1. ' MUHAMMAD AFZAL ZULLAH, CHAIRMAN.-This appeal through special leave. Of this Court is directed against judgment dated 26-9-1964 of the Federal Shariat Court; whereby the Criminal Appeal arising out of conviction and sentence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) filed by Sultan Maqsood appellant, was dismissed-though some modification was made in the sentence.
2. ' The prosecution case was that Mst. Ghulam Zenab (prosecutrix) aged about 17 years, an unmarried girl and her mother Mst. Khanzadi P. Ws. Were plucking berries out in the hills when the appellant accompanied by Kala absconder caught hold of the prosecutrix and dragged her to a distance. The mother was kept off by extending threats. Having achieved both of them committed Zina with her twice each. Khanzadi came home and complained to her old husband. He, as stated, being too old was not active enough to do anything. However, Mst. Khanzadi was subsequently told that the prosecutrix after the said act of Zina, met one Ghulam Qadir who took her to his home wherefrom she was brought by Khanzadi to her house. The family waited for Umar Hayat the only other male member of the family who was employed somewhere else. On his reaching home, he took the prosecutrix to the Police Station where the report was lodged with some delay, which was explained as narrated above.
3. ' Medical examination qua the prosecutrix revealed old rupture of hymen, the vaginal swabs taken by the doctor were on chemical analysis, found to have contained semen. The prosecution case at the trial was supported by the depositions of the aforementioned two ladies and the medical evidence. The defence plea was that the accused had election rivalry and other enmities with some Zamindars known as Sardars of the village as also with the family of the prosecutrix and that the appellant had no connection with Kala, the proclaimed offender rather they were also inimical to each other. That being so, it was suggested that although the offence might have been committed by Kala alone the name of the appellant had been added at the instance of the Sardars who wreaked their own revenge.
4. ' Both the learned Courts below accepted the testimony of Mst. Ghulam Zenab the prosecutrix in so far as the main occurrence involving both Kala and the appellant is concerned. However, on account of absence of circumstantial elements relevant to the present case, it was though necessary to extend benefit of doubt to the accused regarding the nature of the offence committed. He was thus found guilty under section 10(2) of the Ordinance VII of 1979. The learned trial Court awarded sentence of 7 years' R. I.; whipping numbering 15 stripes and fine of Rs, 2000.
5. Benefit of section 382-B, Cr. P. C. Was also allowed to him.
6. ' The Federal Shariat Court, on appeal, while maintaining the conviction under section 10(2) of the Ordinance reduced the sentence to 5 years' R. I., 10 stripes and Rs, 1,000 fine.
7. Leave to appeal was granted to examine that if it was possible to visualise that the prosecutrix consented to sexual intercourse with two different persons namely Kola and the appellant, one after the other whether it was not reasonable to further assume that due to the enmity of the appellant with the Sardars, he was implicated falsely (on account of the said enmity) though only Kala had committed the Zina.
8. ' With the help of the learned counsel we have gone through the evidence. Learned counsel has contended that the depositions of the prosecutrix, her mother and that of the Investigating Officer when read together would show that there was election rivalry between the brother of the appellant and the aforementioned Sardars of the village, and further that, this did not remain momentary election rivalry but had developed into an enmity wherein there was involvement of both the sides in criminal and other litigation. He has also pointed out some material on record to show that there was a case under section 354, P. P. C. Between a female relation of the prosecutrix on the one hand, and the accused side on the other which ultimately ended in acquittal. Learned counsel further referred us to admission on record made by the complainant side that one of their female relations had worked as a maid-servant in the house of one of the aforementioned Sardars.
9. From this he tried to conclude that even if Kala had committed Zina with the prosecutrix the name of the appellant was added at the instance of the Sardars for purpose of avenging their enmity.
