1988 P Cr (PLP)

4. On 29‑5‑1979, at 11.00 a.m., Mst. Nighat Parveen prosecutrix (P.W.6) was medically examined by Lady Doctor Zahida Khanum (P.W.1) who gave the following observation:‑

(1) No mark of violence on any part of car genitals. (2) No stains of blood or semen on her under‑clothings or private-parts.??????????? ?(3) Pubic hair shaved. No matting seen. (4) Hymen elastic. No bleeding. No pain, tenderness edema of edges. ?(5) Vagina admits two fingers and even speculum very easily, ??????????? In the opinion of the lady doctor the girl was subjected to sexual intercourse. However, it was pointed out try the lady doctor that the girl was used to sexual intercourse.

5. The appellant was also medically examined by Dr. Ashfaque Ahmad (P.W.5) and he was found fit for sexual intercourse vide his medico‑legal report Exh . P . C .

6. The prosecution produced as many as 11 witnesses to prove its case against the appellant. Four witnesses namely, Haroon Khar. (P.W.7), Muhammad Yusuf (P.W.8), Shaukat (P.W. 9) and Yaseen (P.W.10) saw the appellant while actually committing sexual intercourse with the prosecutrix. The statements of inquiry witnesses namely Abdul Latif (I.W.1), Muhammad Akbar (I.W.2) and Muhammad Sharif (I.W.3) were also recorded by the learned trial Court in order to satisfy the requirement of Tazkiaul‑Shahood. Mst. Nighat Parveen prosecutrix appeared as P.W.6 and she supported the case of the prosecution in complete details. Haroon Khan (P.W.7), Muhammad Yusuf (P.W.8), Shaukat (P. W.9) and Yaseen (P.W.10) appeared as eye‑witnesses in the case and they supported the prosecution version as disclosed by Mst. Nighat Parveen (P.W.6). Abdul Latif (I.W.1), Muhammad Akbar (I.W.2) and Muhammad Sharif (I.W.3) were produced to prove that the eye‑witnesses were the truthful witnesses and that they committed no major sins in their life.

7. The appellant while making a statement under section 342 Cr. P. C . denied the allegations against him and in reply to question No.10, he stated that the parents of the prosecutrix wanted her to be married with him. In this connection, they sent a message to the appellant. However, he refused to marry the prosecutrix because she was a girl of loose character. Later on, the prosecutrix started writing letters and on one occasion she also sent a photograph D.1 to him. The appellant further stated that another letter was written by the girl to him that she will not survive the shock of his separation. The appellant admitted that the prosecutrix came to his Hujra at about 11‑00 p.m. and he asked from her about the purpose of her visit. She disclosed that she wanted to take some utensils. The appellant asked her to leave the place. However, during the talk going on between the appellant and the prosecutrix, Haroon Khan P.W. entered the premises and closed the door of the Hujra from outside and chained it. Thereafter, he raised an alarm and the people of the locality were attracted to the scene of occurrence. The witnesses then opened the door and levelled a charge of committing Zina with Mst. Nighat Parveen. The appellant proceeded to say that he outrightly denied the charge levelled against him by the witnesses. The appellant further stated that he was made to sit in the mosque for about 4 to 5 hours. Later on, the police came and took him into custody. The girl was also brought to the police station and her statement was recorded. On the same day, the appellant stated, that he was medically examined.

8. Learned counsel for the appellant argued forcefully that there is absolutely no evidence against the appellant and that he has been falsely involved in the case. Learned counsel maintained that it is established that none from the witnesses saw the appellant while committing the offence of Zina. Learned counsel further submitted that it is proved that the prosecutrix was a consenting party in the case. Learned counsel lastly argued that there is material contradictions in the statements of the prosecution witnesses. He therefore, submitted that on the basis of this evidence, the appellant cannot be convicted and sentenced. Learned State counsel submitted that it is proved beyond doubt that the appellant was caught red‑handed while committing sexual intercourse with the girl. This fact has been supported by the P.Ws. who are independent and reliable. Learned counsel urged that the evidence of the girl has categorically implicated the appellant in the commission of the crime.

