RANI Versus THE STATE

GHOUS MUHAMMAD, J.‑The present appeal arises out of the judgment of the then Additional Sessions Judge, Kotri (Mr. Akbar M. Memon) (hereinafter referred to as "the A.D.J.") dated 23‑12‑1991 whereby the appellant Mst. Rani had been convicted under section 10(2) of the Offence of Zina. (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the "1979 Ordinance"), while sentencing her to undergo rigorous imprisonment for two years with seven stripes and to pay a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for six months.

2. The facts relevant for disposal of the present appeal are that the appellant on 17‑10‑1987 had lodged an F.I.1k. with the Kotri Police Station alleging, inter alia, that one Faqiro, aided and abetted by one Rehmat, had committed rape/Zina‑bil‑Jabr with the appellant at the point of knife and also threatened dire consequences in case she disclosed the same to her parents. At the time of lodging the F.I.R. the appellant Was seven months pregnant and had alleged that such pregnancy had been caused by the unlawful sexual intercourse by the said Faqiro when he had raped her. That thereafter Faqiro, Rehmat and the appellants were all rounded up and charged under the 1979 Ordinance to which all three pleaded not guilty.

3. The prosecution produced five witnesses which were:‑

(a) P.W. 1, Dr. Kausar Soomro, Medical Officer, ‑ Kotri Hospital, who essentially produced the medical examination report of the appellant, confirming pregnancy;

(b) P.W.2, Muhammad Sharif, the Mashir of arrest of Faqiro and Rehmat who produced the Mashirnama.

(C) S.I.P./Incharge Police Station, Amir Bux, the Investigation Officer who essentially produced the F.I.R. and the Mashimama of the place of incident;

(d) P.W.4, Rehmat, father of the appellant;

(e) P.W.5, Nawab Bibi mother of the appellant;

From the record and proceedings as also the evidence which was recorded the following, inter alia appears:‑‑

(a) the appellant in‑cross‑examination alleged that immediately after the incident of rape/Zina‑bil‑Jabr she had intimated the same to her parents, however, due to threats from Faqiro and Rehmat the parents have not involved the law enforcing agencies, while it was only once she was seven months pregnant and could not hide the pregnancy that she was left with no other option but to lodge an F.I.R.;

(b) both Faqiro and Rehmat in their respective testimonies have alleged false implication due to enmity with the appellant. It is alleged that Faqiro was engaged to the appellant but due to her bad character he had broken the same and sought return of Rs.3,000 from appellant's parents which he had spent on account of ante‑nuptial arrangements. Faqiro had alleged that the F.I.R. had been lodged as a counter blast to an inquiry instituted by him through the police against the appellant's parents and the decision of a panchayat which was in favour of Faqiro. It is alleged that both the said inquiry and the decision of the Panchayat concerned the return of money to Faqiro by the appellant's parents;

(c) it was I further alleged by Faqiro and a defence witness priest Parkinson John that it was the talk of the entire Mohalla that appellant had been impregnated by one Rashid, a resident of the Mohalla.

5. The learned A.D.J. while appreciating and sifting the evidence and testimonies acquitted both faqiro and Rehinat, while convicting the appellant under section 10(2) of the 1979 Ordinance.

6. The learned A.D.J. had passed the acquittal orders in favour of Faqiro and Rehmat on grounds that there had been an inordinate delay in lodging the F.I.R., while there was no evidence against the two accused except the word and accusations of the appellant. It is pertinent to note that a defence witness was put up by the appellant i.e. Enayat Ayub Khokhar who was alleged to have deposed a circumstantial testimony that at the time of the incident in issue he had seen Rehniat and Faqiro walk into the appellant's house, Rehmat coming outside and waiting while closing the door, Faqiro thereafter emerging from inside the house, and then the 'said Enayat Ayub Khokhar entering into the appellant's house and finding her in tears. The testimony of Enayat Ayub Khokhar was discredited when it was brought on record that he was 90 years of age, was totally blind by one eye and had a very weak eyesight in the other eye, while he had admittedly and allegedly seen Faqiro and Rehmat entering and leaving the appellant's house from a distance of at least one furlong. Against the acquittal of Faqiro and Rehmat no appeal had been filed. .

