MUHAMMAD ISMAIL and 4 others vs THE STATE
The petitioners sought leave to appeal against a judgment of the Federal Shariat Court, which had upheld their conviction and sentences under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioners were convicted by the trial court for the offence of Zina-bil-Jabar and sentenced to 10 years rigorous imprisonment and 30 stripes each. The core legal question before the Supreme Court was whether the conviction could be sustained given the challenges raised regarding the medical and ocular evidence. Specifically, the petitioners argued that the medical evidence, which showed the victim was three months pregnant at the time of the alleged incident, contradicted the prosecution's claim of rape occurring one day prior. Furthermore, the petitioners questioned the natural conduct of the complainant husband and witnesses who allegedly observed the incident without intervening. Finding merit in these contentions, the Supreme Court granted leave to appeal to examine whether the prosecution had proved its case beyond reasonable doubt, particularly in light of the conflicting medical evidence and the alleged unnatural conduct of the witnesses.
- Does the presence of a pre-existing pregnancy in a victim of alleged rape create a reasonable doubt regarding the prosecution's case?
- Is the failure of a husband and witnesses to intervene during an alleged rape of the wife sufficient to cast doubt on the credibility of ocular evidence?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
1. ' SAIDUZZAMAN SIDDIQUI, J.---The petitioners are seeking leave to appeal against the judgment of Federal Shariat Court dated 5-8-1993 whereby the learned Federal Shariat Court dismissed their appeal against their conviction and sentences awarded by the trial Court.
2. ' The petitioners were tried under section 10(3) of the Offence of Zina (Enforcement of Hudood)
3. Ordinance 1979, hereinafter to be referred as 'the Ordinance; by the Sessions Judge, Muzaffargarh.
4. All of them were found guilty of the offence and were sentenced to 10 years R.I. And 30 stripes each under section 10(3) of the Ordinance. The allegation against the petitioners in the F.I.R. Was that the complainant Ghulam Abbas had brought his wife Mst. Razia, aged 18/19 years, from the house of her parents on 10-4-1992. As the complainant was coming to his village alongwith his wife and reached near Chah Roongheywala, the petitioners confronted him and threatened the complainant to teach a lesson for having illicit liaison with Mst. Maqsood wife of Nazir Ahmed brother of accused Haq Nawaz and Muhammad Nawaz. Petitioner No,1 and 2 overpowered the complainant while other accused persons turn by turn committed Zina-bil-Jabar with the victim Mst. Razia. It is also alleged that at that time accused/petitioner Haq Nawaz was carrying a pistol in his hand. The incident was seen besides the complainant by. Haji Muhammad and Ahmed Bakhsh, who were attracted to the scene of offence on the alarm raised by the complainant.
5. In seeking leave to appeal, the learned counsel for the petitioners contended that neither medical evidence nor the ocular evidence proved the case against the petitioners beyond reasonable doubt. It is contended by the learned counsel that when Mst. Razia was examined by the lady doctor after the incident, she was found carrying a 3 months' old pregnancy which medically A was not possible if she was raped a day earlier by five young men. It is further contended by the learned counsel for the petitioners that the complainant who was the husband of the victim, and two other persons were present at the time of incident, who claimed to have seen the offence but none of them tried to stop the petitioners or intervened, which was a conduct unnatural for the husband and the relatives of the victim. After going through the medical evidence in the case, we are inclined to grant leave to appeal to consider the above contentions. Leave to I appeal is, accordingly, granted.