JUSTICE MAULANA MUHAMMAD TAQI USMANI, MEMBER.--This is a very unfortunate case in which a girl has levelled a heinous charge against her father that he had been committing Zina-bit-Jabr with her. On the basis of the' F.I.R. (Exh. PA) lodged on 7-12-1987 by Mst. Ghulam Rakiya P.W.1, a case under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered against the appellant, who was tried by an Additional Sessions Judge, Rawalpindi, and the aforementioned charge having been found proved, the appellant was convicted under the said section and was sentenced to 25 years' R.I. With 30 stripes. However, the benefit of section 382-B, Cr.P.C was extended to him. The appellant filed an appeal in Federal Shariat Coui t which was heard and failed on 8-2-1990, the conviction and sentence having been upheld and maintained.
This appeal, by (cave of this Court, has been directed against the above judgment of the Federal Shariat Court.
2. The prosecution case, as emerges from the F.I.R. And from the, evidence of the prosecution witnesses, can be summarized as follows: Muhammad Akram, the father of Mst. Ghulam Rakiya, P.W.1, is alleged to be a hard-headed man who had turned out his wife from his house some 6/7 years earlier than the lodging of the F.I.R. She had gone to her relatives in Chak Amral leaving two sons and four daughters residing with the appellant in his house. It is alleged in the F.I.R. That after two years from the desertion of the wife of Muhammad Akram (the appellant), he started committing Zina-bil-Jabr with his real daughter and since the house of the appellant was at an isolated place, the poor daughter Ghulam Rakiya and her other brothers and sisters who had witnessed the shameful act of their father, could not have an opportunity to come out of their house and tell the shameful story to anybody outside the house. It is also alleged that two years earlier than the lodging of the F.I.R. The appellant Muhammad Akram gave her daughter Mst.Ghulam Rakiya in marriage to one Tariq Mahmood and in exchange, he himself married his sister. The marriage was contracted with the condition that Tariq Mahmood would live with the appellant in his house but since said Tariq Mahmood did not comply with this condition, he was forced by the appellant to divorce his daughter Mst. Ghulam Rakiya. On the other hand, he himself after giving beating to Mst. Bilqees (the sister of said Tariq Mahmood) his newly wedded wife, divorced her and deserted her from his house and again started committing Zina-bil-jabr with Mst. Ghulam Rakiya. Her brothers had seen their father committing this shameful act with their sister and when they raised objection, they were given beating and were treated mercilessly by the appellant. Consequently, Khalid Mahmood (the elder son of the appellant) who was about 20 years of age, could not tolerate this inhuman atmosphere and preferred to leave the house and went to an unknown place and his whereabouts are still not known to anybody. It is also mentioned in the F.I.R. That 1-1/2 years after Khalid Mahmood left the house, the appellant once again committed Zina-bil-jabr with the complainant and being fed up with this maltreatment of her father, she managed to escape from his house with 1 er brother and her sisters when their father went asleep. After passing a night in the jungle, the complainant with her brother and sisters ultimately succeeded in reaching Chak. Amral on the next day, where they met their maternal relations and told them the whole story, who helped them in lodging the report against the appellant. .
3. The prosecution, in support of its case, produced eight witnesses in all. P.W.1 Mst. Ghulam Rakiya has given a detailed account of the contents of the F.I.R. And . Levelled the charge of Zina-bil-jabr against - her father - in an unambiguous manner and supported the F.I.R. In all major aspects. She was corroborated by her brother Tahir Mah.Mood,-P.W.4, who also' implicated his father for committing Zina-bit-Jabr with his sister Mst. Ghulam Rakiya and testified that he himself had seen the commission of the shameful act of his father. Lady Doctor Fouzia Syed, Woman Medical Officer, District Headquarters Hospital, Rawalpindi, appeared as P.W:8 and has given the result of her examination in the following words:- "No marks of violence were present on any part of her body including her private parts. Hymen was old torn and healed. Vagina admitted two fingers easily. She was habitual of sexual intercourse.
Two vaginal swa bs were taken and sent to Chemical Examiner for the detection of semen. In my opinion she has been subjected to sexual intercourse. Ex. PG is the correct carbon copy of my medical report which is in my handwriting and which bears my signature."
4. The appellant, while giving his statement under section 342, Cr.P.C., denied all the charges and allegations against him and mentioned that the basic cause of his implication in this case was that his wife Mst.Ghulam Fatima had an old grudge against him, who had filed a case of dissolution of marriage against him and on an occasion, she had threatened him to teach a lesson and to involve him in such a case that he would remember it for his whole life. He also gave a written statement under oath, which is similar to what is stated above while summarizing his statement under section 342, Cr.P.C.
5. We have gone through the evidence and minutely analysed the record with the assistance of the learned counsel for the parties. As it is held by us in the case of Ghulam Muhammad v. The State PLD 1984 SC 72 that where such a charge is levelled by a daughter against her father, the matter should always be considered with due caution. We have analysed all the material available on record. It is an admitted fact that the relations between the appellant and his wife Mst. Ghulam Fatima are seriously strained to the extent that she 'had left his house for good without being divorced by him. Although she has a brother in Chak Amral, yet it is on the record that she is living with two persons, namely Bashir and Jahandad. Bashir is her maternal cousin, while Jahandad is the husband of Nadiri, who is a relative of Bashir. It is clear that there is no close relation of Mst.
