1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.-- Leave to appeal has been sought from judgment, dated 13-12-1984 of the Federal Shariat Court; whereby, petitioner's appeal from conviction under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was dismissed except for reduction in sentence of imprisonment from 10 years to 7 years.
2. The prosecution case as disclosed in the deposition of Mst. Naziran Bibi mother of Mst. Kishwar (the victim) who is also the complainant and an eye-witness is as follows: "Deceased Mst. Kishwar Bibi was my daughter. She was aged about 15 years and was unmarried at the the of the occurrence which took place about 1-3/4 years back. About 1-3/4 years back my said daughter was at work in the Baithak of our house at about 10-00 a.m., when accused Liaqat Ali, while passing from the lane, saw her alone and came inside the Baithak. He bolted the door of Baithak from inside, and started committing Zina-bil-jabr with her. I was present in my house and on hearing the noise of Mst. Kishwar Bibi, I ran towards the Baithak. My son Muhammad Rafi and Mushtaq son of Abdullah also came attracted towards the Baithak. The father of Mushtaq is elder brother of my husband. P.WS. Muhammad Mushtaq and Rafi had come from the side of their square. Muhammad Rafi and Mushtaq entered in the Baithak from the door which opened towards the courtyard of our house. My son Muhammad Rafi was carrying a hatchet with which he was earlier cutting sugar-cane sticks in the square. Mushtaq was empty-handed. P.Ws. Nabi Ahmad and Shaukat also arrived from the side of the land and gave push to the window which was opened. They also witnessed accused Liaqat committing Zina with my daughter and restrained him from doing so. On seeing accused Liaqat Ali committing Zina with Mst. Kishwar Bibi, my son Rafi gave hatchet injuries to Kishwar Bibi and accused Liaqat. P.W. Mushtaq had been trying to intervene. Kishwar Bibi fell injured inside the Baithak while accused Liaqat Ali tried to run away but fell in the door of the Baithak which opened towards the courtyard. He then got up and once again fell down, and after getting up again he fled away while holding his Chadar in his hand. Mst.
3. Kishwar Bibi died at the spot. My husband Arif and his brother Abdullah were coming in the lane.
4. Fatima mother of accused Liaqat and her daughter Mst. Sughran came armed with Sotas. Mst.
5. Fatima gave a Dang blow on the head of P.WAbdullah, who in his self-defence, caused injuries to Mst. Fatima and Mst. Sughranafter snatching Dangs from the to ladies. After the occurrence, I had gone to the Police Station Dahranwala but the police did not register the case saying that the same will be done after the medical examination of my daughter. I had, however, given the details of the occurrence to the police at Police Station Dahranwala. Since the police had not registered our case, I submitted complaint Exh.P.B. Before S.P., Bahawalnagar, who ordered the registration of the case."
6. The killing of Mst. Kishwar in the above circumstances resulted in a separate trial of her brother Muhammad Rafi and others and a conviction under section 304-I--on a finding of grave and sudden provocation; which in fact was on rejection of the petitioner's version which is as follows: Q.9. "Why this case and why do the witnesses depose against you?
7. Ans. On account of our enmity Rafi P.W. And his relatives wanted to kill me: On the day of occurrence I was coming from my fields to my house when on the way in the Chowk near the house of Ghulam Abbas son of Ghulam Rasool Ranjha Rafi P.W. And his co-accused in the cross- murder case emerged out of the house of Ghulam Abbas, heir co-accused in the cross-murder case. They were armed with hatchets and Dangs. They injured me there. Said Ghulam Abbas and Mushtaq held me by my arms and by lifting me physically they brought me in the house of Muhammad Rafi P.W. I was injured there as well. I suffered 18 injuries including 7 fractures of my different bones. The prosecution thought that I will not survive and in order to create a defence, Muhammad Rafi and Mushtaq brought Mst. Kishwar Bibi from their house in the Baithak where both of them injured her and caused her death on the spot. During the alarm I had raised Mst. Fatima my mother and Mst. Sughran Bibi my sister and others were attracted to the spot. Muhammad Rafi P.W. And others who are accused in the cross--murder case also injured them. I lodged a report under sections 302, 307, 148/149, P.P.C. At P.S. Dahranwala on the same day. In order to defend themselves in the said murder case, Mst. Naziran, mother of Muhammad Rafi P.W. Got this counter- version prepared from her counsel after legal advice more than a month and have thus involved me in this case. I had no illicit intimacy with Mst. Kishwar Bibi. I was not even medically examined for verification of my potency. I am impotent that is why I have not married so far. The witnesses are interested being the relatives of the accused in the cross-murder case."
8. In the trial for the offence of Zina four eye-witnesses appeared against the petitioner including Muhammad Rafi aforementioned. There was circumstantial evidence and also admissions of the petitioner regarding his having been injured in the house of the complainant. Both the learned Courts below accepted the prosecution version and rejected the defence plea as corrected in the statement of the petitioner reproduced earlier.
9. Learned counsel attempted to show that the non-production of Ramzan A.S. By the prosecution as also the memo. Of recovery of vaginal swabs and the blood from the Chowk wherefrom the petitioner was allegedly lifted away by the other side has prejudiced petitioner's case. We do not agree with him. Deposition of P.W.8 Nazir Ahmad S.I. The S.H.0, the main Investigating Officer, shows that Ramzan's conduct in favouring the petitioner who remained a Foot-Constable in police and who had relations in police, was not above board. The accused never indicated during the trial that Ramzan's examination was essential for defence. His evidence in view of statement of Nazir Ahmad S.H.O. Was not essential for the decision of the case. The medical evidence and the state of garment of Mst. Kishwar belie the story of the petitioner besides being highly improbable. The eye- witnesses have rightly been believed. There is no justification for interference. This petition is therefore dismissed as without any force.