MUHAMMAD AKHTAR Versus State

SAEED-UR-REHMAN FARRUKH, J.- -- This appeal is directed against the judgment, dated 17-11-2005 passed by Sessions Judge, Layyah whereby the appellant was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years' R.I. He was also directed to pay Rs.50,000 to Mst. Ruqayya Bibi victim as compensation. The benefit of section 382-B, Cr.P.C. was extended to him.

2. The facts forming the background of the case may be briefly narrated. A case under section 10(3) was registered at Police Station Saddar District Layyah on 17-6-2005 at the instance of Mst. Ruqayya Bibi (P.W.5) regarding an occurrence that allegedly took place on the preceding day i.e. 16-6-2005 at 11-30 a.m. She in her F.I.R. (Exh.P.E.) Alleged that on the fateful day she was alone in her house. At about 11-30 a.m. the appellant entered the house and after taking her in his clasps committed Zina-bil-Jabr with her in a room. She raised hue and cry which attracted Haq Nawaz P.W.6 and Nazar Hussain (not produced) to the spot, who saw the occurrence. The appellant succeeded in making good his escape.

3. After investigation the appellant was challaned to Court to face trial under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He denied the correctness of the charge levelled against him and claimed trial.

4. At the trial the prosecution produced as many as seven witnesses in support of its case.

Lady Dr. Saima Batool, W.M.O., DHQ Hospital, Layyah appeared as P. W. I and deposed about the examination of the alleged victim Mst. Ruqayya Bibi, aged about 16 years, on 17-6-2005. On external examination, she found no sign of violence on any part of body of the victim. She noticed that the hymen was not intact and vagina admitted two fingers easily. She took three vaginal swabs for opinion by the Chemical Examiner.

She went on to depose that, as per report of the Chemical Examiner (Exh.P,C.), the swabs were found to be stained with semen and thus, she was of' the opinion that Mst. Ruqayya Bibi had been subjected to sexual intercourse before 17-6-2005,

5. Dr. Ghulam Mustafa, Medical Officer, District Headquarters Hospital, Layyah P.W.2 medically examined the appellant and found him fit to perform sexual intercourse.

Statements of Ibrar Ahmad, Head Constable P.W.3 and Ghulam Qasim Constable P.W.4 are not material for determination of the fate of the case.

6. Mst. Ruqayya Bibi entered the witness-box as P.W.5 and deposed about the occurrence as divulged by her in the FIR. She stated that she had eight brothers and sisters and all the family members resided in one house. According to her, the house of Nazar Hussain might be at a distance of twelve acres from the place of occurrence. She explained that she could not raise alarm because the accused had gagged her mouth while she was being removed forcibly into the room. Her house consisted of one room and one Chhaper. She conceded that her clothes were not stained with blood and semen.

She went on to depose that her father was away to Faisalabad and her mother had gone to fields to fetch fodder. She made damaging admission to the effect that it was her uncle Haq Nawaz who informed her father on his return from Faisalabad and that she herself did not narrate the incident to him.

6-A. Haq Nawaz P.W.6 stated that he was on his way to Layyah by adopting brick lined lane passing near the house of Rashid (father of the complainant). He heard cries from inside the house and rushed there. He saw the appellant committing Zina with Mst. Ruqayya Bibi. On seeing them the appellant fled away. There is nothing substantial to he noticed in his cross-examination except the fact that he conceded himself to be a landless person and stated that his house was at a distance of one square from the spot.

Ghulam Abbas S.-I. P.W.7 carried out necessary investigation and submitted challan in Court.

7. After conclusion of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr. P. C. He denied the prosecution story in toto. In reply to the question as to why he had been implicated in this case all that he could allege was that the complainant, in connivance with Haq Nawaz, got registered this false case against him so as to extort some money from him and usurp his agricultural land. He did not offer to lead any defence evidence. He also declined to statement on path under section 340(2), Cr.P.C. in disproof of the prosecution story.

8. I have heard the learned counsel for the parties and perused the record with their assistance.

It was contended by the learned counsel for the appellant that there was delay of one day in the registration of the case and no explanation was offered by the prosecution for the same. The alleged victim Ruqayya Bibi was proved to be habitual to sexual intercourse, as per deposition of lady doctor and therefore, no implicit reliance could be placed on her evidence. It was lastly urged that the prosecution story was improbable in that there were large number of family members of Mst. Ruqayya Bibi and all of them could not be expected to be absent from the house at mid-day leaving her alone, as alleged by her.

9. A careful perusal of the evidence showed that the possibility of Mst. Raqayya Bibi being a consenting party to the sexual intercourse could not be excluded.

There is no justification forthcoming as to why on being sexually assaulted she did not accompany Haq Nawaz P.W. to the police station to promptly lodge the P.I.R. She also did not proceed to police station herself. She had to concede, during cross-examination, that even after the return of her father from Faisalabad she kept silent and did not utter a word about the alleged rape before her father and it was Haq Nawaz who informed him in this behalf. The failure on the part of Mst. Ruqayya Bibi to inform her father about the serious offence committed upon her cast considerable doubt on her assertion that she was subjected to sexual intercourse against her consent.

10. The medical evidence showed that Mst. Ruqayya Bibi was a girl of easy virtue. Though she was unmarried girl of 16 years but had lost her virginity and become habitual to sexual intercourse. It would be highly unsafe to believe the ipsi dixit of unchaste girl. The absence of any marks of injury on her body also belied the prosecution version of Zina-bil-labr.

11. However, while keeping in view all the facts and circumstances of the case it cannot be positively held that she is liable to be proceeded against as Zania as she was not challaned by the police and thus, had no opportunity to defend herself. In somewhat similar circumstances this Court in Muhammad Asghar's case PLD 1985 FSC 1 extended benefit of doubt in interpretation of the charging section to the accused and he was convicted under section 10(2) and awarded sentence of five years' R.I. plus some fine.

In Muhammad Arshad's case 1995 SCMR 1639 the apex Court observed that the girl appeared to be a consenting party to the act of Zina but, in the circumstances of the case, it could not be positively concluded. that she was a Zania. By extending the appellant (in the said case) benefit of doubt his conviction was altered from one under section 10(3) to under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

12. I find that in the instant case also the conviction of the appellant under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 cannot be sustained which is hereby set aside Instead, the appellant is convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to five years' R.I. plus a fine of Rs.1,000 and in default to suffer one month's S.I.

The benefit of section 382-B extended to the appellant by the trial Court shall remain intact.

H.B.T./5/FSC ????????????????????????????????????????????????????????????????????????????????????? Order accordingly.