1997 PLP 1492 (SCMR)

FAZAL ILAHI KHAN, J.‑‑‑Petitioner seeks leave to appeal against the judgment of learned Federal Shariat Court dated 1 i‑7‑1995 in Criminal Appeal No.9/L of 1995; whereby after setting aside the petitioner's conviction under section 354, P.P.C. he was found guilty of offence under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and his conviction under section 456, P.P.C. was also maintained.

2. The prosecution case set up in the F.I.R. lodged by the complainant is that on the night 1/2‑10‑1993 the complainant and his brother Muhammad Rafique and nephew Muhammad Arshad were asleep in the court yard outside their house they woke up by the alarm inside the house. When they entered the house they saw the petitioner holding Mst. Zahida Parveen from her breast and was trying to open the string of her trousers. On seeing them entering the house the petitioner ran away scaling over the wall. When they followed the culprit they noticed that Nasir Ahmad, brother of the petitioner (since discharged) was awaiting his brother outside the house near the wall who too decamped. After registration of the case as no incriminating evidence was found against Nasir Ahmad challan was submitted against the petitioner alone. The petitioner was charged under section 18 read with section 10(3) of the Ordinance to which he did not plead guilty.

3. At the trial prosecution relied on the testimony of Muhammad Sharif complainat (P. W.2), Mst. Zahida Parveen victim (P. W.3), Mst. Shahida Parveen sister of Mst. Zahida Parveen (P. W.4) and Muhammad Arshad cousin of Mst. Zahida Parveen. After the prosecution evidence was closed the accused/petitioner was examined under section 342, Cr.P.C. who denied the charge and made his statement on oath under section 340(2), Cr.P.C. in which he reiterated that he has been falsely charged because of election rivalry and dispute over a common watercourse irrigating lands of both the parties.

4. The learned trial Court based' reliance on the prosecution evidence and rejecting the defence plea found the petitioner guilty of the offence beyond any reasonable doubt. Accordingly, he was convicted under section 354, P.P.C., and sentenced him to one year R.I. and Rs.1,000, fine or in default of payment of fine further undergo 3 months' R.I. He was further convicted under section 456, P.P.C., and sentenced to one year' R.I. and fine of Rs.1,000 or in default to undergo 3 months R.I. as stated above. On petitioner's appeal the learned Federal Shariat Court set aside the petitioner's conviction under section 354, P.P.C., and instead he was convicted under section 18 of the Ordinance and sentenced to one year R.I. and fine of Rs.1,000 while his conviction under section 456, P.P.C. was maintained.

5. Learned counsel for the petitioner reiterated the same arguments before us which did not prevail with the learned Courts below. His further argument that the prosecution witnesses are, related and as such interested has not impressed us as on facts and circumstances of the case when the occurrence has taken place inside the house only closely related persons ordinarily residing in the house are the most natural witnesses in a case of the present nature. The evidence furnished by the witnesses has been properly appraised and found straightforward, truthful and confidence‑inspiring. Nothing has been brought on the record in spite of lengthy cross‑examination of these witnesses to discredit their version in any manner. The petitioner also failed to substantiate the plea of false involvement on account of the alleged enmity which the witnesses denied when put to them in cross‑examination. The conviction of the petitioner under section 18 of the Ordinance and that under section 456, P.P.C., is therefore, well founded. We find no infirmity in the judgment of the learned Federal Shariat Court. Accordingly, leave to appeal is refused and the petition is dismissed. N.H.Q./M‑3379/S Leave refused.