1. SHAFIUR RAHMAN, J.-The petitioner, a convict under section 10 (2) of Ordinance No. VII of 1979 (hereinafter referred to as the Ordinance), seeks leave to appeal against the judgment of the Federal Shariat Court Islamabad, dated 20th July, 1982 whereby his appeal against conviction and sentence was dismissed except for the fact that the convict ion was altered from one under section 10 (3) to one under section 10 (2) of the Ordinance and the sentence was reduced from 7 years' R. I. And 20 stripes to 4 years' R. L and 15 stripes.
2. The prosecution case in brief was that Mst. Mulko (P.W. 4) aged about 10 or 11 years was lying on a cot under the shade of a tree at noon on 11th May, 1981 in her village within the limits of Police Station Depal--pur, District Sahiwal when the petitioner who was then aged about 16-17 years came upon her, gagged her mouth by his hand and dragged her to the adjoining maize field and committed rape on her. When she was able to raise a cry her shrieks attracted her uncle Muhammad A.I (P. W. 5) and his father Muhammad Shall (not produced). A report about the occurrence was lodged at Police Station Depalpur the same day at about 3-15 p. m. Muhammad Nazir (P. W. 6) recorded the F.
1. R. And con--ducted the investigation. He took into possession the blood-stained clothes produced by Mst. Mulko and got her examined by Lady Doctor Farhat Akhtar (P. W. 7). She reported that there was laceration of the hymen and slight bleeding from it. Some blood had clotted around vulva. She gave an opinion that the girl had been subjected to sexual intercourse. The swa bs were taken by her and sent to the Chemical Examiner who reported the presence of semen in the same.
3. The plea of the petitioner at the trial was oneof alibi He stated that he was servant of one Rao Ahmed A.I (D. W. 1) and had accompanied him to the petrol pump for obtaining diesel for his tractor and remained there from 7 a. m to 5 p. m. On account of shortage of diesel in those days. It was the rivalry of his landlord Rao Ahmed A.I with Shakkar Shah the Lambardar which led to his false implication at the instance of the latter. The petitioner however stated that real culprits were two persons Balal and Riaz who were let off and the petitioner was substituted. He produced in defence two witnesses.
4. The trial Court believed the complainant Mst Mulko and the eyewit--ness, her own uncle Muhammad A.I and coupled with the medical evidence and the report of the Chemical Examine found the case against the peti--tioner established, The dsfence plea of alibi and false implication on account of rivalry of the two respectable influential persons of the village was disbelieved. The trial Court fund the petitioner guilty under section 10 (3) of the Ordinance and convicted him and sentenced him to seven years' R. I, and twenty stripes. On appeal the Federal Shariat Court re-- examined the entire evidence, believed it and came to the conclusion that the complainant Mst.
5. Mulko though a minor aged about 10 or l1 years appeared to have consented to sexual intercourse which took her case out from one under section 10 (3) of the Ordinance VII and altered the con-- viction and sentence accordingly.
6. The learned counsel for the petitioner contended that there was only the statement of Mst. Mulko and her uncle who himself was accused of ab--duction and Zina and was not a reliable person in the matter. The F I. R. According to the learned counsel for the petitioner was recorded after pre-- liminary investigation and was a document of doubtful import. There was no mark of violence on the complainant and if it was held that she was a con--senting party then her position was that of an accomplice and the necessary corroboration was not forthcoming either from her statement or from the statement of her uncle and the medical evidence as such was not sufficient to implicate the petitioner. Finally, the learned counsel for the petitioner has raised a number of questions of Islamic jurisprudence. For example, it is contended that Mst. Mulko could not be at all a witness of the crime, for she has been adjudged by the two Courts to be an accomplice and the re-- quirements of the Ordinance with regard to there being four Muslim male adults as witnesses provided in section 8 should be read also in section 10. The witnesses themselves should satisfy the requirements of tazkia shuhood and if the standard required were not observed the evidence would not be sufficient to record the conviction of the petitioner. In any case, it has been contended that as the complainant had been taken to be a consenting party the sentence of the petitioner who was of equally tender age should have been lighter than what was awarded by the Shariat Court. The requirements of the case would have been adequately met by a sentence of fine rather than of rigorous imprisonment.
7. As regards the requirements, qualitative and numerical, of the proof of offence under section 10 (Taz:r), the learned counsel for the petitioner submitted that the Ordinance has its professed object of bringing "in con--formity with the injunctions of Islam the law relating to the offence of Zina" and in advancement of that object the requirements of evidence were enume--rated in section 8 of the Ordinance as the following (i) a confession in com--petent Court by accused or (ii) four truthful, Muslim adult male witnesses giving evidence as eye-witnesses of the act of penetration.
