' Muhammad Zubair, son of Muhammad Abdullah, caste Pathan, aged 24 years, Dispenser, resident of near Tablceghi Markaz, Raiwind, District Lahore, has preferred this appeal against the judgment of the learned Additional Sessions Judge, Lahore, dated the 12th May, 1993, convicting the appellant of the commission of offence of Zina and sentencing him under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), to undergo rigorous imprisonment for three years, suffer thirty stripes of whipping and pay a fine of Rs,25,000 and in default of payment thereof to pass further rigorous imprisonment for six months. The appellant was given benefit of the provisions of section 382-B of the Code of Criminal Procedure for the purpose of adjustment of the period of his detention during trial of the case against the term of sentence of imprisonment. He is on notice issued by this Court to show cause as to why the sentence awarded to him by the learned trial Court be not enhanced.
2. The appellant's co-accused, Mst. Shahida Bibi, who was alleged to have taken the late Mst.
Nasreen about 17/18 years' old unmarried daughter of the complainant, Ghulam Muhammad, P.W.7, to the place where the appellant was said to have committed Zina with her, however, earned acquittal.
3. The prosecution version of the case is to the following effect. Ghulam Muhammad, P.W.7, alongwith his family including his daughter, Mst. Nasreen, lived in village Kotha Pind. His other daughter, Mst. Parveen, who was married to one Bashir Ahmad, resided at village Fatehabad, at a distance of about 10/12 miles from Kotha Pind. She being in the family way Ghulam Muhammad and Mst. Nasreen went to her. On the 22nd September, 1992, Mst. Shahida Bibi, the acquitted co- accused of the appellant, came to the house of Mst. Parveen and took away alongwith her Mst.
Nasreen on the pretext of answering the call of nature. As Mst. Nasreen did not return home after the lapse of somewhat considerable length of time her father went out in search of her. He heard noise emanating from a nearby field of Jawar crop. Accompanied by Siraj Din, P.W.5, who happened to be there, Ghulam Muhammad went to the Jawar field and found the appellant and Mst. Nasreen over there. Hearing the noise Muhammad Mansha, P.W.6, also came to the spot. Their arrival put Muhammad Zubair to flight. Mst. Nasreen told her father, Siraj Din and Muhammad Mansha that the woman had brought her to the Jawar field where the appellant had already been present and that he had forcibly committed Zina-bil-Jabr with her. Ghulam Muhammad and Mst.
Nasreen went to Mst. Parveen's house where Mst. Nasreen, after having bolted herself in the room of the house, in a suicidal attempt set herself on fire. After a short while when the doer was opened her body was found to have been singed and burnt. Ghulam Muhammad, with the assistance of his son-in-law, took her to Mayo Hospital, Lahore, where she was examined in the Casualty Outdoor Department by Dr. Munir Hussain Shah, P.W.11, at 8-45 p.m. The Medical Officer found her to be conscious and time oriented. According to him she stated that a person had tried to commit Zina with her but could not succeed because of the arrival of the people and because of her raising noise and that she had herself put on fire her person and clothes. On external examination the Medical Officer noticed the burn involving the whole body except lower legs (lower half) and two feet. He did not detect any smell of kerosine. He said that call had been sent to the Female Medical Officer on duty in the Lady Willington Hospital, Lahore, for medical and gynaecological examination but the lady doctor had refused to oblige saying that it was not her duty to perform such examination.
' According to the Medical Officer the injuries were fresh and of within six hours' duration. The injuries were kept under observation by him. Exh.P.M. Is the copy of the medico-legal examination report. Exh.P.N. Contains the notes recorded by Dr. Shaukat Mirza, Registrar of the North Surgical Ward, Mayo Hospital, Lahorc, who performed operation upon Mst. Nasrcen.
4. Receiving information of the occurrence, Mubarik Ali, the then Assistant Sub-Inspector of Police, Police Station Chung, P.W.10, went to Mayo Hospital, Lahore. On his enquiry through the application Exh.P.G., the Medical Officer of the North Surgical Ward stated that Mst. Nasrcen was not in a fit condition to make statement. Mubarik Ali reduced into writing Ghulam Muhammad's statement, Exh.P.D. Which constitutes the first information report, at 2-00 a.m., on the 23rd September, 1992, in the hospital. The narration given by Ghulam Muhammad forms the basis of the prosecution version of the case which has been described above. Mst. Nasrcen expired on the 23rd September, 1992, at 7-15 a.m.
