1. ' MUHAMMAD AFZAL ZULLAH, CHAIRMAN.--Leave to appeal has been sought from judgment, dated 173-1985, of the Federal Shariat Court whereby the petitioner's appeal from conviction under S. 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), was only partly allowed with a finding of guilty under section 10(2) instead of 10(3) ; with the reduction of sentence from 15 years' R. I. To 5 years' R. I. Maintaining the sentence of 30 stripes.
2. ' The prosecution case was that Mst Sughra the prosecutrix was inveigled by the acquitted accused Mst. Zareena to her house on a false pretext. From there she was sent to petitioner's chowbara on other false pretext. There she was shut in and subject to Zina-bil-Jabr by the petitioner.
3. ' Two eye-witnesses Ashiq and Asghar, were not relied upon due to some discrepancies. The medical evidence was positive with further finding that the prosecutrix was used to sexual intercourse.
4. The finding of the Federal Shariat Court was that notwithstanding the exclusion of the two eye- witnesses there was enough material to show that the petitioner was the culprit but keeping in view all the circumstances of the case it was treated a case of consent and the conviction and sentence were accordingly altered from section 10(3) to 10(2) of the Ordinance.
5. ' Learned counsel has contended : firstly, that a consenting woman should not be relied upon in cases of Zina; and secondly, that her testimony should not be accepted without corroboration.
6. We do not agree with such a generalisation in case of Zina. No hard and fast rule can be laid down.
7. It depends upon the facts and circumstances of each case. The case-law relevant to cases under section 376, P. P. C. Wherein consent of the victim above a certain age, was complete defence is no more strictly attracted to offence under Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), whereunder consent does not absolve the offender totally.
8. ' In this case we having gone through the evidence are satisfied that except for the element of a possible consent, there is no inherent infirmmity in the deposition of the victim. She had no reason to falsely implicate the petitioner either. He has rightly been convicted. Leave t appeal is, therefore, refused.