8. Section 9 empower the Court, in case these qualitative and numerical requirements are in far reduced, or found lacking, before Hadd or part of it is yet to be enforced; to order retrial in one specified category of cases and to proceed to award Tazi on the basis of the evidence on record in the other category of cases. In the case of Taazir under section 9 the evidence is qualitatively though not numerically, of the same description as is provided in section 8 of the Ordinance. The same scheme should be taken to have been continued in section 10 of the Ordinance. If the test of section 8 is applied to Taazir under section 10 of the Ordinance, the testimony of a female (Lady Doctor) in this case will not be admissible nor that of the proserutrix, a female accomplice. Short of ibis evidence there would be left no case at all against the peti--tioner and he would be entitled to clean acquittal.
9. Section 8 deals with proof of Zina or Zina-bil-Jabr liable to Hadd. In requires the Quaranic proof for a Quaranic punishment. Section 9 deals with an altogether exceptional situation. It is of a trial taking place and full proof of the offence forthcoming to fulfil the requirements of section 8 but before Hadd or any part of it is enforced, the proof as required under section 8 becoming deficient or not available, then depending upon the reason or nature of deficiency either remand or conviction and sentence under Taazi is to follow. Section 9, therefore, carries the requirements of proof prescri--bed under section 8 to a stage beyond the conclusion of the trial-to the enforcement of the Hadd itself. Thus, the Court in proceedings under section 8 does not, in view of section 9, become funetus officio till the Hadd itself ha been fully enforced.
10. The express words of section 10 bring it into force and effect only where the qualitative and numerical requirements of mode of proof prescribed in section 8 is not forthcoming. For example, provisions of section 10 have been subordinated to section 7 (where convict is not an adult) and to no other section of the Ordinance. Then on its own words it comes into operation when, inter alia, "proof in either of the forms mentioned in section 8 not available." One of the forms of proof prescribed under section 8 is o them being "at least four Muslim adult male witnesses about whom the Court is satisfied having regard to the requirements of "tazkiyah al shahood" that they ate truthful persons and abstain from major sins (kabair) give evidence a eye-witnesses of the act of penetration necessary to the offence." The conten--petition that there should be (in four witnesses,
(ii) they should be all Muslim mal adults in case of accused being Muslim, (iii) satisfy the requirements of tazkiya shahood, (iv) eye-witnesses of the act of penetration, would bring back the qualitative and numerical requirements of section 8 of the Ordinance while section 10 deals with a situation where it is in fact deficient or wanting. Neither in its pristine nor in a truncated form the requirements with regard to proof prescribed in section 8 can be imported as statutory requirement of proof under section 10 of the Ordinance.
11. The question still remains, as to which rule of evidence, in the absence of special, or Islamic rule of evidence should prevail or apply to a situa--petition which has the professed object of bringing in conformity with the injunctions of Islam the law relating to the offence of Zina." Section 1 of the Evidence Act, 1872 provides as follows :- "It extends to the whole of Pakistan and applies to all judicial pr--ints in or before any Court including Courts Martial, other than Court Martial convened under the Army Act, the Naval Discipline Act or that Act as modified by the Pakistan Naval Discipline Act, 1934 or the Air Force Act but not to affidavits presented to any Court or officer nor to proceedings before an arbitrator."
12. The trial before the Sessions Judge under the Ordinance is in fad pro--ceedings in Court. For this reason, the provisions of Evidence Act shall apply except to the extent displaced by statute of equal or superior force. So far as the provisions of the Ordinance are concerned the provisions of the 1 Evidence Act are displaced to the extent noted above in proceedings under sections 8 and 9 of the Ordinance. There being no such inhibition in section 10 of the Ordinance, the provisions of Evidence Act shall apply, and the requirement, qualitative and numerical, indicated in sections 8 and 9 shall not govern or control section 10 of the Ordinance.
13. On the question under discussion, viz. The qualification of a witness, the quality of evidence and the number of witnesses required there are three specific provisions in the Evidence Act which can be referred to with advantage.
14. Section 118 of the Evidence Act provides as follows :- "All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
15. It follows that a female is as much qualified to appear as a witness in proceedings under section 10 of the Ordinance, as is a male.
16. Section 134 of the Evidence Act provides :- "No particular number of witnesses shall in any case be required for that proof of any fact."
17. Section 133 on the other hand provides :- "An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
18. These sections, therefore, present a different standard for receiving evidence and for proving a fact. It is neither the case of the petitioner, nor can it be demonstrated from the record that the proof as required or permissible under the Evidence Act was wanting or lacking in the case.
19. As regards the facts of the case leading to the conviction of the petitioner, we find that the statement of the victim Mst. Mulko (P. W. 4) ha received strong corroboration from the medical evidence. There was no reason for substitution or false implication of the petitioner. The two Courts dealing with the facts of the case have believed the prosecution evidence and we do not find that in doing so any provision of law has been violated or principle relating to appreciation of evidence ignored. Hence we do not find an merit in the petition and leave to appeal is refused. ---Whereas it is necessary to modify the existing law relating to Zina, so as to bring it in conformity with the Injunction of Islam set out in the Holy Quran and Sunnah.--- The provision of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.
20. M.Z.,M.