1. SHAFIUR RAHMAN J.-The petitioner convicted of an offence under section 18 read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, seeks leave to appeal against the judgment of the Federal Shariat Court dated 26th of March, 1983 whereby his appeal against convic--petition and sentence was dismissed.
2. The prosecution case against the petitioner who is aged about 60 years was that he was an uncle of the husband of the victim Mst. Rashida Bibi (P. W. 1) aged about 30 years. On the night of 19th and 20th of April, 1982 petitioner visited the house of Mst. Rashida Bibi at 2 a.m. (midnight) on being questioned by Mst. Rashida for his arrival there at an unearthly hour. He told her that he was having pangs of loneliness without her. Arrangements were made for him to sleep. Sometime afterwards he knocked at the door of Mst. Rashida, called her out, caught hold of her breasts and wanted to commit rape on her, but on her alarm her sister Mst. Taj Bibi aged about 25 years also woke up, intervened and the petitioner was prevented from consummating the rape. At the trial Mst. Rashida Bibi and Mst. Taj Bibi appeared and deposed against the petitioner. Two others, Muhammad Tufail and Muhammad Munir cited as eye-witnesses were not produced and given up as unnecessary.
3. The plea of the petitioner at the trial was that he owned the house in which Mst. Rashida Bibi and her husband were living. He had asked Mst. Rashida not to permit one Karim to visit their house.
4. Aggrieved by this she had implicated him in a false case. The trial court found that the prosecution had successfully established its case against the petitioner and hence convicted him under section 18 and sentenced him to undergo rigorous imprisonment for two years. Four stripes were also ordered to be inflicted. A lenient view was taken in the matter of sentence on account of the petitioner's weak health. On appeal the Federal Shariat Court examined the entire prosecution case alongwith the defence of the petitioner, found the case proved beyond any reasonable doubt, upheld the conviction and sentence and allowed him the benefit under section 382-B of the Criminal Procedure Code.
5. The learned counsel for the petitioner, Mr. Mushtaq Raj Advocate, contended that there was a background of III-will and motive inasmuch as Mst. Rashida Bibi wanted to oust the petitioner from his own house and this was more convenient method of accomplishing that object. It was also contended that, according to the prosecution's case itself, it was not a case of attempt to commit Zina, for the evidence of Mst. Rashida itself showed that she was a consenting partner to whatever happened and that as Mst. Taj Bibi, her younger sister, had awakened, she was left with no option but to level the charge against the petitioner. Her position was that of an accomplice and her statement should not have been accepted without necessary corrobora--petition. Finally, it was contended that as the two named eye-witnesses had not been produced and had been given up as unnecessary, the presumption should be drawn that if produced they would not have supported the prosecution case. On that view of the matter the petitioner was entitled to acquittal.
6. We have attended to the submissions of the learned counsel for the petitioner and examined the record. There is nothing on the record to suggest that the petitioner was, in fact, the owner of the house and that previously any attempt was made to oust him from it. As a matter of fact the evidence on record shows that he was residing as a guest and not as owner. Similarly there is nothing on the record to indicate that Karim was an undesirable character that his visits were not liked by the petitioner and that he had instructed the complainant not to permit him to visit the house. Being a guest himself he could not exercise any such control nor, according to the Federal Shariat Court. Was there any such occasion for exercising control or placing restrictions on the visits of Karim.
7. The consent of Mst. Rashida (P. W. 1) has been sought to be inferred from the explanation given by the petitioner for his visit at that unearthly hour. According to the learned counsel for the petitioner the pangs of loneliness which brought him to the house at that unearthly hour contained a tacit implication that Mst. Rashida Bibi was being sought for and she was a consenting party. No such conclusion as has been drawn can, in fact, be drawn from such a sentence as was uttered by the petitioner on account of his elderly position as against Mst. Rashida Bibi. As regard the actual occurrence, the testimony of Mst. Rashida and Mst. Tai Bibi clearly shows that it was against the will of Mst. Rashida and that it was the alarm raised by Rashida which brought to the scene Mst. Taj Bibi as well. Such would not have been the positron if Mst. Rashida had been a consenting party.
8. As regards the contention that it was not an attempt to commit Zina but at the most an offence under section 354, P. P. C. We find that this aspect of the case had been fully attended to by the Federal Shariat Court which held as under :- "The complainant has clearly deposed that the accused caught hold of her breast and put her on his cot. In cross-examination she has stated that her shirt was torn from the front during the occurrence. Mst. Taj Bibi who is another eye-witness of the occurrence has clear stated that the Shalwar of Mst. Rashida Bibi complainant was not on her person but was lying on the cot and she was naked from the lower part of her body. Similarly Ghulam Haider, accused was naked from the lower part of his body as his loin-cloth had fallen down. In our society which we claim to be Islamic catching hold of the breast of a woman and removing her Shalwar as well as the removal of the loin-cloth of the male assailant are clear indications of the assailant to commit sexual intercourse with the victim and therefore offence would fall under section 18 read with section 10 of the Ordinance and not under section 354, P. P. C."
9. As regards the non-production of Muhammad Tufail and Munir who were not the inmates of the house but were attracted on the noise raised, no adverse inference can be drawn against the prosecution. The natural witnesses, the witnesses who would not falsely implicate the petitioner, had been produced and they had made a consistent statement against the petitioner. Non- production of the other witnesses on the ground that they were unnecessary does not raise any adverse presumption against the prosecution case as such.
10. We find that all aspects of the case have been attended to and even the matter of sentence has received pointed attention of the two courts.
11. There is no merit in the petition and leave to appeal is refused.