1995SCMR1137 (PLP)

Muhammad Munir Peracha, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners. Nemo for the State. Date of hearing: 24th November, 1993. 'MUHAMMAD RAFIQ TARAR J‑‑‑Muhammad Arshad and Waris Ali petitioners seek leave to appeal from the judgment of the learned Federal Shariat Court dated 6‑5‑1993 whereby their conviction under Article 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was upheld but their sentence of imprisonment was reduced from 10 years' R.I. to 4 years R.I. each maintaining the sentence of stripes and with this modification their appeal was dismissed. `

2. The prosecution version was that on 16‑3‑1992 at 4‑30 a.m. Mst. Hamida Bibi was returning home after easing herself in a nearby field when both the petitioners dragged her to the shop of Waris Ali and committed Zina‑ bil‑Jabar with her. The case was registered on the same day at 9‑10 a.m. on the basis of the statement of Mst. Hamida Bibi recorded at 9‑00 a.m. She was medically examined on the same day by Lady Dr. Tehmina Mustafa. There was no mark of violence on any part of her body including private parts. Her Shalwar was stained with whitish discharge. There was no semen or blood on the body of pubic hair. Hymen was torn and healed. The tears were old. Vagina admitted two fingers easily. Vaginal swabs sent to the Chemical Examiner received a positive report. At the trial Mst. Hamida Bibi supported the F.I.R. version. The petitioners pleaded not guilty to the charge and denied the prosecution allegation against them. They stated that they were falsely implicated due to enmity and severe party faction in the village.

3. Learned counsel for the petitioners contends that the petitioners have been falsely implicated due to party faction and litigation between the parties. He submits that in the peculiar circumstances of this case the uncorroborated solitary statement of Mst Hamida Bibi was not sufficient to warrant the conviction. He had drawn our attention to the statement of Tasaddaq Hussain, S.H.O. P.W. 7 who admitted that the village of the parties was divided into two groups and litigation was pending between the complainant and the accused parties. He also admitted that the "public opinion about the reputation of Mst. t4amida Bibi P.W. was bad". Muhammad Sadiq Inspector who also investigated this case appearing as a Court‑witness stated that after investigating the case he had opined that the petitioners "were not connected in the offence": We have also noticed that in cross‑examination Mst. Hamida Bibi stated that in her police statement she had stated that Arshad petitioner committed Zina‑bil -Jabar with her first and thereafter Waris Ali petitioner ravished her. When further cross‑examined she stated that Arshad was committing Zina when Bashir and Sharif P.Ws. came inside the shop. Earlier in examination‑in‑chief she had stated that as soon as Bashir and Sharif came inside both the accused fled away through the other door. This statement contradicts her version that Waris Ali had also committed Zina‑bil‑Jabr with her after Arshad Ali petitioner. In the circumstances leave to appeal in granted to consider whether in the peculiar circumstances of this case the solitary statement of Mst. Hamida Bibi could form a sound basis for conviction. The interim bail allowed to the petitioners vide order dated 27‑10‑1993 is confirmed. . N.H.Q./M‑2094/S Leave granted.