MUHAMMAD IDREES Versus THE STATE Khan Younas Khan and Ch. Muhammad Ali , Bashir Pervez Khan
The appellant was sent up by Police Station Mamunkanjan, Tehsil Sammundri on the charge of having committed Zina‑bil‑jabr with Mst. Salma Bibi daughter of Abdul Aziz Mochi‑‑an offence punishable under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter refered to as the Ordinance). The Additional Sessions Judge, Faisalabad, who tried him on the aforesaid charge gave his finding that Mst. Salma Bibi was a consenting party to the‑offence of Zina and, therefore, convicted the appellant not under section 10(3) of the Ordinance but under section 10(2) of the same and sentenced him to undergo R.I. for 5 years and to pay a fine of Rs.2,000 or in default of payment of the same to undergo further R.I' for 6 months. The appellant was also awarded whipping numbering 15 stripes. He has filed the instant appeal against the aforesaid conviction and sentences.
2. The case of prosecution against the appellant was that Mst. Sharifan mother of Mst. Salma used to work as domestic servant in the house of Muhammad Ibrahim, Lambardar, father of the appellant. On 26th November, 1981 at about 7 p.m. Mst. Salma accompanied by her mother complained to S.I. Muhammad Imtiaz, incharge of Police Post Muridwala at Adda Muridwala, that about 8 or 8 months earlier Mst. Sharifan mother of Mst. Salma had gone to Leiah to visit her sister, leaving Mst. Salma alone in the house and she was taking a bath during day time when the appellant came inside and forcibly took her into a room of her house and committed rape with her. He also threatened her that if she disclosed the fact to anybody he would kill her. As a result of the rape Mst. Salma conceived but kept the matter secret from the inmates of her house. It was only when she was pregnant for 8/9 months that she informed her mother Mst. Sharifan about having conceived from appellant Muhammad Idrees. Mst. Sharifan then took her, as already stated, to the Police Post Muridwala where the complaint of Mst. Salma was recorded by S.I. Muhammad Imtiaz and same was sent to the Police Station Mamunkanjan for registration of the case. Mst. Salma prosecutrix had also in her report (Exh. P.B.) stated that due to the threats given by Muhammad Idrees she had kept the fact about her pregnancy and sexual intercourse secret. S.I. Muhammad Imtiaz started investigation of the case and recorded the statement of Mst. Sharifan under section 161, Cr.P.C. He then took Mst. Salma to District Headquarters Hospital, Faisalabad on 27‑11‑1981 where Dr. Nafees Akhtar examined her. On 29‑11‑1981 the S.I. visited the scene of offence and prepared the site plan (Exh. P.D). He arrested Muhammad Idrees appellant on 11‑12‑1981 and got him medically examined for potency on 12‑12‑1981 by Dr. Abdul Sattar. After completing the investigation S.I. Muhammad Imtiaz challaned the accused‑appellant.
3. I have heard the arguments of the learned counsel for the parties and have perused the record of proceedings of the trial. It is apparent from the very F.I.R. that the report of occurrence was made after 8 or 8 months. There is no evidence against the appellant except that of Mst. Salma who in her evidence before the Court, made a belated attempt to explain the delay in reporting the matter to the police by stating that she had narrated the occurrence to her mother when she had come back home from Leiah after 5/6 months of the occurrence and that she had got the case registered two months after the arrival of her mother. However, Mst. Sharifan her mother, in her evidence stated that she had come back from Leiah after the 4th day but Mst. Salma had not disclosed to her anything about the occurrence. As a matter of fact, Mst. Sharifan stated that Mst. Salma had told her that she had pregnancy of about 8 months from Muhammad Idrees accused. After the lodging of F.I.R. Mst. Salma was medically examined by Dr. Mrs. Nafees Akhtar, who gave evidence that she had examined Mst. Salma for pregnancy and in her opinion Mst. Salma was pregnant about full term. There is also the evidence of Mst. Sharifan, mother of Mst. Salma, that Mst. Salma had given birth to a bastard child, who is living with them. Since usually full term means a pregnancy of 9 months, it is' apparent that the date of the commission of the alleged Zina‑bil‑Jabr was earlier than 8 or 81 months' as stated in the F.I.R.
4. The learned Additional Sessions Judge, Faisalabad in his judgment observed that sexual intercourse was definitely committed with her due to which she became pregnant and gave birth to an illegitimate child. He was, therefore, of the further opinion that since the prosecutrix had not been depicted as a woman of easy virtue her word alone against the appellant should be believed. However, in the cross examination of the Investigating Officer the question had been put to him about his finding out during the investigation that the prosecutrix and her mother were both of easy virtue. S.I. Muhammad Imtiaz, conveniently forgot whether the fact was as stated in the question. Moreover for reasons stated by the learned Additional Sessions Judge, he disbelieved the evidence of Mst. Salma about Zina‑bil‑jabr and had come to the conclusion that Mst. Salma was a consenting party to the commission of sexual intercourse. Seen in that light, the prosecutrix would appear to have been a partner in the crime committed namely Zina and, therefore, she could be considered as a co‑accused.
5. It‑is also clear from the evidence on record and her own admission that Mst. Salma had all the opportunity to inform her grand‑father, her brother and her mother about the commission of the offence by the appellant. It is also clear from her own evidence that there were houses in the neighbourhood and she could have raised hue and cry at the time of the alleged incident. The very fact that she only considered it necessary to inform her mother whom she had been pregnant for more than 8 months and was expecting her child, shows that she is not a witness of good moral calibre and had more‑or‑less confessed to the commission of Zina without raising any hue and cry and without suffering any injury. It is, therefore, considered all the more improper to depend on her word alone for conviction of the appellant. For the reasons already given, her evidence against the appellant can be considered as that of co‑accused trying to exculpate herself and inculpate the appellant. The standard of evidence for proving a crime is very high in accordance with the Sharia, specially where the penalty is severe as in the cases punishable with Hudood and the same considerations obtain in the case of any criminal offence. A person who could be said to have been a partner in the crime or who carried the evidence of her sin for eight or nine months without divulging the fact, or even expressing repentence about it, could not be considered as a good or reliable witness. Since, as already stated, there is no corroboratory evidence of any sort connecting the accused‑appellant with the commission of the offence, there is a grave doubt created with regard to the very commission of the offence by the appellant. The appraisal of such evidence specially in criminal cases, like the present one, has to be proper and unexceptional before it could form the basis for conviction. It does not appeal to a judicial mind that the allegation of a woman, who carries the evidence of her sin without informing even her mother for a number of months should be considered sufficient without corroboration to convict any person for such a serious crime as Zina. It would be placing a premium on guilt of such woman to permit her to exculpate herself by accusing any other person just by naming him as the perpetrator of the crime. I, therefore, find that the evidence against the appellant is not trustworthy and adequate and accordingly allow the appeal, set aside his conviction giving him the benefit of doubt and acquit him of the charge. He is on bail and his bail bond shall stand cancelled.
M. Z. M. Appeal accepted.