10. ' Learned counsel for the State has brought to our notice the conduct of the parents of the prosecutrix who were not able to approach the police on the day of the occurrence; because, except for the old inactive father of the prosecutrix there was nobody to help the ladies in launching the case. They waited for the home coming of Uniar Hayat, the brother of the prosecutrix and that is how the report got delayed by about a day. This explanation, it seems, has already been accepted. The point being made by the learned counsel for the State is firstly that there is absolutely no material on record that before the lodging of the F. I. R. The complainant party had any contact with Sardars. And secondly, if the Sardars would have been so minded as to implicate the appellant falsely by getting his name inserted in the F. I. R it would not have been delayed so as to await the arrival of Umar Hayat. And further, some evidence or indication in the evidence would have been available suggesting the intervention of the Sardars at the initial stage of the launching of the prosecution case. With regard to enmities he contended that even if it be assumed that the relations between the accused side and the Sardars were not normal there is no indication that the accused side has been falsely implicated in this case by the Sardars or in any other case falsely.
11. Reference made to the two cases: one under- section 354, P. P. C. And the other under section 379, P. P. C. In this behalf is of no avail to the accused, because, there is no evidence on the record that the accused therein were found to have been "falsely" implicated. The fact that they were acquitted on the charge would not necessarily show that the witnesses therein had been condemned as having falsely implicated the accused In so far as the aforementioned factual aspect of the enmities highlighted by both the learned counsel is concerned, it is not necessary to examine them any further so as to reach definite conclusions regarding their authenticity.
12. Assuming that there was election rivalry and previous litigation between the appellants family and the Sardars and criminal litigation between a female relation of the prosecutrix and the accused side, they by themselves would not constitute enough material to indicate the appellant in this case was falsely implicated. It has rightly been pointed out that in case the Sardars would have been instrumental in the implication of the appellant in this case the course of events would have been different; particularly when it has been argued by the learned counsel for the appellant himself, that Kala proclaimed offender belonged to the party of the Sardars. Had it been so and the complainant side, as suggested, was dittoing the line indicated by the Sardars, then only the appellant would have been named and Kala would have been excluded.
13. The nexus sought to be created by the learned counsel for the appellant between the background relations of the Sardars with the accused side and that of the complainer side with the appellant, is too weak to be accepted as basis for false implication. In the facts and circumstances of the case there is nothing to suggest that the prosecutrix, her parents or, for that matter her brother had any reason to falsely implicate the appellant either to take revenge for any previous incident involving them (regarding with the evidence is silent) or to have made such a serious charge- at the instance of the Sardars to whom they were not so obliged in any manne as to falsely implicate an innocent person for a serious offence like Zina.
14. ' We accordingly do not find any force in the contention raised on behalf of the appellant. Both the learned Courts below having accepted the testimony of Mst. Ghulam Zenab as inspiring confidence in so far as the implication of the appellant is concerned, his conviction under section 10(2) of the Ordinance VII of 1979 is accordingly upheld.
15. ' In this case although the conviction could be under section 10(2) of the Ordinance on benefit of doubt that the prosecutrix might be a consenting party, the other equally reasonable possibility that she might not have been a consenting party, cannot be ignored. If that were so, nothing has been said in either of the two judgments as to how the victim of this crime is to be compensated.
16. There is no appeal on behalf of the prosecutrix nor the State has appealed in so far as the acquittal under section 10(3) is concerned. We accordingly cannot enhance the sentence of fine so as to award adequate compensation to the prosecutrix. Accordingly there is no alternative but to reduce the sentence of imprisonment and at the same time to increase the sentence of fine. In the circumstances of the case, therefore, this appeal has been disposed of with the following short order announced at the time of hearing: "For the reasons to be recorded later, this appeal is disposed of in the following terms: while maintaining the conviction under section 10(2) of the Offence of Zina (Enforcement of Hudood)
17. Ordinance, 1979, reduce the sentence to the one already undergone, which as stated when considered together with remissions etc. Would be about 4 years' R. I. In addition to the sentence already undergone, we award the sentence of fine of Rs, 5,000; in default whereof the appellant shall suffer one year R. I. Sentence of stripes is upheld. The fine, when realized shall be paid as compensation to the prosecutrix.
18. ' The appellant subject to the payment of fine/compensation as above ordered, shall be released forthwith if not required to be detained in any other matter."