5. Dr. Muhammad Amjad Bhatti of the Forensic Medicine Department of King Edward Medical College, Lahorc, performed autopsy on the dead body of Mst. Nasrcen on the 24th September, 1992, at 12-45 p.m. Apart from noticing other things the Medical Officer found the following injuries:--
(1) Superficial and deep burn injury of body involving head and face, except top of head, both arms except back of left forearm and palm of the left hand, front of abdomen and chest sparing back of chest and abdomen, buttock and involving lower limbs partially, perenium, sparing lower legs and soles, with blackening and charring partially. Wound was dcbrided and reddish base showing the vital reaction.
(2) A stitched wound 5 c.m., in length with 4 black stitches on the inner and lower part right leg.
(3) A stitched wound 4.5 c.m., in length with three black stitches on the inner and lower part of left leg just above the medial malleous.
' All the injuries were opined by the Medical Officer to be ante-mortem. The first injury was caused by flame burning and injuries Nos.2 and 3 were due to surgical intervention. Death had been caused due to flame burning and its complication leading to shock. Burn was about 64%.
6. Dr. Muhammad Amjad Bhatti took three vaginal swabs which he covered into a sealed box. The swa bs on examination by the Chemical Examiner for the Punjab, Lahore, were found to be stained with semen. Exh.P.O. Is the report of the Chemical Examiner in this behalf.
7. The appellant was arrested on the 6th October, 1992, by Mubarik Ali, P.W.10. The next day he was examined by Dr. Sadiq Naeem, Medical Officer, Office of the Surgeon Medico-legal Punjab, Lahore.
P.W.9, who certified his potency to perform sexual intercourse. Exh.P.F. Is the copy of the medico- legal examination report.
8. The appellant denied having had any contact and having committed Zina with Mst. Nasreen on the 22nd September, 1992, in the Jawar field in Fatehabad as alleged by the prosecution. He maintained that on the 22nd September, 1992, he had constantly been present with Muhammad Bashir Monga, ex-Chairman of Town Committee, Raiwind, D.W.3, and had not left Raiwind. Pleading his innocence he gave the following explanation (quoted in his own words) during the course of his examination by the Court for his false involvement in the case:-- "I am innocent in this case. I demanded the hand of Mst. Nasreen, deceased, from her parents and her mother, Bashiran Bibi, accepted the proposal. In return I also arranged the marriage of Muhammad Akram, the brother of Nasreen deceased. I also gave 11,000 rupees to the mother of deceased on different occasions for purchase of gold ornaments and garments for marriage/engagement. Bashir, the brother-in-law of Nasreen deceased, was against this proposed marriage and he asked the parents of Nasreen, deceased, to annul this engagement and demanded the hand of Nasreen for his younger brother, but the parents of Mst. Nasreen, deceased, turned down his proposal persistently. Bashir deceitfully took Mst. Nasreen to his house and they murdered her in collaboration with Mansha, P.W., by putting to her on flames. On the 22nd September, 1992, that is, day of alleged occurrence I remained present constantly with Muhammad Bashir Monga, Ex-Chairman of Municipal Committee, Raiwind, and did not leave Raiwind. I have been involved in this case falsely to save the neck of Bashir and Mansha because Bashir is related to the complainant as being his son-in-law."
' He produced in defence to support his plea of alibi Faqir Muhammad, D.W.2 and Muhammad Bashir Monga, D.W.3. He brought Yousaf, D.W.4, into the witness-box to bear out that he had paid money to Mst. Nasreen's mother in connection with his marriage with Mst. Nasreen. The evidence given by Nazar Hussain, Inspector of Police, D.W.I is not helpful to him at all.
