GHULAM SARWAR Versus THE STATE

ORDER

1. 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.

2. The prosecution case disclosed in the deposition of the prosecutrix Mst. Parveen is as follows

3. "Mst. Perveen daughter of Jugindar, Caste Christian aged 15/16 years, household, resident of Kamas, P. S. Mangha Mandi, Lahore.

4. "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."

5. 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.

6. 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

7. "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."

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. M. z. M. -- Petition dismissed.