7. The learned A.D.J. in convicting the appellant had been swayed by the argument of the learned A.P.P. that the evidence of the Woman Medical Officer testifying pregnancy was sufficient to convict the appellant 'With the commission of the crime of Zina under section 10(2) of the 1979 Ordinance. The learned A.D.J. was further swayed in coming to this conclusion by the fact that the appellant had remained silent for seven months, while it had become the talk of the Mohalla that she had willingly surrendered and subjected herself to sexual intercourse by someone, probably Rasheed, while she was still single.

8. I have perused the record and examined the arguments advanced by both sides as also given the entire matter a serious thought as the same involve for reaching repercussions, while I feel that the resolution of the dispute can well be achieved by finding answers to the following issues:‑‑

(a) Whether mere pregnancy is sufficient to convict a woman for Zina, especially where she claims the pregnancy to have been caused due to her rape/Zina‑bil‑Jabr by man/men who later stand acquitted on insufficiency of evidence?

(b) Whether the prosecution in the situation envisaged in (a) above is required to discharge the heavy onus of proof independent of the pregnancy and whether the factum of pregnancy alone acquaints is to discharge of that burden of proof?

(c) Whether in the situation as envisaged in (a) above the woman herself is entitled to any benefit of doubt?

(d) Whether Zina is a joint offence which would essentially require proven identification of a counterpart, and in. default whereof whether the woman could be convicted alone?

9. In order ‑ to answer the above issues I would like to refer to certain decisions which have a relevant bearing on the discussion.

10. A Division Bench of the Federal Shariat Court while deciding the case of Mst. Jehan Mina v. The State PLD 1983 FSC 183 had taken the view that an accused woman's pregnancy per se proved by a medical report was a clear proof of her sexual intercourse with at least some one. In this case a woman accused two men for committing Zina‑bil‑Jabr with her. After six months' pregnancy the woman lodged an F.I.R. in this regard. The Federal Shariat Court agreed with, the verdict of acquittal of the two men entered by the trial Court on grounds that there was no evidence against the accused except the allegation of the woman while then that was suspected the woman was already six months' pregnant at the time of lodging of the F.I.R., and earlier the woman had completely hidden, this fact from her family and no complaint had been lodged by her. 'I'he Court, however, went a step further and held that the pregnancy of the woman was unexplained while she had ' not explained as to what induced her to keep quiet for such a long time., In these circumstances the learned Judges further observed that it was quite clear that the woman had sexual intercourse with at least some one out of her own free will and accordingly she was convicted under section 10(2)

11. The decision of the Federal Shariat Court in Jehan Mina appears to be in conflict with an earlier decision of the Full Bench of Federal Shariat Court in, Mst. Sakina v. The State PLD 1981 FSC 320. In the said Sakina case it was, inter alia, observed that mere pregnancy of a woman was not sufficient to justify the charge of Zina against, her. The observations of the learned Chairman, Justice Aftab Hussain (as he then was) suggest that further evidence was required to have been brought on record by the prosecution other than mere fact of I pregnancy, as he held'.

"The next, question is about the involvement of Mst. Sakina in the commission of Zina since she was found to have pregnancy of 32 weeks on 10‑10‑1979 and as such her pregnancy was earlier than the date of her elopement with Wali Dad. There is no other evidence to charge Mst. Sakina with the commission of Zina. " (At p. 323).

