1995 PLP R1412 (SCMR)

‑‑‑‑S. 10(2)‑‑‑Appreciation of evidence ‑‑‑Prosecutrix had judiciously been found a woman of easy virtue and by having submitted voluntarily to the lust of accused she had not only compromised her integrity, but by making false allegation of her forcible abduction and commission of Zina‑bil‑Jabr against him she had certainly damaged her veracity ‑‑‑Prosecutrix was. an absolutely undependable witness and corroborative evidence, howsoever strong, could not rehabilitate her statement‑‑‑No direct evidence of the commission of Zina by the accused with the prosecutrix was available in the case‑‑‑Accused was acquitted in circumstances. Sardar Muhammad Ghazi, Advocate for Appellant. Nemo for the State. Date of hearing; 26th April, 1995, MUHAMMAD MUNI‑R KHAN, J.‑‑‑Abdul Khaliq appellant was tried by the Additional Sessions Judge, Khushab for the offences under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), on the charge of the abduction and commission of Zina‑bil‑Jabr with Mst. Shahnaz Bibi P.W.2 aged 18/19 years on 31‑8‑1992 at 9‑00 a.m. in the area of Katha Saghral of District Khushab, who, on 9‑5‑1993 convicted him under section 10(2) of the Ordinance and sentenced him to 3 years' R.I., 10 stripes, and a fine of Rs.2,000 or in default one month R.I., with benefit of section 382‑B, Cr.P.C. The appeal filed by the appellant was dismissed by the Federal Shariat Court on 12‑7‑1993 but the sentence of imprisonment was enhanced from three years to five years' R.I. and. stripes from ten to thirty. The sentence of fine was, however, not enhanced. Feeling aggrieved thereby, the appellant filed a petition for leave to appeal in this Court, which was granted on 12‑6‑1994. Leave granting order reads:

2. Learned counsel for the appellant has been heard. No one has appeared for the State.

3. In the peculiar circumstances of the case, the delay in filing the appeal is condoned, in the interest of justice.

4. In her statement before the, Court, Mst. Shahnaz Bibi P.W.2 stated that at the eventful time, she had gone to the fields to urinate. Abdul Khaliq accused came there, put a piece of cloth in her mouth, took her towards pacca road, forcibly put her in the truck, removed her to a Dera at a distance of two/three miles, and committed rape with her. She further stated that she was removed from one Dera to the other Dera and during this period, Abdul Khaliq had been committing Zina‑bil‑Jabr with her. When she told the facts to the residents of the Dera where she was lastly confined, Abdul Khaliq ran away and she was subsequently produced by a Baba before the police. After the registration of the case she was examined by Dr. Amina Altaf P.W.7 who opined that Mst. Shahnaz Bibi was habitual to sexual intercourse. The report of the Chemical Examiner revealed that the vaginal swabs taken by the doctor were stained with semen.

5. On the conclusion of the trial, the learned Additional Sessions Judge found that "the prosecution case, from the above‑stated evidence, is found to have been proved to the extent of commission of Zina by the accused with Mst. Shahnaz, but with her own consent". The Federal Shariat Court was also of the; view that Mst. Shahnaz was a consenting: party to the enjoyment of sexual intercourse with her. In this view of the matter, the only question for consideration and determination is as to whether any implicit reliance can be placed on the statement of Mst. Shahnaz. The answer is in the negative for the reasons that she has judiciously been found a woman of easy virtue. Having submitted voluntarily to the lust of the appellant, she has compromised her integrity. By making false allegation of her forcible abduction and commission of Zina‑bil‑Jabr against the appellant she has certainly damaged her veracity. To us she is an absolutely undependable witness and the corroborative evidence, howsoever strong, will not rehabilitate her statement. In the instant case there is no direct evidence of the commission of Zina by the petitioner with Mst. Shahnaz.

6. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is accepted, the conviction and sentence of the appellant is set aside, and he is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. N.H.Q./A‑1287/S Appeal accepted.