' ZAHCORUL HAQ, J.-There are two criminal appeals filed by the same convict Mst. Jehan Mina, one from the jail and one through her counsel against the judgment of Sessions Judge, Dir, dated 30-11- 1982, whereby the appellant had been convicted under section 5 of Zina (Hudood) Ordinance VII of 1979, and sentenced to suffer 100 stripes. The two co-accused Gulab Mian and Rehmat Faqir who had also been charged under section 5 of Ordinance VII of 1979 were however acquitted.
2. On 5.9-1982 Noor Said, P. W. 1 lodged a report with Godigar Police Station at 17-00 hrs. Stating that about 6 months earlier his niece Mst. Jehan Mina used to go to the house of his brother-in-law Gulab Mian from the house of his father for domestic work because his sister Mst. Sakina was sick.
About 3/4 months earlier Mst. Jehan Mina came to live with him and is still with him. Some days back the complainant came to know that Mst. Jehan is pregnant. On enquiring from her the complainant learnt that about 5/6 months earlier Gulab Mian son of Abdur Rehman and Rehmat Faqir son of Gulab Mian (father and son) had been committing illicit intercourse with her as a result of which she became pregnant for about 5/6 months. The F. I. R. Exh. P. A. Was thus concluded. The same had been recorded by P. W. 6 Sultanat Khan, S. H.
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3. The case was investigated by Sultanat Khan, P. W.
6. He prepared site plan of house of Gulab Mian and Rehmat Faqir. Exh. P. D. At the instance of Mst.
Jehan Mina. He recorded statements of prosecution witnesses and arrested the accused. He got Mst. Jehan Mina examined by lady doctor Tasleem Begum, P. W. 2 for rape. He also got accused Rehmat Faqir examined by Dr. Gul. Zaman and, therefore, challenged the three accused.
4. The prosecution produced seven witnesses in support of its case. Accused Gulab Mian and Rehmat Faqir denied the allegations of prosecution and alleged that they had been involved at the instance of Noor Said, P. W. 1 with whom they had a land dispute. Mst. Jehan Mina admitted that she was bearing a child. She also stated that she used to go to the house of accused Gulab Mian and Rehmat Faqir for some time and used to come back to her grandfather. She went to the house of accused to serve her aunt Mst. Sakina as she had fallen ill. There the two accused Gulab Mian and Rehmat Faqir committed Zina.Bil-jabr with her.
5. P. W. 1 Noor Said reiterated the contents of the F. I. R. Which he had filed. He denied in cross- examination that he had a dispute with Gulab Mian or Rehmat Faqir over the land. He did not know if Mst. Jehan Mina was grazing her cattle outside in the mountain. He admitted that Mst. Jehan Mina had told him that the accused had committed Zina-bil-jabr with her. He also admitted that he lodged the report with the police after a month of his having the knowledge of the pregnancy of Mst. Jehan Mina. He did not know if somebody else had committed Zina with Mst. Jehan Mina. He denied that he had falsely charged the accused Gulab Mian and Rehmat Faqir. In reply to Court question he stated that Mst. Jehan Mina was unmarried and was sane.
6. P. W. 2 Dr. Tasleem Begum deposed that she examined Mst. Jehan Mina on 8-9-1982 and gave her certificate Exh. P. B. She stated that Mst. Jehan Mina was pregnant for about 6 months. In her opinion it was a case of rape because Mst. Jehan' Mina was pregnant and her hymen was ruptured and she was unmarried. Her opinion, however, merely proves intercourse and not rape.
7. P. W. 4 Dr. Gul Zaman stated that he had examined Rehmat Faqir and found him capable of performing the act of coitus.
8. P. W. 4 Mst. Sakina wife of Gulab Mian stated that Mst. Jehan Mina was her niece and she had come to her house and spent two days. She also said that she used to go back to the house of her father to spend the night. In cross-examination she stated that Mst. Jehan Mina had not come to her house for a single day before the last Ramazan. She admitted that Noor Said, P. W. Had a dispute with the two accused over a land. She also admitted that Mst. Jehan Mina was raped by somebody outside in the mountain when she was grazing cattle and due to fear or ghairat she had not disclosed that fact. But Mst. Jehan Mina never alleged that she was raped by anyone in the mountains.