12. A somewhat similar' view was taken in a subsequent judgment by the Federal Shariat Court in the case of Mst. Satia Bibi v The State (reported in PLD 1985 FSC 120). The decision in Safia Bibi has been tendered by a Single Bench comprising Aftab Hussain. C.J. (as he then was). The facts of the case art quite similar to the facts in the present case. In Safia Bibi a woman alleged rape/Zina‑bil‑Jabr committed by an accused mate to be the cause of her pregnancy. At trial, the Court of Session acquitted the male accused for want of evidence, however, the woman was convicted under section 10(2) of the 1979 ordinance on grounds that mere pregnancy was sufficient to find a conviction of zina against her. Aftab Hussain C.J while writing for the court under took an exhaustive review of the relevant provision of the Holy Qur an as also the other authoritative texts. The Zina when she pleaded pregnancy/child birth to be a result of commission of offence of rape on her. In this respect it would be pertinent to reproduce the relevant observations which are as follows:‑‑

"

18. Even under Shariah if a girl makes such a statement as made in the present case, she cannot be convicted of Zina. The principle of Fiqh is that she will be asked about the cause of pregnancy, if she says that she was forced to commit adultery or someone had committed sexual intercourse with her under suspicion about her identity, her statement will be accepted and she will not be convicted. This is based on the tradition of Hazrat Ali that when Shuraha came to him and said, 'I have committed adultery', Hazrat Ali said to her, 'You might have beer forced or someone might have committed sexual intercourse with you while you were sleeping'. (Kitabul Fiqh alal Manahibil Arabaa (Urdu translation), Vol. V.

19. If an unmarried woman delivering a child pleads that the birth was the result of commission of the offence to rape on her, she cannot be punished. This is the view of the Hanfis and the Shafis. But Imam Malik said she shall be subjected to Hadd punishment unless she manifested the want of consent on her part by raising alarm or by complaining against it later. (Ela‑ul‑Sunnah, Vol. XI, p.666, Bidayat ul‑Mujtahid, Vol. 11, p.329, Fathul Qadeer, Vol V, p.52, Al Mughni by lba‑e‑Qudaina, Vol. VIII, p.186, Badaius Sanai by Kasham, Vol VII, p.62, Mabahis fil Tashri il Janaiyyil Islami by Dr. Muhammad Farooq Nabban, pp.'."'5, 226. Altashri il Janaiyyal Islami by Abdul Qadir Aude. p.364, Al‑Tashrbil ‑lanaiyyul Islami, Vol. 11, pp.434, 435, Tabyinul Hqaiq by Zalali Vol III p. 184 Ibne Qudema said that it is generally held that there is no Hadd on one who is raped. This view was held by Omar, Alzahri, Qutada, Shafei and the people of opinion (inter alia Hanafis). He did not know of any contrary view. This (view) is based upon the Hadith from the Holy Prophet (p.b.u.h.) who said:

("my people are excused for mistakes, forgetfulness and for anything done under compulsion") It is reported from Abdul Jabbar on the authority of his father that a woman was raped and the Prophet (S.A.W.) acquitted her of the charge punishable with Hadd (Al, Mughni, Vol. VIII, p.186).

13 I have further been able to lay my hands on two decisions of the Single Bench of the Federal Shariat Court, both of which have been authored by Ch Muhammad Siddiq, J. (as he then was) i.e. Mst Siani v. The State (PLD 1984 FSC 121) and Mst. Sukhan v. The State 1985 PCr.U 110. The precise question, considered in Sukhan was whether in the absence of any direct or positive evidence, a female accused could be convicted under section 10(2) of the 1979 Ordinance, merely on the basis of the Chemical Examiner's report (see para. 17, p. 117). The Court, while dealing with this issue, dilated upon the term 'Zina' to comprise the following ingredients:‑‑

(i) there should be men and a woman;

(ii) such man and a woman are not validly married to each other;

(iii) such man and woman should have committed sexual intercourse with each other;

(iv) such man and woman should have committed sexual intercourse wilfully;

(v) there ought to be a penetration. (See pages 118 to 119).

