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P L D 1984 Supreme Court 218 (Shariat Appellate Bench)

Present : Muhammad Afzal Zullah, Chairman, S. A. Nusrat and Maulana


Muhammad Taqi Usmani, JJ

GHULAM SARWAR-Petitioner

versus

THE STATE-Respondent

Criminal Petition for Special Leave to Appeal No. 14-R (S) of 1983, decided on
19th December, 1983.

(On appeal from the judgment of the Federal Shariat Court, dated 27-4-1983 in
Criminal Appeal No. 121-L of 1982).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-

-- Ss. 10(3) & ) 6-Zina-bil-Jabr-Court not fully relying upon statement of eye-
witnesses on ground that eye-witness though confirming occurrence as stated
by prosecution but could not identify culprits at spot-Such eye-witness
deposing that "another eye-witness was crying when two "boys" (accused) were
seen by him coming out of place of occurrence and running away and that two
girls (prosecutrix) also came out of said place crying that they had been raped
by accused persons and further that persons seen by him running away were
culprits named by him"--Held, witness has fully implicated accused and his not
having identified accused personally does not make any difference in
circumstances.
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(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

- Ss. 10(2)(3) & 16-Zina-bil-Jabr-Accused belonging to so-called landed gentry


and prosecutrix coming from labourers family and in position of village
Maeens-Medical evidence confirming that sexual intercourse took place though
visible marks of violence not found on body of prosecutrix-No satisfactory
reason shown to establish that prosecutrix or her family could or had any
motive to falsely implicate accused--Overwhelming material present on record
against accused Held, accused rightly found guilty of offence of Zina-bil-Jabr
in circumstances.
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(c) Constitution of Pakistan (1973)

-- Art. 203-F(3)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of


1979), Ss. 10(2) (3) & 16-Overwhelming material available on record against
accused-No justification made out for re-appraisal of evidence-Leave to appeal
refused.-[Evidence].
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(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- Ss. 10(2) (3) & 16 - Criminal Procedure Code (V of 1898), S. 382-B-Zina-


bit-Jabr-Sentence-Leniency in sentence on ground of consent-Medical evidence
confirming that sexual intercourse took place though visible marks of violence
not found on body of prosecutrix-Merely because no scratches were found on
body of prosecutrix would not by itself show that prosecutrix was not dragged
and offence was committed with her consent-Dragging, types of Illustrated-
Accused belonging to landed gentry breaking well-established norms of
protection of females of Moeens and agricultural labourers and violating a
young lady of Christian faith, taking undue advantage of her and participating
in act of gangsterism, held, did not deserve any leniency in matter of sentence-
Not a fit case for exercise of power under S. 382-B, Cr. P. C.-[Sentence].
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(e) Constitution of Pakistan (1973)

-- Art. 203-F-Offence of Zina (Enforcement of Hudood) Ordinance (VIl. of


1979), Ss. )0(2)(3) & 16-No appeal against acquittal-Supreme Court, held, not
competent suo motu to either enhance sentence or change conviction for a more
serious offence.-[Appeal against acquittal-Sentence].
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(f) Criminal Procedure Code (V of 1898)
5. 382-B-Exercise of power under S. 382-B, held, though mandatory for trial
Court, was discretionary for Supreme Court.-[Sentence].
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(g) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- Ss. 10(2) (3) & 16-Zina-bil-Jabr-Sentence-Contention that heavy fine for


compensating prosecutrix might be imposed in piace of rigorous imprisonment
which would ruin life of accused, a young boy Supreme Court showing no
sympathy with accused observed that if accused side so desired out of shame
and remorse, provided it was due to penitence and contrition on part of accused
and not a mere urge to get away on strength of being rich, they might beg for
pardon from and pay full compensation to prosecutrix-Case being not one of
hadd, after taking such steps, Government might be approached for action that
might be considered appropriate by it in accordance with law.-[Sentence].
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Ch. Mushtaq Ahmed Khan, Advocate Supreme Court and Ch. Akhtar All,
Advocate-on-Record for Petitioner.

Ghulam Dastgir, Advocate Supreme Court for the State.

Date of hearing : 19th December, 1983.

ORDER

MUHAMMAD AFZAL ZULLAH, CHAIRMAN: Leave to appeal has beer


sought through this petition from judgment, dated 27-4-1983 of the Federal
Shariat Court ; whereby petitioner's conviction for offence of Zina liable to
Tazir was upheld with some modifications.
The prosecution case disclosed in the deposition of the prosecutrix Mst.
Parveen is as follows

"Mst. Perveen daughter of Jugindar, Caste Christian aged 15/16 years,


household, resident of Kamas, P. S. Mangha Mandi, Lahore.

"About 5 months ago while I alongwith ,Vst. Inayat Bibi and Mst. Razia P. Ws.
were cleaning the thrashing floor of Subedar Gujjar of village Sultankey when
suddenly at about 2 p. m. the present accused Ghulam Sarwar and his co-
accused Muhammad Tufail (Now proclaimed offender) came to that field and
started molesting us and they also gave a few slaps to Mst. Razia P. W. who is
about 8-9 years of age. Then they caught hold of me and Mst. Inayat Bibi P. W.
who is of my age and dragged us to a nearby Jhugee where Ghulam Sarwar
accused committed zina-bil jabar with me while his co-accused who is absent
today committed zina-bil jabar with Mst. Inayat Bibi P. W. we raised an alarm
which attracted Maluqa and Bashir P. Ws. at the spot on seeing whom the two
accused ran away from the spot. I went to the P. S. Manga Mandi and lodged
the F.1. R. Exh. P. C. It was read over to me and I thumb-marked it in token of
its correctness. I was medically examined."

