1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.--Leave to appeal has been sought from judgment, dated 21-5-1985 of the Federal Shariat Court; whereby conviction of the petitioners under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII) of 1979, with sentence of 5 years' R.I., 10 stripes and a fine of Rs.1,000 in default whereof six months' R.I., each, were affirmed and maintained.
2. The prosecution case is that Mst. Shaheen petitioner (in the Jail petition) was travelling towards Barra Bazar near Peshawar in a Suzuki Passenger Van when she was joined by Mst. Nasrin (convict jail petitioner) who was then carrying a child, as a passenger in the same Suzuki Van. Some time later, Munir Khan petitioner in the other petition joined the female passengers. During the journey he tried to be free with the ladies which was resented by them. After reaching the Barra Bazar, the two female convicts spent about 10/15 minutes in the Bazar and then boarded a Suzuki Passenger Van for the return journey. Munir Khan petitioner again boarded the same Van. In addition to him the fourth convict in the case namely, Said Muhammad also boarded it as a passenger. All four of them got down at the same place wherefrom according to Mst. Shaheen she was taken by the other three convicts at a false pretext to a nearby servant quarter. When she reaches there the others bolted the door from the outside and threatened her that if she raised any hue and cry the police will be summoned. Thereafter, Said Muhammad and Nasrin convicts remained inside and Munir Khan committed Zina-bil-Jabar with her when she was under threat and fear. In the meanwhile, people collected outside; they opened the door and found all the four persons, two male and two female accused convicts in the said circumstances Shaheen's re-action was that of protest and innocence. She straightaway made a statement containing the afore noted facts and protested her innocence. F.I.R. Was registered on the basis of the same statement made by Mst.
3. Shaheen.
4. At the trial several persons appeared to depose about the recovery of the four convicts from the quarter and the indulgence of Munir and Shaheen in Zina. When examined under section 342, Cr.P.C. The defence -plea was of denial and false implication. Shaheen petitioner also when arrayed as an accused person did not stick to her initial statement which -was made the basis of the F.I.R.
5. The learned trial Court and the learned Federal Shariat held all the accused guilty for an offence under section 10(2) Ordinance in so far as Munir and Shaheen are concerned; and section 109, P.P.C. Read with section 19 for abetment of the offence under section 10 of the Ordinance via-a-via raid Muhammad and Mst. Nasrin. Leave to appeal has now been sought.
6. The plea of Munir that he had been falsely implicated by the eye-witnesses including the P.A.F.
7. Employees does not find any support from the record; there was no such enmity. The arguments of the learned counsel based on discre pancies relating to the appreciation of evidence, which does not suffer from any infirmity of law or principle. The argument that Mst. Shaheen being a married woman the Chemical Examiner's Report regarding finding of semen is inconsequential is also of no help to the petitioners because even if this piece of evidence is excluded in the peculiar circumstances of the case, the statement of Mst. Shaheen made to the witnesses immediately after the discovery of the offence did disclose the commission of Zina. It is a different matter that her version that of Zina-bil-Jabar. 'Moreover, the circumstances in which Munir and Shaheen were found by the witnesses and other circumstances appearing in the evidence were sufficient to conclude that they had committed sexual intercourse. Therefore, it is not possible to agree with the learned counsel that the four convicts were not found indulging in a sex act is unacceptable. Be that as it may, there is no justification for interference with the concurrent findings of the two Courts that all the four accused persons did indulge in what the, witnesses had found while Munir and Shaheen had committed Zina, Said and Nasrin had provided the help. We, therefore, do not find any force in so far as the petitions for leave to appeal submitted by Munir and Nasrin petitioners are concerned--Said Muhammad has not challenged his conviction, and they are accordingly dismissed.
8. The case regarding Shaheen prima facie stands on a different footing. None of the two Courts below has devoted any attention to her conduct in raising a protest of innocence soon after the discovery.
9. She made a statement explaining her conduct on the basis of which F.I.R. Was also registered. She would have been a witness if not arrayed as an accused person, and if she would have been examined as a witness or otherwise under oath and would have been asked all the questions relating to the points which prevailed with the Federal Shariat Court regarding her conduct, she might have satisfactorily answered and explained the same.
10. In peculiar circumstances of the case, therefore, the features which go in favour of Mst. Shaheen would need consideration. While condoning the delay in filing the petition for leave to appeal by her she iv granted leave.
11. The appeal shall be prepared on the present record with liberty to file additional documents, if necessary.
12. The case to come up during the next Session.