1992 P Cr (PLP)

5. The learned counsel for the appellant, in the first instance, took up a plea that there is a delay of three days in lodging the F.I.R. It has come in the evidence that the occurrence took place at about 8 p.m. in the night of 1-6-1990. It has also come in the evidence that the victim was all alone in her house as her father-in-law and her husband had gone to Fortabbas and so her mother-in-law had gone out of the village. The fact of the absence of her father-in-law and husband finds support from the evidence of P.Ws. 5 and 6 who had led her to her house. They have, in fact, clearly stated that there was none in the house at that time. Soon after the return of her father-in-law from Fortabbas she appeared before the S.H.O. on 3-6-19990 at about 4-45 p.m. As such the delay, if any, has been reasonably explained. It is also noticeable that the police station is at a distance of 27 miles from the place of occurrence. Furthermore, the statement of P.W.5 in this respect is also noticeable wherein he stated:-- "I am Chairman of Union Council. I asked the victim to lodge report but she refused to go to the police station till the arrival of her husband or father-in-law." Learned counsel next submitted that the medical report does not prove that any sexual intercourse had taken place on the occurrence. The Chemical Examiner's report also states that no semen was found on the vaginal swabs sent by the Medical Officer to him. Learned counsel on the basis of this evidence submitted that the incident of committing sexual intercourse has not been proved but the learned counsel seems to have overlooked the answer given by the victim to the counsel for the appellant-accused in cross-examination wherein she has stated that-- "the accused had been doing this act for about 3/4 mintues. During that period the accused had not, discharged. I myself had also not discharged." It may be noticed that for the act of commission of Zina it is not necessary that the parties or anyone of them should discharge. The offence is complete if the penetration had taken place. The learned counsel next submitted that according to the statement of the victim she received abrasions while she was dragged from the place where she sat down for easing herself and the place where the act of Zina-bil-Jabr was committed on her. Admittedly the distance is very short, She might have received some abrasions but it has come in the evidence that the land was grassy. Moreover she has been examined after 3/4 days. They might have disappeared or gone unnoticed by the lady doctor whose primary concern was with the act of intercourse for which reference was made by the Police Officer. The plea is, therefore, without any force. Learned counsel lastly submitted that the Shalwar of the accused was not taken into possession. Admittedly the police came on the scene on the 3rd June, 1990, the Shalwar might have been taken away by the accused in the meantime. I have read the entire evidence with the learned counsel for the appellant and 1 have no iota of doubt in my mind that the act was not committed by the appellant. The statement of the victim which remained unshettered, although she was cross-examined at length, is sufficient to convince the guilt of the appellant. It seems pertinent to quote the relevant portion of the statement of the victim in reply to questions put to her in cross-examination:-- "Before the occurrence I had sat down for easing purpose after opening my Shalwar. At that time I was facing towards east the accused had come from western side. When the accused had dragged me, my Shalwar was completely removed from my person. At the time of occurrence the accused had placed my legs on his shoulders and was leaning over me due to which I was unable to see behind him He had placed his arms under my back. My arms were free. I had tried to rescue myself by scratching the face of the accused. At that time the pistol was placed by the accused in the pocket of his Shalwar. The accused had also removed his Shalwar and had put it aside. The accused had been doing this act for about 3/4 minutes. During that period the accused had not discharged. I myself had also not discharged. The accused had fled away when the P.Ws. had come just near us. I had tried to catch hold of the accused after seeing the P.Ws. but I could not catch him."

6. G. P.Ws.5 and G have corroborated the incident in toto and their evidence had not been shaken at all. It seems advantagious to reproduce relevant extracts from their statements which are as under:-- P.W.5 Akbar Ali stated that-- "when we reached at the place of occurrence we saw Muhammad Ishaque accused, now present in the Court committing Zina-bil-Jabr with Mst. Irshad Bibi. Irshad Bibi P.W. was raising hue and cry in order to rescue her. After seeing us the accused fled away from there. The accused was holding a pistol in his hand and when we chased him, he threatened us with dire consequences due: to which we returned back' .... I had gone to the place of occurrence from cast to west. At that time the legs of the victim were on the shoulders of the accused and he was committing Zina with her. The legs of the victim were towards southern side whereas her head was towards north ... I had identified the victim as well as the accused from a distance of about 1-1/2 Karam ... The place where the accused was committing Zina with the victim was covered with grass. It was a plain place. I did not notice any marks of semen at the place of occurrence ... We had taken Mst. Irshad Bibi to the house of her in-laws. Since the husband and father-in-law of Mst. Irshad Bibi had gone to Fortabbas, therefore, nobody met us." P.W.6, Ghulam Mustafa, stated that "about 9 months ago at about &00 p.m. I had gone to a deserted Toba near the Chak in order to urinate. I heard hue and cry coming from inside the reed bushes. When I reached there, Irshad, Akbar and Akhtar, P.Ws. had also reached there. The accused had started committing Zina with Mst. Irshad Bibi P.W. At that time Mst. Irshad Bibi P.W. was crying. Thereafter the accused brought out a pistol and threatened us with dire consequences due to which we stopped. The accused thereafter fled away from the place." Besides, the pistol with live cartridges was recovered on the pointation of the appellant for which he was challaned under Arms Ordinance, and as admitted by him in his examination under section 340(2), Cr.P.C. on cross-examination he was convicted for keeping that unlicensed pistol with him. This piece of evidence also lends support to the prosecution case, that he committed rape with the victim on the point of pistol.

7. As regards the defence pica that there was some enmity between the parties it goes unproved and the learned trial Judge was justified in not believing the same.

8. Before parting with the matter, it may be observed that, at the conclusion of the arguments, the learned counsel prays for mercy. The facts and circumstances of the case do not call for any mercy. And the Qur'an commands expressly that while awarding (or executing) punishment of Hadd by stripes to the adulterer or adulteress you should not show any kind of mercy to them in the matter of the enforcement of religion of Allah. So that others may take lesson from it (Al Noor 24 : 2). I recollect a saying of Sheikh Sa'di a known Persian Poet who stated in his world known book Gulistan that:-- To do good to bad people amounts to do bad to good people

9. In fact, had the four eye-witnesses been produced by the prosecution, as two were dropped, it might have been a case of Zina liable to Hadd, Rajam as in the instant case the accused being already married person would have been liable to death. In view of above discussion, the appeal is dismissed. M.B.A./722/FSC ??????? Appeal dismissed