1. ' JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).--Leave to appeal has been sought against the dismissal by the Federal Shariat Court of petitioner's Criminal Appeal; whereby his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with a sentence of 4 years' R.I. And 10 stripes, was upheld and in revisional jurisdiction of Federal Shariat Court the sentence of stripes was enhanced to 30 in number.
2. ' The prosecution case as narrated in the impugned judgment is that "on the day of occurrence father of Mst. Najma Bibi had gone to Lahore while her mother had gone to make purchases in the Bazar. At about 10 a.m. She was alone in the house. She bolted the door of her house from inside and after taking the bath when she was wearing the shirt, Muhammad Siddiq accused, her neighbour, unbolted the door of her house and came inside. He secured Mst. Najma Bibi, laid her on the ground and committed Zina-hil-Jahr with her. On her alarm Ghulam Muhammad and Allah Bakhsh PWs came there and had seen the occurrence. On seeing them Muhammad Siddiq accused ran away. After one hour they started for the police station. On the way Muhammad Hayat A.S.I. Met them and recorded her statement Ex. P.A. He got her medically examined and took her blood-stained shirt and shalwar into possession".
3. ' The defence plea under section 342, Cr.P.C. Was that Mst. Najma Bibi was not of good character.
4. She had illicit relations with a neighbour who was an employee in a bank. She used to exchange correspondence with him and that the other neighbourers and the petitioner used to object to the same, therefore, he had been falsely implicated.
5. 'The medical evidence revealed that the victim had suffered this occurrence as first act of sexual intercourse; her hymen was freshly torn and the edges thereof were still bleeding on touch when she was examined several hours after the occurrence. The result of the chemical analysis of the vaginal swa bs was also positive. Thus the argument that the prosecutrix was used to sexual intercourse is without any force. Learned counsel, however, contended that she was a married woman of 18 years of age, therefore, the lady doctor, according to him, has purgered herself in this case. There is absolutely no circumstance except this bare statement to indicate that the lady doctor has not told the truth. The fact that it was first act of sexual intercourse with the victim is further borne by the circumstance that she had suffered injury in the private part due to which her clothes were smeared with blood. It is also not a fact that the victim was of 18 years of age because the trial Judge who examined her, by observation noted it to be 13 years. At the time of occurrence, she was of still lesser age. The reliance on an entry in her Nikahnama, to the contrary, is misplaced because it was a case of child marriage which on account of fear of prosecution was not permitted to be consumated by the elders of the family and there was no real Rukhsatee till then.
6. Learned counsel also relying on some circumstances argued that the family of the prosecutrix belongs to the lower strata in the locality and that their ladies are of easy virtue. He has supported this argument by citing circumstances where the victim's uncle and grandfather, according to him, admittedly accused other persons of sexual crimes against their ladies and subsequently compromised the matters. Even if all this be accepted as true, that would not mean that the family of the prosecutrix who are moeens is destined to suffer this humility simply because of poverty and/or their belonging to the lower strata of the society. The principles of equality and dignity of man howlowsoever are some of the hallmarks of Islamic society. Such like persons deserve more regard and respect from their highly placed brethren. If the ladies of the poor Machhi family were violated by their masters living around them it is not only deplorable but worth taking more serious note. If on the other hand the Machhi men in the locality have played with the honour of their own womenfolk this is no less deplorable. But all that cannot deter a Court to decide every case on its own facts; and from case to case do complete justice fairness-wise and wherever needed firmness-wise.
7. ' In this case we having carefully scrutinised the evidence are fully satisfied that the petitioner has rightly been convicted of Zina-bil-Jabr and concurrent findings of fact by the 2 Courts below in this behalf are, unexceptionable. The victim of the present crime is not used to sexual intercourse and was also of tender age. She has been subjected to cruelty. It has harmed her person and may be her future also. Vis-a-vis, her marriage in tender age and thus the tender wedlock, it might have also snapped due to violence against her. The sentence awarded to the petitioner, in our view, is on the much lenient side. We have already in some cases highlighted the aforenoticed aspects. This Court has no power of enhancing the sentence otherwise it might have been a fit case for awarding double the sentence of rigorous imprisonment even on the grounds mentioned by the trial Court: (i), young age of the accused; (ii), it being his first offence; and (iii), further that he could reform himself. But with respect the fact that he is "a handsome young man", as noted by the trial Court as a point for leniency is hardly a justifiable ground for awarding lesser sentence. It is a pity that while this circumstance has weighed with the learned Judge regarding the sentence awarded to the accused, he has not mentioned anything regarding, if not looks, at least the beauty and innocence which is always visible even to a blind person in a child -- here a female victim.
8. ' Looked at from whatever angle it is not a fit case for interference. Leave to appeal, accordingly, is 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.