MIR HAZAR KHAN KHOSO, J. -- This revision petition is directed against the judgment, dated 6-5- 1991 passed by the learned Sessions Judge, Layyah, whereby respondents Abdul Majid and Abdul Hamid accused in Hudood Case No.26 of 1990 --- Hudood Trial No.5 of 1991 in respect of F.I.R. No. 204 dated 4-11-1989 registered at Police Station Karor, for offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) at the instance of Mst. Rajo Mai were acquitted and case was sent back to' the Investigating Officer to register a case against petitioner Mst. Rajo Mai and unknown person who had committed sexual intercourse with her. In her complaint, petitioner Mst. Rajo Mai had stated that she was married to Ghulam Qasim, brother of acquitted accused-respondents Abdul Majid and Abdul Hamid. Her husband was involved in a murder case hence behind the bars. She, therefore, was putting up with her father-in-law and brother-in-laws in their house. According to her when her father-in-law and brother-in-law Abdul Majid had gone to look after their lands, respondent Abdul Hamid committed.
Zina-bil-Jabr ' with her. She disclosed this fact to her father-in-law Muhammad Nawaz and brother Muhammad Ramzan, who did not accept her version as true but on the contrary confined her in house where respondents Abdul Majid and Abdul Hamid subjected her to Zina-bil--Jabr whereby she conceived a child. On finding opportunity she escaped from their clutches and narrated the facts to her maternal-uncle Allah Wasaya who brought the same fact to the notice-of Shamshair Khan before whom Abdul Majid and Abdul Hamid confessed their guilt. Thus, F.I.R. Was registered at Police Station, Karor. After usual investigation Abdul Majid and Abdul Hamid were challaned before the Court. The case came for trial before the Court of learned Sessions Judge, Layyah where Abdul Majid and Abdul Hamid denied the charge and claimed trial.
2. In support of the case, prosecution examined P. W.1 Dr. Faqir Hussain Shah who examined Abdul Majid and Abdul Hamid and found them fit for sexual intercourse, P.W.2 Lady Dr. Surayya Anwar who examined Mst. Rajo and found her to have given delivery to child (Maridan) three or four months back, P.W.3 Mst. Rajo Mai, the prosecutrix, P.W.4 Shamshair Ali Khan before whom Abdul Majid and Abdul Hamid confessed their guilt, P.W.5 Manzoor Ahmad, S.I. Who recorded formal F.I.R.
On the basis of statement of prosecutrix, investigated the case and challaned the appellants. In their statements recorded under section 342, Cr.P.C. The respondents denied the allegations and claimed innocence. Reply of respondent Abdul Majid is:-- "I and my brother Abdul Hamid have falsely been involved in this case. In fact with the arrest of our brother Ghulam Qasim in the murder case, his wife Mst. Rajo Mai went and started living at the house of Abdul Qayyum Seehar, brother-in-law of Haji Shamsher Khan P.W. As maid-servant.
During this period Abdul Qayyum got intimacy with Mst. Rajo and as a result of his co-habitation, Mst. Rajo Mai got conceived and then ultimately gave birth to a daughter Mst. Muridan Bibi. On getting this information, Muhammad Ramzan, brother of Mst. Rajo Mai filed writ petition in the Honourable High Court, Multan Bench, as against the S.H.O. And Abdul Qayyum Khan aforesaid. In order to save his own skin, Qayyum aforesaid got this false case registered against me and my brother with the connivance of Mst. Rajo and the local S.H.O. In order to save their skin and make the writ petition ineffective. Mst. Rajo Mai also believed that the said petition was instituted at our behest. I tender in evidence attested copy of the order dated 18-11-1989 of the Honourable High Court which is Exh.DA."
No witness in defence was examined. However, on 6-5-1991 the learned Sessions Judge held the petitioner to be false witness and acquitted the respondents of the charge and directed Superintendent of Police Layyah for registration of the case against petitioner Mst. Rajo' Mai and her unknown paramour. The observations of the learned Judge are:-- "Before parting with this judgment I must observe that the local police has played a 'dubious role in the investigation of this case. Needless to state that the object of the investigation is to single out the real culprit and by dint of collection of chain of evidence the real accused is lime--lighted and challaned but in this case the Investigating Officer has consciously committed dishonesty in the matter of investigation, he left no stone unturned to (cave out the chain of evidence which was otherwise essential for connecting the accused with the commission of crime. He also consciously allowed the real culprit to remain unveiled. Otherwise admittedly Mst. Rajo Mai got conceived and produced her daughter Mst. Muridan while having illicit intercourse with someone other than the two accused facing the trial. The male member of this affair could be traced out by some evidence particularly by ascertaining the origin and blood grouping of Mst. Muridan, the daughter produced by Mst. Rajo Mai which fact conclusively proves the participation of Mst. Rajo Mai in the commission of offence. The Investigating Officer could single out the male member responsible for co-habiting with her. In this view of the matter, the S.P. Layyah is directed to register a case against Mst. Rajo Mai and the unknown person of her intimacy. The case could be investigated by the competent Police Officer and if proved the challan may be submitted in the Court."