9. The ocular evidence bearing out the occurrence consists of the depositions of the complainant, Ghulam Muhammad, P.W.7, Siraj Din, P.W.5 and Muhammad Mansha, P.W.6. Ghulam Muhammad, P.W.7, testified that on the 22nd September, 1992, Mst. Shahida, the acquitted accused, who had come to the house of Mst. Parvcen, had requested Mst. Parveen to send Mst. Nasreen with her to the nearby fields as she wanted to answer the call of nature. He added that Mst. Shahida had gone with Mst. Nasreen towards the fields. According to him they had waited for half an hour but the ladies had not returned and then he had set out towards the Charry crop field and had heard noise emanating therefrom. Siraj Din, P.W.5, was stated by him to be present in his field at that time.
Continuing his statement Ghulam Muhammad said that he and Siraj Din had gone inside the Charry field wherefrom the noise had been coming and had seen Mst. Nasreen weeping inside the Charry crop. He disclosed that on query Mst. Nasreen had told him that the appellant, Muhammad Zubair, had committed Zina-bil-Jabr with her against her will. Lie further stated that Muhammad Mansha, P.W.6, had also come over there and on seeing them the appellant had run away from the place of occurrence. He deposed that he had taken Mst. Nasreen to the house of Mst. Parvecn, that Mst. Nasreen had gone inside the room, that they had heard shrieks from inside the room and had seen Mst. Nasreen burning, she had burnt herself.
10. Siraj Din, P.W.5, gave evidence to the effect that at about 2 or 2-30 p.m., when he had been standing in his field he had heard noise from the nearby Jawar crop field. He described the noise as shrieks of a girl. He said that he had rushed towards the side of noise and there had also come a person (Ghulam Muhammad) claiming himself to be the father of the girl. He further stated that he and that person (Ghulam Muhammad) had entered the Jawar crop and had seen the appellant (whom he described in the first instance as Jabbar but corrected in the cross-examination as Zubair), who had run away seeing them. He added that they had also seen in the Jawar field a girl who had told them that the appellant had committed Zina-bil-Jabr with her. Lie confirmed that Muhammad Mansha, P.W.6, had also come over there and had seen the appellant running from the place of occurrence. He concluded that the father (Ghulam Muhammad) had taken the girl (Mst. Nasreen) home.
11. Muhammad Mansha, P.W.6, who claimed himself to be owner of the Jawar field, the scene of occurrence, said that on the 22nd September, 1992, he had heard noise when he had been in his house and that coming out of the house he had seen Siraj Din, Ghulam Muhammad and Mst.
Nasreen, who was weeping. He asserted that he had seen Muhammad Zubair, appellant, running from the Jawar field. He testified that Mst. Nasreen had told that the appellant had committed Zina-bil-Jabr with her.
12. The learned trial Judge believed the testimony of Ghulam Muhammad and Siraj Din considering it to be confidence inspiring. However, he discarded the evidence of Muhammad Mansha for the reason that he had tried to conceal his relationship with Ghulam Muhammad's son-in-law, Bashir Ahmad. He did not accept the appellant's plea of alibi and the evidence produced by him in support thereof at face value. The learned Judge thrashed out falsehood of the appellant's excuse of alibi and the learned counsel for the appellant could not take exception to the verdict.
13. From various suggestions made to the prosecution witnesses during cross-examination and other material on the record it transpires, and this fact could not be seriously controverted by the learned counsel appearing on behalf of the State, that the appellant, who at one time was Pcsh Imam of a mosque in Kotha Pind, had access to the house of Ghulam Muhammad, that he paid some money to Ghulam Muhammad's wife (Mst. Nasrcen's mother) for getting the hand of Mst.
Nasrccn, that though the parents of Mst. Nasrcen had once agreed to give her in marriage to the appellant subsequently they changed their mind. It seems that the appellant had developed intimacy with Mst. Nasrcen and that the relationship did not come to an end even after her parents had decided not to marry her to the appellant. It appears that the appellant set out in pursuit of Mst. Nasreen when she went to her sister's house in Fatchabad and there manoeuvred to have a meeting with her in the Jawar field.
