' This is jail appeal on behalf of Mst. Gul Hamida filed by her through Superintendent Jail against judgment, dated 1-10-2003 whereby she was convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 201, P.P.C. And sentenced to three years' R.I.
With fine of Rs,5,000 in default to suffer one month's S.I. Under section 201, P.P.C. To undergo one year's R.I. And to pay fine of Rs,1,000 or in default to suffer seven days S.I. Both the sentences of imprisonment have been ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. According to prosecution, the appellant Mst. Gul Hamida was present in her house at about noon time about 7/8 months prior to 16-5-2002 i,e, the date of lodging the F.I.R. Her parents were away and she was all alone. Mumtaz son of Sadbar and Saleh Khan Son of Abdul Ghaffar who had been already visiting her house came to her house and both forcibly took her to the Verandah of the house. She was made to lie on the cot whereafter Mumtaz and Saleh Khan committed sexual intercourse with her one after the other for three times. She did not disclose the incident to her parents and brother on account of fear. She, however, realized with passage of time that she had conceived and was pregnant of quite a few months. On completion of the investigation, the appellant along with said Mumtaz and Saleh Khan were challaned to Court.
3. It would be pertinent to note that as per statement of Gul Umber D.F.C., P.W.1 he was entrusted with the service of summons on Mumtaz and Saleh but both avoided the service. He reported accordingly. Warrants were issued against them to procure their attendance. It means that both the accused persons remained fugitive from law and did not join the investigation.
4. Gul Sherwan Awan, P.W.2 is father of Mst. Gul Hamida. According to him, he was stationed in Islamabad for his livelihood and as such used to be away from his house. On receipt of the information he came to the village and took his daughter Mst. Gul Hamida with him to report the matter.
5. Lady Dr. Fareeda Rahim Dii, P.W.3 medically examined Mst. Gul Hamida. She observed as under:-- "(1) She is pubert and can be used for intercourse.
(2) There is no semen stains or any other evidence which can show that she has been raped in the near past.
(3) She is pregnant of about eight months (32 weeks).
(4) Her age by appearance is about 22-24 years. Exact age can be determined by Radiologist on radiological examination."
' She submitted report Exh.P.W.3/1.
6. P.W.4 Fazal Wahad Khan, Inspector who was posted as S.H.O. Alpuri registered the F.I.R. Exh.P.A. He vide application Exh.P.W.4/1 got Mst. Gul Hamida medically examined. He obtained warrants under section 204, Cr.P.C. For getting the two accused Mumtaz Khan and Saleh Khan declared as absconders as they were avoiding their arrest. He also moved an application Exh.P.W.4/3 under section 87, Cr.P.C. For proclamation. This witness arrested both the accused. He moved two applications Exh.P.W.4/4 and P.W.4/5 for getting them medically examined. On completion of the investigation, all the three accused persons namely the two male and appellant Mst. Gul Hamida were challaned to Court.
7. After recording the prosecution evidence, the appellant as well as co-accused were examined under section 342, Cr.P.C. All the accused persons denied the allegations against them and pleaded that they did not commit any offence. The appellant in answer to relevant question qua her implication stated that Mumtaz and Saleh Khan her co-accused committed forcible, sexual intercourse with her, as a result of, which she became pregnant. She narrated the entire incident to the police. She voluntarily got herself medically examined. No one stood witness against her. In fact she initiated criminal proceedings as the complainant as she had been subjected to cruelty.
8. The learned trial Judge vide his impugned judgment acquitted both the male accused i,e, Mumtaz and Saleh Khan. He recorded his reasons in paragraph 9 of the judgment that the matter was reported to police with a delay of 7/8 months, no site plan was prepared' and because Mst. Gul Hamida had been found as guilty, therefore, no offence was committed by the male accused. It was added that the accused had been charged under section 10(2) of the Ordinance; therefore, they could not be convicted under section 10(3) of the Ordinance. No evidence was available against the male accused except the statement of Mst. Gul Hamida and lastly that the doctor who examined the male accused for their potency had not been produced, therefore, it was not established that the accused were capable of committing sexual intercourse. They were accordingly acquitted from the charge against them.
9. The trial Court convicted the appellant holding inter alia that Mst. Gul Hamida was found to be pregnant of about eight months, she was unmarried and she did not mention this fact to anyone nor she lodged any report with the police. On the strength of these circumstances she was held to be guilty and was convicted under section 10(2) of the Ordinance read with section 201, P.P.C. For committing Zina and also suppressing the evidence.
