KHUSHI MUHAMMAD ALIAS BOGI Versus THE STATE
This matter concerns a petition for leave to appeal against a judgment of the Federal Shariat Court, which had modified the petitioner's conviction from section 10(3) to section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, reducing the sentence accordingly. The core legal questions addressed were whether the testimony of a woman in a Zina case requires mandatory corroboration and whether the legal principles regarding consent applicable under the Pakistan Penal Code, 1860, extend to the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The Supreme Court held that no hard and fast rule exists requiring corroboration in all Zina cases, as it depends on the facts and circumstances of each case. Furthermore, the Court clarified that legal precedents concerning consent under section 376 of the Pakistan Penal Code, 1860, are not strictly applicable to the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as consent does not provide a total absolution for the offender under the latter. The petition was dismissed.
- Does the testimony of a woman in a Zina case require mandatory corroboration?
- Are the legal principles regarding consent under section 376 of the Pakistan Penal Code 1860 applicable to the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Does consent provide a complete defense to an offender under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 376, Pakistan Penal Code 1860
ORDER
1. MUHAMMAD AFZAL ZULLAH, CHAIRMAN.‑ Leave to appeal has been sought from judgment, dated 17‑3‑1985, of the Federal Shariat Court where by the petitioner's appeal from conviction under S. 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), was only partly allowed with a finding of guilty under section 10(2) instead of 1.0(3) ; with the reduction of sentence from 15 years' R. I. to 5 years' R. I. maintain ing the sentence of 30 stripes.
2. The prosecution case was that Mst Sughra the prosecutrix was inveigled by the acquitted accused Mst. Zareena to her house on a false pretext. From there she was sent to petitioner's chowbara on other false pretext. There she was shut in and subject to Zina‑bil‑Jabr by the petitioner.
3. Two eye‑witnesses Ashiq and Asghar, were not relied upon due to some discrepancies. The medical evidence was positive with further fielding that the prosecutrix was used to sexual intercourse.
4. The finding of the Federal Shariat Court was that notwithstanding the exclusion of the two eye‑witnesses there was enough material to show that the petitioner was the culprit but keeping in view all the circumstances of the case it was treated a case of consent and the convic tion and sentence were accordingly altered from section 10(3) to 10(2) of the Ordinance.
5. Learned counsel has contended : firstly, that a consenting woman should not be relied upon in cases of Zina; and secondly, that her testimony should not be accepted without corroboration.
6. We do not agree with such a generalisation in case of Zina. No hard and fast rule can be laid down. It depends upon the facts and circumstances of each case. The case‑law relevant to cases under section 376, B P. P. C. wherein consent of the victim above a certain age, was com plete defence is no more strictly attracted to offence under Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), whereunder consent does not absolve the offender totally.
7. In this case we having gone through the evidence are satisfied that except for the element of a possible consent, there; is no inherent infirmity in the deposition of the victim. She had no reason to falsely implicate the petitioner either. He has rightly been convicted. Leave t appeal is, therefore, refused.
8. M.B.A. Appeal dismissed.
Cited by 1 case
- Syed SAEED MUHAMMAD SHAH and anothers vs THE STATE 1993 SCMR 550