Besides Mst. Parveen, her two companions Mst. Inayat Bibi and Mst. Razia a
child of about nine years were examiped as eye-witnesses. Maluqa another eye-
witness was also examined as P. W. but the Federal Shariat Court does not seem
to have fully relied upon his statement because, he while confirming that the
occurrence did take place as stated by the prosecutrix had not identified the
culprits at the spot. He, however, deposed that Mst. Razia P. W. was crying
when two `boys' were seen by him coming out of the jhuggi and running away
and that the two girls also came out of the jhuggi crying that they had been
raped by Sarwar and Tufail. And further that the two persons seen by him
running away were the two culprits named by them. This witness accordingly
has fully implicated the petitioner. His not having identified him personally
does not make any difference in the circumstances. Medical Evidence also
confirmed that sexual intercourse had taken place, though no visible marks of
violence were found on the body of the prosecutrix.

The petitioner in his statement under section 342, Cr. P. C. pleaded total denial
and offered the following explanation for what he called false implication

"The witnesses and their fathers work at the brick-kiln of Umer Draz. Exhs. M.
P. A. P. P. P. and Rafiq Khan Chairman of Union Council Khamas also belongs
to P. P. P. and both were opposed in the last election by my uncle Abdul Hamid
and myself. There were two parties in the village Khamas which is included in
Union Council Sultanke and one was headed by my uncle who has been
murdered by the other party in order to win the coming elections but before that
the second party involved me in this false case so that Abdul Hamid may be
safely done away with. The witnesses have falsely implicated at the instance of
the above said persons and even otherwise, they (the girls) have reputation of
being corrupt and habitual to intercourse. Our legs were also broken about two
years ago by the opposite party."
The learned trial Court believing the victims of the crime and also Mst. Razia
convicted the petitioner of Zina-bil-Jabr under sections 10(3) and abduction
under section 16 of the Offence of Zina (Enforcement of Hudood Ordinance,
1979 and awarded him the 10 years' R. I. and 30 stripes and further 5 years' R.
1. and 10 stripes and a fine of Rs. 5,000 under the two provisions, respectively.

On appeal a learned Single Judge of the Federal Shariat Court found that Mst.
Parveen had been `raped' by the petitioner, nevertheless he was acquitted
regarding the charge under section 16 and the conviction was altered from one
under sections 10(3) to 10(2) of the Ordinance, because it was assumed to be a
case of consent, though with respect without any cogent reason.

Learned counsel vehemently contended that the petitioner was falsely


implicated on account of party faction in the village. He highlighted the point
that petitioner's uncle was murdered due to the party faction. Bull despite his
best efforts he was unable to satisfy us that the prosecutrix or her family had
any motive to falsely implicate the petitioner. They, h admitted, are labourers
and are also in the position of village Moeens while the petitioner belongs to
the so-called landed gentry. He could be linked' the former with any partisan
conspiracy to falsely implicate the petitioner in such type of offence.

There is overwhelming material against the petitioner. No justification has been


made out for grant of leave to appeal for re-appraisal of evidence. The
petitioner has rightly been found guilty of the offence of Zina liable to Tazir.

Learned counsel also raised the question of sentence on ground of so called


consent; but in the circumstances of the case the petitioner has already been
leniently dealt with by the learned Judge of the Federal Shariat Court. It may be
observed that merely because no scratches were found on the body of Mst.
Parveen would not by itself show that she was not dragged in the fields.
Dragging can be of various types. If the victim is being pulled and pushed
along while she is also trying to extricate herself, although the act might
generally be described as dragging, nevertheless she might still be using her
feet, and thus avoid being completely helpless and lifeless like a log of wood. It
also depends upon the body weight and structure of the both the sides as also
the clothing on the body of the victim. However, there is no L appeal against
acquittal. This Court is not competent suo motu to either enhance the sentence
for change the conviction for a more serious offence. This remark has been
made in the context that ordinarily in respectable village communities, of
Pakistani Muslim society, the protection of the female of the moeens and
agricultural labourers against all molestation, is that of the landed gentry. Here
in this case the petitioner has broken these well. established norms and is a slur
on the good name of Muslims of his village. He has violated a young lady of
Christian faith and taking undue advantag of the victim participated in, what it
appears was, an act of gangsterism. He deserved no leniency in the matter of
sentence. The place of the learned counsel for reduction of sentence is,
therefore, rejected.

He then pleaded that the benefit of section 382-B, Cr. P. C. be allowed to the
petitioner. For the same reasons as stated earlier regarding refusal to reduce the
sentence, we do not consider it a fit case for exercise of a power which though
mandatory for the trial Court, is discretionary for this Court.

Learned counsel at the end urged that heavy fine for compensating the
prbsecutrix might be imposed in place of rigorous imprisonment which
according to him would ruin the life of the petitioner, who is a young boy. F We
in the circumstances stated above have no sympathy for him. If the convicts
side so desires out of shame and remorse, provided it is due to penitence and
contrition on the part of the petitioner and not a mere urge to get away on the
strength of being rich, they might beg for pardon from and pay full
compensation to the prosecutrix. This done, the case not being one of Hadd, the
Government might be approached for action that might be considered
appropriate by it in accordance with the law. With these observations this
petition is dismissed.

M. z. M. -- Petition dismissed.