3. Against the above-said order the petitioner has come in this petition before this Court and prayed for relief as under:--
4. Sh. Nazar Hussain, Advocate, appeared for the petitioner and Mr. Muhammad Aslam Uns, Advocate for the State.
5. It may be observed that after giving birth to a child, prosecutrix Mst. Rajo Mai filed F.I.R. After lapse of about one or one and half years. The explanation given by her before the trial Court was not found plausible and rejected in the words as under:-- "At the very outset I propose to deal with the question of registration of the case and to see as to whether any undue delay has occurred in bringing the machinery into motion. Obviously according to Mst. Rajo Mai, the occurrence had taken place about 1 or 1/1-2 years prior to the registration of this case. This inordinate delay has not been explained specifically in the F.I.R. However, this deficiency was sought to be supplemented through the statement of Mst. Rajo Mai. On the perusal thereof, it is evident that the complainant secured her release from the wrongful confinement after about 30/35 days. On the same day she approached Haji Shamshair Khan accompanied by Allah Wasaya and then reported the matter to the local police but her report was not registered.
Nonetheless she clearly stated that after her giving birth to her daughter for about 2/1-2 months then she submitted application' Exh.P.D. With the S.P. On whose direction the case was registered.
Obviously further delay of one year and four months in lodging the report remained unexplained."
6. Even the learned counsel for the petitioner has failed to convince us that the delay in lodging of the complaint was not fatal to the prosecution and the trial Court has taken an erroneous view and we should take a different view than that taken by him.
7. Besides it may be observed that Muhammad Ramzan, brother of the petitioner had filed Writ Petition No. 2106 of 1989 in the Lahore High Court at Multan against S.H.O., Police Station Karor and one Qayyum Khan alleging that S.H.O. Police Station Karor had committed rape upon Mst. Rajo and she had given birth to an illegitimate child and she may be freed from his clutches. The petition was, however, not pressed and withdrawn on 18-i1-1989. It seems that after withdrawal of the writ petition, this F.I.R. Has been filed at Police Station Karor against the respondents. In respect of the same the learned Sessions Judge has observed that the case against the, brother-in-laws of the petitioner was registered after due deliberation and preliminary inquiry. Hence it had lost its importance and no reliance could be placed on --testimony of Mst. Rajo Mai. For the same reason, evidence of Haji Shamshair Khan was discarded and Mst. Rajo Mai was declared to be liar of deepest character. The learned Judge has further observed that the petitioner had tried to conceal the true facts but had disclosed the facts favourable to her. Besides, evidence of Shamshair Ali Khan was discarded on the ground that he was brother of Muhammad Qayyum Khan against whom it was alleged that Mst. Rajo Mai remained as maid-servant and he had co-habited with her which resulted in birth of the girl.
8. The learned counsel for t e petitioner indeed failed to convince us that the evidence of above- said two witnesses was erroneously discarded by the learned trial Court and we should rely on it.
Besides we have gone through the judgment of the learned Sessions Judge. We did not find any perversity therein. He has rightly acquitted respondents Abdul Majid and Abdul Hamid of the charge under section 10(3) of the Ordinance and ordered for investigation of the case against the petitioner Mst. Rajo Mai and her unknown paramour.
9. For tracing the origin of the child the learned Judge has desired that the male member of the affair could be traced out by some other evidence particularly by ascertaining the origin and blood grouping of Muridan, the daughter of Mst. Rajo Mai. It may be further observed that our Holy Prophet (P.B.U.H.) has held that origin of child could be ascertained by comparing features and limbs of child with alleged paramour.
10. Regarding features case of Hazrat Hilal Bin Ummayah against
13. We hope that the investigating agency in ascertaining the parternity of female child Muridan will follow the guidelines enunciated hereinabove.
14. With these observations the petition is dismissed on merits. 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.