9. I have heard learned counsel for the parties and have perused the record very carefully. It may be observed here that the learned trial Court after considering the entire evidence has come to the conclusion that the statement of Mst. Nighat Parveen (P.W.6) stands corroborated by the testimony of four eye‑witnesses namely, Haroon Khan (P.W.7), Muhammad Yousaf (P.W.8), Shaukat (P.W.9) and Yaseen (P.W.10). Further, this evidence of the prosecution has been supported by the medical evidence as well. The learned trial Court believed the recoveries of the semen-stained vaginal swabs and Shalwar of the girl as well as the semen‑stained Dhoti of the appellant and the semen‑stained handkerchief of the appellant which was found from underneath the cot lying in the Hujra of the appellant. The learned trial Court apart from the above‑referred recoveries, also placed reliance on the statement of the appellant wherein he admitted the presence of the girl with him at the crucial time in his Hujra. The learned trial Court after discussing this evidence, came to the conclusion that the appellant did commit sexual intercourse with Mst. Nighat Parveen (P.W.6) in his Hujra at the mid‑night of 27th and 28th May, 1979. However, the learned trial Court observed that the instant case was not a case of Zina‑bil‑Jabr and instead thereof, this was definitely a case of Zina having been committed by the appellant. The learned trial Court concluded that he was not persuaded to believe that the eye‑witnesses did not commit any major sin during their lifetime. Proceeding on these premises, the learned trial Court convicted the appellant under section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced him as stated earlier. I have myself considered the evidence available on the record as well as the contentions raised by learned counsel for the parties. I am in agreement with the finding arrived at by the learned trial Court of the subject. The statement of Mst. Nighat Parveen (P.W. 6) is straightforward and reliable. She has narrated the whole story in support of the prosecution case. She deposed that she joined the class of students under the appellant and used to take lessons of the Holy Quran from the appellant. She stated that the appellant started cutting jokes with her. The witness stated that on the night of the occurrence when she was coming back home from the house of her uncle Muhammad Yusuf P.W.7, she was taken to the Hujra by the appellant and subjected to sexual intercourse against her consent. She raised a hue and cry and thereupon the witnesses came at the spot and rescued her from the clutches of the appellant. This statement of the prosecutrix is supported in its material particulars by Haroorl Khan (P.W.7), Muhammad Yusuf (P.W.8), Shaukat (P.W.9) and Yaseen (P.W.10). These eye‑witnesses including the prosecutrix were subjected to lengthy cross‑examination by the learned defence counsel but nothing favourable was obtained by him in that behalf. The medical evidence of the Lady Doctor P.W.1 will also support the eye‑witness account, The statement made by the appellant under section 342, Cr.P.C. has also supported the case of the prosecution to the extent that the appellant admitted the presence of the prosecutrix in his Hujra at the relevant time. He admitted that the witnesses came at the spot and that the door of the Hujra was chained from outside by them. He further admitted that he was taken into custody by the police from the place of occurrence. All these facts coupled with the statements of the prosecution witnesses and the statement of the appellant will show that the appellant has committed sexual intercourse with the proseeutrix on the night of the occurrence in his Hujra. Thus, the offence against the appellant under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is proved beyond any shadow of doubt. There is ample circumstantial evidence in the shape of semen‑stained Shalwar P.1, semen‑stained Dhoti P.2 and semen‑stained handkerchief P.3 of the appellant.? In my view, the appellant has committed a heinous crime and that too in the house of Allah Almighty. I do not find any justification to interfere in the judgment of the learned trial Court convicting and sentencing the appellant. He has been rightly convicted and sentenced.

10. The upshot of the above discussion is that I do not find any force in this appeal. Accordingly, the conviction and sentence of the appellant are maintained and the appeal is dismissed. The appellant has been released on bail vide order of this Court dated 19‑3‑1983. He shall be discharged of his bail bonds and shall be re‑arrested to undergo the remaining period of his sentence. M.Y.H./M‑554/L???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.