1996 PLP 1549 (SCMR)

SAIDUZZAMAN SIDDPQUI, J.

The abovementioned two criminal appeals are filed by the two convicts Tanvir Ahmed and Nazir Ahmed with the leave of this Court against the judgment of Federal Shariat Court dated The appellants were tried under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter to be referred as 'the Ordinance' only, by the Additional Sessions Judge, Chakwal. Appellant Tanvir Ahmed was convicted under sections 10(3) and 11 of the Ordinance and he was sentenced to 10 years' R.I. and 30 stripes. Appellant Nazir Ahmed was found guilty only under section 11 of the Ordinance and was awarded 7 years' R.I. with 10 stripes. The learned Federal Shariat Court upheld the conviction and sentence awarded to the appellants by the Trial Court. Leave was granted in ' the above case, as follows:-- The learned counsel for the appellants contended that in so far the case of appellant Nazir Ahmed is concerned, it was at par with the' case of Muhammad Yousaf, Zahir Ahmed, Mst. Imam Bibi and Mst. Mahboob Begum, who were acquitted by the Trial Court in the case. It is contended by the learned counsel for the appellants that following the rule of consistency, the learned Federal Shariat Court should also have acquitted the appellant Nazir Ahmed in the case. Arguing the case of other appellant Tanvir Ahmed, the learned counsel for the appellants contended that in view of the medical evidence in the case that there was no mark of violence on the body of the victim Mst. Ghulam Fatima, and her conduct in the case, it was established beyond doubt that she was a consenting party to the sexual intercourse and as such the conviction and sentence awarded to the appellant Tanvir Ahmed under sections 10(3) and 11 of the Ordinance was not maintainable. The learned State Counsel on the other hand supported the judgment of Federal Shariat Court. The two appellants in the case were tried alongwith co-accused Muhammad Yousaf son of` Allah Ditta, Zahir Ahmed son of Muhammad Yousaf, Mst. Imam Bibi wife of Muhammad Yousaf and Mst. Mahboob Begum daughter of Muhammad Yousaf under sections 10(3) and 11 of the Ordinance. The Trial Court found the two appellants in the case guilty of the offences under sections 10(3) and 11 of the Ordinance while rest of the accused were acquitted of the charges in the case. According to the F.I.R. lodged in the case on 14-10-1987 by Hafiz Raja Khan, father of the victim, on 12-10-1987 Mst. Ghulam Fatima the daughter of the complainant was taken away from her house by Mst. Imam Bibi and her daughter Mst. Mahboob Begum to their house on the pretext that Mst. Ghulam Fatima may watch T. V drama. When Mst. Ghulam Fatima did not return for some time the complainant launched 'a search for her. The complainant contacted Muhammad Yousaf who informed that Mst. Ghulam Fatima had not come to his house, whereupon the complainant became suspicious that his daughter Ghulam Fatima has been abducted by all the accused persons in a conspiracy with each other. The matter was accordingly reported to the police by the complainant and a case was registered against all the accused persons on 14-10-1987. Mst. Ghulam Fatima, the victim, when examined in the case as P.W.8, in her statement before the Court on oath, stated as follows:-- "When Tanvir, Nazir and Mst. Mehboob Begum all took me to a metaled road and then I was forced to accompany them on a Kacha path and then Mst. Mehboob Begum and Nazir returned while Tanvir forcibly took me to a jungle. I was made to stay in jungle for 4/5 days and during this time Tanvir accused committed Zina-bil-Jabr with me, 4/5 times, and then I was taken to Choa Saiden Shah by Tanvir accused. Then I was taken to Maghal in a pick-up. I was made to stay in that village for one night. There also he committed Zina with me and all this time he had pistol with him. I was then being taken from Maghal when at a near place police arrived and at that time Nazir accused was also with us. The police arrested, Tanvir, Nazir and myself and we were brought to Chakwal." It is quite clear from the above statement of the victim that the role assigned to Nazir Ahmed in the case was similar to that which was assigned to Mst. Mahboob Begum. The Trial Court having acquitted Mst. Mahboob Begum on these allegations, there was no justification for convicting- accused Nazir Ahmad on the same allegation. The learned State Counsel is unable to point out any distinction between the case of Mst. Mahboob Begum and Nazir Ahmed accused, except that at the time of arrest of the victim and Tanvir Ahmed (appellant in Cr. A. 23(S)/93), Nazir Ahmed was also apprehended by the police. The fact that Nazir Ahmed appellant was also apprehended along with Tanvir Ahmed accused and Mst. Ghulam Fatima by the police, did not make out any distinction between the case of prosecution against Mst. Mahboob Begum and Nazir Ahmed, in view of the statement of the victim reproduced above. We, therefore, find no distinction between the case set up by the prosecution both against accused Nazir Ahmed and Mst. Mahboob Begum and accordingly, hold that the Trial Court having acquitted Mst. Mahboob Begum on the basis of the allegation of the prosecution quoted above, should not have Q convicted Nazir Ahmed. The appeal of Nazir Ahmed is, accordingly, allowed and he is also acquitted of the charge under section 11 of the Ordinance. He is directed to be released if he is not required by the authorities in any other case. . We will now. take up the case of appellant Tanvir Ahmed, who has been convicted under sections 10(3) and 11 of the Ordinance. The allegation against Tanvir Ahmed appellant in the F.I.R. was that he committed Zina-bil-Jabr with Mst. Ghulam Fatima. Mst. Ghulam Fatima in her cross-examination stated that the appellant used to make her laid down on the stones while committing rape against her wishes which caused injuries on her back and her clothes were torn and smeared with blood. She also said that she had pointed out these injuries on her back when she was arrested as well as to the lady doctor who had examined her after her arrest. However, the medical report in the case belied these assertions of Mst. Ghulam Fatim, as the lady doctor in her statement before the Court categorically stated that no mark of violence was noticed on the body of the victim and that the victim was found accustomed to sexual intercourse. Mst. Ghulam Fatima in her statement before the Court in cross-examination also admitted that during her stay with the accused in jungle and other places where she was made to travel, she did not raise any alarm. According to the statement of the victim, she was made to stay in the jungle by the accused Tanvir Ahmed for about 4/5 days and then she was taken to Maghal in a pick-up where she was made to stay for one night. For all this period, there is nothing on the record to show that Mst. Ghulam Fatima made any effort to escape or tried to raise alarm to attract other persons to get herself free from the clutches of appellant Tanvir Ahmed. These circumstances coupled with the medical report in the case do not rule out the possibility that in the sexual act Mst. Ghulam Fatima was a consenting party. The benefit of this possibility would go to the accused on the well-known principle that benefit of doubt in criminal cases always goes to the accused. We, accordingly, partly allow the appeal of Tanvir Ahmed and convert his conviction from section 10(3) to section 10(2) of the Ordinance. The" sentence of imprisonment is accordingly, reduced from 10 years to 5 years while of 30 stripes awarded by the Trial Court and maintained by the Federal I Shariat Court shall be maintained. Appeal No.23(S)/93 stands disposed of,1 D accordingly. N.H. Q./T-116/S Order accordingly.