While examining these five ingredients, the Court came to the conclusion that all of them were conspicuously absent as the prosecution had miserably failed to produce any evidence to substantiate the charge of Zina. It was further observed by the learned Judge that a mere presence of semen on the vaginal swabs of the woman accused would not bring her case within the definition of the offence of Zina as contemplated by section 4 of the 1979 Ordinance, unless it was further proved that the said semen was the result of sexual intercourse committed by the woman accused with her consent with a man who was not legally married to her It was further held that as mere medical examination of the woman accused and the positive report of the Chemical Examiner regarding her vaginal swabs would not be sufficient to prove Zina (see para‑20 at page 119). The learned Judge in Sukhan allowed the appeal while acquitting the woman appellant on reminds that the entire matter was a case of no evidence as admittedly none of the witnesses produced by the prosecution had alleged that Sukhan had committed Zina with any of the co‑accused. In other words, there was no direct or positive evidence of Zina available on record (see para. 16, p. 117). A somewhat similar approach was taken in the earlier case of Siani (referred above) where Ch. Muhammad Siddiq, J. took the view that where no direct positive evidence was laid by the prosecution to substantiate a charge of Zina under section 10 of the 1979 Ordinance, the expert evidence of a doctor alone was not sufficient to base such .i conviction. At best the said medical evidence could only serve as a piece of corroborative testimony but the same, by itself could not be made foundation of conviction of Zina. In Siani the learned Judge further observed that mere pregnancy/abortion of or birth of an illegitimate child by' an unmarried girl/widow or a married woman whose husband had no access. to her during the relevant period was not sufficient to hold her guilty under section 10 of the 1979 Ordinance.

14, After having reviewed the above decision I am of the view that the decision of the Division Bench of the Federal Shariat Court in Jehan Mina is not only in conflict with the earlier Full Bench judgment of Sakina but also the later Single Bench decisions in Sukhan, Safia Bibi and siani have left the decision in Jehan Mina to stand in isolation. The decision in Jehan Mina with utmost respect ought to be only confined to the annals of legal history and ought not be followed‑in view of the following

(i) Jehan Mina is in conflict with the law of precedent, being violative of the earlier Full Bench decision of Sakina.

(ii) Jehan Mina is in conflict with the provision of Shariah as has been crystalised in Safia Bibi‑

(iii) Jehan Mina is also in conflict with the principles and law of evidence, that the burden is on the prosecution to prove through some positive and direct evidence that the offence of Zina has been committed by the accused and that mere medical testimony on its own would be of no consequence and at best can only serve to be corroborative in nature. This conflict has been borne out by all the decisions discussed i.e. Sakina, Sukhan, Safia Bibi and Siani.

15. In light of the above discussion I would answer issues Nos. (a), (b) and (c) framed in paragraph 8 above in the following manner:‑‑

(I) mere pregnancy is not sufficient to convict a woman for Zina, especially where she claims the pregnancy to have been caused due to her rape/Zina‑bil‑Jabr by man/men who later stand acquitted on any ground;

(ii) to convict a woman for Zina, the prosecution would have to discharge the heavy onus of proof by bringing forth positive and independent evidence that the woman actually and in fact had committed Zina with her own free will and consent with another man to whom she was not lawfully married to. In this regard it may also be stated that mere proof of pregnancy or some form of medical testimony/report on its own could be of no consequence as the latter would at best only serve to be corroborative in nature;

(iii) in the situation as envisaged in (i) above the woman like any other accused is also entitled to a benefit of doubt.

16. Applying the above propositions to the facts of the instant case I feel no hesitation to hold that the trial Court had materially erred in finding a conviction of Zina against the appellant, Rani, only on grounds of proof of unlawful pregnancy and that the appellant had inexplicably delayed in lodging the F.I.R. It may also be observed that the inordinate delay in lodging the F.I.R could only be vital in relation to the case of the accused man, however, the same could be of no consequence as regards the guilt of the female accused in this context. On the contrary this point would fall in favour of the female accused i.e. the appellant since she could well forward the plea that the inordinate delay by the prosecution in detecting her pregnancy would entitle her to an acquittal on the general principle that any delay in lodging the F. I.R. /complaint weakens the case of the prosecution/complainant. I am of the view that since the prosecution has not been able to bring forth any positive and concrete evidence, other than the medical testimony, that the appellant actually committed Zina with another man to whom she was not lawfully married to, the prosecution has miserably failed to discharge the heavy onus of proof placed on it, which would also entitle the appellant to a benefit of doubt. I accordingly set aside the judgment of the trial Court in relation to the appellant and grant her a verdict of acquittal.

