MUHAMMAD SARWAR Versus THE STATE
RAJA AFRASIAB KHAN, J. ‑‑‑The petitioner, Muhammad Sarwar son of Noor Muhammad, was convicted and sentenced to imprisonment for life plus a fine of Rs.1,000 on 9‑9‑1985 by Special Military Court No.51 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with M.L.R. No.34 in case F.I.R. No.188/84 dated 8‑6‑1984 registered with Police Station Renala Khurd, District Okara.
2. Shortly stated the facts arc that Mst.akina Bibi widow of Bashir' Ahmad was a resident of Chak No.12/L. Her husband died about four ago. She earned her livelihood by doing. manual labour in the village. On 25‑5‑1984 after noon time, Mst. Kausar Parveen daughter of Mst. Sakina Bibi aged about eight/nine years, took her buffaloes outside the village for grazing purposes in the square of Rao Zia Ullah resident of Chak No‑13/L. Mst. Sakina Bibi had also gone for doing manual labour to the same place. On 25‑5‑1984 at about 4‑00 p.m. Mst. Sakina Bibi heard the shrieks of her daughter Kausar Parveen. She reached the spot immediately and' found that her daughter was lying on the ground and Muhammad Sarwar was committing rape with her. Muhammad Shafi son of Muhammad Din also reached the spot and witnessed the occurrence. The accused after committing the offence ran away. The accused had been making entreaties for a compromise, but the complainant did not agree to hush up the matter. On the statement of Mst. Sakina Bibi, a case under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered with Police Station Renala Khurd, District Okara. After completion of investigation, challan was submitted for trial of the petitioner before the Special Military Court No.51. The Special Military Court after recording evidence of the parties convicted and sentenced the petitioner as already mentioned above.
3. This Constitutional petition was admitted by this Court on 15‑4‑1989 on the contention of the learned counsel that the Military Court which tried and convicted the petitioner was not legally constituted. Learned counsel contends that record of the case had not been made available despite the fact that a direction was issued to the learned Advocate‑General to produce the said record before this Court. The petitioner has also been produced before this Court, in person, in obedience of the order of the Court. He was summoned to find out his age as it was pleaded that he was minor. We have noticed from ‑his physical appearance that he is quite healthy grown‑up young fellow. The learned counsel contends that the case in hand could be heard and decided on its merits in view of the rule laid down in Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah.
49. Even otherwise, no such objection has been raised from the respondent side about jurisdiction of this Court. Neither certified nor uncertified copy of the judgment of the Special Military Court was placed on the file. In absence whereof, it is not possible for us to examine the contentions of the learned counsel relating to the evidence on record. However, the objection of the learned counsel that the Special A Military Court was not properly constituted has no force inasmuch as that the learned counsel was unable to show as to how 'the said Court was .not legally constituted. The contention of the learned counsel thus remains wholly unsubstantiated. The submissions made by the learned counsel coupled with the appreciation of the grounds of the Constitutional petition we are of the opinion that the Special Military Court was validly constituted for trial of the petitioner. Learned counsel for the petitioner drew our attention to contents of the petition from where it is evident that the prosecution produced as many as 10 witnesses in support of the case. Mst. Sakina Bibi complainant P.W.1, Mst. Kausar Parveen P.W. 2 and Muhammad Shafi P.W. 3 were the eye‑witnesses in the case. Dr. Nazir Ahmad P.W. 4 medically examined the petitioner and found him fit to do sexual intercourse. Similarly, Mst. Kausar Parveen was medically examined by Dr. Farhat Athar P.W.8. Learned counsel for petitioner, was unable to‑point out any material discrepancy in the ocular testimonies of Mst. Kausar Parveen anal Mst. Sakina Bibi even from his own brief. The facts as stated by the petitioner in the petition demonstrate that the petitioner was convicted and sentenced on the basis of the eye‑witness account duly corroborated by the medical evidence consisting of the statements of Dr. Nazir Ahmad and Dr. Farhat Athar. This being so, we find no legal justification to interfere in the order of petitioner's conviction in writ‑jurisdiction. No case whatsoever for interference has been made out by the learned counsel. In this view of the matter, the Constitutional petition being devoid of force is dismissed with no order as to costs.
SA./M‑168/L Petition‑ dismissed.