' The appellant alongwith Ashiq Masih son of Dina Masih were tried by the IXth Additional Sessions Judge, Karachi, on the charge of wilfully having sexual intercourse with each other without being legally married, between 8-9-1980 and 28-9-1980 at Karachi, Sialkot and Rawalpindi and thus committing offence of Zina liable to Tazir and were found both guilty and convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each to rigorous imprisonment for a period of five years and fine of Rs,1,000 or in default to suffer further rigorous imprisonment for a period of two months each and also to whipping numbering ten stripes each. The punishment of whipping to the female accused was ordered to be imposed after the period of pregnancy or in case an appeal is preferred after decision of the same and confirmation of the sentences.
2. The instant appeal has been filed by appellant Shagufta Masih against her aforesaid conviction and sentences.
3. The case of the prosecution is that on 9-9-1980 at 14-25 hours Sadiq Masih son of Allah Ditta resident of quarters inside Police Headquarters, Karachi lodged F.I.R. At the Garden Police Station with A.S.I. Ghulam Akbar Kibria, who was at that time incharge of the Police Station stating that his daugher Mst. Shagufta Masih aged about 14-15 years, whose description he gave, who used to reside with him, was found missing when he returned home after work at 1-00 p.m. He also found Ashiq Masih, who used to visit their home also missing. He, therefore, reported that Ashiq Masih had kidnapped his daughter after enticing her for fornication. He also reported that his daughter had taken Rs,4,000, 2 gold rings weighing one tola and one gold 'Bali' weighing about one tola, which he had preserved for her marriage. After recording, verbatim the report and reading out the same to be complainant, who affixed his thumb-impression on the same in token of correctness, the same was registered by A.S.I. Ghulam Akbar Kibria and copy of the same was sent to S.I. Muhammad Hussain for investigation. The aforesaid S.I. Visited the scene of offence which was house of Younus Masih in which Sadiq Masih was residing. It was situated in sweepers' quarters inside the Garden Police HeadquarteRs, Sadiq Masih had pointed it out. Since Ashiq Masih, who used to reside in the neighbourhood, was missing, his elder brother Hidayat Masih was joined in investigation. S.1.
Muhammad Hussain to whom Hidayat Masih disclosed that Ashiq Masih was in Sialkot, went there to Daska Tehsil to the village Sambalpur of Ashiq Masih after taking help from the local police and raided the house of accused Ashiq Masih in presence of his father, who however, informed the S.I.
That Ashiq Masih had taken Shagufta to Pindi. The S.I. Went to Pindi with father of Ashiq Masih, took help of local police, went to Bhangi Para of Cantonment area. He consulted colonel in whose quarter accused Ashiq and appellant were staying. S.I. Muhammad Hussain looked through the window of the quarter which was open as it was summer season and saw both the accused in each others embrace on the cot. He arrested accused Ashiq Masih and sent him and Shagufta for medical examination after preparing memo. Of arrest of Shagufta in presence of Inayat Masih and Francis. Dr. Robina Manzoor of Rawalpindi on examination found her to be pregnant though unmarried and according to Mst. Shagufta menarche had been five years previously. Hymen was absent. Vagina admitted two fingers easily. Ulterus was antiverted. She was of the opinion that most probably intercourse had been done. She was referred to Radiologist and also to Dentist according to whose reports her approximate bone age was 16 to 17 yeaRs, Dr. Robina had sent vaginal swa bs to Chemical Examiner Punjab whose report was positive showing that the swabs were stained with semen.
4. The appellant in her statement as accused before the Court has admitted that she had gone to the different places in the Punjab as stated by the P.Ws. And that S.I. Muhammad Hussain had secured both of the accused from servants quarter of the Bunglow of one Colonel in Cantonment area of Rawalpindi. She had admitted all the details about being found inside the room door of which was closed from inside and was opened by Ashiq Masih only on the threat of it being broken by the police. She had stated that all the details were correct but they were not found out in embracing position on the same cot. In view of the evidence of S.I. Muhammad Hussain and Mashir Inayat and of Nazar Masih, in whose quarter they were found, specially his version that on enquiry Ashiq Masih had told thim that he had married Shagufta and further in view of the evidence of Dr. Robina and the report of Chemical Examiner, therefore, there is no doubt about the fact that the two accused had been indulging in sexual intercourse and such recent indulgence had also been corroborated by the report of Chemical Examiner regarding vaginal swabs being found stained with semen. It is also significant to note that Shagufta had admitted that she was a virgin before she left with the co-accused and came to Pindi.
5. The perusal of the record of the trial makes it clear that as soon as the appellant was treated as an accused person her father, who had lodged the F.I.R. Disappeared from the scene and could not be traced and Francis Mashir and to some extent even Inayat Masih made non-commital statements with regard to her complicity in the offence. The defence plea taken about conversion to Islam before leaving for Rawalpindi by D.W. Siraj Din and the contrary views of Inayat Masih and the plea of the accused that they wanted to marry but due to police proceedings could not do so and that they did not have sexual intercourse--are all expedients which clearly are after thoughts.
6. The appreciation of evidence by the trial Court and the conclusion arrived at is correct and unassailable. Under the circumstances there is no substance in the appeal which is dismissed.