10. I have heard the learned counsel for both the parties and have gone through the prosecution evidence as well as the relevant record. The entire prosecution evidence has been referred to above. In nutshell there is no witness produced by the prosecution against the appellant who witnessed the occurrence or stated that she was the Consenting party. The learned trial Judge has drawn the inference from two circumstances, (i) that Mst. Gul Hamida had conceived and stained pregnancy, (ii) that she did not disclose this fact to anyone.
11. As regards the fact of pregnancy, the same has been disclosed by her at the very initiation of the proceedings, i,e, by lodging the F.I.R. She unequivocally stated that she had been subjected to Zina- bil-Jabr by both the male accused and on account of the same she attained pregnancy. Not only she herself was the first person to disclose this fact but she also explained the reasons for not disclosing it earlier. She quite truthfully explained that on account of fear and shame she could not inform her parents or any other person. The learned trial Judge has proceeded on the hypothesis that attaining of pregnancy by any unmarried girl by itself is a conclusive proof that she committed Zina and conceived therefrom. The inference has been drawn from the factum of pregnancy and also that the victim was a consenting party and as such this circumstance alone was held to be sufficient to prove her guilt. To draw the inference merely from the factum of pregnancy would not be only erroneous rather it would be highly unjust and cruel. If a young girl is subjected to a criminal assault and she due to the prevailing values and norms and also of the circumstances is compelled to keep mum then it does not mean that she should be subjected to double jeopardy. In the first instance a cruelty was perpetrated on her and then instead of providing relief to her she is labelled as a sinner and held guilty for an offence under section 10(2) of the Ordinance.
12. Confining to the facts and circumstances of the case in hand, Mst. Gul Hamida is an unmarried girl. She, according to her, was ravished by two men in her house. The very first version given by her is that she was forcibly subjected to sexual intercourse. She belongs to society where unfortunately in such an eventuality when a girl is found to be pregnant, it is readily presumed that she must have subjected herself to the act willingly without even any evidence in this respect.
13. In absence of any positive evidence merely on the basis of pregnancy it cannot be presumed that the victim girl was a willing partner. To record conviction under the Hudood Ordinance, evidence of an unimpeachable character is required. The Islamic Law recognizes the principle that an accused person is presumed to be innocent unless proved guilty through the testimony of credible witnesses or reliable evidence. To convict a person and that too a female as such is highly violative and contrary to the principle of Islamic jurisprudence. In the present case, the learned trial Judge has drawn adverse inference from the silence of the appellant. It is a known fact that in our society the girls are ordinarily hesitant to disclose such an unfortunate incident out of fear or infamy. There is always a lurking fear in the mind of the victim that she may not herself be held an accused of the sin or the offence. The same apparently has happened in case of the appellant.
13. No doubt conviction can be based on the strength of circumstantial evidence but the circumstances should be of such a nature which are unexceptionable and which lead to no other inference or hypothesis except the guilt of the accused and commission of the offence. Here the appellant on the contrary has asserted from the very beginning that she had been forcibly ravished and she could not disclose the F misfortune fell on her on account of fear and disgrace.
14. The presumption, however, strong may be, cannot be treated as a substitute of evidence. The trial Judge has erred in convicting the appellant by drawing adverse inference against the appellant without even discarding the version of the appellant or even without adverting to the same. It appears rather paradoxical that two male accused have been acquitted for lack of evidence but on the same set of evidence the appellant who being female is entitled to more care and caution, has been convicted.
15. In this regard I am fortified by the illuminating judgment on this point rendered by this Court in Muhammad Tariq v. The State PLD 1982 FSC 113. There is another judgment on similar point by this Court titled as Niamat Ali v. The State PLD 1982 FSC 220. Yet another judgment by this Court in Muhammad Ashraf v. The State 1997 PCr.LJ 1351 wherein it was observed "helpless girl was as such subjected to "Jabr" as otherwise she could not have on her own offered herself for satisfaction of the lust of her father". The principle laid down in the precedent case is that if by putting the victim under the fear of hurt sexual intercourse is committed against her will or without her consent will amount to Zinabil-Jabr.
16. In view of what has been discussed above, the appellant's conviction is totally not sustainable.
The same is, therefore, set aside. The appeal is allowed. The appellant is acquitted of the charge.
She be released from jail forthwith if not required in any other case.