Ghulam Fatima with these two persons. 1t is also admitted by Mst. Ghulam Rakiya P.W.1 that after reaching Chak Amral, she met Bashir and Jahandad, while the natural course would be to go to her mother or maternal uncle. Both these persons went with her to the -police station to register the case. They were also with her at the time of her medica examination by the Lady Doctor and it appears that they have played a very predominant role throughout this case. It is also admitted by the P.Ws. That the case of dissolution of marriage against the appellant was also instituted on the persuasion of these two persons, who also bore the expenses of the case and ii was suggested by the defence that Jahandad had an old enmity with the appellant and used to fight with him.
6. On the other hand, the statement of Mst. Ghulam Rakiya P.W.1 seems to be full of exaggeration.
She says "My father had been committing Zina-bil-jabr with me for two years daily twice or thrice a day. The accused die not make any pause or interval during the period of two years. I had natural course of menses during the period of two years. Sometime the accused had been committing Zina-bil-jabr with me during the menstruation and sometimes after the menstruation stopped."
7. Now it is not believeable that a person of nearly 60 years of age would commit the sexual act twice or thrice a day constantly for two or three years; even during the menstruation period. It is also hardly believable that a girl of mature age would tolerate such an act and would not be able to disclose this I act to any other person throughout the period of 2/3 years. Although she had stated that her father was very harsh and cruel person and did not allow her or her brother or sisters to go out of the home, yet it cannot be imagined that she or her brother could not find even a single opportunity to come out of the' home and tell the tragedy to any sympathiser in the village or in their maternal '' relations. It is admitted by this witness as well as by her brother Tahir Mahmood, P.W.4, that he used to take the cattle for grazing in the day time. He could easily avail of this opportunity to complain to the Police or to any other sympathiser in the village against his father. The appellant has produced two defence witnesses, one of whom has testified that his land is quite adjacent to the house of the appellant. The children could have easily narrated the shameful events going on in their home to these D.Ws., who not only were not told about the occurrence but they were so confident about the character of the appellant that they stood in the witness-box to testify that the appellant was a pious person performing religious obligations like prayers etc.
8. Another aspect in favour of the appellant is that there are material contradictions between the statements of Mst. Ghulam Rakiya and her brother Tahir Mahmood. Mst. Ghulam Rakiya says that they left their house in the early hours of the morning, while her brother Tahir Mahmood says that they left the house after two hours from the sunset. There are also some contrainctions in the details of their travel from their home to Chak Amral. Both of them have admitted during cross- examination that they had sympathy with their mother and that is why, they ultimately decided to leave the home of their father to join their mother in Chak Amral.
9. Keeping ail this in view, the possibility cannot be ruled out that their mother Mst. Ghulam Fatima, and Bashir and Jahandad succeeded in tutoring these witnesses who had hatred against their father due to his cruelty to level even such a heinous charge of Zina-bil-Jabr and if this possibility is there on the record, the same should benefit the appellant.
10. So far as the results of the medical examination are concerned, it is an admitted fact that Mst.
Ghulam Rakiya was married with one Tariq Mahmood and lived with him for a couple of days, so the old tears of hymen found in the medical examination can easily be attributed to that marriage.
The question which needs consideration here is only of the swabs taken from the vagina of Mst.
Ghulam Rakiya which have been proved positive according to the report of the Chemical Examiner and these swa bs were taken two years after Tariq Mahmood divorced her and, therefore, they cannot be attributed to her marriage with Tariq Mahmood. But the learned counsel for the appellant has drawn our attention to the fact that the report of the Chemical Examiner in this case cannot be relied upon because the safe transmission of the. Swabs from the Lady Doctor to the Chemical Examiner is very much doubted. In this respect, he pointed out that there are material contradictions in the statements of the P.Ws. About the number of seals affixed on the parcel of the swa bs. The Lady Doctor says that she usually affixes 7/8 seals on such a parcel. She categorically denies that three seals were affixed on the parcel of swabs taken from the vagina of Mst. Ghulam Rakiya ' PW.6 also says that he had put eight seals on the parcel, but Abdul Aziz P.W.2, who took the parcel to the office of the Chemical Examiner, says that the number of seals affixed on the parcel was three. Similarly, the report of the Chemical Examiner (Exh. PH) show, that the parcel received by the Chemical Examiner contained three seals only.
11. In this view of the matter, it would not safely be held that the parcel about which the Chemical Examiner has opined in his report (Exh.Pfl) is the same as was sealed by the Lady Doctor and was sent to the Chemical Examiner. This fact creates a serious doubt in using the result of the chemical examination against the appellant and after this report is excluded from consideration, the result of the medical examination cannot be attributed to the appellant with certainty.
12. The upshot of the above discussion is that the case against the appellant is not free from doubts and it seems to be equally possible that this case has been cooked up against the appellant on the instigation of his wife Mst. Ghulam Fatima and her supporters in order to get rid of the Nikah with 18 him and to secure the custody of the children of the appellant. The appellant is, therefore, entitled to the benefit of doubt and his appeal is allowed. He shall be released forthwith if not required in any other case.