1. SHAFIUR RAHMAN, J.-- The petitioner a convict under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the-Ordinance) seeks leave to appeal against the judgment of the Federal Shariat Court, dated 16-5-1984 whereby his conviction was upheld and he was sentenced to 25 years' rigorous imprisonment and thirty stripes.
2. The case against the petitioner started on a complaint (EXh.P.C.) dated 5-8-1982 addressed to the Superintendent of Police, Rahimyar Khan lodged by Muhammad Nawaz (P.W.2). A copy of the application was also sent to the Deputy Commissioner. He had not witnessed anything except that on the 4th of August, 1982 he found that a procession was taken out in Rahimyar Khan in which the petitioner was placed on a donkey after blackening his face and taken round in the city. It was mentioned in the complaint that the reason for the petitioner being dealt with so was that he had committed Zina and sodomy with some of his near relatives. One such case for which the petitioner stood trial related to the daughter of his consanguine sister. The girl Asfa Bibi (P.W.4) aged about 12/13 years stated that the petitioner had committed Zina with her three or four times, twice in the premises of his factory and twice in his house. Her medical examination by Lady Dr. Mrs. Khawar on 10-8-1982 showed redness of labia majora. The hymen had crenated margins. The vaginal swa bs were taken and sent to the Chemical Examiner and the report was positive. She gave the opinion that Asfa was either suffering from infectious disease or sexual intercourse had taken place with her recently. She also gave the opinion that she was subjected to sexual intercourse once. Younas (P.W.3) father of Mst. Asfa appeared and stated about the facts coming to his knowledge and the implication of the petitioner in it. Dr. Zafar Maqsood who examined the petitioner found him capable of performing sexual intercourse. The plea of the petitioner, it appears, was that he had been implicated on account of business rivalry with his relatives who had actually disgraced him in all possible manners.
3. The trial Court held the prosecution case fully established and finding the petitioner guilty under section 10(3) of the Ordinance sentenced him to life imprisonment and to suffer 30 stripes in Mehmood Stadium Rahimyar Khan in public.
4. On appeal by the petitioner, the Federal Shariat Court re-examined the material on record and upheld his conviction. As regards the sentence it was observed that life imprisonment could not be imposed for the offence. Hence it was substituted by rigorous imprisonment for 25 years' and the sentence of stripes was kept intact.
5. Learned counsel for the petitioner submitted that the fact of business rivalry between the petitioner and his other relatives is established on the record. The statement of Mst. Asfa the victim does not find corroboration from the medical report. The Lady Doctor had stated that only once she had been subjected to sexual intercourse while Mst. Asfa said that it was three or four times. As regards the swa bs, it was stated that its safe custody and delivery at the Chemical Examiner's office remained unproved.
6. We find that this petition is barred by 33 days. There is an application for condonation of delay. The reason given is that the arguments concluded at Lahore on 18-5-1984; that the judgment was announced on 16-5-1984 at Islamabad and that he remained un-inforcement of the judgment and it was when the Sessions Judge fixed the date fol infliction of sentence of stripes that he came to know and immediately obtained a copy of 15-7-1984 and filed the petition. As it appears from recital of facts that the counsel of the petitioner was an outstation counsel and had not been specifically informed about the announcement of the judgment, the delay in filing the petition is on that account condonable and is hereby condoned.
7. The conduct attributed to the petitioner by his close relative: is to say the least, most abnormal.
8. Even if there be business rivalry as is suggested, such events cannot be explained by reference to it. It has been stated by the complainant himself that the wife of the petitioner is a pious lady and a councillor in Rahimyar Khan. It is also admitted by the petitioner that before lodging of this report he was dealt with by his own relatives in a manner to attract the attention even of the stranger like Muhammad Nawaz. His face was blackened. He was put on a donkey and a procession was taken in the town it spite of a ban on procession for which some members of the assembly had to face prosecution.
9. Mst. Asfa who is aged 12/13 years has stated about her being subjected to Zina by the petitioner.
10. The relationship is so close that false charge would hardly have ever been made. It is supported by the medical opinion which would show that she was subjected to sexual intercourse at that age.
11. The fact whether it was committed once of more than once is not relevant for arriving at the guilt of the petitioner. It could be of use only in arriving at the veracity of the victim. We find no circumstance to reject her testimony and none has been found by the to Courts to doubt it. The further corroboratory evidence of presence of semen in the swabs is not of much importance when Mst. Asfs is to be believed.
12. We find that the to Courts with regard to the guilt of the petitioner make out no case on any ground whatsoever for re-appraisal of the evidence or for examining afresh the conclusions arrived at concurrently. Leave to appeal is, therefore, refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.