17. Before parting with the judgment I feel it pertinent to examine at least two more aspects of the case.

18. In Jehan Mina the Court at para. 17 (page 187) had rejected the plea of the learned defence counsel that where prosecution evidence is unreliable and is disbelieved and the conviction is based upon the statement of the accused alone then the whole statement should be taken into consideration and merely the inculpatory part of that statement cannot be relied upon, while ignoring the exculpatory portion of that statement. The Court while rejecting this contention placed reliance upon A.M. Nur Mian v. MakhIesur Rahman Almansuri and another PLD 1967 Dacca 503 to observe that a statement under section 342, Cr.P.C. was only meant to discover the truth and the explanation of the accused or his failure to explain was sometimes the most incriminating circumstance against him and that it would be injurious to the accused if a false or unsatisfactory statement was given. With utmost respect I could not pursuade myself to subscribe to this view taken in Jehan Mina as a Full Bench of the Hon'ble Supreme Court in Sultan Khan v. Sher Khan and others PLD 1991 SC 520 has now categorically laid down the principle that the inculpatory part of the statement of an accused under section 342, Cr.P.C. could not be used against F him while excluding the exculpatory part, unless there were other circumstances, direct or indirect, connecting the accused with the commission of the offence. In the present case, the inculpatory part of statement of the appellant under section 342, Cr.P.C. that she had been subjected to unlawful sexual intercourse could not be viewed in isolation without also considering the exculpatory part. that the said unlawful sexual intercourse was in ,consequence of Zina‑bil‑Jabr/rape committed on her. This is more so since there is no direct or indirect circumstance which can connect the appellant with the commission of the offence of Zina as I have already held that mere factum of unlawful pregnancy alone is not sufficient. There is yet another aspect that I wish to dilate upon i.e. once an explanation is sought by the woman accused, to explain her in lawful pregnancy or illegitimate birth of a child from her, and her explanation that the same was a result of rape committed on her by the male accused is found to be implausible, that implausibility in the explanation alone is not sufficient to convict her for Zina.

19. The next and final issue which I have been able to resolve after careful deliberation and which I feel touches upon the very root of criminal jurisprudence is whether Zina is an offence which would require positive identification of both a consenting man and a woman. In Sukhan (referred above) the learned Judge at paragraph 19 (page 118) while defining the term 'Zina' only appears to have touched this aspect without actually probing the matter further and giving a conclusive finding in this regard when he laid down the ingredients of Zina to include that 'there should be a man and a woman'. The learned Judge in Sukhan has not further stated that this particular ingredient would point out to the fact that both the man and the woman in this regard have to be conclusively identified, distinctly. I feel that the commendable analysis in Sukhan by the learned Judge can be further broadened inasmuch as that, by its very nature 'Zina' is a joint offence requiring positive identification of a man and a woman, distinctly, consenting an unlawful sexual intercourse. The position of Zina in this regard is comparable with the common law offence of affray in England. In England the fact that the common law offence of affray is in the nature of a joint offence requiring identification of at least two persons, can be home out from the following passages from the decision of the Court of Criminal Appeal in R. v. Sharp (1957) 1 All ER 577:‑‑

... ..... .....that it was a real disturbance of the peace by two persons each other in public instead of settling their differences in the royal Courts or endeavouring by a display of force though without necessarily using actual violence to overawe the public‑ .... (at p,579‑F) (Underlined for sake of exphasis).

Now as the recorder said, and we see no reason why he should not, one object in charging the appellants with an affray which is of necessity a jo int offence. (at p,‑580 C) (Underlined for sake of emphasis)

I would accordingly extend this principle as decided in Sharp by way of analogy to the offence of 'Zina' to hold that the said offence of 'Zina' is by itself in the nature of a joint offence requiring identification of both a man and a woman, distinctly. In case any one of them fails to be so identified, as, has been in the present case, no offence of 'Zina' can be made out by the prosecution. Such is also the reason for acquitting the appellant. She is currently on bail. Having been acquitted, her bail bond is discharged.

N.H.Q./R‑4/K Appeal accepted.