1. ' SHAFIUR RAHMAN, J.-The petitioner, a convict under section 451, P. P. C. And section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, seeks leave to appeal against the judgment of the Federal Shariat Court, dated 30-11-1983 whereby with some modifications, his conviction and sentence was maintained.
2. ' Mst. Fateh Khatoon, the victim in the case, was a deaf and dumb 'girl aged 18 years. On the 15th of October, 1979, she was all alone in her house in Chak No, 376/WB, Dunya Pur, Multan. Her father had gone to Multan to make purchases. Her mother had gone to the field to collect fuelwood etc. At that time, according to the prosecution case, the petitioner who is said to be an unmarried adult aged 35 years entered the house and committed Zina-bil-Jabr on Mst. Fateh Khatoon. The neighbouring shopkeeper Muhammad Ali P. W. 2 and another person present on the shop, Khan Muhammad P. W. 3 were attracted to the scene on some noise coming from there. They saw Mehr Khan the petitioner emerging from the kotha with his loin-cloth in hand. On seeking them, he scaled over the southern wall and fled away. Mst. Fateh Khatoon was tying up her shalwar and was weeping. It was by gestures that Mst. Fateh Khatoon informed them that Zina-bil-Jabr had been committed with her. The other villagers gathered there. The mother of Mst. Fateh Khatoon also arrived. Ghulam Muhammad, the father of the victim returned in the evening and learnt of what had happened. The next day, he lodged the F. I. R. About the occurrence at about 10 a.m. The distance of the police station from his village being nine miles.
3. ' Lady Dr. Zubeda Riaz P. W. 5 examined Mst. Fateh. Khatoon and made the following observations :- "(1) There was no mark of violence - on any part of the body or private parts.
(2) Hymen was absent represented by tags of old granulation tissues.
(3) Vaginal orifice admitted two fingers freely. Colour of vulva and vagina normal."
4. ' Two vaginal swa bs were taken and sent to the Chemical Examiner, Lahore for detection of semen.
5. The report of the Chemical Examiner showed that semen was present and that she had been subjected to sexual intercourse.
6. ' The petitioner was also examined by Dr. Muhammad Ishaq Khan who reported about his being a potent adult. At the trial, an effort was made by the Court to summon Mst. Fateh Khatoon and to examine her as a witness but during the course of her examination, it was found that she was not able to make a coherent and intelligible statement through gestures. Hence she was adjudged to be an incompetent witness.
7. ' The trial Court, however, believed the two eye-witnesses and coupled with the medical evidence held the petitioner guilty of the offence under section 10(3) of the Ordinance and sentenced him for that offence to 10 years' R. I. And 15 stripes. He was also found guilty under section 451, P. P. C. And sentenced to one year R. I. And a fine of Rs, 500.
8. ' On appeal filed by the petitioner, the Federal Shariat Court gave benefit to the petitioner and altered his conviction to one under section 10(2) of the Ordinance and reduced the sentence to 5 years' R. I. And 10 stripes. The conviction and sentence under section 451, P. P. C. Was, however, upheld and the sentence was kept intact.
9. ' The learned counsel for the petitioner has contended that as rightly held by the Federal Shariat Court the victim appeared to be a consenting party, there was no occasion for her to raise any alarm or cry at all at any stage so as to attract witnesses from the neighbourhood. It is submitted on that beneficial finding recorded by the Federal Shariat Court in petitioner's favour that the entire prosecution case must fail and cannot be said to be beyond doubt. It is also contended that in recording the conviction of the petitioner and sentencing him, there is substantial element of conjecture and surmise which could not properly be made the basis for convicting the petitioner. In this context, the learned counsel for the petitioner has referred to the following observations of the Federal Shariat Court. At one place the Court observed that :- "No doubt there is no direct evidence of the occurrence yet it is not disputed that the occurrence did take place."
10. ' Further, elsewhere it was held that : "It can reasonably be inferred that the possibility that she was a consenting party of the act of sexual intercourse with the accused cannot be ruled out." ' and ultimately that : "It seems it was after finishing the sexual intercourse when the accused and the victim came out of the room and they were seen by some one and then in order to save her honour, Mst. Fateh Khatoon raised alarm which attracted Muhammad Ali, Khan Muhammad P. Ws. To the spot."
11. ' Finally, the learned counsel contended that there was a serious election dispute between Ahmad Sher and one Sher Shah. The petitioner was supporting Ahmad Sher and the complainant was supporting Sher Shah. The rivalry between these two stalwarts, according to the learned counsel, formed the background and the basis for false implication of the petitioner.
12. The implication of the petitioner, for reasons explained by the learned counsel, appears to be far- fetched. It appears that the complainant or his family was not involved in any serious enmity itself so as to compromise the honour of an adult lady of the house only to implicate the petitioner.
13. Belonging to two different camps in an election matter is not usually the reason or motive for such a charge, It has been rejected by the two Courts and rightly so.
14. ' As regards the occurrence itself, there are the statements of the two witnesses who happened to reach the scene immediately after the act was over. They belonged to the neighbourhood. They could reach there on the circumstances being suspicious in the neighbourhood. The mere fact that the victim had no visible marks of injury on her person would not show that it was sufficient to indicate that she would not raise such alarm or noise as she was capable of. These witnesses were found to be creditworthy and have been believed. We do not see any reason to reappraise their evidence for we find that no legal principle has been violated.
15. ' The petitioner has been given by the Federal Shariat Court the maximum benefit which could consistently with the circumstances and the evidence be extended to him. Such beneficial treatment which is in accord with the principles of safe administration of criminal justice cannot by itself be made a ground for seeking further mitigation or relief against the conviction and sentence.
16. ' We find no merit in the petition and leave to appeal is refused.