9. P. W. 5 Mst. Khaista Grana wife of Noor Said stated that Mst. Jehan Mina used to live in the house of grandfather Aqal Said. From his house she came to her house. She had not told her anything when she came to her house. She did not tell her as to how she had become pregnant. In cross- examination she admitted that Aqal Said is the guardian with whom she was living. She had not enquired from Mst. Jehan Mina as to how she became pregnant.
10. P. W. 6 Sultanat Khan deposed that he was the S. H.
0. And he recorded the F. I. R. And made the investigation of the case. His cross-examination is not relevant.
11. In his statement under section 342, Cr. P. C. Gulab Mian son of Abdur Rehman aged about 55 years denied the charge and allegations of prosecution and stated that except Noor Said nobody else had deposed against him. Noor Said is his nephew with whom he had a land dispute and due to enmity he deposed against him. Rehmat Faqir son of Gulab Mian made the same statement under section 342, Cr. P. C.
12. Mst. Jehan Mina daughter of Ghulam Hussain aged about 15/i6 years in her statement under section 342, Cr. P. C. Stated that she used to go to the house of Gulab Mian and Rehmat Faqir for some time and used to come back to her grandfather. She went to the house of the accused (meaning Gulab Mian and Rehmat Faqir) to serve Mst. Sakina as she had fallen ill. There the two accused Gulab Mian and Rehmat Faqir committed zina-bil-jabr with her. She also stated that she had told Noor Said that the two accused were responsible for her pregnancy. She also stated that she had been engaged to Muhammad Rehman but not married so far. In reply to a question whether she committed zina with accused Gulab and Rehmat Faqir, she replied that the two accused Gulab Mian and Rehmat Faqir had committed zina-bil-jabr with her. Lastly she made the following statement :- "I am living in the house of my uncle Noor Said complainant because my father had died and my mother had contracted second marriage. My grandfather Aqal Said had kept me in his house and from his house I went to the house of the accused to serve my aunt Mst. Sakina. I spent 2/3 months there. I came back to the house of Noor Said. In the month of Ramazan my uncle Noor Said enquired from me as to why I was looking pregnant. On his enquiry I told him that accused Gulab Mian and Reb mat Faqir are responsible for my pregnancy. My uncle narrated this occurrence to Mst. Sakina who came to my house and gave me beating and asked me as to why I was charging the accused. Then my grandfather Aqal Said requested my uncle Noor Said to give me to him so that I may be killed. But he refused to hand me over to him."
13. None of the accused led any defence.
14. The learned trial Court acquitted Gulab Mian and Rehmat Faqir on the ground that punishment under section 5 of the Ordinance could not be awarded to the two male accused merely on the basis of statement of co-accused Mst. Jehan Mina that she had been subjected to zina-bil-jabr by them. He did not believe the statement of Mst. Jehan Mina about these accused having committed ztna-bil-jabr with her on the ground that if she was a truthful lady why she kept silence for 6 months and why she did not disclose the factum to the ladies of the house. We find that the two co-accused have been correctly acquitted by the learned trial Court because they could not be convicted on the basis of the statement of a co-accused who was throwing the whole blame of the offence of zina upon the other co-accused and she had not disclosed the offence of zina-bil-jabr when it was committed although she had the opportunity of doing the same.
15. In the case against Mst. Jehan Mina there is no eye-witness against her to prove the factum of Zina. We do not agree that her statement under section 342, Cr. P. C. Could be regarded as a confession of her guilt because she has in fact made an exculpatory statement by alleging that zina-bil-jabr had been committed upon her by the two acquitted accused. This statement on her part cannot be termed as a confession as stipulated under section 8(a) of Zina Ordinance. There is also no evidence of for Muslim male adult witnesses against her proving that she had been guilty of the commission of zina with anyone and the obvious result is that her conviction under section 5 of the Ordinance cannot be maintained because the same requires proof under section 8 of the same Ordinance which is lacking and hence are of the clear view that she has not been correctly convicted under section 5 of the Ordinance.
16. That, however, is not the end of the matter as we are clear in or mind that there is a definite proof in the form of pregnancy of Mst. Jehan Mina proved by the lady doctor Tasleem Begum, P. W.
