MUHAMMAD AZAM Versus STATE

FAZAL ILAHI KHAN, J‑ ‑‑ The appellant challenged the judgment of the learned Federal Shariat Court date 1 9‑8‑1993; whereby his appeal against the judgment of learned Additional Sessions Judge dated 23‑6‑1993 was partially accepted and his conviction under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979 was set aside while his conviction under section 10 (3) of the Ordinance was maintained and his sentence was reduced from 7 years' R.I. to 5 years' R.I. with benefit of section 382‑B, Cr.P.C.

2. A case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter called to be the Ordinance, was registered against the appellant and one Niaz his co‑accused on 1‑3‑1993 at Police Station Raja Jang, District Kasur. It was reported that at about 11 a.m. when the complainant was proceeding for joining her duty at Rural Health Centre 2 persons whom she did not previously know and subsequently came to know that they were Azanj and Niaz, came out of the wheat field and caught hold of her and dragged her into the field. Niaz caught hold of her while the appellant committed Zina‑bil jabr with her. In the meantime Muhammad Nawaz and Mist. Ruqia were attracted to the spot on hearing her hue and cry who witnessed the occurrence. After arrest of the accused and completion of investigation the accused were formally charged for the offence. Both the accused denied the charge and pleaded innocence. The learned trial Judge after recording prosecution evidence and examining the accused found both of them guilty of offence under section 16 of the Ordinance convicted and sentenced them to 7 years' R.I. and fine of Rs.10,000 with 15 laches each. Appellant was, however, further convicted under section 10(3) of the Ordinance and sentenced to 7 years' R.I. and 30 stripes. The sentences of imprisonment were ordered to run concurrently. Their appeal against the judgment was partially allowed. The conviction and sentence of both the appellants under section 16 of the Ordinance was set aside and they were acquitted of the charge. However, the conviction and sentence of the appellants under section 10 (3) of the Ordinance was maintained vide judgment dated 9‑8‑1993.

3. Leave was granted against the judgment of the learned Federal Shariat Court on the contention raised by the learned counsel for the appellant that as the complainant is a married woman, therefore, the medical evidence relied upon by the Courts below, has got no immaterial bearing on the prosecution case and cannot be considered as corroboration to the ocular evidence moreso when the complainant was medically examined after 24 hours of the occurrence.

4. Admittedly in this case prosecution examined seven witnesses in all i.e. Hassan Din Moharrar (P.W.1) who on receipt of complaint Exh.PA sent by Muhammad Rafique S.I. P.W.7 correctly incorporated the same in formal F.I.R. Exh.PA/1. Mst. Razia Bibi complainant (P.W.2) supported her F.I.R. in her statement recorded by the learned trial Judge. Muhammad Afzal Constable received sealed parcel which he delivered intact in the Office of the Chemical Examiner, Lahore. Zulfiqar Ali, Constable (P.W.4) received a sealed parcel and an envelop from the Moharrar who deposited the same in the Office of Chemical Examiner. Dr. Rashid Ahmad (P.W.5) is the Medical Officer, examined Muhammad Azam appellant and found him potent and capable of sexual inter course. Dr. Sajida Qayyum (P.W.‑6) examined the complainant and took vaginal swabs of the victim sealed and sent to Lahore for analysis of semen. In cross -examination she deposed that the victim was a married lady, therefore, she was not definite whether sexual intercourse was normal or rape. Muhammad Rafique (P.W.7) is the Investigating Officer, stated that he came to know of the occurrence at Adda Raja Jang at about 6 p.m. when the complainant appeared before him. After recording her statement he sent the same for registration of the case and himself proceeded to the spot. Both the accused when examined under section 342, Cr.P.C. denied the charge. The appellant stated further that he had a dispute with the complainant as he had refused to accept the hand of her daughter and further attributed mala fide to the Investigating Officer as by his efforts the Investigating Officer was compelled to return the illegal gratification which he had received in another case. That the complainant is of ill‑repute and she had previously brought a charge of Zina against one Muhammad Ramzan and for that she had earlier been divorced by her husband.

5. It was contended by the learned counsel for the appellant that excepting solitary statement of the complainant there is no independent evidence to corroborate her version. That the medical evidence is of no help to the prosecution as the complainant is a married woman and lived with her husband when examined the next day i.e. after 24 hours of the occurrence. It was further contended that the appellant and his co‑accused were not known to her. Reference was made to her statement in Court in which she stated that the names of the culprit were disclosed to her by those attracted to the spot including Muhammad Nawaz alias Billa and Mst. Ruqia before lodging the report. These two witnesses were not produced to prove the identity of the accused.

6. After hearing the learned counsel for the parties and on reappriasal of evidence on record it is abundantly clear that the complainant is a married woman working in Rural Health Centre. According to her own statement the names of the accused were not known to her and their names were disclosed to her by the persons who were attracted to the spot at the time of occurrence. The witnesses whose names are mentioned in the F.I.R. were not produced in the witness‑box. No identification parade was carried out which was very much necessary in view of the victim's initial report lodged with the police. As such the identity of the accused connecting them with commission of the offence is missing. The medical evidence as contended by the learned counsel on facts and circumstances of the case cannot be relied upon and it does not lend sufficient corroboration to ocular evidence which by itself is highly doubtful.

For the reasons this appeal is accepted, the judgment of the learned Federal Shariat Court is set aside. The appellant is acquitted of the charge. The appellant be released forthwith if not required in any other case.

N.H.Q./M‑3380/S Appeal accepted.