petition No.94(S) of 2004 against the aforesaid impugned judgment of the Federal Shariat Court with the prayer that conviction and sentence awarded by the Federal Shariat Court to him be set aside. Brief facts out of which the aforesaid appeal and petition arises are as follows:-- "The case of the prosecution as stated by Bashir Ahmad (P.W.1), father of Mst. Shahida Paryeen (victim and prosecutrix) that his daughter Mst. Shahida Parveen was coming back home after attending school on 28-8-2002. On the way the appellant Fayyaz Ahmad who is a street urchin accompanied by his sister-in-law intercepted her. They enticed her to their village. Fayyaz Ahmad committed Zina-bil-Jabr with Mst. Shahida Parveen and his sister-in-law kept on guarding him by closing the door of the room. She released later in the evening at about 8-00/9-00 p.m. Fayyaz Ahmad was armed with a pistol. She was subjected to rape under its threat. She was also cautioned that in case she informed any of the inmates of the house she would not be spared."

2. The investigating agency after investigation of the case submitted challan against the convict Fayyaz Ahmed before the competent Court. The learned Additional Sessions Judge, Mandi Bahauddin vide its judgment, dated 18-11-2003 convicted Fayyaz Ahmed convict respondent in criminal appeal under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 25 years' R.I. The benefit of section 382-B, Cr.P.C. was also extended. Fayyaz Ahmed convict being aggrieved filed Jail Criminal Appeal No.286/I of 2003 before the Federal Shariat Court which was dismissed but his sentence was reduced from 25 years' R.I. to sentence of 5 years' R.I. on the ground that commission of Zina-bil-Jabr was not established beyond doubt therefore, conviction awarded to him under section 10(3) of the Ordinance was not sustainable and the offence was committed by the convict/respondent under section 10(2) of the Ordinance on the basis of evidence on record . Hence the aforesaid appeal and petition.

3. The learned counsel for the appellant submits that there was sufficient material on record to connect the convict/respondent that he had committed Zina-bil-Jabr with the victim. The trial Court was justified to award conviction under section 10(3) of the Hudood Ordinance, 1979 whereas the Federal Shariat Court had converted the sameunder section 10(2) of the Zina Ordinance, 1979 without any justification and without proper application of mind. He further submits that learned Federal Shariat Court had come to the conclusion that respondent had committed offence under section 10(2) by misreading and non-reading of the record. He further urges that learned Federal Shariat Court while reducing the sentence has not dealt with the case of the prosecution in its true perspective. According to him victim Shahida Parveen whose age was about 13 years and has been subjected to Zina -bil-Jabr by respondent Fayyaz Ahmed, which fact has been supported by medical evidence. Therefore, Federal Shariat Court was not justified to reduce his sentence.

4. Learned counsel of the respondent/petitioner in jail petition submits that prosecution had failed to prove that convict had committed offence under section 10(3) of the Hudood Ordinance as observed by the learned Federal Shariat Court after application of mind. He further submits that learned Federal Shariat Court was justified to come to the conclusion that victim was adult after perusing the medical report as all the ingredients of adult are born out from the medical examination and the statement of the doctor in terms of section 2(a) of Offence of Zina Ordinance, 1979. The learned Federal Shariat Court had given cogent reasons after reappraisal of the evidence while deciding the appeal of the petitioner that he had not committed offence under section 10(3) as the prosecution had failed to bring on record sufficient material to establish that he had committed offence. The learned Federal Shariat Court had rightly observed after appreciation of evidence on record that convict had committed offence under section 10(2) of the Ordinance, 1979. He further submits that learned Federal Shariat Court had erred in law to maintain conviction to the extent of offence committed by the petitioner under section 10(2) without adverting to the circumstances that the prosecution story was belied as the prosecution had concocted story against the respondent that he committed Zina-bil-Jabr.

5. We have given our anxious consideration to the contents of the learned counsel of the parties and perused the record. It is proper and appropriate to reproduce the operative part of the impugned judgment of the Federal Shariat Court to resolve the controversy between the parties:-- "So all these facts and circumstances taken together let us consider that the commission of Zina-bil-Jabr is not established beyond doubt, it will therefore, be unsafe to sustain the appellant's conviction under section 10(3) of the Ordinance. The same is therefore, converted to one under section 10(2) of the Ordinance. He has been sentenced to 25 years' R.I. but keeping in view that the case turned out of Zina-bil-Raza instead of Zina -bil-Jabr, the sentence of five years' R.I. will be just and appropriate. The appellant is accordingly sentenced under section 10(2) of the Ordinance to undergo five years' R.I. and also to pay a fine of. Rs.5,000 or in default of payment of fine to further suffer six months' S.I. Benefit of section 382-B, Cr.P.C. shall remain available to the appellant."

6. Mere reading of the aforesaid operative part of the impugned judgment clearly shows that the learned Federal Shariat Court had converted the offence from section 10(3) to section 10(2) after judicial application of mind. It is pertinent to mention here that the provisions of Criminal Procedure Code are applicable mutatis mutandis in respect of cases arising under provisions of Offence of Zina (EOH) Ordinance, 1979 in view of section 20 of the Ordinance. Therefore, Federal Shariat Court can examine the question of fact and law and can quash, confirm and modify or enhance sentence. It is also a settled law that powers of Appellate Court to alter the conviction are very wide under section 423 of the Criminal Procedure Code but they are subject to the condition that c the altered conviction should not be such which could have not been recorded by the trial Court. It is pertinent to mention here that according to the medical report age of the convict has been given as 14 years. Dr. Uzma Hamid P.W.6 had stated in her cross-examination qua the victim, which is as follows:-- "She had menstruation before but she was not sure when she menstruated last time. She was subjected to sexual intercourse for more than one time. The hymen was torned approximately 6 weeks before the examination as there was no fresh injury."

7. The learned Federal Shariat after reappraisal of the evidence had come to the conclusion that victim attained puberty as mentioned above and also after reappraisal of the evidence on record had come to the conclusion that victim could not raise hue and cry coupled with the statement of the doctor, who had examined the victim which clearly showed that her hymen was found to be old ruptured, therefore, the Federal Shariat Court was justified to convict the respondent/convict under section 10(2) of the said Ordinance. In the interest of justice and (airplay we have also examined the evidence on record with the assistance of the learned counsel for the parties. We do not find any illegality or material irregularity in the conclusions arrived at by the Federal Shariat Court in paragraphs 6 and 7 of the impugned judgment.

8. In view of what has been discussed above criminal appeal and jail petition have no merits and the same are dismissed. M.H./B-7/SC Appeals dismissed.