ABDUL JABBAR Versus STATE

1. SHAFIUR RAHMAN, J. ‑‑The petitioner, Abdul Jabbar, whose conviction under section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (hereinafter referred to as the Ordinance) has been upheld by the Federal Shariat Court by its judgment dated 15th of March, 1987, seeks leave to appeal.

2. The petitioner said to be aged about 18 years and Mst. Jannat Bibi (not related to him) aged 50 years were sent up for trial under the Ordinance. The allegations against them were that on 29‑12‑1980, Jannat Bibi came to the house of Mst. Ghulam Fatima (P.W.5) aged 14 years and asked her to come to her house and take the shoe which she had given for repair to Bali Mochi. Mst. Ghulam Fatima accompanied her to the house. She was told that the shoe was lying in the Kotha and she should fetch it. On entering the Kotha she found Abdul Jabbar present inside. When she tried to pick up her shoe, he caught hold of her, took off her Shalwar and committed Zina‑bil‑Jabr. Her shirt was torn. She received bruises on her face. On her cries her mother and father were attracted. Abdul Jabbar managed to escape. A report was lodged and the trial took place. Mst. Jannat Bibi was convicted under section 16 of the Ordinance while the petitioner under section 10(3) of the Ordinance, and sentenced.

3. On appeal, the Federal Shariat Court acquitted Mst. Jannat Bibi giving her the benefit of doubt but maintained the conviction and sentence of the petitioner.

4. Mr. Asif Saeed Khan Khosa, Advocate, the learned counsel for the petitioner contended that the acquittal of Mst. Jannat Bibi has rendered the whole case of the prosecution doubtful and further it could be as well a case of consent and surprise for which the conviction and sentence could not be under section 10(3). However, a purely legal question has been raised with regard to the petitioner being a non‑adult at the time of the occurrence. Undoubtedly, according to the Medical evidence the vaginal swabs taken into possession disclosed the presence of semen and indication of the petitioner being pubert if the semen could be related to him. According to the learned counsel, the doctor, who examined him for the first time the same month that the occurrence took place, gave out his age as 17 years but at the trial in October, 1986, the learned Sessions Judge recorded his age as 18 years which would take the age of the petitioner at the time of the offence to about 12 years, may be less than that. The learned counsel has relied on the decision of the Federal Shariat Court in the case of Muhammad Razzaq v. The State PLD 1985 F.S.C. 298 to contend that capacity to commit sexual intercourse alone, would not bring accused within definition of "adult" as laid down in section 2(a) of the Ordinance. It was mandatory to show that "genital organ is sufficiently developed, that there is ability to secrete semen, that the pubic and axillary hair are sufficiently grown. It would further appear that larynx should be sufficient in size so as to lead to the deepening of the pitch of the voice." The Federal Shariat Court held that unless these signs are present in a male, it would be difficult to say that he has attained puberty. The learned counsel has also referred to the decision of this Court in Farrukh Ikram v. State P L D 1987 SC 5; Zakaullah alias Zaka v. The State P L D 1984 SC 400; Muhammad Hussain v. Muhammad Ramzan and another PLD 1982 F.S.C. 11 and Shaukat Masih v. State P L D 1982 F.S.C. 19 to substantiate his contention.

5. We find that there is an area open for further examination and authoritative pronouncement by this Court and it is with regard to the true and exact definition and meaning of an 'adult' for the purpose of the Ordinance and whether secretion of semen alone is decisive of the matter.

6. Leave to appeal is granted. Bail already granted earlier to the petitioner shall hold good.

7. M.A.K./A‑315/S ???????????????????????????????????????????????????????????????????????????????? Leave granted.