14. Ghulam Muhammad and Siraj Din, whose evidence has been placed reliance upon by the learned trial Court, are not shown to have any hostility towards the appellant so as to go to the length of falsely blaming him for inviting ugly stigma upon the honour of Mst. Nasreen. In the very first statement made by Mst. Nasrcen immediately after the occurrence she categorically charged the appellant with the commission of Zina-bil-Jabr with her. Detection of semen in her vagina, confirmed by chemical examination of the swabs, would lend confirmation to the commission of sexual intercourse by the appellant with her. The appellant was resident of a place about ten miles away and was not supposed to be at the place of occurrence at the relevant time. Some capital was tried to be made before the learned trial as well as before this Court out of Mst. Nasreen's statement before Dr. Munir Hussain Shah, P.W.11, referred to above, wherein she had not named the appellant as culprit and had simply said that a person had tried to commit Zina with her. The learned trial Judge found justification for her omission to name the appellant as perpetrator of crime. He dealt with this aspect of the case thus:-- "In order to weigh objection of the learned defence counsel that Mst. Nasreen did not name the accused as culprit in her statement before Dr. Munir Hussain Shah, immediately before her death, it is necessary to keep all the facts and circumstances in mind. It is admitted that Mst. Nasrccn was pupil of Zubair, accused, and thus was acquainted with her. It is also admitted fact that Zubair was interested to marry her but could not succeed because of the denial of her parents. She was seen in Jawar crops with Zubair, accused, by her father. Immediately after it, she preferred to die than to face her parents; as noted earlier she has been proved to be raped as I have noted earlier. From all this it is clear that she was accomplice to the commission of Zina with Zubair and it is why she could not face her father and preferred to die than to live. As Zubair was her paramour, therefore, she did not confess her guilt before the doctor and did not name Zubair as her rapist."
' It is difficult to disagree with the observations of the learned Judge. In our society whenever a girl, though a consenting party, is caught flagrante dclicto she generally blames the male offender for having performed the sexual act forcibly against her will. The fact that Mst. Nasreen burnt herself due to feeling of shame or might be due to desperation resulting from sensing failure to have permanent union with the appellant should not be lost sight of while evaluating her statement before the medical officer which she made almost six hours after the occurrence. The Medical Officer, who was bound to ask and who must have asked her as to how she had been injured, was stranger to her and did not know true facts of the occurrence. Therefore, she might well have thought of avoiding to name her paramour, the appellant, as offender. She might have also preferred not to have admitted commission of Zina with him. This was in consonance with the traditional and somewhat natural tendency of our womenfolk to try to hide, especially from strangers, as far as possible their faults and lapses affecting their moral integrity. Therefore, her reluctance to disclose the whole truth touching the incident to the Medical Officer is understandable.
15. The hard fact remains that Mst. Nasreen made statement without any loss of time after the occurrence to Ghulam Muhammad and Siraj Din that the appellant had committed sexual intercourse with her. The appellant was present over there and he made good his escape. Being resident of a place 10/12 miles away he was not normally supposed to be at the spot. The confirmation of presence of semen in the vagina of Mst. Nasreen through its detection in the vaginal swa bs by the Chemical Examiner goes a long way to establish commisson of Zina by the appellant with her. The appellant had been A known to Ghulam Muhammad since long. There could be no question of mistaking his identity. The presence of Ghulam Muhammad and Siraj Din at the spot was not unnatural. All these factors, seen in juxtaposition with the existence of relationship between the two referred to above, lead to the inevitable conclusion that the appellant was guilty of committing Zina with Mst. Nasreen. Consequently his conviction recorded by the learned trial Court is in oder and is affirmed.
16. There remains the question of determining the quantum of sentence to be passed upon the appellant. He acted as Pesh Imam and could be taken to be familiar with the moral ethical standards as enjoined by Islam. He must be aware of the importance of adhering to such standards and of the consequences flowing from their breach. He was expected to observe them but he chose to violate them. His condemnable act was mainly responsible for driving Mst. Nasreen to commit suicide. His action thus assumes a degree of added severity which needs to be dealt with more strictly than the act of an ordinary offender. The sentence of three years' rigorous imprisonment in the circumstances of the case given to him by the learned trial Court is inadequate and demands enhancement in the interests of justice; it is increased to seven years' rigorous imprisonment. The sentence of fine and whipping is kept intact.
' As already directed by the learned trial Court the appellant will enjoy benefit of the provisions of section 382-B of the Code of Criminal Procedure. The appeal fails and is dismissed.
Sentence enhanced.