2 which is a clear proof that Mst. Jehan Mina has had a sexual intercourse with someone. C She has explained that pregnancy by alleging that she had been subjected to zina-bil-jabr by her real uncle Gulab Mian and Rehmat Faqir who are father and son respectively. Her statement against them has been rightly disbelieved by the learned trial Court and, therefore, the result is that she has not been able to reasonably substantiate that she had been subjected to zina-bil-jabr.
17. In this respect learned counsel for the defence Mr. Tariq Jamal had drawn or attention to a number of rulings of different High Courts where it had been held that "where prosecution evidence is unreliable and is disbelieved and the conviction is being based on the statement of the accused alone, then the whole statement should be taken into consideration and it should not be directed in parts and merely inculpatory statement cannot be used without taking the exculpatory statement also into consideration." The learned A. A.-G. Sahibzada Akhtar Munir, however, drew or attention to PLD 1967 Dacca 503, where it was observed that section 342, Cr. P. C. Is meant to discover the truth and accused's explanation or his failure to explain is sometimes the most incriminating circumstance against him and that it may be injurious to him if false and unsatisfactory statement is given.
18. We are, however, of the view that in the present case before us the fully proved fact is that Mst.
Jehan Mina has been bearing a child for about 5 or 6 months without having disclosed to any person that she had been subjected to zina-bil-jabr by anyone. It is in evidence that she had been living with her grandfather and merely went to the house of Gulab Mian during day time to look after her aunt Mst. Sakina and came back to her grandfather from her work. In fact this position is admitted in the very first answer that she has given under section 342, Cr. P. C. Where she admitted that she used to come back to her grandfather. This clearly shows that she has had the opportunity of complaining to her grandfather but she never did so. She also had the opportunity of complaining to her real aunt Mst. Sakina where she was working but she did not do so. She also had the opportunity of complaining to Mst. Khaista Garana and even to P. W. Noor Said when she had been subjected to zina-bil-jabr by either the two accused or by anyone. But she did not do so and it was only when her pregnancy had become apparent that she made a statement to Noor Said on his enquiry. It is, therefore, obvious that she has been keeping quiet for more than 5 months and bearing the child and it is, therefore, difficult to believe her statement that zina-bil-jabr had been committed with her.
19. The present case against Mst. Jehan Mina is, therefore, not a case where merely her statement can be regarded as the basis of conviction but in fact the basis of the conviction is her unexplained pregnancy coupled with the fact that she is not a married girl. We also find that she has not made any statement in respect of the number of times that the zina was committed with her and at what place and during what hours. She did not take the position that the zina had been committed with her at a secluded place in E a jungle where she could not cry for help. She has not even explained as to what was the force or threat used against her when she was subjected to zina-bil-jabr and she has also not explained as to what induced her to keep quiet for such a long time in spite of having had the full and complete opportunity of complaining to her nearest relations namely ber grandfather and uncle Noor Said and aunt Mst. Khaista Garana. In these circumstances, we are of the view that Mst. Jehan Mina has had an intercourse with someone out of her own free will and she has, therefore, committed an offence punishable under section 10(2) of Ordinance.
20. We have, therefore, altered her conviction from section 5 of Ordinance VII of 1979 to one under section 10(2) of the same Ordinance and by a short order dated 22-2-1983 we sentenced her to three years' R. I. Plus 10 stripes in view of her tender age and also on account of the fact that her father was dead and her mother had contracted another marriage and she was, therefore, a girl who lacked the benefit of paternal affection. The stripes should be inflicted in accordance with the provisions of section 5 of Execution of Punishment of Whipping Ordinance, 1979. Since the appellant has given birth to a child and the rearing of the child is of utmost necessity, therefore, following the precedent of the Holy Prophet (S. A.) in respect of the case of Mst. Ghamidia (R. A.) we have decided to suspend the execution of punishment of whipping as well as the sentence of imprisonment till the child attains the age of two years. The suspension of the execution of stripes and the sentence of imprisonment would be subject to the furnishing of bail bond in the sum of Rs, 2,000 with two sureties in the equal amount to the satisfaction of the trial Court. In case the bail bond is furnished by the appellant within 2 weeks the sentence will remain suspended and thereafter it will be carried out when the child has attained the age of two years. Since the appellant has remained in jail before her conviction for some time, therefore, we have allowed her the benefit of the provisions of section 382-B of Cr. P. C. And it is, therefore, ordered that the time spent by her in jail before her conviction would be treated towards the sentence of imprisonment to be undergone by her.